Exhibit 10.32
TELE.RING TELEKOM SERVICE GmbH
as Borrower
and
EKOM TELECOMMUNICATIONS HOLDING AG
as Lender
AMENDMENT NO. 1 TO TERM LOAN AGREEMENT
Attention: No Original Signed Counterpart or True Copy of this Agreement May
Be Brought into Austria (See Clause 17)
This Amendment No. 1 made on January 30, 2003, to the Term Loan Agreement
made on June 29, 2001.
It is agreed as follows:
BETWEEN:
(1) TELE.RING TELEKOM SERVICE GmbH, a limited liability company
established and validly existing under the laws of Austria whose registered
number at the Vienna Commercial Court is FN 171112k (the "Borrower"); and
(2) EKOM TELECOMMUNICATIONS HOLDING AG, a joint stock corporation
established and validly existing under the laws of Austria whose registered
number at the Vienna Commercial Court is FN 158908p (the "Lender").
Whereas, the parties entered into the Term Loan Agreement on June 29, 2001
and the parties intend to modify the terms of the Term Loan Agreement as herein
set forth.
1. Defined Terms
1.1 All terms used herein and not otherwise defined shall have the
meanings ascribed to them in the Agreement.
1.2 The provisions of the Clauses listed below are amended by deleting
such provisions as they currently exist in the Agreement and
inserting the following provisions in lieu thereof or specifically
amending such provisions pursuant to the instructions listed below,
as the case may be:
"Agreement" means the Term Loan Agreement dated June 29, 2001, as amended
by the Letter Agreement dated April 5, 2002, and as further amended by this
Amendment No. 1.
"Commitment" means, at any time E185,000,000 (Euro one hundred eighty-five
million).
"Commitment Period" means the period commencing on the date of the
Agreement and ending on the earlier of:
(a) June 30, 2004; and
(b) The date on which the Loan has been drawn down in full;
"Repayment Date" means each of July 1, 2004, July 1, 2005, July 1, 2006
and December 31, 2006.
2.1 The Lender, upon the terms and subject to the conditions hereof, and
relying upon each of the representations and warranties in Clause 8,
agrees to make available to the Borrower a term loan facility of up
to E185,000,000. The
claims of the Lender against the Borrower under this Agreement will
rank at least pari passu with the claims of all its other unsecured
creditors save those whose claims are preferred solely by any
bankruptcy, insolvency, liquidation or other similar laws of general
application.
Subject to Sections 3 and 4, the Lender shall make available
Advances to the Borrower for Drawdown in an aggregate amount not to
exceed E185,000,000 less any prior Advances made, which Advances
shall be used for the purposes described in or contemplated by the
Business Plan. The Borrower agrees to apply all amounts raised by it
hereunder in or towards satisfaction of the purposes of the Business
Plan and the Lender shall not be obliged to concern itself with such
application.
2.2 - Intentionally deleted
3.3; 3.3.1; 3.3.2; and 3.3.3 - intentionally deleted.
3.4 In Clause 3.4, the reference to Clause 3.3 is deleted.
4.1.2 In Clause 4.1.2, the date "April 1, 2003" is changed to "June 30,
2004."
6.1 The Borrower shall repay the Loan in installments on the Repayment
Dates set forth below, which installments shall be calculated in the
following manner:
6.1.1 On July 1, 2004, an installment of principal equal to E83,333,333
less the difference between E250,000,000 and the total principal
amount of the Loan outstanding on June 30, 2004, together with
interest in an amount calculated in accordance with Exhibit A to
this Amendment No. 1. The remaining principal amount after the
payment of the installment set forth in this Clause 6.1.1 shall be
referred to below in this section as the "Remaining Principal
Amount."
6.1.2 On each of July 1, 2005 and July 1, 2006, one-third of the Remaining
Principal Amount of the Loan (after the payment of the installment
set forth in Clause 6.1.1 above) together with interest accrued on
the principal amount of the Loan being repaid on such Repayment
Dates as illustrated on Exhibit A to this Amendment No. 1.
6.1.3 On December 31, 2006, one-third of the Remaining Principal Amount of
the Loan (after the payment of the installment set forth in Clause
6.1.1 above together with the balance of the outstanding interest,
as illustrated on Exhibit A to this Amendment No. 1.
6.1.4 For example, if on June 30, 2004 Borrower had borrowed a total of
E185,000,000, the Repayments would be as follows:
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(a) July 1, 2004 - E83,333,333 less E65,000,000 equals a principal
payment of E18,333,333, plus interest in an amount calculated
in accordance with Exhibit A to this Amendment No. 1.
(b) July 1, 2005, July 1, 2006 and December 31, 2006 - E55,555,556
plus interest in an amount calculated in accordance with
Exhibit A to this Amendment No. 1.
(c) For the avoidance of doubt, the parties have agreed that (i)
interest will be compounded (i.e. interest on interest) only
for the period from the date of the first Advance through
December 31, 2002; thereafter, for the balance of the term of
the Loan, interest will not be compounded; (ii) the amount of
interest accrued and unpaid on the total outstanding principal
of the Loan as of December 31, 2002 (Euro 145 million) is Euro
8,834,800; (iii) the amount of interest to be paid on July 1,
2004 shall be one-half of the total amount of the interest
that is accrued and unpaid on the total amount of the
principal outstanding on June 30, 2004. (The amount of such
interest is currently estimated to be Euro 13,206,393 as set
forth on Exhibit A, based upon the assumptions contained in
Exhibit A as to the actual Interest Rates, the aggregate
amount of principal drawn and the dates on which Advances will
be made through June 30, 2004. The assumptions (Interest
Rates, amount of principal drawn and the dates on which
Advances will be made) shall not be binding and are made for
illustrative purposes only); (iv) the final payment to be made
on December 31, 2006 shall include the balance of the
principal outstanding and all remaining accrued but unpaid
interest; and (v) the rate used to calculate the interest
shall be the Interest Rate, as such term is defined in this
Agreement.
6.2 The last sentence of Clause 6.2 is deleted in its entirety and the
following is substituted in lieu thereof: "Commencing January 1,
2003, Borrower shall, twice during each calendar year until the
Facility and all accrued interest has been repaid in full, use
commercially reasonable endeavors, in the same manner as it has done
in the past and represented to the Lender, to refinance the
Facility."
9.4 In Clause 9.4, the date "July 1, 2006" is changed to "December 31,
2006."
13.1(c) In Clause 13.1(c), the reference to "E250,000,000" shall be
deleted and "E185,000,000" shall be substituted in lieu thereof.
16.1.2 Copies of all notices sent to the Borrower shall be sent to:
Xxxxxxxx Xxxxxx Xxxxxx & Xxxxxxx LLP
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
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Attn.: Xxxxx X. Xxxxxxx and Xxxxxxx X. Xxxxxxx
Fax: 000-000-0000
17.2 The references in Clause 17.2 to "E250,000,000" shall be
deleted and "E185,000,000" substituted in lieu thereof.
2. Full Force and Effect
Except as specifically set forth herein, the Term Loan Agreement as
modified by the Letter Agreement dated April 5, 2002 and as amended hereby,
shall remain in full force and effect in accordance with its terms.
3. Shareholder Consent
By his signature below, Xx. Xxxxxxx Xxxxxxx also gives his consent to this
Amendment No. 1 in his capacity as Managing Director (with sole power of
representation) of, and on behalf of, the Borrower's parent, EHG Einkaufs-und
Handels GmbH.
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IN WITNESS WHEREOF, the parties to this have caused this Amendment No. 1 to be
duly executed on the date first above written.
Borrower
SIGNED for and on behalf of
TELE.RING TELEKOM SERVICE GmbH
By:__________________________________
Lender
SIGNED for and on behalf of
EKOM TELECOMMUNICATIONS HOLDING AG
By: __________________________________
Shareholder (solely as to Clause 3)
SIGNED for and on behalf of
EHG EINKAUFS-und HANDELS GmbH
By:__________________________________
Xxxx Xxxxxxx
Managing Director
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