1
EXHIBIT 10.1
LOAN FACILITY
dated as of June 29, 2001
between
Deutsche Telekom International Finance X.X.
Xxxxxxxxxxxxxx 0000
0000 XX Xxxxxxxxx
Xxxxxxxxxxx
("Lender")
and
Powertel, Inc
0000 X.X. Xxxxxxx Xxxxx
Xxxx Xxxxx
Xxxxxxx
(XXX)
("Borrower")
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CONTENTS
Section 1 Loan Facility
Section 2 Purpose
Section 3 Availability of the Facility
Section 4 Interest, interest payments, interest calculation
Section 5 Loan repayment
Section 6 Notifications
Section 7 Miscellaneous
Section 8 Governing Law, Jurisdiction
Annex 1: Terms and Conditions
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WHEREAS:
The Lender has agreed to make available a loan of a principal amount of
USD 1.100.000.000 to the Borrower, which shall be deemed to be on the terms and
subject to the conditions of this Agreement.
NOW IT IS HEREBY AGREED as follows:
SECTION 1 LOAN FACILITY
The Lender shall grant a loan facility of
USD 1.100.000.000
(One Billion one hundred Million USD)
SECTION 2 PURPOSE
The facility shall be used as follows:
USD 248.774.374,28 Repayment of Powertel Senior Credit Available on June 29, 2001
Facility due June 29, 2001
USD 396.672.543,33 Repayment of Powertel Available on July 2, 2001
12% Sr. Discount Notes, February 7,
1996, due July 2, 2001
USD 388.680.000,00 Repayment of Powertel Available on July 2, 2001
12% Sr. Discount Notes, April 19,
1996, due July 2, 2001
USD 65.873.082,39 General Corporate Needs Available beginning June 29,
2001 and ending December
15, 2001
SECTION 3 AVAILABILITY OF THE FACILITY
The facility shall be made available in tranches to the Borrower on the
respective value dates ( Section 2 ). Drawings under the working capital tranche
(USD 65.873.082,39) are to be made with five days prior written notice to the
lender.
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SECTION 4 INTEREST, INTEREST PAYMENTS, INTEREST CALCULATION
1. The disbursed loan amount shall be charged interest at the six-month
LIBOR (USD) (see Telerate Page 3750) plus 0,95% p.a., which is quoted
two banking days before the start of the interest period. The first
interest period begins with the twenty-ninth of June 2001 and ends with
the fifteenth of December 2001.
2. The interest rate for the first interest period shall be a fixed rate
of 4,85% p.a.
3. If a LIBOR cannot be determined, the arithmetical mean from the
interest rates stated on the market (per Telerate) for six-month Libor
(USD) deposits in interbank trading shall be considered as LIBOR for
the interest period concerned.
4. Interest shall be credited to the lenders bank account on every
fifteenth of July and every fifteenth of December (interest payment
date).
5. For interest calculation , the year shall be deemed to consist of 360
days and each month shall consist of actual days. (Euro-interest-method
act/360).
6. The interest rate payable will be subject to adjustment during the life
of the loan. In the event of a rating change by Xxxxx'x and/or
Standard & Poors that causes the ratings of Deutsche Telekom by both
agencies to be below the single A category (below A3 for Xxxxx'x
and below A- for Standard & Poors), the interest rate on the loan will
be adjusted.
The loan will bear interest at the applicable interest rate from the
date of disbursal of the loan up until the first interest payment date
after which this interest rating change occurs. Beginning with the
first interest payment date after this rating change, the loan will
bear interest at the adjusted interest rate per annum set forth below.
The adjusted interest rate per annum for the loans initial interest
rate increases by 0,5% p.a.
If subsequent to a step-up in the interest rate as a result of rating
change by Xxxxx'x and Standard & Poors, a new rating change by Xxxxx'x
and/or Standard & Poors causes the rating of both agencies to be above
the triple B category (above Baa1 for Xxxxx'x and above BBB+ for
Standard & Poors), the interest payable on the loan will be decreased
by 0,5% p.a. beginning with the first interest payment date after such
rating change.
There is no limit on the number of times the interest payable on the
loan can be adjusted up or down based on rating changes by Xxxxx'x and
Standard & Poors during the life of the loan.
SECTION 5 LOAN REPAYMENT
The Borrower shall repay the loan on June 15, 2010.
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SECTION 6 NOTIFICATIONS
All notifications, announcements, information, and messages under the present
agreement shall be sent by registered mail or fax to the following addresses:
For the Lender:
Deutsche Telekom International Finance BV
Attn. Yorck xxx Xxxxxx, Managing Director
Xxxxxxxxxxxxxx 0000
0000 XX Xxxxxxxxx
Xxxxxxxxxxx
Tel.: x00 00 000 0000
Fax.:x00 00 000 0000
For the Borrower:
Powertel (c/o VoiceStream Wireless)
Attn: Xxxxx Xxxxxxxxxxx, Vice President and Treasurer
00000 XX 00xx Xxxxxx
Xxxxxxxx, XX 00000 XXX
Tel: x0 000-000-0000
Fax:x0 000-000-0000
SECTION 7 MISCELLANEOUS
1. The Terms and Conditions are part of this Agreement (see annex).
2. Additional Interest: If the Lender does not receive from the Borrower
payment of any amount due under this Agreement on its due date the
Lender agrees to pay on demand to the Lender interest on such amount
from and including the date of such non-receipt up to and including the
date of actual payment (as well after as before judgement) at the rate
per annum specified in clause 4.1 plus an additional interest margin of
1%.
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3. Taxation
3.1. Tax Gross-up: All payments to be made by or on behalf of the
Borrower to the Lender pursuant to this Agreement shall be
made without set-off, counterclaim or condition whatsoever
except if the borrower is required by law or regulation to
withhold any taxes which were originally borne by the Lender.
3.2. Tax Receipts: If the Borrower is required by any law or
regulation to make any payment contemplated by Section 3.1 of
this Agreement, then the Borrower shall notify the Lender
promptly as soon as it becomes aware of such requirement. The
Borrower shall remit promptly the amount of such Taxes to the
appropriate taxation authority, and in any event prior to the
date on which penalties attach thereto. The Borrower will
deliver to the Lender all appropriate receipts or evidence of
any such withholding and payment and co-operate with the
Lender to enable the Lender to recover any tax or credit to
which it may be entitled.
4. The loans made pursuant this loan facility shall be pari passu with the
notes outstanding under the Indenture dated June 19, 1997 between
Powertel, Inc. (formerly Intercel, Inc.) and Bankers Trust Company.
SECTION 8 GOVERNING LAW / JURISDICTION
1. This agreement shall be governed by German law.
2. The place of jurisdiction shall be Bonn/Germany.
AMSTERDAM,
DEUTSCHE TELEKOM INTERNATIONAL FINANCE BV
/s/ Yorck xxx Xxxxxx /s/ Xxxxxx Xxxx
--------------------- ----------------
WEST POINT,
POWERTEL (C/O) VOICESTREAM WIRELESS)
/s/ Xxxxxx Xxxxxxx /s/ Xxxxx Xxxxxxxxxxx
------------------ ---------------------
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ANNEX
TERMS AND CONDITIONS
No. 1 Conditions for disbursal
The Lender shall not be obligated to disburse the loan (including parts thereof,
insofar as this is contractually agreed) if the Borrower:
1. has violated obligations under the Agreement;
2. provides information before conclusion or during implementation of the
Agreement that contains substantial incorrect elements;
3. did not submit the following documents in an updated and sufficiently
detailed form prior to calling each part of the loan:
Financial and cash flow planning, as well as liquidity status
4. did not submit in a timely manner the reports provided for in no. 9 of
the Terms and Conditions.
No. 2 Loan repayment
1. Repaid amounts shall not be available for redisbursement.
2. The Loan shall be immediately due for repayment if the Borrower ceases
to be a majority owned, directly or indirectly, subsidiary of Deutsche
Telekom AG.
No. 3 Payments
1. Borrower's payments must be made without charge onto the account
specified in writing by the Lender. The Lender may name a different
account at any time in a written message.
2. If a payment date is not a banking day, the payment must be made on the
next banking day. For the purposes of this Agreement, "banking day"
shall be taken to mean any day on which the offices of the bank which
the Borrower was notified of in writing by the Lender for payments
under the Agreement are open.
No. 4 Arrears
1. If repayment amounts are not credited to the Lender's account on the
due date or are not credited in full, the Lender shall be entitled to
charge additional interest on the outstanding amounts in the amount of
the market rates in effect among banks on the first day of delay, plus
interest surcharge from the contractual due date up to and including
the date payment is made.
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2. If the Borrower delays in making other payments, it shall pay the
Lender flat-rate damage compensation for the amount in arrears in
accordance with no. 4, item 1, from the contractual due date up to and
including the date of actual payment.
No. 5 Interest period
The interest period shall start on the day the loan amount is removed from the
Lender's account.
No. 6 Set-off, right of retention
The Borrower shall not be entitled to set off counterclaims against amounts owed
under this Agreement, nor to assert any right of retention.
No. 7 Termination
The Lender shall have the right to terminate the Loan Agreement without
observing a period of advance notice and to call in the loan with immediate
effect, including accumulated interest and other amounts owing, if one of the
following occurs:
a) the borrower fails to comply with any covenant after being given any
written reminder;
b) the borrower does not submit the reports provided for in no. 9 of the
Terms and Conditions for Granting Shareholder Loans, despite being
given a written reminder;
c) the borrower fails to pay principal or interest when due; or
d) the borrower becomes bankrupt or insolvent.
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No. 8 Transfer of Agreement, assignment
The Lender shall be entitled to transfer the contractual relationship to a third
person in such a manner that such person enters into the Loan Agreement in lieu
of the Lender. The loan relationship then devolves upon the third person with
all rights and responsibilities under the Agreement. The Borrower's consent
shall not be required. The rights of the Borrower under the Agreement may
neither be assigned nor encumbered.
No. 9 Reporting
The Borrower shall be obligated:
1. to inform the Lender immediately of unforeseen events substantially
affecting the business transaction and the company's condition;
2. to submit to the Lender the reports agreed in the context of Group
reporting.
The Lender shall be entitled
to verify the contractual use of the loan amounts at any time, and to gain
information on the economic condition by viewing the accounts and other business
records.
No. 10 Final provisions
1. Changes and supplements to the Agreement must be made in writing.
2. Invalid contractual clauses do not affect the validity of the remaining
provisions. They shall immediately be replaced by the contracting
parties with provisions corresponding to their meaning.
3. If the Lender does not exercise, either for a time or permanently, a
right to which it is entitled under the Agreement, this does not
constitute a waiver of such right.
4. Applicable law, venue
a) The Agreement shall be governed by and construed in accordance with
German law.
b) In case of disputes, the courts of Bonn, Germany, shall have
jurisdiction and venue.
