Exhibit 10.7
Mr. Xxx Samples
00 Xxxxxxx
Xxxxxx XX0 0XX
Xxxxxxx
April 2, 2001
Dear Mr. Samples :
This letter is delivered in connection with the loan granted to you by
CompleTel Europe N.V. (the "Company") in the amount of E865,000 pursuant
to a promissory note dated April 2, 2001 (the "Note"). The purpose of this
Letter is to set forth the understandings among you and the Company
concerning the forgiveness of principal and accrued interest on the Note.
In connection with the foregoing, the parties agree as follows:
1. The Company agrees to forgive repayment of the principal and accrued
interest on the Note in four equal installments commencing on May 31,
2001 and thereafter on August 31, 2001, November 30, 2001 and February 28,
2002 so long as you are an Employee of the Company on each such date. If
your Employment is "Terminated for Cause" as defined in Section 4 (f) your
Employment Agreement dated as of February 26, 2001, or in the event of
Voluntary Termination as defined in the Note (collectively referred to as
"Termination Date") then you agree to repay to the Company the remaining
unpaid principal and accrued interest as of such Termination Date within
thirty (30) days of said Termination Date in accordance with the terms and
provisions of the Note.
2. The Company agrees to reimburse you for any and all taxes incurred by you
as a result of the Company forgiving any principal and accrued interest
under the Note. The Company's intention is that you shall be held fully
harmless from any additional taxes of any kind associated with such loan
forgiveness.
Please indicate your acceptance of this agreement by signing below.
Very truly yours,
CompleTel Europe N.V.
By: _____________________
Xxxxxxx Xxxxxxx
By: _____________________
Xxxxxx Xxxxx
Accepted and agreed to as of the date first written above:
----------------
Xxx Samples
PROMISSORY NOTE
E865,000 April 2, 2001
FOR VALUE RECEIVED, the undersigned Xxx Samples ("Maker"), promises to
pay to the order of CompleTel Europe N.V., a company incorporated under the
laws of The Netherlands, having its registered office at Xxxxxxxxxxxx 00,
0000 XX Xxxxxxxxx, Xxx Xxxxxxxxxxx (together with any subsequent holder
hereof, "PAYEE"), the sum of EIGHT HUNDRED SIXTY-FIVE THOUSAND EUROS
(E865,000.00) (the "PRINCIPAL BALANCE"), together with interest on the unpaid
Principal Balance at the rate of six percent (6%) compounded at quarterly
intervals calculated from the date hereof.
The entire unpaid Principal Balance of this Promissory Note (this
"Note") together with all accrued but unpaid interest and all other amounts due
from Maker will be due and payable in full on the earlier of (the "MATURITY
DATE"): (i) 28 February, 2002 or (ii) the date which is thirty (30) days after
the date on which Maker's employment with Payee or an Affiliate employing Maker
terminates as a result of a Termination for Cause or terminates as a result of a
Voluntary Termination. Maker may prepay this Note, in any amount, at any time
and from time to time, without penalty. All payments made under this Note must
be made in legal tender of the United States of America to Payee at Payee's
principal place of business or at such other place as the holder of this Note
designates in writing.
As used herein, the following terms have the following meanings:
"AFFILIATE" of any particular Person means (i) any other Person
controlling, controlled by or under common control with such particular
Person, where "control" means the possession, directly or indirectly, of the
power to direct the management and policies of a Person, whether through the
ownership of shares, by contract or otherwise, and (ii) if such Person is a
partnership, any partner thereof.
COMPLETEL EUROPE N.V. EMPLOYMENT AGREEMENT means the employment
agreement dated as of February 26, 2001 by and between Maker and CompleTel
Europe N.V., as amended from time to time in accordance with the provisions
thereof.
"TERMINATION FOR CAUSE" means (i) termination of Maker's appointment
as President and CEO of CompleTel Europe N.V. pursuant to Section 4(f) of the
CompleTel Europe N.V. Employment Agreement.
"VOLUNTARY TERMINATION" means any termination of Maker's appointment as
President and CEO of CompleTel Europe N.V. other than Termination for Cause.
This Note is unsecured.
Whenever Payee sustains or incurs any losses or out-of-pocket expenses
with respect to this Note in connection with (i) repayment of overdue amounts
under this Note, or (ii) failure by Maker to pay all principal and interest
on this Note, when due hereunder (whether at maturity, by reason of
acceleration, or otherwise), Maker will pay, on demand, to Payee, in
addition to any other penalties or premiums hereunder, an amount sufficient
to compensate Payee for all such losses or out-of-pocket expenses, including,
without limitation, all costs and expenses of a suit or proceeding (or any
appeal thereof) brought for recovery of all or any part of or for protection
of the indebtedness evidenced by this Note or to enforce Payee's rights
hereunder, including reasonable legal fees and expenses.
Maker acknowledges and agrees that Payee is entitled to setoff any
amounts owed or distributable by Payee or any of its Affiliates to Maker
against any amounts that are due and owing from Maker to Payee hereunder.
Time is of the essence hereof. At the option of Payee, payment of the
Principal Balance and any and all accrued interest thereon may be
accelerated, and such amounts will be immediately due and payable without
further notice or demand upon the occurrence of any of the following events
(each an "EVENT OF DEFAULT"):
(1) Maker's failure to make any payment of any and all amounts
required to be paid hereunder when due or declared due.
(2) The occurrence of any default by Maker or event of default under
any other documents executed in connection herewith.
Unpaid principal and interest due and payable hereunder not paid when
due or declared due hereunder will bear interest at the rate of 10% per annum
until paid.
The remedies provided in this Note will be cumulative, and will be in
addition to any other rights or remedies now or hereafter provided by law or
equity. No delay, failure or omission by any holder of this Note, in respect
of any default by Maker, to exercise any right or remedy will constitute a
waiver of the right to exercise the right or remedy upon any such default or
subsequent default.
Maker and any endorser herein waives presentment, demand, notice of
dishonor, notice of acceleration and protest and assents to any extension of
time with respect to any payment due under this Note, to any substitution or
release of security and to the addition or release of any party. No waiver of
any payment or other right under this Note will operate as a waiver of any
other payment or right.
This Note may not be changed orally, but only by an agreement in
writing, signed by the party against whom enforcement of any waiver, change,
modification or discharge is sought.
If any provision of this Note is held to be invalid or unenforceable,
the determination of invalidity or unenforceability of such provision will
not affect the validity or unenforceability of any other provision or
provisions hereof.
This Note will be binding upon Maker and its successors and assigns and
will inure to the benefit of and be enforceable by Payee and its successors
and assigns.
This Note will be governed by, and construed and enforced in accordance
with English law.
IN WITNESS WHEREOF, Maker has caused this instrument to be executed as
of the day and year first above written.
------------------------
Xxx Samples
SIGNED and DELIVERED
by XXX SAMPLES as his
Deed in the presence of:
WITNESS
Signature: ___________________________
Name: ___________________________
Address ___________________________
