Exhibit D.
DATED 5 NOVEMBER 2002
JAZZ TELECOM, S.A.
AS ORIGINAL BORROWER
JAZZ TELECOM, S.A.
JAZZTEL PLC
ADATEL TELECOMUNICACIONES, S.A.
AS ORIGINAL GUARANTORS
X.X. XXXXXX PLC
AS ARRANGER AND BOOK-RUNNER
X.X. XXXXXX EUROPE LIMITED
AS FACILITY AGENT AND SECURITY AGENT
AND
OTHERS
---------------------------------------------
AMENDMENT AGREEMENT
RELATING TO A
FACILITY AGREEMENT
DATED 6 APRIL 2001
---------------------------------------------
With the intervention of Xx. Xxxx Xxxx Xxxxxxx Charro, Public Notary of Madrid,
expressly required to that effect
THIS AGREEMENT is dated 5 November 2002 and made between:
(1) JAZZ TELECOM, S.A. (the "Original Borrower");
(2) JAZZ TELECOM, S.A., JAZZTEL PLC AND ADATEL TELECOMUNICACIONES, S.A. (the
"Original Guarantors");
(3) X.X. XXXXXX PLC as arranger and book-runner of the Facilities (the
"Arranger");
(4) X.X. XXXXXX EUROPE LIMITED as facility agent for the Banks (the "Facility
Agent") and as security agent for the Banks (in such capacity, the
"Security Agent"); and
(5) THE BANKS named as such in Part B of Schedule 1 hereto.
RECITALS:
(A) By the 2001 Facility Agreement (as defined below) the Banks granted to
the Original Borrower, a financing facility structured in various
tranches comprising (i) the 2001 Performance Bond Facility, (ii) the 2001
Revolving Credit Facility and (iii) the 2001 Term Loan Facility.
(B) On 18 April 2002 and 7 June 2002 the Original Borrower drew down
EUR10,000,000 and EUR20,000,000, respectively, under the 2001 Revolving
Credit Facility. The 2001 Performance Bond Facility has been fully
utilised.
(C) The parties hereto wish to amend certain terms of the 2001 Facility
Agreement upon the terms and subject to the conditions set out below.
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Agreement:
"2001 Facility Agreement" means the EUR199,521,294 facility agreement
dated 6 April 2001, between amongst others, Jazz Telecom, S.A. as
original borrower, Jazz Telecom, S.A., Jazztel plc and Adatel
Telecommunicaciones, S.A. as original guarantors, X.X. Xxxxxx Europe
Limited as facility agent and the financial institutions described
therein as banks.
"2001 Performance Bond Facility" means the performance bond facility
granted to the Original Borrower under the terms of the 2001 Facility
Agreement.
"2001 Revolving Advance" means an advance made by a 2001 Revolving Credit
Facility Bank under the 2001 Revolving Credit Facility.
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"2001 Revolving Credit Facility" means the revolving credit facility
granted to the Original Borrower under the terms of the 2001 Facility
Agreement.
"2001 Revolving Credit Facility Bank" means a bank which has made
commitments in respect of the 2001 Revolving Credit Facility.
"2001 Revolving Credit Facility Commitment" means, the commitment of each
2001 Revolving Credit Facility Bank under the 2001 Revolving Credit
Facility.
"2001 Term Loan Facility" means the term loan granted to the Original
Borrower and to be made available from 30 June 2004 under the terms of
the 2001 Facility Agreement.
"Additional Security Documents" has the meaning ascribed to it in the
Amended and Restated Agreement.
"Agency Fee Letter" means the letter referred to in Clauses 29.2
(Facility Agency Fee) and 29.3 (Security Agency Fees) of the Amended and
Restated Agreement.
"Amended and Restated Agreement" means the 2001 Facility Agreement, as
amended and restated by this Agreement, the terms of which are set out in
Schedule 3 (Amended and Restated Agreement).
"Business Days" has the meaning ascribed to it in the Amended and
Restated Agreement.
"Committee" has the meaning ascribed to it in the Amended and Restated
Agreement.
"Convertible Bonds" has the meaning ascribed to it in the Amended and
Restated Agreement.
"Effective Date" has the meaning ascribed to it in the Amended and
Restated Agreement.
"Financial Restructuring" has the meaning ascribed to it in the Amended
and Restated Agreement.
"Insurance Certificate" means a certificate, in an agreed form, from an
insurance broker acceptable to the Facility Agent, confirming compliance
with sub-clause 25.2(a) of Clause 25.2 (Covenants relating to the
Original Borrower and the Material Subsidiaries) of the Amended and
Restated Agreement.
"Repayment Date" means in relation to any 2001 Revolving Advance, the
last day of the Term thereof.
"Scheme" has the meaning ascribed to it in the Amended and Restated
Agreement.
"Scheme Conditions Precedent" has the meaning ascribed to it in the
Amended and Restated Agreement.
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"Scheme Document" has the meaning ascribed to it in the Amended and
Restated Agreement.
"Suspension of Rights Letter" means the letter dated 13 September 2002
issued by X.X. Xxxxxx Europe Limited to the Original Borrower and the
Original Guarantors.
"Term" means, in relation to any 2001 Revolving Advance, the period for
which such 2001 Revolving Advance is borrowed, as specified in the
Utilisation Request relating thereto.
"Tranche A Advance" has the meaning ascribed to it in the Amended and
Restated Agreement.
"Tranche A Commitment" has the meaning ascribed to it in the Amended and
Restated Agreement.
"Tranche A Facility" has the meaning ascribed to it in the Amended and
Restated Agreement.
"Tranche C Facility" means the euro term loan facility granted to the
Borrowers in the 2001 Facility Agreement.
"Utilisation Request" has the meaning ascribed to it in the Amended and
Restated Agreement.
1.2 Incorporation of Defined Terms
(a) Unless a contrary indication appears, a term used in the 2001
Facility Agreement or in any notice given under or in connection
with the 2001 Facility Agreement has the same meaning in the 2001
Facility Agreement or notice as in this Agreement.
(b) The principles of construction set out in the 2001 Facility
Agreement shall have effect as if set out in this Agreement.
1.3 Clauses
(a) In this Agreement any reference to a "Clause" or "Schedule" is,
unless the context otherwise requires, a reference to a Clause or
Schedule of this Agreement.
(b) Clause and Schedule headings are for ease of reference only.
2. AMENDMENT AND RESTATEMENT OF THE 2001 FACILITY AGREEMENT
With effect from the Effective Date, the 2001 Facility Agreement shall be
amended and restated so that it shall be read and construed for all
purposes as set out in Schedule 3 (Amended and Restated Agreement)
hereto.
For the avoidance of doubt, the parties expressly agree that the
amendments of the 2001 Facility Agreement agreed hereby shall only
constitute a modificative novation (novacion modificativa) and shall not
be understood as being an extinctive novation
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(novacion extintiva) or cancellation of the 2001 Facility Agreement taken
as a whole but only an amendment thereto pursuant to the terms of the
Amended and Restated Agreement.
3. CONVERSION OF FACILITIES
3.1 Conversion of 2001 Revolving Advances
On the Effective Date, each 2001 Revolving Advance which is outstanding
on such date shall automatically be converted into a Tranche A Advance
under the Tranche A Facility. The Repayment Date in respect of each such
2001 Revolving Advance shall be cancelled and the amounts converted into
the Tranche A Advance shall become payable in accordance with Clause 13
of the Amended and Restated Agreement.
3.2 Setting of Interest Periods
The interest period for any 2001 Revolving Advances converted into a
Tranche A Advance shall, notwithstanding the conversion of such 2001
Revolving Advances into a Tranche A Advance, end on the last day of the
Term of each such 2001 Revolving Advance and interest shall accrue until
the last day of such applicable Term. Thereafter interest periods shall
be set pursuant to Clause 5 of the Amended and Restated Agreement as set
out in Schedule 3 (Amended and Restated Agreement).
3.3 Cancellation of 2001 Revolving Credit Facility
On the Effective Date, the 2001 Revolving Credit Facility Commitment of
each 2001 Revolving Credit Facility Bank under the 2001 Revolving Credit
Facility shall be reduced to zero.
3.4 New Tranche A Facility Commitment
As of the Effective Date, each Tranche A Bank shall have the Tranche A
Commitment set out alongside its name in Part B of Schedule 1 (The
Original Parties) hereto.
3.5 Cancellation of Tranche C Facility
As of the Effective Date, the Tranche C Facility shall be cancelled.
4. REPRESENTATIONS
The Original Borrower and the Original Guarantors make the
representations set out in Clause 22 (Representations) of the Amended and
Restated Agreement on the date hereof and the Effective Date as if each
reference in those representations to "this Agreement" includes a
reference to (a) this Agreement and (b) the Amended and Restated
Agreement.
5. CONTINUITY AND FURTHER ASSURANCE
5.1 Continuing obligations This Agreement is and shall be construed as
supplemental to the 2001 Facility Agreement (as amended by the Suspension
of Rights Letter) and every clause thereof shall continue to be in full
force and effect and binding on the parties thereto until the Effective
Date subject to Clause 6 (Event of Default) below. From the Effective
Date the provisions of the 2001 Facility Agreement shall be in force and
effect as amended
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and restated in the Amended and Restated Agreement as set out in Schedule
3 (Amended and Restated Agreement).
5.2 Further assurance
Each of the Original Borrower and the Original Guarantors shall, at the
request of the Agent and at its own expense, do all such acts and things
necessary or desirable to give effect to the amendments effected or to be
effected pursuant to this Agreement.
6. EVENT OF DEFAULT
Failure to implement the Scheme by 30 November 2002 or failure to
implement the Scheme within 7 Business Days from the confirmation given
pursuant to paragraph 25 of Schedule 2 (Conditions Precedent) hereof
shall constitute an Event of Default under the Amended and Restated
Agreement.
7. FEES, COSTS AND EXPENSES
7.1 Transaction expenses
The Original Borrower shall promptly on demand pay the Facility Agent and
the Security Agent the amount of all reasonable costs and expenses
(including reasonable legal fees) reasonably incurred by each of them in
connection with the negotiation, preparation, printing and execution of
this Agreement and any other documents referred to in this Agreement.
7.2 Enforcement costs
The Original Borrower shall, within three Business Days of demand, pay to
each Bank the amount of all costs and expenses (including legal fees)
incurred by that Bank in connection with the enforcement of, or the
preservation of any rights under this Agreement.
7.3 Stamp taxes
The Original Borrower shall pay and, within three Business Days of
demand, indemnify each Bank against any cost, loss or liability that Bank
incurs in relation to all stamp duty, registration and other similar
taxes payable in respect of this Agreement.
8. INCORPORATION OF TERMS
The provisions of Clause 45 (Remedies and waivers, Partial Invalidity)
and Clause 49 (Governing Law) of the 2001 Facility Agreement shall be
incorporated into this Agreement as if set out in full in this Agreement
and as if references in those clauses to "this Agreement" are references
to this Agreement.
AS WITNESS the hands of the duly authorised representatives of the parties
hereto the day and year first before written.
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SCHEDULE 1
THE ORIGINAL PARTIES
Part A
The Obligors
Name of Original Borrower Registration details or
Registered no.
Jazz Telecom, S.A. Registered at the Commercial
Registry of Madrid in Volume
12.606, Sheet 144, Page
M-201.552, First Entry
Name of Original Guarantor Registration details or
Registered no.
Jazz Telecom, S.A. Registered at the Commercial
Registry of Madrid in Volume
12.606, Sheet 144, Page
M-201.552, First Entry
Jazztel plc 3597184
Adatel Telecomunicaciones, S.A. Registered at the Commercial
Registry of Madrid in Volume
15.942, Page 25, Section 8, Sheet
M-269.527
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Part B
The Arranger
X.X. XXXXXX PLC
By:
Address: 000 Xxxxxx Xxxx
Xxxxxx XX0X 0XX
Fax: x00 (0)00 0000 0000
Contact: Xxxxx Xxxxxxx
The Facility Agent
X.X. XXXXXX EUROPE LIMITED
By:
Address: 000 Xxxxxx Xxxx
Xxxxxx XX0X 0XX
Fax: x00 (0)00 0000 0000
Contact: Xxxxx Xxx
The Security Agent
X.X. XXXXXX EUROPE LIMITED
By:
Address: 000 Xxxxxx Xxxx
Xxxxxx XX0X 0XX
Fax: x00 (0)00 0000 0000
Contact: Xxxxx Xxx
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The Banks
(1) The Tranche A Banks
Tranche A Bank Tranche A Commitment
(EUR)
Banco Espirito Santo S.A., Lisbonne, Succursale de Lausanne 2,294,005.30
Banco Espirito Santo, S.A. 1,129,883.21
Bayerische Hypo-und Vereinsbank AG London Branch 3,423,888.51
CrEdit Lyonnais, S.A. 3,423,888.51
CrEdit Suisse First Boston International 3,423,888.51
Entenial 3,423,888.51
The Governor and Company of the Bank of Scotland 3,423,888.51
ING Bank N.V. 3,423,888.51
General Electric Capital Corporation 2,910,305.14
ABC International Bank plc 1,711,944.00
X.X. Xxxxxx Europe Limited 1,410,531.29
Total 30,000,000.00
(2) The Tranche B Banks
Tranche B Bank Outstandings - Envelope 2 Performance
Bonds (EUR)
X.X. Xxxxxx Bank, S.A. (formerly The Chase Manhattan 4,225,404.00
Bank C.M.B., S.A.)
Dresdner Bank AG Sucursal en Espana 4,225,404.00
Caja de Ahorros xx Xxxxxxxx xx Xxxxxx 3,750,000.00
Barclays Bank, S.A. 3,125,000.00
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Tranche B Bank Outstandings - Envelope 3 Performance
Bonds (EUR)
X.X. Xxxxxx Bank, S.A. (formerly The Chase Manhattan 2,535,243.00
Bank C.M.B., S.A.)
Dresdner Bank AG Sucursal en Espana 2,535,243.00
Caja de Ahorros xx Xxxxxxxx xx Xxxxxx 2,250,000.00
Barclays Bank, S.A. 1,875,000.00
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SCHEDULE 2
CONDITIONS PRECEDENT
Terms used below have the same meaning as in the Amended and Restated Agreement
attached as Schedule 3 hereto.
1. In relation to each Original Obligor:
(a) a copy, certified as at the date of this Agreement a true, complete
and up-to-date copy by an Authorised Signatory of such Original
Obligor, of the constitutional documents of such Original Obligor;
(b) a copy, certified as at the date of this Agreement a true, complete
and up-to-date copy by an Authorised Signatory of such Original
Obligor, of a board resolution of such Original Obligor approving
or, as the case may be, ratifying the execution, delivery and
performance of this Agreement and the terms and conditions hereof
and authorising a named person or persons to sign this Agreement
and any documents to be delivered by such Original Obligor pursuant
hereto;
(c) a certificate of an Authorised Signatory of such Original Obligor
setting out the names and signatures of the persons authorised to
sign, on behalf of such Original Obligor, this Agreement and any
documents to be delivered by such Original Obligor pursuant hereto;
and
(d) a copy, certified as at the date of this Agreement a true, complete
and up-to-date copy by an Authorised Signatory of Jazz Telecom,
S.A. or Adatel, as the case may be, of a resolution of the general
shareholders' meeting of Jazz Telecom, S.A. and Adatel approving
or, as the case may be, ratifying the execution, delivery and
performance of this Agreement and the terms and conditions hereof
and authorising a named person or persons to sign this Agreement
and any documents to be delivered by such Original Obligor pursuant
hereto.
2. A copy, certified as at the date of this Agreement a true, complete and
up-to-date copy by an Authorised Signatory of Banda 26, of the
constitutional documents of Banda 26.
3. Evidence satisfactory to the Facility Agent (for and on behalf of the
Banks) that the by-laws of Adatel have been amended to allow, in case of
a pledge of any shares of Adatel, that the economic and voting rights
attached to such shares are exercisable by the relevant pledgees of such
shares.
4. Evidence satisfactory to the Facility Agent (for and on behalf of the
Banks) that the by-laws of Banda 26 have been amended (i) to remove any
restriction (including but not limited to any pre-emption and/or rights
of first refusal for Shareholders) on the transfer of shares of Banda 26
in case of forced transfer of shares (transmisiones forzosas) and (ii) to
allow, in case of a pledge of any shares of Banda 26, that the
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economic and voting rights attached to such shares are exercisable by the
relevant pledgees of such shares.
5. An original of each of the deeds of amendment of the Mortgage over Fixed
Assets and the Original Borrower Share Pledge.
6. An original of each of the Additional Security Documents duly executed by
all the parties thereto and, where relevant, authorised or, as the case
may be, intervened by a Spanish notary.
7. An opinion of Xxxxxxxx Chance, Madrid in agreed form.
8. An opinion of Xxxxxxxx Chance, London, solicitors to the Facility Agent,
in agreed form.
9. A due incorporation and capacity opinion of external Spanish counsel to
each Original Obligor incorporated in Spain, in agreed form.
10. The Facility Agent (for and on behalf of the Banks) to confirm its
satisfaction with the legal opinions referred to in paragraphs 7, 8 and
9.
11. Execution of the Restructuring Fee Letter and the Agency Fee Letter.
12. Evidence that the fees, costs and expenses required to be paid by the
Original Borrower pursuant to Clause 29.1 (Co-ordination Fee), Clause
29.2 (Facility Agency Fee), Clause 29.3 (Security Agency Fee), Clause
29.4 (Banks' Restructuring Fees), Clause 30.1 (Transaction Expenses) and
Clause 30.3 (Stamp Taxes) of the Amended and Restated Agreement have been
paid.
13. A copy, certified a true copy, by an Authorised Signatory (of the
relevant member of the Borrower Group for the unconsolidated financial
statements and of the Parent or the Original Borrower, as the case may
be, for the consolidated financial statements) of the Original Financial
Statements.
14. An Insurance Certificate or appropriate confirmation confirming that each
member of the Borrower Group is in compliance with sub-clause 25.2(a)
(Insurance) of the Amended and Restated Agreement.
15. A copy, certified a true and up-to-date copy by an Authorised Signatory
of the Original Borrower, of the letter sent to the Bank of Spain in
respect of the amendment of the terms of the Facility under the NOF
number allocated on 29 January 2002.
16. Evidence that this Agreement and the Amended and Restated Agreement
attached hereto has been raised to the level of documento publico.
17. Evidence satisfactory to the Facility Agent (for and on behalf of the
Banks) that the terms of each Existing Subordinated
Shareholder/Participatory Loan are such that they (a) do not require
repayment of principal prior to December 2008; and (b) provide that
interest to accrue shall also not be payable prior to December 2008.
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18. Evidence satisfactory to each of the Banks that a sum of not less than
EUR27,000,000 has been deposited by the Original Borrower in the English
Secured Cash Account.
19. A copy, in agreed form, of the outline terms of management contracts and
revised management incentive programmes including any restructuring
management incentives.
20. Evidence, satisfactory to each of the banks, that the renegotiated RENFE
Agreement has been executed.
21. Evidence, satisfactory to each of the Banks that a new EUR10,000,000
Subordinated Shareholder/Participatory Loan has been made available to
the Original Borrower.
22. A copy of the Borrower Group Business Plan dated 24 September 2002 with a
certificate of an Authorised Signatory of each Original Obligor
confirming the representations set out in Clause 22 (Representations) of
the Amended and Restated Agreement as required pursuant to Clause 4
herein.
23. Evidence satisfactory to the Facility Agent that Banda 26 has paid
EUR2,000,000 to the Original Borrower by way of repayment of
inter-company debt or interest due on inter-company debt.
24. Copies of all relevant account opening forms and account operating
documentation with Credit Lyonnais, S.A. in respect of the bank accounts
to be pledged in favour of the Security Agent.
25. Confirmation to the Facility Agent that all the Scheme Conditions
Precedent have been satisfied (without any waivers relating thereto)
other than: (a) any waiver granted in respect of Clause 1.6(d)(vi) of the
Scheme Document, (b) any waiver granted in respect of the appointment of
two nominee Directors by the Committee required under Clause 1.6(d)(vii)
of the Scheme Document, (c) the Amended and Restated Agreement having
come into effect, (d) the registration with the Comision Nacional del
Xxxxxxx de Valores of a "Folleto Informativo Completo" in respect of the
new shares to be issued by the Parent in connection with the Financial
Restructuring and a "Folleto Reducido" in relation to the issue of the
Convertible Bonds and ancillary documentation, and (e) the delivery of
the order of the Court sanctioning the Scheme to the Registrar of
Companies.
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SCHEDULE 3
AMENDED AND RESTATED AGREEMENT
6 APRIL 2001 FACILITY AGREEMENT
AS AMENDED AND RESTATED PURSUANT TO AN AMENDMENT AGREEMENT
DATED 5 NOVEMBER 2002
JAZZ TELECOM, S.A.
AS ORIGINAL BORROWER
JAZZ TELECOM, S.A.
JAZZTEL PLC
ADATEL TELECOMUNICACIONES, S.A.
AS ORIGINAL GUARANTORS
X.X. XXXXXX PLC
AS ARRANGER AND BOOK-RUNNER
X.X. XXXXXX EUROPE LIMITED
AS FACILITY AGENT AND SECURITY AGENT
AND
OTHERS
--------------------------------------------------------
EUR54,521,294
TERM LOAN AND PERFORMANCE BOND FACILITY AGREEMENT
--------------------------------------------------------
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CONTENTS
Clause Page
1. Definitions And Interpretation..........................................17
2. The Facilities..........................................................44
3. Utilisation Of The Tranche A Facility...................................45
4. Tranche A Facility Utilisation Condition................................46
5. Interest Periods For Tranche A Advances.................................46
6. Payment And Calculation Of Interest On Tranche A Advances...............47
7. The Tranche B Facility..................................................47
8. Notification............................................................50
9. Original Borrower's Liabilities In Relation To Performance Bonds........50
10. Counter Indemnity Provider's Liabilities In Relation To Performance
Bonds...................................................................52
11. Market Disruption And Alternative Interest Rates........................53
12. Notification............................................................54
13. Repayment Of The Tranche A Facility.....................................55
14. Cancellation And Prepayment.............................................56
15. Mandatory Prepayment....................................................57
16. Raising Of Equity By The Group And Further Capitalisation Of The Borrower
Group...................................................................60
17. Taxes...................................................................61
18. Tax Receipts............................................................63
19. Increased Costs.........................................................64
20. Illegality..............................................................65
21. Mitigation..............................................................66
22. Representations.........................................................67
23. Financial Information...................................................71
24. Financial Condition.....................................................74
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25. Positive Covenants......................................................79
26. Negative Covenants......................................................88
27. Events Of Default.......................................................93
28. Guarantee And Indemnity.................................................96
29. Commitment Commission And Fees..........................................99
30. Costs And Expenses......................................................99
31. Default Interest And Break Costs.......................................100
32. Original Borrower's Indemnities........................................101
33. Currency Of Account And Payment........................................102
34. Payments...............................................................102
35. Set-Off................................................................104
36. Sharing................................................................104
37. The Agents, The Arranger And The Banks.................................105
38. Assignments And Transfers..............................................114
39. Additional Borrowers...................................................116
40. Additional Guarantors..................................................117
41. Replacement Tranche B Banks............................................118
42. Calculations And Evidence Of Debt......................................118
43. Remedies And Waivers, Partial Invalidity...............................120
44. Notices................................................................120
45. Counterparts...........................................................121
46. Amendments.............................................................121
47. Governing Law..........................................................123
48. Jurisdiction...........................................................123
Schedule 1 The Original Parties.............................................125
Part B The Obligors.........................................................125
Part C (1) The Tranche A Banks..............................................126
Part B (2) The Tranche B Banks..............................................126
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Schedule 2 Form Of Transfer Certificate.....................................128
Schedule 3 Intentionally Left Blank.........................................131
Schedule 4 Conditions Subsequent............................................132
Schedule 5 Form Of Utilisation Request......................................133
Schedule 6 Existing Encumbrances............................................134
Schedule 7 Form Of Directors' Compliance Certificate........................135
Schedule 8 Form Of Borrower Accession Memorandum............................136
Schedule 9 Form Of Guarantor Accession Memorandum...........................138
Schedule 10 Additional Conditions Precedent.................................140
Schedule 11 Form Of Resignation Notice......................................142
Schedule 12 Mandatory Costs.................................................143
Schedule 13 Borrower Group Business Plan....................................145
Schedule 14 Form Of Performance Bond........................................146
Part A Envelope 2 Performance Bond.........................................146
Part B Envelope 3 Performance Bond..........................................148
Schedule 15 Existing Performance Bonds......................................150
Schedule 16 Disclosures Relating To Necessary Authorisations And Licences...151
Schedule 17 Form Of Tranche B Bank Accession Memorandum.....................152
Schedule 18 Form Of Tranche B Bank Resignation Request......................154
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BETWEEN
(1) JAZZ TELECOM, S.A. (the "Original Borrower");
(2) The Companies listed in Part A of Schedule 1 (The Obligors) in their
capacity as guarantors hereunder (the "Original Guarantors");
(3) X.X. XXXXXX PLC as arranger and book-runner of the Facilities (the
"Arranger");
(4) X.X. XXXXXX EUROPE LIMITED as facility agent for the Banks (the "Facility
Agent") and as security agent for the Banks (in such capacity, the
"Security Agent"); and
(5) THE BANKS (as defined below).
IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Agreement:
"Accession Memorandum" means a Borrower Accession Memorandum or a
Guarantor Accession Memorandum.
"Adatel" means Adatel Telecomunicaciones, S.A.
"Adatel Share Pledge" means the pledge over all the shares in Adatel
executed on or about the date hereof by the Original Borrower in favour
of the Security Agent and the Banks in agreed form.
"Additional Borrower" means any company which has become an additional
Borrower in accordance with Clause 39 (Additional Borrowers).
"Additional Guarantor" means any company which has become an additional
Guarantor in accordance with Clause 40 (Additional Guarantors).
"Additional Obligor" means an Additional Borrower or an Additional
Guarantor.
"Adjusted EBITDA" shall have the meaning set out in Clause 24.2
(Financial Definitions).
"Agents" means the Facility Agent and the Security Agent and "Agent"
means any one of them.
"Amendment Agreement" means the amendment agreement entered into by the
parties hereto on 5 November 2002 in respect of this Agreement.
"Annualised Adjusted EBITDA" shall have the meaning set out in Clause
24.2 (Financial Definitions).
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"Annualised Direct Access Revenue" shall have the meaning set out in
Clause 24.2 (Financial Definitions).
"Applicable Margin" means, in relation to the Tranche A Facility, 3.375
per cent. per annum.
"Authorised Signatory" means, in relation to an Obligor or proposed
Obligor, any person who is duly authorised and in respect of whom the
Facility Agent has received a certificate signed by a director or another
Authorised Signatory of such Obligor or proposed Obligor setting out the
name and signature of such person and confirming such person's authority
to act.
"Available Tranche A Commitment" means, in relation to a Tranche A Bank
at any time and save as otherwise provided herein, its Tranche A
Commitment at such time less its share of the Tranche A Advances which
are then outstanding provided that such amount shall not be less than
zero.
"Available Tranche A Facility" means, at any time, the aggregate amount
of the Available Tranche A Commitments adjusted, in the case of any
proposed drawdown, so as to take into account:
(a) any reduction in the Tranche A Commitment of a Tranche A Bank
pursuant to the terms hereof;
(b) any Tranche A Advance which, pursuant to any other drawdown, is to
be made; and
(c) any Tranche A Advance which is due to be repaid,
on or before the proposed drawdown date.
"Banda 26" means Banda 26, S.A., a Spanish joint venture company
initially established between the Original Borrower, Blescare 98, S.L.
and Telvent AG to bid for the Wireless Licence and to conduct the Banda
26 Business in Spain in which currently the Original Borrower holds 91
per cent. of the shares and Telvent AG holds 9 per cent. of the shares.
"Banda 26 Additional Subordinated Shareholder/Participatory Loans" means
any Subordinated Shareholder/Participatory Loans made by the Original
Borrower to Banda 26 after the Effective Date.
"Banda 26 Asset Pledge" means a pledge over certain Banda 26 assets to be
granted pursuant to Clause 25.8(i) (Banda 26 Additional Security).
"Banda 26 Business" means the business conducted by Banda 26 in
connection with the Wireless Licence.
"Banda 26 Licence Cash Collateral" means the EUR19,528,532.06 (as at 30
October 2002) cash deposit invested in the investment fund "Barclays
Tesoreria FIM" held by
-18-
Jazztel plc and pledged to Barclays Bank, S.A. securing the performance
bonds issued by Barclays Bank, S.A. in favour of the Beneficiary
guaranteeing the performance of certain obligations of Banda 26 under the
Wireless Licence.
"Banda 26 Original Subordinated Shareholder/Participatory Loans" means
the Subordinated Shareholder/Participatory Loans made by the Original
Borrower to Banda 26 on 7 November 2001 and 11 December 2001 in an amount
of EUR12,780,342 and EUR1,783,980 respectively.
"Banda 26 Share Pledge" means the pledge over all the shares held by the
Original Borrower in Banda 26 executed on or about the date hereof by the
Original Borrower in favour of the Security Agent and the Banks in agreed
form.
"Banda 26 Shareholder Agreement" means the shareholder agreement dated 1
August 2000 and made between the Original Borrower, Blescare 98, S.L. and
Telvent, A.G. in respect of Banda 26.
"Bank" means any Tranche A Bank or any Tranche B Bank.
"Bank Materials" means the written presentation entitled "Restructuring
Agreement and Business Plan Overview" given by the Original Borrower to
the Banks following a presentation by the Original Borrower to certain of
the Banks at a meeting held on 26 September 2002.
"Beneficiary" means the Ministry of Science and Technology ("Ministerio
de Ciencia y Tecnologia").
"Borrowers" means the Original Borrower and each Additional Borrower,
provided that such company has not been released from its rights and
obligations hereunder in accordance with Clause 39.3 (Resignation of a
Borrower) and "Borrower" means any one of them.
"Borrower Accession Memorandum" means a memorandum substantially in the
form set out in Schedule 8 (Form of Borrower Accession Memorandum).
"Borrower Group" means the Original Borrower and each of its present and
future subsidiaries including Banda 26.
"Borrower Group Business Plan" means the management base case or business
plan for the Borrower Group prepared in accordance with the requirements
of Schedule 13 (Borrower Group Business Plan) and delivered to the
Facility Agent on an annual basis.
"Business" means the delivery of telecommunication services in Spain
through the long-term leasing of fibre-optic backbone and metropolitan
area network systems operated in conjunction with other forms of
complementary technology deemed appropriate from time to time for reasons
of financial or technological advantage, including the provision of
voice, data and internet services and any business activities which are
ancillary to and are reasonably expected to benefit such network
business.
-19-
"Business Day" means a day (other than a Saturday or Sunday) which is not
a public holiday and:
(a) on which banks are open for general business in London and Madrid;
and
(b) in relation to any date for payment or purchase of a sum
denominated in the euro on which the Trans-European Automated
Real-Time Gross Settlement Express Transfer System (TARGET) is open
for settlement of payments in euros.
"Capital Expenditure" means any expenditure for fixed or capital assets,
but excluding any expenditure incurred in the acquisition of any business
or all or a substantial part of the assets of any business.
"Cash Accounts" means all cash accounts held by the Borrower Group
including Banda 26 (other than the English Secured Cash Account and the
Spanish Secured Cash Accounts).
"Cash Collateral" means, in relation to each Performance Bond, a deposit
in such interest bearing account or accounts in London or Spain as the
Facility Agent may specify, such deposit and account to be secured in
favour of, and on terms and conditions acceptable to, the Security Agent
on behalf of the Tranche B Banks.
"Cash Equivalent Investments" means:
(a) debt securities denominated in sterling, or in dollars or Euros
("Other Currency") issued by the United Kingdom, the United States
of America or any Participating Member State which are not
convertible into any other form of security;
(b) debt securities denominated in sterling or any Other Currency which
are not convertible into any other form of security, rated P-1
(Xxxxx'x Investor Services Inc.) or A-1 (Standard & Poors'
Corporation) which are not issued or guaranteed by any member of
the Group;
(c) certificates of deposit denominated in sterling or any Other
Currency issued by, and acceptances by, banking institutions
authorised under applicable legislation of any Participating Member
State which at the time of making such issue or acceptances, have
outstanding debt securities rated as provided in paragraph (b)
above;
(d) certificates of tax deposit; and
(e) such other securities (if any) as are approved in writing by the
Facility Agent.
"CCS" means Centro de Calculo de Sabadell, S.A.
"CMT" means the Spanish Comision del Xxxxxxx de las Telecomunicaciones.
-20-
"Committee" means the ad hoc committee of High Yield Bondholders formed
for the purpose of negotiating the restructuring of the High Yield Bonds.
"Commission Rate" means, subject to Clause 7.8 (Collateralised
Performance Bonds), a commission rate of 1.5 per cent. (one point five
per cent.) per annum.
"Compliance Certificate" means a certificate substantially in the form
set out in Schedule 7 (Form of Directors' Compliance Certificate).
"Confidentiality Undertaking" means a confidentiality undertaking in the
standard form from time to time of the LMA or in such other form as may
be agreed between the Original Borrower and the Facility Agent.
"Convertible Bonds" means the convertible bonds to be issued by the
Parent on or about the date hereof the pursuant to the Scheme with an
aggregate principal amount of EUR75,000,000.
"Co-ordination Mandate Letter" means the letter addressed to the Original
Borrower and the Parent dated 10 September 2002 from X.X. Xxxxxx plc.
"Counter Indemnified Bank" means Barclays Bank, S.A. and any other
Tranche B Bank in respect of whom a Counter Indemnity Provider agrees to
provide a counter indemnity in accordance with Clause 10 (Counter
Indemnity Provider's Liabilities in Relation to Performance Bonds).
"Counter Indemnity Provider" means X.X. Xxxxxx Europe Limited or such
other person approved as such by the Parent (such approval not to be
unreasonably withheld or delayed) and the Arranger.
"Direct Access Revenues" has the meaning given to it in Clause 24.2
(Financial Definitions).
"Dispute" means any dispute referred to in Clause 48 (Jurisdiction).
"Dormant Subsidiaries" means a subsidiary which does not carry on any
trade or business and which has gross assets not exceeding EUR5,000 (or
its equivalent) and has gross liabilities not exceeding EUR1,000 (or its
equivalent).
"EBITDA" has the meaning given to it in Clause 24.2 (Financial
Definitions).
"Effective Date" means the date on which the Facility Agent confirms in
writing to the Banks and the Original Borrower that it has received each
of the documents listed in Schedule 2 (Conditions Precedent) of the
Amendment Agreement in a form and substance satisfactory to it including
the confirmation that all the Scheme Conditions Precedent have been
complied with other than the exceptions set out in paragraph 25 of
Schedule 2 (Conditions Precedent) of the Amendment Agreement.
"EMU" means Economic and Monetary Union as contemplated in the Treaty on
European Union.
-21-
"EMU Legislation" means legislative measures of the European Union for
the introduction of, changeover to or operation of the euro in one or
more member states, being in part legislative measures to implement the
third stage of EMU.
"Encumbrance" means (a) a mortgage, charge, pledge, lien or other
encumbrance securing any obligation of any person, or (b) any other
arrangement having the effect of conferring security.
"English Secured Cash Account" means the Euro denominated account opened
by the Original Borrower at Credit Lyonnais, S.A., Xxxxxxxxx Xxxxx, 0
Xxxxxx Xxxxxx, Xxxxxx XX0X 0XX with account number 01-011684-001-16-0.
"English Secured Cash Account Charge" means the English law first fixed
charge over the English Secured Cash Account executed on or about the
date hereof by the Original Borrower in favour of the Security Agent and
the Banks in agreed form.
"Envelope 2 Performance Bonds" means (i) any Performance Bond to be
issued hereunder or (ii) an existing Performance Bond issued under the
Original Performance Bond Facility by a Tranche B Bank in the form set
out in Part A of Schedule 14 (Form of Performance Bond).
"Envelope 3 Performance Bonds" means (i) any Performance Bond to be
issued hereunder or (ii) an existing Performance Bond issued under the
Original Performance Bond Facility by a Tranche B Bank in the form set
out in Part B of Schedule 14 (Form of Performance Bond).
"Envelope 2 Proportion" means, in respect of a Tranche B Bank, the
proportion borne by its Tranche B Outstandings under the Envelope 2
Performance Bond issued by it to the aggregate Tranche B Outstandings of
the Tranche B Banks under all the Envelope 2 Performance Bonds.
"Envelope 3 Proportion" means, in respect of a Tranche B Bank, the
proportion borne by its Tranche B Outstandings under the Envelope 3
Performance Bond issued by it to the aggregate Outstandings of the
Tranche B Banks under all the Envelope 3 Performance Bonds.
"Environmental Claim" means any claim, proceedings or investigation by
any person pursuant to any Environmental Law.
"Environmental Law" means any applicable law in any jurisdiction in which
any member of the Borrower Group conducts business which relates to the
pollution or protection of the environment or harm to or the protection
of human health or the health of animals or plants.
"Environmental Permits" means any permit, licence, consent, approval and
other authorisation required under any Environmental Law for the
operation of the business of any member of the Borrower Group conducted
on or from the properties owned or used by the relevant member of the
Borrower Group.
-22-
"EURIBOR" means, in relation to any amount to be advanced to, or owing
by, an Obligor hereunder in euro on which interest for a given period is
to accrue:
(a) the percentage rate per annum equal to the offered quotation which
appears on the page of the Telerate Screen which displays an
average rate of the Banking Federation of the European Union for
the euro (being currently page 248) for such period as of 11.00
a.m. (Brussels time) on the Quotation Date for such period or, if
such page or such service shall cease to be available, such other
page or such other service for the purpose of displaying an average
rate of the Banking Federation of the European Union as the
Facility Agent, acting reasonably and after consultation with the
Banks and the Original Borrower, shall select; or
(b) if no quotation for the euro for the relevant period is displayed
and the Facility Agent has not selected an alternative service on
which a quotation is displayed, the arithmetic mean (rounded
upwards to four decimal places) of the rates (as notified to the
Facility Agent) at which each of the Reference Banks was offering
to prime banks in the European interbank market deposits in the
euro of an equivalent amount and for such period as of 11.00 a.m.
(Brussels time) on the Quotation Date.
"Event of Default" means any circumstance described as such in Clause 27
(Events of Default).
"Excess Cash Flow" means in respect of any Financial Quarter, EBITDA for
such Financial Quarter less:
(a) Capital Expenditure incurred by any member of the Borrower Group
during such period;
(b) any amount actually paid or due and payable in respect of taxes on
the profits of any member of the Borrower Group during such period;
(c) any payments made by any member of the Borrower Group in respect of
principal and interest on Permitted Indebtedness during such
period;
(d) any cash payment made by any member of the Borrower Group in
respect of any exceptional or extraordinary item; and
(e) the aggregate amount of (i) any loans made by any member of the
Group to other members thereof; and (ii) any Restricted Payments to
the extent that (in both cases), the proceeds thereof are
upstreamed to service third party, non-affiliated Financial
Indebtedness,
and (i) plus or, as the case may be, minus any decrease or increase in
the aggregate working capital of the Borrower Group and (ii) plus any
cash received by any member of the Borrower Group in respect of any
exceptional or extraordinary item during such period.
-23-
"Existing Notarised Performance Bond Indebtedness" means, Performance
Bond Indebtedness in an aggregate amount not exceeding EUR14,898,219 (or
its equivalent) incurred by members of the Borrower Group (incorporated
in Spain) prior to the date upon which this Agreement is raised to the
level of documento publico and which has been raised to such level.
"Existing Subordinated Shareholder/Participatory Loans" means the
Subordinated Shareholder/Participatory Loans dated 11 January 2002, 31
January 2002, 6 February 2002 and 4 November 2002 from the Parent to the
Original Borrower in an amount of EUR5,000,000, EUR15,000,000, EUR
10,000,000 and EUR 10,000,000 respectively and the Banda 26 Original
Subordinated Shareholder/Participatory Loans.
"Existing Tranche B Bank" means any Tranche B Bank which has been or will
be replaced by a Replacement Tranche B Bank in accordance with Clause 41
(Replacement Tranche B Banks).
"Expiry Date" means, in respect of a Performance Bond, the date following
its Issue Date upon which the liability of the Tranche B Bank under such
Performance Bond is reduced to zero (as determined by the Facility Agent
after consultation with the Tranche B Bank).
"Facilities" means the Tranche A Facility and the Tranche B Facility and
"Facility" means either of them.
"Facility Office" means:
(a) in relation to the Facility Agent and the Security Agent, the
office identified with its signature below or such other office as
it may select by notice in accordance with Clause 44 (Notices); and
(b) in relation to any Bank, the office notified by it in writing to
the Facility Agent prior to the date hereof (or, in the case of a
Transferee, at the end of the Transfer Certificate to which it is a
party as Transferee) or, if two offices are so identified the
office so identified as such Bank's main office, or, such other
office as such Bank may select by notice to the Facility Agent.
"Finance Documents" means the Amendment Agreement, this Agreement, the
Security Documents, any Borrower Accession Memorandum, any Guarantor
Accession Memorandum, the Co-ordination Mandate Letter, the Restructuring
Fee Letter and such other documents that may be designated as such by the
Original Borrower and the Facility Agent.
"Finance Parties" means the Facility Agent, the Arranger, the Security
Agent and the Banks.
"Financial Indebtedness" means any indebtedness for or in respect of:
(a) Indebtedness for Borrowed Money;
-24-
(b) any documentary credit facility;
(c) any interest rate swap, currency swap, forward foreign exchange
transaction, cap, floor, collar or option transaction or any other
treasury transaction or any combination thereof or any other
transaction entered into in connection with protection against or
benefit from fluctuation in any rate or price (and the amount of
the Financial Indebtedness in relation to any such transaction
shall be calculated by reference to the xxxx-to-market valuation of
such transaction at the relevant time); and
(d) any guarantee, indemnity bond, standby letter of credit or any
other instrument issued in connection with the performance of any
contract or other obligation.
"Financial Quarter" means each period of three calendar months ending on
31 March, 30 June, 30 September and 31 December in each year.
"Financial Restructuring" shall have the meaning ascribed thereto in the
Restructuring Agreement.
"Financial Year" means the period of twelve calendar months between 1
January and 31 December in any year, or any other period of twelve
calendar months as the Original Borrower may select and notify to the
Facility Agent within 60 days of any change to the period.
"General Law of Telecommunications" means Law 11/1998 of 24 April,
(published in the Spanish Official Gazette no. 99, of 25 April) - ("Ley
11/1998, de 24 de abril, General de Telecomunicaciones").
"Group" means the Parent and the Borrower Group.
"Guarantors" means each of the Original Guarantors and each Additional
Guarantor, provided that such company has not been released from its
rights and obligations hereunder in accordance with Clause 40.3
(Resignation of a Guarantor) and "Guarantor" means any one of them.
"Guarantor Accession Memorandum" means a memorandum substantially in the
form set out in Schedule 9 (Form of Guarantor Accession Memorandum).
"High Yield Bonds" means the high yield bonds issued by the Parent
pursuant to:
(a) an indenture dated 8 April 1999 between the Parent, as issuer, and
Bankers Trust Company, as trustee, relating to US$100,000,000 14%
senior notes due 2009;
(b) an indenture dated 8 April 1999 between the Parent, as issuer, and
Bankers Trust Company, as trustee, relating to EUR110,000,000 14%
senior notes due 2009;
-25-
(c) an indenture dated 16 December 1999 between the Parent, as issuer,
and Bankers Trust Company, as trustee, relating to EUR400,000,000
13.25% senior notes due 2009; and
(d) an indenture dated 5 July 2000 between the Parent, as issuer, and
Bankers Trust Company, as trustee, relating to EUR225,000,000 14%
senior notes due 2010.
"High Yield Bondholders" means the holders of the High Yield Bonds.
"Iberdrola Agreement" means the agreement dated 23 June 1999 between
Iberdrola S.A. and the Original Borrower for the lease and maintenance of
fibre owned by Iberdrola S.A. as extended by Annex 1A dated 7 November
2000 between Iberdrola Redes S.A. and the Original Borrower.
"Indebtedness for Borrowed Money" means any indebtedness for or in
respect of:
(a) moneys borrowed;
(b) any amount raised by acceptance under any acceptance credit
facility;
(c) any amount raised pursuant to any note purchase facility or the
issue of bonds, notes, debentures, loan stock or any similar
instrument;
(d) any amount raised pursuant to any issue of shares which are
expressed to be redeemable before 30 June 2008;
(e) the amount of any liability in respect of any lease or hire
purchase contract which would, in accordance with generally
accepted accounting principles in the relevant jurisdiction, be
treated as a finance or capital lease;
(f) the amount of any liability in respect of any deferred purchase
agreement (the payment of which is deferred for a period in excess
of 180 days) if the primary reason for entering into such agreement
is to raise finance;
(g) receivables sold or discounted (save to the extent that they are
sold or discounted on a non-recourse basis);
(h) any agreement or option to re-acquire an asset if one of the
primary reasons for entering into such agreement or option is to
raise finance;
(i) any amount raised under any other transaction (including any
forward sale or purchase agreement) having the commercial effect of
a borrowing; and
(j) the amount of any liability in respect of any guarantee or
indemnity for any of the items referred to in paragraphs (a) to (i)
above.
"Instructing Group" means the Relevant Tranche A Banks together with the
Relevant Tranche B Banks.
-26-
"Intellectual Property" means any patent, trade xxxx, service xxxx,
registered design, trade name or copyright owned by any Obligor in
connection with its business of delivering telecommunication services in
Spain.
"Interconnection Agreements" means the interconnection agreements with
(a) Telefonica Sociedad Operadora de Servicios de Telecomunicaciones de
Espana, S.A. dated 12 April 1999, (b) Airtel Movil, S.A. dated 24 May
1999, (c) Retevision Movil, S.A. dated 12 May 1999 and (d) Retevision,
S.A. dated 6 September 1999.
"Interest Period" means, save as otherwise provided herein:
(a) any of those periods mentioned in Clause 5.1 (Interest Periods);
and
(b) in relation to an Unpaid Sum, any of those periods mentioned in
Clause 31.1 (Default Interest Periods).
"Issue Date" means the date on which a Performance Bond is to be issued
hereunder or was issued under the Original Performance Bond Facility.
"Jazztel Portugal" means Jazztel Portugal S.A.
"Licences" means the Type B1 Licence and the Wireless Licence.
"LMA" means the Loan Market Association.
"Mandatory Cost Rate" means the rate determined in accordance with
Schedule 12 (Mandatory Costs).
"Material Adverse Effect" means a material adverse effect on (a) the
business or financial condition of the Borrower Group taken as a whole or
(b) the ability of an Obligor to perform its payment obligations under
the Finance Documents.
"Material Contract" means the Interconnection Agreements, the RENFE
Agreement, as amended from time to time, the Subordinated
Shareholder/Participatory Loans, the Supply Contracts, the Iberdrola
Agreement, the Banda 26 Shareholder Agreement, the Banda 26 Original
Subordinated Shareholder/Participatory Loans, any Banda 26 Additional
Subordinated Shareholder/Participatory Loans and any other contract
designated as such by the Original Borrower and the Facility Agent.
"Material Subsidiary" means, at any time, a subsidiary of any Borrower
which has:
(a) profits before interest and tax representing five per cent. or more
of the consolidated profits before interest and tax of the Borrower
Group; or
(b) tangible net worth representing five per cent. or more of
consolidated tangible net worth of the Borrower Group; or
(c) turnover representing five per cent. or more of consolidated
turnover of the Borrower Group,
-27-
in each case calculated on a consolidated basis. Compliance with the
conditions set out in paragraphs (a), (b) and (c) shall be determined by
reference to the most recent audited financial statements of such
subsidiary (consolidated in the case of a subsidiary which itself has
subsidiaries) and the latest audited consolidated financial statements of
the Borrower Group provided that:
(i) if a subsidiary has been acquired since the date as at which
the latest audited consolidated financial statements of the
Borrower Group were prepared, such financial statements
shall be adjusted in order to take into account the
acquisition of such subsidiary;
(ii) if, in the case of any subsidiary which itself has
subsidiaries, no consolidated financial statements are
prepared and audited, its consolidated profits before
interest and tax, consolidated tangible net worth and
turnover shall be determined on the basis of pro forma
consolidated financial statements of the relevant subsidiary
and its subsidiaries; and
(iii) if any intra-group transfer or re-organisation takes place,
the audited financial statements of the Borrower Group and
of all relevant subsidiaries shall be adjusted in order to
take into account such intra-group transfer or
reorganisation.
"Mediterranea" means Mediterranea de Telecomunicaciones Xxxxx, X.X.
"Mortgage over Fixed Assets" means the mortgage over specified material
fixed assets (DMS machinery and equipment) executed by the Original
Borrower in favour of the Security Agent and the Banks on 1 March 2002
authorised by the Notary Xx. Xxxx Xxxx Xxxxxxx Charro as supplemented by
a deed of 21 March 2002, as amended by means of a public deed executed on
or about the date hereof.
"Mortgage over Intellectual Property" means the Spanish law mortgage over
Intellectual Property of the Original Borrower executed on or about the
date hereof by the Original Borrower in favour of the Security Agent and
the Banks in agreed form.
"Movilweb" means Movilweb 21, S.A.
"Necessary Authorisations" means all approvals, authorisations and
licences from, all rights granted by and all filings, registrations and
agreements with any person including, without limitation, any government
or other regulatory authority (including, without limitation, the
relevant Licence) necessary for the construction, maintenance and
operation of the Business or, as the case may be, the Banda 26 Business
and such other business as may be permitted by the terms of this
Agreement.
-28-
"Net Cash Proceeds" means, with respect to any disposal, lease or other
transfer of any material non-financial asset an amount equal to the gross
proceeds in cash and cash equivalents of such disposal, lease or asset
transfer net (to the extent applicable) of:
(a) legal fees, accountant's fees, consultant and other customary fees
and other reasonable costs and expenses actually incurred in
connection with such disposal, lease or asset transfer; and
(b) any income, capital gains, value-added or other taxes paid or
reasonably estimated to be payable as a result thereof.
"Network Backbone" means the high capacity fibre optic telecommunications
network constructed or to be constructed and operated by or on behalf of
the Original Borrower in Spain.
"Obligors" means the Borrowers and the Guarantors.
"Order" means any order, injunction, judgement, decree, ruling, writ,
assessment or arbitration award.
"Original Borrower Share Pledge" means the pledge over all the shares in
the Original Borrower executed by the Parent in favour of the Security
Agent and the Banks on 1 March 2002 authorised by the Notary Xx. Xxxx
Xxxx Xxxxxxx Charro, as amended by means of a public deed executed on or
about the date hereof.
"Original Financial Statements" means:
(a) in relation to the Parent, its audited consolidated financial
statements for its Financial Year ended 31 December 2001;
(b) in relation to the Original Borrower, its audited unconsolidated
financial statements for its Financial Year ended 31 December 2001;
(c) in relation to Banda 26, its audited unconsolidated financial
statements for its Financial Year ended 31 December 2001;
(d) in relation to Adatel, its audited unconsolidated financial
statements for its Financial Year ended 31 December 2001;
(e) in relation to the Borrower Group (excluding Banda 26) its audited
consolidated financial statements for its Financial Year ended 31
December 2001; and
(f) in relation to any Additional Obligor, its audited financial
statements delivered pursuant to Schedule 10 (Additional Conditions
Precedent).
"Original Obligors" means the Original Borrower and the Original
Guarantors.
-29-
"Original Performance Bond Facility" means the performance bond facility
granted to the Original Borrower under the terms of the Original
Performance Bond Facility Agreement.
"Original Performance Bond Facility Agreement" means the EUR24,521,294
performance bond facility agreement dated 7 April 2000 between, among
others, Jazz Telecom, S.A. as Original Borrower, X.X. Xxxxxx plc as
arranger and the financial institutions referred to therein as banks.
"Parent" means Jazztel plc.
"Participating Member State" means any member state which has adopted the
euro as its lawful currency at the relevant time.
"Performance Bond" means:
(a) any performance bond to be issued hereunder, to be documented
substantially in the form of the performance bond set out in Part A
or Part B of Schedule 14 (Form of Performance Bond) or in such
other form as may be agreed by the Facility Agent, the Tranche B
Banks, the Original Borrower and the Beneficiary; and
(b) each performance bond issued under the Original Performance Bond
Facility by a Tranche B Bank in favour of the Beneficiary,
in respect of the Original Borrower's participation in the award to Banda
26 of the Wireless Licence as listed in Schedule 15 (Existing Performance
Bonds).
"Performance Bond Commission" means the commission payable by the
Original Borrower pursuant to Clause 7.7 (Performance Bond Commission).
"Performance Bond Indebtedness" means indebtedness of the nature
described in paragraph (d) of the definition of "Financial Indebtedness".
"Permitted Disposal" means any disposal:
(a) in the ordinary course of trade and on arm's length terms;
(b) by an Obligor to another Obligor (other than the Parent);
(c) on arm's length terms of an asset by a member of the Borrower Group
to another member of the Borrower Group;
(d) for cash on arm's length terms of any surplus or obsolete assets
not required for the efficient operation of the business of the
Borrower Group member making such disposal;
(e) of cash where such disposal is not otherwise prohibited by this
Agreement (including, for the avoidance of doubt, payments of cash
to the employees of any member of the Borrower Group pursuant to an
employee bonus scheme);
-30-
(f) of cash for the purpose for which it was raised or borrowed or in
payment or repayment of any indebtedness in accordance with the
terms thereof;
(g) which constitutes the creation of a Permitted Encumbrance;
(h) in exchange for assets (other than cash or cash equivalents)
comparable or superior as to type, value and quality provided that
the value (taking the higher of book value or market value) of the
disposed assets (excluding any assets exchanged in the ordinary
course of trading and on arm's length terms) (the "Exchange Asset
Consideration"), when aggregated with the amount of Exchange Asset
Consideration for all such transactions in any 12 month period does
not exceed EUR3,000,000 (or it equivalent in any other currency or
currencies);
(i) which constitutes the payment of a dividend permitted under the
terms of this Agreement;
(j) which constitutes the application of cash in the acquisition of
assets or services in the ordinary course of trading;
(k) in relation to the sale or transfer, howsoever described, of
information technology machinery or assets made pursuant to any
information technology outsourcing contract entered into by any
member of the Borrower Group; or
(l) of any asset on an arm's length basis provided that the amount of
the consideration received by the relevant member of the Borrower
Group, when aggregated with the consideration received in relation
to all such other disposals by members of the Borrower Group
pursuant to this paragraph (l) does not at any time exceed
EUR5,000,000 (or its equivalent).
"Permitted Encumbrance" means:
(a) any Encumbrance created pursuant to the Security Documents;
(b) any Encumbrance specified in Schedule 6 (Existing Encumbrances), if
the principal amount thereby secured is not increased;
(c) any Encumbrance over or affecting any asset acquired by a member of
the Borrower Group after the date hereof and subject to which such
asset is acquired, if:
(i) such Encumbrance was not created in contemplation of the
acquisition of such asset by a member of the Borrower Group;
(ii) the amount thereby secured has not been increased in
contemplation of, or since the date of, the acquisition of
such asset by a member of the Borrower Group; and
-31-
(iii) such Encumbrance is removed or discharged within six months
of the date of acquisition of such asset unless the
aggregate amount of the Indebtedness for Borrowed Money
secured by any such Encumbrances (and any Encumbrances
referred to in paragraph (d)) does not exceed EUR5,000,000
(or its equivalent);
(d) any Encumbrance over or affecting any asset of any company which
becomes a member of the Borrower Group after the date hereof, where
such Encumbrance is created prior to the date on which such company
becomes a member of the Borrower Group, if:
(i) such Encumbrance was not created in contemplation of the
acquisition of such company;
(ii) the amount thereby secured has not been increased in
contemplation of, or since the date of, the acquisition of
such company; and
(iii) such Encumbrance is removed or discharged within six months
of such company becoming a member of the Borrower Group
unless the aggregate amount of any Indebtedness for Borrowed
Money secured by any Encumbrances (and any Encumbrances
referred to in paragraph (c)) does not exceed EUR5,000,000
(or its equivalent);
(e) any title transfer or retention of title arrangement entered into
by any member of the Borrower Group in the normal course of its
trading activities on the counterparty's standard or usual terms;
(f) any lien arising by operation of law and in the normal course of
business;
(g) any Encumbrance in respect of hedging agreements entered into
between a Borrower and any of the Banks provided that only the
first EUR5,000,000 or its equivalent (calculated on a marked to
market basis) in aggregate of the Indebtedness for Borrowed Money
thereunder shall rank equally under the Security Documents with
amounts outstanding under this Agreement; and
(h) any other Encumbrance over or affecting any asset of any member of
the Borrower Group provided that the aggregate value of the assets
subject to such Encumbrances granted pursuant to this paragraph (h)
does not at any time exceed EUR5,000,000 (or its equivalent).
"Permitted Excess Amount" has the meaning set out in sub-clause
24.1(c)(ii) (Permitted Withdrawals).
"Permitted Indebtedness" means any Financial Indebtedness incurred or to
be incurred:
(a) under the Finance Documents;
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(b) under any Subordinated Shareholder/Participatory Loans provided
that the terms of this Agreement are complied with in such respect;
(c) under credit lines granted to the Original Borrower up to a maximum
amount of EUR3,000,000 (or its equivalent) provided that any
amounts outstanding to the credit line provider is repaid as at the
Effective Date and no utilisation of such credit line is made and
documented by being raised to the level of documento publico until
a date subsequent to the date on which this Agreement is raised to
the level of documento publico;
(d) under credit lines granted to Adatel up to a maximum amount of
EUR3,000,000 (or its equivalent) provided that any amounts
outstanding to the credit line provider is repaid as at the
Effective Date and no utilisation of such credit line is made and
documented by being raised to the level of documento publico until
a date subsequent to the date on which this Agreement is raised to
the level of documento publico;
(e) under hedging agreements between a Borrower and any of the Banks
entered into in relation to the Facilities;
(f) as trade indebtedness incurred in the ordinary course of business;
(g) as a result of indebtedness confirming trade indebtedness incurred
in the ordinary course of business up to a maximum amount of
EUR5,000,000 (or its equivalent) provided that such indebtedness is
not raised to the level of documento publico;
(h) any indebtedness falling under paragraph (d) of the definition of
"Financial Indebtedness" incurred in the ordinary course of
business, up to a maximum aggregate amount of EUR20,000,000 (or its
equivalent) provided that such maximum aggregate amount shall be
reduced on 31 December 2003 to EUR19,000,000, on 31 December 2004
to EUR17,000,000 and on 31 December 2005 to EUR15,000,000;
(i) in respect of any third party Financial Indebtedness up to a
maximum amount of EUR100,000;
(j) under any inter-company loan between Banda 26 and the Original
Borrower in respect of funds received from the Spectrum Fee
Reimbursement and being on lent by Banda 26 to the Original
Borrower; and
(k) any indebtedness outstanding under the RENFE Agreement or the
Iberdrola Agreement.
"Permitted Investments" means:
(a) any Cash Equivalent Investments;
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(b) any acquisition of those shares in Banda 26 currently not held by a
member of the Borrower Group; and
(c) any other investments or acquisitions provided that the value of
any such investments or acquisitions shall not exceed EUR1,500,000
in aggregate in any 12 month period without the prior written
consent of the Instructing Group.
"Potential Event of Default" means any event which will become (with the
passage of time, the giving of notice, the making of any determination
hereunder or any combination thereof) an Event of Default described in
Clause 27 (Events of Default).
"Proportion" means:
(a) in relation to any Tranche A Bank the proportion borne by its share
of the Tranche A Loan to the entire Tranche A Loan; and
(b) in relation to any Tranch B Bank:
(i) prior to the issue of a Performance Bond, the proportion
expressed as a percentage borne by such Tranche B Bank's
Tranche B Commitment to the Total Tranche B Commitments for
the time being (or if the Total Tranche B Commitments are
then zero, by its Tranche B Commitment to the Total Tranche
B Commitments immediately prior to their reduction to zero);
and
(ii) whilst Performance Bonds are outstanding, the proportion
borne by its share of the aggregate Tranche B Outstandings
under all outstanding Performance Bonds to such Tranche B
Outstandings.
"Provisioned DSL Customers" has the meaning given to it in Clause 24.2
(Financial Definitions).
"Qualifying Bank" means:
(a) a person which is lending from a bank incorporated within the
European Union, a branch of a bank established in Spain or any
other entity incorporated and resident for tax purposes in a member
state of the European Union other than Spain which is not acting
through a permanent establishment located in Spain nor through a
territory considered under Spanish law to be a tax haven; or
(b) a Treaty Bank.
"Qualifying State" means a member of the European Union (other than
Spain).
"Quotation Date" means, in relation to any period for which an interest
rate is to be determined hereunder, the day on which quotations would
ordinarily be given by prime banks in the relevant interbank market for
deposits in the currency in relation to which
-34-
such rate is to be determined for delivery on the first day of that
period, provided that, if, for any such period, quotations would
ordinarily be given on more than one date, the Quotation Date for that
period shall be the last of those dates.
"Receivables Pledge" means a Spanish law pledge over all the receivables,
from time to time, of the Original Borrower executed by the Original
Borrower on or about the date hereof in favour of the Security Agent and
the Banks in agreed form.
"Reference Banks" means such banks as may be appointed as such by the
Facility Agent after consultation with the Original Borrower.
"Registry" means Caja General de Depositos.
"Relevant Tax" means, in relation to any payment which falls to be made
hereunder, any present or future taxes of any nature now or hereafter
imposed by the laws of (a) Spain, (b) any other jurisdiction from which,
or through which any Obligor is making such payment (excluding for these
purposes, any payments to or through tax haven jurisdictions (as
construed under Spanish law)) or to the taxation laws of which an Obligor
is at the time of such payment subject, (c) any political sub-division of
Spain or any such other jurisdiction or (d) any federation or association
of states of which Spain or any such other jurisdiction is, at the time
of such payment, a member. A Relevant Tax does not include any tax on the
profits of a Finance Party.
"Relevant Tranche A Banks" means a Tranche A Bank or Tranche A Banks to
whom in aggregate more than 66 2/3 per cent. of the Tranche A Loan is (or
immediately prior to its repayment, was then) owed.
"Relevant Tranche B Banks" means a Tranche B Bank or Tranche B Banks to
whom in aggregate more than 66 2/3 per cent. of the Tranche B
Outstandings is (or immediately prior to its repayment, was then) owed,
provided that in the case of any Tranche B Bank which is a Counter
Indemnified Bank, the Tranche B Outstandings of such Tranche B Bank shall
be deemed for this purpose to be due to the Counter Indemnity Provider
who has provided a counter indemnity in favour of such Tranche B Bank
pursuant to Clause 10 (Counter Indemnity Provider's Liabilities in
Relation to Performance Bonds).
"RENFE" means Red Nacional de los Ferrocarriles Espanoles.
"RENFE Agreement" means the agreement dated 28 January 1999 between RENFE
and the Original Borrower for the lease and maintenance of fibre owned by
RENFE as amended by an Additional Protocol dated 20 July 1999 as further
amended on or about the date of this Agreement.
"Repeated Representations" means each of the representations set out in
Clause 22.1 (Status) to Clause 22.6 (Audited Financial Statements),
Clause 22.19 (Necessary Authorisations), Clause 22.20 (Licence), Clause
22.22 (Borrower Group Business Plan), Clause 22.23 (Dormant Subsidiaries)
and Clause 22.24 (Intellectual Property).
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"Replacement Performance Bond" has the meaning given to such term in
Clause 7.2 (Issue of Replacement Performance Bonds).
"Replacement Tranche B Bank" means any bank or financial institution
which is duly authorised by the Registry to issue Performance Bonds and
which has become a party hereto as a Tranche B Bank in accordance with
Clause 41 (Replacement Tranche B Banks).
"Resignation Notice" means a notice substantially in the form set out in
Schedule 11 (Form of Resignation Notice).
"Restricted Payment" means any payment by a member of the Borrower Group
to any person who is not a member of the Borrower Group by way of
dividend or other distribution, loan, interest or the payment of interest
on or repayment of the principal amount of Subordinated
Shareholder/Participatory Loans.
"Restructuring Agreement" means the agreement dated 13 September 2002
between certain of the High Yield Bondholders and the Parent in respect
of the Scheme.
"Restructuring Fee Letter" means the letter addressed to the Original
Borrower and the Parent dated on or about the date hereof from X.X.
Xxxxxx plc.
"Scheme" means the compromise or arrangement between the Parent and the
High Yield Bondholders, the terms of which are set out in the Scheme
Document, to be implemented by Order of the court pursuant to Section 425
of the Companies Xxx 0000.
"Scheme Conditions Precedent" means the conditions precedent set out in
Clause 1.6 of the Scheme Document.
"Scheme Document" means the document filed in the High Court of Justice
Chancery Division Companies Court as no. 6022 of 2002 entitled "In the
matter of Jazztel plc and in the matter of the Companies Xxx 0000 -
Scheme of Arrangement - between Jazztel plc and its Scheme Creditors".
"Security Documents" means:
(a) the Original Borrower Share Pledge;
(b) the Mortgage over Fixed Assets;
(c) the Banda 26 Share Pledge;
(d) the Adatel Share Pledge;
(e) the English Secured Cash Account Charge;
(f) the Spanish Secured Cash Account Pledges;
(g) pledges over any Existing Subordinated Shareholder/Participatory
Loans;
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(h) the Mortgage over Intellectual Property;
(i) the Receivables Pledge; and
(j) any additional security document required to be entered into under
the Finance Documents creating security in favour of the Finance
Parties and/or any Bank.
The items referred to at (c) to (i) shall together be known as (the
"Additional Security Documents").
"Spain" means the Kingdom of Spain.
"Spanish GAAP" means accounting principles generally accepted in Spain.
"Spanish Secured Cash Account of Adatel" means the euro denominated
account opened by Adatel at Credit Lyonnais, S.A. Succursale en Espana,
Calle Xxxx Xxxxx, n(degrees) 0-X, 0(xxxxxxx) xxxxxx, 00000 Xxxxxx, Xxxxx
with account number 0105-0908-71-0000000000.
"Spanish Secured Cash Account of the Original Borrower" means the euro
denominated account opened by the Original Borrower at Credit Lyonnais,
S.A. Succursale en Espana, Xxxxx Xxxx Xxxxx, x(xxxxxxx)0-X, 0(xxxxxxx)
xxxxxx, 00000 Xxxxxx, Xxxxx with account number 0105-0908-71-1684001160.
"Spanish Secured Cash Account Pledge of Adatel" means the Spanish Law
Pledge over the Spanish Secured Cash Account of Adatel executed or to be
executed by Adatel in favour of the Security Agent and the Banks in
agreed form.
"Spanish Secured Cash Account Pledge of the Original Borrower" means the
Spanish Law Pledge over the Spanish Secured Cash Account of the Original
Borrower executed or to be executed by the Original Borrower in favour of
the Security Agent and the Banks in agreed form.
"Spanish Secured Cash Account Pledges" means the Spanish Secured Cash
Account Pledge of Adatel, the Spanish Secured Cash Account Pledge of the
Original Borrower, any pledge over a cash account of any Additional
Borrowers or Guarantors in Spain and a pledge over a cash account of
Banda 26 in Spain pursuant to Clause 25.8(i)(iii) (Banda 26 Additional
Security).
"Spanish Secured Cash Accounts" means the Spanish Secured Cash Account of
the Original Borrower, the Spanish Secured Cash Account of Adatel and the
Spanish Secured Cash Account of any Additional Borrowers or Guarantors.
"Spectrum Fee" means the fee to be paid annually in Spain for the
reservation of the radio-electrical public domain, as established in the
General Law on Telecommunications and its implementing regulations.
"Spectrum Fee Reimbursement" means the Spectrum Fee corresponding to the
year 2001 amounting to Euro 9,606,978.63 which has been contested by
Banda 26 before
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the Audiencia Nacional (judicial procedure 31/2002) in the event that a
favourable final judgment is obtained by Banda 26.
"Subordinated Shareholder/Participatory Loans" means any loans made by
the Parent to the Original Borrower or by one member of the Borrower
Group to any other member thereof which are, in accordance with article
20 of Royal Decree 7/1996 of 7 June, as amended by Law 10/96 of 18
December 1996 and the Ministerial Order dated 20 December 1996,
subordinated to the claims of the other creditors of the Original
Borrower (including the Finance Parties) and pledged or to be pledged in
accordance with the terms of this Agreement in favour of the Security
Agent and the Banks in agreed form.
"Supply Contracts" means (i) the letter addressed to the Original
Borrower from Nortel Hispania S.A. ("Nortel") dated 18 September 2000
allowing the Original Borrower to enter into contracts with Sociedad
Anonima de Instalaciones de Control ("Sainco"); (ii) the letter addressed
to the Original Borrower from Sainco dated 30 October 2000 allowing the
Original Borrower to enter into contracts with Nortel; (iii) the master
agreements between the Original Borrower and Sainco all dated 23 October
2000 regarding supply, logistics and lay out of black fibre, execution of
works, systems and engineering; (iv) the supply orders not covered by a
master agreement sent by the Original Borrower from time to time to
Nortel; (v) agreements of subrogation of Abentel between Sainco and
Abentel dated 25 October 2000; (vi) the master agreement for ducting
entered into by the Original Borrower and Sainco Trafico on 10 March
2000; (vii) the master agreement on reciprocal use of assets between the
Original Borrower and Canal de Xxxxxx XX on 22 October 1999; and (vii)
the master agreement for the provision of direct access between the
Original Borrower and Alcatel Intergracion de Redes, S.A. dated 22
January 2001.
"Term" means in relation to a Performance Bond, the period from its Issue
Date until its Expiry Date.
"Term Repayment Date" means each of the dates specified in Clause 13.1
(Tranche A Repayment Instalments), provided that if such date is not a
Business Day, it shall be deemed to be the next succeeding Business Day.
"Total Senior Debt" means, at any time, the aggregate amount outstanding
in relation to Permitted Indebtedness excluding in such calculation any
amount set out in paragraphs (b), (c) and (d) of the definition of
Permitted Indebtedness.
"Total Tranche B Commitments" means, at any time, the aggregate of the
Tranche B Banks' Tranche B Commitments.
"Total Underlying Obligations" means the obligations of Banda 26 owed to
the Beneficiary relating to the grant by the Beneficiary of the Wireless
Licence and in respect of which performance bonds (including the
Performance Bonds) were issued for and on behalf of the three original
shareholders in Banda 26.
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"Tranche A Advance" means an advance (as from time to time consolidated,
divided or reduced by payment) made or to be made by the Tranche A Banks
under the Tranche A Facility.
"Tranche A Bank" means any financial institution:
(a) named as such in Part B of Schedule 1 (The Banks); or
(b) which has become a party hereto as a Tranche A Bank in accordance
with Clause 38.4 (Assignments by Banks) or Clause 38.5 (Transfer by
Banks),
and which has not ceased to be a party hereto in accordance with the
terms hereof.
"Tranche A Commitment" means, in relation to a Tranche A Bank at any time
and save as otherwise provided herein, the amount set opposite its name
under the heading "Tranche A Commitment" in Part B of Schedule 1 (The
Tranche A Banks).
"Tranche A Facility" means the EUR30,000,000 term loan facility granted
to the Borrowers in sub-clause 2.1(a) of Clause 2.1 (Grant of the
Facilities).
"Tranche A Loan" means, at any time, the aggregate principal amount of
outstanding Tranche A Advances.
"Tranche B Bank" means any financial institution:
(a) named as such in Part B of Schedule 1 (The Banks); or
(b) which has become party hereto as a Tranche B Bank in accordance
with the terms hereof,
and which has not ceased to be a party hereto in accordance with the
terms hereof.
"Tranche B Bank Accession Memorandum" means a memorandum substantially in
the form set out in Schedule 17 (Form of Tranche B Bank Accession
Memorandum).
"Tranche B Commitment" means, in relation to a Replacement Tranche B Bank
at any time and save as otherwise provided herein, the amount specified
in the Tranche B Bank Accession Memorandum delivered by it pursuant to
Clause 41 (Replacement Tranche B Banks).
"Tranche B Facility" means the euro denominated performance bond facility
in the amount of EUR24,521,294 granted to the Borrowers in sub-clause
2.1(b) of Clause 2.1 (Grant of the Facilities).
"Tranche B Outstandings" means, at any time, the maximum actual and
contingent liabilities of each Tranche B Bank in respect of each
outstanding Performance Bond issued by it.
"Tranche B Resignation Request" means a request substantially in the form
set out in Schedule 18 (Form of Tranche B Bank Resignation Request).
-39-
"Transfer Certificate" means a certificate substantially in the form set
out in Schedule 2 (Form of Transfer Certificate) signed by a Bank and a
Transferee under which:
(a) such Bank seeks to procure the transfer to such Transferee of all
or a part of such Bank's rights, benefits and obligations under the
Finance Documents upon and subject to the terms and conditions set
out in Clause 38.3 (Assignments and Transfers by Banks); and
(b) such Transferee undertakes to perform the obligations it will
assume as a result of delivery of such certificate to the Facility
Agent as contemplated in Clause 38.5 (Transfers by Banks).
"Transfer Date" means, in relation to any Transfer Certificate, the date
for the making of the transfer as specified in such Transfer Certificate.
"Transferee" means a person to which a Bank seeks to transfer by novation
all or part of such Bank's rights, benefits and obligations under the
Finance Documents.
"Treaty Bank" means a person which is (a) resident (as such term is
defined in the appropriate double taxation treaty) in a country with
which Spain has a double taxation treaty giving residents of that country
complete exemption from the imposition of any withholding or deduction
for or on account of Spanish taxes on interest (and which does not carry
on business in Spain through a permanent establishment with which the
indebtedness under this Agreement in respect of which the interest is
paid is effectively connected), (b) is entitled to the benefits of such
treaty, and (c) provides to the Obligor, prior to any payment, a
certificate of residency in such country issued by the relevant tax
authorities.
"Treaty on European Union" means the Treaty of Rome of 25 March 1957, as
amended by the Single Xxxxxxxx Xxx 0000 and the Maastricht Treaty (which
was signed at Maastricht on 7 February 1992 and came into force on 1
November 1993).
"Type B1 Licence" means the type B1 individual licence granted by the CMT
to the Original Borrower on 3 December 1998 to provide fixed line
telephony services available to the public through the installation and
exploitation of a fixed line public telecommunications network.
"Unpaid Sum" means the unpaid balance of any of the sums referred to in
Clause 31.1 (Default Interest Periods).
"US GAAP" means accounting principles generally accepted in the United
States of America.
"Utilisation" means the issue of Envelope 2 Performance Bonds or the
issue of Envelope 3 Performance Bonds hereunder.
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"Utilisation Request" means:
(a) in relation to the Tranche A Facility, a request for a Tranche A
Advance; or
(b) in relation to the Tranche B Facility, a request for the issue of
Envelope 2 Performance Bonds and/or Envelope 3 Performance Bonds,
in the form set out in Schedule 5 (Form of Utilisation Request).
"VAT Refund" means the excess VAT paid by the Original Borrower during
2002 which can be reclaimed from the Spanish Authorities in January 2003.
"Wireless Licence" means the type C2 individual licence awarded to Banda
26 by the Ministry of Development on 8 March 2000 for the establishment
and exploitation of a fixed public telecommunication network of radio
access in the 26 GHz band.
1.2 Interpretation
Unless the context otherwise requires, any reference in this Agreement
to:
an "affiliate" of any person shall be construed as a reference to the
ultimate holding company of that person or an entity of which that person
or its ultimate holding company (a) has direct or indirect control or (b)
owns directly or indirectly more than twenty per cent. (20%) of the share
capital or similar rights of ownership;
a document or an agreement being "in an agreed form" or "in agreed form"
shall be construed as a reference to a document or an agreement that has
been initialled for the purposes of identification as such by, or on
behalf of, the Facility Agent and the Original Borrower;
a transaction between a person and another person being on "arm's length
terms" shall be construed as a reference to a transaction on terms that
are fair and reasonable to the first-mentioned person and no more or less
favourable to the other party to the relevant transaction than could
reasonably be expected to be obtained in a comparable arm's length
transaction with a person that is not an affiliate of the first-mentioned
person;
a "change of control" shall be construed as when:
(a) a person or group of persons (acting together) who do not hold any
of the issued share capital of the Parent at the Effective Date,
own or control 30 per cent., in aggregate, or more of the issued
share capital of the Parent;
(b) during any period of two years, individuals who, at the beginning
of such period, constituted the board of directors of the Parent
(together with any new directors whose election was approved by a
vote of 662/3 per cent. of the directors then in office), cease,
for any reason, to constitute a majority of such board of directors
then in office;
other than as a result of the implementation of the Scheme and the
Financial Restructuring including, without prejudice to the generality of
the foregoing, any
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changes to the Board of Directors of the Parent required under the terms
of the Scheme and the Restructuring Agreement;
"continuing", in relation to an Event of Default, shall be construed as a
reference to an Event of Default which has not been remedied or waived in
accordance with the terms hereof and, in relation to a Potential Event of
Default, which has not been remedied within the relevant grace period or
waived in accordance with the terms hereof;
the "control" of a company or corporation shall be construed as:
(a) the power (whether by way of ownership of shares, proxy, contracts,
agency or otherwise) to:
(i) cast, or control the casting of, more than one-half of the
maximum number of votes that might be cast at a general
meeting of that company or corporation; or
(ii) appoint or remove all, or the majority of, the directors or
other officers of that company or corporation (and the
relevant person or persons shall be deemed to have power to
make such an appointment if:
(A) an individual cannot be appointed as a director or an
officer of that company or corporation without the
exercise by the relevant person or persons of such
power in the individual's favour; or
(B) an individual's appointment as a director or an
officer of that company or corporation follows
necessarily from the individual being a director or
other officer of any of the relevant person or
persons); or
(iii) give directions with respect to the material operating and
financial policies of that company or corporation which the
directors or other equivalent officers of that company or
corporation are obliged to comply with; or
(b) the holding of more than one-half of the issued share capital of
that company or corporation (excluding any part of that issued
share capital that carries no right to participate beyond a
specified amount in a distribution of either profits or capital);
the "equivalent" on any date in one currency (the "first currency") of an
amount denominated in another currency (the "second currency") is a
reference to the amount of the first currency which could be purchased
with the amount of the second currency at the spot rate of exchange
quoted by the Facility Agent at or about 11.00 a.m. on such date for the
purchase of the first currency with the second currency;
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the "Facility Agent", the "Security Agent", the "Arranger" or any "Bank"
shall be construed so as to include its and any subsequent successors and
permitted transferees in accordance with their respective interests;
a "hedging agreement" shall be construed so as to include any agreement
(including, without limitation, confirmations and transactions thereunder
and any schedules to that agreement) in respect of a currency swap or
interest rate swap, forward foreign exchange transaction, cap, floor or
collar arrangement, forward sale or option or any other hedging or
treasury transaction of any other kind whatsoever;
a "holding company" of a company or corporation shall be construed as a
reference to any company or corporation of which the first-mentioned
company or corporation is a subsidiary;
"indebtedness" shall be construed so as to include any obligation
(whether incurred as principal or as surety) for the payment or repayment
of money, whether present or future, actual or contingent;
a "law" shall be construed as any law (including common or customary
law), statute, constitution, decree, judgment, treaty, regulation,
directive, bye-law, order or any other legislative measure of any
government, supranational, local government, statutory or regulatory body
or court;
a "member state" shall be construed as a reference to a member state of
the European Union;
a "month" is a reference to a period starting on one day in a calendar
month and ending on the numerically corresponding day in the next
succeeding calendar month save that:
(a) if any such numerically corresponding day is not a Business Day,
such period shall end on the immediately succeeding Business Day to
occur in that next succeeding calendar month or, if none, it shall
end on the immediately preceding Business Day; and
(b) if there is no numerically corresponding day in that next
succeeding calendar month, that period shall end on the last
Business Day in that next succeeding calendar month,
(and references to "months" shall be construed accordingly);
a Tranche B Bank's "participation", in relation to a Performance Bond,
shall be construed as a reference to the rights and obligations of such
Tranche B Bank in relation to such Performance Bond as are expressly set
out in this Agreement;
a "person" shall be construed as a reference to any person, firm,
company, corporation, government, state or agency of a state or any
association or partnership (whether or not having separate legal
personality) of two or more of the foregoing;
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"repay" (or any derivative form thereof) shall, subject to any contrary
indication, be construed to include "prepay" (or, as the case may be, the
corresponding derivative form thereof);
a "subsidiary" of a company or corporation shall be construed as a
reference to any company or corporation:
(a) which is controlled, directly or indirectly, by the first-mentioned
company or corporation;
(b) more than half the issued share capital of which is beneficially
owned, directly or indirectly, by the first-mentioned company or
corporation; or
(c) which is a subsidiary of another subsidiary of the first-mentioned
company or corporation,
and, for these purposes, a company or corporation shall be treated as
being controlled by another if that other company or corporation is able
to direct its affairs and/or to control the composition of its board of
directors or equivalent body;
a "successor" shall be construed so as to include a permitted assignee or
successor in title of such party and any person who under the laws of its
jurisdiction of incorporation or domicile has assumed the rights and
obligations of such party under this Agreement or to which, under such
laws, such rights and obligations have been transferred;
"tax" shall be construed so as to include any tax, levy, impost, duty or
other charge of a similar nature (including any penalty or interest
payable in connection with any failure to pay or any delay in paying any
of the same);
"VAT" shall be construed as a reference to value added tax including any
similar tax which may be imposed in place thereof from time to time;
a "wholly-owned subsidiary" of a company or corporation shall be
construed as a reference to any company or corporation which has no other
members except that other company or corporation and that other company's
or corporation's wholly-owned subsidiaries or persons acting on behalf of
that other company or corporation or its wholly-owned subsidiaries; and
the "winding-up", "dissolution" or "administration" of a company or
corporation shall be construed so as to include any equivalent or
analogous proceedings under the law of the jurisdiction in which such
company or corporation is incorporated or any jurisdiction in which such
company or corporation carries on business including the seeking of
liquidation, winding-up, reorganisation, dissolution, administration,
arrangement, adjustment, protection or relief of debtors and, in
particular, in relation to any company incorporated in Spain shall be
construed so as to include: (i) the initiation by the Original Borrower
of cessation of payments or bankruptcy judicial proceedings (solicitud de
inicio de procedimiento judicial de suspension de pagos o
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quiebra); (ii) when these proceedings have not been initiated by the
Original Borrower, but by a third party, the judicial resolution
admitting the request for cessation of payments (providencia de admision
a tramite de la solicitud de suspension de pagos) or the judicial
resolution declaring the bankruptcy (auto de declaracion de quiebra).
1.3 Currency Symbols and Definitions
(a) "EUR" and "euro" means the single currency unit of the European
Union as constituted by the Treaty on European Union as referred to
in EMU Legislation and "euro unit" means the currency unit of the
euro as defined in EMU Legislation;
(b) "US$" and "dollars" denote the lawful currency of the United States
of America; and
(c) "Sterling" means the lawful currency of the United Kingdom.
1.4 Agreements and Statutes
Any reference in this Agreement to:
(a) this Agreement or any other agreement or document shall be
construed as a reference to this Agreement or, as the case may be,
such other agreement or document as the same may have been, or may
from time to time be, amended, varied, novated or supplemented; and
(b) a statute or treaty shall be construed as a reference to such
statute or treaty as the same may have been, or may from time to
time be, amended or, in the case of a statute, re-enacted.
1.5 Headings
Clause and Schedule headings are for ease of reference only.
1.6 Time
Any reference in this Agreement to a time of day shall, unless a contrary
indication appears, be a reference to London time.
1.7 Third Party Rights
A person who is not a party to this Agreement has no right under the
Contract (Rights of Third Parties) Xxx 0000 to enforce any term of this
Agreement.
2. THE FACILITIES
2.1 Grant of the Facilities
(a) The Tranche A Xxxxx xxxxx to the Borrowers, upon the terms and
subject to the conditions hereof, a euro term loan facility of up
to EUR30,000,000.
(b) The Tranche B Banks agree to continue to offer a euro denominated
performance bond facility in an aggregate amount of EUR24,521,294
on the terms of the Original Performance Bond Facility as such
terms are set out herein provided that if a Replacement Tranche B
Bank delivers a Tranche B
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Bank Accession Memorandum to the Facility Agent in accordance with
Clause 41 (Replacement Tranche B Banks) and an Existing Tranche B
Bank delivers a Tranche B Resignation Request to the Facility Agent
in accordance with Clause 41 (Replacement Tranche B Banks) then, on
and from the date upon which a Replacement Tranche B Bank becomes a
party hereto until such Existing Tranche B Bank is released by the
Beneficiary from its obligations under each Performance Bond issued
by it under the Original Performance Bond Facility and all of its
rights hereunder are cancelled and all of its obligations hereunder
are discharged, the amount of the Tranche B Facility shall be
increased by the amount of such Replacement Tranche B Bank's
Tranche B Commitment (as such is specified in the relevant Tranche
B Bank Accession Memorandum and which is of an amount equal to that
of the relevant Existing Tranche B Bank).
(c) Each Counter Indemnified Bank agrees to comply with its obligations
under each Performance Bond issued by it under the Original
Performance Bond Facility.
2.2 Purpose and Application
(a) The Tranche A Facility is intended for:
(i) general corporate purposes; and
(ii) payment or refinancing of interest, fees, costs and expenses
in relation to the Facilities.
(b) The Tranche B Facility is intended to be used in connection with
the satisfaction of the Original Borrower's obligations to
contribute 51 per cent. of the required performance bond
obligations arising out of the award to Banda 26 of the Wireless
Licence.
Accordingly, each Borrower shall apply all amounts raised by it hereunder
in or towards satisfaction of those requirements and none of the Finance
Parties shall be obliged to concern themselves with such application.
2.3 Conditions Subsequent
The Original Borrower shall provide to the Facility Agent in form and
substance satifactory to the Facility Agent (acting reasonably):
(a) within 7 Business Days from the Effective Date, confirmation in
writing that the Conditions Subsequent set out in paragraphs 1, 2
and 3 of Schedule 4 (Conditions Subsequent) hereto have been
complied with; and
(b) within 3 months from the Effective Date, the documents and other
evidence listed in paragraph 4 of Schedule 4 (Conditions
Subsequent) hereto.
In each case, the Facility Agent shall notify the Original Borrower and
the Banks upon being so satisfied.
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2.4 Banks' Obligations Several
The obligations of each Bank are several and the failure by a Bank to
perform its obligations hereunder shall not affect the obligations of an
Obligor towards any other party hereto nor shall any other party be
liable for the failure by such Bank to perform its obligations hereunder.
2.5 Banks' Rights Several
The rights of each Bank are several and any debt arising hereunder at any
time from an Obligor to any of the other parties hereto shall be a
separate and independent debt. Each such party shall be entitled to
protect and enforce its individual rights arising out of this Agreement
independently of any other party (so that it shall not be necessary for
any party hereto to be joined as an additional party in any proceedings
for this purpose).
3. UTILISATION OF THE TRANCHE A FACILITY
3.1 Tranche A Bank's Participation in Tranche A Advances
Each Tranche A Bank will participate through its Facility Office in each
Tranche A Advance in the proportion borne by its Available Tranche A
Commitment to the Available Tranche A Facility immediately prior to the
making of that Tranche A Advance.
3.2 Notification of Allocation
The Facility Agent shall, not later than the specified time, notify each
Tranche A Bank by fax or letter of the proposed length of the relevant
Interest Period and, on the Quotation Date, EURIBOR applicable thereto.
4. TRANCHE A FACILITY UTILISATION CONDITION
The Original Borrower will be treated as having drawn down a Tranche A
Advance of EUR30,000,000 on the Effective Date, but this deemed draw down
shall not result in a new Interest Period commencing or in the Original
Borrower being liable to make any payment under Clause 31.4 (Break
Costs).
5. INTEREST PERIODS FOR TRANCHE A ADNVANCES
5.1 Interest Periods
The period for which a Tranche A Advance is outstanding shall be divided
into successive periods each of which (other than the first, which shall
begin on the date prior to the Effective Date on which the corresponding
amount was drawn down under Tranche C, as defined in this Agreement prior
to the Effective Date) shall start on the last day of the preceding such
period.
5.2 Duration
The duration of each Interest Period shall, save as otherwise provided
herein, be one, two, three or six months, in each case as the Borrower of
such Tranche A Advance may by not less than five Business Days' prior
notice to the Facility Agent select or such other period as all of the
Tranche A Banks may agree, provided that:
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(a) if such Borrower fails to give such notice of its selection in
relation to an Interest Period, the duration of that Interest
Period shall, subject to sub-clauses (b) and (c), be one month;
(b) any Interest Period which begins during or at the same time as any
other Interest Period and relates to Tranche A Advances borrowed by
the same Borrower shall end at the same time as that other Interest
Period; and
(c) any Interest Period which would otherwise end during the month
preceding, or extend beyond, a Term Repayment Date shall be of such
duration that it shall end on that Term Repayment Date.
5.3 Consolidation of Tranche A Advances
Subject to Clause 5.4 (Division of Tranche A Advances), if two or more
Interest Periods relating to Tranche A Advances borrowed by the same
Borrower end at the same time, then, on the last day of those Interest
Periods, the Tranche A Advances to which they relate shall be
consolidated into and treated as a single Tranche A Advance.
5.4 Division of Tranche A Advances
The Borrower to which such Tranche A Advance is made may, by not less
than five Business Days' prior notice to the Facility Agent, direct that
any Tranche A Advance shall, at the beginning of any Interest Period
relating thereto, be divided into (and thereafter, save as otherwise
provided herein, treated in all respects as) two or more Tranche A
Advances in such amounts (in aggregate, equalling the amount of the
Tranche A Advance being so divided) as shall be specified by such
Borrower in such notice, provided that such Borrower shall not be
entitled to make such a direction if:
(a) as a result of so doing there would be more than ten outstanding
Tranche A Advances; or
(b) any Tranche A Advance thereby coming into existence would be of an
amount of less than EUR5,000,000.
6. PAYMENT AND CALCULATION OF INTEREST ON TRANCHE A ADVANCES
6.1 Payment of Interest
On the last day of each Interest Period (and, if the Interest Period of
such Tranche A Advance exceeds six months, on the expiry of each period
of six months during that Interest Period) the Borrower to which such
Tranche A Advance has been made shall pay accrued interest on the Tranche
A Advance to which such Interest Period relates.
6.2 Calculation of Interest
The rate of interest applicable to a Tranche A Advance from time to time
during an Interest Period relating thereto shall be the rate per annum
which is the sum of:
(a) the Applicable Margin at the relevant time;
(b) the Mandatory Cost Rate; and
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(c) EURIBOR.
7. THE TRANCHE B FACILITY
7.1 The Tranche B Facility
The Tranche B Facility is a continuation of the Original Performance Bond
Facility. The rights and obligations:
(a) of each party to the Original Performance Bond Facility Agreement
shall, on and from the date of this Agreement; and
(b) of each Replacement Tranche B Bank shall, on and from the date of
receipt by the Facility Agent of a Tranche B Bank Accession
Memorandum in accordance with Clause 41 (Replacement Tranche B
Banks),
be governed by this Agreement and each Performance Bond issued by a
Tranche B Bank under the Original Performance Bond Facility or, as the
case may be, to be issued by a Replacement Tranche B Bank under the
Tranche B Facility shall be deemed to be subject to the terms and
conditions of this Agreement.
7.2 Issue of Replacement Performance Bonds
Subject to the provisions hereof, if:
(a) the Original Borrower delivers a Utilisation Request to the
Facility Agent (copied to the relevant Replacement Tranche B Bank
and Existing Tranche B Bank) requesting that a Replacement Tranche
B Bank issue a Performance Bond as a replacement for that issued by
the Existing Tranche B Bank under the Original Performance Bond
Facility (a "Replacement Performance Bond") no later than 20 days
prior to the proposed Issue Date of such Replacement Performance
Bond and, within 5 days of receipt of the Utilisation Request, the
relevant Replacement Tranche B Bank and Existing Tranche B Bank
have confirmed to the Facility Agent their agreement to such
request; and
(b) on the proposed Issue Date of such Replacement Performance Bond:
(i) the Repeated Representations are true on and of such date;
(ii) no Event of Default or Potential Event of Default has
occurred and is continuing;
(iii) the Existing Tranche B Bank has approached, or confirms that
it will on the Issue Date approach the Beneficiary to
procure the release from all of its obligations under any
Performance Bond issued by it in the Beneficiary's favour;
and
(iv) the amount of such Replacement Performance Bond is of an
amount equal to that of the Performance Bond issued by the
relevant Existing
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Tranche B Bank and in any event is not greater than such
Replacement Tranche B Bank's Tranche B Commitment.
Then:
(c) the Facility Agent shall prepare an execution copy of the
Replacement Performance Bond substantially in the form of the
relevant Performance Bond it is intended to replace; and
(d) on the proposed Issue Date, the Replacement Tranche B Bank shall
execute its execution copy of the Replacement Performance Bond in
the form prepared by the Facility Agent.
7.3 Counter Indemnity Provider as Replacement Tranche B Bank
If the Counter Indemnity Provider becomes a Replacement Tranche B Bank
hereunder, the amount of the Replacement Performance Bond to be issued by
it shall be reduced to take into account any amount the Counter Indemnity
Provider has paid to the relevant Existing Tranche B Bank under Clause 10
(Counter Indemnity Provider's Liability in relation to Performance Bonds)
prior to the Issue Date of such Replacement Performance Bond.
7.4 Failure to Perform
Neither the Facility Agent nor any Tranche B Bank shall be liable for the
failure of any, or (as the case may be) any other, Tranche B Bank to
fulfil its obligations under a Performance Bond nor shall the Original
Borrower be released from its obligations towards the remaining Tranche B
Banks in case of such failure.
7.5 Prior Enquiry
(a) Neither the Facility Agent nor any Tranche B Bank need, before
issuing a Replacement Performance Bond hereunder, make any enquiry
or otherwise concern themselves whether any event has occurred
which would, according to the terms hereof, discharge any Tranche B
Bank from its obligations to issue or enter into such a Replacement
Performance Bond.
(b) The Original Borrower shall not have any right to resist any claim
under Clause 9 (Original Borrower's Liabilities in relation to
Performance Bonds) or otherwise on the grounds that any event had
occurred which would, according to the terms of the Original
Performance Bond Facility Agreement, discharge a Tranche B Bank
from its obligations to issue or enter into such a Performance
Bond, before the issue of or entry into of such a Performance Bond.
7.6 Issue of Performance Bonds
The Original Borrower and each Replacement Tranche B Bank hereby
authorises the Facility Agent to issue Replacement Performance Bonds
pursuant to this Clause 7 by completing the Issue Date and delivering
such Replacement Performance Bond to the Registry on behalf of the
Beneficiary on the Issue Date relating thereto.
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7.7 Performance Bond Commission
(a) Save as otherwise provided in sub-clause (b), the Original Borrower
shall pay to the Facility Agent for the account of each Tranche B
Bank (for distribution in respect of each Bank's Performance Bonds)
a performance bond commission at the Commission Rate on the maximum
actual and contingent liabilities of each Tranche B Bank under each
Performance Bond issued by it, other than where such Tranche B Bank
has the benefit of a counter indemnity issued to it by a Counter
Indemnity Provider pursuant to Clause 10 (Counter Indemnity
Provider's Liabilities in Relation to Performance Bonds) where such
performance bond commission shall be for the account of such
Counter Indemnity Provider. Such performance bond commission shall
be paid in arrear in respect of each successive period of three
months (or such shorter period as shall end on the Expiry Date)
which ends during the Term of each Performance Bond, the first such
payment hereunder to be made on 10 April 2001.
(b) If X.X. Xxxxxx Europe Limited or, as the case may be, any affiliate
of the Arranger (in either case, "X.X. Xxxxxx"), becomes a
Replacement Tranche B Bank hereunder in accordance with Clause 41
(Replacement Tranche B Banks) in replacement for Barclays Bank,
S.A. and issues a Replacement Performance Bond in accordance with
the terms hereof, on and from the date that such Replacement
Performance Bond is issued, performance bond commission shall no
longer be payable to Barclays Bank, S.A. under sub-clause (a) and
Clause 7.8 (Collateralised Performance Bonds) but shall be payable
to X.X. Xxxxxx in respect of the Replacement Performance Bond
issued by it hereunder.
7.8 Collateralised Performance Bonds
In the event that the whole or any part of the liabilities of a Tranche B
Bank under a Performance Bond are secured by the provision of Cash
Collateral in the circumstances contemplated by Clause 14.2 (Cancellation
or Prepayment of Performance Bonds), Clause 15 (Mandatory Prepayment) or
Clause 20 (Illegality), the Commission Rate applicable to the amount of
such liabilities which have been so secured shall be the rate of 0.45 per
cent. per annum.
8. NOTIFICATION
8.1 Performance Bonds
Not later than 10 days prior to the Issue Date of any Replacement
Performance Bond, the Facility Agent shall notify the relevant
Replacement Tranche B Bank of the proposed amount of the Replacement
Performance Bond to be issued by it in accordance with Clause 7.2 (Issue
of Replacement Performance Bonds).
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9. ORIGINAL BORROWER'S LIABILITIES IN RELATION TO PERFORMANCE BONDS
9.1 Demands under Performance Bonds
If, at any time, a demand for payment (the amount so demanded being
referred to as an "Amount Demanded") is made by the Beneficiary or by the
Registry on behalf of the Beneficiary under a Performance Bond on any
party thereto, such party shall notify the Facility Agent and:
(a) the Facility Agent shall:
(i) notify the Original Borrower and each of the Tranche B Banks
of such demand;
(ii) make demand of the Original Borrower under Clause 9.2
(Original Borrower's Indemnity to Tranche B Banks) for an
amount equal to such Amount Demanded; and
(iii) (at the same time as making a demand on the Original
Borrower pursuant to paragraph (ii) above) make demand of
each Tranche B Bank for an amount equal to its Envelope 2
Proportion or, as the case may be, Envelope 3 Proportion of
such Amount Demanded;
(b) the Original Borrower and each Tranche B Bank shall, forthwith upon
receipt by it of the demand made by the Facility Agent of it under
sub-clause (a) (and in any event no later than 11.00 a.m. on the
third Business Day following receipt of demand), pay to the
Facility Agent, in the currency in which such Amount Demanded is
denominated, in the case of the Original Borrower, the Amount
Demanded and, in the case of each Tranche B Bank, its Envelope 2
Proportion or, as the case may be, Envelope 3 Proportion of the
Amount Demanded; and
(c) upon receipt of all or any of the Amount Demanded pursuant to
sub-clause (a), the Facility Agent shall pay such amount, in the
currency in which such Amount Demanded is denominated, to the
Registry on behalf of the Beneficiary in accordance with the terms
of the relevant Performance Bond.
9.2 Original Borrower's Indemnity to Tranche B Banks
In addition to any other rights the Original Borrower grants to any party
hereunder, the Original Borrower hereby agrees to pay to the Facility
Agent for the account of the Tranche B Banks from time to time on its
demand an amount equal to each amount demanded of and paid out by all or
any of the Tranche B Banks or the Facility Agent on their behalf under a
Performance Bond pursuant to Clause 9.1 (Demands under Performance Bonds)
in the currency in which such Amount Demanded is denominated and hereby
undertakes irrevocably and unconditionally to indemnify and hold harmless
the Facility Agent and each of the Tranche B Banks on demand by the
Facility Agent on behalf of itself and/or any Tranche B Bank from and
against each and every sum paid by any such Tranche B Bank to the
Beneficiary under a Performance Bond or to a Tranche B Bank in relation
thereto and against all liabilities, costs (including, without
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limitation, any costs incurred in funding any amount which falls due from
any Tranche B Bank under such Performance Bond or hereunder in connection
with such Performance Bond), losses, damages and expenses which the
Facility Agent and the Tranche B Banks or any of them, acting in good
faith, may at any time incur or sustain as a result of the issue of such
Performance Bond.
9.3 Payment to Tranche B Banks
Any amount received by the Facility Agent from the Original Borrower for
the account of the Tranche B Banks pursuant to Clause 9.2 (Original
Borrower's Indemnity to Tranche B Banks) as a result of a payment made
pursuant to Clause 9.1 (Demands under Performance Bonds) shall be divided
amongst the Tranche B Banks in the same proportion that each Tranche B
Bank's Envelope 2 Proportion or, as the case may be, Envelope 3
Proportion bears to the amount so received provided that any Tranche B
Bank which has not made payment in full of the amount payable by it
pursuant to Clause 9.1 (Demands under Performance Bonds) shall only
participate in such division to the extent of the payment made by it.
9.4 Right to make payments
Each of the Tranche B Banks and the Facility Agent on their behalf shall
at all times be entitled to make any payment under a Performance Bond in
respect of which a request or demand has been made and not withdrawn by
the Beneficiary or by the Registry on behalf of the Beneficiary in
accordance with the relevant Performance Bond without further
investigation or enquiry, need not concern themselves or itself with the
propriety of any claim made or purported to be made under and in the
manner required by the terms of such Performance Bond and shall be
entitled to assume that any person expressed in such Performance Bond as
being entitled to make demands or receive payments thereunder is so
entitled; accordingly, it shall not be a defence to any demand made of
the Original Borrower hereunder, nor shall any of the obligations of the
Original Borrower hereunder be impaired by the fact (if it be the case),
that the Tranche B Banks were or might have been justified in refusing
payment, in whole or in part, of the amounts so claimed.
9.5 No Discharge
Neither the obligations of the Original Borrower set out in this Clause 9
nor the rights, powers and remedies conferred on any Tranche B Bank by
this Agreement or by law shall be discharged, impaired or otherwise
affected by any act, event or omission which, but for this Clause 9.5,
might operate to discharge, impair or otherwise affect any of the
obligations of the Original Borrower set out in this Clause 9 or any of
the rights, powers or remedies conferred upon any Tranche B Bank by this
Agreement or by law.
9.6 Settlement Conditional
Any settlement or discharge between the Original Borrower and a Tranche B
Bank shall be conditional upon no security or payment to such Tranche B
Bank by the Original Borrower, or any other person on behalf of the
Original Borrower being avoided or reduced by virtue of any laws relating
to bankruptcy, insolvency,
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liquidation or similar laws of general application and, if any such
security or payment is so avoided or reduced, such Tranche B Bank shall
be entitled to recover the value or amount of such security or payment
from the Original Borrower subsequently as if such settlement or
discharge had not occurred.
9.7 Certificate of amounts paid
A certificate of the Facility Agent as to the amount paid out by any of
the Tranche B Banks under a Performance Bond shall, save for manifest
error, be conclusive and binding upon the Original Borrower for the
purposes of this Agreement and prima facie evidence in any legal action
or proceedings arising in connection herewith.
10. COUNTER INDEMNITY PROVIDER'S LIABILITIES IN RELATION TO PERFORMANCE BONDS
10.1 Counter Indemnity Provider's Indemnity to Counter Indemnified Banks
The Counter Indemnity Provider hereby agrees to pay to each Counter
Indemnified Bank from time to time on its demand an amount equal to each
amount demanded (an "Amount Demanded") of and paid out by each such
Counter Indemnified Bank under a Performance Bond issued by it under the
Original Performance Bond Facility in the currency in which such Amount
Demanded is denominated and hereby undertakes irrevocably and
unconditionally to indemnify and hold harmless each Counter Indemnified
Bank from and against each and every sum paid by any such Counter
Indemnified Bank to the Beneficiary under a Performance Bond in relation
thereto and against all liabilities, costs (including, without
limitation, any costs incurred in funding any amount which falls due from
any such Counter Indemnified Bank under any Performance Bond issued by it
or hereunder in connection with such Performance Bond), losses, damages
and expenses which any such Counter Indemnified Bank, acting in good
faith, may at any time incur or sustain as a result of the issue of such
Performance Bond.
10.2 Right to make payments
Any Counter Indemnified Bank shall at all times be entitled to make any
payment under a Performance Bond issued by it in respect of which a
request or demand has been made and not withdrawn by the Registry on
behalf of the Beneficiary in accordance with the relevant Performance
Bond without further investigation or enquiry, need not concern
themselves or itself with the propriety of any claim made or purported to
be made under and in the manner required by the terms of such Performance
Bond and shall be entitled to assume that any person expressed in such
Performance Bond as being entitled to make demands or receive payments
thereunder is so entitled; accordingly, it shall not be a defence to any
demand made of the Counter Indemnity Provider hereunder, nor shall any of
the obligations of the Counter Indemnity Provider hereunder be impaired
by the fact (if it be the case), that such Counter Indemnified Bank was
or might have been justified in refusing payment, in whole or in part, of
the amounts so claimed.
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10.3 No Discharge
Neither the obligations of the Counter Indemnity Provider set out in this
Clause 10 nor the rights, powers and remedies conferred on any Counter
Indemnified Bank by this Agreement or by law shall be discharged,
impaired or otherwise affected by any act, event or omission which, but
for this Clause 10.3, might operate to discharge, impair or otherwise
affect any of the obligations of the Counter Indemnity Provider set out
in this Clause 10 or any of the rights, powers or remedies conferred upon
any Counter Indemnified Bank by this Agreement or by law.
10.4 Settlement Conditional
Any settlement or discharge between the Counter Indemnity Provider and a
Counter Indemnified Bank shall be conditional upon no security or payment
to such Counter Indemnified Bank by the Counter Indemnity Provider, or
any other person on behalf of the Counter Indemnity Provider, being
avoided or reduced by virtue of any laws relating to bankruptcy,
insolvency, liquidation or similar laws of general application and, if
any such security or payment is so avoided or reduced, such Counter
Indemnified Bank shall be entitled to recover the value or amount of such
security or payment from the Counter Indemnity Provider subsequently as
if such settlement or discharge had not occurred.
10.5 Certificate of amounts paid
A certificate of the Facility Agent as to the amount paid out by any
Counter Indemnified Bank under a Performance Bond shall, save for
manifest error, be conclusive and binding upon the Counter Indemnity
Provider for the purposes of this Agreement and prima facie evidence in
any legal action or proceedings arising in connection herewith.
10.6 Cancellation of Counter Indemnity
The counter indemnity given by the Counter Indemnity Provider to any
Counter Indemnified Bank pursuant to this Clause 10 shall be
automatically cancelled on the date upon which such Counter Indemnified
Bank transfers its rights, benefits and obligations to a Replacement
Tranche B Bank in accordance with Clause 38.3 (Assignments and Transfers
by Banks) and obtains a release from the Beneficiary of all Performance
Bonds issued by it under the Original Performance Bond Facility or, if
later, on the effective date of such transfer and release.
11. MARKET DISRUPTION AND ALTERNATIVE INTEREST RATES
11.1 Market Disruption
If, in relation to any Tranche A Advance:
(a) EURIBOR is to be determined by reference to Reference Banks and at
or about the time at which the rate is to be determined on the
Quotation Date for the relevant Interest Period none or only one of
the Reference Banks supplies a rate for the purpose of determining
EURIBOR for the relevant Interest Period; or
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(b) before the close of business in London on the Quotation Date for
the relevant Interest Period the Facility Agent has been notified
by a Tranche A Bank or each of a group of Tranche A Banks to whom
in aggregate fifty per cent. or more of such Tranche A Advance is
owed (or, in the case of an undrawn Tranche A Advance which, if
made, would be owed) that the cost to it of obtaining matching
deposits in the relevant interbank market would be in excess of
EURIBOR,
then, the Facility Agent shall notify the relevant Borrower and the
Tranche A Banks of such event and, notwithstanding anything to the
contrary in this Agreement, Clause 11.2 (Substitute Interest Period and
Interest Rate) shall apply to such Tranche A Advance (if it is a Tranche
A Advance which is already outstanding). If sub-clause (a) or (b) applies
to a proposed Tranche A Advance, such Tranche A Advance shall not be
made.
11.2 Substitute Interest Period and Interest Rate
If sub-clause 11.1(a) of Clause 11.1 (Market Disruption) applies to a
Tranche A Advance, the duration of the relevant Interest Period shall be
one month or, if less, such that it shall end on the next succeeding Term
Repayment Date. If either sub-clause 11.1(a) or 11.1(b) of Clause 11.1
(Market Disruption) applies to a Tranche A Advance the rate of interest
applicable to each Tranche A Bank's portion of such Tranche A Advance
during the relevant Interest Period shall (subject to any agreement
reached pursuant to Clause 11.3 (Alternative Rate)) be the rate per annum
which is the sum of:
(a) the Applicable Margin at such time;
(b) the Mandatory Cost Rate in respect thereof at such time; and
(c) the rate per annum notified to the Facility Agent by such Tranche A
Bank before the last day of such Interest Period to be that which
expresses as a percentage rate per annum the cost to such Tranche A
Bank of funding from whatever sources it may select (acting
reasonably) its portion of such Tranche A Advance or Unpaid Sum
during such Interest Period.
11.3 Alternative Rate
If either of those events mentioned in sub-clauses 11.1(a) and 11.1(b) of
Clause 11.1 (Market Disruption) occurs in relation to a Tranche A
Advance, then if the Facility Agent or the Original Borrower so requires,
the Facility Agent and the Original Borrower shall enter into
negotiations with a view to agreeing a substitute basis:
(a) for determining the rates of interest from time to time applicable
to the Tranche A Advances; and/or
(b) upon which the Tranche A Advances may be maintained (whether in
euros or some other currency),
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thereafter and any such substitute basis that is agreed shall take effect
in accordance with its terms and be binding on each party hereto,
provided that the Facility Agent may not agree any such substitute basis
for any Tranche A Bank without the prior consent of such Tranche A Bank.
12. NOTIFICATION
12.1 Interest Rate Determination
The Facility Agent shall not later than the specified time notify each
Tranche A Bank of each determination of EURIBOR and shall promptly notify
the relevant Borrower of such determination and shall promptly notify the
relevant Borrower and the Tranche A Banks of each determination of the
Mandatory Cost Rate.
12.2 Changes to Tranche A Advances or Interest Rates
The Facility Agent shall promptly notify the relevant Borrower and the
Tranche A Banks of any change to:
(a) the proposed length of an Interest Period; or
(b) any interest rate occasioned by the operation of Clause 11 (Market
Disruption and Alternative Interest Rates).
13. REPAYMENT OF THE TRANCHE A FACILITY
13.1 Tranche A Repayment Instalments
The Original Borrower shall procure (and each Borrower which has drawn a
Tranche A Advance shall repay its share of the Tranche A Loan in order to
ensure) that the Tranche A Loan is repaid in instalments on each Term
Repayment Date set out in the table below.
Term Repayment Date Percentage of Tranche A Loan to be repaid
31 December 2004 6%
31 March 2005 4%
30 June 2005 4%
30 September 2005 4%
31 December 2005 4%
31 March 2006 6.25%
30 June 2006 6.25%
30 September 2006 6.25%
31 December 2006 6.25%
31 March 2007 8.25%
30 June 2007 8.25%
30 September 2007 8.25%
31 December 2007 8.25%
31 March 2008 10%
30 June 2008 10%
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13.2 Selection of Tranche A Advances
If, in relation to a Term Repayment Date, the aggregate amount of the
Tranche A Advances exceeds the amount of the Tranche A Loan to be repaid,
the Original Borrower may, by not less than five Business Days' prior
notice to the Facility Agent, select which of those Tranche A Advances
will be wholly or partially repaid, provided that:
(a) the Original Borrower may not make any such selection if, as a
result, more than one such Tranche A Advance would fall to be
partially repaid; and
(b) if the Original Borrower fails to give such notice, the Facility
Agent shall select the Tranche A Advances to be wholly or partially
repaid.
14. CANCELLATION AND PREPAYMENT
14.1 Prepayment of the Tranche A Advances
The Borrower to which a Tranche A Advance has been made may, if it has
given to the Facility Agent not less than 10 days prior written notice to
that effect, prepay without premium or penalty the whole or any part of
any Tranche A Advance (being a minimum amount of EUR1,000,000 or an
integral multiple of EUR500,000 or the balance of the Tranche A Loan, if
less) provided that (a) the Original Borrower cash collateralises a pro
rata amount of the Performance Bonds and (b) the Original Borrower can
demonstrate to the satisfaction of the Banks that the Borrower Group
Business Plan remains fully funded (unless the relevant Borrower is
prepaying all of the Tranche A Loan, in which case, no Bank consent is
required). Any prepayment of the Tranche A Loan shall satisfy pro tanto
the obligations under Clause 13 (Repayment of the Tranche A Facility) in
inverse chronological order.
14.2 Cancellation or Prepayment of Performance Bonds
The Original Borrower may give the Facility Agent not less than five
Business Days prior written notice of its intention to procure (to the
satisfaction of the Facility Agent) that a Tranche B Bank's actual and
contingent liabilities under a Performance Bond be reduced to zero or
that such liabilities be secured by providing Cash Collateral in an
amount equal to the amount of such Performance Bond. Any such
cancellation or prepayment so notified shall take effect upon the
Facility Agent confirming (such confirmation to be given promptly) to the
Original Borrower that it is satisfied that the Tranche B Banks' actual
and contingent liabilities under such Performance Bond have been reduced
to zero or that the necessary amount of Cash Collateral has been
received. Such cancellation or prepayment shall be without premium or
penalty. Any such cancellation or prepayment must be pro rata in respect
of all Envelope 2 Performance Bonds or, as the case may be, Envelope 3
Performance Bonds.
14.3 Notice of Cancellation or Prepayment
Any notice of cancellation or prepayment given by a Borrower pursuant to
this Clause 14 (Cancellation or Prepayment) shall be irrevocable, shall
specify the date upon which such cancellation or prepayment is to be made
and the amount of such cancellation or
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prepayment and, in the case of a notice of prepayment, shall oblige the
relevant Borrower to make such prepayment on such date.
14.4 Repayment of a Tranche A Bank's Share of the Tranche A Loan
If:
(a) any sum payable to any Tranche A Bank by an Obligor is required to
be increased pursuant to Clause 17.1 (Tax Gross-up); or
(b) any Tranche A Bank claims indemnification from the Original
Borrower under Clause 17.2 (Tax Indemnity) or Clause 19.2
(Increased Costs Claims),
the Original Borrower may, whilst such circumstance continues, give the
Facility Agent at least 10 days' notice (which notice shall be
irrevocable) of its intention to procure the repayment of such Tranche A
Bank's share of the Tranche A Loan. On the last day of each current
Interest Period each Borrower to which a Tranche A Advance has been made
shall repay such Bank's portion of the Tranche A Advance to which such
Interest Period relates. Any repayment of a Tranche A Advance shall
reduce rateably the remaining obligations under Clause 13.1 (Tranche A
Repayment Instalments).
15. MANDATORY PREPAYMENT
15.1 Change of Control
(a) The Parent shall, promptly upon it becoming aware that a change of
control has occurred, or will or is reasonably likely to occur,
give written notice thereof to the Banks (through the Facility
Agent).
(b) Any notice delivered by the Parent pursuant to sub-clause (a) shall
(i) specify whether the Borrowers, are either to (A) prepay the
outstanding Tranche A Advances and (B) cancel each outstanding
Performance Bond and the Tranche B Facility upon such change of
control; or (ii) request the relevant Banks to continue to make the
relevant Facility available.
(c) If the Parent makes a request pursuant to sub-clause (b)(ii), each
Tranche A Bank or, in the case of the Tranche B Facility, each
Tranche B Bank shall, following consultation with the other Tranche
A Banks or, in the case of the Tranche B Facility, the other
Tranche B Banks, notify the Parent and the Original Borrower
(through the Facility Agent) whether (i) it requires prepayment of
its portion of the outstanding Tranche A Advances or, as the case
may be, cancellation or prepayment of each of its outstanding
Performance Bonds; or (ii) it is prepared to continue to allow the
outstanding Tranche A Advances or, as the case may be, Performance
Bonds, to remain outstanding and to make the relevant Facility
available to the Borrowers and, if so, on what terms.
(d) The Banks shall (through the Facility Agent) notify the Parent and
the Original Borrower pursuant to sub-clause (c) by no later than
the earlier of (i) the date
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falling 45 days after the Parent has given notice pursuant to
sub-clause (a), and (ii) the date falling 14 days after such change
of control occurs.
(e) If pursuant to sub-clause (b) the Parent gives notice of:
(i) the prepayment of the outstanding Tranche A Advances the
Borrowers shall prepay all outstanding Tranche A Advances;
and
(ii) the cancellation of the outstanding Performance Bonds and
the Tranche B Facility, the Original Borrower shall procure
to the satisfaction of the Facility Agent that the Tranche B
Banks' actual and contingent liabilities under each
Performance Bond are reduced to zero or that such
liabilities be secured by providing Cash Collateral in an
amount equal to the amount of each such Performance Bond.
(f) If pursuant to sub-clause (d):
(i) any Tranche A Bank gives notice that it requires prepayment
of its portion of the outstanding Tranche A Advances, then
the Borrowers shall prepay such Bank's share of the
outstanding Tranche A Advances; or
(ii) any Tranche B Bank gives notice that it requires
cancellation or prepayment of each of its outstanding
Performance Bonds, then the Original Borrower shall cancel,
cash collateralise or prepay each of such Tranche B Bank's
outstanding Performance Bonds in the manner contemplated by
sub-clause (e)(ii),
upon the later of (A) the occurrence of such change of control and
(B) 14 days after delivery of such notice by such Bank.
(g) If the Original Borrower ceases to be a wholly-owned subsidiary of
the Parent, then the Borrowers shall:
(i) immediately prepay all outstanding Tranche A Advances; and
(ii) immediately cancel or prepay each outstanding Performance
Bond in the manner contemplated by sub-clause (e)(ii),
(together with all accrued interest or, as applicable, Performance
Bond Commission thereon and any other sum then due from the
Borrowers hereunder).
15.2 Insurance Proceeds
The Original Borrower shall apply an amount equal to 100 per cent. of the
proceeds of any insurance claims (to the extent that such proceeds are
not to be reinvested in the Business or applied for the purposes of
reinstatement) within 90 days of receipt in prepayment pro-rata of the
Tranche A Loan and cash collateralisation of the Tranche B Facility. Any
prepayment so made shall be subject to the provisions of Clause 31.4
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(Break Costs) and shall promptly be applied in prepayment in accordance
with Clause 15.7 (Application of Prepayments).
15.3 Excess Cash Flow
With respect to each Financial Year, commencing with the Financial Year
ending on 31 December 2005, the Original Borrower shall on the fifth
Business Day immediately succeeding the date on which the financial
statements for such Financial Year are delivered by the Original Borrower
pursuant to the provisions of Clause 23.1 (Annual Statements) or should
have been delivered in accordance with the provisions thereof, pay 75 per
cent. of Excess Cash Flow into the English Secured Cash Account and
shall, on the next Interest Payment Date, apply such amount in prepayment
of the Tranche A Loan if the ratio of Total Senior Debt to Annualised
Adjusted EBITDA, as determined on the last day of the most recent
Financial Quarter is greater than or equal to 3.0:1.0 and, if such ratio
is less than 3.0:1.0, 50 per cent. of such Excess Cash Flow shall be so
applied. Any prepayment so made shall be subject to the provisions of
Clause 31.4 (Break Costs) and shall promptly be applied in prepayment in
accordance with Clause 15.7 (Application of Prepayments).
15.4 Asset Disposals
(a) The Parent shall apply an amount equal to 50 per cent. of (i) the
Net Cash Proceeds of any disposal of CCS by the Group and (ii) the
Net Cash Proceeds of any disposal of Jazztel Portugal by the Group
(including a disposal of its assets or clients) pro-rata in
prepayment of the Tranche A Loan and cash collateralisation of the
Tranche B Facility. Any prepayment so made shall be subject to the
provisions of Clause 31.4 (Break Costs) and shall promptly be
applied in prepayment in accordance with Clause 15.7 (Application
of Prepayments). The Parent may retain 10 per cent. of the Net Cash
Proceeds of any disposal referred to in this sub-clause (a)
provided that such amount together with any amounts raised and
retained by the Parent from any issue of equity shall not exceed in
aggregate EUR12,500,000. The Parent shall apply the remaining 40
per cent. of the Net Cash Proceeds pursuant to Clause 16 (Raising
of Equity by the Group and Further Capitalisation of the Borrower
Group).
(b) The Parent, or the Original Borrower, as the case may be, shall
apply an amount equal to 50 per cent. of the Net Cash Proceeds of
any disposal, lease or transfer of any non-financial asset of any
member of the Group other than if such disposal was to another
member of the Group (excluding Banda 26 from the Group for these
purposes) if such sale was for consideration over and above
EUR1,000,000 in any Financial Year in prepayment pro-rata of the
Tranche A Loan and cash collateralisation of the Tranche B Facility
provided that such prepayment shall not be required in respect of
amounts received pursuant to the sale or transfer, howsoever
described, of information technology machinery or assets made
pursuant to any information technology outsourcing contract entered
into by any member of the Borrower Group. Any prepayment so made
shall be subject to the provisions of Clause 31.4
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(Break Costs) and shall promptly be applied in prepayment in
accordance with Clause 15.7 (Application of Prepayments).
15.5 Spectrum Fee Reimbursement
The Original Borrower shall apply an amount equal to 50 per cent. of the
Spectrum Fee Reimbursement amounts paid to Banda 26 in prepayment
pro-rata of the Tranche A Loan and cash collateralisation of the Tranche
B Facility. Any prepayment so made shall be subject to the provisions of
Clause 31.4 (Break Costs) and shall promptly be applied in prepayment in
accordance with Clause 15.7 (Application of Prepayments).
15.6 Indebtedness for Borrowed Money
The Parent shall apply an amount equal to 100 per cent. of any
Indebtedness for Borrowed Money raised by it after deducting all
reasonable costs incurred by it in connection with raising such
Indebtedness for Borrowed Money (except for (a) the Convertible Bonds and
(b) non cash shareholder or noteholder debt which is non-cash interest
paying provided that such debt is subordinated to the Facilities on terms
satisfactory to the Facility Agent, acting reasonably) in prepayment
pro-rata of the Tranche A Loan and cash collateralisation of the Tranche
B Facility. Any prepayment so made shall be subject to the provisions of
Clause 31.4 (Break Costs) and shall promptly be applied in prepayment in
accordance with Clause 15.7 (Application of Prepayments).
15.7 Application of Prepayments
Any prepayment made under Clause 15.2 (Insurance Proceeds) to 15.6
(Indebtedness for Borrowed Money) shall be applied on the first day of
the following Interest Period pro-rata (a) in repayment of the Tranche A
Loan and (b) in prepayment of the Borrowers' obligations under each
outstanding Performance Bond by providing Cash Collateral in an amount
equal to any such insurance claim proceeds, Excess Cash Flow, Net Cash
Proceeds, Indebtedness for Borrowed Money or Spectrum Fee Reimbursement,
as the case may be. Any prepayment of the Tranche A Loan shall satisfy
the remaining obligations under Clause 13.1 (Tranche A Repayment
Instalments) in inverse chronological order. Any subsequent Cash
Collateral released on the cancellation of the Performance Bonds issued
under the Tranche B Facility, shall be used to prepay the Tranche A Loan.
15.8 31 March 2004
To the extent that, as at 31 March 2004, Tranche B Outstandings continue
to exist under any Performance Bond, the Original Borrower shall procure
to the satisfaction of the Facility Agent that on or before 31 March 2004
such Tranche B Outstandings are secured by providing Cash Collateral in
an amount equal to the amount of such Tranche B Outstandings.
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16. RAISING OF EQUITY BY THE GROUP AND FURTHER CAPITALISATION OF THE BORROWER
GROUP
16.1 Raising of Equity by the Group
100 per cent. of any amounts raised following any capital raising
exercise, other than amounts up to a maximum of EUR 250,000 in any
Financial Year paid pursuant to the exercise of warrants or options, if
received by any member of the Group other than a member of the Borrower
Group shall be made available to the Borrower Group by way of
subscription and disbursement of shares in the Original Borrower or
pledged Subordinated Shareholder/Participatory Loans to the Original
Borrower in order to finance the Business provided that the Parent shall
be entitled to retain in aggregate up to a maximum amount of
EUR12,500,000 of the amounts raised from any such capital raising
exercise provided further that such amount together with any amounts
retained by the Parent pursuant to Clause 15.4 (Asset Disposals) shall
not exceed EUR12,500,000 in aggregate.
16.2 Further Capitalisation of the Borrower Group
The balance of any proceeds received under Clauses 15.3 (Excess Cash
Flow) to 15.5 (Spectrum Fee Reimbursement) not otherwise required to be
mandatorily prepaid pursuant to Clauses 15.3 (Excess Cash Flow) to 15.5
(Spectrum Fee Reimbursement) shall, if received by any member of the
Group, other than a member of the Borrower Group be made available to the
Borrower Group by way of subscription and disbursement of shares in the
Original Borrower or pledged Subordinated Shareholder/Participatory Loans
to the Original Borrower in order to finance the Business provided that
pursuant to sub-clause 15.4(a) 10 per cent. of the proceeds from any sale
of Jazztel Portugal and CCS may be retained by the Parent provided
further that such amount together with any amounts raised and retained by
the Parent from any capital raising exercise referred to in Clause 16.1
(Raising of Equity by the Group) and Clause 15.4 (Asset Disposals) shall
not exceed EUR12,500,000 in aggregate.
17. TAXES
17.1 Tax Gross-up
All payments to be made by an Obligor to any Finance Party hereunder
shall be made free and clear of and without deduction for or on account
of any tax, unless such Obligor is required to make such a payment
subject to the deduction or withholding of any tax. If the tax in respect
of which such deduction or withholding is required to be made is a
Relevant Tax the sum payable by such Obligor shall be increased to the
extent necessary to ensure that such Finance Party receives a sum net of
any deduction or withholding equal to the sum which it would have
received had no such deduction or withholding been made or required to be
made provided that (a) the Finance Party is a Qualifying Bank and (b) the
Original Borrower has, prior to any such gross-up being made, received a
residency certificate from the competent tax authorities in the
jurisdiction of residence of such Finance Party evidencing its status as
tax resident in such jurisdiction.
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17.2 Tax Indemnity
Without prejudice to Clause 17.1 (Tax Gross-up), if any Finance Party is
required to make any payment of or on account of any Relevant Tax on or
calculated by reference to any sum received or receivable hereunder
(including any sum deemed for purposes of such tax to be received or
receivable by such Finance Party whether or not actually received or
receivable) or if any liability in respect of any such payment is
imposed, levied or assessed against any Finance Party, the Original
Borrower shall, upon demand of the Facility Agent, promptly indemnify the
Finance Party which suffers a loss or liability as a result against such
payment or liability, together with (save insofar as it is attributable
to the default of such Finance Party) any interest, penalties, costs and
expenses payable or incurred in connection therewith, provided that (a)
the Finance Party duly evidences such loss within 60 days of having
knowledge of it and (b) this Clause 17.2 shall not apply to:
(i) any tax imposed on and calculated by reference to the net income of
such Finance Party including any sum deemed for purposes of tax to
be received or receivable by such Finance Party by the jurisdiction
in which such Finance Party is incorporated or from which such
Finance Party is engaged in or carrying on business; or
(ii) any tax imposed on and calculated by reference to the net income of
the Facility Office of such Finance Party including any sum deemed
for purposes of tax to be received or receivable by such Finance
Party by the jurisdiction in which its Facility Office is located.
17.3 Finance Parties' Tax Status Confirmation
(a) Each Finance Party confirms in favour of the Facility Agent (on the
date hereof or, in the case of a Finance Party which becomes a
party hereto pursuant to a transfer or assignment, on the date on
which the relevant transfer or assignment becomes effective) that
either:
(i) it is not resident for tax purposes in the United Kingdom
and is beneficially entitled to its share of the Tranche A
Loan, the interest thereon and/or any other amounts payable
by an Obligor hereunder; or
(ii) it is a Bank as defined for the purposes of Section 349 of
the Income and Corporation Taxes Act 1988 and is
beneficially entitled to its share of the Tranche A Loan,
the interest thereon and/or any other amounts payable by an
Obligor hereunder,
and each Finance Party shall promptly notify the Facility Agent if there
is any change in its position from that set out above.
(b) If:
(i) otherwise than as a result of the introduction of, change
in, or change in the interpretation, administration or
application of, any law or regulation or any practice or
concession of the Spanish tax authorities occurring
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after the date of this Agreement any Finance Party is not or
ceases to be a Qualifying Bank or any Finance Party is in
breach of sub-clause (a) or its confirmation under that
sub-clause is incorrect; and
(ii) as a result an Obligor is required to deduct or withhold a
Relevant Tax in respect of payments of interest or other
amounts to be made by such Obligor to any Finance Party
under any Finance Document or would otherwise have been
required to make an indemnity payment or a greater indemnity
payment under Clauses 17.1 (Tax Gross-up) or 17.2 (Tax
Indemnity),
then such Obligor shall (as the case may be) not be liable to pay
under Clause 17.1 (Tax Gross-up) in respect of any such payment of
interest or other amounts any amount in excess of the amount it
would have been obliged to pay if any Finance Party were a
Qualifying Bank, nor shall it be liable to make an indemnity
payment or a greater indemnity payment under Clauses 17.1 (Tax
Gross-up) or 17.2 (Tax Indemnity) than would have been required if
the aforesaid Finance Party had been or had not ceased to be a
Qualifying Bank provided that this sub-clause (b) shall not apply,
and such Obligor shall be obliged to comply with its obligations
under Clauses 17.1 (Tax Gross-up) or 17.2 (Tax Indemnity) if on or
after the date hereof:
(a) there shall have been any change in, or in the official
interpretation or application of, any relevant law or the practice
of the Spanish revenue authority (or, in the case of a Treaty Bank,
any competent Government entity in the country in which it is
resident for the purpose of the relevant double taxation treaty, as
confirmed in writing by such competent Government entity) and as a
result thereof the Finance Party is not or ceases to be a
Qualifying Bank; or
(b) any of the Finance Parties referred to in this sub-clause (b) has
transferred its Facility Office in respect of (1) the Tranche A
Facility (if it is a Tranche A Bank) outside the European Union or
the United States of America; or (2) the Tranche B Facility (if it
is a Tranche B Bank) outside Spain or a Qualifying State, or has
become (1) a Tranche A Bank hereunder with a Facility Office
outside the European Union or the United States of America in
respect of the Tranche A Facility; or (2) a Tranche B Bank
hereunder with a Facility office outside Spain or a Qualifying
State in respect of the Tranche B Facility, in each case, with the
prior written consent of the Original Borrower.
(c) A person intending to make a claim pursuant to Clauses 17.1 (Tax
Gross-up) or 17.2 (Tax Indemnity) shall, promptly after such person
becomes aware of the circumstances giving rise to such claim and
the amount of such claim, deliver to the Original Borrower through
the Facility Agent a certificate to that effect specifying the
amount of such claim and setting out in reasonable detail the basis
of computation of such claim, provided that nothing shall require
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such person to disclose any confidential information relating to
the organisation of its affairs.
(d) If at any time after the date of this Agreement any Finance Party
is aware that it is not or will cease to be a Qualifying Bank (for
whatever reason), it shall promptly notify the Original Borrower.
(e) A Treaty Bank will as soon as reasonably practicable after it
becomes a party hereto and every six months thereafter (or as
required by Spanish law in order to maintain the validity of the
relevant claim form) submit such claim to the appropriate
authorities and/or (if requested by any Obligor) to such Obligor
(together with such forms, papers, other documents and/or evidence
as necessary) as may be required for the Obligors to make payment
of interest to such Treaty Bank on its Tranche A Advances free of
withholding or deduction on account of Spanish tax. No Obligor will
be liable to pay any additional amount under Clause 17.1 (Tax
Gross-up) in respect of the withholding or deduction on account of
Spanish income tax from any such interest unless such claim has
been submitted in accordance with this sub-clause (e) or the
proviso to sub-clause (b) applies.
18. TAX RECEIPTS
18.1 Notification of Requirement to Deduct Tax
If, at any time, an Obligor is required by law to make any deduction or
withholding from any sum payable by it hereunder (or if thereafter there
is any change in the rates at which or the manner in which such
deductions or withholdings are calculated), such Obligor shall promptly
notify the Facility Agent.
18.2 Evidence of Payment of Tax
If an Obligor makes any payment hereunder in respect of which it is
required to make any deduction or withholding, it shall pay the full
amount required to be deducted or withheld to the relevant taxation or
other authority within the time allowed for such payment under applicable
law and shall deliver to the Facility Agent for each Bank, within thirty
days after it has made such payment to the applicable authority, an
original receipt (or a certified copy thereof) issued by such authority
evidencing the payment to such authority of all amounts so required to be
deducted or withheld in respect of that Bank's share of such payment if
any, failing which, it shall deliver other appropriate evidence of
payment.
18.3 Tax Credit Payment
If an additional payment is made under Clause 17 (Taxes) by an Obligor
for the benefit of any Finance Party and such Finance Party, in its sole
discretion, determines that it has obtained and used a credit against, a
relief or remission for, or repayment of, any tax, then, if and to the
extent that such Finance Party, in its sole opinion, determines that such
credit, relief, remission or repayment is in respect of or calculated
with reference to the additional payment made pursuant to Clause 17
(Taxes), it can do so without prejudice to the retention of the amount of
such credit, relief, remission or
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repayment, such Finance Party shall pay (within a reasonable period) to
such Obligor such amount as such Finance Party shall, in its sole
opinion, determine to be the amount which will leave such Finance Party
(after such payment) in no worse after-tax position than it would have
been in had the additional payment in question not been required to be
made by such Obligor.
18.4 Tax and Other Affairs
No provision of this Agreement shall interfere with the right of any
Finance Party to arrange its tax or any other affairs in whatever manner
it thinks fit, oblige any Finance Party to claim any credit, relief,
remission or repayment in respect of any payment under Clause 17 (Taxes)
in priority to any other credit, relief, remission or repayment available
to it nor oblige any Finance Party to disclose any information relating
to its tax or other affairs or any computations in respect thereof.
19. INCREASED COSTS
19.1 Increased Costs
If, after the date of this Agreement, by reason of (a) any change in law
or in its official interpretation or administration and/or (b) compliance
with any request or requirement relating to the maintenance of capital or
any other request from or requirement of any central bank or other
fiscal, monetary or other banking supervisory authority:
(i) a Bank or any holding company of such Bank is unable to obtain the
rate of return on its capital which it would have been able to
obtain but for such Bank's entering into or assuming or maintaining
a commitment or performing its obligations under this Agreement
and/or in the case of a Tranche B Bank, any Performance Bond;
(ii) a Bank or any holding company of such Bank incurs a cost as a
result of such Bank's entering into or assuming or maintaining a
commitment or performing its obligations under this Agreement
and/or in the case of a Tranche B Bank, any Performance Bond; or
(iii) there is any increase in the cost to:
(A) a Tranche A Bank or any holding company of such Tranche A
Bank of funding or maintaining such Bank's share of the
Tranche A Advances or any Unpaid Sum; or
(B) a Tranche B Bank or any holding company of such Tranche B
Bank participating in, or making a payment under, any
Performance Bond,
then the Original Borrower shall, from time to time on demand of the
Facility Agent, promptly pay to the Facility Agent for the account of
that Bank amounts sufficient to indemnify that Bank or to enable that
Bank to indemnify its holding company from and against, as the case may
be, (1) such reduction in the rate of return of capital, (2) such cost or
(3) such increased cost.
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19.2 Increased Costs Claims
A Bank intending to make a claim pursuant to Clause 19.1 (Increased
Costs) shall, promptly after such Bank becomes aware of the circumstances
giving rise to such claim, notify the Facility Agent of the event giving
rise to such claim, whereupon the Facility Agent shall notify the
Original Borrower thereof and deliver to the Original Borrower a
certificate specifying the amount of such claims and setting out in
reasonable detail the basis of the computation thereof.
19.3 Exclusions
Notwithstanding the foregoing provisions of this Clause 19, no Bank shall
be entitled to make any claim under this Clause 19 in respect of:
(a) any cost, increased cost or liability as referred to in Clause 19.1
(Increased Costs) to the extent the same is compensated by the
Mandatory Cost Rate;
(b) any cost, increased cost or liability in respect of tax; or
(c) any cost, increased cost or liability as referred to in Clause 19.1
(Increased Costs) which results from the implementation, as
contemplated on the signing of this Agreement, of the matters set
out in the July 1988 report of the Basle Committee on Banking
Regulations and Supervisory Practices entitled "International
Convergence of Capital Measurement and Capital Standards" (the
"Basle Paper"), the Directive of the Council of the European
Communities on a Solvency Ratio for Credit Institutions (89/647/EEC
of 18 December 1989 as amended) and/or the Directive of the Council
of the European Communities on Own Funds of Credit institutions
(89/299/EEC of 17 April 1989 as amended) or any other Directive of
the European Union in force at the date of this Agreement unless it
results from any change (including, for the avoidance of doubt any
change proposed in the June 1998 proposal paper relating to the
Basle Paper) after the signing of this Agreement in, or in the
official interpretation or application of, such matters or
Directives as contemplated on the signing of this Agreement.
20. ILLEGALITY
If, at any time, it becomes unlawful in any applicable jurisdiction for:
(a) a Tranche A Bank to make, fund or allow to remain outstanding all
or part of its share of the Tranche A Advances; or
(b) a Tranche B Bank to participate in any of its obligations under the
Tranche B Facility or participate in the issue of or allow to
remain outstanding any or all of its liabilities under a
Performance Bond,
then that Bank shall, promptly after becoming aware of the same, deliver
to the Original Borrower through the Facility Agent a notice to that
effect and:
(i) such Tranche A Bank shall not thereafter be obliged to participate
in the making of any Tranche A Advances and the amount of its
Available Tranche
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A Commitment shall be immediately reduced to zero or, as the case
may be, such Tranche B Bank shall not thereafter be obliged to
participate in any Performance Bond or issue any Performance Bond;
and
(ii) if:
(A) the Facility Agent on behalf of such Tranche A Bank so
requires, the Original Borrower shall procure that each
Borrower which has drawn a Tranche A Advance shall on such
date as the Facility Agent shall have specified to be
necessary to comply with the relevant law, repay such
Tranche A Bank's share of any outstanding Tranche A Advances
together with accrued interest thereon and all other amounts
owing to such Tranche A Bank hereunder and any repayment of
Tranche A Advances so made shall reduce rateably the
remaining obligations under Clause 13.1 (Tranche A Repayment
Instalments); or
(B) a Performance Bond has been issued by a Tranche B Bank and
if the Facility Agent on behalf of such Tranche B Bank so
requires, the Original Borrower shall ensure on such date as
the Facility Agent shall have specified to be necessary to
comply with the relevant law, that the liabilities of such
Tranche B Bank under or in respect of any such Performance
Bond are reduced to zero or otherwise secured by providing
Cash Collateral in an amount equal to the amount of such
Tranche B Bank's Outstandings under any such Performance
Bond and the Original Borrower shall pay to such Tranche B
Bank all fees and commissions which have been earned by and
which have accrued to such Tranche B Bank together with any
other amounts due to such Bank hereunder, at such time.
21. MITIGATION
If, in respect of any Bank, circumstances arise which would or would upon
the giving of notice result in:
(a) an increase in any sum payable to it or for its account pursuant to
Clause 17.1 (Tax Gross-up);
(b) a claim for indemnification pursuant to Clause 17.2 (Tax Indemnity)
or Clause 19.1 (Increased Costs); or
(c) (as applicable) the reduction of its Available Tranche A Commitment
to zero or any repayment to be made pursuant to Clause 20
(Illegality),
then, without in any way limiting, reducing or otherwise qualifying the
rights of such Bank or the obligations of the Obligors under any of the
Clauses referred to in sub-clauses (a), (b) and (c), such Bank shall
promptly upon becoming aware of such circumstances notify the Facility
Agent (whereupon the Facility Agent shall notify the Original Borrower)
thereof and, in consultation with the Facility Agent and the Original
Borrower and to the extent that it can do so lawfully and without
prejudice to
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its own position, take all reasonable steps (including a change of
location of its Facility Office or the transfer of its rights, benefits
and obligations hereunder to another financial institution acceptable to
the Original Borrower and willing to participate in the Facility) to
mitigate the effects of such circumstances, provided that such Bank shall
be under no obligation to take any such action if, in the reasonable
opinion of such Bank, to do so would have any adverse effect upon its
business, operations or financial condition (other than any minor costs
and expenses of an administrative nature).
22. REPRESENTATIONS
Each Original Obligor makes the representations and warranties set out in
Clause 22.1 (Status) to Clause 22.24 (Intellectual Property). The
Original Obligors acknowledge that the Finance Parties have entered into
this Agreement in reliance on those representations and warranties. Those
representations and warranties are made and, in the case of
representations repeated pursuant to Clause 22.25 (Repetition of
Representations), will be repeated subject to the qualifications
contained in the legal opinions referred to in paragraphs 7, 8 and 9 of
Schedule 2 (Conditions Precedent) of the Amendment Agreement or, where
applicable, paragraphs 7 and 8 of Schedule 10 (Additional Conditions
Precedent).
22.1 Status
It is a corporation duly organised under the laws of its jurisdiction of
incorporation.
22.2 Governing Law and Judgments
In any proceedings taken in its jurisdiction of incorporation in relation
to the Finance Documents, the choice of English law as the governing law
of the Finance Documents and any judgment obtained in England will be
recognised and enforced.
22.3 Binding Obligations
The obligations expressed to be assumed by it in the Finance Documents
are legal and valid obligations binding on it and enforceable against it
in accordance with the terms thereof.
22.4 Execution of the Finance Documents
Its execution of the Finance Documents and its exercise of its rights and
performance of its obligations thereunder do not and will not:
(a) conflict in any material respect with any agreement, mortgage, bond
or other instrument or treaty to which it is a party or which is
binding upon it or any of its assets;
(b) conflict with its constitutive documents; or
(c) conflict with any applicable law.
It has the power to enter into the Finance Documents and all corporate
and other action required to authorise the execution of the Finance
Documents and the performance of its obligations thereunder has been duly
taken.
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22.5 No Material Proceedings
No action or administrative proceeding of or before any court or agency
which is reasonably likely to have a Material Adverse Effect has been
started or, as far as it is aware, threatened against it.
22.6 Audited Financial Statements
The most recent audited financial statements (consolidated in the case of
the Parent and the Borrower Group (but excluding Banda 26 for the
Financial Year ended 31 December 2001)) of the Parent, the Borrower Group
and (on an unconsolidated basis) of each of the Original Borrower, Adatel
and Banda 26:
(a) were prepared in accordance with US GAAP in respect of the Parent
and the Borrower Group;
(b) were prepared in accordance with Spanish GAAP in respect of each of
the Original Borrower, Adatel and Banda 26;
(c) disclose all liabilities (contingent or otherwise) and all
unrealised or anticipated losses of such Obligor or, as the case
may be, any member of the Group or, as the case may be, the
Borrower Group; and
(d) save as disclosed therein, give a true and fair view of the
financial condition and operations of such Obligor or, as the case
may be, the Group or, as the case may be, the Borrower Group during
the relevant Financial Year.
22.7 No Material Adverse Change
Since the date as at which its most recent audited financial statements
(consolidated, if appropriate, in the case of the Parent and the Borrower
Group (excluding Banda 26) were stated to be prepared, there has been no
material adverse change which is reasonably likely to have a Material
Adverse Effect.
22.8 Validity and Admissibility in Evidence
All acts, conditions and things required to be done, fulfilled and
performed in order (a) to enable it lawfully to enter into, exercise its
rights under and perform and comply with the obligations expressed to be
assumed by it in the Finance Documents, (b) to ensure that the
obligations expressed to be assumed by it in the Finance Documents are
legal, valid, binding and enforceable and (c) to make the Finance
Documents admissible in evidence in its jurisdiction of incorporation
have been done, fulfilled and performed.
22.9 Claims Pari Passu
Under the laws of its jurisdiction of incorporation in force at the date
hereof, the claims of the Finance Parties against it under the Finance
Documents will rank at least pari passu with the claims of all its other
unsecured and unsubordinated creditors save those whose claims are
preferred solely by any bankruptcy, insolvency, liquidation or other
similar laws of general application.
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22.10 No Filing or Stamp Taxes
Save as disclosed, under the laws of its jurisdiction of incorporation in
force at the date hereof, it is not necessary that the Finance Documents
be filed, recorded or enrolled with any court or other authority in such
jurisdiction or that any stamp, registration or similar tax be paid on or
in relation to the Finance Documents.
22.11 No Deduction or Withholding
Save as disclosed, under the laws of its jurisdiction of incorporation in
force at the date hereof, it will not be required to make any deduction
or withholding from any payment it may make hereunder.
22.12 No Winding-up
No Obligor or Material Subsidiary has taken any corporate action nor have
any other steps been taken or legal proceedings been started or (as far
as it is aware) threatened against any such member of the Group for its
winding-up, dissolution, administration or re-organisation (whether by
voluntary arrangement, scheme of arrangement or otherwise) or for the
appointment of a receiver, administrator, administrative receiver,
conservator, custodian, trustee or similar officer of it or all or a
material part of its assets or revenues provided that the negotiation of,
execution of or performance by any party of its rights or obligations
under the Restructuring Agreement (including the proceedings taken in
connection with the Scheme in the English Courts and under Section 304 of
the US Bankruptcy Code in the United States) and consummation of the
transactions contemplated thereby leading to the Financial Restructuring
shall be exempted from this Clause 22.12.
22.13 No Insolvency
No Obligor or Material Subsidiary is unable to pay its debts as they fall
due, has commenced negotiations with any of its creditors with a view to
the general readjustment or rescheduling of its indebtedness or has made
a general assignment for the benefit of or a composition with its
creditors provided that the negotiation of, execution of or performance
by any party of its rights or obligations under the Restructuring
Agreement (including the proceedings taken in connection with the Scheme
in the English Courts and under Section 304 of the US Bankruptcy Code in
the United States) and consummation of the transactions contemplated
thereby leading to the Financial Restructuring shall be exempted from
this Clause 22.13).
22.14 No Material Defaults
No Obligor or Material Subsidiary is in breach of or in default under any
agreement to which it is a party or which is binding on it or any of its
assets to an extent or in a manner which is reasonably likely to have a
Material Adverse Effect.
22.15 Environmental Compliance
Each Obligor and Material Subsidiary has duly performed and observed in
all material respects all Environmental Law, Environmental Permits and
all other material covenants, conditions, restrictions or agreements
concerned with any contamination, pollution or waste or the release or
discharge of any toxic or hazardous substance in connection with any real
property which is owned, leased or occupied by any member
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of the Borrower Group or on which any member of the Borrower Group has
conducted any activity where failure to do so is reasonably likely to
have a Material Adverse Effect.
22.16 Environmental Claims
No Environmental Claim has been commenced or as far as the Original
Borrower is aware is threatened against any Obligor or Material
Subsidiary where such claim is reasonably likely, if determined against
such Obligor or Material Subsidiary, to have a Material Adverse Effect.
22.17 Encumbrances
Save for Permitted Encumbrances, no Encumbrance exists over all or any of
the present or future revenues or assets of any member of the Borrower
Group.
22.18 Ownership of the Original Borrower
The Original Borrower is a wholly-owned subsidiary of the Parent.
22.19 Necessary Authorisations
Except as disclosed in Schedule 16 (Disclosures Relating to Necessary
Authorisations and Licences), the Necessary Authorisations required from
time to time by it or, as the case may be, by Banda 26 are in full force
and effect, except to the extent that it is unnecessary for them to have
been obtained at the time this representation is made or repeated, and it
or, as the case may be, Banda 26 is in compliance with the material
provisions thereof or, as applicable, has been released from such
compliance provisions and, so far as it is aware, none of the Necessary
Authorisations are the subject of any pending or threatened proceedings
or revocation.
22.20 Licence
Except as disclosed in Schedule 16 (Disclosures Relating to Necessary
Authorisations and Licences), the Original Borrower or, as the case may
be, Banda 26 has (a) at all times complied with the Licences and if it
has not complied with the Licence granted to it, such non-compliance is
not reasonably likely to have a Material Adverse Effect and (b) obtained
and maintained in full force and effect all other licences (if any)
required in order to conduct the Business and the Banda 26 Business and,
if it has not obtained and maintained such licences such failure to
obtain and maintain is not reasonably likely to have a Material Adverse
Effect and there are no facts or circumstances entitling such other
licences to be revoked, suspended, amended, varied, withdrawn or not
renewed save where such revocation, suspension, amendment, variation,
withdrawal or failure to renew is not reasonably likely to have a
Material Adverse Effect.
22.21 Bank Materials
The factual information contained in the Bank Materials is true, complete
and accurate in all material respects and the financial projections
contained therein have been prepared on the basis of recent historical
information and on the basis of reasonable assumptions.
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22.22 Borrower Group Business Plan
The factual information contained in the relevant Borrower Group Business
Plan is true, complete and accurate in all material respects, the
financial projections contained therein have been prepared on the basis
of recent historical information and on the basis of reasonable
assumptions and nothing has occurred since the date it was delivered to
the Facility Agent pursuant to Clause 23.9 (Borrower Group Business Plan)
or been omitted that renders the information contained in the relevant
Borrower Group Business Plan untrue or misleading in any material
respect.
22.23 Dormant Subsidiaries
Mediterranea and Movilweb are Dormant Subsidiaries of the Original
Borrower.
22.24 Intellectual Property
Except as secured by the Mortgage over Intellectual Property, no Obligor
owns any Intellectual Property of any commercial value to any third
party.
22.25 Repetition of Representations
The Repeated Representations shall be deemed to be repeated by each
relevant Obligor by reference to the facts and circumstances then
existing (including any matters contained in the annual revisions of the
Borrower Group Business Plan) on the date of each Utilisation Request, on
each date on which a Tranche A Advance is or is to be made or Performance
Bond issued, on the first day of each Interest Period and on each date on
which a company becomes (or it is proposed that a company becomes) an
Additional Obligor assuming, in relation to any deemed repetition of the
representation contained in sub-clause 22.4(a) of Clause 22.4 (Execution
of the Finance Documents), that the words "in any material respect" are
deleted from the first line of such sub-clause and the words "and such
conflict is reasonably likely to have a Material Adverse Effect" are
added to the end of such sub-clause.
23. FINANCIAL INFORMATION
23.1 Annual Statements
(a) The Parent shall as soon as the same become available, but in any
event within 120 days after the end of each of its Financial Years,
deliver to the Facility Agent in sufficient copies for the Banks,
the consolidated financial statements of the Group for such
Financial Year.
(b) The Original Borrower shall as soon as the same become available,
but in any event within 150 days after the end of each of its
Financial Years deliver to the Facility Agent in sufficient copies
for the Banks its financial statements for such Financial Year
(and, if the Original Borrower then has subsidiaries, the
consolidated financial statements of the Borrower Group (including
Banda 26) for such Financial Year).
(c) Each set of financial statements delivered pursuant to sub-clause
(a) or sub-clause (b) shall have been audited by an internationally
recognised firm of independent auditors licensed to practise in its
jurisdiction of incorporation and shall be accompanied by a written
analysis prepared by the Original
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Borrower comparing the performance of the Borrower Group to the
projections and forecasts set out in the Borrower Group Business
Plan.
23.2 Quarterly Statements
The Original Borrower shall as soon as the same become available, but in
any event within 40 days after the end of each Financial Quarter, deliver
to the Facility Agent in sufficient copies for the Banks the consolidated
financial statements of the Borrower Group (including Banda 26) for such
Financial Quarter (including details of the direct subscriber revenues,
indirect subscriber revenues and carrier and sale of capacity revenues
generated during such financial quarter). In the event that Banda 26
shall not have been consolidated into the financial statements of the
Borrower Group for such Financial Quarter, the Original Borrower shall,
at the same time as it delivers its quarterly statements, deliver the
unconsolidated financial statements of Banda 26 for such Financial
Quarter to the Facility Agent in sufficient copies for the Banks.
23.3 Monthly Management Statements
The Original Borrower shall as soon as the same become available, but in
any event within 35 days after the end of each calendar month, deliver to
the Facility Agent in sufficient copies for the Banks the consolidated
financial statements of the Borrower Group for such period (including
details of the direct subscriber revenues, indirect subscriber revenues
and carrier and sale of capacity revenues generated during such period).
In the event that Banda 26 shall not have been consolidated into the
financial statements of the Borrower Group for such period, the Original
Borrower shall, at the same time as it delivers its monthly management
statements, deliver the unconsolidated financial statements of Banda 26
for such period to the Facility Agent in sufficient copies for the Banks.
23.4 Cash Balances and English Secured Cash Account Minimum Balances
The Original Borrower shall as soon as the same become available, but in
any event within 10 Business Days after the end of each calendar month,
deliver to the Facility Agent in sufficient copies for the Banks a
Compliance Certificate confirming the cash balances in the Cash Accounts,
the Spanish Secured Cash Accounts and the English Secured Cash Account
and confirming that the requirement of Clause 24.1(c) (Minimum Credit
Balance of the English Secured Cash Account) for that month has been
complied with.
23.5 Requirements as to Financial Statements
The Parent, the Original Borrower and, if relevant, Banda 26 shall ensure
that each set of financial statements delivered by it pursuant to this
Clause 23 is certified by an Authorised Signatory of the Parent, the
Original Borrower or, if relevant, Banda 26 as giving a true and fair
view of or, as the case may be, as fairly representing its financial
condition (a) in the case of the Parent, the consolidated financial
condition of the Group, as at the end of the period to which those
financial statements relate and of the results of the Group's operations
during such period, (b) in the case of the Original Borrower, the
consolidated financial condition of the Borrower Group as at the end of
the period to which those financial statements relate and of the results
of the Borrower
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Group's operations during such period and (c) in the case of Banda 26,
its unconsolidated financial condition as at the end of the period to
which those financial statements relate and of the results of its
operations during such period.
23.6 Compliance Certificates
The Original Borrower shall ensure that each set of its financial
statements delivered pursuant to Clause 23.1 (Annual Statements), its
quarterly statements delivered pursuant to Clause 23.2 (Quarterly
Statements) and the monthly confirmation of cash balances delivered
pursuant to Clause 23.4 (Cash Balances and English Secured Cash Account
Minimum Balances) is accompanied by the relevant Compliance Certificate
signed by two Directors of the Original Borrower provided that the
Compliance Certificate to be delivered pursuant to Clause 23.4 (Cash
Balances and English Secured Cash Account Minimum Balances), if not
delivered together with the Original Borrower's annual or quarterly
financial statements, shall only confirm compliance with Clause 23.4
(Cash Balances and English Secured Cash Account Minimum Balances).
23.7 Information in respect of the Licences
The Original Borrower shall (a) promptly, after receipt or despatch of
the same, deliver to the Facility Agent copies of all correspondence with
the CMT or the Beneficiary relating to any breach of any Licence and (b)
within 15 days of receipt of such review, deliver to the Facility Agent a
summary prepared by the Original Borrower of any review carried out by
the CMT or the Beneficiary in respect of the Original Borrower's
compliance with the terms of the Type B1 Licence and Banda 26's
compliance with the terms of the Wireless Licence save to the extent that
the Original Borrower is subject to an obligation of confidentiality in
relation to such correspondence, information or review or such
correspondence, information or review is not disclosable as a result of
any legal or regulatory requirement (including, without limitation, the
terms of the Licences).
23.8 Other Financial Information
Each Obligor shall from time to time on the request of the Facility
Agent, furnish the Facility Agent with such information about the
business and financial condition of the Group as the Facility Agent may
reasonably require except information which is confidential in relation
to third parties, is reasonably regarded by such Obligor as confidential
or is not disclosable as a result of any legal or regulatory requirement.
23.9 Borrower Group Business Plan
The Original Borrower shall, 30 days prior to the commencement of each of
its Financial Years, deliver to the Facility Agent in sufficient copies
for the Banks, the Borrower Group Business Plan.
23.10 Accounting Policies
Each Obligor shall ensure that each set of financial statements delivered
pursuant to this Clause 23 is prepared using accounting policies,
practices, procedures and reference period consistent with those applied
in the preparation of the Original Financial Statements unless, in
relation to any such set of financial statements, the
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relevant Obligor notifies the Facility Agent that there have been one or
more changes in any such accounting policies, practices, procedures or
reference period and the auditors of such Obligor provide:
(a) a description of the changes and the adjustments which would be
required to be made to those financial statements in order to cause
them to use the accounting policies, practices, procedures and
reference period upon which the Original Financial Statements were
prepared; and
(b) sufficient information, in such detail and format as may be
reasonably required by the Facility Agent, to enable the Banks to
make an accurate comparison between the financial position
indicated by those financial statements and the Original Financial
Statements,
and any reference in this Agreement to those financial statements shall
be construed as a reference to those financial statements as adjusted to
reflect the basis upon which the Original Financial Statements were
prepared.
24. FINANCIAL CONDITION
24.1 Financial Condition
The Original Borrower shall ensure that the financial condition of the
Borrower Group shall be such that:
(a) Minimum Annualised Direct Access Revenue: On the last day of each
Financial Quarter which ends on each of the dates specified below,
the Annualised Direct Access Revenue is not less than the amount
specified below opposite such date.
Financial Quarter Minimum Annualised Direct Access
Ending Revenue (EUR Million)
30 September 2002 46
31 December 2002 49.5
31 March 2003 52.5
30 June 2003 55
30 September 2003 56.5
31 December 2003 59
31 March 2004 62
30 June 2004 64.5
30 September 2004 66
31 December 2004 68.5
31 March 2005 71.5
30 June 2005 74
30 September 2005 77.5
31 December 2005 81
31 March 2006 84.5
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Financial Quarter Minimum Annualised Direct Access
Ending Revenue (EUR Million)
30 June 2006 88
30 September 2006 91.5
31 December 2006 95
31 March 2007 100
30 June 2007 105
30 September 2007 110
31 December 2007 115
31 March 2008 120
30 June 2008 125
(b) Minimum Annualised Adjusted EBITDA: On the last day of each
Financial Quarter which ends on each of the dates specified below,
Annualised Adjusted EBITDA is not less than the amount specified
below opposite such date.
Financial Quarter Minimum Annualised
Ending Adjusted EBITDA
(EUR Million)
30 September 2002 minus 44
31 December 2002 minus 35
31 March 2003 minus 25
30 June 2003 minus 15
30 September 2003 minus 9
31 December 2003 minus 3.5
31 March 2004 3.5
30 June 2004 8
30 September 2004 10
31 December 2004 15
31 March 2005 20
30 June 2005 23
30 September 2005 25
31 December 2005 27.5
31 March 2006 31
30 June 2006 34
30 September 2006 37
31 December 2006 40
31 March 2007 42.5
30 June 2007 45
30 September 2007 47.5
31 December 2007 50
31 March 2008 54
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Financial Quarter Minimum Annualised
Ending Adjusted EBITDA
(EUR Million)
30 June 2008 57.5
(c) Minimum Credit Balance of the English Secured Cash Account: On the
last day of each month which ends on each of the dates specified
below, subject to sub-clauses (i) (VAT Refund), (ii) (Permitted
Withdrawals) and (iii) (Resetting of Minimum Credit Balance), the
credit balance of the English Secured Cash Account is not less than
the amount specified below opposite such date and from the first
day of the following month until the last day of the following
month is not less than the credit balance specified below in
respect of the last day of such following month.
Period Ending Minimum Credit Balance
(EUR Million)
30 November 2002 27
31 December 2002 22
31 January 2003 19
28 February 2003 17
31 March 2003 15
30 April 2003 15
31 May 2003 20
30 June 2003 36
31 July 2003 33
31 August 2003 30
30 September 2003 27
31 October 2003 24.5
30 November 2003 22.5
31 December 2003 20.5
31 January 2004 18
29 February 2004 16
31 March 2004 14
30 April 2004 12.5
31 May 2004 11.5
30 June 2004 10
31 July 2004 8.5
31 August 2004 7.5
30 September 2004 6
31 October 2004 6
30 November 2004 6
31 December 2004 4.2
31 January 2005 4.2
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Period Ending Minimum Credit Balance
(EUR Million)
28 February 2005 4.2
31 March 2005 3
30 April 2005 3
31 May 2005 3
30 June 2005 1.8
31 July 2005 1.8
31 August 2005 1.8
30 September 2005 0.6
31 October 2005 0.6
30 November 2005 0.6
31 December 2005 and thereafter 0
(i) VAT Refund: If the VAT Refund has not been paid to the
Borrower Group and credited to the English Secured Cash
Account by 31 May 2003 the minimum credit balance to be
maintained in the English Secured Cash Account will be
adjusted as set out in (A) and (B) below.
(A) The minimum credit balance for each of the months of
May 2003 to July 2003 inclusive shall be reduced by
the expected amount of such VAT Refund (as confirmed
by the Chief Financial Officer of the Original
Borrower, subject to a maximum reduction of
EUR7,700,000 in respect of each such month's minimum
credit balance) provided that the Chief Financial
Officer notifies the Facility Agent in writing as soon
as it becomes aware of a delay in payment beyond 31
May 2003 (such notification to be no later than 31 May
2003) that a delay in payment of the VAT Refund is
expected but that the VAT Refund is expected to be
paid by the relevant authorities no later than 31 July
2003.
(B) If the VAT Refund is subsequently not received by the
Borrower Group and credited to the English Secured
Cash Account by 31 July 2003, the minimum credit
balance required to be maintained for the months
ending 31 August 2003 and 30 September 2003 shall be
reduced by the amount of the expected VAT Refund due
provided that the Original Borrower shall send to the
Facility Agent notification of the further delay as
soon as practical after it becomes aware of such a
delay together with a tax opinion (from a firm
acceptable to the Facility Agent, acting reasonably)
that such tax adviser is not aware of any reason why
the VAT Refund should not be made by the relevant
authorities to a party in the Borrower Group within a
specified period of time and specifying the expected
amount of such a VAT Refund. The minimum credit
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balance required to be maintained in the English
Secured Cash Account shall then be reduced by such
certified amount subject to a maximum reduction of
EUR7,700,000 in respect of each month up to and
including 30 September 2003. On payment of the VAT
Refund, the minimum credit balance to be maintained in
the English Secured Cash Account shall on receipt of
such payment revert to the required minimum credit
balance set out in the table showing the required
monthly minimum credit balances above.
(ii) Permitted Withdrawals: In addition to the adjustments
contained in sub-clause (i) (VAT Refund), the Original
Borrower shall in any 12 month period commencing 31 May 2003
up to and including August 2004 be entitled to withdraw
amounts from the English Secured Cash Account, up to three
times, causing the minimum credit balance required to be
maintained in such account to be breached provided that at
all times the minimum credit balance in such account shall
not be less than the required minimum credit balance to be
maintained in such account in respect of the following month
(the "Permitted Excess Amount") provided further that it
shall not, at any time, be entitled to withdraw the
Permitted Excess Amount in consecutive months.
(iii) Resetting of Minimum Credit Balance: In the event that
either or each of the VAT Refund and the Banda 26 Licence
Cash Collateral is released prior to 1 May 2003 in the case
of the VAT Refund and prior to 1 June 2003 in the case of
the Banda 26 Licence Cash Collateral, the minimum credit
balance to be maintained in the English Secured Cash Account
in respect of the month of receipt of that payment and all
subsequent months until 31 May 2003 and 30 June 2003,
respectively, shall be increased by the amount received in
respect of each or either of them as at the month (or
months) in which such amount is credited into the English
Secured Cash Account. In the event that part only of the VAT
Refund or Banda 26 Licence Cash Collateral is paid at any
one time and subsequent payments are made in respect
thereof, on each occasion where any payments of amounts made
in connection therewith are credited to the English Secured
Cash Account the minimum credit balance to be kept in the
account shall be reset in respect of the month of receipt of
such payment and all subsequent months until 31 May 2003 and
30 June 2003 by an increase of the minimum credit balance
equivalent to the amount credited to the English Secured
Cash Account.
(d) Minimum Number of Provisioned DSL Customers: On the last day of
each Financial Quarter which ends on each of the dates specified
below, the number of Provisioned DSL Customers shall not be less
than the amount specified below opposite such date.
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Financial Quarter Provisioned DSL Customers
Ending
30 September 2002 120
31 December 2002 215
31 March 2003 330
30 June 2003 470
30 September 2003 615
31 December 2003 730
31 March 2004 885
30 June 2004 1,040
30 September 2004 1,190
31 December 2004 1,340
31 March 2005 1,480
30 June 2005 1,620
30 September 2005 1,760
31 December 2005 1,900
31 March 2006 2,043
30 June 2006 2,186
30 September 2006 2,329
31 December 2006 2,470
31 March 2007 2,610
30 June 2007 2,750
30 September 2007 2,890
31 December 2007 3,030
31 March 2008 3,168
30 June 2008 3,306
24.2 Financial Definitions
In Clause 24.1 (Financial Condition) the following terms have the
following meanings:
"Adjusted EBITDA" means EBITDA (which, for the avoidance of doubt, shall
include scheduled payments under the Iberdrola Agreement and the RENFE
Agreement) after deducting (i) all costs incurred in connection with the
cancellation of agreements with RENFE; (ii) all extraordinary non-cash
items including write-offs; (iii) costs incurred up to a maximum amount
of EUR1,700,000 per annum in respect of the Financial Year ending 31
December 2002 and the Financial Year ending 31 December 2003 in
connection with long term, asset related restructuring costs; and (iv)
all costs associated with the employee share option scheme of the Parent.
"Annualised Adjusted EBITDA" means, on any date of determination,
Adjusted EBITDA calculated for the two previous Financial Quarters,
multiplied by two.
"Annualised Direct Access Revenue" means, on any date of determination,
Direct Access Revenues in respect of the two previous Financial Quarters,
multiplied by two.
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"Direct Access Revenues" means revenues derived from customers who have a
site which is directly or through wireless local loop, xDSL or other
direct access technology connected (including leased lines) to the
Original Borrower's local access network excluding, for the avoidance of
doubt, carrier's carrier revenues, access revenues derived from customers
that use and will use entirely third party owned access technology and
dial-up internet revenues and re-selling ADSL revenues.
"EBITDA" means Consolidated Profits Before Interest and Tax and before
deduction of any amount attributable to the amortisation of intangible
assets and depreciation of tangible assets.
"local access" means own or long-term leased fibre used for the purposes
of the metropolitan area network.
"Provisioned DSL Customers" means sites that are physically connected to
the Original Borrower's network through a copper pair network owned by
Telefonica, S.A. or any third party using DSL technology.
24.3 Accounting Terms
All accounting expressions shall, to the extent that they are not
otherwise defined herein, be construed in accordance with US GAAP.
24.4 Financial Testing
The covenants set out in Clause 24 (Financial Condition) shall be tested
by reference to each of the financial statements and/or each Compliance
Certificate delivered pursuant to Clause 23 (Financial Information).
25. POSITIVE COVENANTS
25.1 Covenants relating to each Obligor
(a) Maintenance of Legal Validity
Each Obligor shall obtain, comply with the terms of and do all that
is necessary to maintain in full force and effect all
authorisations, approvals, licences and consents required in or by
the laws of its jurisdiction of incorporation to enable it lawfully
to enter into and perform its obligations under the Finance
Documents and to ensure (subject to the qualifications set out in
the legal opinions referred to in paragraphs 7, 8 and 9 of Schedule
2 (Conditions Precedent) of the Amendment Agreement or, where
applicable, paragraphs 7 and 8 of Schedule 10 (Additional
Conditions Precedent)) the legality, validity, enforceability or
admissibility in evidence in its jurisdiction of incorporation of
the Finance Documents.
(b) Claims Pari Passu
Under the laws of its jurisdiction of incorporation, each Obligor
shall ensure that at all times the claims of the Finance Parties
against it under the Finance Documents rank at least pari passu
with the claims of all its unsecured and unsubordinated creditors
save those whose claims are preferred by any
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bankruptcy, insolvency, liquidation or other similar laws of
general application.
(c) Approvals, Licences, Consents, etc.
Each Obligor shall obtain as and when required, comply in all
material respects with the terms of and do all that is necessary to
maintain in full force and effect the Necessary Authorisations and
all other authorisations, approvals, licences and consents required
in or by the laws and regulations of its relevant jurisdiction to
enable it lawfully to enter into and perform its obligations under
the Finance Documents to which it is a party or to ensure (subject
to the qualifications set out in the legal opinions referred to in
paragraphs 7, 8 and 9 of Schedule 2 (Conditions Precedent) of the
Amendment Agreement) or, where applicable, paragraphs 7 and 8 of
Schedule 10 (Additional Conditions Precedent)) the legality,
validity, enforceability and admissibility in evidence, in its
relevant jurisdiction, of the Finance Documents to which it is a
party.
(d) Filing of Tax Returns
Each Obligor shall file or cause to be filed all tax returns
required to be filed in all jurisdictions in which it is situated
or carry on business or otherwise subject to pay tax and will
promptly pay all taxes (including any applicable stamp duty payable
in relation to the Finance Documents) which are due and payable on
such returns or any assessment made against it except to the extent
contested in good faith.
25.2 Covenants relating to the Original Borrower and the Material
Subsidiaries:
(a) Insurance
The Original Borrower shall (i) ensure that it and (ii) procure (to
the extent that it is able) that each Material Subsidiary maintains
insurances on and in relation to its business and assets with
reputable underwriters or insurance companies against such risks
and to such extent as is usual for companies carrying on a business
such as that carried on by it or such Material Subsidiary.
(b) Environmental Compliance
The Original Borrower shall (i) ensure that it and (ii) procure (to
the extent that it is able) that each Material Subsidiary complies
in all material respects with all Environmental Law and obtains and
maintains any Environmental Permits and takes all reasonable steps
in anticipation of known or expected future changes to or
obligations under the same, breach of which (or failure to obtain,
maintain or take) is reasonably likely to have a Material Adverse
Effect.
(c) Conduct of Business
The Original Borrower shall (i) ensure that it and (ii) procure (to
the extent that it is able) that each Material Subsidiary has the
right and is duly qualified
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to conduct its business as it is conducted from time to time in all
applicable jurisdictions, to the extent that any failure to do so
is reasonably likely to have a Material Adverse Effect, and do all
things necessary to obtain, preserve and keep in full force and
effect all rights, to the extent that any failure to do so is
reasonably likely to have a Material Adverse Effect (including,
without limitation, the Licences, authorisations and consents),
which are necessary for the conduct of its business.
(d) Preservation of Assets
The Original Borrower shall (i) ensure that it and (ii) procure (to
the extent that it is able) that each Material Subsidiary maintains
and preserves all of its assets that are necessary in the conduct
of its Business in good working order and condition, ordinary wear
and tear excepted.
(e) Claims under Material Contracts
The Original Borrower shall (i) ensure that it and (ii) procure (to
the extent that it is able) that each Material Subsidiary takes all
reasonable action to enforce any material claim it has in relation
to the warranties given under the Material Contracts and to enforce
all other material rights and entitlements it may have under the
Material Contracts.
25.3 Covenants relating to the Original Borrower
(a) Environmental Claims
The Original Borrower shall inform the Facility Agent and the
Security Agent in writing as soon as reasonably practicable upon
becoming aware of the same if any Environmental Claim has been
commenced or (as far as the Original Borrower is aware) is
threatened against it or any Material Subsidiary in any case where
such claim would have a Material Adverse Effect or of any facts or
circumstances which will or are reasonably likely to result in any
Environmental Claim being commenced or threatened against any
Material Subsidiary in any case where such claim would, if
determined against such Material Subsidiary, have a Material
Adverse Effect.
(b) Notification of Events of Default
The Original Borrower shall promptly inform the Facility Agent and
the Security Agent of the occurrence of any Event of Default and,
upon receipt of a written request to that effect from the Facility
Agent, confirm to the Facility Agent and the Security Agent that,
save as previously notified to the Facility Agent or as notified in
such confirmation, no Event of Default or Potential Event of
Default has occurred.
(c) Borrower Group
The Original Borrower shall ensure that any member of the Borrower
Group (other than Movilweb and MediterrAnea) is or shall become, as
soon as reasonably practicable after becoming a member of the
Borrower Group, an Additional Guarantor in accordance with Clause
40 (Additional Guarantors) other than Banda 26 unless either it
becomes a wholly-owned subsidiary of the
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Original Borrower or the Original Borrower and another company in
the Group in aggregate own 100 per cent. of its shares.
(d) Change of Business of the Borrower Group
The Original Borrower shall procure that the Business of the
Borrower Group is managed and operated in accordance with the
Borrower Group Business Plan and that no substantial change is made
to the general nature or scope of the Business of any member of the
Borrower Group from that carried on at the date of this Agreement.
(e) Notification of Material Proceedings
The Original Borrower shall, as soon as reasonably practicable
after it becomes aware of the same, inform the Facility Agent of
any action or administrative proceeding of or before any court or
agency which might reasonably be likely to have a Material Adverse
Effect which has been started or threatened against it.
(f) Other Subsidiaries
The Original Borrower shall ensure that Mediterranea and Movilweb
remain Dormant Subsidiaries at all times.
25.4 Covenants relating to the Original Borrower and members of the Borrower
Group
(a) Security
The Original Borrower shall (i) ensure that it shall and (ii)
procure (to the extent that it is able) that each member of the
Borrower Group shall at its own expense (and where reasonably
practicable to do so), take all such action as the Security Agent
may reasonably require for the purpose of perfecting or protecting
the Security Agent's rights under and preserving the security
interests intended to be created or evidenced by any of the Finance
Documents and following the making of any declaration pursuant to
Clause 27.18 (Acceleration and Cancellation) or 27.19 (Tranche A
Advances Due on Demand) for facilitating the realisation of any
such security or any part thereof.
(b) Security over Receivables
(i) On the date of execution of the Receivables Pledge, the
Original Borrower shall instruct the notary attesting the
Receivables Pledge to notify any debtors owing over and
above EUR50,000 at the time of the creation of the
Receivables Pledge of the creation of the Receivables
Pledge, such notice to be in the form agreed by the parties
to the Receivables Pledge and attached thereto.
(ii) The Original Borrower shall in any press release issued by
it in connection with the completion of the Scheme and the
Financial Restructuring include details that the credit
rights against its customers have been pledged in favour of
the Banks.
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(iii) Each of Original Borrower and the Parent:
(A) shall instruct its auditors to show in all its audited
consolidated financial statements (and in the case of
the Original Borrower, additionally, in its
unconsolidated audited financial statements) that the
Receivables Pledge has been granted; and
(B) shall show in its audited financial statements (in the
case of the Parent in respect of its consolidated
financial statements only) required to be registered
with the Comision Nacional del Xxxxxxx de Valores, or
may in the future be required to be so registered,
that the Receivables Pledge has been granted.
(iv) The Original Borrower shall on a monthly basis, appear and
deliver to the notary attesting the Receivables Pledge an
updated list of receivables owed to it (including the name,
NIF number and address of the corresponding debtor) in order
that the notary may attest the corresponding updated list of
receivables and expressly declare that the Receivables
Pledge shall extend as of that date to the receivables in
the updated list. Each such list of receivables shall be
delivered at the latest, on the fifteenth day after the end
of each calendar month during the term of the Receivables
Pledge. The Original Borrower shall notify the Facility
Agent within 2 Business Days of the extension of the
Receivables Pledge set out above and shall deliver a copy of
the corresponding notarised updated list of receivables.
(v) On the fifteenth day after the end of October of every year,
whilst this Agreement is in full force and effect, the
Original Borrower shall instruct the notary attesting the
extension of the Receivables Pledge to notify any debtors at
that time owing over and above EUR50,000 of the existence of
the Receivables Pledges, such notice to be in the form
agreed by the parties to the Receivables Pledge and attached
thereto.
(vi) In the event that an Instructing Group has reasonable
grounds to suspect that there is a deterioration in the
solvency of any of the Obligors, or that the Original
Borrower is not performing in accordance with the latest
Borrower Group Business Plan delivered to the Facility
Agent, or that there is a change of law in Spain which
adversely affects the priority and ranking of the amounts
owed to the Banks pursuant to the Finance Documents as
obtained through the notarisation of this Agreement and the
Security Documents on or about the date hereof, an
Instructing Group may request the Original Borrower, and the
Original Borrower shall on receipt of such a request
promptly give notice to all of the Original Borrower's
receivable debtors by inserting a legend in all its invoices
issued to its customers thereafter stating:
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"NOTA INFORMATIVA:
Un sindicato de entidades financiadoras en el que X.X.
Xxxxxx Europe Limited actua como Agente ha otorgado un
contrato de financiacion a Jazz Telecom, S.A. quien lo ha
garantizado mediante la pignoracion de sus derechos de
credito, entre ellos, los importes que figuran en la
presente factura. Ello no afecta al modo de pago elegido por
usted ni a su validez."*
25.5 Operation of the Cash Accounts
(a) In accordance with Schedule 2 (Conditions Precedent) of the
Amendment Agreement the Original Borrower shall credit
EUR27,000,000 to the English Secured Cash Account.
(b) In the event that the amount of cash or Cash Equivalent Investments
in any of the Cash Accounts (excluding any Banda 26 account until
31 March 2003) at any time in aggregate exceeds EUR3,000,000 the
Original Borrower shall (i) ensure that it shall and (ii) procure
(to the extent that it is able) that each member of the Borrower
Group shall, transfer or procure the transfer on a weekly basis of
any amounts of cash or Cash Equivalent Investments over and above
EUR3,000,000 from any such Cash Accounts into any one of the
Spanish Secured Cash Accounts.
(c) The Parent or the Original Borrower, as the case may be, shall pay
an amount equal to the VAT Refund received by the Original Borrower
and the amounts received in respect of the Banda 26 Licence Cash
Collateral promptly on receipt into the English Secured Cash
Account. In the event that the Parent or the Original Borrower, as
the case may be, does not receive each of the full amounts to be
refunded or released in one lump sum, any subsequent amounts paid
in connection therewith shall be paid promptly on subsequent
receipt into the English Secured Cash Account.
(d) The Original Borrower shall (i) ensure that it shall not and (ii)
procure (to the extent that it is able) that no member of the
Borrower Group shall withdraw cash from any of the Spanish Secured
Cash Accounts other than for the purposes of the Business which
includes, for the avoidance of doubt, making payments of interest
and principal pursuant to the terms of this Agreement.
(e) The Original Borrower shall ensure that:
(i) it shall not, subject to Clause 24.1(c)(ii) (Permitted
Withdrawals) withdraw any amounts from the English Secured
Cash Account, at any
*"INFORMATIVE NOTE:
A syndicate of financing entities in which X.X. Xxxxxx Europe Limited is the
Agent has granted financing to Jazz Telecom, S.A., who has secured it with the
pledge of its credit rights, amongst them, the amounts that figure in this
invoice. This does not affect the payment mechanism selected by you nor its
validity."
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time, to the extent that such drawings would cause the
credit balance of the English Secured Cash Account to be
less than the amount specified in Clause 24.1(c) (Minimum
Credit Balance of the English Secured Cash Account) for the
relevant month; and
(ii) from 30 November 2004 onwards:
(A) the minimum credit balance specified in Clause 24.1(c)
(Minimum Credit Balance of the English Secured Cash
Account) for the relevant month up to a maximum of
EUR6,000,000 will only be withdrawn for the sole
purpose of amortising the Tranche A Loan pursuant to
Clause 13.1 (Tranche A Repayment Instalments); and
(B) any amount in excess of EUR6,000,000 may be withdrawn
and applied for any purposes provided that such
withdrawal complies with the provisions of sub-clause
(e)(i) above.
For the avoidance of doubt, any amounts over the minimum amount
required to be maintained on a monthly basis in the English Secured
Cash Account may be withdrawn subject to the terms of this
sub-clause (e), sub-clause (b) and sub-clause (g).
(f) Any amounts made available to any member of the Borrower Group
pursuant to Clause 16 (Raising of Equity by the Group and Further
Capitalisation of the Borrower Group) shall be paid on receipt by
the relevant member of the Borrower Group into a Spanish Secured
Cash Account.
(g) The Original Borrower shall ensure that it shall not withdraw any
moneys from the English Secured Cash Account to the extent that
there are moneys in excess of EUR7,500,000 in aggregate in the
Spanish Secured Cash Accounts.
25.6 Application of Proceeds of Capital Raising and Capitalisation of the
Borrower Group
The Original Borrower shall ensure that, in the case of Clause 16
(Raising of Equity by the Group and Further Capitalisation of the
Borrower Group), the proceeds retained by it shall be used for investment
in the Business, Permitted Investments or for working capital purposes.
25.7 Access to Books and Records
If the Facility Agent has reasonable grounds to believe that an Event of
Default or Potential Event of Default has occurred or will occur then it
may procure that any representative or professional adviser to the
Facility Agent may at reasonable times and on reasonable notice by the
Facility Agent to the Obligors, have access to and be provided with
copies of reasonably required books, records, accounts, documents,
computer programmes, data or other information in the possession of or
available to it subject to any reasonable confidentiality undertaking
required by it or any legal, regulatory or licence requirements provided
that such representative or professional adviser does not unreasonably
interfere with or impede the operations of the Obligors.
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25.8 Covenants relating to the Banda 26 Business
(a) Preservation of Assets
The Original Borrower shall procure (to the extent that it is able)
that Banda 26 maintains and preserves all of its assets that are
necessary in the conduct of the Banda 26 Business in good working
order and condition, ordinary wear and tear excepted.
(b) Conduct of Banda 26 Business
The Original Borrower shall procure (to the extent that it is able)
that Banda 26 has the right and is duly qualified to conduct the
Banda 26 Business as it is conducted from time to time and do all
things necessary to obtain, preserve and keep in full force and
effect all rights which are necessary for the conduct of the Banda
26 Business to the extent that any failure to do so is reasonably
likely to have a Material Adverse Effect.
(c) Insurance
The Original Borrower shall procure (to the extent that it is able)
that Banda 26 maintains insurances on and in relation to the Banda
26 Business and its assets with reputable underwriters or insurance
companies against such risks and to such extent as is usual for
companies carrying on a business such as that carried on by Banda
26.
(d) Environmental Compliance
The Original Borrower shall procure (to the extent that it is able)
that Banda 26 complies in all material respects with all
Environmental Law and obtains and maintains any Environmental
Permits and takes all reasonable steps in anticipation of known or
expected future changes to or obligations under the same breach of
which (or failure to obtain, maintain or take) is reasonably likely
to have a Material Adverse Effect.
(e) Approvals, Licences, Consents, etc.
The Original Borrower shall procure (to the extent that it is able)
that Banda 26 complies in all material respects with the terms of
and does all that is necessary to maintain in full force and effect
the Necessary Authorisations.
(f) Change of Business of Banda 26
The Original Borrower shall procure (to the extent that it is able)
that the Banda 26 Business is managed and operated in accordance
with the Wireless Licence and that no substantial change is made to
the general nature or scope of the Banda 26 Business from that
carried out or contemplated and notified to the Facility Agent at
the date of this Agreement.
(g) Transactions with Affiliates
The Original Borrower shall procure (to the extent that it is able)
that Banda 26 shall not enter into any transactions or series of
transactions with any affiliate, other than with a member of the
Borrower Group, except on terms and conditions not substantially
less favourable than would be obtainable at
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such time in a comparable arm's length transaction with a person
other than an affiliate.
(h) Acceding as a Borrower and a Guarantor
The Original Borrower shall procure that in the event that Banda 26
becomes a wholly-owned subsidiary of the Borrower Group, Banda 26
and the Original Borrower shall within 5 days of Banda 26 becoming
such a subsidiary execute and deliver to the Facility Agent a
Borrower and Guarantor Accession Memorandum pursuant to which and
in accordance with Clause 39 (Additional Borrowers) and Clause 40
(Additional Guarantors) Banda 26 will accede to this Agreement as
an Additional Borrower and Guarantor, together with the documents
and other evidence listed in Schedule 10 (Additional Conditions
Precedent) in relation to Banda 26 provided that Banda 26 shall at
no time borrow in excess of EUR14,000,000 hereunder.
(i) Banda 26 Additional Security
The Original Borrower shall procure that:
(i) Banda 26 grants the Banda 26 Asset Pledge in favour of (A)
the Security Agent and the Banks in form satisfactory to the
Facility Agent on the date Banda 26 accedes hereto as a
Borrower and a Guarantor, or (B) the Original Borrower on
the date the Original Borrower enters into any Banda 26
Additional Subordinated Shareholder/Participatory Loans
subject to Clause 26.1(i) (Restricted Payments to any Group
Company), to the extent of Banda 26's liabilities hereof or
thereof, as the case may be;
(ii) in the event that the Original Borrower enters into any
Banda 26 Additional Subordinated Shareholder/Participatory
Loans pursuant to the terms hereof the Original Borrower
shall grant security over any such Banda 26 Additional
Subordinated Shareholder/Participatory Loans to the Security
Agent and the Banks;
(iii) on the date Banda 26 accedes hereto as a Borrower and a
Guarantor, Banda 26 shall also grant a pledge in favour of
the Security Agent and the Banks over its main operational
bank account in Spain; and
(iv) in the event that Banda 26 enters into any Banda 26
Additional Subordinated Shareholder/Participatory Loans,
Banda 26 shall also grant a pledge in favour of the Original
Borrower over its main operational bank account in Spain,
such pledge to be limited to the aggregate amount of any
such Banda 26 Additional Subordinated
Shareholder/Participatory Loans.
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(j) Release of Total Underlying Obligations
(i) The Original Borrower shall procure that the Beneficiary
releases Banda 26 from having to perform or comply with the
Total Underlying Obligations by 30 June 2003 and
correspondingly that all performance bonds issued in
connection therewith are released at that time. In the event
that the Beneficiary releases part only of the Total
Underlying Obligations, the Original Borrower shall ensure
that the Total Underlying Obligations and the performance
bonds issued on behalf of the three original shareholders of
Banda 26 in connection with their respective proportion of
the Total Underlying Obligations which are still outstanding
are released on a pro-rata basis and that no more than
EUR3,000,000 remain in place securing any such remaining
Total Underlying Obligations.
(ii) The Original Borrower shall procure that, to the extent not
all Total Underlying Obligations and amounts secured thereof
are released, Barclays Bank, S.A. releases the Banda 26
Licence Cash Collateral save for the proportion of Banda 26
Licence Cash Collateral corresponding to the remaining
proportion of Total Underlying Obligations such Banda 26
Licence Cash Collateral is still securing, up to a maximum
amount of EUR1,500,000 in accordance with sub-clause (j)(i)
above.
26. NEGATIVE COVENANTS
26.1 Covenants relating to the Original Borrower and members of the Borrower
Group
(a) Negative Pledge
The Original Borrower shall (i) ensure that it shall not and (ii)
procure (to the extent that it is able) that no member of the
Borrower Group shall without the prior written consent of an
Instructing Group, create or permit to subsist any Encumbrance over
all or any of its present or future revenues or assets other than a
Permitted Encumbrance.
(b) Disposals
The Original Borrower shall (i) ensure that it shall not and (ii)
procure (to the extent that it is able) that no member of the
Borrower Group shall (disregarding sales of stock in trade in the
ordinary course of business) without the prior written consent of
an Instructing Group, sell, lease, transfer or otherwise dispose
of, by one or more transactions or series of transactions (whether
related or not), the whole or any part of its revenues or its
assets other than Permitted Disposals.
(c) Mergers
The Original Borrower shall (i) ensure that it shall not and (ii)
procure (to the extent that it is able) that no member of the
Borrower Group other than in relation to a merger or consolidation
with Banda 26 shall without the prior written consent of an
Instructing Group, merge or consolidate with any other
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person, enter into any demerger transaction or participate in any
other type of corporate reconstruction save for any such merger,
consolidation or demerger which forms part of a solvent
reorganisation and provided that, if reasonably required by the
Facility Agent, it has received legal advice confirming that the
obligations of the relevant member of the Borrower Group under the
Finance Documents will not be adversely affected by such merger,
consolidation or demerger or will be assumed by another member of
the Borrower Group.
(d) Permitted Investments
The Original Borrower shall not, without the prior written consent
of an Instructing Group, create or acquire any new subsidiaries or
otherwise make any investment in third parties other than Permitted
Investments.
(e) Permitted Indebtedness
The Original Borrower shall (i) ensure that it shall not and (ii)
procure (to the extent that it is able) that no member of the
Borrower Group shall assume, incur or otherwise permit to be
outstanding any Financial Indebtedness other than Permitted
Indebtedness.
(f) Jazztel Portugal Indebtedness
The Original Borrower shall ensure that the aggregate total amount
of Financial Indebtedness (for the avoidance of doubt such amount
to be calculated on a gross basis) owed to the Borrower Group by
Jazztel Portugal shall not at any time exceed EUR5,500,000.
(g) Material Contracts
The Original Borrower shall (i) ensure that it shall not and (ii)
procure (to the extent that it is able) that no member of the
Borrower Group shall amend or terminate any Finance Document or
Material Contract to the extent that such amendment or termination
is reasonably likely to have a Material Adverse Effect.
(h) No Credit
The Original Borrower shall (i) ensure that it shall not and (ii)
procure (to the extent that it is able) that no member of the
Borrower Group shall make any loans, grant any credit or give any
guarantee or indemnity (save in the ordinary course of business) to
or for the benefit of any person other than another member of the
Borrower Group subject to sub-clause (i)(D) below or otherwise
voluntarily assume any liability, whether actual or contingent, in
respect of any obligation of any other person other than another
member of the Borrower Group other than (A) in the case of any
loan, grant of credit, guarantee, indemnity or other voluntary
assumption of any liability in respect of amounts which do not
exceed in aggregate, for the Borrower Group together EUR2,000,000
or equivalent (the "Permitted Amount") provided that of such
Permitted Amount, no more than EUR 1,500,000 (or equivalent) in
aggregate may be by way of loan, grant of credit, indemnity or
other voluntary assumption of any liability to or on behalf of any
employee or
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officer of any member of the Group, or (B) any guarantee, indemnity
or other voluntary assumption of any liability in respect of any
performance bond, guarantee or standby letter of credit referred to
in paragraph (d) of Financial Indebtedness.
(i) Restricted Payments to any Group Company
The Original Borrower shall (i) ensure that it shall not and (ii)
procure (to the extent that it is able) that no member of the
Borrower Group shall:
(A) make any Restricted Payments to any Group company outside of
the Borrower Group until 30 September 2003;
(B) make any Restricted Payments to any Group company outside of
the Borrower Group from 1 October 2003 to 30 September 2004
except for Restricted Payments for legitimate corporate
expenses of the Group, other than servicing the Convertible
Bonds issued by the Parent, provided that Restricted
Payments may be made to meet cash withholding tax payments
in respect of the Convertible Bonds and in any event such
payments shall not exceed EUR1,000,000 in aggregate;
(C) make any Restricted Payments to any Group company outside of
the Borrower Group from 1 October 2004 except for Restricted
Payments for legitimate corporate expenses of the Group,
other than servicing the Convertible Bonds issued by the
Parent, provided that Restricted Payments may be made to
meet cash withholding tax payments in respect of the
Convertible Bonds and in any event such payments shall not
exceed EUR2,000,000 in aggregate, taking into account any
payments made in the preceding 12 months; and
(D) prior to the later to occur of 30 April 2003 and the date
when Banda 26 has cash or Cash Equivalent Investments in any
of its accounts in aggregate equivalent to EUR500,000 or
less, make any loans including, where the provisions of
Clause 25.8(i) (Banda 26 Additional Security) have been
complied with, Banda 26 Additional Subordinated
Shareholder/Participatory Loans, grant any credit or give
any guarantee or indemnity (save in the ordinary course of
business) to or for the benefit of Banda 26 in the form of
Banda 26 Additional Shareholder/Participatory Loans over and
above EUR9,000,000 for the financial year ending 31 December
2003, EUR4,000,000 for the financial year ending 31 December
2004 and EUR1,000,000 for the financial year ending 31
December 2005 and not to exceed EUR14,000,000 in aggregate.
26.2 Covenants relating to the Original Borrower and the Material Subsidiaries
(a) Constitutional Documents
The Original Borrower shall (i) ensure that it shall not and (ii)
procure (to the extent that it is able) that no Material Subsidiary
shall agree to any amendment
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or variation of its memorandum or articles of association or other
constitutional documents which is reasonably likely to have a
Material Adverse Effect or which would confer on any person a right
which if exercised might be reasonably likely to result in an Event
of Default or which might be reasonably likely to have a material
adverse effect on the ability of the Banks to enforce their rights
under the Security Documents.
(b) Transactions with Affiliates
The Original Borrower shall (i) ensure that it shall not and (ii)
procure (to the extent that it is able) that no Material Subsidiary
shall enter into any transactions or series of transactions with
any affiliate, other than to a member of the Borrower Group except
on terms and conditions not substantially less favourable than
would be obtainable at such time in a comparable arm's length
transaction with a person other than an affiliate.
26.3 Covenants relating to the Parent
(a) Change of Business of the Group
The Parent shall ensure that no substantial change is made to the
general nature or scope of the business of the Group (being the
provision of telecommunications services and related business and
including, for the avoidance of doubt and without limitation,
internet and internet connection services).
(b) No Competition
The Parent shall ensure that neither it nor while they remain
subsidiaries of the Parent or any member of the Group, CCS, Jazztel
Portugal or any of its other subsidiaries from time to time (the
"Non-Competing Group") shall carry on any business (other than that
currently conducted) similar to that carried out by any member of
the Borrower Group. To the extent that any member of the
Non-Competing Group merges with or acquires or otherwise enters
into a reorganisation, however described, with an entity which
carries on a business similar to that of any member of the Borrower
Group, such member of the Non-Competing Group shall merge its
business with the Original Borrower or a member of the Borrower
Group (other than Banda 26) or shall transfer all its assets to the
Original Borrower.
(c) Maintenance of Rank
(i) The Original Borrower and the Parent shall procure that this
Agreement is raised (at the cost and expense of the Original
Borrower) to the level of documento publico either upon its
execution or promptly thereafter.
(ii) The Original Borrower and the Parent shall, prior to 30 June
2008:
(A) not permit to subsist any Financial Indebtedness which
has been raised to the level of documento publico
other than Financial Indebtedness in an aggregate
outstanding amount not exceeding
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EUR1,000,000 (or its equivalent) or as otherwise
permitted by this sub-clause (c), and
(B) procure that, save as provided in paragraph (iii)
below, no member of the Borrower Group incorporated in
Spain shall raise any indebtedness to the level of
documento publico on and from the date upon which this
Agreement is so raised, in an outstanding amount
exceeding EUR6,000,000 (or its equivalent) in
aggregate which shall be in respect of any
indebtedness falling under paragraphs (c) and (d) of
the definition of Permitted Indebtedness.
(iii) The Original Borrower and the Parent shall procure that the
outstanding amount of Performance Bond Indebtedness
(including Existing Notarised Performance Bond Indebtedness)
that is raised to the level of documento publico does not,
at any time after the date upon which this Agreement is so
raised, exceed EUR20,000,000 (or its equivalent) in
aggregate between the Effective Date and 30 December 2003,
EUR19,000,000 (or its equivalent) in aggregate between 31
December 2003 and 30 December 2004, EUR17,000,000 (or its
equivalent) in aggregate between 31 December 2004 and 30
December 2005, EUR15,000,000 (or its equivalent) in
aggregate at any time thereafter until 30 June 2008.
26.4 Covenants relating to Subordinated Shareholder/Participatory Loans
(a) Subordinated Shareholder/Participatory Loans
The Original Borrower and the Parent shall ensure that the terms of
any Subordinated Shareholder/Participatory Loans (including for
these purposes, the Existing Subordinated Shareholder/Participatory
Loans) are not amended without the prior written consent of the
Banks (such consent not to be unreasonably withheld or delayed).
The Original Borrower and the Parent shall further ensure that no
repayment of principal or interest in respect of any Existing
Subordinated Shareholder/Participatory Loans or any Subordinated
Shareholder/Participatory Loans executed on or after the date of
this Agreement is due or may become due prior to December 2008.
(b) Granting of Security over Subordinated Shareholder/Participatory
Loans
The Parent shall grant security over any Subordinated
Shareholder/Participatory Loans to the Security Agent and the Banks
that it and the Original Borrower may enter into after the date of
this Agreement pursuant to the terms hereof.
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(c) Covenant relating to enforcement by the Parent
The Parent agrees that, so long as any amounts are or may be owed
by any Obligor under the Finance Documents or any Obligor is under
any actual or contingent obligations under the Finance Documents,
it shall not exercise any rights which it may at any time have:
(i) to make any demand of the Original Borrower in respect of
interest payable under any Subordinated
Shareholder/Participatory Loan;
(ii) to take any action or obtain judgment in any court against
the Original Borrower in relation to any interest payable
under any Subordinated Shareholder/Participatory Loan;
(iii) to make or file any claim or proof in a winding-up or
dissolution of the Original Borrower in relation to any
interest payable under any Subordinated
Shareholder/Participatory Loan; or
(iv) to enforce or seek to enforce any other right in relation to
any interest payable under any Subordinated
Shareholder/Participatory Loan.
27. EVENTS OF DEFAULT
Each of Clause 27.1 (Failure to Pay) to Clause 27.17 (Material Contracts,
Approvals, Licences, Consents etc) describes circumstances which
constitute an Event of Default for the purposes of this Agreement.
27.1 Failure to Pay
Any sum due from an Obligor or the Obligors under the Finance Documents
is not paid at the time, in the currency and in the manner specified
herein unless such failure to pay is caused by technical difficulties
with the banking system in relation to the transmission of funds and
payment is made within 3 Business Days of the due date.
27.2 Misrepresentation
Any representation or statement made or deemed to be made by an Obligor
in this Agreement or in any notice or other document, certificate or
statement delivered by it pursuant hereto is or proves to have been
incorrect or misleading in any material respect when made or deemed to be
made.
27.3 Specific Covenants
An Obligor fails duly to perform or comply with any of the obligations
expressed to be assumed by it in sub-clause 26.1(c) (Mergers), sub-clause
26.1(a) (Negative Pledge) or sub-clause 26.1(b) (Disposals) or at any
time any of the requirements of Clause 24.1 (Financial Condition) is not
satisfied.
27.4 Certain Obligations
Any Obligor fails duly to perform or comply with any obligation expressed
to be assumed by it in Clause 23 (Financial Information), sub-clause
25.1(b) (Claims Pari Passu), sub-clause 25.3(b) (Notification of Events
of Default), sub-clause 25.3(c) (Borrower Group), Clause 25.5 (Operation
of the Cash Accounts), Clause 25.6
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(Application of Proceeds of Capital Raising and Capitalisation of the
Borrower Group), Clause 25.7 (Access to Books and Records), sub-clauses
26.1(d) (Permitted Investments) to sub-clause 26.1(i) (Restricted
Payments to any Group Company), sub-clause 26.2(a) (Constitutional
Documents), sub-clause 26.2(b) (Transactions with Affiliates) and Clause
26.4 (Covenants relating to Subordinated Shareholder/Participating Loans)
and such failure, if capable of remedy, is not remedied within 5 days
after it has received written notice from the Facility Agent requiring
the same to be remedied.
27.5 Other Obligations
An Obligor fails duly to perform or comply with any other obligation
expressed to be assumed by it in the Finance Documents and such failure,
if capable of remedy, is not remedied within 30 days after it has
received written notice from the Facility Agent requiring the same to be
remedied.
27.6 Cross Default
Any Financial Indebtedness of any Obligor or Material Subsidiary is not
paid when due or within any applicable grace period, any Financial
Indebtedness of any Obligor or Material Subsidiary is declared to be or
otherwise becomes due and payable prior to its specified maturity as a
result of default on the part of such Obligor or Material Subsidiary, any
commitment for any Financial Indebtedness of any Obligor or Material
Subsidiary is cancelled or suspended by a creditor of such Obligor or
Material Subsidiary or any creditor of any Obligor or Material Subsidiary
becomes entitled to declare any Financial Indebtedness of any Obligor or
Material Subsidiary due and payable prior to its specified maturity,
provided that it shall not constitute an Event of Default if the
aggregate amount (or its equivalent in euros) of all such Financial
Indebtedness is less than EUR3,000,000.
27.7 Insolvency and Rescheduling
Any Obligor or Material Subsidiary is unable to pay its debts as they
fall due, commences negotiations with any one or more of its creditors
with a view to the general readjustment or rescheduling of its
indebtedness or makes a general assignment for the benefit of or a
composition with its creditors ("convenio extrajudicial o judicial con
sus acreedores" in relation to any company incorporated in Spain)
provided that the negotiation of, execution of or performance by any
party of its rights or obligations under the Restructuring Agreement
(including the proceedings taken in connection with the Scheme in the
English Courts and under Section 304 of the US Bankruptcy Code in the
United States) leading to the Financial Restructuring shall be exempted
from this Clause 27.7.
27.8 Winding-up
Any Obligor or Material Subsidiary takes any corporate action or other
steps are taken or legal proceedings are started for its winding-up,
dissolution, administration or re-organisation (whether by way of
voluntary arrangement, scheme of arrangement or otherwise) other than a
solvent liquidation or corporate reorganisation or for the appointment of
a liquidator, receiver, administrator, administrative receiver,
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conservator, custodian, trustee or similar officer of it or of all or a
material part of its revenues and assets provided that the negotiation
of, execution of or performance by any party of its rights or obligations
under the Restructuring Agreement (including the proceedings taken in
connection with the Scheme in the English Courts and under Section 304 of
the US Bankruptcy Code in the United States) leading to the Financial
Restructuring shall be exempted from this Clause 27.8.
27.9 Execution or Distress
Any execution or distress is levied against, or an encumbrancer takes
possession of, the whole or any material part of, the property,
undertaking or assets with a value of at least EUR3,000,000 of any
Obligor or Material Subsidiary or any event occurs which under the laws
of any jurisdiction has a similar or analogous effect and such claim is
not frivolous or vexatious or is not withdrawn or discharged within 14
Business Days of commencement.
27.10 Failure to Comply with Final Judgment
Any Obligor or Material Subsidiary fails to comply with or pay any sum
due from it under any final judgment or any final order made or given by
any court of competent jurisdiction which is reasonably likely to have a
Material Adverse Effect.
27.11 Governmental Intervention
By or under the authority of any government, (a) the management of any
Obligor is wholly or materially displaced or the authority of any Obligor
in the conduct of its business is wholly or materially curtailed or (b)
all or a majority of the issued shares of any Obligor or the whole or
substantially the whole of its revenues or assets is seized,
nationalised, expropriated or compulsorily acquired.
27.12 Repudiation
An Obligor repudiates any Finance Document or does or causes to be done
any act or thing evidencing an intention to repudiate any Finance
Document.
27.13 Illegality
At any time it is or becomes unlawful for an Obligor to perform or comply
with all or a material part of its obligations under any Finance Document
or any of the material obligations of an Obligor under any Finance
Document are not or cease to be legal, valid, binding and enforceable.
27.14 Material Adverse Change
Any event or circumstance occurs which is reasonably likely to have a
Material Adverse Effect.
27.15 Cessation of Business
The Borrower Group (as a whole) ceases to carry on all or substantially
all of the Business.
27.16 Security
The Security Documents cease to confer valid and enforceable Encumbrances
of the type described therein over the assets referred to therein.
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27.17 Material Contracts, Approvals, Licences, Consents etc.
(a) Any Material Contract is amended in any material respect, or
breached, suspended, cancelled, revoked, surrendered or terminated
(whether in whole or in part) which is reasonably likely to have a
Material Adverse Effect, (b) either Licence is amended in any material
respect, or breached, suspended, cancelled, revoked, succeeded or
terminated (whether in whole or in part) which is reasonably likely to
have a Material Adverse Effect or (c) any Necessary Authorisation (other
than the Licences) or other consent, licence, approval, authorisation,
registration or permit required or obtained by any Obligor for the
execution, delivery and performance of any Finance Document is not
granted or is suspended, cancelled, revoked, surrendered, terminated or
amended in any material respect so as to have a Material Adverse Effect.
27.18 Acceleration and Cancellation
Upon the occurrence of an Event of Default and at any time thereafter,
the Facility Agent may (and, if so instructed by an Instructing Group,
shall) by notice to the Original Borrower:
(a) declare that any undrawn portion of the Tranche A Facility shall be
cancelled, whereupon the same shall be cancelled and the Available
Tranche A Commitments of each Tranche A Bank shall be reduced to
zero;
(b) declare the Tranche A Advances to be immediately due and payable
(whereupon the same shall become so payable together with accrued
interest thereon and any other sums then owed by the Borrowers
hereunder) or declare all the Tranche A Advances to be due and
payable on demand of the Facility Agent; and
(c) require that the Original Borrower procures that the liabilities of
each Tranche B Bank under each Performance Bond issued by it is
promptly reduced to zero and/or provides Cash Collateral for each
such Performance Bond to the extent not already provided under this
Agreement in an amount specified by the Facility Agent as may be
necessary to ensure that such amount equals or exceeds the
liability of the relevant Tranche B Bank under such Performance
Bond, in which event the Original Borrower shall forthwith make
such payment to the Facility Agent for the benefit of each such
Tranche B Bank.
27.19 Tranche A Advances Due on Demand
If, pursuant to Clause 27.18 (Acceleration and Cancellation), the
Facility Agent declares all or any part of the Tranche A Advances to be
due and payable on demand of the Facility Agent, then, and at any time
thereafter, the Facility Agent may (and, if so instructed by an
Instructing Group, shall) by notice to the Borrowers:
(a) require repayment of all or such part of the Tranche A Advances on
such date as it may specify in such notice (whereupon the same
shall become due and payable on the date specified together with
accrued interest thereon and any other sums then owed by the
Borrowers hereunder) or withdraw its declaration with effect from
such date as it may specify; and/or
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(b) select as the duration of any Interest Period which begins whilst
such declaration remains in effect a period of six months or less.
28. GUARANTEE AND INDEMNITY
28.1 Guarantee and Indemnity
Each of the Guarantors irrevocably and unconditionally jointly and
severally:
(a) agrees to pay from time to time on demand any and every sum or sums
of money which each Borrower is at any time liable to pay to any
Finance Party under or pursuant to the Finance Documents and which
has become due and payable but has not been paid at the time such
demand is made; and
(b) agrees as a primary obligation to indemnify each Finance Party from
time to time on demand from and against any loss (other than loss
of profit) incurred by any Finance Party as a result of any of the
obligations of any Borrower under or pursuant to the Finance
Documents being or becoming void, voidable, unenforceable or
ineffective as against a Borrower for any reason whatsoever,
whether or not known to any Finance Party or any other person, the
amount of such loss being the amount which the person or persons
suffering it would otherwise have been entitled to recover from
that Borrower, subject to any restriction contained in the relevant
Guarantor Accession Memorandum as a result of the laws of the
jurisdiction of incorporation of such Guarantor.
28.2 Additional Security
The obligations of each Guarantor herein contained shall be in addition
to and independent of every other security which any Finance Party may at
any time hold in respect of any Obligor's obligations under the Finance
Documents.
28.3 Continuing Obligations
The obligations of each Guarantor herein contained shall constitute and
be continuing obligations notwithstanding any settlement of account or
other matter or thing whatsoever and shall not be considered satisfied by
any intermediate payment or satisfaction of all or any of the obligations
of the Obligors under the Finance Documents and shall continue in full
force and effect until final payment in full of all amounts owing by any
Obligor under the Finance Documents and total satisfaction of all the
Obligors' actual and contingent obligations under the Finance Documents.
28.4 Obligations not Discharged
Neither the obligations of each Guarantor herein contained nor the
rights, powers and remedies conferred in respect of each Guarantor upon
any Finance Party by the Finance Documents or by law shall be discharged,
impaired or otherwise affected by:
(a) the winding-up, dissolution, administration or re-organisation of
any Obligor or any other person or any change in its status,
function, control or ownership;
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(b) any of the obligations of any Obligor or any other person under the
Finance Documents or under any other security taken in respect of
any of its obligations under the Finance Documents being or
becoming illegal, invalid, unenforceable or ineffective in any
respect;
(c) time or other indulgence being granted or agreed to be granted to
any Obligor or any other person in respect of its obligations under
the Finance Documents or under any such other security;
(d) any amendment to, or any variation, waiver or release of, any
obligation of any Obligor or any other person under the Finance
Documents or under any such other security;
(e) any failure to take, or fully to take, any security contemplated
hereby or otherwise agreed to be taken in respect of any Obligor's
obligations under the Finance Documents;
(f) any failure to realise or fully to realise the value of, or any
release, discharge, exchange or substitution of, any security taken
in respect of any Obligor's obligations under the Finance
Documents; or
(g) any other act, event or omission which, but for this Clause 28.4,
might operate to discharge, impair or otherwise affect any of the
obligations of each Guarantor herein contained or any of the
rights, powers or remedies conferred upon any of the Finance
Parties by the Finance Documents or by law.
28.5 Settlement Conditional
Any settlement or discharge between an Obligor and any of the Finance
Parties shall be conditional upon no security or payment to any Finance
Party by an Obligor or any other person on behalf of an Obligor being
avoided or reduced by virtue of any laws relating to bankruptcy,
insolvency, liquidation or similar laws of general application and, if
any such security or payment is so avoided or reduced, each Finance Party
shall be entitled to recover the value or amount of such security or
payment from such Obligor subsequently as if such settlement or discharge
had not occurred.
28.6 Exercise of Rights
No Finance Party shall be obliged before exercising any of the rights,
powers or remedies conferred upon them in respect of any Guarantor by the
Finance Documents or by law:
(a) to make any demand of any Obligor;
(b) to take any action or obtain judgment in any court against any
Obligor;
(c) to make or file any claim or proof in a winding-up or dissolution
of any Obligor; or
(d) to enforce or seek to enforce any other security taken in respect
of any of the obligations of any Obligor under the Finance
Documents.
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28.7 Deferral of Guarantor's Rights
Each of the Guarantors agrees that, so long as any amounts are or may be
owed by an Obligor under the Finance Documents or an Obligor is under any
actual or contingent obligations under the Finance Documents, it shall
not exercise any rights which it may at any time have by reason of
performance by it of its obligations under the Finance Documents:
(a) to be indemnified by an Obligor; and/or
(b) to claim any contribution from any other guarantor of any Obligor's
obligations under the Finance Documents; and/or
(c) to take the benefit (in whole or in part and whether by way of
subrogation or otherwise) of any rights of the Finance Parties
under the Finance Documents or of any other security taken pursuant
to, or in connection with, the Finance Documents by all or any of
the Finance Parties.
28.8 Suspense Accounts
All moneys received, recovered or realised by a Bank by virtue of
Clause 28.1 (Guarantee and Indemnity) may, in that Bank's discretion, be
credited to a suspense account (bearing interest at a normal commercial
rate which shall be payable to the relevant Guarantor after discharge of
its obligations under this Agreement) and may be held in such account for
so long as such Bank thinks fit pending the application from time to time
of such moneys in or towards the payment and discharge of any amounts
owing by an Obligor to such Bank under the Finance Documents.
29. COMMITMENT COMMISSION AND FEES
29.1 Co-ordination Fee
The Original Borrower shall pay to X.X. Xxxxxx plc, within ten days of
the date specified in the Co-ordination Mandate Letter, the fees
specified in such Co-ordination Mandate Letter at the times, and in the
amounts, specified in such Co-ordination Mandate Letter.
29.2 Facility Agency Fee
The Original Borrower shall pay to the Facility Agent for its own account
the facility agency fees specified in the relevant letter from the
Facility Agent to the Original Borrower at the times, and in the amounts,
specified in such letter.
29.3 Security Agency Fees
The Original Borrower shall pay to the Security Agent for its own account
the fees specified in the relevant letter from the Security Agent to the
Original Borrower at the time, and in the amounts, specified in such
letter.
29.4 Banks' Restructuring Fees
The Original Borrower shall pay to the Facility Agent for the account of
the Banks the fees specified in the Restructuring Fee Letter at the time,
and in the amounts, specified in such letter.
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30. COSTS AND EXPENSES
30.1 Transaction Expenses
The Original Borrower shall, within twenty days of presentation of an
invoice by the Facility Agent, reimburse each of the Facility Agent, the
Security Agent and the Arranger for all costs and expenses reasonably
incurred (including notary's fees and legal and consultants fees in the
amounts previously agreed by the Original Borrower) together with any VAT
thereon incurred by it in connection with the negotiation, preparation,
syndication and execution of the Finance Documents, any other document
referred to in the Finance Documents and the completion of the
transactions therein contemplated.
30.2 Preservation and Enforcement of Rights
The Original Borrower shall, from time to time on demand of the Facility
Agent, reimburse the Finance Parties for all costs and expenses
(including legal fees) together with any VAT thereon incurred in or in
connection with the preservation and/or enforcement of any of the rights
of the Finance Parties under the Finance Documents, any Performance Bond
and any document referred to in the Finance Documents.
30.3 Stamp Taxes
The Original Borrower shall pay all stamp, registration and other taxes
to which the Finance Documents, any other document referred to in the
Finance Documents, any Performance Bond or any judgment given in
connection therewith is or at any time may be subject and shall, from
time to time on demand of the Facility Agent, indemnify the Finance
Parties against any liabilities, costs, claims and expenses resulting
from any failure to pay or any delay in paying any such tax.
30.4 Amendment Costs
If an Obligor requests any amendment, waiver or consent then the Original
Borrower shall, within five Business Days of demand by the Facility
Agent, reimburse the Facility Agent and, where appropriate, the Security
Agent for all costs and expenses reasonably incurred (including legal
fees) together with any VAT thereon incurred by such person in responding
to or complying with such request.
30.5 Banks' Liabilities for Costs
If the Original Borrower fails to perform any of its obligations under
this Clause 30, each Bank shall, in its Proportion, indemnify each of the
Facility Agent and the Arranger against any loss incurred by any of them
as a result of such failure.
31. DEFAULT INTEREST AND BREAK COSTS
31.1 Default Interest Periods
If any sum due and payable by an Obligor hereunder is not paid on the due
date thereof in accordance with Clause 34 (Payments) or if any sum due
and payable by an Obligor under any judgment of any court in connection
herewith is not paid on the date of such judgment, the period beginning
on such due date or, as the case may be, the date of such judgment and
ending on the date upon which the obligation of such Obligor to pay such
sum is discharged shall be divided into successive periods, each of which
(other
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than the first) shall start on the last day of the preceding such period
and the duration of each of which shall (except as otherwise provided in
this Clause 31) be selected by the Facility Agent (acting reasonably).
31.2 Default Interest
An Unpaid Sum shall bear interest during each Interest Period in respect
thereof at the rate per annum which is one per cent. per annum above the
percentage rate which would apply to a Tranche A Advance in the amount
and currency of such Unpaid Sum and for the same Interest Period,
provided that if such Unpaid Sum relates to a Tranche A Advance which
became due and payable on a day other than the last day of an Interest
Period relating thereto:
(a) the first Interest Period applicable to such Unpaid Sum shall be of
a duration equal to the unexpired portion of the current Interest
Period relating to that Tranche A Advance; and
(b) the percentage rate of interest applicable thereto from time to
time during such period shall be that which exceeds by one per
cent. the rate which would have been applicable to it had it not so
fallen due, save that the Margin shall be, or be deemed to be, the
relevant rate being paid at the beginning of such period specified
in the definition thereof.
31.3 Payment of Default Interest
Any interest which shall have accrued under Clause 31.2 (Default
Interest) in respect of an Unpaid Sum shall be due and payable and shall
be paid by the Obligor owing such Unpaid Sum on the last day of each
Interest Period in respect thereof or on such other dates as the Facility
Agent may specify (acting reasonably) by notice to such Obligor.
31.4 Break Costs
If any Bank or the Facility Agent on its behalf receives or recovers all
or any part of such Bank's share of a Tranche A Advance or Unpaid Sum
otherwise than on the last day of an Interest Period relating thereto,
the Original Borrower shall pay to the Facility Agent on demand for the
account of such Bank an amount equal to the amount (if any) by which (a)
the additional interest which would have been payable on the amount so
received or recovered had it been received or recovered on the last day
of that Interest Period exceeds (b) the amount of interest which in the
reasonable opinion of the Facility Agent would have been payable to the
Facility Agent on the last day of that Interest Period or Term in respect
of a deposit in the currency of the amount so received or recovered equal
to the amount so received or recovered placed by it with a prime bank in
the relevant interbank market for a period starting on the third Business
Day following the date of such receipt or recovery and ending on the last
day of that Interest Period or Term.
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32. ORIGINAL BORROWER'S INDEMNITIES
32.1 Original Borrower's Indemnity
The Original Borrower undertakes to indemnify within three Business Days
of demand:
(a) each Finance Party against any cost, claim, loss, expense
(including legal fees) or liability together with any VAT thereon,
which it may sustain or incur as a consequence of the occurrence of
any Event of Default;
(b) each Bank against any cost or loss it may suffer under Clause 30.5
(Banks' Liabilities for Costs) or Clause 37.7 (Indemnification);
and
(c) each Tranche B Bank against any cost or loss it may suffer or incur
as a result of its issuing or making arrangements to issue its
Performance Bond requested by the Original Borrower but not made by
reason of the operation of any one or more of the provisions hereof
(other than by reason of default or negligence on the part of that
Tranche B Bank),
and when making any demand for indemnification hereunder the relevant
Finance Party shall provide a reasonably detailed explanation of the
basis of such claim and a calculation of the amount claimed.
32.2 Currency Indemnity
If any sum (a "Sum") due from an Obligor under the Finance Documents, or
any order judgment given or made in relation thereto, has to be converted
from the currency (the "First Currency") in which such Sum is payable
into another currency (the "Second Currency") for the purpose of:
(a) making or filing a claim or proof against such Obligor; or
(b) obtaining or enforcing an order and/or judgment in any court or
other tribunal,
the Original Borrower shall indemnify, within three Business Days of
demand, each person to whom such Sum is due from and against any loss
suffered or incurred as a result of any discrepancy between (i) the rate
of exchange used for such purpose to convert such Sum from the First
Currency into the Second Currency and (ii) the rate or rates of exchange
available to such person at the time of receipt of such Sum.
33. CURRENCY OF ACCOUNT AND PAYMENT
The euro is the currency of account and payment for each and every sum at
any time due from an Obligor hereunder, provided that:
(a) each payment in respect of costs and expenses shall be made in the
currency in which the same were incurred; and
(b) each payment pursuant to Clause 17.2 (Tax Indemnity) or Clause 19.1
(Increased Costs) shall be made in the currency specified by the
party claiming thereunder.
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34. PAYMENTS
34.1 Payments to the Facility Agent
On each date on which this Agreement requires an amount to be paid by an
Obligor or a Bank, such Obligor or, as the case may be, such Bank shall
make the same available to the Facility Agent for value on the due date
at such time and in such funds (customary at the time for settlement of
transactions in the relevant currency in the place of payment) and to
such account with such bank (which shall be in a principal financial
centre in a Participating Member State or London) as the Facility Agent
shall specify from time to time.
34.2 Payments by the Facility Agent
(a) Save as otherwise provided herein, each payment received by the
Facility Agent pursuant to Clause 34.1 (Payments to the Facility
Agent) shall:
(i) in the case of a payment received for the account of a
Borrower, be made available by the Facility Agent to such
Borrower by application:
(A) first, in or towards payment (on the date, and in the
currency and funds, of receipt) of any amount then due
from such Borrower hereunder to the person from whom
the amount was so received or in or towards the
purchase of any amount of any currency to be so
applied; and
(B) secondly, in or towards payment (on the date, and in
the currency and funds, of receipt) to such account
with such bank in the principal financial centre of
the country of the currency of such payment (or, in
the relation to the euro in the financial centre in a
Participating Member State) as such Borrower shall
have previously notified to the Facility Agent for
this purpose; and
(ii) in the case of any other payment, be made available by the
Facility Agent to the person entitled to receive the payment
in accordance with this Agreement (in the case of a Bank,
for the account of its Facility Office) for value the same
day by transfer to the account of the person with a bank in
the principal financial centre of the country of the
currency of such payment (or, in relation to the euro, in
the financial centre in a Participating Member State) as
that person has previously notified to the Facility Agent.
(b) A payment will be deemed to have been made by the Facility Agent on
the date on which it is required to be made under this Agreement if
the Facility Agent has, on or before that date, taken steps to make
that payment in accordance with the regulations or operating
procedures of the clearing or settlement system used by the
Facility Agent in order to make the payment.
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34.3 Payments by the Facility Agent to the Banks
Any amount payable by the Facility Agent to the Banks under this
Agreement in the currency of a Participating Member State shall be paid
in the euro unit.
34.4 No Set-off
All payments required to be made by an Obligor hereunder shall be
calculated without reference to any set-off or counterclaim and shall be
made free and clear of and without any deduction for or on account of any
set-off or counterclaim.
34.5 Clawback
Where a sum is to be paid hereunder to the Facility Agent for the account
of another person, the Facility Agent shall not be obliged to make the
same available to that other person or to enter into or perform any
exchange contract in connection therewith until it has been able to
establish to its satisfaction that it has actually received such sum, but
if it does so and it proves to be the case that it had not actually
received such sum, then the person to whom such sum or the proceeds of
such exchange contract was so made available shall on request refund the
same to the Facility Agent together with an amount sufficient to
indemnify the Facility Agent against any cost or loss it may have
suffered or incurred by reason of its having paid out such sum or the
proceeds of such exchange contract prior to its having received such sum.
34.6 Partial Payments
If and whenever a payment is made by an Obligor hereunder and the
Facility Agent receives an amount less than the due amount of such
payment the Facility Agent may apply the amount received towards the
obligations of the Obligors under this Agreement in the following order:
(a) first, in or towards payment of any unpaid costs and expenses of
each of the Facility Agent, the Security Agent and the Arranger;
(b) secondly, in or towards payment pro rata of any accrued interest or
Performance Bond Commission due but unpaid;
(c) thirdly, in or towards payment pro rata of any principal due but
unpaid or any requirement to provide cash collateral hereunder, or
of any amounts demanded by or on behalf of the Banks pursuant to
Clause 9.1 (Demands under Performance Bonds) or Clause 9.2
(Original Borrower's Indemnity to Tranche B Banks); and
(d) fourthly, in or towards payment pro rata of any other sum due but
unpaid.
34.7 Variation of Partial Payments
The order of payments set out in Clause 34.6 (Partial Payments) shall
override any appropriation made by the Obligor to which the partial
payment relates but the order set out in sub-clauses 34.6(b), 34.6(c) and
34.6(d) of Clause 34.6 (Partial Payments) may be varied if agreed by all
the Banks.
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35. SET-OFF
35.1 Contractual Set-off
Each Obligor authorises each Bank to apply any credit balance to which
such Obligor is entitled on any account of such Obligor with such Bank in
satisfaction of any sum due and payable from such Obligor to such Bank
hereunder but unpaid. For this purpose, each Bank is authorised to
purchase with the moneys standing to the credit of any such account such
other currencies as may be necessary to effect such application.
35.2 Set-off not Mandatory
No Bank shall be obliged to exercise any right given to it by Clause 35.1
(Contractual Set-off).
36. SHARING
36.1 Payments to Banks
If a Bank (a "Recovering Bank") applies any receipt or recovery from an
Obligor to a payment due under this Agreement and such amount is received
or recovered other than in accordance with Clause 34 (Payments), then
such Recovering Bank shall:
(a) notify the Facility Agent of such receipt or recovery; and
(b) at the request of the Facility Agent, promptly pay to the Facility
Agent an amount (the "Sharing Payment") equal to such receipt or
recovery less any amount which the Facility Agent determines may be
retained by such Recovering Bank as its share of any payment to be
made in accordance with Clause 34.6 (Partial Payments).
36.2 Redistribution of Payments
The Facility Agent shall treat the Sharing Payment as if it had been paid
by the relevant Obligor and distribute it between the Finance Parties
(other than the Recovering Bank) in accordance with Clause 34.6 (Partial
Payments).
36.3 Recovering Bank's Rights
The Recovering Bank will be subrogated into the rights of the parties
which have shared in a redistribution pursuant to Clause 36.2
(Redistribution of Payments) in respect of the Sharing Payment (and the
relevant Obligor shall be liable to the Recovering Bank in an amount
equal to the Sharing Payment).
36.4 Repayable Recoveries
If any part of the Sharing Payment received or recovered by a Recovering
Bank becomes repayable and is repaid by such Recovering Bank, then:
(a) each party which has received a share of such Sharing Payment
pursuant to Clause 36.2 (Redistribution of Payments) shall, upon
request of the Facility Agent, pay to the Facility Agent for the
account of such Recovering Bank an amount equal to its share of
such Sharing Payment (together with an amount as is necessary to
reimburse the Recovering Bank for its proportion of any
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interest on the Sharing Payment which that Recovering Bank is
required to pay); and
(b) such Recovering Bank's rights of subrogation in respect of any
reimbursement shall be cancelled and the relevant Obligor will be
liable to the reimbursing party for the amount so reimbursed.
36.5 Exception
This Clause 36 shall not apply if the Recovering Bank would not, after
making any payment pursuant hereto, have a valid and enforceable claim
against the relevant Obligor.
36.6 Recoveries Through Legal Proceedings
If any Bank intends to commence any action in any court it shall give
prior notice to the Facility Agent and the other Banks. If any Bank shall
commence any action in any court to enforce its rights hereunder and, as
a result thereof or in connection therewith, receives any amount, then
such Bank shall not be required to share any portion of such amount with
any Bank which has the legal right to, but does not, join in such action
or commence and diligently prosecute a separate action to enforce its
rights in another court.
37. THE AGENTS, THE ARRANGER AND THE BANKS
37.1 Appointment of the Agents
Each of the Arranger and the Banks hereby appoints the Facility Agent to
act as its facility agent and the Security Agent to act as its security
agent in connection herewith and authorises each Agent to exercise such
rights, powers, authorities and discretions as are specifically delegated
to such Agent by the terms hereof together with all such rights, powers,
authorities and discretions as are reasonably incidental thereto.
37.2 Agents' Discretions
(a) Each Agent may:
(i) assume, unless it has, in its capacity as Facility Agent or,
as the case may be, Security Agent for the Banks, received
notice to the contrary from any other party hereto, that (A)
any representation made or deemed to be made by an Obligor
in connection herewith is true, (B) no Event of Default or
Potential Event of Default has occurred, (C) no Obligor is
in breach of or default under its obligations hereunder and
(D) any right, power, authority or discretion vested herein
upon an Instructing Group, the Banks or any other person or
group of persons has not been exercised;
(ii) engage and pay for the advice or services of, and rely and
act on the opinion or advice (howsoever given) of, or any
information obtained from, any lawyers, accountants,
surveyors or other experts whose advice or services may to
it seem necessary, expedient or desirable;
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(iii) rely as to any matters of fact which might reasonably be
expected to be within the knowledge of an Obligor upon a
certificate signed by or on behalf of such Obligor;
(iv) rely upon any communication or document believed by it to be
genuine;
(v) refrain from exercising any right, power or discretion
vested in it as Facility Agent or as the case may be,
Security Agent under any of the Finance Documents unless and
until instructed by an Instructing Group as to whether or
not such right, power or discretion is to be exercised and,
if it is to be exercised, as to the manner in which it
should be exercised; and
(vi) refrain from acting in accordance with any instructions of
an Instructing Group to begin any legal action or proceeding
arising out of or in connection with this Agreement or any
other Finance Document until it shall have received such
security as it may require (whether by way of payment in
advance or otherwise) for all costs, claims, losses,
expenses (including legal fees) and liabilities together
with any VAT thereon which it will or may expend or incur in
complying with such instructions.
(b) The Facility Agent may:
(i) assume that (i) the Facility Office of each Bank is that
notified to it by such Bank in writing and (ii) the
information provided by each Bank pursuant to Clause 44
(Notices), and by each Tranche A Bank pursuant to Clause
37.16 (Banks' Mandatory Cost Details) and Schedule 12
(Mandatory Costs) is true and correct in all respects until
it has received from such Bank notice of a change to the
Facility Office or any such information and act upon any
such notice until the same is superseded by a further
notice; and
(ii) assume (unless it has specific notice to the contrary) that
any notice or request made by the Original Borrower is made
on behalf of all the Obligors.
(c) The Security Agent may:
(i) do any act or thing in the exercise of any of its duties
under the Finance Documents which in its absolute discretion
(in the absence of any instructions of an Instructing Group
as to the doing of such act or thing) it deems advisable for
the protection and benefit of all the Banks;
(ii) upon a disposal of any property the subject of any of the
Security Documents by any receiver, or by any of the
Obligors where the Security Agent has consented to the
disposal, to any third party, release
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such property from the security created pursuant to such
Security Documents;
(iii) perform all of its obligations under the Finance Documents,
notwithstanding anything contained in this Agreement;
(iv) subject to the proviso hereto and unless the express
provisions of any such Security Document provide otherwise,
if authorised by an Instructing Group, amend or vary the
terms of or waive breaches of or defaults under, or
otherwise excuse performance of any provision of, or grant
consents under, this Agreement or any of the Security
Documents, any such amendment, variation, waiver or consent
so authorised to be binding on all the parties hereto and
the Security Agent to be under no liability whatsoever in
respect thereof provided that nothing in this sub-clause
(c)(iv) shall be taken to authorise, except with the prior
consent of all the Banks:
(A) (without prejudice to sub-clause (c)(ii)) any
amendment of any Security Document which would affect
the nature or the scope of the property the subject of
any security granted pursuant to the Security
Documents; or
(B) any change in this sub-clause (c);
(v) place any of the Finance Documents and any other
instruments, documents or deeds delivered to it pursuant to
or in connection with any of the Finance Documents for the
time being in its possession in any safe deposit, safe or
receptacle selected by it or with any bank, any company
whose business includes undertaking the safe custody of
documents or any firm of lawyers of good repute and shall
not be responsible for any loss thereby incurred;
(vi) whenever it thinks fit, delegate by power of attorney or
otherwise to any person or persons, or fluctuating body of
persons, all or any of the rights, powers, authorities and
discretions vested in it by any of the Finance Documents and
such delegation may be made upon such terms and subject to
such conditions (including the power to sub-delegate) and
subject to such regulations as it may think fit and it shall
not be bound to supervise, or be in any way responsible for
any loss incurred by reason of any misconduct or default on
the part of, any such delegate or sub-delegate;
(vii) notwithstanding anything else herein contained, refrain from
doing anything which would or might in its opinion be
contrary to any relevant law of any jurisdiction or any
relevant directive or regulation of any agency of any state
or which would or might otherwise render it liable to
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any person, and may do anything which is, in its opinion,
necessary to comply with any such law, directive or
regulation;
(viii) and every attorney, agent or other person appointed by it
under any of the Finance Documents may indemnify itself or
himself out of the property secured pursuant to the Security
Documents against all claims, demands, liabilities,
proceedings, costs, fees, charges, losses and expenses
incurred by any of them in relation to or arising out of the
taking or holding of any of the security created pursuant to
the Security Documents, the exercise or purported exercise
of any of the rights, powers and discretions vested in any
of them or any other matter or thing done or omitted to be
done in connection with any of the Finance Documents or
pursuant to any law or regulation (otherwise than as a
result of its gross negligence or wilful misconduct);
(ix) accept without enquiry, requisition or objection such right
and title as each of the Obligors may have to the property
belonging to it (or any part thereof) which is the subject
matter of any of the security created pursuant to the
Security Documents and shall not be bound or concerned to
investigate or make any enquiry into the right or title of
such Obligor to such property (or any part thereof) or,
without prejudice to the foregoing, to require such Obligor
to remedy any defect in its right or title as aforesaid; and
(x) for all the purposes of this Agreement, be entitled to deal
with each of the Banks by dealing exclusively with the
Facility Agent and shall have no obligation (but shall be
entitled) to deal directly with any Bank. Conversely, each
Bank shall deal with the Security Agent exclusively through
the Facility Agent and shall not deal directly with the
Security Agent.
37.3 Agent's Obligations
(a) The Facility Agent shall:
(i) promptly inform each Bank of the contents of any notice or
document received by it in its capacity as Facility Agent
from an Obligor hereunder;
(ii) promptly notify each Bank of the occurrence of any Event of
Default or any default by an Obligor in the due performance
of or compliance with its obligations under this Agreement
of which the Facility Agent has notice from any other party
hereto;
(iii) save as otherwise provided herein, act as agent hereunder in
accordance with any instructions given to it by an
Instructing Group, which instructions shall be binding on
the Arranger and the Banks;
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(iv) promptly, upon request by any Bank, exercise its rights
under Clause 23.8 (Other Financial Information); and
(v) if so instructed by an Instructing Group, refrain from
exercising any right, power or discretion vested in it as
agent hereunder.
The Facility Agent's duties under this Agreement are solely
mechanical and administrative in nature.
(b) Security Agent's Obligations
The Security Agent shall:
(i) promptly inform the Facility Agent of the contents of any
notice or document received by it, in its capacity as
security agent from any of the Obligors under any of the
Finance Documents;
(ii) save as otherwise provided herein, act as security agent
under the Finance Documents in accordance with any
instructions given to it by an Instructing Group, which
instructions shall be binding on all of the Banks;
(iii) if so instructed by an Instructing Group, refrain from
exercising any right, power or discretion vested in it as
security agent under the Finance Documents; and
(iv) promptly notify the Facility Agent of the occurrence of any
Event of Default or any default by an Obligor in the
performance of or compliance with its obligations under any
Finance Document of which the Security Agent has received
notice from any other party hereto.
37.4 Agents' Excluded Obligations
Notwithstanding anything to the contrary expressed or implied herein,
none of the Facility Agent, or as the case may be, the Security Agent,
nor the Arranger shall:
(a) be bound to enquire as to (i) whether or not any representation
made or deemed to be made by an Obligor in connection herewith is
true, (ii) the occurrence or otherwise of any Event of Default or
Potential Event of Default, (iii) the performance by an Obligor of
its obligations hereunder or (iv) any breach of or default by an
Obligor of or under its obligations hereunder;
(b) be bound to account to any Bank for any sum or the profit element
of any sum received by it for its own account whether in connection
with the Finance Documents or otherwise;
(c) be bound to disclose to any other person any information relating
to any member of the Group if (i) such person, on providing such
information, expressly stated to the Facility Agent or, as the case
may be, the relevant Security Agent or the Arranger, that such
information was confidential or (ii)
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such disclosure would or might in its opinion constitute a breach
of any law or be otherwise actionable at the suit of any person;
(d) be under any obligations other than those for which express
provision is made herein; or
(e) be or be deemed to be a fiduciary for any other party hereto.
37.5 Security Agent's Excluded Obligations
The Security Agent shall:
(a) without prejudice to the provisions of any of the Finance
Documents, not be under any obligation to insure any property or to
require any other person to maintain any such insurance and shall
not be responsible for any loss which may be suffered by any person
as a result of the lack of or inadequacy or insufficiency of any
such insurance. Where the Security Agent is named on any insurance
policy as an insured party, it shall not be responsible for any
loss which may be suffered by reason of, directly or indirectly,
its failure to notify the insurers of any material fact relating to
the risk assumed by such insurers or any other information of any
kind, unless any Finance Party shall have requested it to do so in
writing and the Security Agent shall have failed to do so within 14
days thereafter; and
(b) not be liable for any failure:
(i) to require the deposit with it of any deed or document
certifying, representing or constituting the title of any of
the Obligors to any of the property mortgaged, charged,
assigned or otherwise encumbered by or pursuant to any of
the Security Documents;
(ii) to obtain any licence, consent or other authority for the
execution, delivery, validity, legality, adequacy,
performance, enforceability or admissibility in evidence of
any of the Finance Documents;
(iii) to register or notify any of the foregoing in accordance
with the provisions of any of the documents of title of any
of the Obligors;
(iv) to effect or procure registration of or otherwise protect
any of the security created pursuant to the Security
Documents by registering the same under any applicable
registration laws in any territory;
(v) to take, or to require any of the Obligors to take, any
steps to render any of the security created pursuant to the
Security Documents effective or to secure the creation of
any ancillary charge under the laws of any jurisdiction; or
(vi) to require any further assurances in relation to any of the
Security Documents.
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37.6 Default Procedure
(a) If an Event of Default or Potential Event of Default (for the
purposes of this Clause 37.6, a "Default") occurs, the Facility
Agent and the Security Agent shall, as soon as reasonably
practicable after becoming aware of the same, notify the other
parties hereto of such occurrence.
(b) The Security Agent shall use reasonable endeavours to comply with
the instructions of an Instructing Group as to the exercise or
enforcement by it, following a Default, of any of the rights of the
Banks and the Security Agent arising from the Finance Documents,
upon and subject to the terms and conditions hereinafter appearing.
(c) The Security Agent shall at any time after the occurrence of a
Default be entitled (but not obliged) to request instructions from
the Banks as to whether it should endeavour to enforce any of the
rights of the Banks and the Security Agent arising from the Finance
Documents and/or as to the manner in which it should endeavour to
do so, and to convene a meeting of the Banks to discuss such
matters.
(d) The Security Agent will, on the written request of an Instructing
Group made after the occurrence of a Default, convene a meeting of
all the Banks but shall have no obligation to ensure that any Bank
attends such a meeting.
37.7 Indemnification
Each Bank shall, in its Proportion, from time to time on demand by the
Facility Agent or the Security Agent as the case may be, indemnify the
Facility Agent or the Security Agent as the case may be, against any and
all costs, claims, losses, expenses (including legal fees) and
liabilities together with any VAT thereon which the Facility Agent or the
Security Agent as the case may be, may incur, otherwise than by reason of
its own gross negligence or wilful misconduct, in acting in its capacity
as facility agent or, as the case may be, security agent hereunder (other
than any which have been reimbursed by the Original Borrower pursuant to
Clause 32.1 (Original Borrower's Indemnity)).
37.8 Exclusion of Liabilities
None of the Facility Agent or, as the case may be, the Security Agent or
the Arranger accepts any responsibility:
(a) for the adequacy, accuracy and/or completeness of the Bank Material
or any other information supplied by the Facility Agent or, as the
case may be, the Security Agent or the Arranger, by an Obligor or
by any other person in connection herewith or any other agreement,
arrangement or document entered into, made or executed in
anticipation of, pursuant to or in connection with any of the
Finance Documents;
(b) for the legality, validity, effectiveness, adequacy or
enforceability of the Finance Documents or any other agreement,
arrangement or document entered
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into, made or executed in anticipation of, pursuant to or in
connection with this Agreement; or
(c) for the exercise of, or the failure to exercise, any judgement,
discretion or power given to any of them by or in connection with
the Finance Documents or any other agreement, arrangement or
document entered into, made or executed in anticipation of,
pursuant to or in connection with this Agreement.
Accordingly, none of the Facility Agent or, the Security Agent as the
case may be, and the Arranger shall be under any liability in respect of
such matters, save in the case of gross negligence or wilful misconduct.
37.9 No Actions
Each of the Banks agrees that it will not assert or seek to assert
against any director, officer or employee of the Facility Agent or, the
Security Agent, as the case may be, or any Arranger any claim it might
have against any of them in respect of the matters referred to in
Clause 37.8 (Exclusion of Liabilities).
37.10 Business with the Group
The Facility Agent and the Arranger may accept deposits from, lend money
to and generally engage in any kind of banking or other business with any
Obligor, or, in the case of the Facility Agent and the Arranger, with any
member of the Group.
37.11 Resignation
Each Agent may (after consultation with the Original Borrower) resign its
appointment hereunder at any time without assigning any reason therefore
by giving not less than thirty days prior notice to that effect to each
of the other parties hereto, provided that no such resignation shall be
effective until a successor for such Agent is appointed in accordance
with the succeeding provisions of this Clause 37.
37.12 Removal of an Agent
An Instructing Group may (after consultation with the Original Borrower)
remove the Facility Agent from its role as facility agent hereunder or
the Security Agent from its role as security agent hereunder by giving
notice to that effect to each of the other parties hereto. Such removal
shall take effect only when a successor to the Facility Agent or, as the
case may be, the Security Agent is appointed in accordance with the terms
hereof.
37.13 Successor Agents
If the Facility Agent or, as the case may be, the Security Agent, gives
notice of its resignation pursuant to Clause 37.11 (Resignation) or the
Facility Agent or, as the case may be, the Security Agent is removed
pursuant to Clause 37.12 (Removal of an Agent) then any reputable and
experienced bank or other financial institution may be appointed (after
consultation with the Original Borrower) as a successor to the Facility
Agent or, as the case may be, the Security Agent by an Instructing Group
during the period of such notice but, if no such successor is so
appointed, the Facility Agent or, as the case may be, the Security Agent
(after consultation with the Original Borrower) may appoint such a
successor itself.
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37.14 Rights and Obligations
If a successor to the Facility Agent or the Security Agent is appointed
under the provisions of Clause 37.13 (Successor Agents), then (a) the
retiring or departing Facility Agent or, as the case may be, Security
Agent shall be discharged from any further obligation hereunder but shall
remain entitled to the benefit of the provisions of this Clause 37 and
(b) its successor and each of the other parties hereto shall have the
same rights and obligations amongst themselves as they would have had if
such successor had been a party hereto.
37.15 Own Responsibility
It is understood and agreed by each Bank that at all times it has itself
been, and will continue to be, solely responsible for making its own
independent appraisal of and investigation into all risks arising under
or in connection with the Finance Documents including, but not limited
to:
(a) the financial condition, creditworthiness, condition, affairs,
status and nature of each member of the Group;
(b) the legality, validity, effectiveness, adequacy and enforceability
of this Agreement and any other agreement, arrangement or document
entered into, made or executed in anticipation of, pursuant to or
in connection with this Agreement;
(c) whether such Bank has recourse, and the nature and extent of that
recourse, against an Obligor or any other person or any of their
respective assets under or in connection with this Agreement, the
transactions herein contemplated or any other agreement,
arrangement or document entered into, made or executed in
anticipation of, pursuant to or in connection with this Agreement;
(d) the adequacy, accuracy and/or completeness of the Bank Material and
any other information provided by the Facility Agent or by the
Security Agent, as the case may be, or the Arranger, or an Obligor,
or by any other person in connection with the Finance Documents,
the transactions contemplated herein or any other agreement,
arrangement or document entered into, made or executed in
anticipation of, pursuant to or in connection with this Agreement;
(e) the adequacy, accuracy or completeness of any communication
delivered to it under any of the Finance Documents, any legal or
other opinions, reports, valuations, certificates, appraisals or
other documents delivered or made or required to be delivered or
made at any time in connection with any of the Finance Documents,
any security to be constituted thereby or any other report or other
document, statement or information circulated, delivered or made,
whether orally or otherwise and whether before, on or after the
date of this Agreement;
(f) the due execution, delivery, validity, legality, adequacy,
suitability, performance, enforceability or admissibility in
evidence of any of the Finance
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Documents or any other document referred to in sub-clause (e) or of
any guarantee, indemnity or security given or created thereby or
any obligations imposed thereby or assumed thereunder; and
(g) the ownership, value or sufficiency of any property the subject of
any security created pursuant to the Security Documents, the
priority of any of the security created pursuant to the Security
Documents, the right or title of any person in or to any property
comprised therein or the existence of any encumbrance affecting the
same,
Accordingly, each Bank acknowledges to the Facility Agent and the
Arranger that it has not relied on and will not hereafter rely on the
Facility Agent or the Arranger in respect of any of these matters.
37.16 Banks' Mandatory Cost Details
Each Bank will supply the Facility Agent with such information and in
such detail as the Facility Agent may require in order to calculate the
Mandatory Cost Rate in accordance with Schedule 12 (Mandatory Costs).
37.17 Agency Division Separate
In acting as agent hereunder for the Banks, each Agent shall be regarded
as acting through its agency division which shall be treated as a
separate entity from any other of its divisions or departments and,
notwithstanding the foregoing provisions of this Clause 37, any
information received by some other division or department of any Agent
may be treated as confidential and shall not be regarded as having been
given to the Agent's agency division.
38. ASSIGNMENTS AND TRANSFERS
38.1 Binding Agreement
The Finance Documents shall be binding upon and enure to the benefit of
each party hereto and its or any subsequent successors and Transferees.
38.2 No Assignments and Transfers by the Obligors
No Obligor shall be entitled to assign or transfer all or any of its
rights, benefits and obligations under the Finance Documents.
38.3 Assignments and Transfers by Banks
Any Bank may, at any time, assign all or any of its rights and benefits
under the Finance Documents in accordance with Clause 38.4 (Assignments
by Banks) or transfer in accordance with Clause 38.5 (Transfers by Banks)
all or any of its rights, benefits and obligations under the Finance
Documents to a bank or financial institution provided that:
(a) in relation to the Tranche A Facility:
(i) such assignment or transfer will be in a minimum amount of
EUR500,000;
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(ii) such assignment or transfer will not, as a consequence of
laws or regulations in force at that time, result in any
amount being required to be prepaid under Clause 20
(Illegality); and
(iii) the proposed assignee(s) or transferee(s) would not be
entitled to receive any greater payment under Clause 17
(Taxes) or Clause 19 (Increased Costs) than the assigning or
transferring Bank would have been entitled to receive as of
such date under such Clauses with respect to the rights,
benefits and/or obligations assigned or transferred (unless
such assigning or transferring Bank has in respect of the
rights and benefits to be assigned or rights, benefits and
obligations to be transferred previously complied with a
request made pursuant to Clause 21 (Mitigation); and
(b) in relation to the Tranche B Facility:
(i) such Bank shall comply with any transfer or substitution
requirements applicable to a Performance Bond;
(ii) no such assignment or transfer may be made without the
consent of the Beneficiary; and
(iii) such assignment or transfer will be a pro rata assignment or
transfer of each Performance Bond issued by such Tranche B
Bank and will be in a minimum amount of EUR3,000,000,
and no Obligor shall be obliged to pay any amount hereunder which it
would not have been obliged to pay as a result of any assignment or
transfer by any Bank which does not comply with the requirements of this
Clause 38.3.
38.4 Assignments by Banks
If any Bank assigns all or any of its rights and benefits under the
Finance Documents in accordance with Clause 38.3 (Assignments and
Transfers by Banks), then, unless and until the assignee has delivered a
notice to the Facility Agent and the Security Agent confirming in favour
of the Facility Agent, the Security Agent, the Arranger, the other Banks
and the Obligors that it shall be under the same obligations towards each
of them as it would have been under if it had been an original party
hereto as a Bank (whereupon such assignee shall become a party hereto as
a "Bank"), the Facility Agent, the Security Agent, the Arranger, the
other Banks and the Obligors shall not be obliged to recognise such
assignee as having the rights against each of them which it would have
had if it had been such a party hereto.
38.5 Transfers by Banks
If any Bank wishes to transfer all or any of its rights, benefits and/or
obligations under the Finance Documents as contemplated in Clause 38.3
(Assignments and Transfers by Banks), then such transfer shall be
effected by the delivery to the Facility Agent and the Security Agent of
a duly completed Transfer Certificate executed by such Bank and the
relevant Transferee in which event, on the later of the Transfer Date
specified in such Transfer Certificate and the fifth Business Day after
(or such earlier Business Day
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endorsed by the Facility Agent on such Transfer Certificate falling on or
after) the date of delivery of such Transfer Certificate to the Facility
Agent:
(a) to the extent that in such Transfer Certificate the Bank party
thereto seeks to transfer by novation its rights, benefits and
obligations under the Finance Documents, each of the Obligors and
such Bank shall be released from further obligations towards one
another under the Finance Documents and their respective rights
against one another shall be cancelled (such rights and obligations
being referred to in this Clause 38.5 as "discharged rights and
obligations");
(b) each of the Obligors and the Transferee party thereto shall assume
obligations towards one another and/or acquire rights against one
another which differ from such discharged rights and obligations
only insofar as such Obligor and such Transferee have assumed
and/or acquired the same in place of such Obligor and such Bank;
(c) the Facility Agent, the Security Agent, the Arrangers, such
Transferee and the other Banks shall acquire the same rights and
benefits and assume the same obligations between themselves as they
would have acquired and assumed had such Transferee been an
original party hereto as a Bank with the rights, benefits and/or
obligations acquired or assumed by it as a result of such transfer
and to that extent the Facility Agent, the Security Agent, the
Arrangers and the relevant Bank shall each be released from further
obligations to each other under the Finance Documents; and
(d) such Transferee shall become a party hereto as a "Bank".
38.6 Assignment and Transfer Fees
On the date upon which an assignment takes effect pursuant to Clause 38.4
(Assignments by Banks) or a transfer takes effect pursuant to Clause 38.5
(Transfers by Banks) the relevant assignee or Transferee shall pay to the
Facility Agent for its own account a fee of EUR1,250.
38.7 Disclosure of Information
Any Bank may disclose to any person:
(a) to (or through) whom such Bank assigns or transfers (or may
potentially assign or transfer) all or any of its rights, benefits
and obligations hereunder;
(b) with (or through) whom such Bank enters into (or may potentially
enter into) any sub-participation in relation to, or any other
transaction under which payments are to be made by reference to,
this Agreement or any Obligor; or
(c) to whom information may be required to be disclosed by any
applicable law,
such information about any Obligor or the Group and this Agreement as
such Bank shall consider appropriate (acting reasonably) provided that,
in relation to sub-clauses
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(a) and (b), the person to whom such information is to be given has
entered into a Confidentiality Undertaking.
38.8 Notification
The Facility Agent shall within seven days of receiving a Transfer
Certificate or within seven days of receiving any notice of assignment
notify the Original Borrower of any assignment or transfer completed
pursuant to this Clause 38.
39. ADDITIONAL BORROWERS
39.1 Request for Additional Borrower
The Original Borrower may request that any of its wholly-owned, Spanish
subsidiaries become an Additional Borrower by delivering to the Facility
Agent a Borrower Accession Memorandum duly executed by the Original
Borrower and such subsidiary, together with the documents and other
evidence listed in Schedule 10 (Additional Conditions Precedent) in
relation to such subsidiary.
39.2 Borrower Conditions Precedent
A company, in respect of which the Original Borrower has delivered a
Borrower Accession Memorandum to the Facility Agent, shall become an
Additional Borrower and assume all the rights, benefits and obligations
of a Borrower as if it had been an Original Borrower on the date on which
the Facility Agent notifies the Original Borrower that:
(a) an Instructing Group accepts the Original Borrower's request in
respect of such subsidiary; and
(b) the Facility Agent has received, in form and substance satisfactory
to it (acting reasonably), all documents and other evidence listed
in Schedule 10 (Additional Conditions Precedent) in relation to
such subsidiary,
unless on such date an Event of Default is continuing or would occur as a
result of such subsidiary becoming an Additional Borrower.
39.3 Resignation of a Borrower
If at any time a Borrower (other than the Original Borrower) is under no
actual or contingent obligation as a Borrower under or pursuant to any
Finance Document, the Original Borrower may request that such Borrower
shall cease to be a Borrower by delivering to the Facility Agent a
Resignation Notice. Such Resignation Notice shall be accepted by the
Facility Agent on the date on which it notifies (which it shall do
promptly) the Original Borrower that it is satisfied (acting reasonably)
that such Borrower is under no such actual or contingent obligation under
or pursuant to any Finance Document and such Borrower shall immediately
cease to be a Borrower and shall have no further rights, benefits or
obligations as a Borrower under the Finance Documents save for accrued
claims.
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40. ADDITIONAL GUARANTORS
40.1 Request for Additional Guarantor
The Original Borrower may request that any of its subsidiaries become an
Additional Guarantor by delivering to the Facility Agent a Guarantor
Accession Memorandum duly executed by the Original Borrower and such
subsidiary, together with the documents and other evidence listed in
Schedule 10 (Additional Conditions Precedent) in relation to such
subsidiary.
40.2 Guarantor Conditions Precedent
A company, in respect of which the Original Borrower has delivered a
Guarantor Accession Memorandum to the Facility Agent, shall became an
Additional Guarantor and assume all the rights, benefits and obligations
of a Guarantor as if it had been an original party hereto as a Guarantor
on the date on which the Facility Agent notifies the Original Borrower
that it has received, in form and substance satisfactory to it (acting
reasonably), all the documents and other evidence listed in Schedule 10
(Additional Conditions Precedent).
40.3 Resignation of a Guarantor
The Original Borrower may request that a Guarantor (other than the
Original Borrower) ceases to be a Guarantor by delivering to the Facility
Agent a Resignation Notice. The Facility Agent shall accept such
Resignation Notice and notify the Original Borrower of its acceptance
(whereupon such Guarantor shall immediately cease to be a Guarantor and
shall have no further rights, benefits or obligations under the Finance
Documents save for those which arose prior to such date) if an
Instructing Group has consented to such request, unless on such date an
Event of Default or Potential Event of Default is continuing or would
occur as a result of such cessation, and shall instruct the Security
Agent to take all steps necessary for the release of any security given
by such Guarantor to the Security Agent on behalf of the Banks.
41. REPLACEMENT TRANCHE B BANKS
41.1 Request for Replacement Tranche B Bank
The Original Borrower together with any Tranche B Bank which is a party
to this Agreement as at the date hereof (an "Existing Tranche B Bank")
may request that a bank or financial institution (which has so agreed)
become a Tranche B Bank (a "Replacement Tranche B Bank") as a replacement
for such Existing Tranche B Bank hereunder by delivering a Tranche B Bank
Accession Memorandum duly executed by the Original Borrower, the relevant
Existing Tranche B Bank and the relevant Replacement Tranche B Bank and a
Tranche B Resignation Request duly executed by the Original Borrower and
the relevant Existing Tranche B Bank to the Facility Agent.
41.2 Accession of Replacement Tranche B Bank
Subject to Clause 41.1 (Request for Replacement Tranche B Bank) and
Clause 41.3 (Release of Existing Tranche B Bank) upon receipt of a duly
executed Tranche B Bank Accession Memorandum and a duly executed Tranche
B Resignation Request by the Facility Agent, such Replacement Tranche B
Bank shall become a party hereto as a
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Tranche B Bank with all the rights, benefits and obligations of a Tranche
B Bank hereunder.
41.3 Release of Existing Tranche B Bank
Subject to Clause 41.1 (Request for Replacement Tranche B Bank) and
Clause 41.2 (Accession of Replacement Tranche B Bank) upon the release by
the Beneficiary of an Existing Tranche B Bank and the notification of the
same to the Facility Agent, such Existing Tranche B Bank shall be
discharged from all of its obligations hereunder and have all of its
rights hereunder cancelled provided that such discharge and cancellation
shall be conditional on the Beneficiary having accepted the issue to it
of a Replacement Performance Bond by the Replacement Tranche B Bank.
41.4 Co-ordination and Consultation
The Original Borrower, the Existing Tranche B Bank and the Replacement
Tranche B Bank will co-operate and co-ordinate to facilitate the matters
contemplated by this Clause 41 including any approach to, or discussions
with, the Beneficiary.
42. CALCULATIONS AND EVIDENCE OF DEBT
42.1 Basis of Accrual
Any interest, commission, Performance Bond Commission or fee accruing
hereunder will accrue from day to day and is calculated on the basis of
actual number of days elapsed and a year of 360 days or, in any case
where market practice differs, in accordance with market practice.
42.2 Quotations
If on any occasion a Reference Bank or Bank fails to supply the Facility
Agent with a quotation required of it under the foregoing provisions of
this Agreement, the rate for which such quotation was required shall be
determined from those quotations which are supplied to the Facility
Agent, provided that, in relation to determining EURIBOR, this Clause
42.2 shall not apply if only one Reference Bank supplies a quotation.
42.3 Evidence of Debt
Each Bank shall maintain in accordance with its usual practice accounts
evidencing the amounts from time to time lent by and owing to it
hereunder.
42.4 Control Accounts
The Facility Agent shall maintain on its books a control account or
accounts in which shall be recorded (a) the amount of any Tranche A
Advance or any Unpaid Sum (or, as applicable, Performance Bond) and each
Bank's share therein, (b) the amount (as applicable) of all principal,
interest and other sums due or to become due from an Obligor and each
Bank's share therein and (c) the amount of any sum received or recovered
by the Facility Agent hereunder and each Bank's share therein.
42.5 Prima Facie Evidence
In any legal action or proceeding arising out of or in connection with
this Agreement, the entries made in the accounts maintained pursuant to
Clause 42.3 (Evidence of Debt)
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and Clause 42.4 (Control Accounts) shall be prima facie evidence of the
existence and amounts of the specified obligations of the Obligors.
42.6 Certificates of Banks
A certificate of a Bank as to (a) the amount by which a sum payable to it
hereunder is to be increased under Clause 17.1 (Tax Gross-up), (b) the
amount for the time being required to indemnify it against any such cost,
payment or liability as is mentioned in Clause 17.2 (Tax Indemnity) or
Clause 19.1 (Increased Costs) or Clause 32.1 (Original Borrower's
Indemnity) or (c) the amount of any credit, relief, remission or
repayment as is mentioned in Clause 18.3 (Tax Credit Payment) shall, in
the absence of manifest error, be prima facie evidence of the existence
and amounts of the specified obligations of the Obligors.
42.7 Facility Agent's Certificates
A certificate of the Facility Agent as to the amount at any time due from
a Borrower or the Original Borrower hereunder or the amount which, but
for any of the obligations of such Borrower or the Original Borrower
hereunder being or becoming void, voidable, unenforceable or ineffective,
at any time would have been due from such Borrower hereunder shall, in
the absence of manifest error, be conclusive for the purposes of Clause
28 (Guarantee and Indemnity).
42.8 Spanish Civil Procedural Requirements
For the purposes of Article 572.2 of the Spanish Civil Procedural Law
(Ley de Enjuiciamiento civil), all parties expressly agree that the exact
amount due at any time by any Borrower to the Banks will be the amount
specified in a certificate issued by the Facility Agent as representative
of the Banks reflecting the balance of the control accounts referred to
in Clause 42.4 (Control Accounts). This amount will be considered as
liquid, due and payable, provided that the certificate has been
formalised in a public deed authorised by or attested to by a notary
public.
43. REMEDIES AND WAIVERS, PARTIAL INVALIDITY
43.1 Remedies and Waivers
No failure to exercise, nor any delay in exercising, on the part of any
Finance Party, any right or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any right or remedy
prevent any further or other exercise thereof or the exercise of any
other right or remedy. The rights and remedies herein provided are
cumulative and not exclusive of any rights or remedies provided by law.
43.2 Partial Invalidity
If, at any time, any provision of the Finance Documents is or becomes
illegal, invalid or unenforceable in any respect under the law of any
jurisdiction, neither the legality, validity or enforceability of the
remaining provisions thereof nor the legality, validity or enforceability
of such provision under the law of any other jurisdiction shall in any
way be affected or impaired thereby.
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44. NOTICES
44.1 Communications in Writing
Each communication to be made under the Finance Documents shall be made
in writing and, unless otherwise stated, shall be made by fax or letter.
44.2 Addresses
Any communication or document to be made or delivered pursuant to the
Finance Documents shall (unless the recipient of such communication or
document has, by fifteen days written notice to the Facility Agent,
specified another address or fax number) be made or delivered to the
address or fax number:
(a) in the case of the Original Obligors, the Facility Agent and the
Security Agent, identified with its name below;
(b) in the case of each Bank, notified in writing to the Facility Agent
prior to the date hereof (or, in the case of a Transferee at the
end of the Transfer Certificate to which it is a party as
Transferee or assignee in the relevant notice of assignment); and
(c) in the case of each acceding Obligor, in the relevant Accession
Memorandum,
provided that any Bank with two or more Facility Offices shall specify
its main address and fax number for the purpose of notices.
44.3 Delivery
Any communication or document to be made or delivered by one person to
another pursuant to the Finance Documents shall:
(a) if by way of fax, be deemed to have been received when transmission
has been completed; and
(b) if by way of letter, be deemed to have been delivered when left at
the relevant address or, as the case may be, ten days after being
deposited in the post with prepaid postage in an envelope addressed
to it at such address,
provided that any communication or document to be made or delivered to
the Facility Agent shall be effective only when received by its agency
division and then only if the same is expressly marked for the attention
of the department or officer identified with the Facility Agent's
signature below (or such other department or officer as the Facility
Agent shall from time to time specify for this purpose).
44.4 Notification of Changes
Promptly upon receipt of notification of a change of address or fax
number pursuant to Clause 44.2 (Addresses) or any change of any Facility
Office or changing its own address or fax number, the Facility Agent
shall notify the Original Borrower of such change.
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44.5 English Language
Each communication and document made or delivered by one party to another
pursuant to the Finance Documents shall be in the English language or
accompanied by a translation thereof into English certified (by an
officer of the person making or delivering the same) as being a true and
accurate translation thereof save that communications between any Obligor
and the Security Agent which are in Spanish and are not intended for
general distribution to the Banks need not be accompanied by a
translation into English.
44.6 Deemed Receipt by the Obligors
Any communication or document made or delivered to the Original Borrower
in accordance with Clause 44.3 (Delivery) shall be deemed to have been
made or delivered to each of the Obligors.
45. COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one and the same instrument.
46. AMENDMENTS
46.1 Amendments
If the Facility Agent has the prior consent of an Instructing Group, the
Facility Agent and the Obligors may from time to time agree in writing to
amend the Finance Documents or to waive, prospectively or
retrospectively, any of the requirements of the Finance Document and any
amendments or waivers so agreed shall be binding on all the Finance
Parties, provided that no such waiver or amendment shall subject any
Finance Party hereto to any new or additional obligations without the
consent of such Finance Party.
46.2 Amendments Requiring the Consent of all the Banks
An amendment or waiver which relates to:
(a) Clause 36 (Sharing) or this Clause 46;
(b) a change in the amount or currency of any payment of interest, fees
or any other amount payable hereunder to any Finance Party or
deferral of the date for payment thereof;
(c) the definition of Business or Instructing Group;
(d) any provision which contemplates the need for the consent or
approval of all the Banks;
(e) the charging provisions of the Security Documents; or
(f) the Facility Agent's or the Security Agent's rights under the
Finance Documents or imposes any additional obligation on the
Arranger, the Facility Agent or the Security Agent under the
Finance Documents,
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shall not be made without the prior consent of all the Banks.
46.3 Amendments Requiring the Consent of all the Tranche A Banks
An amendment or waiver which relates to:
(a) a change in the principal amount of or currency of any Tranche A
Advance, or deferral of any Term Repayment Date; or
(b) a decrease in the Applicable Margin,
shall not be made without the prior consent of all the Tranche A Banks.
46.4 Amendments Requiring the Consent of all the Tranche B Banks
An amendment or waiver which relates to:
(a) a decrease in the rate or change of payment terms of the
Performance Bond Commission; or
(b) Clause 15.8 (31 March 2004),
shall not be made without the prior consent of all the Tranche B Banks.
46.5 Exceptions
Notwithstanding any other provisions hereof, the Facility Agent shall not
be obliged to agree to any such amendment or waiver if the same would:
(a) amend or waive this Clause 46, Clause 30 (Costs and Expenses) or
Clause 37 (The Agents, the Arranger and the Banks); or
(b) otherwise amend or waive any of the Facility Agent's rights
hereunder or subject the Facility Agent or the Arranger to any
additional obligations hereunder.
46.6 Failure to Respond
For the purposes of this Clause 46, if a Bank does not, within 10
Business Days of the Facility Agent requesting an amendment, respond to
such request or contact the Facility Agent confirming that it will
respond to such request, such Bank's share of the Tranche B Outstandings
or, as the case may be, the Tranche A Loan shall be disregarded by the
Facility Agent when determining whether such Banks which have consented
to such amendment constitute an Instructing Group.
46.7 Amendment to Correct Manifest Error
The Facility Agent may agree with the Original Borrower (acting on behalf
of each of the Obligors) any amendment to or the modification of the
provisions of any of the Finance Documents, or any schedule thereto,
which is necessary to correct a manifest error.
46.8 Amendment by Original Borrower
The Original Borrower (acting on behalf of each of the Obligors), may
agree any amendment or modification to the provisions of any of the
Finance Documents or any
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schedule thereto, or grant any waiver or consent in relation thereto.
Nothing in this Clause 46.8 shall prejudice the right of the Facility
Agent to require all of the Obligors to agree any such amendment,
modification, waiver or consent, if, in the reasonable opinion of the
Facility Agent, such agreement is necessary in order to ensure that such
amendment, modification, waiver or consent shall be in full force and
effect.
47. GOVERNING LAW
This Agreement shall be governed by English law.
48. JURISDICTION
48.1 English Courts
The courts of England have exclusive jurisdiction to settle any dispute
(a "Dispute") arising out of or in connection with this Agreement
(including a dispute regarding the existence, validity or termination of
this Agreement or the consequences of its nullity).
48.2 Convenient Forum
The parties agree that the courts of England are the most appropriate and
convenient courts to settle Disputes between them and, accordingly, that
they will not argue to the contrary.
48.3 Non-exclusive Jurisdiction
This Clause 48 is for the benefit of the Finance Parties only. As a
result and notwithstanding Clause 48.1 (English Courts), it does not
prevent any Finance Party from taking proceedings relating to a Dispute
("Proceedings") in any other courts with jurisdiction.
48.4 Service of Process
(a) Each Original Obligor agrees that the documents which start any
Proceedings in the courts of England and any other documents
required to be served in relation to those Proceedings may be
served on it by being delivered to the Parent at its registered
office.
(b) If any Original Obligor ceases to have a place of business in Great
Britain or, as the case may be, the appointment of the person
mentioned in this Clause 48.4 ceases to be effective, the relevant
Original Obligor shall immediately appoint another person in
England to accept service of process on its behalf in England. If
an Original Obligor fails to do so (and such failure continues for
a period of not less than fourteen days), the Facility Agent shall
be entitled to appoint such a person by notice to such Original
Obligor. Nothing contained herein shall restrict the right to serve
process in any other manner allowed by law. This Clause 48.4
applies to Proceedings in England and to Proceedings elsewhere.
(c) The Parent accepts its appointment as service of process agent as
set out in sub-clause (a).
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48.5 Waiver of Immunity
Each Obligor waives generally all immunity it or its assets or revenues
may otherwise have in any jurisdiction, including immunity in respect of:
(a) the giving of any relief by way of injunction or order for specific
performance or for the recovery of assets or revenues; and
(b) the issue of any process against its assets or revenues for the
enforcement of a judgment or, in an action in rem, for the arrest,
detention or sale of any of its assets and revenues.
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SCHEDULE 1
The Original Parties
Part B
The Obligors
Name of Original Borrower Registration details or
Registered no.
Jazz Telecom, S.A. Registered at the Commercial
Registry of Madrid in Volume
12.606, Sheet 144, Page
M-201.552, First Entry
Name of Original Guarantor Registration details or
Registered no.
Jazz Telecom, S.A. Registered at the Commercial
Registry of Madrid in Volume
12.606, Sheet 144, Page
M-201.552, First Entry
Jazztel plc 3597184
Adatel Telecomunicaciones, S.A. Registered at the Commercial
Registry of Madrid in Volume
15.942, Page 25, Section 8, Sheet
M-269.527
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Part C
(1) The Tranche A Banks
Tranche A Bank Tranche A Commitment
(EUR)
Banco Espirito Santo S.A., Lisbonne, Succursale de Lausanne 2,294,005.30
Banco Espirito Santo, S.A. 1,129,883.21
Bayerische Hypo-und Vereinsbank AG London Branch 3,423,888.51
Credit Lyonnais, S.A. 3,423,888.51
Credit Suisse First Boston International 3,423,888.51
Entenial 3,423,888.51
The Governor and Company of the Bank of Scotland 3,423,888.51
ING Bank N.V. 3,423,888.51
General Electric Capital Corporation 2,910,305.14
ABC International Bank plc 1,711,944.00
X.X. Xxxxxx Europe Limited 1,410,531.29
Total 30,000,000.00
Part B
(2) The Tranche B Banks
Tranche B Bank Outstandings - Envelope 2 Performance
Bonds (EUR)
XX Xxxxxx Bank, S.A. (formerly The Chase 4,225,404.00
Manhattan Bank C.M.B., S.A.)
Dresdner Bank AG Sucursal en Espana 4,225,404.00
Caja de Ahorros de Castilla xx Xxxxxx 3,750,000.00
Barclays Bank, S.A. 3,125,000.00
Tranche B Bank Outstandings - Envelope 3 Performance
Bonds (EUR)
XX Xxxxxx Bank, S.A. (formerly The Chase 2,535,243.00
Manhattan Bank C.M.B., S.A.)
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Dresdner Bank AG Sucursal en Espana 2,535,243.00
Caja de Ahorros de Castilla xx Xxxxxx 2,250,000.00
Barclays Bank, S.A. 1,875,000.00
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SCHEDULE 2
FORM OF TRANSFER CERTIFICATE
To: [ ]
TRANSFER CERTIFICATE
relating to the agreement (as from time to time amended, varied, novated or
supplemented, the "Credit Agreement") dated 6 April 2001 as amended and restated
by an amendment agreement dated 5 November 2002 whereby a term facility together
with a performance bond facility were made available to a group of borrowers
including Jazz Telecom, S.A. by a group of banks on whose behalf X.X. Xxxxxx
Europe Limited acted as facility agent in connection therewith.
1. Terms defined in the Credit Agreement shall, subject to any contrary
indication, have the same meanings herein. The terms Bank, Transferee and
Portion Transferred are defined in the schedule hereto.
2. The Bank (a) confirms that the details in the schedule hereto under the
heading "Tranche A Bank's Participation in the Tranche A Facility", or,
as the case may be, "Tranche B Bank's Participation in Performance Bonds"
accurately summarise its participation in the Credit Agreement and the
Interest Period of any existing Tranche A Advances and (b) requests the
Transferee to accept and procure the transfer by novation to the
Transferee of the Portion Transferred (specified in the schedule hereto)
of its participation in such Tranche A Advance(s) or, in the case of a
Tranche B Bank, its participation in the Performance Bonds by
counter-signing and delivering this Transfer Certificate to the Facility
Agent at its address for the service of notices specified in the Credit
Agreement.
3. The Transferee hereby requests the Facility Agent to accept this Transfer
Certificate as being delivered to the Facility Agent pursuant to and for
the purposes of Clause 38.5 (Transfers by Banks) of the Credit Agreement
so as to take effect in accordance with the terms thereof on the Transfer
Date or on such later date as may be determined in accordance with the
terms thereof.
4. The Transferee confirms that it has received a copy of the Credit
Agreement together with such other information as it has required in
connection with this transaction and that it has not relied and will not
hereafter rely on the Bank to check or enquire on its behalf into the
legality, validity, effectiveness, adequacy, accuracy or completeness of
any such information and further agrees that it has not relied and will
not rely on the Bank to assess or keep under review on its behalf the
financial condition, creditworthiness, condition, affairs, status or
nature of the Obligors.
5. The Transferee hereby undertakes with the Bank and each of the other
parties to the Credit Agreement that it will perform in accordance with
their terms all those
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obligations which by the terms of the Finance Documents will be assumed
by it after delivery of this Transfer Certificate to the Facility Agent
and satisfaction of the conditions (if any) subject to which this
Transfer Certificate is expressed to take effect.
6. The Bank makes no representation or warranty and assumes no
responsibility with respect to the legality, validity, effectiveness,
adequacy or enforceability of the Finance Documents or any document
relating thereto and assumes no responsibility for the financial
condition of the Obligors or for the performance and observance by the
Obligors of any of their obligations under the Finance Documents or any
document relating thereto and any and all such conditions and warranties,
whether express or implied by law or otherwise, are hereby excluded.
7. The Bank hereby gives notice that nothing herein or in the Finance
Documents (or any document relating thereto) shall oblige the Bank to (a)
accept a re-transfer from the Transferee of the whole or any part of its
rights, benefits and/or obligations under the Finance Documents
transferred pursuant hereto or (b) support any losses directly or
indirectly sustained or incurred by the Transferee for any reason
whatsoever including the non-performance by an Obligor or any other party
to the Finance Documents (or any document relating thereto) of its
obligations under any such document. The Transferee hereby acknowledges
the absence of any such obligation as is referred to in (a) or (b) above.
8. This Transfer Certificate and the rights, benefits and obligations of the
parties hereunder shall be governed by and construed in accordance with
English law.
THE SCHEDULE
1. Bank:
2. Transferee:
3. Transfer Date:
4. [Tranche A Bank's Participation in the Tranche A Facility:]
Portion Transferred [ ] Interest Period [ ]
5. [Tranche B Bank's Participation in Performance Bonds:]**
Portion Transferred [ ]
[Transferor Bank] [Transferee Bank]
By: By:
Date: Date:
** Delete if not a Tranche B Bank
-135-
_____________________________________________________________________________
ADMINISTRATIVE DETAILS OF TRANSFEREE
Address:
Contact Name:
Account for Payments
in euros:
Fax:
Telephone:
Credit Contact Name:
Fax:
Telephone:
**Any Transferor Bank and any Transferee Bank must take all steps, execute all
documents and do all other things (including notarisation) as may be necessary
under applicable law to ensure that upon any assignment or transfer of rights
and/or obligations hereunder, the Transferor's rights under the Security
Documents are assigned and/or transferred to the Transferee.
-136-
SCHEDULE 3
INTENTIONALLY LEFT BLANK
-137-
SCHEDULE 4
CONDITIONS SUBSEQUENT
1. Payment of the taxes required to be paid to record the Mortgage over
Intellectual Property in the registry of movable mortgages and filing of
the Mortgage over Intellectual Property at the said registry.
2. Registration of a "Folleto Informativo Completo" in respect of the new
shares to be issued by the Parent and a "Folleto Reducido" in respect of
the Convertible Bonds to be issued by the Parent as part of the Financial
Restructuring with the Comision Nacional del Xxxxxxx de Valores.
3. Delivery of the order of the Court sanctioning the Scheme to the
Registrar of Companies.
4. A copy of newly executed management contracts and revised management
incentive programmes required pursuant to Clause 2.3 (Conditions
Subsequent) of this Agreement (in substantially the same terms as the
outline terms of management contracts and revised management incentive
programmes provided in accordance with Schedule 2 (Conditions Precedent)
of the Amendment Agreement).
-138-
SCHEDULE 5
FORM OF UTILISATION REQUEST
From: [Original Borrower]
To: [Facility Agent]
Dated:
Dear Sirs,
1. We refer to the agreement (the "Credit Agreement") dated 6 April 2001 as
amended and restated by an amendment agreement dated 5 November 2002 and
made between a group of borrowers including Jazz Telecom, S.A., X.X.
Xxxxxx Europe Limited as facility agent and the financial institutions
named therein as Banks. Terms defined in the Credit Agreement shall have
the same meaning in this notice.
2. This notice is irrevocable.
3. We hereby give you notice that, pursuant to the Credit Agreement and on
the Issue Date, we wish a Replacement Tranche B Bank to issue an
[Envelope 2 Performance Bond/Envelope 3 Performance Bond] for an amount
of EUR[ ]] upon the terms and subject to the conditions contained
therein.
4. We confirm that, at the date hereof, the Repeated Representations are
true in all material respects and no Event of Default or Potential Event
of Default is continuing or would result from such Utilisation.
5. The Performance Bond should be in favour of the Ministry of Science and
Technology (Ministerio de Ciencia y Tecnologia) in the form attached and
delivered to [ ].
Yours faithfully
.............................
Authorised Signatory
for and on behalf of
[Name of Original Borrower]
-139-
SCHEDULE 6
EXISTING ENCUMBRANCES
Name of Original Obligor Details of Encumbrance and Indebtedness
Jazz Telecom, S.A. Pledge over account number 2100 0600 82
0300162628 held with La Caixa.
Account balance EUR625,680.75.
-140-
SCHEDULE 7
FORM OF DIRECTORS' COMPLIANCE CERTIFICATE
To: [Facility Agent]
Date:
Dear Sirs,
[Annual Statements/Quarterly statements Monthly cash balance reporting]
Compliance Certificate
We refer to an agreement (the "Credit Agreement") dated 6 April 2001 as amended
and restated by an amendment agreement dated 5 November 2002 and made between a
group of borrowers including Jazz Telecom, S.A., X.X. Xxxxxx Europe Limited as
facility agent, the financial institutions defined therein as Banks and others.
Terms defined in the Credit Agreement shall bear the same meaning herein.
We confirm that:
1. [Annualised Direct Access Revenue is EUR [ ] million.]
2. [Annualised Adjusted EBITDA is EUR [ ] million.]
3. [The number of Provisioned DSL Customers is [ ]. ]
4. [The cash balance of
(a) the Cash Accounts;
(b) the English Secured Cash Account; and
(c) the Spanish Secured Cash Accounts,
are as stated in the attached Schedule hereto.]
Signed:
............... ...............
Director Director
for and on behalf of for and on behalf of
the Original Borrower the Original Borrower
-141-
SCHEDULE 8
FORM OF BORROWER ACCESSION MEMORANDUM
To: [Facility Agent]
From: [Subsidiary]
and
[Original Borrower]
Dated:
Dear Sirs,
1. We refer to an agreement (the "Credit Agreement") dated 6 April 2001 as
amended and restated by an amendment agreement dated 5 November 2002 and
made between a group of borrowers including Jazz Telecom, S.A. (the
"Original Borrower"), X.X. Xxxxxx Europe Limited as facility agent, the
financial institutions defined therein as Banks and others.
2. Terms defined in the Credit Agreement shall bear the same meaning herein.
3. The Original Borrower requests that [Subsidiary] become an Additional
Borrower pursuant to Clause 39.1 (Request for Additional Borrower) of the
Credit Agreement.
4. [Subsidiary] is a company duly organised under the laws of [name of
relevant jurisdiction].
5. [Subsidiary] confirms that it has received from the Original Borrower a
true and up-to-date copy of the Credit Agreement.
6. [Subsidiary] undertakes, upon its becoming a Borrower, to perform all the
obligations expressed to be undertaken under the Credit Agreement by a
Borrower and agrees that it shall be bound by the Credit Agreement in all
respects as if it had been an original party thereto as a Borrower.
7. The Original Borrower confirms that, if [Subsidiary] is accepted as an
Additional Borrower, its guarantee obligations pursuant to Clause 28
(Guarantee and Indemnity) of the Credit Agreement will apply to all the
obligations of [Subsidiary] under the Finance Documents in all respects
in accordance with the terms of the Credit Agreement.
8. [Subsidiary] makes the representations and warranties in respect of
itself only set out in Clause 22.1 (Status) to Clause 22.17
(Encumbrances) and Clause 22.24 (Intellectual Property).
-142-
9. [Subsidiary's] administrative details are as follows:
Address:
Fax No.:
10. [Process Agent*
[Subsidiary] agrees that the documents which start any Proceedings and
any other documents required to be served in relation to those
Proceedings may be served on it at [address of Subsidiary's place of
business in England] or at any address in Great Britain at which process
may be served on it in accordance with Part XXIII of the Companies Act
1985]/[on name of process agent in England at address of process agent
or, if different, its registered office. If [[Subsidiary] ceases to have
a place of business in Great Britain]/[the appointment of the person
mentioned above ceases to be effective], [Subsidiary] shall immediately
appoint another person in England to accept service of process on its
behalf in England. If it fails to do so (and such failure continues for a
period of not less than fourteen days), the Facility Agent shall be
entitled to appoint such a person by notice. Nothing contained herein
shall restrict the right to serve process in any other manner allowed by
law. This applies to Proceedings in England and to Proceedings
elsewhere.]
11. This Memorandum shall be governed by English law.
[Original Borrower] [Subsidiary]
By: ............................... By: ..............................
* This clause is required only if the Acceding Borrower is not incorporated in
England or Wales.
-143-
SCHEDULE 9
FORM OF GUARANTOR ACCESSION MEMORANDUM
To: [Facility Agent]
From: [Subsidiary] and [Original Borrower]
Dated:
Dear Sirs,
1. We refer to an agreement (the "Credit Agreement") dated 6 April 2001 as
amended and restated by an amendment agreement dated 5 November 2002 and
made between a group of borrowers including Jazz Telecom, S.A. (the
"Original Borrower"), X.X. Xxxxxx Europe Limited as facility agent, the
financial institutions defined therein as Banks and others.
2. Terms defined in the Credit Agreement shall bear the same meaning herein.
3. The Original Borrower requests that [Subsidiary] become an Additional
Guarantor pursuant to Clause 40.1 (Request for Additional Guarantor) of
the Credit Agreement.
4. [Subsidiary] is a company duly organised under the laws of [name of
relevant jurisdiction].
5. [Subsidiary] confirms that it has received from the Original Borrower a
true and up-to-date copy of the Credit Agreement and a list of the
Borrowers as at the date hereof.
6. [Subsidiary] undertakes, upon its becoming a Guarantor, to perform all
the obligations expressed to be undertaken under the Credit Agreement by
a Guarantor and agrees that it shall be bound by the Credit Agreement in
all respects as if it had been an original party thereto as an Original
Guarantor. [Insert details of any limitation, if appropriate]
7. [Subsidiary] makes the representations and warranties in respect of
itself only set out in Clause 22.1 (Status) to Clause 22.17
(Encumbrances) and Clause 22.24 (Intellectual Property).
8. [Subsidiary's] administrative details are as follows:
Address:
Fax No.:
-144-
26. [Process Facility Agent*
[Subsidiary] agrees that the documents which start any Proceedings and
any other documents required to be served in relation to those
Proceedings may be served on it at [address of Subsidiary's place of
business in England] or at any address in Great Britain at which process
may be served on it in accordance with Part XXIII of the Companies Act
1985] / [on name of process agent in England at address of process agent
or, if different, its registered office. If [Subsidiary] ceases to have a
place of business in Great Britain]/[ the appointment of the person
mentioned above ceases to be effective], [Subsidiary] shall immediately
appoint another person in England to accept service of process on its
behalf in England. If it fails to do so (and such failure continues for a
period of not less than fourteen days), the Facility Agent shall be
entitled to appoint such a person by notice. Nothing contained herein
shall restrict the right to serve process in any other manner allowed by
law. This applies to Proceedings in England and to Proceedings
elsewhere.]
27. This Memorandum shall be governed by English law.
[This Memorandum is executed and delivered as a deed by [name of Additional
Guarantor]
..........................................
Director of Additional Guarantor
..........................................
Director/Secretary of Additional Guarantor]
or
[The Common Seal of [Additional Guarantor]
was affixed to this deed in the presence of
...............................................
Director of Additional Guarantor
................................................
Director/Secretary of Additional Guarantor]**
[Original Borrower]
By: ................................................
* This clause is required only if the Additional Borrower is not incorporated in
England or Wales.
** Delete as appropriate. If the company is not incorporated in England or
Wales, alternate forms of execution may be more appropriate.
-145-
SCHEDULE 10
ADDITIONAL CONDITIONS PRECEDENT
1. A copy, certified as at the date of the relevant Accession Memorandum a
true and up-to-date copy by an Authorised Signatory of the proposed
Additional Obligor, of the constitutional documents of such proposed
Additional Obligor.
2. A copy, certified as at the date of the relevant Accession Memorandum a
true and up-to-date copy by an Authorised Signatory of the proposed
Additional Obligor, of a board resolution (and, in the case of an
Additional Guarantor incorporated in Spain, a shareholders' meeting
resolution) of such proposed Additional Obligor approving or, as the case
may be, ratifying the execution and delivery of an Accession Memorandum,
the accession of such proposed Additional Obligor to this Agreement and
the performance of its obligations under the Finance Documents and
authorising a named person or persons to sign such Accession Memorandum,
any other Finance Document and any other documents to be delivered by
such proposed Additional Obligor pursuant thereto.
3. A certificate of an Authorised Signatory of the proposed Additional
Obligor setting out the names and signatures of the person or persons
authorised to sign, on behalf of such proposed Additional Obligor, the
Accession Memorandum, any other Finance Documents and any other documents
to be delivered by such proposed Additional Obligor pursuant thereto.
4. If necessary for the purposes of issuing the relevant opinion referred to
in paragraphs 7 and 8 below, a certificate of an Authorised Signatory of
the proposed Additional Obligor confirming that the utilisation of the
Facilities would not breach any restriction of its borrowing powers.
5. If the proposed Additional Obligor is incorporated in a jurisdiction
other than England and Wales, a copy, certified a true copy by or on
behalf of the proposed Additional Obligor, of each such applicable law,
decree, consent, licence, approval, registration or declaration as is
necessary to render the relevant Accession Memorandum legal, valid and
binding, to make such Accession Memorandum admissible in evidence in the
proposed Additional Obligor's jurisdiction of incorporation and to enable
the proposed Additional Obligor to perform its obligations thereunder and
under the Finance Documents to which it is a party.
6. A copy, certified a true copy by an Authorised Signatory of the proposed
Additional Obligor, of its latest audited financial statements.
7. If the proposed Additional Obligor is incorporated in a jurisdiction
other than England and Wales, an opinion of the Facility Agent's local
counsel in the relevant jurisdiction.
8. An opinion of Xxxxxxxx Chance, solicitors to the Facility Agent.
-146-
9. If the proposed Additional Obligor is incorporated in a jurisdiction
other than England and Wales, evidence that the process agent specified
in the relevant Accession Memorandum has agreed to act as its agent for
the service of process in England.
10. [A copy, certified as at the date of this Agreement a true and up-to-date
copy by an Authorised Signatory of the Additional Borrower, of the
allocation by the Bank of Spain of a financial transaction number (NOF)
to the Additional Borrower.]*
11. A copy of a Spanish law pledge over all or such percentage of the shares
as are acquired by any member of the Borrower Group over any Additional
Obligor (or such other security as may be agreed between the Original
Borrower and the Security Agent) executed in favour of the Security Agent
(or, as necessary, the Banks) and duly perfected in the manner required
in the relevant jurisdiction.
12. A copy of a Spanish law pledge over a euro denominated account of the
Additional Obligor executed by the Additional Obligor in favour of the
Banks and the Security Agent in agreed form.
13. The relevant Accession Memorandum duly executed and notarised.
* This condition is only relevant in the case of an Additional Borrower.
-147-
SCHEDULE 11
FORM OF RESIGNATION NOTICE
To: [Facility Agent]
From: [Original Borrower]
Dated:
Dear Sirs,
1. We refer to an agreement (the "Credit Agreement") dated 6 April as
amended and restated by an amendment agreement dated 5 November 2002 and
made between a group of borrowers including Jazz Telecom, S.A. (the
"Original Borrower"), X.X. Xxxxxx Europe Limited as facility agent, the
financial institutions defined therein as Banks and others.
2. Terms defined in the Credit Agreement shall bear the same meaning herein.
3. [We declare that [name of Borrower] is under no actual or contingent
obligation under any Finance Document in its capacity as a Borrower.]*
4. Pursuant to Clause [39.3 (Resignation of a Borrower)]/[40.3 (Resignation
of a Guarantor)] we hereby request that [name of Obligor] shall cease to
be a [Borrower]/[Guarantor] under the Credit Agreement.
5. We hereby confirm that [name of resigning Guarantor] is not the Original
Borrower.**
Yours faithfully
[the Original Borrower]
* Delete if notice is for a Guarantor
** Delete if notice is for a Borrower
-148-
SCHEDULE 12
MANDATORY COSTS
1. The Mandatory Cost Rate is an addition to the interest rate to compensate
banks for the cost of compliance with (a) the requirements of the
Financial Services Authority (or, any other authority which replaces all
or any of its functions) or (b) the requirements of the European Central
Bank.
2. On the first day of each Interest Period (or as soon as possible
thereafter) the Facility Agent shall calculate, as a percentage rate, a
rate (the "additional costs rate") for each Tranche A Bank, in accordance
with paragraphs 3 and 4 below. The Mandatory Cost Rate will be calculated
by the Facility Agent as a weighted average of the Tranche A Banks'
additional costs rates (weighted in proportion to the percentage
participation of each Tranche A Bank in the relevant Tranche A Advance)
and will be expressed as a percentage rate per annum.
3. The additional costs rate for any Tranche A Bank lending from a Facility
Office in a Participating Member State will be the percentage notified by
that Tranche A Bank to the Facility Agent as the cost of complying with
the minimum reserve requirements of the European Central Bank, as set out
in council regulation (EC No 2531/98) of 23 November 1998 (the "Council
Regulation") .
4. The additional costs rate for each Tranche A Bank lending from a Facility
Office in the United Kingdom will be calculated by the Facility Agent as
follows:
E x 0.01
-------- per cent. per annum.
300
Where:
E is the rate of charge payable by that Tranche A Bank to the
Financial Services Authority pursuant to the Fees Regulations (but,
for this purpose, ignoring any minimum fee required pursuant to the
Fees Regulations) and expressed in pounds per (pound)1,000,000 of
the Fee Base of that Tranche A Bank.
28. For the purposes of this Schedule:
(a) "Fee Regulations" means the Banking Supervision (Fees) Regulations
1999 or such other law as may be in force from time to time in
respect of the payment of fees for banking supervision; and
(a) "Fee Base" has the meaning given to it, and will be calculated in
accordance with, the Fees Regulations.
29. Each Tranche A Bank shall supply any information required by the Facility
Agent for the purpose of calculating the additional costs rate. In
particular, but without limitation, each Tranche A Bank shall supply the
following information in writing on or prior to the date on which it
becomes a Tranche A Bank:
-149-
(a) its jurisdiction of incorporation and the jurisdiction of its
Facility Office; and
(b) such other information that the Facility Agent may reasonably
require for such purpose.
Each Tranche A Bank shall promptly notify the Facility Agent in writing
of any change to the information provided by it pursuant to this
paragraph.
30. The percentages or rates of charge of each Tranche A Bank for the purpose
of paragraph 3 and 4 above shall be determined by the Facility Agent
based upon the information supplied to it pursuant to paragraph 6 above
and on the assumption that, unless a Tranche A Bank notifies the Facility
Agent to the contrary, each Tranche A Bank's obligations in relation to
the Council Regulation and the Fee Regulations are the same as those of a
typical bank from its jurisdiction of incorporation with a Facility
Office in the same jurisdiction as its Facility Office.
The Facility Agent shall have no liability to any person if such
determination results in an additional costs rate which over or under
compensates any Tranche A Bank and shall be entitled to assume that the
information provided by any Tranche A Bank pursuant to paragraph 6 above
is true and correct in all respects.
31. The Facility Agent shall distribute the additional amounts received
pursuant to the Mandatory Cost Rate to the Tranche A Banks on the basis
of the additional costs rate for each Tranche A Bank, in accordance with
the above paragraphs and based on the information provided by each
Tranche A Bank pursuant to paragraph 6 above.
32. Any determination by the Facility Agent pursuant to this Schedule in
relation to a formula, the Mandatory Cost Rate, an additional costs rate
or any amount payable to a Tranche A Bank shall, in the absence of
manifest error, be conclusive and binding on all of the parties hereto.
33. The Facility Agent may from time to time, after consultation with the
Original Borrower and the Tranche A Banks, determine and notify to all
parties any amendments or variations which are required to be made to any
of the formulae set out above in order to comply with any change in law
or any requirements from time to time imposed by the European Central
Bank or the Financial Services Authority (or, in any case, any other
authority which replaces all or any of its functions) and any such
determination shall, in the absence of manifest error, be conclusive and
binding on all the parties hereto.
-150-
SCHEDULE 13
BORROWER GROUP BUSINESS PLAN
Business Plan Items
1. Profit and loss statement.
2. Balance sheet.
3. Cash flow statement.
4. Analysis of revenues by client segments, including details of direct
clients, indirect clients, sales of capacity and carrier-carrier
transportation.
5. Capital Expenditure schedule, including details on switches, Network
Backbone, Metropolitan Area Networks, buildings passed and connected and
other investments.
All of the above shall be in substantially the same form as the Borrower Group
Business Plan provided by the Original Borrower on 24 September 2002.
-151-
SCHEDULE 14
FORM OF PERFORMANCE BOND
Part A
Envelope 2 Performance Bond
GUARANTEE
The entity [ ], Fiscal Identification Number [ ],
, with registered address (for the purposes of notifications and demands) in
[ ], at Street/Square/Avenue [ ] Postal Code [ ]
, and acting on its behalf [name and surname of the Attorneys]
, with sufficient powers to undertake the obligations herein, as per the
verification of the representation at the bottom of this document
GUARANTEES
Banda 26, S.A., Fiscal Identification Number [ ]
, by virtue of the provisions of: Public Procurement Act 13/1995, dated May 18,
Order issued by the Ministry of Development (Ministerio de Fomento), dated
October 7, 1999, published in the Spanish Official Gazette on October 9, 1999,
number 242, by means of which the Xxxxxx for awarding of three type C2
individual licences required for the establishment and exploitation of fixed
public networks for radio access in the 26 GHz band, has been approved and Order
issued by the Ministry of Development (Ministerio de Fomento), dated March 8,
2000, published in the Spanish Official Gazette on March 10, 2000, number 60, by
means of which the public bidding process to award three type C2 individual
licences required for the establishment and exploitation of fixed public
networks for radio access in the 26 GHz band, has been decided, in order to meet
the following obligations:
The commitments in relation to Envelope 2, as summarised in Table 1, "Summary of
the commitments and guarantees in relation to Xxxxxxxx 0"
, xxx-x-xxx: Ministry of Science and Technology (Ministerio de Ciencia y
Tecnologia)
, for an amount of: Euro [ ]. Euro: [ ].
This guarantee is granted jointly and severally in respect of the principal
obliged party, with an express waiver as to the benefit of excussio and with the
obligation to pay, upon demand from the Caja General de Depositos, subject to
the terms set forth in Public Procurement Act 13/1995, dated May 18, in the
regulations whereby such law is developed and in the regulations governing the
Caja General de Depositos.
-152-
Madrid, [ ]
(entity's company name)
(signature of the Attorneys)
--------------------------------------------------------------------------------
VERIFICATION OF THE REPRESENTATIONS BY THE C.G.D. LEGAL
DEPARTMENT OR THE STATE LEGAL REPRESENTATIVE
--------------------------------------------------------------------------------
Province: Date: Number or Code:
--------------------------------------------------------------------------------
-153-
Part B
Envelope 3 Performance Bond
GUARANTEE
The entity [ ], Fiscal Identification Number [ ],
, with registered address (for the purposes of notifications and demands) in
[ ], at Street/Square/Avenue [ ] Postal
Code [ ]
, and acting on its behalf [name and surname of the Attorneys]
, with sufficient powers to undertake the obligations herein, as per the
verification of the representation at the bottom of this document
GUARANTEES
Banda 26, S.A., Fiscal Identification Number [ ]
, by virtue of the provisions of: Public Procurement Act 13/1995, dated May 18,
Order issued by the Ministry of Development (Ministerio de Fomento), dated
October 7, 1999, published in the Spanish Official Gazette on October 9, 1999,
number 242, by means of which the Xxxxxx for awarding of three type C2
individual licences required for the establishment and exploitation of fixed
public networks for radio access in the 26 GHz band, has been approved and Order
issued by the Ministry of Development (Ministerio de Fomento), dated March 8,
2000, published in the Spanish Official Gazette on March 10, 2000, number 60, by
means of which the public bidding process to award three type C2 individual
licences required for the establishment and exploitation of fixed public
networks for radio access in the 26 GHz band, has been decided
, in order to meet the following obligations:
The commitments in relation to Envelope 3, as summarised in Table [ ],
"Summary of the commitments and guarantees in relation to Xxxxxxxx 0"
, xxx-x-xxx: Ministry of Science and Technology (Ministerio de Ciencia y
Tecnologia)
, for an amount of: Euro [ ]. Euro: [ ].
This guarantee is granted jointly and severally in respect of the principal
obliged party, with an express waiver as to the benefit of excussio and with the
obligation to pay, upon demand from the Caja General de Depositos, subject to
the terms set forth in Public Procurement Act
-154-
13/1995, dated May 18, in the regulations whereby such law is developed and in
the regulations governing the Caja General de Depositos.
Madrid, [ ]
(entity's company name)
(signature of the Attorneys)
--------------------------------------------------------------------------------
VERIFICATION OF THE REPRESENTATIONS BY THE C.G.D. LEGAL
DEPARTMENT OR THE STATE LEGAL REPRESENTATIVE
--------------------------------------------------------------------------------
Province: Date: Number or Code:
--------------------------------------------------------------------------------
-155-
SCHEDULE 15
EXISTING PERFORMANCE BONDS
Envelope 2 Performance Bonds
----------------------------
Issue date: 7 April 0000
Xxxxxx: EUR 15,325,809.00
Beneficiary: Ministry of Science and Technology ("Ministerio de
Ciencia y Tecnologia")
Expiry Date: The date following the Performance Bonds' issue
date upon which the liability of the Bank under
such Performance Bond is reduced to zero (as
determined by the Facility Agent after
consultation with the Bank).
Envelope 3 Performance Bonds
----------------------------
Issue date: 7 April 0000
Xxxxxx: EUR 9,195,485.00
Beneficiary: Ministry of Science and Technology ("Ministerio de
Ciencia y Tecnologia")
Expiry Date: The date following the Performance Bonds' issue
date upon which the liability of the Bank under
such Performance Bond is reduced to zero (as
determined by the Facility Agent after
consultation with the Bank).
-156-
SCHEDULE 16
DISCLOSURES RELATING TO NECESSARY AUTHORISATIONS AND LICENCES
This Schedule refers to material deficiencies in compliance with those
obligations and conditions expressly established in the Type B1 Licence,
excluding other breaches committed by the Original Borrower according to the
applicable laws and regulations indirectly related to the Type B1 Licence.
Additionally, this Schedule includes the material deficiencies expected to be
committed by Banda 26 with respect to the Wireless Licence.
Type B1 Licence
Deficiencies in compliance:
o Failure to lay a submarine cable in accordance with the commitments on
coverage and extension assumed by the Original Borrower and included in
the Type B1 Licence.
o Failure to comply with the commitment to deploy the number of kilometres
of access network in accordance with the terms of Type B1 Licence, as per
the interpretation unofficially provided by the CMT.
o Failure to comply with the commitment to deploy the number of kilometres
of transport network in accordance with the terms of the Type B1 Licence,
as per the interpretation unofficially provided by the CMT.
o Failure to install one point of interconnection in each of Spain's 50
provinces within one year from the start of providing the service in
accordance with the terms of the Type B1 Licence. The Original Borrower
started providing services on 27 May 1999. According to the information
provided by the Original Borrower as at the date hereof it has 49 points
of interconnection installed.
Banda 26's Wireless Licence
Banda 26 does not expect to fully comply with its Wireless Licence because it
does not expect to have established service covering all Spanish cities with
over two hundred thousand (200,000) inhabitants by the dates required in the
Wireless Licence.
o Possible failure of the obligation to present the corresponding technical
project prior to starting up the network, for the purposes of carrying
out the corresponding detailed recording of the frequencies and inspect
the radioelectrical stations, established in the Wireless Licence.
-157-
SCHEDULE 17
FORM OF TRANCHE B BANK ACCESSION MEMORANDUM
To: [Facility Agent]
From: [Tranche B Bank]
and
[Original Borrower]
Dated:
Dear Sirs,
1. We refer to an agreement (the "Credit Agreement") dated 6 April 2001 as
amended and restated by an amendment agreement dated 5 November 2002 and
made between a group of borrowers including Jazz Telecom, S.A. (the
"Original Borrower"), X.X. Xxxxxx Europe Limited as facility agent, the
financial institutions defined therein as Banks and others.
2. Terms defined in the Credit Agreement shall bear the same meaning herein.
3. The Original Borrower and [Existing Tranche B Bank] requests that
[Replacement Tranche B Bank] become a Tranche B Bank pursuant to Clause
41.1 (Request for Replacement Tranche B Bank) of the Credit Agreement.
4. [Existing Tranche B Bank] confirms that it has executed a Resignation
Request which will be delivered to the Facility Agent together with this
Accession Memorandum.
5. [Replacement Tranche B Bank] confirms that it has received from the
Original Borrower a true and up-to-date copy of the Credit Agreement.
6. [Replacement Tranche B Bank] undertakes, upon its becoming a Tranche B
Bank, to perform all the obligations expressed to be undertaken under the
Credit Agreement by a Tranche B Bank and agrees that it shall be bound,
by the Credit Agreement in all respects as if it had been an original
party thereto as Tranche B Bank.
7. [Replacement Tranche B Bank] administrative details are as follows:
Address:
Fax No.:
8. This Memorandum shall be governed by English law.
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[Original Borrower] [Replacement Tranche B Bank]
By: ............................... By:..............................
[Existing Tranche B Bank]
By: ...............................
____________________________________________________________________________
* Please note that this Accession Memorandum should be notarised and
apostilled (as should any power of attorney authorising the relevant
signatories of the Tranche B Bank to sign the Accession Memorandum).
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SCHEDULE 18
FORM OF TRANCHE B BANK RESIGNATION REQUEST
To: [Facility Agent]
From: [Tranche B Bank]
and
[Original Borrower]
Dated:
Dear Sirs,
1. We refer to an agreement (the "Credit Agreement") dated 6 April 2001 as
amended and restated by an amendment agreement dated 5 November 2002 and
made between a group of borrowers including Jazz Telecom, S.A. (the
"Original Borrower"), X.X. Xxxxxx Europe Limited as facility agent, the
financial institutions defined therein as Banks and others.
2. Terms defined in the Credit Agreement shall bear the same meaning herein.
3. Pursuant to Clause 41 (Replacement Tranche B Banks) we hereby request
that [name of Existing Tranche B Bank] shall cease to be a Tranche B Bank
under the Credit Agreement with effect on an from [insert date of release
of Performance Bond of Existing Tranche B Bank].
4. We hereby confirm that [Replacement Tranche B Bank] has agreed to become
a Tranche B Bank under the Credit Agreement and has, executed a Tranche B
Bank Accession Memorandum which it will deliver to the Facility Agent at
the same time as this Resignation Request is so delivered.
5. This Memorandum shall be governed by English law.
[Original Borrower] [Tranche B Bank]
By: ............................... By:..............................
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SIGNATURES
The Original Borrower
JAZZ TELECOM, S.A.
By: .....................
Xx. Xxxxxxx Xxxxx Xxxxxx
Address: Xxxx. Xx Xxxxxx, 00
Xxxxxx Xxxxxxxxxxx Xx Xxxxxxxx
00000 Alcobendas
Madrid
Fax: x00 00 000 00 00
Contact: Xxxxxxxxx Xxxxxx
Executive Director
The Original Guarantors
JAZZ TELECOM, S.A.
By: .....................
Xx. Xxxxxxx Xxxxx Marina
Address: Xxxx. Xx Xxxxxx, 00
Xxxxxx Xxxxxxxxxxx Xx Xxxxxxxx
00000 Alcobendas
Madrid
Fax: x00 00 000 00 00
Contact: Xxxxxxxxx Xxxxxx
Executive Director
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JAZZTEL PLC (as Parent and Original Guarantor)
By: ......................
Xx. Xxxxxxxxx Xxxxxx
Address: 0 Xxxxxx Xxxx
Xxxxxxxxxxx
Xxxxxx X0 0XX
Fax: x00 00 000 0000
Contact: Xxxxxxxxx Xxxxxx/Xxxxxxxxxx Xxxxxx
Copied to: Jazz Telecom, S.A.
Address: Xxxx. Xx Xxxxxx, 00
Xxxxxx Xxxxxxxxxxx Xx Xxxxxxxx
00000 Alcobendas
Madrid
Fax: x00 00 000 0000
Contact: Xxxxxxxxx Xxxxxx
Executive Director
ADATEL TELECOMUNICACIONES, S.A.
By: .....................
Xx. Xxxxxxx Xxxxx Marina
Address: x/x Xxxxxx Xxxxx
00, 00000 Xxxxxx
Xxxxx
Fax: x00 00 000 00 00
Contact: Xxxxxx Xxxxxxxx
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The Arranger
X.X. XXXXXX PLC
By: .......................
Xx. Xxxxxx Xxxxxxxxx-Xxxxx y Xxxxxxxxx-Espana
Address: 000 Xxxxxx Xxxx
Xxxxxx XX0X 0XX
Fax: x00 (0)00 0000 0000
Contact: Xxxxx Xxxxxxx
The Facility Agent
X.X. XXXXXX EUROPE LIMITED
By: .......................
Xx. Xxxxxx Xxxxxxxxx-Xxxxx y Xxxxxxxxx-Espana
Address: 000 Xxxxxx Xxxx
Xxxxxx XX0X 0XX
Fax: x00 (0)00 0000 0000
Contact: Xxxxx Xxx
The Security Agent
X.X. XXXXXX EUROPE LIMITED
By: .......................
Xx. Xxxxxx Xxxxxxxxx-Xxxxx y Xxxxxxxxx-Espana
Address: 000 Xxxxxx Xxxx
Xxxxxx XX0X 0XX
Fax: x00 (0)00 0000 0000
Contact: Xxxxx Xxx
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The Tranche A Banks
BANCO ESPIRITO SANTO, S.A.
By: ...................... By:..........................
Xx. Xxxx Xxxxxx Xxxx Xxxxx Xx. Xxxxx Xxxxxxx Xxxxxxxx
BAYERISCHE HYPO-UND VEREINSBANK AG LONDON BRANCH
By: ................... By:.................................
Mr. Hans Xxxx Xxxxxx Xx. Xxxxx Xxxxxxx Xxxxxx Xxxxx-Xxxxxx
CREDIT LYONNAIS, S.A.
By: .......................
Xx. Xxx Xxxxxx Xxxxxx
CREDIT SUISSE FIRST BOSTON INTERNATIONAL
By: ............................
Xx. Xxx Xxxxxxx Iribarnegaray
ENTENIAL
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND
ING BANK N.V.
GENERAL ELECTRIC CAPITAL CORPORATION
ABC INTERNATIONAL BANK PLC
X.X. XXXXXX EUROPE LIMITED
BANCO ESPIRITO SANTO S.A., LISBONNE, SUCCURSALE DE LAUSANNE
By: .............................
Xx Xxxxxx Xxxxxxxxx-Xxxxx y Xxxxxxxxx-Espana
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The Tranche B Banks
X.X. XXXXXX BANK, S.A. (formerly THE CHASE MANHATTAN BANK C.M.B., S.A.)
By: ................................
Xx. Xxxxxxx Xxxxxxxxxxx Xxxxxxxxx
DRESDNER BANK AG SUCURSAL EN ESPANA
By: ...................... By: .............................
Mr. Xxxxxxx Xxxxx Xxxxxx Xx. Xxxx Xxxxxxx Xxxxxxxxx
CAJA DE AHORROS XX XXXXXXXX XX XXXXXX
By: ........................ By: .............................
Xx. Xxxxxxx Xxxxxx Xxxxxx Xx. Xxxxxx Xxxx Ciruelos
BARCLAYS BANK, S.A.
By: ....................... By: ............................
Mr. Xxxx Xxxxx Buil Pueyo Xx. Xxxxxx de la Xxxxx Xxxxxx
With my intervention, stating this Agreement of .... pages executed in 16
original copies for one sole purpose through the signature by all parties of the
respective signature pages only, has been witnessed by myself by sealing and
signing on each page. (Con mi intervencion, haciendo constar que el presente
contrato consta de .... paginas, ha sido celebrado en 16 ejemplares originales a
un solo efecto mediante la firma por todas las partes de las paginas respectivas
de firmas exclusivamente, e intervenido por mi mediante su sellado y firma en
cada una de las paginas).
-165-
