EXHIBIT (b)
Dated 19 February 2002
Everest Acquisition Corp.
as Borrower
-and-
Telki Holding B.V.
as Lender
---------------------------------
$ 13,000,000
CREDIT FACILITY
---------------------------------
THIS CREDIT FACILITY AGREEMENT is made on 19th February 2002 by and between
(1) Everest Acquisition Corp. having its registered seat in Delaware, United
States (the "Borrower"); and
(2) Telki Holding B.V. having its registered seat at The Hague, The Netherlands
(the "Lender").
WHEREAS,
the Lender is willing to make available to the Borrower a facility in a maximum
principal amount of USD 13,000,000 subject to the terms and conditions
hereinafter appearing;
the facility will solely be used to purchase all of the outstanding shares of
Euroweb International Corp. and to pay related fees and expenses;
IT IS AGREED as follows:
1. INTERPRETATION
(A) Definitions: In this Agreement, except to the extent that the context
requires otherwise:
"Agreement" means this agreement, as the same may in the future be amended by
the parties hereto.
"Business Day" means a day on which commercial banks and foreign exchange
markets are open for business in Amsterdam.
"Borrowings" means any indebtedness for moneys borrowed.
"Drawdown Date" means the date on which the advance of a Loan is drawn down in
accordance with clause 4 hereof.
"Final Maturity Date" means 1st August 2002.
"Interest Payment Date" means the date on which the calculated interest on (the
outstanding part of) the loan over the elapsed Interest Period is due and
payable.
"Interest Period": in relation to the Loan means the period commencing on the
Drawdown Date of the Loan or the expiry or the preceding Interest Period, and
ending on any other date as agreed upon between Borrower and Lender.
"Libor" means the applicable Libor rate for the relevant Interest Period which
appears on the display page designated LIBO on Reuters.
"Loan" means the principal amounts of each borrowing under this Agreement or the
principal amount outstanding of that borrowing.
"Maturity Date" means in relation to a Loan the last day of the Interest Period
of that Loan.
"Request" means a request by the Borrower for a Loan, substantially in the form
of Schedule 1.
"USD" and "dollars" means the lawful currency of the United States of America.
(B) Headings shall be ignored in construing this Agreement.
2. THE FACILITY
(A) Amount. Subject to the terms and conditions of this Agreement, the Lender
hereby agrees to advance Loans to the Borrower whereby the aggregate amounts of
all outstanding Loans shall not exceed USD 13,000,000 (in words: thirteen
million dollars).
(B) Purpose. The Borrower shall use the entire proceeds of the Loans for the
purchase of shares in EuroWeb Int. Corp.
(C) The Loans are direct, unsubordinated and unsecured obligations of the
Borrower and rank pari passu and equally with all other unsubordinated and
unsecured obligations of the Borrower.
3. CONDITIONS PRECEDENT
The grant of Loans by the Lender and the right of the Borrower to draw down a
Loan shall be subject to the conditions precedent ("opschortende voorwaarde")
that (a) on or prior to the Drawdown Date the Borrower will not be in breach of
any of its obligations under, or any of its representations or warranties made
in, this Agreement, and (b) no material adverse change shall have occurred in
the financial and/or commercial condition of the Borrower on or before the
Drawdown Date.
4. DRAWDOWN
(A) The Borrower may borrow a Loan if the Lender receives a duly completed
Request at least three Business Days prior to the Drawdown Date. (B) The
Drawdown Date is a Business Day.
(C) The Interest Period selected shall not extend beyond the Final Maturity
Date.
5. REPAYMENT
(A) The Borrower shall repay each Loan made to it in full on its Maturity Date.
(B) No Loan may be outstanding after the Final Maturity Date.
(C) Subject to the other terms of this Agreement any amounts paid under Clause 5
(A) and Clause 7 (B) may be reborrowed.
6. PREPAYMENT
The Borrower is not allowed to prepay any Loan, in whole or in part, without the
prior written consent of the Lender. Upon receipt of the written consent of the
Lender, the Borrower may prepay the Loan, in whole or in part, against the
highest of the nominal value (including all interest and other costs and damages
accrued on the amount of the prepayment) or the market value. The market value
will be defined as the sum of all interest and other costs and damages accrued
on the amount of the prepayment and the present value of the future repayments
and payments of interest. The market value will be determined by the Lender and
which shall be based on reasonable assumptions and generally accepted valuation
methodologies.
7. INTEREST
(A) The rate of interest on each Loan for its Interest Period is the rate per
annum determined by the Corporate Treasury department of the Lender to be
the aggregate of:
(i) Libor; and
(ii) 2,50%
(B) Accrued interest on each Loan is payable by the Borrower on its Maturity
Date.
(C) Interest shall be calculated on the basis of a 360 day year and the actual
number of days elapsed.
8. TAXES
(A) Payments to be made clear of Taxes. All payments in respect of the Loans
shall be made without withholding or deduction for or on account of any present
or future taxes, duties, assessments or governmental charges of whatever nature
("Taxes") imposed or levied by or on behalf of the Netherlands or any other
state or any authority thereof or therein having power to impose such Taxes,
unless the withholding or deduction of such Taxes is required by law. In that
event, the Borrower shall pay to the Lender such additional amounts as may be
necessary in order that the net amounts received by the Lender after such
withholding or deduction shall be equal to the amount which would have been
receivable in respect of the Loan in the absence of such withholding or
deduction.
(B) Evidence of payment of Taxes. Within 30 days after paying any sum from which
it is required by law to make any deduction or withholding of Taxes, and within
30 days after the due date of payment of any Taxes or other amount which it is
required by sub-clause (A) above to pay, the Borrower shall deliver to the
Lender evidence satisfactory to the Lender of that deduction, withholding or
payment and (where remittance is required) of the remittance thereof to the
relevant taxing or other authority.
9. PAYMENTS
(A) Means of Payments. On each date on which any sum is due from the Borrower,
the Borrower shall make that sum available without set off or deduction to the
Lender, by payment in euros or dollars and in immediately available, freely
transferable, cleared funds so as to be received before 11:00 am local Amsterdam
time, to the account held by the Lender and notified to the Borrower.
(B) Non-Business Days. Any payment to be made by the Borrower on a day which is
not a Business Day, shall instead be made on the next following Business Day.
(C) Default Interest. If any money payable by the Borrower hereunder is not
received on its due date the Borrower shall pay to the Lender interest on such
monies from such due date until payment thereof in full at the rate per annum
which is the sum of 2 (two) per cent and the interest rate referred to in clause
7 above. Interest on overdue amounts shall be compounded at such intervals as
the Lender may select. Interest payable pursuant to this clause shall be without
prejudice to any additional claim by the Lender for costs and damages.
(D) Order of Payments. Any payment by the Borrower hereunder shall be applied in
the following order: first, towards payment of any unpaid costs, secondly,
towards payment of any interest due but unpaid and thirdly, towards payment of
principal due but unpaid.
(E) Evidence. A certificate of the Lender as to the amount payable to it under
the terms of this Agreement shall, in the absence of manifest error, be
conclusive.
10. REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lender that on the date hereof and
on the Drawdown Date:
(a) the Borrower has been duly incorporated under the laws of the State of
Delaware, with corporate power to execute this Agreement and to perform its
obligations hereunder;
(b) this Agreement will constitute, when duly executed and delivered, valid and
legally binding obligations of the Borrower;
(c) there has not occurred any material adverse change in the financial
condition of the Borrower and its subsidiaries which would materially affect its
ability to perform its obligations under this Agreement;
(d) no litigation, arbitration or administrative proceeding against the Borrower
or any of its Subsidiaries is current, pending or threatened which could
materially affect its ability to perform its obligations under this Agreement;
(e) no event of default and no other event which, with the giving of notice,
lapse of time, the making of any determination or any combination thereof, might
constitute an event of default has occurred.
11. COVENANTS OF THE BORROWER
(A) Information: The Borrower agrees that from the date hereof and for so long
as any amount payable hereunder is outstanding, it will (a) provide to the
Lender its annual reports as the same are issued, and (b) promptly notify the
Lender in writing of any adverse change which is material in the context of the
financial condition of the Borrower from that described in the latest annual
reports as have been provided to the Lender.
(B) Negative Pledge: Without the prior written consent of the Lender, the
Borrower shall not, and shall ensure that none of its Subsidiaries shall, create
or allow to exist any mortgage, charge, pledge, lien, encumbrance, title
retention or other security interest whatsoever (including financial leases)
over any of its (or any such subsidiary's) present or future assets, property or
revenues.
(C) Change of Business: The Borrower will ensure that there is no material
change in the nature of its core business of itself and its Subsidiaries taken
as a whole (whether by a single transaction or a number of related or unrelated
transactions, whether at one time or over a period of time and whether by
disposal, acquisition or otherwise).
(D) Licences, approvals and consents: The Borrower shall comply with the terms
of and do all that is necessary to maintain in full force and effect all
licences, approvals and consents required in or by the laws and regulations of
the State of Delaware to enable it lawfully to enter into and perform its
obligations under this Agreement and to ensure the legality, validity,
enforceability or admissibility in evidence of this Agreement.
12. DEFAULT
(A) Notwithstanding clause 5 above, if
(a) the Borrower fails to pay to the Lender any sum due from it hereunder at the
time and in the manner specified hereunder, or otherwise breaches any of its
obligations hereunder (including its obligation under clause 2 (B) above), or
(b) any order is made or an effective resolution is passed with a view to the
bankruptcy, suspension of payment ("surseance van betaling"), dissolution, or
winding-up of the Borrower, or
(c) the Borrower is insolvent or generally ceases to pay its debts as they
mature, or
(d) any indebtedness of the Borrower or any of its subsidiaries shall not be
paid or repaid on its due date, or, if any indebtedness shall not be paid or
repaid when demanded or shall become due or capable of being declared due prior
to its stated maturity, or
(e) the Lender reasonably determines that a change has occurred in the
consolidated financial position of the Borrower and its subsidiaries which would
materially affect the Borrower's ability to perform its obligations under this
Agreement, or
(f) any assets of the Borrower or any of its subsidiaries are seized or
subjected to an executory attachment ("executoriaal beslag");
(g) the Articles of Association of the Borrower are amended in such a way that,
in the reasonable opinion of the Lender, the interests of the Lender are
materially prejudiced as a result;
(h) a change of control (i.e. more than 50% of the voting rights in the Borrower
are being acquired by one entity) takes place;
(i) a substantial part (i.e. more 15%) of the assets of the Borrower or any of
its subsidiaries is sold or transferred to a third party without the prior
written approval of the Lender;
then the Lender may by notice in writing declare the whole of the Loan and any
other sums then owed by the Borrower hereunder to be immediately due and payable
by the Borrower whereupon the Loan shall become immediately due and payable.
(B) Not withstanding clause 5 and clause 12 A above, if the equity interest the
Lender holds in the Borrower decreases for whatever reason, then the Lender may
by notice in writing declare a part of the Loans, percentage wise equal to the
just mentioned decrease in equity, and other sums then owed by the Borrower
hereunder, by the same percentage, to be immediately due and payable by the
Borrower where upon such part of the Loans shall become immediately due and
payable.
(C) Not withstanding clause 9 (C) the Borrower shall pay to the Lender a
compensation of 1 per cent per annum on any amounts due and payable under clause
12 (A) and (B). Such compensation shall likewise be immediately due and payable.
13. NOTICES
Any notice, demand or other communication given or sent to the Lender or the
Borrower in connection with this agreement shall be given in writing and
delivered by post or facsimile transmission. Any notice, demand or other
communication shall be addressed
(i) if to the Lender at Corporate Treasury P.O. Box 30000, 2500 GA The Hague
(fax number +31-70-44 60928) and marked for the attention of Mr. M.L.G.
Tigelaar and
(ii) if to the Borrower at (fax number x00-00-0000000) and marked for the
attention of Mr. J.R. Xxxxxxxxx at such further address (or fax number) as
may be notified by the Lender or the Borrower to the other from time to
time for that purpose.
14. EXPENSES
The Borrower shall reimburse the Lender on demand for all reasonable expenses
(including but not limited to legal fees and disbursements) incurred by the
Lender in connection with the negotiation, preparation and execution of this
agreement and in preserving, maintaining, protecting, perfecting or enforcing
any of its
rights under this agreement. The Borrower shall pay any stamp or other similar
duties or taxes and any court registration, or recording fees in any applicable
jurisdiction to which this agreement is or at any time may be subject.
15. MISCELLANEOUS
(A) Set off. The Lender shall be entitled to set off or to apply any deposits or
other obligations held or owing by it to or for the account of the Borrower,
against any of the payment obligations of the Borrower to the Lender under this
Agreement. The borrower shall not be entitled to any such set off.
(B) Waivers and indulgence. Any failure on the part of the Lender to exercise,
and any delay on its part in exercising, any right or remedy under this
Agreement will not operate as a waiver thereof, nor will any single or partial
exercise of any right or remedy preclude any other or further exercise thereof
or the exercise of any other right or remedy.
(C) Assignment. The Lender shall be entitled to assign any or all of its rights
under this Agreement. The Borrower will co-operate in every sense with such
assignment and will at first demand acknowledge such assignment in writing.
(D) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Netherlands.
(E) Netherlands Courts. For the benefit of the Lender, all the parties
irrevocably agree that the courts of Amsterdam, the Netherlands, are to have
non-exclusive jurisdiction to settle any disputes which may arise out of or in
connection with this Agreement and that, accordingly, any legal action or
proceedings arising out of or in connection with this Agreement may be brought
in those courts and the Borrower irrevocably submits to the jurisdiction of
those courts.
This Agreement has been entered into at The Hague on 19th February, 2002.
/s/ X.X. XXXXXXXXXXXX /s/ J.R. XXXXXXXXX
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X.X. Xxxxxxxxxxxx X.X. Xxxxxxxxx
Telki Holding B.V.. Everest Acquisition Corp
Schedule 1
Form of Request
To: KPN Telecom B.V.
Attn: M.L.G. Tigelaar
Corporate Treasurer
From: Everest Acquisition Corp.
Date: [ ]
$ 13,000,000 Credit Facility
dated 19th February, 2002
1. We wish to borrow a Loan as follows:
Drawdown Date: [ ]
Euro amount: [ ]
Interest Period: [ ]
Interest rate: [ ]*
Payment Instructions: [ ]
2. We confirm that each condition specified in Clause 3 (Conditions Precedent)
is satisfied on the date of this Request and this Loan would not cause any
borrowing limit binding on us to be exceeded.
By: Approved by:
[ ] [ ]
Authorised Signatory Authorised Signatory
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*To be determined by the Corporate Treasury department of the Lender
