Exhibit 10.4
To: The Parent
The Obligors Agent
The Original Borrowers
The Original Guarantors
The Lead Arrangers
The Security Agent
The Risk Participant
The Banks
(each as listed on the signature pages hereto)
10 January 2001
Dear Sirs
COMPLETEL SUPPLEMENTAL AGREEMENT DATED 6 APRIL 2000
1. We refer to the Supplemental Agreement relating to the suspension of
certain provisions of a Credit Agreement dated 6 January 2000 and a
Participation Agreement dated 17 March 2000 and made between, inter
alia, Completel Europe N.V. as Parent, Completel S.A.S. as Obligors
Agent, members of the Completel Group as Original Borrowers and
Original Guarantors, Xxxxxxx Xxxxx International and Paribas as Lead
Arrangers, European Investment Fund as Risk Participant and Paribas as
Security Agent and Facility Agent (as amended, the "SUPPLEMENTAL
AGREEMENT"). Terms defined in the Supplemental Agreement shall unless
otherwise defined herein, have the same meaning herein and the
principles of construction set out in the Supplemental Agreement shall
have effect as if set out in this letter.
2. Pursuant to the Supplemental Agreement the Facilities have been
suspended until 11 January 2001 on the terms and subject to the
conditions stated therein. We have been informed that CompleTel Europe
N.V. wishes to extend this suspension period until 11 April 2001. By
this letter, we hereby request the consent of all parties hereto to the
extension by amending the Supplemental Agreement as follows:
(i) The deletion of Clause 4.1.2 of the Supplemental Agreement to
be replaced by the following:
"4.1.2 Each of the parties hereto agrees that the Facilities will not
be available for drawing and no Notice of Default may be given
by the Participating Lender to the EIF during the period
beginning on the Effective Date and ending on the earlier of:
(i) 11 April 2001;
(ii) the date upon which the Facilities are cancelled in
full pursuant to the provisions of Clause 13
(CANCELLATION AND PREPAYMENT) of the Credit
Agreement; and
(iii) the date the Facilities are restructured to reflect
the Enlarged Business Plan,
(the "RESTRICTED PERIOD"). Each of the parties hereto
acknowledges and confirms that the Banks shall be under no
commitment to lend and the EIF shall not be obliged to make
payments under the Participation Agreement during the
Restricted Period."; and
(ii) the deletion of Clauses 4.1.3 and 4.1.4 of the Supplemental
Agreement to be replaced by the following:
"4.1.3 The Parent and each of the Borrowers, jointly and severally,
shall pay to the Facility Agent for the account of each Bank a
commitment commission on the amount of such Bank's Tranche A
Term Commitment and Revolving Commitment less, in the case of
the Participating Lender, the Traded Proportion (as defined in
the Participation Agreement) of the commitment commission
calculated at the rate of 0.50 per cent. per annum and payable
on the same days as it is calculated and payable under Clause
26.1 (COMMITMENT COMMISSION ON THE TRANCHE A TERM FACILITY)
and Clause 26.2 (COMMITMENT COMMISSION ON THE REVOLVING
FACILITY) of the Credit Agreement (save that in respect of the
Tranche A Term Commitment the period during which such
commitment commission shall accrue is extended up to and
including 11 April 2001).
4.1.4 The Parent and each of the Borrowers, jointly and severally,
shall pay to the Facility Agent for the account of the EIF the
Traded Proportion of the commitment commission referred to in
sub-clause 4.1.3 on the Participated Portion of the
Participating Lender's Commitment calculated at the rate of
0.50 per cent. per annum and payable on the same days as it is
calculated and payable under Clause 26.5 of the Credit
Agreement (save that in respect of the Tranche A Term
Commitment the period during which such commitment commission
shall accrue is extended up to and including 11 April 2001)."
3. The amendment to the Supplemental Agreement detailed in paragraph 2
above shall only become effective on the date the Facility Agent
receives an executed counterpart of this letter from all parties hereto
(the "EFFECTIVE DATE").
4. The Original Borrowers and the Original Guarantors on the date hereof
and on the Effective Date shall be deemed to make the representations
set out in
Clauses 20.1 (STATUS) to 20.4 (EXECUTION OF THE FINANCE DOCUMENTS) and
Clause 20.8 (VALIDITY AND ADMISSIBILITY IN EVIDENCE) of the Credit
Agreement and Clause 3.2 (NEW REPRESENTATION) of the Supplemental
Agreement as if the same were set out in full herein and as if each
reference therein to the "Credit Facility Documents" or the "Finance
Documents":
(i) includes a reference to this letter; and
(ii) is a reference to the Credit Agreement as amended by the
Supplemental Agreement (as itself amended by this letter),
together with the other Credit Facility Documents or the other
Finance Documents respectively.
5. We kindly request that you confirm your agreement to the terms and
conditions of this letter by countersigning and dating the enclosed copy
of this letter and returning the original to us by fax and by post by no
later than [ ] 2001.
6. By your countersignature of this letter, each of the parties hereto
expressly acknowledges that save as amended herein, the provisions of
the Supplemental Agreement and the Credit Agreement shall continue in
full force and effect. All parties hereto acknowledge that the
"EFFECTIVE DATE" as defined in the Supplemental Agreement occurred on 11
April 2000.
7. The provisions of Clause 6.1 (TRANSACTION EXPENSES) of the Supplemental
Agreement, Clause 35.1 (BINDING AGREEMENT), Clause 39 (REMEDIES AND
WAIVER, PARTIAL INVALIDITY), Clause 43 (GOVERNING LAW) and Clause 44
(JURISDICTION) of the Credit Agreement shall be incorporated into this
letter as if set out in full herein and as if references therein to
"this Agreement" or the "Finance Documents" are references to this
letter. This letter may be executed in any number of counterparts, with
different parties executing different counterparts all of which taken
together shall constitute one and the same instrument.
Yours faithfully
BNP PARIBAS
as Facility Agent
We hereby acknowledge and confirm our agreement to the above:
THE PARENT
COMPLETEL EUROPE N.V.
By:
Date:
THE OBLIGORS' AGENT
COMPLETEL S.A.S.
By:
Date:
THE ORIGINAL BORROWERS
COMPLETEL ECC B.V.
By:
Date:
COMPLETEL GMBH
By:
Date:
COMPLETEL HEADQUARTERS EUROPE S.A.S.
By:
Date:
COMPLETEL S.A.S.
By:
Date:
THE ORIGINAL GUARANTORS
COMPLETEL EUROPE N.V.
By:
Date:
COMPLETEL ECC B.V.
By:
Date:
COMPLETEL HOLDING I B.V.
By:
Date:
COMPLETEL HOLDING II B.V.
By:
Date:
COMPLETEL GMBH
By:
Date:
COMPLETEL SERVICES S.A.S.
By:
Date:
COMPLETEL S.A.S.
By:
Date:
ACCES ET SOLUTIONS INTERNET S.A.R.L.
By:
Date:
COMPLETEL UK LIMITED
By:
Date:
IPCENTA LIMITED
By:
Date:
COMPLETEL SPC
By:
Date:
COMPLETEL SPC II
By:
Date:
THE LEAD ARRANGERS
XXXXXXX SACHS INTERNATIONAL
By:
Date:
BNP PARIBAS
By:
Date:
THE FACILITY AGENT
BNP PARIBAS
By:
Date:
THE SECURITY AGENT
BNP PARIBAS
By:
Date:
THE BANKS
XXXXXXX XXXXX INTERNATIONAL
By:
Date:
BNP PARIBAS
By:
Date:
BARCLAYS BANK PLC
By:
Date:
CITIBANK INTERNATIONAL PLC
By:
Date:
COMPTOIR DES ENTREPRENEURS
By:
Date:
CREDIT LYONNAIS
By:
Date:
XXXXXXX XXXXX CAPITAL MARKETS BANK LIMITED
By:
Date:
SCOTIABANK EUROPE PLC
By:
Date:
AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED
ACTING THROUGH ITS PARIS BRANCH
By:
Date:
BANCA NAZIONALE DEL LAVORO S.P.A. - PARIS BRANCH
By:
Date:
CREDIT AGRICOLE INDOSUEZ
By:
Date:
IBM FRANCE FINANCEMENT S.A.
By:
Date:
THE RISK PARTICIPANT
EUROPEAN INVESTMENT FUND
By:
Date:
