Exhibit 10.6
THE BASIC PROJECT CREDIT AGREEMENT
- hereinafter referred to as the "CREDIT AGREEMENT" -
dated January 21, 2000
between
LAMBDANET COMMUNICATIONS GMBH, HANNOVER
- hereinafter referred to as "LAMBDANET" or "BORROWER" -
and
BAYERISCHE HYPO- UND VEREINSBANK AKTIENGESELLSCHAFT, MUNICH
DRESDNER BANK AG, FRANKFURT AM MAIN AND
KREDITANSTALT FUR WIEDERAUFBAU, FRANKFURT AM MAIN
- hereinafter referred to as "the ARRANGERS" or "BANKS",
each individual one referred to as "the ARRANGER" or "BANK",
Dresdner Bank AG also referred to as "the HANDLING BANK"
Bayerische Hypo- und Vereinsbank AG also referred to as
"the LEADER OF THE COLLATERAL POOL"
LAMBDANET CREDIT AGREEMENT
page 2 of the agreement dated January 21, 2000
TABLE OF CONTENTS:
Preamble 4
Definitions 7
1. Extending Credit 11
2. Its Purpose 12
3. Using the Loans and Their Availability 13
4. The Conditions 18
5. Outlays 21
6. Remunerations 22
7. Term 23
8. Repayment 24
9. Delay in Performance 27
10. Collateral 28
11. The Project Account 30
12. Imposed Conditions 31
13. The Prerequisites for Paying Out 39
14. Possibilities for Termination / Xxxxxxxxxx 00
00. Subparticipation/Transfer (Syndication) 44
16. Final Provisions 45
Signatures 48
Appendix 1: An Example of a Calculation 50
Appendix 2: The Business Plan 54
LAMBDANET CREDIT AGREEMENT
page 3 of the agreement dated January 21, 0000
Xxxxxxxx 3: Guaranty 56
Appendix 4: The Formal Obligation of the Shareholders 57
Appendix 5: The Requirements for Payment 58
LAMBDANET CREDIT AGREEMENT
page 4 of the agreement dated January 21, 2000
PREAMBLE
LAMBDANET is a German telecommunications company that was recently set up
on April 21, 1999 under the name "Carriers' Carrier Gesellschaft GmbH" and that
has its headquarters in 30177 Hannover, Xxxxxxx-Xxxxxx-Alle 13, registered at
the Hannover Commercial Register under HRB 57818. This company changed its name
to LambdaNet Communications GmbH on October 1, 1999. The shareholders are
- FirstMark Communications Europe S.A., 0 xxx Xx. Xxxx Xxxxxx, 0000 Xxxxxxxxx
(that is primarily held by FirstMark Communications International LLC with
its headquarters in 000 Xxxxxxx Xxxxxx, 00000 Xxx Xxxx, Xxxxxx Xxxxxx) and
that acquired the business shares from the original shareholder FirstMark
Fiber Holdings, L.L.C., Corporate Trust Center, 0000 Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000, Xxxxxx Xxxxxx pursuant to the transfer
agreement of the notary public Xx. Xxxxxxx Xxxxxx, Frankfurt am Main, dated
January 19, 2000
- Xxxxxx Xxxxx, engineer, born on January 28, 1954, residing in Xxxxx Xxxx
00, 00000 Xxxxxxxxx,
- Xx. Xxxxx Xxxxx, born on June 10, 1963, residing in
Xxxxxxx-Xxxxxxxx-Xxxxxxx 00, 53115 Bonn,
- Xx. Xxxxxx Xxxxxxx, born on June 20, 1965, residing in Xxxxxxxx 00, 00000
Xxxxxxxx and
- LambdaNet Communications Mitarbeiter GbR
LAMBDANET has been furnished with equity capital amounting to 32,200,000 Euros
since November 1, 1999.
In the framework of the liberalisation of the European telecommunications
market, LAMBDANET is planning to build up a pan-European network for furnishing
telecommunications services. In the first stage, LAMBDANET will be building and
operating up a glass-fibre network in Germany measuring 3,200 kilometres where
21 cities will be connected with one another. For this purpose, already laid
blank fibre capacities (what are known as "dark fibres") of Gasline GmbH & Co.
KG ("GASLINE"), Xxxxxxxxxxxxxx 00 in Essen will be rented on long-term basis for
10 years (with an option for Lambdanet to extend the agreement for another 8
years) pursuant to the "Agreement on Using Waveguides and System Equipment
Spaces" between Lambdanet and Gasline dated July 14, 1999. The optical and
electronic components of the network shall be supplied by NORTEL DASA pursuant
to the turnkey general contractor agreement dated September 21, 1999 between
Lambdanet and Nortel DASA Network Systems GmbH & Co. KG with its headquarters in
Xxxxxxxxxxx 00 - 00, 00000 Xxxxxxxxx xx Xxxx (hereinafter referred to as "NORTEL
DASA") for 46,539,974 German Marks. Lambdanet shall undertake configuring the
network itself. The network is planned for operation by January 1, 2000.
In this process, we are primarily intending to offer these products and
services to other telephone companies and Internet service providers ("Carriers'
Carrier" business) that do not have their own infrastructure or that would like
to extend their capacities in this fashion. LAMBDANET is offering the following
products at the moment:
LAMBDANET CREDIT AGREEMENT
page 5 of the agreement dated January 21, 2000
- "managed bandwidth", meaning that the customer purchases a certain
transmission capacity (generally STM-1 (this is the standard for bit-rate
transmissions of 155 megabits per second) or higher) between two or several
connecting points (what are known as "points of presence") between his
network and Lambdanet's network. Here, Lambdanet guarantees the
availability of this capacity on these routers based upon certain service
level agreements (SLA's). The customer's transmission is brought up to the
point of presence with Lambdanet and fed into the transportation network
with Lambdanet's equipment.
- "wavelengths", meaning that the customer purchases the exclusive right of
using a certain wavelength on certain routes. The carrier only provides the
photonic equipment such as laser equipment, amplifier units or other
hardware required for transporting data. All of the routers (SDH component
parts) come from the purchaser of the wavelength. This means that the
customer will have its "own" exclusive virtual fibre branch de-facto at
significantly lower costs than "genuine" blank fibre capacities.
- "co-location", meaning providing areas for installing / operating the
customer's component parts at each of Lambdanet's point of presence. These
areas are generally standardised in "racks" (standardised sizes for
switchboxes). The customer is provided with the power supply, air
conditioning, 24-hour access and being in the immediate area of the points
of presence.
The following loan serves the purpose of financing the project of LAMBDANET
described above. The banks shall make the availability of portions of the
overall loan dependant upon LAMBDANET's initial success. There is agreement on
quantifying this initial market success by means of purchase contracts. The
total loan shall be paid back from the cash flow earned from the project. The
cash flow shall be forecast in the Business Plan dated November 12, 1999
(Version 6.9) as per Appendix 2 of the Credit Agreement.
LAMBDANET CREDIT AGREEMENT
page 6 of the agreement dated January 21, 2000
DEFINITIONS
ANNUALISED EBITA means EBITA multiplied by 2
GUARANTOR is NORTEL DASA and/or a third party that the ARRANGERS accept
BUSINESS PLAN means the 5-year projections for the PROJECT passed by the
management in each case and submitted to the lenders including the profit and
loss account, the balance sheet, the cash flow forecast and strategic planning
with an appropriate degree of details for implementing these projects.
CASH FLOW AVAILABLE FOR SERVICING THE DEBT means the consolidated profit for the
year/not loss for the year (the net income) of the BORROWER in the last 6-month
period of time plus
(i) lowering the working capital without taking the liquid funds into
consideration during this period of time
(ii) interest and other financial expenditures payable towards the TOTAL DEBT
during this period of time
(iii) depreciation during this period of time, and
(iv) drawing on the equity-like contribution during this period of time.
minus
(i) increases in the working capital without including the liquid funds during
this period of time and
(ii) investment expenditures that were made during this period of time.
EBITA (EARNINGS BEFORE INTEREST, TAX, DEPRECIATION AND AMORTISATION) means the
net turnover for the last 6-month period of time in each case minus the working
capital before the BORROWER's extraordinary income/expenditures, interest
income/expenditures, taxes and depreciation.
EQUITY-LIKE CONTRIBUTIONS are calculated as the total of the capital paid in
(subscribed capital plus capital reserves), secondary partner's loans and/or
other secondary loans and deferred payments under the GASLINE LOAN AGREEMENT,
presuming that the former is unambiguously of a secondary nature. The
capitalised amount shall be included up to a maximum 12.3 thousand million
German Marks until the convertible bond is exercised.
EXCESS CASH FLOW means the CASH FLOW AVAILABLE FOR SERVICING THE DEBT minus the
SENIOR DEBT SERVICE for the last 6-month period of time in each case.
FIELD ACCEPTANCE means that the liquidating bank has a confirmation from the
BORROWER (FIELD ACCEPTANCE CERTIFICATE) on field acceptance as settled in the
additional agreement dated December 12, 1999 on the NORTEL DASA AGREEMENT.
GASLINE means GasLINE Telekommunikationsgesellschaft deutscher
Gasversorgungs-unternehmen mbH & Co. KG, Xxxxxxxxxxxxxx 00, Xxxxx.
GASLINE LOAN AGREEMENT means the loan agreement and convertible bond dated July
14, 1999, notary's document register 99/00147 of the notary public
Xxxx-Xxxxxxxxx Xxxxxx in Bochum between Lambdanet and GasLINE.
LAMBDANET CREDIT AGREEMENT
page 7 of the agreement dated January 21, 2000
GASLINE LIGHTWAVE AGREEMENT means the agreement on using the optical waveguides
and system equipment rooms dated July 14, 1999 between LAMBDANET and GASLINE.
GASLINE AGREEMENTS means the GASLINE LIGHTWAVE AGREEMENT and the GASLINE LOAN
AGREEMENT.
GROUP means FirstMark Fiber Holdings LLC or FirstMark Communications Europe S.A.
if the business shares are effectively transferred pursuant to the contract
dated January 19, 2000 before the notary public Xx. Xxxxxx, including associated
companies in the intendment of Sections 15 ff. of Aktiengesetz (the German Stock
Corporation Act) and LAMBDANET.
ACCUMULATED TURNOVER means the total accumulated net turnover of the BORROWER
from usual business activities from the time of setting up the company to each
test date less the expenditures for the capacity in the local loop area
purchased on behalf of the customer.
NETWORK ACCEPTANCE means that the liquidating bank has a confirmation from the
BORROWER (NETWORK ACCEPTANCE CERTIFICATE) that all of the PROJECT's technical
specifications are met (as agreed upon in the NORTEL DASA AGREEMENT).
NORTEL DASA AGREEMENT is the schedule-bound general contractor agreement
amounting to 46,539,974 German Marks concluded on September 21, 1999 between
NORTEL DASA and the BORROWER and each of the additional and supplementary
agreements accepted by the lenders, especially the additional agreement dated
December 31, 1999.
DEBT SERVICE COVERAGE RATIO means the CASH FLOW AVAILABLE FOR DEBT SERVICE
divided by SENIOR DEBT SERVICE for the next 6 months.
PROJECT means the BORROWER building up and operating a glass-fibre network in
Germany measuring 3,200 kilometres where 21 cities will be connected with one
another as well as providing and marketing products and services for this
purpose including the products and services mentioned in the preamble.
PROJECT AGREEMENTS include all of the essential agreements of LAMBDANET in
connection with building, installing, putting into service, operating, insuring
and maintaining the PROJECT, especially the GASLINE AGREEMENTS, the NORTEL DASA
AGREEMENT and other supply contracts with a volume of Euro 2,500,000, use
agreements for glass fibres with third parties, telecommunications licenses,
interconnection agreements, service contracts with a volume of over Euro
500,000, all of the permits required for implementing the PROJECT and the
purchasing contracts and insurance policies; the assignment agreement with
NORTEL DASA and the Fee and Undertaking Letter issued by NORTEL DASA.
QUALIFIED PURCHASING AGREEMENT: a purchasing agreement that is concluded becomes
a qualified purchasing agreement after the contracting party examines it through
bank reference with the net contractual value (including the installation fee)
and this has a positive outcome for the next 12 months after signing the
purchasing agreement, however no later than to the first possible date of
termination. Should a qualified purchasing agreement be terminated ahead of time
or the contracting party be in arrears with his obligations to pay, the
contractual value shall not be reported in the further calculation.
LAMBDANET CREDIT AGREEMENT
page 8 of the agreement dated January 21, 2000
SENIOR DEBT means all of the outstanding amounts under TRANCHES A and B on each
effective date plus the BORROWER's other collateralised or non-collateralised
liabilities (indebtedness) that rank pari passu to this CREDIT AGREEMENT
including any obligations from interest and currency securing transactions.
SENIOR DEBT SERVICE means the total of interest expenditures, other financial
expenditures and obligatory amortisation for the SENIOR DEBT.
TOTAL DEBT means the total consolidated indebtedness of the BORROWER on each
effective date.
INTEREST COVER RATIO means EBITA divided by the total of interest expenditures
and financial expenditures for the TOTAL DEBT for the next 6 months.
LAMBDANET CREDIT AGREEMENT
page 9 of the agreement dated January 21, 2000
1. EXTENDING CREDIT
1.1 The BANKS extend a loan facility amounting to
EURO 56,000,000
(in words: FIFTY-SIX million Euros)
to the BORROWER.
1.2 A part of this amount shall be made available amounting to as much as EURO
10,000,000 (in words: TEN million Euros) as a revolving Euro loan
(hereinafter referred to as "TRANCHE A")
1.3 A part of this amount shall be made available amounting to EURO 46,000,000
(in words: FORTY-SIX million Euros) as a non-revolving Euro loan
(hereinafter referred to as "TRANCHE B")
1.4 TRANCHE A and TRANCHE B together shall be hereinafter designated as
"LOANS".
LAMBDANET CREDIT AGREEMENT
page 10 of the agreement dated January 21, 2000
2. ITS PURPOSE
2.1 The amounts paid out under the LOANS shall exclusively serve the purpose
of financing investments and the corresponding expenditures including the
requirements for working capital in connection with the PROJECT of the
BORROWER pursuant to the BUSINESS PLAN presented as a summary in Appendix
2. Deviations within the individual items that are more than an
accumulated EURO 500,000 shall require the consent in writing of the
BANKS.
2.2 In this process, TRANCHE A shall be used for the requirements of
intermediate financing and working capital. TRANCHE B shall serve the
purpose of financing the initial network configuration by purchasing
components from NORTEL DASA pursuant to the NORTEL DASA AGREEMENT, the
operative initial losses in accordance with the BUSINESS PLAN dated
November 12, 1999 pursuant to Appendix 2 and, if necessary, for extended
investments in accordance with each current BUSINESS PLAN.
LAMBDANET CREDIT AGREEMENT
page 11 of the agreement dated January 21, 2000
3. USING THE LOANS AND THEIR AVAILABILITY
3.1 The BORROWER may only claim the LOANS for the first time 3 BANK WORKING
DAYS after complying with all of the prerequisites for pay-out pursuant to
Number 13 of the agreement hereto and pursuant to the specification of the
subsequent conditions. The LIQUIDATING BANK shall confirm without delay
that the prerequisites for pay-out specified in Number 13 of the agreement
hereto have been complied with in writing.
3.2 The period of time of paying out TRANCHE A shall run until November 30,
2006. The period of time of payments for funds drawn under TRANCHE B shall
run to December 31, 2001 in the absence of other stipulations in the
following. The remaining amount from TRANCHE B that is not claimed at this
point in time shall become forfeited.
3.3 THE MAXIMUM AMOUNT AVAILABLE UNDER TRANCHE A IN EACH CASE
3.3.1 Euro 6,000,000 shall be available under TRANCHE A as long as the
availability covered by the agreement under TRANCHE B is below Euro
40,000,000, meaning that QUALIFIED PURCHASING AGREEMENTS amounting to
under Euro 20,000,000 have been submitted.
3.3.2 As soon as the availability covered by the agreement under TRANCHE B
reaches or exceeds Euro 40,000,000, meaning that QUALIFIED PURCHASING
AGREEMENTS amounting to at least Euro 20,000,000 have been submitted, the
availability under TRANCHE A increases to Euro 10,000,000.
3.4 THE AVAILABILITY UNDER TRANCHE B
The amount available under TRANCHE B shall be calculated from the total of
the available amount covered by the agreement and the available amount
covered by the guaranty as follows:
3.4.1 THE AMOUNT AVAILABLE THAT IS COVERED BY GUARANTY UNDER TRANCHE B:
As soon as TRANCHE A is claimed at Euro 6,000,000 for the first time and
the maximum amount of guaranty of NORTEL DASA specified in Number 13 is
effective, amounts up to the value of the supplies and services furnished
based upon the NORTEL DASA AGREEMENT as the GUARANTOR and BORROWER as it
was confirmed it in writing to the LIQUIDATING BANK shall be available to
a maximum of Euro 23,000,000.
Provided that NETWORK ACCEPTANCE has taken place and the NETWORK
ACCEPTANCE CERTIFICATE was submitted to the banks, the available amount
covered by the guaranty shall be finally reduced in accordance with the
available amount covered by the agreement increasing as a result of
further QUALIFIED PURCHASING AGREEMENTS being concluded as soon as the
available amount under Trance B reaches or exceeds a total of Euro
40,000,000 (refer to Appendix 1).
LAMBDANET CREDIT AGREEMENT
page 12 of the agreement dated January 21, 2000
3.4.2 THE AMOUNT COVERED BY AGREEMENT THAT IS AVAILABLE UNDER TRANCHE B:
3.4.2.1 A further maximum of Euro 17,000,000 beyond the amount specified under
3.3.1, i.e. a total of Euro 40,000,000, shall be available under
TRANCHE B as soon as it is permissible to claim Euro 15,000,000 in
accordance with the following calculation on the pay-out date for funds
drawn (meaning there are QUALIFIED PURCHASING AGREEMENTS amounting to
Euro 7,500,000) at the amount resulting from the following calculation:
(also refer to Appendix 1):
The total of the net contractual values (including the installation
fee) of QUALIFIED PURCHASING AGREEMENTS x a factor of 2.
3.4.2.2 A further maximum of Euro 6,000,000 shall be available under TRANCHE B
when it is permissible to claim Euro 40,000,000 and more because
QUALIFIED PURCHASING AGREEMENTS have been submitted in accordance with
the calculation under Number 3.4.2.1 of the agreement hereto. The
prerequisite of this is the fact that QUALIFIED PURCHASING AGREEMENTS
have been submitted with a net contractual value (including the
installation fee) of more than Euro 20,000,000.
3.4.2.3 The maximum amount available covered by the agreement under TRANCHE B
shall be reduced after the availability of claims covered by guaranty
under TRANCHE B expire as of June 15, 2000 by the amount of the claim
covered by guaranty as defined in Number 4.2 of the agreement hereto.
3.4.2.4 The maximum available amount covered by the agreement under TRANCHE B
shall be tested by the LIQUIDATING BANK within three bank working days
after the QUALIFIED PURCHASE CONTRACTS have been submitted, however
ascertained at a maximum of twice per calendar month. The LIQUIDATING
BANK shall inform the BORROWER, the GUARANTOR and the BANKS of the
result of ascertaining this and the maximum available amount covered by
the agreement that results from this without delay in writing. The
division of availability established by the LIQUIDATING BANK shall
continue to apply until the next ascertainment and shall be recognised
as binding by the BORROWER, the GUARANTOR and the BANKS subject to
obvious errors.
3.5 The BORROWER shall submit a request for payment in writing to the
LIQUIDATING BANK before drawing funds each time or before later
prolongations no later than by 10 o'clock Frankfurt time on the fourth
BANK WORKING DAY before the desired date of claiming using the sample
made available by the BANKS and attached in Appendix 6. It has to have
the following minimum content:
- the amount to be called up
- the desired date of claim within the period of payment pursuant
to Numbers 3.2 and 3.4 of the agreement hereto that is on a BANK
WORKING DAY pursuant to Number 3.11 of the agreement hereto,
- the desired period of locking interest and the desired partial
amount pursuant to the specifications of Numbers 3.6 and 3.7
of the agreement hereto that have to be chosen in such a
fashion that the amount of obligatory amortisation due on each
effective date pursuant to Number 8 of the agreement hereto is
covered by the amount of one or several drawings that are due
on this day,
LAMBDANET CREDIT AGREEMENT
page 13 of the agreement dated January 21, 2000
- the purpose (funds that are not intended for the requirements of
working capital have to be documented by submitting invoices from
amounts of Euro 100,000 upwards) and the desired tranche that it
is supposed to be drawn under.
If the BORROWER does not provide information on the period of locking interest,
provides it late or incompletely, the further claim shall be made as a Euro loan
with a period of locking interest of 3 months reserving ourselves the right in
the regulation in Numbers 3.6 and 3.11 of the agreement hereto. However, if an
amount of obligatory amortisation was due within four months since the end of
the current interest period, it shall be made with a period of locking interest
that ends with the date of payment due of the amount of obligatory amortisation.
A request for payment may not be revoked and it shall constitute the BORROWER's
duty of acceptance.
3.6 The BORROWER may claim TRANCHE B as a Euro loan with periods of locking
interest (hereinafter referred to as the "PERIOD OF LOCKING INTEREST")
of 1, 2, 3 or 6 months in a maximum of 20 partial amounts. PERIODS OF
LOCKING INTEREST that deviate from this shall only be possible with the
consent of the LIQUIDATING BANK. The partial amounts may not fall below
a minimum amount of Euro 2,000,000 and have to be whole-number
multiples of Euro 500,000. At least 10 BANK WORKING DAYS have to be
between two dates of claiming. The first PERIOD OF LOCKING INTEREST
shall begin on the first date claiming and shall end on the last day of
the PERIOD OF LOCKING INTEREST. Each subsequent PERIOD OF LOCKING
INTEREST shall begin with the expiration of the previous PERIOD OF
LOCKING INTEREST. Notwithstanding the statements above, the first
PERIOD OF LOCKING INTEREST shall expire under TRANCHE B for all claims
(with the exception of the first claim) on the same day as the current
PERIOD OF LOCKING INTEREST for all of the previous claims. These claims
shall then be consolidated on the last day of this PERIOD OF LOCKING
INTEREST in each case and shall be treated as one claim.
3.7 The BORROWER may claim Euro loans under TRANCHE A with PERIODS OF
LOCKING INTEREST of 1, 2, 3 and 6 months. PERIODS OF LOCKING INTEREST
that deviate from this shall only be possible with the consent of the
LIQUIDATING BANK. The partial amounts may not fall below a minimum
amount of Euro 500,000 and have to be whole-number multiples of
100,000.
3.8 Euro loans shall be extended under the proviso of the availability of
the corresponding funds on the Euro market. If it is not possible to
use it as a Euro loan, it shall be claimed pursuant to the
specifications of the agreements to be made between the BORROWER and
LIQUIDATING BANK in this case.
3.9 It shall not be possible to re-extend the borrowed funds of Tranche B.
Tranche A may be used on a revolving basis.
3.10 The LOANS shall be posted to the account 1 024 061 (pay number of the
BORROWER at the LIQUIDATING BANK) of the BORROWER with the LIQUIDATING
BANK, Friedrichshafen branch office, bank code number 651 800 05. The
LIQUIDATING BANK shall notify the BORROWER of the corresponding
sub-accounts for TRANCHE A and TRANCHE B separately.
LAMBDANET CREDIT AGREEMENT
page 14 of the agreement dated January 21, 2000
3.11 BANK WORKING DAYS in the intendment of the agreement hereto shall be
days when banks are open in Munich and Frankfurt and when the European
payment system TARGET is available for fulfilling payments in EUROS. If
the last day of a PERIOD OF LOCKING INTEREST does not fall upon a BANK
WORKING DAY, the PERIOD OF LOCKING INTEREST shall end on the subsequent
BANK WORKING DAY. If this day fell upon the next calendar month, the
PERIOD OF LOCKING INTEREST shall end as early as on the previous BANK
WORKING DAY.
LAMBDANET CREDIT AGREEMENT
page 15 of the agreement dated January 21, 2000
4. THE CONDITIONS
4.1 An interest rate based upon EURIBOR shall be agreed upon for claiming
TRANCHE A plus the applicable margin pursuant to Number 4.3 of the
agreement hereto.
4.2 An interest rate shall be agreed upon for claims on TRANCHE B covered
by guaranty based upon EURIBOR plus a margin of 1.00% p.a. An interest
rate shall be agreed upon for claims on TRANCHE B covered by the
agreement (as defined in the following) based upon EURIBOR plus the
applicable margin pursuant to Number 4.3.
Regardless of whether QUALIFIED PURCHASING AGREEMENTS have been
submitted, claims under TRANCHE B to an amount of the value of the
supplies and services from the NORTEL DASA CONTRACT confirmed by the
GUARANTOR and BORROWER for the purpose of the agreement hereto, however
no more than amounting to Euro 23,000,000 with the proviso of the
regulation below, shall be deemed as claims covered by guaranty.
Presuming that NETWORK ACCEPTANCE has taken place and a NETWORK
ACCEPTANCE CERTIFICATE has been submitted to the banks, the amount of
the claims covered by guaranty shall be reduced as soon as the total of
the amounts available under TRANCHE B reach Euro 40,000,000 by the
amount that it exceeds Euro 40,000,000 pursuant to the calculation
presented in Number 3.4.2.1 based upon QUALIFIED PURCHASING AGREEMENTS
being submitted on a date of ascertaining that has to be before June
30, 2000 (hereinafter referred to as "claims covered by guaranty").
To the extent that claims under TRANCHE B shall be not deemed as claims
covered by guaranty, they shall be deemed as claims covered by the
agreement (hereinafter referred to as "claims covered by the
agreement").
The conditions settled in Clause 4 shall also apply independent of the
duration of each PERIOD OF LOCKING INTEREST from the next BANK WORKING
DAY following a date of ascertaining pursuant to Number 3.4.2.4. The
LIQUIDATING BANK shall notify the BORROWER, the GUARANTOR and the BANKS
of the amounts of the claims covered by guaranty and covered by the
agreement together with the notification pursuant to Number 3.4.2.4 of
the agreement hereto.
4.3 The applicable margin (hereinafter referred to as the "applicable
margin") for claims of TRANCHE A and claims covered by the agreement of
TRANCHE B shall be ascertained as follows depending upon the ratio of
the "senior debt: EBITA":
SENIOR DEBT: EBITA applicable margin
------------------
negative or above 6.00 x 3.75% p.a.
4.50 - 6.00 x 3.50% p.a.
3.50 - 4.49 x 3.25% p.a.
2.50 - 3.49 x 2.75% p.a.
below 2.50 x 1.75% p.a.
The applicable margin for claims covered by the agreement may be
reduced up to a maximum of 0.35% points during the entire period of
credit extension per calendar half-year. Under the proviso of the
regulation in Number 4.2, it shall apply from the
LAMBDANET CREDIT AGREEMENT
page 15 of the agreement dated January 21, 2000
next day of locking interest after submitting the appropriate monthly
or quarterly report to the LIQUIDATING BANK.
4.4 EURIBOR designates the average interest rate stated as a per annum
interest rate that is ascertained based upon listings of leading banks
on the European Interbank EURO market for borrowing money in Euros for
a period of time that corresponds to each PERIOD OF LOCKING INTEREST
and that is published 2 BANK WORKING DAYS before the beginning of each
PERIOD OF LOCKING INTEREST at about 11 o'clock Brussels time on page
248 of the Bridge Telerate Service.
4.5 If an appropriate interbank rate is not published on this day, the
interbank rate shall be calculated for the appropriate interest period
as the arithmetic mean rounded to the next 1/16% of the interest rates
per annum that is announced to the BANKS at about 11 o'clock Frankfurt
time 2 BANK WORKING DAYS before the first day of each PERIOD OF LOCKING
INTEREST by three large-scale banks for large-scale banks to borrow
money at a German bank place amounting to each claim in German Marks
for the duration of each interest period.
4.6 If the BANKS have only been submitted designations from two large-scale
banks, the interbank rate shall be announced based upon the
designations of these two large-scale banks. If there are not
designations from at least two large-scale banks available, the
interest rate for the appropriate interest period shall consist of the
margin pursuant to Number 4.1 of the agreement hereto and the actual
re-financing costs of the BANKS for amounts that correspond to the
amount, currency and interest period of each claim.
4.7 The interest shall be paid at the end of a PERIOD OF LOCKING INTEREST
with PERIODS OF LOCKING INTEREST of up to three to four months,
otherwise quarterly retroactively. The interest and the loan commitment
fee shall be calculated in accordance with the Euro interest method on
the basis of a 360-day year (365/360 or 366/360 days).
4.8 The loan commitment fee for the LOANS shall be 0.875% per annum for the
borrowed funds committed, but not claimed, beginning on the day of
signing the credit AGREEMENT. The loan commitment fee shall be
calculated decursively on a quarterly basis and called in from the
project account product Number 3.10 of the LIQUIDATING BANK.
LAMBDANET CREDIT AGREEMENT
page 17 of the agreement dated January 21, 2000
5. OUTLAYS
The BORROWER has to reimburse the BANKS all costs and other
expenditures that they incur or are incurred (especially external
rights, consultation and examination costs) in connection with
negotiating, concluding, implementing and syndicating the agreement
hereto or the claims based upon this for the BANKS because of
consulting external offices. To the extent that costs and expenditures
are incurred above Euro 10,000 for individual measures such as
appointing external experts or over Euro 150,000 altogether, the prior
consent of the BORROWER shall be obtained for this or further measures.
LAMBDANET CREDIT AGREEMENT
page 18 of the agreement dated January 21, 2000
6. REMUNERATIONS
The BANKS shall receive a one-time remuneration for
- structuring (a structuring fee/arranging fee)
- underwriting (an underwriting fee) and
- syndicating (the up-front fee).
Beyond this, an annual remuneration shall accrue for handling LOANS and
administrating collateral that shall be payable to the LIQUIDATING BANK or the
COLLATERAL POOL LEADER.
The amount of these remunerations shall be established in a separate
remuneration letter. One-time remuneration shall be payable within 30 days after
signing the agreement hereto. The annual remuneration shall also be payable
within 30 days after signing the agreement hereto for the first year and
afterwards in accordance with the remuneration letter.
LAMBDANET CREDIT AGREEMENT
page 19 of the agreement dated January 21, 2000
7. TERM
The LOANS shall have a term to DECEMBER 31, 2006.
LAMBDANET CREDIT AGREEMENT
page 20 of the agreement dated January 21, 2000
8. REPAYMENT
8.1 OBLIGATORY AMORTISATION
All of the amortisation specified in Number 8.1 shall be OBLIGATORY
AMORTISATION.
8.1.1 TRANCHE B shall be amortised in 10 semi-annual rates, for the first
time on JUNE 30, 2002. The amount of the semi-annual rates shall be
ascertained by the repayment percentages of the outstanding amount of
TRANCHE B as per December 31, 2001 specified in the following:
June 30, 2002 5.00%
December 31, 2002 5.00%
June 30, 2003 7.50%
December 31, 2003 7.50%
June 30, 2004 11.25%
December 31, 2004 11.25%
June 30, 2005 12.50%
December 31, 2005 12.50%
June 30, 2006 13.75%
December 31, 2006 13.75%
8.1.2 Claims covered by guaranty under TRANCHE B and calculated pursuant to
the specification of Number 4.2 of the agreement hereto shall be paid
back on June 15, 2000 in addition to the amortisation mentioned above
pursuant to Number 8.1.1.
8.1.3 TRANCHE A claimed shall be amortised no later than at the end of the
term.
8.1.4 If the amount available under TRANCHE B is reduced in retrospect as a
result of QUALIFIED PURCHASING AGREEMENTS not being applicable and if
funds are drawn that exceed this reduced amount available, the amounts
that exceed the available amount shall be paid back within 30 days
after the QUALIFIED PURCHASING AGREEMENTS not being applicable unless
the amount available is raised within the period of time mentioned
above by submitting new QUALIFIED PURCHASING AGREEMENTS to at least the
amount that also covers the amount exceeded.
8.2 If a day of repayment falls upon a day that is NOT a BANK WORKING DAY
pursuant to Number 3.11 of the agreement hereto, the subsequent BANK
WORKING DAY
LAMBDANET CREDIT AGREEMENT
page 21 of the agreement dated January 21, 2000
shall be the day of repayment unless this day falls upon the next
calendar month. Then the day of repayment is the next previous BANK
WORKING DAY. The term of the LOANS shall be extended or shortened
correspondingly.
8.3 The BORROWER shall ensure with the selection of the PERIODS OF LOCKING
INTEREST and the amount of the claim that the last day or its amount
agrees with the date of payment due of the OBLIGATORY AMORTISATION.
Otherwise, he shall be owe the BANKS compensation for prepayment.
8.4 Apart from the OBLIGATORY AMORTISATION pursuant to Number 8.1,
voluntary special amortisation shall also be possible amounting to
whole-number multiples of Euro 1 million on TRANCHE B towards the end
of a PERIOD OF LOCKING INTEREST. The BORROWER shall notify the
LIQUIDATING BANK of voluntary special amortisation ten BANK WORKING
DAYS before amortisation in writing. They shall be set off against the
outstanding OBLIGATORY AMORTISATION of TRANCHE B that was due last.
8.5 Apart from amortisation pursuant to Number 8.1, the following
OBLIGATORY AMORTISATION (hereinafter referred to as "OBLIGATORY SPECIAL
AMORTISATION") shall be paid on TRANCHE B:
a) OBLIGATORY SPECIAL AMORTISATION amounting to 100% of the income from
a purchase of an investment or asset after June 30, 2000 over an
accumulated value of more than Euro 500,000 that is not reinvested
in the project again within 3 months.
b) OBLIGATORY SPECIAL AMORTISATION amounting to 50% of the EXCESS CASH
FLOW. The EXCESS CASH FLOW shall be used as a basis on a quarterly
basis for the first time on December 31, 2001 to ascertain whether
OBLIGATORY SPECIAL AMORTISATION shall be paid from EXCESS CASH FLOW.
The OBLIGATORY SPECIAL AMORTISATION shall no longer be applicable as
soon as the reference number of the "consolidated SENIOR DEBT to the
consolidated ANNUALISED EBITA" falls below 1.0 to 1.0 and remains
under this value afterwards on three consecutive quarterly effective
dates pursuant to Number 12.4.3.
The OBLIGATORY SPECIAL AMORTISATION shall be paid at the end of the
current PERIOD OF LOCKING INTEREST. They shall be set off against the
outstanding OBLIGATORY AMORTISATION due last.
All of the OBLIGATORY SPECIAL AMORTISATION has to be made in a minimum
amount of Euro 200,000 and make up a whole-number multiple of Euro
100,000. To the extent that it falls below the minimum amount, the
obligation for special amortisation shall no longer apply.
LAMBDANET CREDIT AGREEMENT
page 22 of the agreement dated January 21, 2000
9. DELAY IN PERFORMANCE
Should the BORROWER come wholly or partly into arrears with his
obligations to pay from the agreement hereto or the BANKS terminate
pursuant to Number 14 of the agreement hereto because of delay in
performance, the BANKS shall be entitled to assert an interest rate
amounting to the interest rate settled under Number 4.1 plus 1.5% per
annum for the period of time from the delay in performance until the
amounts are received as damage caused by delayed performance. The claim
to replacing further damage shall remain unaffected by this. The
BORROWER shall be at liberty to prove that there is lesser damage.
LAMBDANET CREDIT AGREEMENT
page 23 of the agreement dated January 21, 2000
10. COLLATERAL
The LOANS shall collateralised as follows:
10.1 ASSIGNMENT OF A CLAIM FOR SECURITY
Assigning all present and future claims from
- all insurance policies in connection with the project, especially
from fire insurance, insurance against breakdown of machinery,
liability and loss-of-profit insurance that has or is to be taken
out (whereby these insurance policies shall be taken out with
policies and well-known insurance companies that the BANKS approve).
If necessary, the BANKS shall be entered as preferred recipients.
- all essential PROJECT CONTRACTS including the appendix, addenda,
supplemental, modifying, additional, succeeding or other agreements,
especially the NORTEL DASA CONTRACT, the GASLINE CONTRACTS, the Fee
and Undertaking Letter and the Assignment Agreement with NORTEL
DASA.
- all permits, approvals and concessions that are necessary for
erecting and operating the PROJECT to the extent that they can be
assigned. Otherwise, the authorisation for utilisation shall be
assigned to the extent that this is legally permissible.
- all purchase contracts concluded or still to be concluded with third
parties including the appendix, addenda, supplemental, modifying,
additional, succeeding or other agreements.
- that Lambdanet is or will be entitled to based upon registered
patents.
LAMBDANET CREDIT AGREEMENT
page 24 of the agreement dated January 21, 2000
10.2 TRANSFER OF PROPERTY BY WAY OF RECEIPT
10.2.1 Transfer of space by way of receipt of all plants and machines on the
rented pieces of real estate of Bayernfonds Immobiliengesellschaft mbH
& Co. KG, the building Hannover Forum in Pelikan Xxxxxxx KG, Innere
Xxxxxx Xxxxxxx 00, 00000 Xxxxxx, unencumbered from the rights of third
parties with the exception of reservations of title and landlord's
liens.
10.2.2 Transfer of space by way of receipt of all plants in the present
locations free of the rights of third parties with the exception of
reservations of title and landlord's liens.
10.3 ATTACHMENT
10.3.1 Attaching all present and future claims from the project accounts
specified in Number 11.
10.3.2 Attaching all business interests of LAMBDANET while the shareholders
waive rights of recourse towards the company in case of utilisation.
10.4 GUARANTY
The maximum amount guaranty on a maximum of Euro 23,800,000 from NORTEL
DASA payable upon first demand pursuant to Appendix 4.
10.5 FORMAL OBLIGATION OF THE SHAREHOLDERS IN FAVOUR OF THE BANKS
Sponsors undertaking pursuant to Appendix 5 of the agreement hereto by
FirstMark Communications International, Inc. and FirstMark Fiber
Holdings LLC or FirstMark Communications Europe S.A. if the business
shares are effectively transferred pursuant to the contract dated
January 19, 2000 before the notary public Xx. Xxxxxx.
10.6 SUBORDINATION DECLARATION
- GASLINE giving up the position of priority with demands from the
GASLINE LOAN AGREEMENT
LAMBDANET CREDIT AGREEMENT
page 25 of the agreement dated January 21, 2000
11. THE PROJECT ACCOUNT
The BORROWER shall ensure that all payments to him are made to a project account
to be set up at the LIQUIDATING BANK. The BORROWER shall only issue orders for
payment in such a fashion that payment is made in the following order, whereby
the LIQUIDATING BANK does not have to carry out orders that deviate from this:
- current operating costs and taxes,
- maintenance costs that ensure current operation,
- interest on this loan, and
- amortising this loan pursuant to Number 8.
LAMBDANET CREDIT AGREEMENT
page 26 of the agreement dated January 21, 2000
12. IMPOSED CONDITIONS
12.1 INFORMATION ON CORPORATE DEVELOPMENT
The BORROWER has to submit the following documents to the LIQUIDATING BANK
during the term of the LOANS:
12.1.1 The BORROWER shall submit his annual financial statement including the
appendix and the annual report no later than 120 days after the end of
each fiscal year. The BORROWER shall have the annual financial
statement audited by a balance sheet auditor acceptable to the BANKS at
the request of the BANKS and hand over the audit report to the
LIQUIDATING BANK. The BORROWER shall issue the BANKS appropriate amount
of all information upon request that the BANKS consider necessary for
assessing the economic relations of the BORROWER. The BORROWER shall
apply the principle for corporations in accordance with commercial law
when preparing the statements.
12.1.2 The BORROWER shall submit statements beginning with the month of
January 2000 ON A MONTHLY BASIS and from January 2001 ON A QUARTERLY
BASIS IN WRITING including the BORROWER's profit and loss account,
balance sheet and cash flow statement as well as information on his
liquidity situation (the amount of the line claimed, cash on hand)
including a comparison of the actual figures in relation to the plan
figures of each BUSINESS PLAN and an explanation of the deviations.
This information shall be submitted to the LIQUIDATING BANK no later
than 15 working days and from January 2001 no later than one month
after the end of the month.
12.1.3 The BORROWER shall submit the signed and updated BUSINESS PLAN for the
BORROWER for the coming 5 fiscal years 30 days before beginning a new
fiscal year, for the first time on December 1, 2000.
12.1.4 The BORROWER shall pass on the minutes of all general meetings of
shareholders of the BORROWER and their resolutions to the LIQUIDATING
BANK without delay.
12.1.5 The BORROWER shall submit a short report tailor-made to the needs of
the BANKS on the course of sales & distribution, the purchase contracts
concluded including the contracting party, the amount payable, the
duration and other peculiarities, the network status, technical
availability, operational readiness, the turnover achieved, the
operating costs and all other reference numbers pursuant to Number 12.4
and all extraordinary business transactions of the corresponding period
of time under report on a monthly basis until December of 2000 within
15 working days after the end of the month and on a quarterly basis
from January of 2001 within one month after the end of the quarter.
Beyond this, the LIQUIDATING BANK shall be notified of all
extraordinary business transactions and significant technical
malfunctions within one week. Correcting the malfunctions, the costs
involved in correcting the malfunctions, the corresponding time
required and other consequences that this has upon the operation of the
PROJECT shall also be presented. The BANKS shall have the right to
demand an appropriate adjustment of the report to their needs typical
for a bank at any time.
LAMBDANET CREDIT AGREEMENT
page 27 of the agreement dated January 21, 2000
12.2 CORPORATE MEASURES REQUIRING INFORMATION
The BORROWER shall instruct the LIQUIDATING BANK in writing on the measures
listed in the following during the term of the LOANS and in this process it
shall explain whether and how these measures affect and will affect the risk
positions of the BANKS:
12.2.1 The intention to claim loans or re-borrowing loan liabilities beyond
the existing credit line and credit lines, even of liabilities similar
to loans, with the exception of credit rent to an amount of Euro
300,000 and the usual supplier loans.
12.2.2 The intention of EXTENDING A LOAN or assuming guaranties or guarantees
or ASSUMING similar OBLIGATIONS to the extent that they exceed the
amount of Euro 300,000 altogether.
12.2.3 The intention of MAKING AVAILABLE existing or future assets as
COLLATERAL to other creditors. The reservations of title, landlord's
liens and General Terms and Conditions rights of lien usual for the
industry shall be excepted.
12.2.4 The BORROWER's intention of ACQUIRING COMPANIES and STARTING UP
BUSINESSES, directly or through subsidiaries or second-tier
subsidiaries or third parties or transformations, no matter what type
if they exceed a purchase price or equity capital share of Euro
2,000,000.
12.2.5 The intention of making essentially new ASSETS and FINANCIAL
INVESTMENTS that exceed a value of Euro 500,000 and that are not
contained in the BUSINESS PLAN of November 12, 1999 pursuant to
Appendix 2.
12.2.6 The intention of MAKING CHANGES IN THE GROUP OF SHAREHOLDERS of the
BORROWER and its parent company. This shall also apply to changes in
the interest ratios within the existing group of shareholders. This
shall not apply to the planned consolidation of Sandler Capital at
FirstMark International and changes based upon on the stock option plan
for the employees of the BORROWER amounting to 15% of each nominal
equity capital.
12.2.7 The intention of MAKING ESSENTIAL CHANGES AND/OR ESSENTIAL EXTENSIONS
IN THE BUSINESS PURPOSE, especially building up a pan-European network.
12.2.8 All business transaction that have an essentially negative effect and
can have an essentially negative effect on the assets, liquidity and
earnings position.
12.2.9 The BORROWER shall additionally inform the LIQUIDATING BANK on
extraordinary business developments currently and near time.
12.2.10 The intention of changes in the management.
If the risk assessment of the BANKS for their claims from the agreement hereto
increases as a result of these measures, the BANKS, notwithstanding further
claims to subsequent collateralisation, shall have the right to demand from the
BORROWER a strengthening of their collateral while setting a period of time of
at least 20 BANK WORKING DAYS.
LAMBDANET CREDIT AGREEMENT
page 28 of the agreement dated January 21, 2000
12.3 OTHER CONDITIONS IMPOSED
12.3.1 The BORROWER shall do everything that is in its legal power to
NOT TO EFFECT ANY PROFIT DISTRIBUTIONS or other payments to
its shareholders or under subordinated loans already extended
or still to be extended until June 30, 2003. Interest payments
under the GASLINE LOAN AGREEMENT shall be excluded from this
to the extent that the interest rate it is based upon does not
exceed 9% per annum and there is no grounds for termination
pursuant to Number 14. Afterwards, profit distributions or
payments from the EXCESS CASH FLOW according to the
corresponding OBLIGATORY AMORTISATION shall be possible if the
reference number of the consolidated SENIOR DEBT to the
consolidated ANNUALISED EBITA falls below 2.0:1 for at least 6
consecutive months and does not rise above this level again
after the corresponding profit distributions or payments and
there is no grounds for termination pursuant to Number 14. The
signing shareholders of the BORROWER shall not pass any
resolutions or the First Xxxx Fiber Holdings LLC or FirstMark
Communications Europe S.A. in the case of the business shares
being effectively transferred before the notary public Xx.
Xxxxxx pursuant to the contract dated January 19, 2000, and
FirstMark Communications International, LLC shall not pass any
resolutions that stand in the way of these obligations. Paying
salaries shall be excluded from this.
12.3.2 The signing shareholders of the BORROWER oblige themselves or
the First Xxxx Fiber Holdings LLC or FirstMark Communications
Europe S.A. in the case of the business shares being
effectively transferred before the notary public Xx. Xxxxxx
pursuant to the contract dated January 19, 2000, and FirstMark
Communications International, LLC oblige themselves in a
separate support letter not to effect ANY LOWERING OF CAPITAL
when the lowering amount is distributed.
12.3.3 The BORROWER shall not deal in any FUTURES that are
SPECULATIVE TRANSACTIONS.
12.3.4 The BORROWER shall only effect TRANSACTIONS WITHIN THE GROUP
at essentially comparable conditions as with third parties
that do not belong to the Group, especially acceptance
contracts with First Xxxx Communications Deutschland GmbH.
12.3.5 The BORROWER shall maintain each of the FINANCIAL COVENANTS
specified in Number 12.4 in accordance with the regulations
made there.
12.3.6 The BORROWER shall OPERATE the PROJECT in accordance with
RECOGNISED PRACTICE.
12.3.7 The BORROWER shall do everything in his legal power to
maintain all of the permits and IMMATERIAL RIGHTS to the
extent that they are necessary for building and operating the
PROJECT.
12.3.8 The BORROWER has to keep all of his buildings, machines, other
plants, stocks and similar things sufficiently insured against
the usual risks during the term of the loans and TO PROVE THE
INSURANCE COVERAGE to the LIQUIDATING BANK.
12.3.9 The BORROWER shall not effect any asset sales with an
accumulated value of more than Euro 500,000 before June 30,
2000 without the consent of the BANKS.
LAMBDANET CREDIT AGREEMENT
page 29 of the agreement dated January 21, 2000
12.4 FINANCIAL COVENANTS
The financial covenants refer to each BUSINESS PLAN and the BORROWER shall
comply with them as follows:
12.4.1 Accumulated Minimum Turnover:
ON: ACCUMULATED TURNOVER
June 30, 2000 8,000 German Marks
September 30, 2000 17,000 German Marks
December 31, 2000 30,000 German Marks
March 31, 2001 40,000 German Marks
June 30, 2001 55,000 German Marks
September 30, 2001 65,000 German Marks
December 31, 2001 85,000 German Marks
March 31, 2002 100,000 German Marks
June 30, 2002 125,000 German Marks
September 30, 2002 150,000 German Marks
December 31, 2002 170,000 German Marks
12.4.2 Minimum Annualised EBITA:
ON: MINIMUM ANNUALISED EBITA
June 30, 2000 - 23,500,000 German Marks
September 30, 2000 - 10,000,000 German Marks
December 31, 2000 3,000,000 German Marks
March 31, 2001 4,000,000 German Marks
June 30, 2001 5,000,000 German Marks
September 30, 2001 10,000,000 German Marks
December 31, 2001 15,000,000 German Marks
March 31, 2002 20,000,000 German Marks
June 30, 2002 30,000,000 German Marks
September 30, 2002 35,000,000 German Marks
December 31, 2002 42,000,000 German Marks
March 31, 2003 43,000,000 German Marks
June 30, 2003 45,000,000 German Marks
September 30, 2003 48,000,000 German Marks
December 31, 2003 51,000,000 German Marks
March 31, 2004 55,000,000 German Marks
June 30, 2004 65,000,000 German Marks
September 30, 2004 70,000,000 German Marks
December 31, 2004 76,000,000 German Marks
March 31, 2005 80,000,000 German Marks
June 30, 2005 85,000,000 German Marks
September 30, 2005 88,000,000 German Marks
December 31, 2005 93,000,000 German Marks
March 31, 2006 95,000,000 German Marks
June 30, 2006 100,000,000 German Marks
September 30, 2006 100,000,000 German Marks
LAMBDANET CREDIT AGREEMENT
page 30 of the agreement dated January 21, 2000
12.4.3 The maximum ratio of the "SENIOR DEBT to the consolidated ANNUALISED
EBITA"
AFTER: MINIMUM ANNUALISED EBITA
----- ------------------------
June 30, 2001 11.00
September 30, 2001 7.00
December 31, 2001 5.00
March 31, 2002 4.00
June 30, 2002 2.25
September 30, 2002 2.25
December 31, 2002 2.00
March 31, 2003 2.00
June 30, 2003 2.00
September 30, 2003 2.00
December 31, 2003 and afterwards 1.50
12.4.4 The minimum DEBT SERVICING COVERING RATIO:
FROM: minimum DEBT SERVICING COVERING RATIO
March 31, 2002 to March 30, 2004 1.1
March 31, 2004 to the end of the loan term 1.5
LAMBDANET CREDIT AGREEMENT
page 31 of the agreement dated January 21, 2000
13. THE PREREQUISITES FOR PAYING OUT
The prerequisite for paying out the borrowed funds shall be that the following
documents are submitted or certified. They have to satisfy the requirements of
the content and form of this credit agreement.
13.1 Submitting a certified copy of the current articles of partnership and
excerpts from the commercial register of the BORROWER in the version
valid when the contract is concluded.
13.2 Submitting the PROJECT CONTRACTS
13.3 Proof of the inflow of equity capital amounting to Euro 32,200,000 and,
to the extent that residual funds are available, payment to the account
mentioned in Number 11
13.4 Submitting the BUSINESS PLAN accepted by the BANKS that was prepared
based upon the overall economic data of the project contracts specified
under Number 13.2. It shall be submitted on electronic data carriers
whose present version of the content is a component of the agreement
hereto in a printed version as Appendix 2. Each updated version shall
be prepared pursuant to Number 12.1.3 and shall then be a component of
the agreement hereto in exchange with Appendix 2.
The economic content of the BUSINESS PLAN dated November 12, 1999 has
to continue to be valid at the point in time of payment.
13.5 Submitting a satisfactory final report of the independent consultant of
the banks, DDV Telecommunications & Media Consultants.
13.6 Concluding this credit agreement in a legally effective manner
13.7 Ordering the collateral agreed upon in Number 10 in a legally effective
manner using the forms and patterns prescribed by the COLLATERAL POOL
LEADER.
13.8 Complying with the financing covenants specified in Number 12.4 that
also have to be complied with after each payment.
13.9 Submitting the class 3 telecommunications license and all other permits
required for building up and operating the PROJECT
13.10 A confirmation of the BORROWER on his Year-2000 compliance.
13.11 Submitting the loan collateralisation guaranty of the GUARANTOR.
13.12 Submitting an updated form of all of the insurance policies relevant at
the point in time of payment.
13.13 Payments for supplies and services that the BORROWER has received under
the NORTEL DASA CONTRACT shall only be possible after FIELD ACCEPTANCE
upon submitting the field acceptance certificate.
LAMBDANET CREDIT AGREEMENT
page 32 of the agreement dated January 21, 2000
13.14 Submitting a legal opinion satisfying the form and content requirements
of the banks on the formal obligations of FirstMark Communications
International and the formal obligations of and declarations on
pledging the business shares of LAMBDANET of FirstMarkFiber Holdings
LLC or FirstMark Communications Europe S.A. in the case of the business
shares being effectively transferred before the notary public Xx.
Xxxxxx pursuant to the contract dated January 19, 2000.
13.15 A confirmation from NORTEL DASA that the property of the equipment
delivered under the NORTEL DASA CONTRACT passes over to the borrower if
50% of the purchase price is paid.
LAMBDANET CREDIT AGREEMENT
page 33 of the agreement dated January 21, 2000
14. POSSIBILITIES FOR TERMINATION / WITHDRAWAL
14.1 The BANKS shall be entitled
- to terminate the LOANS extended pursuant to the AGREEMENT hereto
wholly or partially for an important reason and to require that they
be due for immediate payment and/or
- to withdraw from the agreement hereto and/or
- to deny payment of loans or parts of loans not yet extended
if especially one of the following events occurs.
14.1.1 The BORROWER has made incorrect or incomplete statements in the
preamble or elsewhere that were of significant importance for the
decision of the BANK to extend credit.
14.1.2 The LOANS were not used pursuant to the purpose regulated in Number 2.
14.1.3 The prerequisites for pay-out pursuant to Number 13 were not complied
with within 6 months after signing the agreement hereto or become
subsequently ineffective.
14.1.4 The BORROWER does not comply with his obligation to order collateral
pursuant to Number 10 or to strengthen collateral pursuant to Number
12.2 of the agreement hereto within the appropriate period of time set
by the LIQUIDATING BANK. The LIQUIDATING BANK shall refer to the legal
consequences of termination if the period expires unsuccessfully.
14.1.5 The BORROWER does not comply with his obligation to reveal his economic
relations pursuant to Number 12.1 or only insufficiently.
14.1.6 The BORROWER comes into arrears with interest or amortisation payments
or other obligations to pay or seriously and finally refuses said
payments.
14.1.7 The BORROWER or third parties do not comply with other obligations of
the AGREEMENT hereto or from other obligations assumed in connection
with the agreement hereto, especially pursuant to Numbers 12.2, 12.3
and 12.4 within the appropriate period of time set by the LIQUIDATING
BANK and this leads to endangering the liabilities towards the BANKS.
The LIQUIDATING BANK shall refer to the legal consequences of
termination if the period expires unsuccessfully.
14.1.8 Achieving the purpose pursuant to Number 2 is excluded or endangered.
This is especially to be assumed if the PROJECT is not started by April
1, 2000, the network management center is destroyed, essential PROJECT
CONTRACTS do not (no longer) exist or existing PROJECT CONTRACTS are
not complied with, the permits and other intangible rights necessary
for building and operating the PROJECT do not (no longer) exist or the
PROJECT is not (no longer) carried out in the planned fashion.
14.1.9 The implementation of the collateral pursuant to Number 10 is excluded
or endangered. This is especially to be assumed if the collateral
experiences a not
LAMBDANET CREDIT AGREEMENT
page 34 of the agreement dated January 21, 2000
insignificant devaluation after being ordered that is outside of the
usual loss in value by use.
14.1.10 A significant worsening of the BORROWER's financial situation occurs or
threatens to occur and leads to an endangering of the claims and rights
of the BANKS.
14.1.11 Compulsory execution is initiated on the assets of the BORROWER and/or
the GUARANTOR and not cancelled again within 4 weeks and the BORROWER
and and/or the GUARANTOR have not shown the lack of justification and
permissibility of the compulsory execution in a fashion that is
satisfactory to the BANKS.
14.1.12 The BORROWER has stopped his payments or court insolvency proceedings
on his assets were petitioned for and not cancelled again within 4
weeks or said proceedings were opened.
14.1.13 Essential Project AGREEMENTS are terminated or suspended, especially
the NORTEL DASA AGREEMENT.
14.1.14 The BORROWER does not comply with his obligations to pay amounting to
Euro 100,000 towards other creditors when it is due or demands of other
creditors for this amount become due before the point in time provided.
14.1.15 The amount available under TRANCHE B is reduced in retrospect as a
result of QUALIFIED PURCHASING AGREEMENTS becoming non-applicable and
funds were drawn that exceed this reduced amount available to the
extent that the funds drawn exceeding the amount available are not paid
back within 30 days after it becoming non-applicable or the amount
available is raised at least to the amount that covers the amount
exceeded by submitting new QUALIFIED PURCHASING AGREEMENTS. This would
not correspond to the purpose of TRANCHE A.
14.2 The LIQUIDATING BANK shall warn the BORROWER of termination or
withdrawal pursuant to the above Numbers 14.1.3., 14.1.5, 14.1.6 and
14.1.14 with a period of time of 10 BANK WORKING DAYS in writing.
LAMBDANET CREDIT AGREEMENT
page 35 of the agreement dated January 21, 2000
15. SUBPARTICIPATION/TRANSFER (SYNDICATION)
With business loans to entrepreneurs, the BANKS may concede subparticipation to
members of the European System of Central Banks, banks, financial service
companies, financial companies, insurance companies, institutional investors,
funds, pension funds, company pension systems and comparable institutions while
observing the usual banking customs and effect transfers with reference to the
rights and obligations of this CREDIT AGREEMENT, especially assigning, pledging
or transferring loan demands together with the collateral belonging to them,
either wholly or in partial amounts, to the group of persons mentioned above.
The BANKS may effect said measures especially for diversifying risk, optimising
equity capital and re-financing.
The BORROWER shall exempt the BANKS from its obligation to maintain secrecy to
the extent that it is necessary for carrying out the measures described above.
The group of persons mentioned above assuming the agreement hereto shall require
the consent of the BORROWER and also the consent of the GUARANTOR if the persons
mentioned above have a rating poorer than investment grade. Consent may not be
refused without an important reason.
LAMBDANET CREDIT AGREEMENT
page 36 of the agreement dated January 21, 2000
16. FINAL PROVISIONS
16.1 CHOICE OF LAW/VENUE
The law of the Federal Republic of Germany shall apply. The venue and place of
performance shall be Frankfurt am Main.
16.2 WRITTEN FORM
Oral subsidiary agreements were not made. Modifications to the agreement hereto
shall require the written form. This shall also apply to suspending the
agreement on the written form.
16.3 SAVING CLAUSE
Should one or several of the provisions of the CONTRACT hereto be wholly or
partially invalid or prove to be unenforceable, the validity of the rest of the
agreement hereto shall otherwise not be affected by this. The parties shall
replace the wholly or partially invalid or unenforceable provisions with a valid
provision that corresponds to the economic purpose desired and that comes as
close as possible to the content of the provision to be replaced. This shall
apply accordingly if it comes to light that the CONTRACT hereto has gaps in the
regulations.
16.4 SECTION 8 OF GELDWASCHEGESETZ (GERMAN MONEY LAUNDERING LAW)
The BORROWER assures the BANKS that extend the loan to the BORROWER who acts on
own account that he is taking out the loan exclusively for his own account and
that he is therefore the sole economically authorised party in the intendment of
Section 8 of Geldwaschegesetz (German Money Laundering Law).
16.5 NOTIFICATION
All declarations of will and notifications in connection with the agreement
hereto shall be made in writing by letter or fax and shall be sent to the
addresses specified in the following:
FOR THE BORROWER:
LambdaNet Communications GmbH
Xxxxxxx-Xxxxxx-Xxxxx 00
00000 Xxxxxxxx
fax: (0000) 000-00000
FOR THE LIQUIDATING BANK:
Dresdner Bank AG, Ulm Branch Office
Xxxx Xxxxxxx 00
00000 Xxx
LAMBDANET CREDIT AGREEMENT
page 37 of the agreement dated January 21, 2000
Xx. Xxxxxxxx Xxxxxxxxx
telephone: (0000) 000-0000
fax: (0000) 000-0000 or 114
E-mail: xxxxxxxx.xxxxxxxxx@xxxxxxxx-xxxx.xxx
Xx. Xxxxx Xxxxx
telephone: (0000) 000-0000
fax: (0000) 000-0000 or 114
E-mail: xxxxx.xxxxx@xxxxxxxx-xxxx.xxx
with a copy to
The Headquarters of the Dresdner Bank XX
Xxxxxx Xxxxxxxxxx 00, 0xx xxxxx
00000 Xxxxxxxxx
Xx. Xxxxxxxxx Xxxxxxx
telephone: (000) 000-00000
fax: (000) 000-00000
E-mail: xxxxxxxxx.xxxxxxx@xxxxxxxx-xxxx.xxx
16.6 CHANGES FOR SYNDICATION
Should one or several provisions of the agreement hereto prove to be an
impediment for the bank to syndicate the loan pursuant to Number 14 as a result
of the way they are formulated, the parties shall jointly put in their best
efforts in mutual agreement to replace these formulations with formulations that
are acceptable to the syndication partners that come as close as possible to the
original formulations.
16.7 PUBLICATIONS
Publications on this transaction shall only be made in mutual agreement.
LAMBDANET CREDIT AGREEMENT
page 38 of the agreement dated January 21, 2000
SIGNATURES
Munich, January 21, 2000 /s/
--------------------------------------------
LambdaNet Communications GmbH
Munich, January 21, 2000 /s/
--------------------------------------------
Dresdner Bank AG
Munich, January 21, 2000 /s/
--------------------------------------------
Bayerische Hypo- und Vereinsbank AG
Munich, January 21, 2000 /s/
--------------------------------------------
Kreditanstalt fur Wiederaufbau
The shareholders of LambdaNet listed in the following declare that they are in
agreement with assuming the obligations resulting from Numbers 12.3.1 and 12.3.2
(JANUARY 21, 2000) /s/ Xx. Xxxxxx Xxxxx
--------------------------- -----------------------------------------
city, date Xx. Xxxxxx Xxxxx
(JANUARY 21, 2000) /s/ Xx. Xxxxx Xxxxx
--------------------------- -----------------------------------------
city, date Xx. Xxxxx Xxxxx
(JANUARY 21, 2000) /s/ Xx. Xxxxxx Xxxxxxx
--------------------------- -----------------------------------------
city, date Xx. Xxxxxx Xxxxxxx
(*) as representatives without power of representation excluding liability
pursuant to Section 199 of Burgerliches Gesetzbuch (the German Civil Code)
for the civil-law association:
(JANUARY 21, 2000) /s/
--------------------------- -------------------------------------------
city, date
LAMBDANET CREDIT AGREEMENT
page 39 of the agreement dated January 21, 2000
The third party providing security listed in the following, NORTEL DASA,
declares that it is in agreement with assuming the obligations resulting from
Number 10.4.
Munich, January 21, 2000 /s/
-------------------------------------------
Nortel Dasa Network Systems GmbH & Co. KG
The legitimisation of the BORROWER, the shareholders signing and the GUARANTOR
were examined pursuant to 154 of Amtsordnung (the German Official Rules) (there
is a copy of the identity card or passport of the acting organisational
members).
(*) as representatives without power of representation excluding liability
pursuant to Section 199 of Burgerliches Gesetzbuch (the German Civil Code)
negotiated
at [...] on xx xx, xxxx
before the notary public signing
[...]
in [...]
The following persons appeared before me today:
1. Mr. ________ , not negotiating here in his own name, rather in the name of
FirstMark Communications EUROPE S.A.,
- hereinafter referred to as the "PARTY FURNISHING COLLATERAL" OR
"FIRSTMARK" -
2. Xx. Xxxxxx Xxxxx, born on January 28, 1954, residing in Xxxxx Xxxx 00,
00000 Xxxxxxxxx
0. Xx. Xxxxx Xxxxxxxx, born on April 15, 1962, residing in Engenser Xxxxxxx
00, 00000 Xxxxxxxxx
4. Xx. Xxxxxx Xxxxxx, born on October 13, 1962, residing in
Xxxxxx-Xxxxx-Xxxxxxx 0, 00000 Wolfenbuttel
5. Xx. Xxxx Xxxxxxx, born on December 24, 1964, residing in Xxxxxxxx 0 - 0,
00000 Xxxxxx
6. Dr. Xxxxxxx Xxxxx, born on April 9, 1951, residing in Schwabenweiher 14,
91207 Xxxx an der Pegnitz
7. Xx. Xxxxxxx Xxxxxxx, born on July 25, 1965, residing in Xxxxxxxxxxxxxx 00,
00000 Xxxxxxxxxx
8. Xx. Xxx Xxxxxx, born on October 21, 1951, residing in Xxxxxxxxx Xxxxxxx 00,
00000 Xxxxxxxxx
9. Xx. Xxxxxxxxx Xxxxxxx, maiden name Morbach, born on June 9, 1961, residing
in Xxxxxxxx-Xxxxxx-Xxx 00 X, 00000 Hannover
10. Xx. Xxxxxxxx Xxxxx, born on October 30, 1952, residing in Xxxxxxxxxx
Xxxxxxx 00, 70736 Fellbach
11. Xx. Xxxxx Xxxxxxxxxx, born on January 30, 1966, residing in Xxxxxxxxxxxxxxx
00, 00000 Xxxxxxxxx
12. Xx. Xxxxx Xxxxxxxxxx, born on January 6, 1965, residing in Xxxxxxxxxxxxx 0,
00000 Xxxxxxxxxx
CONTRACT OF PLEDGE FOR LIMITED-LIABILITY COMPANY SHARES
page 2 of the agreement dated January 21, 2000
13. Xx. Xxxxx Xxxxxx, born on May 13, 1975, residing in _______________
as partners in a civil-law association
- Numbers 2 to 11 hereinafter referred to jointly as "PARTIES FURNISHING
COLLATERAL" or "CIVIL-LAW ASSOCIATION"
Number 1 and Number 2 to 11 hereinafter referred to jointly as "PARTIES
FURNISHING COLLATERAL"
14. [ _____________ ], not negotiating here in his or her own name, rather in
the name of Bayerische Hypo-und Vereinsbank Aktiengesellschaft, Munich
- hereinafter referred to as "HVB" -
15. [ _____________ ], not negotiating here in his or her own name, rather in
the name of Dresdner Bank AG, under the proviso of their approval that is
supposed to be legally valid when it is received by the officiating notary
public.
- hereinafter referred to as "DREBA" -
16. [ _____________ ], not negotiating here in his or her own name, rather in
the name of Kreditanstalt fur Wiederaufbau, under the proviso of their
approval that is supposed to be legally valid when it is received by the
officiating notary public.
- hereinafter referred to as "KFW" -
Hereinafter, HVB, DreBa and KfW shall be referred to individually and/or
jointly as the "BANKS" or "LIEN CREDITORS"
[ _____________ ] declare the following with the request that the following
CONTRACT OF PLEDGE be recorded:
CONTRACT OF PLEDGE FOR LIMITED-LIABILITY COMPANY SHARES
page 3 of the agreement dated January 21, 2000
PREAMBLE
The PARTIES FURNISHING COLLATERAL hold 87.5% of the business shares of
LambdaNet Communications GmbH that carried on business before October 1, 1999
under the firm of CCG Carriers Carrier Gesellschaft mbH in its set-up phase,
entered in the Commercial Register of the Hannover Local Court in department B
under number HRB 57818 (hereinafter referred to as "LAMBDANET") pursuant to the
shareholder agreement dated April 21, 1999, document number 208 of notary public
Xxxxxx Xxxx in the district of the Celle Higher Regional Court with his office
in Hannover, Berliner Alle 13. Its capital stock consists of total business
shares of a nominal 200,000 Euros (in words: two-hundred thousand Euros), that
is held as follows:
a) FIRSTMARK holds a share of 160,000 Euros (in words: one-hundred sixty
thousand Euros). FirstMark holds a share of this amounting to 10,000
Euros in trust for the CIVIL-LAW ASSOCIATION.
b) The CIVIL-LAW ASSOCIATION holds a share of 15,000 Euros (in words: fifteen
thousand Euros).
c) XX. XXXXXX XXXXX holds a share of 11,700 Euros (in words: eleven thousand
seven hundred Euros).
d) XX. XXXXX holds a share of 6,650 Euros (in words: six thousand six hundred
fifty Euros).
e) XX. XXXXXXX holds a share of 6,650 Euros (in words: six thousand six
hundred fifty Euros).
The business shares have been completely paid in and there is not any liability
to make further contributions. The PARTIES FURNISHING COLLATERAL are entitled to
the right to draw a share of profits going to the business shares together with
these business shares that FirstMark also only holds in trust with reference to
the shares only held in trust.
The BANKS shall provide LAMBDANET (hereinafter also referred to as "BORROWER")
based upon a Basic Project Credit Agreement still to be concluded (hereinafter
referred to as CREDIT AGREEMENT") with a loan facility amounting to Euro
56,000,000.
CONTRACT OF PLEDGE FOR LIMITED-LIABILITY COMPANY SHARES
page 4 of the agreement dated January 21, 2000
1. DECLARATION OF PLEDGE AND ORDERING A LIEN
The PARTIES FURNISHING COLLATERAL pledge the BANKS their entire business shares
specified above with equal ranking, also to the extent that they are held in
trust for third parties, and all future business shares of LambdaNet
Communications GmbH.
The entire present and future claims of the PARTIES FURNISHING COLLATERAL
resulting from the shares with equal ranking are also pledged to the BANKS,
especially the claims to have the profit shares and credit balance paid in case
of partition if they leave the company or if it is dissolved.
The other membership rights linked to the interest holdings, especially voting
rights, shall remain with the PARTIES FURNISHING COLLATERAL. The PARTIES
FURNISHING COLLATERAL shall not effect any legal transactions or actions through
which the right of lien of the BANKS would be thwarted or impaired, especially
not any legal transactions or actions that aim at lowering the value of the
business shares pledged as the pledged property.
2. THE PURPOSE OF THE COLLATERAL
Pledging the business shares pursuant to Number 1 serves the purpose of securing
all existing, future or conditional claims that the BANKS are entitled to with
all domestic and foreign business offices and domestic and foreign subsidiaries
from extending the loan pursuant to the CREDIT AGREEMENT still to be concluded
including any addenda/supplements against LambdaNet.
3. POWER OF DISPOSAL AND FREEDOM FROM ENCUMBRANCE
Each PARTY FURNISHING COLLATERAL assures that he or she is the unrestricted
owner of his or her business share and especially that this pledged business
share has not already been transferred to third parties or is encumbered with
the rights of third parties. Furthermore, FIRSTMARK assures that it is entitled
to pledge the share that it holds in trust and to conclude this agreement and
that it is in a position to comply with the obligations assumed in this
agreement based upon the informal trusteeship agreement.
Furthermore, each PARTY FURNISHING COLLATERAL assures that the business share
pledged by him or her has been completely paid in. Each PARTY FURNISHING
COLLATERAL shall NEITHER SELL THE WHOLE NOR PARTIAL pledged business SHARE
WITHOUT THE PRIOR WRITTEN CONSENT OF THE Banks nor dispose of it otherwise. An
exception to this shall be transfers to FirstMark Fiber Holdings, LLC or their
legal successors to the extent that the rights of the Banks from this lien are
not affected disadvantageously by that.
Should the rights and claims be pledged or impaired in any other fashion, the
PARTIES FURNISHING COLLATERAL shall inform the BANKS of this without delay and
inform the pledge creditor(s) of the security rights of the Banks in writing
without delay.
Each of the PARTIES FURNISHING COLLATERAL shall remain entitled as pledge
creditors to receive profit distributions, other payments and the liquidation
proceeds if the company is dissolved until the BANKS revoke this right. The
BANKS may revoke this right at any time.
CONTRACT OF PLEDGE FOR LIMITED-LIABILITY COMPANY SHARES
page 5 of the agreement dated January 21, 2000
4. WAIVING CLAIMS FOR ADJUSTMENT TOWARDS THE COMPANY
To the extent that the PARTIES FURNISHING COLLATERAL are entitled to claims
towards LambdaNet based upon this lien, they shall herewith waive asserting
them.
5. WAIVING PLEA
The PARTIES FURNISHING COLLATERAL waive the pleas of the contestability of the
Credit Agreement and the possibility of setting off demands from the CREDIT
AGREEMENT (Sections 770 and 1211 of Burgerliches Gesetzbuch the German Civil
Code).
6. UTILISATION
The PLEDGE CREDITORS are entitled to utilise the pledged business shares of
LAMBDANET if LAMBDANET is in arrears with payments due on the demands
collateralsed with the agreement hereto in spite of an appropriate subsequent
period being set.
The BANKS shall threaten the PARTIES FURNISHING COLLATERAL with utilisation in
writing setting a period ahead of time. This threat may be linked to a request
for payment. The period shall be one month.
It shall not be necessary to threaten or set a period if LAMBDANET has stopped
payment or if opening court insolvency proceedings on its assets have been
petitioned for.
If the prerequisites under which the BANKS are entitled to utilise the pledged
property are complied with, they may publicly auction off the business shares
pledged to them to the highest bidder in accordance with their dutiful
discretion without an enforceable judgement. This auction may be carried out at
any place in the Federal Republic of Germany. They may be sold by way of public
auctioning that the BANKS shall threaten with a period of four weeks for cash
payment or on credit.
Furthermore, the BANKS shall be entitled to solely collect the claims also
pledged. They shall not be obliged to keep to the pledged property.
The BANKS shall take the justified concerns of the PARTIES FURNISHING COLLATERAL
into consideration in this process. The PARTIES FURNISHING COLLATERAL agree to
the business shares being transferred to third parties in the case of
utilisation when they sign this contract of pledge.
7. ACCEPTING THE CONTRACT
The BANKS herewith accept the offer to pledge the above mentioned business
shares.
8. APPROVAL OF THE COMPANY/SHAREHOLDERS; NOTICE/CONSENT OF THE TRUSTOR
To the extent that pledging the business shares requires the approval of the
general meeting of shareholders and/or the shareholders pursuant to the articles
of partnership, the PARTIES FURNISHING COLLATERAL oblige themselves to bring
about this approval and to submit it to the BANKS in written form through the
recording notary public. The PARTIES FURNISHING COLLATERAL herewith commission
the notary public to give notice of the lien to the company.
CONTRACT OF PLEDGE FOR LIMITED-LIABILITY COMPANY SHARES
page 6 of the agreement dated January 21, 2000
The CIVIL-LAW ASSOCIATION as trustor agrees to the lien of the partnership
shares held by FIRSTMARK in trust for it amounting to Euro 10,000. FIRSTMARK
herewith commissions the notary public to give notice of the lien to the
company.
9. OBLIGATIONS TO PROVIDE INFORMATION
The PARTIES FURNISHING COLLATERAL shall provide the BANKS with all information,
proofs and documents upon request that are necessary for checking, evaluating
and asserting the demands linked to the pledged business shares.
The PARTIES FURNISHING COLLATERAL shall allow the BANKS to inspect their
documents with reference to this for checking and asserting the pledged rights
and claims.
10. WHOLLY OR PARTIALLY ASSIGNING THE DEMANDS COLLATERALISED BY THE RIGHT OF
LIEN
The BANKS wholly or partially assigning the demands collateralised by means of
the right of lien shall not lead to the loss of the original right of lien or to
one or several new rights of lien coming about, rather it shall leave the right
of lien unaffected.
11. THE BANKS' OBLIGATION TO RELEASE
After satisfying their claims collateralised by this lien, the BANKS shall issue
the PARTIES FURNISHING COLLATERAL a confirmation that the lien has been disposed
of upon their request.
The BANKS are obliged to release the collateral (such as property whose
ownership has been assigned, assigned demands) wholly or partially to the
PARTIES FURNISHING COLLATERAL upon the request of the PARTIES FURNISHING
COLLATERAL at their choice even before the claims collateralised by this lien
have been completely satisfied to the extent that that the recoverable value of
all collateral exceeds 110% of the BANKS' collateralised claims not just for a
temporary period of time.
The recoverable value of the business shares shall correspond to its fair market
value, i.e. the amount that could be reached as a price in usual business
transactions through selling in accordance with the consistency of the shares.
To the extent that shares of the company were disposed of in each of the past
years, the fair market value of the shares collateralised shall correspond to
the proceeds of the shares sold to the extent that the nominal value agrees
here. Otherwise, the proceeds shall be raised or lowered at the ratio of the
nominal amounts. Each PARTY FURNISHING COLLATERAL shall be reserved the right to
prove a higher value.
12. ADDITIONAL AGREEMENTS
Additional agreements to the agreement hereto shall require the written form to
the extent that the law does not prescribe the notarial form. The same shall
apply to suspending the agreement on the written form.
13. COSTS
The PARTIES FURNISHING COLLATERAL shall bear the costs including taxes and
outlays that arise from ordering and utilising the right of lien and the
business shares affected by that or other rights as joint and several debtors.
CONTRACT OF PLEDGE FOR LIMITED-LIABILITY COMPANY SHARES
page 7 of the agreement dated January 21, 2000
14. PLACE OF PERFORMANCE AND VENUE
The place of performance and venue for all of the obligations arising out of the
agreement hereto shall be Frankfurt am Main. The law of the Federal Republic of
Germany shall apply.
15. SAVING CLAUSE
Should one or several of the provisions of the agreement hereto be not legally
valid or unenforceable, the validity of the rest of the content of the agreement
hereto shall not be affected by this. The parties shall replace the wholly or
partially invalid or unenforceable provisions with a valid provision that
corresponds to the economically desired purpose and that comes as close as
possible to the content of the provision to be replaced. This shall apply
accordingly if it subsequently comes to light that the agreement hereto has gaps
in the regulations.
16. GENERAL TERMS AND CONDITIONS
The General Terms and Conditions of HVB shall apply supplementally. They are
already known to the PARTY FURNISHING COLLATERAL and they may otherwise be
inspected at any business office of HVB. HVB can also send this to him/her upon
request.
17. COPIES
15 copies shall be made of the agreement hereto. Each contractual party and
LAMBDANET shall receive one copy.
The above record was read to the persons who appeared before the notary public,
approved by the persons who appeared and signed as follows by their own hand.
[...], (date) [...] /s/
---------------------------------------------
FIRSTMARK COMMUNICATIONS EUROPE S.A.
[...], (date) [...] /s/ Xx. Xxxxxx Xxxxx
---------------------------------------------
Xx. Xxxxxx Xxxxx
[...], (date) [...] /s/ Xx. Xxxxxx Xxxxx
---------------------------------------------
Xx. Xxxxxx Xxxxx
[...], (date) [...] /s/ Xxxxx Xxxxxxx
---------------------------------------------
Xx. Xxxxx Xxxxxxx
CONTRACT OF PLEDGE FOR LIMITED-LIABILITY COMPANY SHARES
page 8 of the agreement dated January 21, 2000
[...], (date) [...] /s/ Xxxxxx Xxxxxx
---------------------------------------------
Xx. Xxxxxx Xxxxxx
[...], (date) [...] /s/ Xx. Xxxx Xxxxxxx
---------------------------------------------
Xx. Xxxx Xxxxxxx
[...], (date) [...] /s/ Dr. Xxxxxxx Xxxxx
---------------------------------------------
Dr. Xxxxxxx Xxxxx
[...], (date) [...] /s/ Xxxxxxx Xxxxxxx
---------------------------------------------
Xx. Xxxxxxx Xxxxxxx
[...], (date) [...] /s/ Xxx Xxxxxx
---------------------------------------------
Xx. Xxx Xxxxxx
[...], (date) [...] /s/ Xxxxxxxxx Xxxxxxx
---------------------------------------------
Xx. Xxxxxxxxx Xxxxxxx
[...], (date) [...] /s/ Xxxxxxxx Xxxxx
---------------------------------------------
Xx. Xxxxxxxx Xxxxx
[...], (date) [...] /s/ Xxxxx Xxxxxxxxxx
---------------------------------------------
Xx. Xxxxx Xxxxxxxxxx
CONTRACT OF PLEDGE FOR LIMITED-LIABILITY COMPANY SHARES
page 9 of the agreement dated January 21, 2000
[...], (date) [...] /s/
---------------------------------------------
Bayerische Hypo- und Vereinsbank AG
[...], (date) [...] /s/
---------------------------------------------
Dresdner Bank AG
[...], (date) [...] /s/
---------------------------------------------
Kreditanstalt fur Wiederaufbau
Pursuant to the specification of Article 1 of the protocol of the Brussel EWG
Treaty on the responsibility for and the execution of rulings in civil cases
and commercial causes, FirstMark Communications EUROPE S.A. expressly accepts
the venue clause contained in Article 14 of this treaty.
[...], (date) [...]
---------------------------------------------
FirstMark Communications EUROPE S.A.
CONTRACT OF PLEDGE FOR LIMITED-LIABILITY COMPANY SHARES
page 10 of the agreement dated January 21, 2000
THE COMPANY IS HEREWITH GIVEN NOTICE OF THE LIEN THAT TAKES NOTICE OF THE
AGREEMENT HERETO WITH CONSENT.
[...], (date) [...] /s/
---------------------------------------------
LambdaNet Communications GmbH,
represented by its managing director,
Xx. Xxxxxx Xxxxx
negotiated
at [...] on xx xx, xxxx
before the notary public signing
[...]
in [...]
The following persons appeared before me today:
1. Xx. Xxxxxx Xxxxx, engineer, born on January 28, 1954, residing in Xxxxx
Xxxx 00, 00000 Xxxxxxxxx
2. Xx. Xxxxx Xxxxx, master's degree in economics, born on June 10, 1963,
residing in Xxxxxxx-Xxxxxxxx-Xxxxxxx 00, 00000 Xxxx
3. Xx. Xxxxxx Xxxxxxx, master's degree in physics, born on June 20, 1965,
residing in Xxxxxxxx 00, 00000 Xxxxxxxx
- hereinafter referred to individually as the "PARTY FURNISHING COLLATERAL"
or all jointly as "THE PARTIES
FURNISHING COLLATERAL"
4. [ _____________ ], not negotiating here in his own name, rather in the name
of Bayerische Hypo- und Vereinsbank Aktiengesellschaft, Munich
- hereinafter referred to as "HVB" -
5. [ _____________ ], not negotiating here in his own name, rather in the name
of Dresdner Bank AG, under the proviso of its approval that is supposed to
be legally valid when it is received by the officiating notary public.
- hereinafter referred to as "DREBA" -
6. [ _____________ ], not negotiating here in his own name, rather in the name
of Kreditanstalt fur Wiederaufbau, under the proviso of its approval that
is supposed to be legally valid when it is received by the officiating
notary public.
- hereinafter referred to as "KFW" -
Hereinafter, HVB, DreBa and KfW shall be referred to individually and/or
jointly as the "BANKS" or "LIEN CREDITORS"
[ _____________ ] declared the following with the request that the following
CONTRACT OF PLEDGE be recorded:
LAMBDANET CREDIT AGREEMENT
page 2 of the agreement dated xx xx, xxxx
PREAMBLE
The PARTIES FURNISHING COLLATERAL hold 12.5% of the business shares of
LambdaNet Communications GmbH that carried on business before October 1, 1999
under the firm of CCG Carriers Carrier Gesellschaft mbH in its set-up phase,
entered in the Commercial Register of the Hannover Local Court in department
B under number HRB 57818 (hereinafter referred to as "LAMBDANET") pursuant to
the shareholder agreement dated April 21, 1999, document number 208 of notary
public Xxxxxx Xxxx in the district of the Celle Higher Regional Court with
his office in Hannover, Berliner Alle 13. Its capital stock consists of total
business shares of a nominal 200,000 Euros (in words: two-hundred thousand
Euros), that is held as follows:
a) Xx. Xxxxx holds a share of 11,700 Euros (in words: eleven thousand seven
hundred Euros).
b) Xx. Xxxxx holds a share of 6,650 Euros (in words: six thousand six hundred
fifty Euros).
c) Xx. Xxxxxxx holds a share of 6,650 Euros (in words: six thousand six
hundred fifty Euros).
d) FirstMark Communications EUROPE S.A. (FirstMark) holds a share of 160,000
Euros (in words: one-hundred sixty thousand Euros). FirstMark holds a share
of this amounting to 10,000 Euros in trust for the civil-law association
mentioned under e).
e) A civil-law association consisting of shareholders of Lambdanet holds a
share of 15,000 Euros (in words: fifteen thousand Euros).
The business shares have been completely paid in and there is not any liability
to make further contributions. The PARTIES FURNISHING COLLATERAL are entitled to
the right to draw a share of profits going to the business shares together with
the business shares.
The BANKS shall provide LAMBDANET (hereinafter also referred to as the
"BORROWER") based upon a Basic Project Credit Agreement still to be concluded
(hereinafter referred to as CREDIT AGREEMENT") with a loan facility amounting to
Euro 56,000,000.
LAMBDANET CREDIT AGREEMENT
page 3 of the agreement dated xx xx, xxxx
1. DECLARATION OF PLEDGE AND ORDERING A LIEN
The PARTIES FURNISHING COLLATERAL pledge the BANKS their entire business shares
specified above with equal ranking and all future business shares of LambdaNet
Communications GmbH.
The entire present and future claims of the PARTIES FURNISHING COLLATERAL
resulting from the shares with equal ranking are also pledged to the BANKS,
especially the claims to have the profit shares and credit balance paid in case
of partition if they leave the company or if it is dissolved.
The other membership rights linked to the interest holdings, especially voting
rights, shall remain with the PARTIES FURNISHING COLLATERAL. The PARTIES
FURNISHING COLLATERAL shall not effect any legal transactions or actions through
which the right of lien of the BANKS would be thwarted or impaired, especially
not any legal transactions or actions that aim at lowering the value of the
business shares pledged as the pledged property.
2. THE PURPOSE OF THE COLLATERAL
Pledging the business shares pursuant to Number 1 serves the purpose of securing
all existing, future or conditional claims that the BANKS are entitled to with
all domestic and foreign business offices and domestic and foreign subsidiaries
from extending the loan pursuant to the CREDIT AGREEMENT still to be concluded
including any addenda/supplements against LambdaNet.
3. POWER OF DISPOSAL AND FREEDOM FROM ENCUMBRANCE
Each PARTY FURNISHING COLLATERAL assures that he is the unrestricted owner of
his business share and especially that this pledged business share has not
already been transferred to third parties or is encumbered with the rights of
third parties.
Furthermore, each PARTY FURNISHING COLLATERAL assures that the business share
pledged by him has been completely paid in. Each PARTY FURNISHING COLLATERAL
shall NEITHER SELL THE WHOLE NOR PARTIAL pledged business SHARE WITHOUT THE
PRIOR WRITTEN CONSENT OF THE Banks nor dispose of it otherwise. An exception to
this shall be transfers to FirstMark Fiber Holdings, LLC or their legal
successors to the extent that the rights of the Banks from this lien are not
affected disadvantageously by that.
Should the rights and claims be pledged or impaired in any other fashion, the
PARTIES FURNISHING COLLATERAL shall inform the BANKS of this without delay and
inform the pledge creditor(s) of the security rights of the Banks in writing
without delay.
Each of the PARTIES FURNISHING COLLATERAL shall remain entitled as pledge
creditors to receive profit distributions, other payments and the liquidation
proceeds if the company is dissolved until the BANKS revoke this right. The
BANKS may revoke this right at any time.
LAMBDANET CREDIT AGREEMENT
page 4 of the agreement dated xx xx, xxxx
4. WAIVING CLAIMS FOR ADJUSTMENT TOWARDS THE COMPANY
To the extent that the PARTIES FURNISHING COLLATERAL are entitled to claims
towards LambdaNet based upon this lien, the PARTIES FURNISHING COLLATERAL shall
herewith waive asserting them.
5. WAIVING PLEA
The PARTIES FURNISHING COLLATERAL waive the pleas of the contestability of the
Credit Agreement and the possibility of setting off demands from the CREDIT
AGREEMENT (Sections 770 and 1211 of Burgerliches Gesetzbuch - the German Civil
Code).
6. UTILISATION
The PLEDGE CREDITORS are entitled to utilise the pledged business shares of
LAMBDANET if LAMBDANET is in arrears with payments due on the demands
collateralised with the agreement hereto in spite of an appropriate subsequent
period being set.
The BANKS shall threaten each PARTY FURNISHING COLLATERAL with utilisation in
writing setting a period ahead of time. This threat may be linked to a request
for payment. The period shall be one month.
It shall not be necessary to threaten or set a period if LAMBDANET has stopped
payment or if opening court insolvency proceedings on its assets have been
petitioned for.
If the prerequisites under which the BANKS are entitled to utilise the pledged
property are complied with, they may publicly auction off the business shares
pledged to them to the highest bidder in accordance with their dutiful
discretion without an enforceable judgement. This auction may be carried out at
any place in the Federal Republic of Germany. They may be sold by way of public
auctioning that the BANKS shall threaten with a period of four weeks for cash
payment or on credit.
Furthermore, the BANKS shall be entitled to solely collect the claims also
pledged. They shall not be obliged to keep to the pledged property.
The BANKS shall take the justified concerns of the PARTIES FURNISHING COLLATERAL
into consideration in this process. The PARTIES FURNISHING COLLATERAL agree to
the business shares being transferred to third parties in the case of
utilisation when they sign this contract of pledge.
7. ACCEPTING THE CONTRACT
The BANKS herewith accept the offer to pledge the above mentioned business
shares.
8. APPROVAL OF THE COMPANY/SHAREHOLDERS; NOTICE/CONSENT OF THE TRUSTOR
To the extent that pledging the business shares requires the approval of the
general meeting of shareholders and/or the shareholders pursuant to the articles
of partnership to be effective, the PARTIES FURNISHING COLLATERAL oblige
themselves to bring about this approval and to submit it to the BANKS in written
form through the recording notary public. The PARTIES FURNISHING COLLATERAL
herewith commission the notary public to give notice of the lien to the company.
LAMBDANET CREDIT AGREEMENT
page 5 of the agreement dated xx xx, xxxx
9. OBLIGATIONS TO PROVIDE INFORMATION
The PARTIES FURNISHING COLLATERAL shall provide the BANKS with all information,
proofs and documents upon request that are necessary for checking, evaluating
and asserting the demands linked to the pledged business shares.
The PARTIES FURNISHING COLLATERAL shall allow the BANKS to inspect their
documents with reference to this for checking and asserting the pledged rights
and claims.
10. WHOLLY OR PARTIALLY ASSIGNING THE DEMANDS COLLATERALISED BY THE RIGHT
OF LIEN
The BANKS wholly or partially assigning the demands collateralised by means of
the right of lien shall not lead to the loss of the original right of lien or to
one or several new rights of lien coming about, rather it shall leave the right
of lien unaffected.
11. THE BANKS' OBLIGATION TO RELEASE
After satisfying their claims collateralised by this lien, the BANKS shall issue
the PARTIES FURNISHING COLLATERAL a confirmation that the lien has been disposed
of upon their request.
The BANKS are obliged to release the collateral (such as property whose
ownership has been assigned, assigned demands) wholly or partially to the
PARTIES FURNISHING COLLATERAL upon the request of the PARTIES FURNISHING
COLLATERAL at their choice even before the claims collateralised by this lien
have been completely satisfied to the extent that that the recoverable value of
all collateral exceeds 110% of the BANKS' collateralised claims not just for a
temporary period of time.
The recoverable value of the business shares pledged shall correspond to their
fair market value, i.e. the amount that could be reached as a price in usual
business transactions through selling in accordance with the consistency of the
shares. To the extent that shares of the company were disposed of in each of the
past years, the fair market value of the shares collateralised shall correspond
to the proceeds of the shares sold to the extent that the nominal value agrees
here. Otherwise, the proceeds shall be raised or lowered at the ratio of the
nominal amounts. Each PARTY FURNISHING COLLATERAL shall be reserved the right to
prove a higher value.
12. ADDITIONAL AGREEMENTS
Additional agreements to the agreement hereto shall require the written form to
the extent that the law does not prescribe the notarial form. The same shall
apply to suspending the requirement of the written form.
13. COSTS
The PARTIES FURNISHING COLLATERAL shall bear the costs including taxes and
outlays that arise from ordering and utilising the right of lien and the
business shares affected by that or other rights as joint and several debtors.
LAMBDANET CREDIT AGREEMENT
page 6 of the agreement dated xx xx, xxxx
14. PLACE OF PERFORMANCE AND VENUE
The place of performance and venue for all of the obligations arising out of the
agreement hereto shall be Frankfurt am Main. The law of the Federal Republic of
Germany shall apply.
15. SAVING CLAUSE
Should one or several of the provisions of the agreement hereto be not legally
valid or unenforceable, the validity of the rest of the content of the agreement
hereto shall not be affected by this. The parties shall replace the wholly or
partially invalid or unenforceable provisions with a valid provision that
corresponds to the economically desired purpose and that comes as close as
possible to the content of the provision to be replaced. This shall apply
accordingly if it subsequently comes to light that the agreement hereto has gaps
in the regulations.
16. GENERAL TERMS AND CONDITIONS
The General Terms and Conditions of HVB shall apply supplementally. They are
already known to the PARTY FURNISHING COLLATERAL and they may otherwise be
inspected at any business office of HVB. HVB can also send this to him/her upon
request.
17. COPIES
7 copies shall be made of the agreement hereto. Each contractual party and
LAMBDANET shall receive one copy.
The above record was read to the persons who appeared before the notary public,
approved by the persons who appeared and signed as follows by their own hand.
[...], (date) [...] /s/ Xx. Xxxxxx Xxxxx
---------------------------------------
Xx. Xxxxxx Xxxxx
[...], (date) [...] /s/ Xx. Xxxxx Xxxxx
---------------------------------------
Xx. Xxxxx Xxxxx
[...], (date) [...] /s/ Xx. Xxxxxx Xxxxxxx
---------------------------------------
Xx. Xxxxxx Xxxxxxx
[...], (date) [...] /s/
---------------------------------------
Bayerische Hypo- und Vereinsbank AG
LAMBDANET CREDIT AGREEMENT
page 7 of the agreement dated xx xx, xxxx
[...], (date) [...] /s/
---------------------------------------
Dresdner Bank AG
[...], (date) [...] /s/
---------------------------------------
Kreditanstalt fur Wiederaufbau
THE COMPANY IS HEREWITH GIVEN NOTICE OF THE LIEN THAT TAKES NOTICE OF THE
AGREEMENT HERETO WITH CONSENT.
[...], (date) [...] /s/
---------------------------------------
LambdaNet Communications GmbH,
represented by its managing director,
XX. XXXXXX XXXXX
LAMBDANET CREDIT AGREEMENT
page 56 of the agreement dated January 21, 0000
XXXXXXXX 4: GUARANTY
The limited amount guaranty of NORTEL DASA.
ABSOLUTE LIMITED AMOUNT GUARANTY
for Collateralising Certain Demands of the Banks
to
1) Bayerische Hypo- und Vereinsbank AG
2) Dresdner Bank AG (hereinafter referred to as the "Liquidating Bank" when it
acts simultaneously for the Bayerische Hypo- und Vereinsbank AG and
Kreditanstalt fur Wiederaufbau)
3) Kreditanstalt fur Wiederaufbau
(hereinafter referred to together as the "Banks")
--------------------------------------------------------------------------------
name and address of the Guarantor
--------------------------------------------------------------------------------
NORTEL DASA NETWORK SYSTEMS GMBH & CO. KG
--------------------------------------------------------------------------------
PREAMBLE:
The Banks have extended LambdaNet Communications GmbH, Hannover (hereinafter
referred to as the "Borrower" or "Principal Debtor") a credit facility dated
February 21, 2000 amounting to Euro 56,000,000 based upon the Loan Facility
Agreement that shall be extended in two tranches (Tranche A amounting to a
maximum of Euro 10,000,000 and Tranche B amounting to a maximum of Euro
46,000,000). It is possible to take advantage of Tranche B in the framework of
the availability of Loan Facility Agreement defined and covered by the
agreement. In order to make it possible for the Borrower to claim funds before
the prerequisites have been created for a claim covered by the agreement, the
Borrower was conceded the possibility of also claiming credit funds under
Tranche B until June 15, 2000 if the guarantor provides an absolute limited
amount guaranty upon the first written request under prerequisites precisely
defined in the credit agreement (availability covered by guaranty under Tranche
B) Liquidating Bank shall inform the guarantor of the amount of the claim
covered by guaranty in the intervals of time defined in the Loan Facility
Agreement. The details of the credit agreement that is attached to this guaranty
as an appendix and forms an essential component of this guaranty are known to
us.
Stating these things in advance, we (hereinafter referred to as "the Guarantor")
herewith assume the
ABSOLUTE GUARANTY
for all claims that the Banks are entitled to from
--------------------------------------------------------------------------------
designation of the Banks' demands
--------------------------------------------------------------------------------
the claims covered by guaranty under Tranche B in the framework of the Loan
Facility Agreement designated above and dated December 21, 2000 (hereinafter
referred to as "Loan")
--------------------------------------------------------------------------------
LAMBDANET CREDIT AGREEMENT
page 2 of the agreement dated January 21, 2000
against
--------------------------------------------------------------------------------
name and address of the Principal Debtor
--------------------------------------------------------------------------------
LAMBDANET COMMUNICATIONS XXXX, XXXXXXX-XXXXXX-XXXXX 00, 00000 XXXXXXXX,
XX NUMBER HRB 57818 AT THE HANNOVER LOCAL COURT
--------------------------------------------------------------------------------
by obliging ourselves to pay
--------------------------------------------------------------------------------
amount in words
--------------------------------------------------------------------------------
23,800,000 EUROS TWENTY-THREE MILLION EIGHT HUNDRED THOUSAND EUROS
--------------------------------------------------------------------------------
including interest and costs when we receive the first written request from the
Liquidating Bank (hereinafter referred to as the "Declaration of Claim") where
it declares that the Banks' claims for payment from the loan have not been
complied with pursuant to the agreement.
1. CLAIMS FROM THE GUARANTY, WAIVING PLEAS AND THE DUTY TO PROVIDE
INFORMATION
1.1 If the Banks' claims to payment that are collateralised by the guaranty
are due and if the Principal Debtor does not comply with these claims,
the Banks may get into contact with the Guarantor who shall make payment
within three working days after the Declaration of Claim is received upon
the first written request from the Liquidating Banks. The Banks shall not
be obliged to initially proceed in court against the Principal Debtor or
to utilise collateral provided to them.
1.2 The Guarantor shall also have an obligation to pay if the Principal
Debtor can contest the business that his obligation is based upon
(waiving the plea of contestibility that the Guarantor is entitled to
pursuant to Section 770, Paragraph 1 of Burgerliches Gesetzbuch - the
German Civil Code). Furthermore, the Guarantor may not plead that the
Banks may satisfy their claims by setting them off against a demand due
from the Principal Debtor (waiving the plea of setting off that the
Guarantor is entitled to pursuant to Section 770, Paragraph 2 of
Burgerliches Gesetzbuch - the German Civil Code).
1.3 The Banks shall inform the Guarantor on the fact that the Borrower has
not paid on time no later than three working days after the
collateralised demand was due.
1.4 The Guarantor's obligation to pay shall expire if the Guarantor complies
with the demands of the Banks asserted in the Declaration of Claim. This
shall not apply if the claim is asserted against the Guarantor
exclusively for the interest or fees accumulating for the principal debt
(said claims shall be reduced in accordance with the maximum amount) or
the amount of the demand asserted was not correctly calculated and/or not
correctly stated in the Declaration of Claim without the gross negligence
of the Liquidating Bank
2. THE RANK OF THE PASSED OVER DEMAND AND PASSING OVER COLLATERAL
2.1 To the extent that the Guarantor satisfies the Banks, their demands
against the Borrower shall pass onto him. The Guarantor steps back as the
creditor of the Borrower behind all existing, future and conditional
claims with the passed over demands that the Banks are
LAMBDANET CREDIT AGREEMENT
page 3 of the agreement dated January 21, 2000
entitled towards the Borrower from the Loan with all of their domestic
and foreign business shares and domestic and foreign subsidiaries.
2.2 Before the debt from the guaranty is completely fulfilled, the Guarantor
shall not have a claim to have the collateral being transferred that was
made available to the Banks for collateralising the claims covered by
guaranty.
2.3 If the Guarantor has completely fulfilled the debt from the guaranty and
if the Banks have to release the non-accessory collateral pursuant to the
collateral agreements, they shall transfer the collateral that was made
available to them by the Principal Debtor to the Guarantor, if necessary
proportionally. The Banks shall re-transfer collateral that was ordered
by third parties to each party furnishing collateral in the absence of
another agreement with him. If the Banks' claims against the Borrower
exceed the maximum amount from the guaranty and the collateral to be
transferred to the Guarantor only serve the purpose of collateralising
the portion of the Banks' claims not guarantied against the Borrower, the
Banks shall be entitled to a higher-ranking right to be paid in relation
to the Guarantor to the extent that the prerequisites have not been
complied with pursuant to Number 2.7a.
2.4 To the extent that collateral passes over to the Guarantor by virtue of
the law (such as rights of lien), it shall not go beyond the legal
regulation. If the Banks' claims against the Borrower exceed the maximum
amount of the guaranty and the collateral that passes over to the
Guarantor by virtue of the law also serve the purpose of collateralising
the non guarantied portion of the Banks' claims against the Borrower, the
Banks shall be entitled to a higher-ranking right to be paid in relation
to the Guarantor to the extent that the prerequisites have not been
complied with pursuant to Number 2.7a. The Banks shall exercise their
discretion in the framework of a contractually agreed upon obligation for
releasing the collateral to the effect of releasing the collateral
provided by the Borrower before releasing the rights of lien of the
business shares of LambdaNet.
2.5 Any claims of the Guarantor for settling and assigning collateral against
other parties furnishing collateral shall not be affected by the
regulations above.
2.6 If the conditions under which the Banks are entitled to utilise the
collateral designated in the following are given, the Banks shall concede
the Guarantor or another company of the Nortel Group the right to utilise
the collateral designated in the following in its own name, but for the
Banks' account after the prior consent of the Liquidating Bank apart from
the Banks' right of utilisation:
- the agreement on transfer of property by way of receipt dated
January 21, 2000 for the presence locations
- the agreement on transfer of property by way of receipt dated
January 21, 2000 for the Network Management Center in Hannover
The Banks shall not deny consent with the justification that the purchase
price is set too low if the amount of the purchase price is sufficient to
fulfil all demands that the Banks have against the Borrower. The
Liquidating Bank shall inform the Guarantor in writing of the occurrence
of the case of utilisation. The Guarantor shall comply with the
prerequisites for use contained in the individual collateral agreements.
The costs that are
LAMBDANET CREDIT AGREEMENT
page 4 of the agreement dated January 21, 2000
actually incurred in connection with utilisation shall be satisfied with
a higher ranking from the proceeds from utilisation to the extent that
the Banks have consented to carrying out the measures that produce costs.
Consent shall not be denied for disassembly that is necessary for
utilisation and installing the property that serves as collateral without
an important reason. To the extent that the Guarantor is not successful
at using the collateral within 6 months after the Liquidating Bank sent
written information on the fact that the conditions for utilisation are
given, the Banks may revoke the right of utilisation assigned to the
Guarantor.
2.7 If the Guarantor has fulfilled all of his guaranty debt and if the
demands of the Banks against the Borrower pass over to the Guarantor to
the amount of satisfaction,
a) the retreat in rank pursuant to Paragraph (1) of this Section
shall no longer be applicable and the Guarantor participates in
the collateral existing for these demands on equal ranking at the
ratio to the collateralised total demand if and as soon as the
following prerequisite are given cumulatively:
- the Borrower fulfils all imposed conditions demanded in
Number 12 of the credit agreement
- the Borrower has already amortised 33% of the amounts
outstanding on December 31, 2001 under Tranche B
- the DEBT SERVICE COVERAGE RATIO reaches or exceeds a value
of 1.5 in accordance with the definition in the credit
agreement. When ascertaining the value (the DEBT SERVICE
COVERAGE RATIO), the fact that the retreat in rank shall
no longer be applicable shall already be taken into
consideration.
Suspending the retreat in rank necessitates the fact that the Banks would
only be able to demand interest on their still outstanding demands under
Tranche B that would then be of equal ranking amounting to the interest
rates calculated by the Banks and that it would only be possible to
assert the demands that would then be of equal ranking at the dates
specified in Article 8.1.1 of the credit agreement and only at the
following percentages:
% amortisation of NORTEL DASA'S DEMAND =
(TRANCHE B on December 31, 2001 multiplied by X%) divided by TRANCHE B
PARI PASSU.
Here, the following means:
- X% or the repayment percentage specified in Article 8.1.1 of the
Loan Facility Agreement to each amortisation date
- TRANCHE B on December 31, 2001: the amount outstanding as per
December 31, 2001 under Tranche B
- TRANCHE B PARI PASSU: the amount still outstanding at the point in
time of suspending the retreat in rank
- NORTEL DASA'S DEMAND: the demand against LambdaNet that passes
over to the Guarantor when the guaranty debt is paid to the amount
still existing at the point in time of suspending the retreat in
rank
LAMBDANET CREDIT AGREEMENT
page 5 of the agreement dated January 21, 2000
b) if the Banks' demands against the Borrower from further pay-outs
from the Loan Facility Agreement are of lower ranking towards the
demands that have passed onto the Guarantor against the Borrower
and are only collateralised in lower ranking by the existing
collateral if and to the extent that these pay-outs are made
without the conditions for pay-out settled in Number 13 of the
Loan Facility Agreement being fulfilled unless the Guarantor
consents to these pay-outs or the prerequisites under Number 7a)
are fulfilled. This consent may not be denied without a reason.
c) if the Guarantor is entitled to sell the demands against the
Borrower that have been passed from the Banks onto the Guarantor
to third parties to the extent that this is possible pursuant to
the regulations in the credit agreement. With reference to the
demands specified, the Banks shall be entitled to a legal right of
first refusal pursuant to Sections 504 ff of Burgerliches
Gesetzbuch (the German Civil Code).
3. CREDITING PAYMENTS INTO ACCOUNT
The Banks may credit the proceeds from utilising the collateral that the
Principal Debtor or another third party has ordered for them initially to
the portion of their claims against the Borrower that exceeds the maximum
guarantied amount specified above. In the same fashion, i.e. at a higher
ranking with the non guarantied portion of their claims, the Banks may
set off all payments made by the Principal Debtor or for his account.
4. ALLOWING ADDITIONAL TIME FOR COLLATERAL AND RELEASING COLLATERAL
The Guarantor shall not be free of his guaranty obligation if the Banks
allow the Principal Debtor more time for interest or fees due. This shall
also apply if the Banks release collateral in one or several steps to the
extent that the total value does not exceed Euro 500,000 or if the Banks
release collateral thereby fulfilling an obligation to release that
results from other collateral agreements. The Guarantor shall also not be
free of his guaranty obligation if disposals are allowed on the pledged
project accounts.
5. COMMISSION ON GUARANTY
The commission on guaranty that LambdaNet owes to the Guarantor and the
interest shall result from the Guarantee Facility Agreement attached as
an appendix. Changes with reference to the amount of these fees and
interest owed shall require the consent of the banks.
6. GOING INTO EFFECT
The guaranty shall be under the dilatory condition that the Borrower
initially has drawn a minimum amount of at least Euro 6,000,000 under
Tranche A. It shall be effective to the maximum amount that corresponds
to the value of the supplies and services furnished by the Guarantor
based upon the Nortel Dasa Contract (= the date-bound general contractor
agreement amounting to Euro 46,539,974 between the Guarantor and Borrower
dated September 21, 1999 and each additional and supplemental agreement
accepted by the lenders, especially the additional agreement dated
December 31, 1999) as it was confirmed towards the Liquidating Bank by
the Guarantor and Borrower in writing.
LAMBDANET CREDIT AGREEMENT
page 6 of the agreement dated January 21, 2000
7. LIMITATION
The guaranty shall be limited to June 30, 2000.
LAMBDANET CREDIT AGREEMENT
page 7 of the agreement dated January 21, 2000
8. APPLICABLE LAW AND VENUE
German law shall apply to the principal-surety relationship. The venue
shall be Frankfurt am Main.
9. REPRESENTATION OF THE BANKS
The Bayerische Hypo- und Vereinsbank AG shall simultaneously accept this
guaranty for the other banks.
Munich, January 21, 2000 /s/
-----------------------------------------
Nortel Dasa Network Systems GmbH & Co. KG
SHALL BE FILLED OUT BY THE BAYERISCHE HYPO- UND VEREINSBANK AG
--------------------------------------------------------------------------------
reported by
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
received and handed out by
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
submitted by the Guarantor personally
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
yes no on (date)
If this was not submitted by the Guarantor, letter of confirmation received from
Guarantor on:
--------------------------------------------------------------------------------
LAMBDANET CREDIT AGREEMENT
page 58 of the agreement dated January 21, 0000
XXXXXXXX 6: DEMAND FOR PAY-OUT
DEMAND FOR PAY-OUT
[BORROWER'S letterhead]
to: Xx. Xxxxxxxxx / Xx. Xxxxx
Dresdner Bank XX
Xxx Branch Office
Xxxx Xxxxxxx 00
00000 Xxx
fax: (0000) 000-0000
date: [...]
Pursuant to Article 3.5 of the Basic Credit Agreement dated [ ], 2000 between us
and the Borrowers, we herewith apply for the following pay-out under the credit
line:
[ ] Tranche A
[ ] Tranche B
(a) pay-out date: [ ]
(b) interest period: [ ] months
(c) amount of pay-out [ ] Euros
(d) The loan shall be used for the following special purposes:
- Tranche A: [ ] operating resource required
[ ] project costs above Euro 100,000
pursuant to the attached invoices
[ ] other project costs, i.e.
[ ]
[ ]
[ ]
- Tranche B: [ ] Nortel Dasa supply agreement
[ ] project costs above Euro 100,000
pursuant to the attached invoices
[ ] other project costs, i.e.
[ ]
[ ]
[ ]
The equivalent of the loan shall be transferred to the project account
_______________ .
We herewith confirm that:
(i) the conditions imposed in Article 12 of the basic credit agreement have
also been complied with on the present day and immediately after paying
out the loan, and
(ii) there is no reason for termination pursuant to Article 14 of the basic
credit agreement and no potential reason for termination has occurred
or continues to exist or will occur as a result of paying out the loan,
and
(iii) there is not any significant deterioration in the business operation
and in the development of the business of the Borrower.
-----------------------------
Lambdanet Communications GmbH
The following agreement on the transfer of space by way of receipt is concluded
------------------------------------------------------------------------------------------------------------------
TRANSFER OF SPACE BY WAY OF RECEIPT
------------------------------------------------------------------------------------------------------------------
BETWEEN:
the name/business name and address of the party the name and address of the Borrower:
furnishing collateral: Lambdanet Communications GmbH
Lambdanet Communications GmbH Xxxxxxx-Xxxxxx-Allee 18
Xxxxxxx-Xxxxxx-Allee 18 30177 Hannover
30177 Hannover
account number: 1 024 061
registered in the HRB number HRB 57818, Hannover Local at the Dresdner Bank AG,
Court Friedrichshafen Branch Office
(HEREINAFTER REFERRED TO AS THE "PARTY FURNISHING bank code number: 651 800 05
COLLATERAL")
------------------------------------------------------------------------------------------------------------------
AND
Bayerische Hypo- und Vereinsbank Aktiengesellschaft,
Munich
(HEREINAFTER REFERRED TO AS "BANK" OR "HVB"
------------------------------------------------------------------------------------------------------------------
1. THE SUBJECT MATTER OF THE TRANSFER OF SPACE BY WAY OF RECEIPT
1.1 The party furnishing collateral has installed transmission systems
including network elements such as multiplexers and repeaters as well
as the management software, appropriate computer, operating system and
database platforms necessary for monitoring and controlling the network
elements as well as the hardware and software necessary for connecting
the network element in the framework of the project of building up and
operating an optical waveguide network in Germany measuring 3,200
kilometres in the following spaces
X. Xxxx-Elektrizitatswerke XX, Xxxxxxxxxxxxxxxx 0, 00000 Xxxxxxxx, XX
registration number HRB 0000, Xxxxxxxxx Xxxxx Xxxxx, the basement (on
the northern side) of commercial hall Xxxxxxxxxxxxx 0, 00000 Xxxxxxxx
(XXXXX TO LEASE DATED JULY 1/7, 1999), hereinafter referred to as
Collateral Space I
II. GfW Gesellschaft fur Wohnbesitz mbH & Co. KG, Xxxxxx-Xxxxxx-Xxxxxxx 00,
00000 Xxxxxxx, XX registration number HRB 61512, Charlottenburg Local
Court, COMMERCIAL SPACE of building part A, KG, Xxxxxxxxxxxxx 00-00,
00000 Xxxxxx (REFER TO LEASE DATED JUNE 22/24, 1999), hereinafter
referred to as Collateral Space II
III. Immobilien-Beteiligungsgesellschaft Xx. Xxxxx Xxxxx KG, HR registration
number HRB 1629, Cologne Local Court, ADMINISTRATIVE SPACE in the
building Xxxxxxxxx/Xxxxxxxxxx 0/Xxxxxxxxxxxxx, 00000 Xxxxxxxxx (XXXXX
TO LEASE DATED JULY 20/26, 1999), hereinafter referred to as Collateral
Space III
IV. Xxxxx Xxxxx Grundbesitz Objekt Regensburg KG, Xxxxxxxx-Xxxxxx-Xxxxxxx
000-000, 00000 Xxxxxx, XX registration number HRA 73208, Munich Local
Court, UTILITY
AGREEMENT ON TRANSFER OF SPACE BY WAY OF RECEIPT
page 2 of the agreement dated January 21, 2000
SPACE of the building of CIF-Vers.-B, Xxxxxxxx-Xxxxxx-Strasse 104-106,
28197 Bremen (REFER TO LEASE DATED JUNE 23/29, 1999), hereinafter
referred to as Collateral Space IV
V. TRD-Reisen Xxxxx Xxxxxxx GmbH & Co. KG, Im Xxxxxxxxxxx 00, 00000
Xxxxxxxx, XX registration number HRA 6661, Dortmund Local Court for the
KG and HR registration, Dortmund Local Court for the Geschaftsfuhrungs
GmbH Xxxxx- und Nutzungsflachen at the tourist bus car park, Im
Xxxxxxxxxxx 00, 00000 Xxxxxxxx (REFER TO LEASE DATED JUNE 25/AUGUST 1,
1999 INCLUDING SUBSIDIARY AGREEMENTS DATED AUGUST 1/AUGUST 30, 1999 AND
OCTOBER 21, 1999), hereinafter referred to as Collateral Space V
VI. ESAG Energieversorgung Sachsen Ost AG, Xxxxxxxxx-Xxxx-Xxxxx 0, 00000
Xxxxxxx, XX registration number HRB 965, Dreseden Local Court, SPACES
in the city centre at the Dresden MainTrain Station (REFER TO LEASE
DATED OCTOBER 29/NOVEMBER 22, 1999), hereinafter referred to as
Collateral Space VI
VII. X.X. Xxxxxx & Co. Erze und Metalle GmbH, Xxxxxxxxxxxxxx 00, 00000
Xxxxxxxxxx, XX registration number HRB 10774, Dusseldorf Local Court,
SPACE in the office building of Xxxxxxxxxxxxxx 00 (REFER TO TEMPORARY
LEASE DATED JUNE 24, 1999 AND THE FINAL LEASE TO BE CONCLUDED BETWEEN
X.X. XXXXXX & CO. ERZE UND METALLE GMBH AND THE PARTY FURNISHING
COLLATERAL ON SPACES IN THE XXXXXXXXXXXXXX 00 OFFICE BUILDING, 40211
DUSSELDORF), hereinafter referred to as Collateral Space VII
VIII. Commerzbank XX, Xxxxxxxxxxx, 00000 Xxxxxxxxx xx Xxxx, XX registration
number HRB 32000, Frankfurt am Main Local Court, PIECE OF REAL ESTATE
on Juri-Gargarin-Ring 86, 99084 Erfurt (REFER TO LEASE DATED SEPTEMBER
13/21, 1999), hereinafter referred to as Collateral Space VIII
IX. Deutsche Post AG, General Headquarters, Bundeskanzlerplatz 0 -00 / Xxxx
Xxxxxx, 00000 Xxxx, XX registration number HRB 0000, Xxxx Xxxxx Xxxxx,
XXXXX XX XXXX XXXXXX of Deutsche Post Immobilien Essen (main post
office), Xxxxxxxxxxxx 0 - 8 (REFER TO LEASE DATED JUNE 22/JULY 6,
1999), hereinafter referred to as Collateral Space IX
X. Xxxxxxxxxxx Societatsdruckerei GmbH, Xxxxxxxxxxxx 00 - 00, 00000
Xxxxxxxxx xx Xxxx, XX registration number HRB 7285, Frankfurt am Main
Local Court, piece of real estate of Xxxxxxxxxxxx 00 - 00, 00000
Xxxxxxxxx xx Xxxx (REFER TO LEASE DATED JULY 6, 1999), hereinafter
referred to as Collateral Space X
XI. Immobilien GbR Hamburg, Xxxxxxxxxxxxx 000, 00000 Xxxxxxx ("Luisenhof")
(REFER TO LEASE DATED JULY 8/13, 1999), hereinafter referred to as
Collateral Space XI
XII. Technologiepark Karlsruhe GmbH, Xxxxxx-Xxxxxxx-Xxxxxxx 0, 00000
Xxxxxxxxx, XX registration number HRB 6764, Karlsruhe Local Court,
piece of real estate of Xxxxxx-Xxxxxxx-Xxxxxxx 0, 00000 Xxxxxxxxx,
Building 7H (REFER TO LEASE DATED JUNE 17/21, 1999), hereinafter
referred to as Collateral Space XII
XIII. The husband and wife Professor Xx. Xxxxx Campinge, former cinema,
Xxxxxxx-Xxxxxxx-Xxxxxxx 0-0, Xxxxxxx, entered into the Land Register of
the Deutz borough of Cologne, Volume 72, sheet 0/00, xxxxxxxxx xxxxxxxx
000, xxxx 000 (XXXXX TO LEASE DATED JULY 15/AUGUST 4, 1999),
hereinafter referred to as Collateral Space XIII
XIV. Xxxxxx Xxxxx / Xxxxxx Grisslich community of builder-owners,
Zettachring 6, 70567 Stuttgart, PIECE OF REAL ESTATE of the Leipzig
Business Park, Maximilianallee 4, 04129 Leipzig (REFER TO LEASE DATED
JUNE 10/14, 1999), hereinafter referred to as Collateral Space XIV
XV. GbR Magdeburg Universitatsplatz, Xxxxxxxxxxxxxxx 00, 00000 Xxxxxxxxx xx
Xxxx, XXXXX OF REAL ESTATE at Xxxxxxxxxxxxxxxx 0, 00000 Xxxxxxxxx
(REFER TO LEASE DATED JUNE 23, 1999), hereinafter referred to as
Collateral Space XV
AGREEMENT ON TRANSFER OF SPACE BY WAY OF RECEIPT
page 3 of the agreement dated January 21, 2000
XVI. Xx. Xxxxxxx Xxxxxxxxxx, Xxxxxxxxxxxxxx 00, 00000 Xxxxxxxx, XXXXX OF
REAL ESTATE of Xxxxxxxxxxxxxxxxx 00, 00000 the Neckerau borough of
Mannheim, (REFER TO LEASE DATED JUNE 15/24, 1999), hereinafter referred
to as Collateral Space XVI
XVII. Simon Grundbesitz Xxxxxxx & Partner AG & Co. KG, Xxxxxxxxxxxxx 00,
00000 Xxxxxxxx, XX registration number HRA 67631, Munich Local Court,
PIECE OF REAL ESTATE at Xxxxxxxxxxxxxx 000, 00000 Xxxxxx (office
building A) (REFER TO LEASE DATED JUNE 4/10, 1999), hereinafter
referred to as Collateral Space XVII
XVIII. Xx. Xxxx Xxxxxxxxx, Further Strasse 212, 90429 Nuremberg, PIECE OF REAL
ESTATE at Further Strasse 212, 90429 Nuremberg (building 76) (REFER TO
LEASE DATED JUNE 10/JULY 10, 1999), hereinafter referred to as
Collateral Space XVIII
XIX. Xx. Xxxx-Xxxxx Xxxx, Zettachring 6, 70567 Stuttgart, spaces in the
Stuttgart Business Park at Zettachring 6, 70567 Stuttgart (REFER TO
LEASE DATED JUNE 10/JULY 10, 1999), hereinafter referred to as
Collateral Space XIX
XX. Xxxx Grundstucksverwaltungs GmbH & Co. KG, Xxxxxxxxxxxx 0, 00000
Xxxxxxxx, XX registration number HRA 0000, Xxxxxxxx Xxxxx Xxxxx, XXXXX
XX XXXX XXXXXX at Xxxxxxxxxxxx 0, 00000 Xxxxxxxx (REFER TO LEASE DATED
JUNE 25, 1999), hereinafter referred to as Collateral Space XX
XXI. Bayernfonds Immobiuliengesellschaft mbH & Co. KG, building of Hannover
Forum in the Pelikan Xxxxxxx KG, Innere Xxxxxx Xxxxxxx 00, 00000
Xxxxxx, XX registration number HRB 45696, Munich Local Court, SPACES in
Xxxxxxx-Xxxxxx-Xxxxxxx 00, 00000 Xxxxxxxx (REFER TO LEASE DATED JULY
16, 1999), hereinafter referred to as Collateral Space XXI.
(HEREINAFTER REFERRED TO INDIVIDUALLY AS "COLLATERAL SPACE" AND
COLLECTIVELY AS "COLLATERAL SPACES").
The individual Collateral Spaces are divided up into two levels each:
The space above the double floor (level 1) drawn in and the space
between the double floor drawn in and the floor below it (level 2).
1.2 It is possible to find the exact location of the installation parts in
the base plans attached as a copy, that are an essential component of
the agreement hereto. To the extent that the objects transferred by way
of receipt are only within a specially marked section of the piece of
real estate, it is also possible to find the marking in the base plans.
If the marking is red, this designates level 1 of the Collateral Space
and if the marking is green, this designates level 2 of the Collateral
Space.
It is only possible to use each lease for designating Collateral Spaces
VI and VIII at the present time, that are an essential component of the
agreement hereto. Each of the base plans also become an essential
component of the agreement hereto and the party furnishing collateral
shall submit them without delay after they have been prepared.
1.3 The real estate owners have permitted the party furnishing collateral
the use of the piece of real estate with the leases listed under 1.1
for preparing and operating the plant. The installation parts specified
in Number 1.1 that the party furnishing collateral brought upon the
piece of real estate in connection with preparing and operating the
installation parts and will bring onto it in the future shall only be
brought or prepared there for the duration of the lease agreement.
Therefore, they are only linked to the piece of real estate for a
temporary purpose (Section 95 of Burgerliches Gesetzbuch - the German
Civil Code) and they therefore shall not pass into the property of the
real estate owner.
AGREEMENT ON TRANSFER OF SPACE BY WAY OF RECEIPT
page 4 of the agreement dated January 21, 2000
1.4 The transfer by way of receipt shall extend to all objects and
implements specified in Number 1.1 and other objects and implements in
connection with building up and operating the optical waveguide network
that are in the Collateral Space mentioned above presently or in the
future including all of the stock, accessory or spare parts necessary
for operation and the data processing units required for operation.
Furthermore, the property of the entire system documentation prepared
presently and in the future by Nortel Dasa pursuant to the
specification of the basic agreement dated September 21, 1999, that is
an essential component of the agreement hereto, shall be transferred
including modifications or secondary agreements and the individual
agreements that are based upon this with the party furnishing
collateral, consisting of hardware and the software installed on it
including all handbooks and control diagrams.
The author Nortel Systems GmbH & Co. KG with its headquarters in
Xxxxxxxxxxx 00 - 00, 00000 Xxxxxxxxx xx Xxxx, shall concede to the Bank
the simple right of use and enjoyment to the extent that results from
the date-linked general contractor agreement between the author and
party furnishing collateral amounting to 46,539,974 German Marks
concluded on September 21, 1999. The simple right of use especially
includes the right to use the software of the system created in the
framework of the agreement with the party furnishing collateral
presently and in the future and supplied presently and in the future
with the documentation belonging to it for the purpose of operating the
hardware of the system as much as desired and to permit third parties
the use of it. The author issues his consent to transferring this
simple right of use and enjoyment in the framework of utilisation in
favour of satisfying the demands specified in Number 3 of the agreement
hereto. The author shall grant the rights of the Bank designated under
Number 1.4 under the condition subsequent with the specification that
the rights of the Banks shall automatically end when the demands
designated in Number 3 of the agreement hereto have been completely
satisfied. This shall not apply if satisfaction is made by the
utilisation proceeds achieved in the framework of utilisation and the
simple right of use and enjoyment is transferred in this process. The
declaration of the author shall form a component of the agreement
hereto.
(ALL OF THE OBJECTS AND RIGHTS HEREINAFTER REFERRED TO AS "COLLATERAL GOODS")
1.5 The contractual parties are in agreement that all of the objects
presently in the stated Collateral Space of the type mentioned shall be
transferred when this agreement is concluded and that all of the
objects that come there in the future of the type mentioned shall be
transferred to the property of the Bank at the point in time of them
being brought into the Collateral Space (expectancy, ownership,
co-ownership). To the extent that the Bank initially only receives
expectancy, the entire ownership shall pass over to the Bank
immediately at the point in time of the reservation of title no longer
being applicable.
2. REPLACEMENT FOR THE TRANSFER
Transferring the Collateral Goods to the Bank shall be replaced by the
fact that the party furnishing collateral preserves it carefully for
the Bank. To the extent that third parties come into the immediate
possession of the Collateral Goods, the party furnishing collateral
shall assign his existing and future claims to delivery to the Bank
now.
AGREEMENT ON TRANSFER OF SPACE BY WAY OF RECEIPT
page 5 of the agreement dated January 21, 2000
3. THE PURPOSE OF COLLATERAL
Transferring by way of receipt shall serve the purpose of securing all
existing, future and conditional claims that the Dresdner Bank AG, the
Kreditanstalt fur Wiederaufbau and the HVB are entitled to against the
party furnishing collateral with all of the domestic and foreign
business offices and domestic and foreign subsidiaries from extending
the loan pursuant to the basic project credit agreement dated January
21, 2000 including any addenda/supplements.
4. REPLACING RESERVATIONS OF TITLE
The party furnishing collateral shall bring about the expiration of any
reservation of title that may exist by paying the purchase price. The
Bank shall be entitled to pay a remaining debt in respect of the
purchase price obligation of the party furnishing collateral at his
debit.
5. STOCK LISTS
5.1 The party furnishing collateral has to submit a list of stock on the
Collateral Goods transferred to the Bank no later than the 5th working
day of every calendar half-year while referring to the agreement
hereto. The Bank may also demand that stock lists are sent in shorter
periods of time to preserve its justified concerns. The stock list has
to contain information on the type, quantity, size/volume, brand and/or
manufacturer.
5.2 The stocks actually on hand shall also be transferred if the stock
lists are incorrect or incomplete in any fashion.
6. THE AUTHORITY TO EXCHANGE
The Bank shall allow the party furnishing collateral to procure
appropriate new parts in the framework of the service necessary
according to the specifications of proper management for
machines/devices or components of the Collateral Goods requiring
renewal. All measures that are not absolutely necessary for maintaining
the functionality shall require the consent of the Bank.
7. HANDLING AND MARKING THE COLLATERAL GOODS
7.1 The party furnishing collateral has to leave each of the Collateral
Goods in the Collateral Space, to treat it carefully at his debit and
not to conceal the transfer by way of receipt to third parties who are
legally or economically interested in it.
7.2 The Bank may xxxx the Collateral Goods as its property in order to
preserve its justified concerns in a fashion that appears expedient to
it. The transfer by way of receipt shall be made noticeable in the
documents of the party furnishing collateral with the name of the Bank.
AGREEMENT ON TRANSFER OF SPACE BY WAY OF RECEIPT
page 6 of the agreement dated January 21, 2000
8. THE LEGAL RIGHTS OF LIEN OF THIRD PARTIES
To the extent that there is a legal right of lien of third parties to
the Collateral Goods, especially of the lessor, the party furnishing
collateral has to prove that it has been paid at the Bank's request
after the due date of the interest or remuneration owed from the legal
relationship it is based upon. If this proof is not furnished, the Bank
shall be authorised to pay the collateralised demand at the debit of
the party furnishing collateral to avert the right of lien.
9. THE DUTY OF THE PARTY FURNISHING COLLATERAL TO PROVIDE INFORMATION
The party furnishing collateral shall notify the Bank without delay if
the rights of the Bank to the Collateral Goods should be impaired or
endangered by levy of execution or other measures of third parties or
in another fashion.
10. INSURING THE COLLATERAL GOODS
10.1 The party furnishing collateral shall keep the full amount of the
Collateral Goods insured at his own debit for the entire duration of
transfer by way of receipt against the usual hazards and against the
hazards that insurance coverage seems necessary to the Bank when the
risks are appropriately assessed and to prove this to the Bank upon
request especially by submitting the insurance policy. Upon the Bank's
request, the party furnishing collateral has to request the insurance
company to send an insurance policy to the Bank. If the party
furnishing collateral has not effected the insurance or not
sufficiently, the Bank may do this at his debit.
10.2 The party furnishing collateral shall assign all of the claims to
insurance and compensation for damage that the party furnishing
collateral acquires because of loss and damage of the Collateral Goods
in a separate collateral assignment agreement.
11. THE BANK'S RIGHT TO EXAMINE
11.1 The Bank shall be entitled to examine the Collateral Goods at each
location or to have it examined by its representatives and to inspect
the books and documents for the purpose of examination.
11.2 To the extent that the Collateral Goods are in the immediate possession
of third parties, the party furnishing collateral shall instruct them
to grant the Bank access to the Collateral Goods and to give all of the
information on the Collateral Goods desired by it.
12. THE BANK'S RIGHT OF UTILISATION
12.1 The Bank shall be entitled to utilise the Collateral Goods if the
Borrower is in arrears with the payments for the demands due that are
collateralised by the agreement hereto. The Bank shall only utilise the
Collateral Goods to the extent that this is necessary for fulfilling
the demands in arrears.
12.2 The Bank shall threaten the party furnishing collateral with
utilisation setting a period. If concluding this agreement is a
commercial act for the party furnishing collateral, the period shall be
at least one week. In all other cases, it shall be one month.
AGREEMENT ON TRANSFER OF SPACE BY WAY OF RECEIPT
page 7 of the agreement dated January 21, 2000
12.3 The Bank may sell the Collateral Goods by private contract in its own
name or in the name of the party furnishing collateral. It shall take
the justified concerns of the party furnishing collateral into
consideration. It may also demand from the party furnishing collateral
that he utilise the Collateral Goods on a best-efforts basis according
to its instructions or assists in the utilisation. The party furnishing
collateral has to issue everything received in the utilisation of the
Collateral Goods to the Bank without delay.
13. RECONVEYANCE, RELEASING THE COLLATERAL
13.1 After satisfying its claims collateralised by the agreement hereto, the
Bank shall reconvey the collateral transferred with this agreement to
the party furnishing collateral and issue any excess proceeds from
utilisation. However, the Bank shall transfer this collateral to a
third parties if it is obliged to do so. This is the case, for
instance, if the party furnishing collateral is simultaneously the
Borrower and a guarantor has satisfied the Bank.
13.2 To the extent that several objects have been transferred by way of
receipt or other collateral has been ordered apart from this
collateral, the Bank shall release the Collateral Goods transferred to
it and any other collateral orders to it (such as demands assigned,
land charges) at its choice to each party furnishing collateral wholly
or partially before its claims collateralised by the transfer by way of
receipt are completely satisfied to the extent that the realisable
value of all collateral does not just exceed 110% of the Bank's
collateralised claims temporarily.
13.3 In the absence of a deviating agreement, the realisable value of the
Collateral Goods shall be ascertained for the purposes of Number 13 as
follows: The fair market price at the point in time of the request for
release shall be decisive. If that is missing
- the purchase price for the Collateral Goods that the party
furnishing collateral purchased
- the manufacturing price for the Collateral Goods that the party
furnishing collateral manufactured himself or processed.
The value of the Collateral Goods that a third party has a higher
ranking collateral right on (such as a reservation of title, right of
lien) shall first of all be deducted from the value ascertained in
this fashion, however only amounting to the collateralised claims of
each creditor.
A collateral surcharge amounting to 25% shall be effected from the
value ascertained afterwards if the Collateral Goods are current
assets, because of a possible deficiency in proceeds (for instance,
with judicial sale). A collateral surcharge amounting to 30% per
year from purchase or completion, proportionately for each
increment of a year, shall be effected degressively from each
previous value if the Collateral Goods are non-real estate fixed
assets.
14. THE INTERPRETATION OF THE AGREEMENT/CONTINGENT AGREEMENT
This contract is concluded under the assumption on all sides that the
Collateral Goods will not/has not become an essential component of the
piece of real estate in spite of its connection with the grounds,
rather remain(s) independent tangible asset(s) or has/have remained
thus.
AGREEMENT ON TRANSFER OF SPACE BY WAY OF RECEIPT
page 8 of the agreement dated January 21, 2000
Should the installation be valuated as an essential part of the grounds
by a final and conclusive ruling and afterwards the ownership of the
installation pass onto the real estate owner, the party furnishing
collateral shall herewith transfer all of the rights and claims
resulting from the loss of rights to the Bank in a fashion that the
Bank not only acquires the claim from Section 951 Burgerliches
Gesetzbuch (the German Civil Code), but also all rights that the party
furnishing collateral is entitled to against the real estate owner with
reference to the right of beneficial use of the installation.
15. MISCELLANEOUS/FINAL PROVISIONS
15.1 The General Terms and Conditions of the Bank shall apply as a
supplement. They are already known to the party furnishing collateral
and may otherwise be inspected at every office of the Bank. They can
also be sent upon request.
15.2 The law of the Federal Republic of Germany shall apply. The venue and
place of performance shall be Frankfurt am Main.
15.3 Oral subsidiary agreements were not made. Modifications to the
agreement hereto shall require the written form. This shall also apply
to suspending the agreement on the written form.
15.4 Should one or several of the provisions of the CONTRACT hereto be
wholly or partially invalid or prove to be unenforceable, the validity
of the rest of the agreement hereto shall otherwise not be affected by
this. The parties shall replace the wholly or partially invalid or
unenforceable provisions with a valid provision that corresponds to the
economic purpose desired and that comes as close as possible to the
content of the provision to be replaced. This shall apply accordingly
if it comes to light that the agreement hereto has gaps in the
regulations.
JANUARY 21, 2000 /s/
---------------------------------- ----------------------------------------------------
Munich, January 21, 2000 (the signature of the party furnishing collateral)
JANUARY 21, 2000 /s/
-------------------------- ----------------------------------------------------
Munich, January 21, 2000 (signature of Bayerische Hypo- und Vereinsbank AG)
JANUARY 21, 2000 /s/
-------------------------- ----------------------------------------------------
Munich, January 21, 2000 (the signature of the author)
Contract of the Transfer of Room Ownership
Page 1 of 10 of the Declaration from 21 January 2000
Translation from the German Language
------------------------------------------------------------------------------------------------------------------
Contract of Transfer of Room Ownership
------------------------------------------------------------------------------------------------------------------
between: Name/company and address of the Borrower /Creditee
Name/company and address of the Mortgager: Lambda Net Communications GmbH
Lambda Net Communications GmbH Xxxxxxx-Xxxxxx-Allee 18
Xxxxxxx-Xxxxxx-Allee 18 30177 Hannover
30177 Hannover Germany
Germany
Account no. 1 024 061
registered in the Commercial Registry - No. 57818 at the Dresdner Bank AG, Friedrichshafen Branch,
District Court of Hannover Bank code: 651 800 05
(hereinafter referred to as the "Mortgager"
------------------------------------------------------------------------------------------------------------------
and the
Bayerische Hypo- und Vereinsbank Aktiengesellschaft
Munchen
(hereinafter referred to as the "Bank" or "HVB"
------------------------------------------------------------------------------------------------------------------
the following Contract of Transfer of Room Ownership is concluded.
1. OBJECT OF THE TRANSFER OF OWNERSHIP
1.1 On the property, Xxxxxxx-Xxxxxx-Xxxxx 00, 00000 Xxxxxxxx, 0xx Xxxxx,
Property Register from Xxxxx Xxxxxxxx Volume/Page 7589 (hereinafter
referred to as the "SECURITY ROOM") of the Bayernfonds
Immobiliengeschaft mbH & Co Objeckt Hannover Forum im Pelikan Xxxxxxx
KG, Innere Xxxxxx Xxx. 00, 00000 Xxxxxx, Commercial Registry Xx. 00000,
Xxxxxxxx Xxxxx xx Xxxxxx,
in the framework of the project "Erection and Operation of a 3,200 km
Long Glass Fibre Network in Germany" - the Mortgager has installed
Contract of the Transfer of Room Ownership
Page 2 of 10 of the Declaration from 21 January 2000
transmission systems including network elements such as multiplexers
and repeaters as well the management software, accessory computer,
operating system and database platforms needed for the surveillance and
controlling of the network elements as well as any hardware otherwise
required for the linkage of the network elements to the management
system and the software running thereupon.
1.2 The exact location of the system parts is to be taken from the annexed
copy of the site map that is an essential element of this contract.
Provided that the transferred objects are only located within a
specially marked section of the property, the marking is to be taken
from the site map(s) as well.
1.3 The property owner has granted the Mortgager the usage of the property
for the erection and operation of the system with the tenancy agreement
from 16 JULY 1999.
The system parts designated in Item 1.1, which were taken by the
Mortgager in connection with the erection and/or operation of the
systems/machines/equipment to the aforementioned property, and will be
taken in the future, are only taken or erected there on the property
for the duration of the contract of lease. Thus they are only bound to
the property for a temporary purpose (Section 95 of the German Civil
Code) and therefore do not pass into the possession of the property
owner.
1.4 The conveyance extends to all objects and equipment named in Item 1.1
as well as other which are in connection with the erection and
operation of the glass fibre network which currently and in the future
shall be located in the aforesaid Security Room including all
inventory, accessories and replacement parts and EDP systems required
for operation.
Furthermore, the ownership of the entire current and future erected
system documentation by Nortel Dasa, comprised of hardware and the
software installed thereupon, including all handbooks and control
plans, shall be transferred according to the provisions of the
Framework Contract from the 21st of September 1999 which is an
essential component of this contract, along with modifications or
addendums as well as the individual contracts which are based thereupon
with the Mortgager.
Contract of the Transfer of Room Ownership
Page 3 of 10 of the Declaration from 21 January 2000
The Originator, Nortel Systems GmbH & Co. KG with its head office in
the Xxxxxxxxxxx 00-00, 00000 Xxxxxxxxx xx Xxxx, concedes to the
Bank the general usufruct in the scope which results from the
schedule-bound General Business Contract between the Originator and
the Mortgager in an amount of DM (German Marks) 46,539,974. --,
entered into on 21 September 1999. The simple usufruct comprises in
particular the right of freely using or allowing use by third
parties of the currently and future erected software and currently
and future delivered software of the system with the accompanying
documentation in the framework of the agreement with the Mortgager
for the purpose of operating the system hardware. The Originator
grants the approval of transferring this simple usufruct in the
framework of the exploitation in favour of the satisfaction of the
stipulations named in Item 3 of this contract. The rights of the
Bank stipulated under this Item 1.4 shall be afforded condition
subsequent by the Originator provided that the rights of the Bank
automatically end if the stipulations named in Item 3 of this
contract have been completely satisfied. This is not the case if the
satisfaction is carried out by proceeds obtained from the
exploitation in the framework of the exploitation and thereby the
simple usufruct is transferred.
The declaration of the Originator forms an element of this contract.
(ALL OBJECTS AND RIGHTS SHALL BE REFERRED TO AS THE "COLLATERAL
GOODS" BELOW.)
1.5 The contractual parties are in agreement that all objects of the
aforesaid kind currently situated in the designated Security Room, and
all objects of the aforesaid kind which shall come to enter into the
Security Room in the future, shall be transferred to the possession of
the Bank (future interest, ownership, co-ownership), in each case at
the time of their bringing into the Security Room. If the Bank at first
only receives reversionary interests, the full ownership is directly
transferred to the Bank, in each case at the time of the lapse of the
reservation of ownership by the supplier.
2. DELIVERY REPLACEMENT
The delivering of the collateral goods to the Bank is replaced by the
Mortgager safeguarding it free of charge and carefully for the Bank. As
far as third parties acquire direct possession of the collateral goods,
the Mortgager shall already now assign his existing and future
surrender claims to the Bank.
Contract of the Transfer of Room Ownership
Page 4 of 10 of the Declaration from 21 January 2000
3. AIMS OF SECURITY
The transfer serves the securing of all existing, future and conditional claims
against the Mortgager, to which the Dresdner Bank AG, the Kreditanstalt fur
Wiederaufbau and the HVB are entitled with all their inland and foreign offices
as well as inland and foreign subsidiaries from the granting of the credit
pursuant to the Framework Credit Agreement from the 21st January 2000 including
any eventual addendums/supplements.
4. DISCHARGE OF RESERVATIONS OF OWNERSHIP
The Mortgager is obligated to allow any existing reservations of ownership to
lapse via payment of the purchase price. The Bank is entitled to pay a remaining
purchase price debt of the Mortgager at his own costs to the suppliers.
5. INVENTORY LISTS
5.1 The Mortgager must submit an inventory list of the collateral goods to
be transferred to the Bank in regard to this contract at the latest by
the 5th workday of each 6 months of the calendar year. For the
observance of their legitimate interests, the Bank may also demand the
forwarding of the inventory lists at shorter time intervals. The
inventory list must contain information concerning the type, amount
sizes/volumes, make and/or manufacturer.
5.2 The actual available inventory shall only then be transferred if the
inventory lists are incorrect or incomplete in any way.
Contract of the Transfer of Room Ownership
Page 5 of 10 of the Declaration from 21 January 2000
6. REPLACEMENT AUTHORIZATION
The Bank allows the Mortgager, in the framework of the maintenance necessary for
the orderly operation of business, to procure the appropriate new parts for
repair-needy machines/equipment or elements of the Collateral Goods. All
measures, which are not absolutely necessary for the maintenances of the
functioning capacities, require the approval of the Bank.
7. HANDLING AND MARKING OF THE COLLATERAL GOODS
7.1 The Mortgager must leave the Collateral Goods in each case in the
Security Room; handle them with care at his own cost, and not conceal
the transfer to third parties which have a legal or business interest
therein.
7.2 For the protection of its legitimate interest, the Bank may xxxx the
Collateral Good as its property in a purposeful seemingly manner. In
the papers of the Mortgager, the transfer is to be clearly marked with
the name of the Bank.
8. LEGAL RIGHTS OF LIEN OF THIRD PARTIES
As far as a legal right of lien of a third party exists, in particular of a
xxxxxx, the Mortgager must provide evidence at the request of the Bank of the
payment of the due interest or fee arising from the legal relationship in each
case after the due date. If no evidence is provided, the Bank is authorized to
pay the secured claim at the cost of the Mortgager in order to xxxx off the
right of lien.
Contract of the Transfer of Room Ownership
Page 6 of 10 of the Declaration from 21 January 2000
9. INFORMATION OBLIGATIONS OF THE MORTGAGER
The Mortgager must inform the Bank immediately if the rights of the Bank to the
Collateral Goods are impeded or in jeopardy in any way by pledging or other
measures carried out by third parties.
10. INSURANCE OF THE COLLATERAL GOODS
10.1 The Mortgager undertakes to keep insured, at his own cost, the
Collateral Goods against the usual dangers and against those dangers
which the Bank deems necessary after appropriate acknowledgement of the
risks for the entire duration of the transfer in the full amount, and
to provide evidence of such at the request of the Bank, in particular
by submitting the insurance policy. At the request of the Bank, the
Mortgager must request of the insurance company that they send the Bank
a copy of the insurance policy. If the Mortgager has not taken out
insurance, or not sufficient insurance, then the Bank may do so at the
cost of the Mortgager.
10.2 The Mortgager shall assign all insurance and damage compensation
claims, which the Mortgager acquires due to the loss and damages to the
Collateral Goods, to the Bank in a separate security assignment
contract.
11. INSPECTION RIGHT OF THE BANK
11.1 The Bank is entitled to inspect the Collateral Goods at their relevant
location, or to have them inspected by their agents, and to be able to
examine the books and records for inspection aims.
11.2 As far as the Collateral Goods are in the direct possession of third
parties, the Mortgager shall instruct the third parties - as long as
this is legally feasible - to grant the Bank admittance to the
Collateral Goods and to provide all information they request concerning
the Collateral Goods.
Contract of the Transfer of Room Ownership
Page 7 of 10 of the Declaration from 21 January 2000
12. EXPLOITATION RIGHT OF THE BANK
12.1 The Bank is entitled to exploit the Collateral Goods if the Creditee is
in arrears with the due payments of the claims secured by this
contract. The Bank shall only exploit the Collateral Goods in the scope
that is necessary for the fulfilment of the claims in arrears.
12.2 The Bank will warn the Mortgager of the exploitation while setting a
deadline. If the conclusion of this contract presents a commercial
transaction for the Mortgager, the deadline shall be at least one week.
In all other cases, it shall amount to one month.
12.3 The Bank may sell the Collateral Goods by freehand sales in its own
name or in the name of the Mortgager. The Bank shall take into
consideration the legitimate interests of the Mortgager. It can demand
of the Mortgager that latter must exploit the Collateral Goods as best
possible according to the instructions of the Bank, or that the
Mortgager assists in the exploitation of said. The Mortgager must
surrender immediately all proceeds to the Bank which were obtained from
the exploitation of the Collateral Goods.
13. RETRANSFER, RELEASE OF SECURITIES
13.1 After the satisfaction of the claims secured by this contract, the Bank
must retransfer the securities transferred under this contract to the
Mortgager and surrender any eventual extra proceeds from the
exploitation. The Bank shall, however, transfer these securities to a
third party if it is obligated to do so; this would be the case, for
example, if the Mortgager is at the same time the Creditee and a
Guarantor has satisfied the Bank.
13.2 If more than one object has been transferred, or if other securities
have been assigned in addition to this security, the Bank is obligated
even before its complete satisfaction of the claims secured by the
transfer of ownership to release in part or in whole the Collateral
Goods transferred to it as well as other securities appointed to it
(e.g. assigned demands, encumbrances) at its choice to the relevant
Mortgager as long as the realisable value of all securities does not
only temporarily exceed 110% of the secured claims of the Bank.
Contract of the Transfer of Room Ownership
Page 8 of 10 of the Declaration from 21 January 2000
13.2 As far as no agreement to the contrary has been made, the realisable
value of the Collateral Goods for the aims of this Item 13 shall be
investigated as follows: The market price is decisive at the time of
the release demand. In the event that such is lacking:
- the purchase price for the Collateral Goods which was bought
by the Mortgager;
- the manufacturer's price for the Collateral Goods which were
manufactured or processed by the Mortgager himself;
At first, the value of those Collateral Goods shall be deducted from the value
assessed in this such way to which a third party has a priority charging lien
(e.g. reservation of ownership, right of lien); however only in the amount of
the secured claims of the relevant creditor. From the value that has been
assessed so far - if the Collateral Goods are liquid assets- a security markdown
in an amount of 25% due to possible minimum profits (e.g. in the event of a
forced sale) shall be undertaken. In the event of moveable assets, decreasing
(digressive) from the relevant preceding values, a security markdown of 33% per
year after the purchase or manufacture - proportionately for each commenced
year- shall be undertaken.
14. INTERPRETATION OF THE AGREEMENT/EVENTUAL AGREEMENT
This contract is concluded in the all-round assumption that the Collateral Goods
shall not be/have not become an essential component of the property despite the
linkage with land and property, and taking into consideration the will of all
involved parties. Rather it is assumed that it/they has/have remained
independent moveable object(s).
If the facility should nonetheless be assessed by a legally binding decision as
an essential component of the property, and the ownership of the facility has
passed to the possession of the property owner, the Mortgager has hereby already
transferred to the Bank all rights arising from
Contract of the Transfer of Room Ownership
Page 9 of 10 of the Declaration from 21 January 2000
the forfeiture of the right and claims in the form that the Bank not only
acquires the claim from Section 951f of the Federal German Civil Code, but all
rights against the property ownership as well to which the Mortgager is entitled
in consideration of the utilization authorization of the facility.
15. MISCELLANEOUS/ FINAL PROVISIONS
15.1 In addition, the General Terms and Conditions of Business of the Bank
are effect for this contract. They are already known to the Mortgager
and may be inspected in any branch office of the Bank. At request,
these will also be forwarded.
15.2 The laws of the Federal Republic of Germany govern this contract. Legal
venue and place of fulfilment is Frankfurt am Main, Germany.
15.3 No collateral agreements were made by word of mouth. Modifications to
this contract are required in written form. The same applies to the
cancellation of the written form agreement.
15.4 If one or more of the provisions of this contract should prove to be in
whole or in part invalid or non-executable, the validity of the
remainder of the contract is not affected by such. The parties shall
replace the in whole or in part invalid or non-executable provisions by
a valid provision with relates to the desired economic intentions and
which comes closest to the provision to be replaced. This applies
accordingly if the contract should prove to have contractual loopholes.
21.01.2000 /s/
---------------------------- ------------------------------------
Munich, the 21st of January 2000 (signature of the Mortgager)
Contract of the Transfer of Room Ownership
Page 10 of 10 of the Declaration from 21 January 2000
/s/
---------------------------- -----------------------------------
Munich, the 21st of January 2000 (signature of the Bayerische Hypo-
und-Vereinsbank)
/s/
---------------------------- -----------------------------------
Munich, the 21st of January 2000 (signature of the Originator)
Contract of the Transfer of Non-technical Patent Rights
Page 1 of 8 of the Agreement from 21 January 2000
Translation from the German Language
Contract of Transfer
Between the
LambdaNet Communications GmbH, Hannover
- hereinafter referred to as the "Company" or "Mortgager"-
and the
Bayerische Hypo- und Vereinsbank Aktiengesellschaft, Munich
-hereinafter referred to as the "HVB" or the "Bank" -
PREAMBLE:
The COMPANY operates a 3,2000 km long glass fibre network in Germany and
provides telephone services primarily to other telephone companies and service
providers under the brand name "LambdaNet".
For the COMPANY the following trademarks/brands (hereinafter referred to as
"Patent Rights") are registered.
- in the Trademark Roll of the German Patent Office
------------------------------------------------------------------------------------------------------------------
Registration number Trademark/brand International patent registration number
------------------------------------------------------------------------------------------------------------------
39947818.3-09 Lambda Net on your wa- ----
------------------------------------------------------------------------------------------------------------------
39947817.5-38 Lambda Net on your wavelength ----
(logo, see annex)
------------------------------------------------------------------------------------------------------------------
Contract of the Transfer of Non-technical Patent Rights
Page 2 of 8 of the Agreement from 21 January 2000
- at the Harmonization Office in Alicante in the Registry of
Joint Trademarks
------------------------------------------------------------------------------------------------------------------
Registration number Trademark/brand International patent registration
number
------------------------------------------------------------------------------------------------------------------
1268549 LambdaNet ------
------------------------------------------------------------------------------------------------------------------
1268515 Lambda Net on your wavelength (logo, ------
see annex)
------------------------------------------------------------------------------------------------------------------
1. ASSIGNMENT AND TRANSFER
1.1 The COMPANY hereby transfers to the HVB all its current and future
rights and entitlements, including all collateral rights, to which it
is entitled or will be entitled on the basis of the aforementioned
Patent Rights registered in the individual registries. For
international registrations, all claimed national sections should each
be transferred. The documents concerning the trademarks in question and
other documents shall be transferred as well.
1.2 Furthermore, the COMPANY hereby assigns all current and future claims
to which it is entitled, or will be entitled, from the infringement of
these Patent Rights to the HVB.
1.3 The current rights are transferred with the conclusion of this contract
and all future rights at the time of their origin. The surrender of the
documents and other papers pertaining to the Patent Rights is
compensated by the COMPANY providing fiduciary and free of charge
safekeeping of such as the direct owner in such a way that the HVB
acquires the direct ownership. If the papers in regard to the Patent
Right should fall into the hands of third parties, the surrender shall
be compensated by the COMPANY assigning its current and future
surrender claims against these third parties to the HVB.
Contract of the Transfer of Non-technical Patent Rights
Page 3 of 8 of the Agreement from 21 January 2000
1.4 The HVB hereby accepts the assignment.
2 REGISTRATION/SURVIVING RIGHTS OF THE MORTGAGER
2.1 The HVB gives up, for the time being, the right to the registration of
their legal proprietorship in the decisive registers for the individual
patent rights. The HVB is, however, entitled, in the event of the
existence of the prerequisites for usage pursuant to Section 8 of this
contract, to disclose the actual legal proprietorship and to apply for
and have registered the transcription of the rights to the HVB at the
relevant competent governmental agencies and authorities.
2.2 THE COMPANY undertakes to make all necessary declarations for a
transcription or to act on this endeavour. The COMPANY shall, at the
initial request of the HVB, hand out all original documents and other
papers concerning the patent rights.
2.3 The COMPANY remains authorised, until revocation by the HVB, to use the
rights stipulated by this agreement, and to outwardly observe all
rights and obligations of a legal proprietor as long as such does not
affect the claims and rights of the Bank.
2. AIMS OF SECURITY
The assignment serves to secure all existing, future and conditional claims
against THE MORTGAGER, to which the HVB, THE Dresdner Bank AG and the
Kreditanstalt fur Wiederaufbau (hereinafter referred to as "THE BANKS"), with
all their inland and foreign offices as well as inland and foreign subsidiaries,
are entitled from the granting of the credit pursuant to the Framework Project
Credit Agreement from the 21st of January 2000.
Contract of the Transfer of Non-technical Patent Rights
Page 4 of 8 of the Agreement from 21 January 2000
4. INFORMATION OBLIGATIONS OF THE MORTGAGER
4.1 The COMPANY undertakes to inform the HVB immediately of future arising
patent rights.
4.2 THE COMPANY undertakes to immediately inform the HVB of any
modification of the patent rights, or respectively, the registrations.
If the transferred rights should be pledged or otherwise impeded, the
COMPANY must then inform the HVB of such immediately and report to the
PLEDGOR immediately in writing on the charging lien of the HVB.
5. ASSISTANCE OBLIGATIONS OF THE MORTGAGER
The COMPANY undertakes to make all declarations as well as certifications and/or
other actions, or to have such carried out, at the request of HVB, which may -
in particular pursuant to foreign laws - be necessary in order to secure and /or
facilitate the realization of these rights and claims for the HVB and/or in
regard to achieving the aims of this contract. The COMPANY authorizes the HVB to
itself make such declarations where necessary, and to even submit them in the
name of the Company and to itself undertake the appropriate actions.
6. OTHER OBLIGATIONS OF THE MORTGAGER
6.1 The Company ensures that they have validly acquired the above captioned
patent rights and, in the meantime, have not disposed of these rights
and that no obligations to relevant disposals have been lodged.
Contract of the Transfer of Non-technical Patent Rights
Page 5 of 8 of the Agreement from 21 January 2000
6.2 The COMPANY undertakes not to dispose of the rights set forth in this
contract as long as the aims of the security of the contract at hand
persist.
6.3 The COMPANY undertakes further to attend to and monitor the above
captioned rights, to maintain the rights (securing of the proper usage
of the brands, proper extension by payment of the fees required for
such) and that it shall waive none of the transferred rights without
the relevant approval of the HVB.
7. INSPECTION RIGHT OF THE BANK
The HVB may, at any time, inspect the records of the relevant patent offices or
registers concerning the transferred patent rights. The COMPANY hereby declares
its consent to such.
8. RIGHTS OF UTILISATION OF THE BANK
8.1 In the event of the termination of the secured credit agreement and/or
if the Company is in arrears with the due payments of the claims
secured by this contract, has discontinued its payments, or has applied
for commencement of court insolvency proceedings of its property, then
the HVB is entitled to utilize the transferred patent rights including
all collateral claims as well as the securities transferred along with
such and their rights and claims in any legally permissible way. Before
such, the HVB shall notify the Company of these measures - as far as is
feasible - while observing a deadline of one month. If the HVB exploits
its utilization right, then the usage authorization of the company
pursuant to Section 2 of this contract expires.
8.2 The HVB may sell the patent rights taking into the consideration the
legitimate interests of the COMPANY, in particular by freehand sales in
their own name or in the name of the Company.
Contract of the Transfer of Non-technical Patent Rights
Page 6 of 8 of the Agreement from 21 January 2000
HVB may demand of the COMPANY that said exploit as best possible the patent
rights according to their instructions, or that they assist in the exploitation.
The COMPANY must then surrender all proceeds from the exploitation of the patent
rights immediately to the HVB.
8.3 In the event of the exploitation of the patent rights in the framework
of the security aims, the exploitation proceeds shall be used in the
order designated in the separately concluded Securities Pool Contract
from the 21st of January 2000.
9. RETRANSFER, RELEASE OF SECURITY
9.1 After satisfaction of the claims secured by the transfer, the HVB will
retransfer to the Company all patent rights transferred to them as well
as the documents and other rights transferred to them so far, and shall
surrender any possible extra proceeds from the usage. If a guarantor or
other third party satisfies the HVB, then the latter is entitled to
transfer their rights to the guarantor or third party.
9.2 The HVB is already obligated even before the complete satisfaction of
the claims secured by the transfer, at the request of the COMPANY, to
release the rights transferred to the COMPANY, documents and other
rights as well as any other securities of their choice assigned by said
in part or in whole to the COMPANY if the realisable value of all
securities does not only temporarily exceed 110% of the secured claims
of the HVB.
10. COSTS
The costs, which arise in connection with the erection and execution of this
contract, in particular for the maintenance of the patent right holdings, are
borne by the Company.
Contract of the Transfer of Non-technical Patent Rights
Page 7 of 8 of the Agreement from 21 January 2000
11. SUPPLEMENTARY PROVISIONS
11.1 Frankfurt am Main is agreed as the place of fulfilment and legal venue
for all obligations arising from this contract.
11.3 This contract is subject to the laws of the Federal Republic of
Germany.
11.3 Modifications and supplements to this contract are required in written
form in order to reach validity. The same is true for the waiver of
this form requirement. Collateral agreements have not been made.
11.4 If one or more of the provisions of this contract should prove to be
invalid or non-executable, then the validity of the remaining
provisions is not affected by such. The contractual parties shall
replace any such invalid or non-executable provisions with a
regulation, which corresponds to the original economic intention, and
which comes closes to the content of the provision to be replaced. The
same is true if any contractual loopholes in need of amending crop up.
11.5 As for the rest, the General Terms and Conditions of Business of the
HVB are in effect. They may be viewed at any time at the HVB AND will
be made available at request.
Xxxxxx, 00 January 2000 /s/
-----------------------------------
LambdaNet Communications Gmbh
Contract of the Transfer of Non-technical Patent Rights
Page 8 of 8 of the Agreement from 21 January 2000
Munich, January 21 2000 /s/
--------------------------
Bayersiche Hypo- und Vereinsbank
Aktiengesellschaft
Annex: logo "'Lambda Net on your wavelength"
CONTRACT OF HYPOTHECATION FOR ACCOUNT CREDIT
PAGE 1 OF 5 OF THE DECLARATION FROM 21 JANUARY 2000
Translation from the German Language
----------------------------------------------------------------------------------------------------------
Contract of Hypothecation for Account Credit
----------------------------------------------------------------------------------------------------------
Between: Name/company and address of the Mortgager:
Name/company and address of the Mortgager: LambdaNet Communications GmbH
LambdaNet Communications GmbH Xxxxxxx-Xxxxxx-Allee 18
Xxxxxxx-Xxxxxx-Allee 18 30177 Hannover
30177 Hannover
Account no.: 1 024 061
registered in the Commercial Register - Xx. 00000,
Xxxxxxxx Xxxxx xx Xxxxxxxx, Xxxxxxx at the Dresdner Bank AG, Friedrichshafen Branch,
bank code: 651 800 05
(hereinafter referred to as the "Mortgager"
----------------------------------------------------------------------------------------------------------
and the Bayerische Hypo- und Vereinsbank
Aktiengesellschaft Munchen (hereinafter
also referred to as the "Pool Leader")
Dresdner Bank AG, Frankfurt
Kreditanstalt fur Wiederaufbau, Frankfurt
(hereinafter individually referred to as the
"Bank" or together as "the Banks")
----------------------------------------------------------------------------------------------------------
the following Contract of Hypothecation for Account Credit is concluded:
The MORTGAGER maintains the following listed accounts at the below captioned
credit institutes (hereinafter referred to as the "Account Managing Credit
Institutes" in this agreement):
CONTRACT OF HYPOTHECATION FOR ACCOUNT CREDIT
PAGE 2 OF 5 OF THE DECLARATION FROM 21 JANUARY 2000
Dresdner Bank AG, Hannover Branch, Xxxxxxxxxxx. 0, 00000 Xxxxxxxx, Xxxxxxx
Account number: 7 000 455, bank code: 250 800 20
Dresdner Bank AG, Friederichshafen Branch, Xxxxxxxxxxxx. 00, 00000
Xxxxxxxxxxxxxxx, Xxxxxxx
Account number: 1 024 061, bank code: 651 800 05
Deutsche Bank AG Hannover, Xxxxxxxxxxx 00, 00000 Xxxxxxxx, Xxxxxxx
Account number: 011 95 03, bank code: 250 700 70
1. PLEDGING
The MORTGAGER hereby pledges to the BANKS its respective claims of equal
importance against the ACCOUNT MANAGING CREDIT INSTITUTES from the above
captioned accounts, including interest. If documents are issued beyond these
claims (e.g. bank books, savings bonds), such shall be surrendered to the POOL
LEADER.
2. AIMS OF SECURITY
The lien serves the securing of all existing, future and conditional claims
against the MORTGAGER to which the BANKS, with all their inland and foreign
offices as well as all inland and foreign subsidiaries, are entitled from the
granting of the credit pursuant to the Framework Project Credit Agreement from
21 January 2000 including any eventual addendums/supplements.
3. UTILIZATION RIGHT OF THE BANK
3.1 If the Borrower is in arrears with the fulfilment of the payment obligation,
the BANKS are authorized to exploit pledged objects due to the amount in
arrears.
CONTRACT OF HYPOTHECATION FOR ACCOUNT CREDIT
PAGE 3 OF 5 OF THE DECLARATION FROM 21 JANUARY 2000
3.2 The BANKS shall previously issue a warning to the MORTGAGER in
writing of the exploitation of the pledged objects while setting a
deadline. This warning can be connected with a payment demand.
The deadline must amount to 1 week at the least.
4. RETURN, RELEASE OF SECURITY
4.1 After satisfaction of their claims secured by the hypothecation, the BANKS
must surrender the pledged objects and any extra proceeds to the Mortgager. The
BANKS shall, however, surrender the pledged objects to a third party, if they
are obligated to do so.
4.2 The BANKS are obligated at request, even before the complete
satisfaction of their claims secured by the hypothecation, to in
whole or in part release to them the assigned securities (e.g.
assigned claims, encumbrances) of their choice to the respective
MORTGAGER, as long as the realizable value of all securities does
not only temporarily exceed 110% of the secured claims of the
BANKS.
4.3 The BANKS shall take into consideration the legitimate interests
of the MORTGAGER and the clients of additional securities when
selecting the securities to be released.
5. GENERAL RIGHT OF LIEN OF THE BANKS
A general right of lien to which the BANKS are entitled under No. 14 of their
General Terms and Conditions of Business, even to assets of the Mortgager not
affected by this hypothecation contract, remains unaffected.
CONTRACT OF HYPOTHECATION FOR ACCOUNT CREDIT
PAGE 4 OF 5 OF THE DECLARATION FROM 21 JANUARY 2000
6. MISCELLANEOUS/FINAL PROVISIONS
6.1 In addition, the General Terms and Conditions of Business of the POOL
LEADER are effective. Said is already known to the Mortgager and may be
inspected further in any branch office of the BANK. At request, they
shall also be forwarded by the POOL LEADER.
6.2 The laws of the Federal Republic of Germany govern the provisions of
this contract. Legal venue and place of fulfilment is Frankfurt am
Main, Federal Republic of Germany.
6.3 Collateral agreements by word of mouth have not been made.
Modifications to this contract are required in writing. This is also
true of the cancellation of such agreement in written form.
6.4 If one or more of the provisions in this contract should prove to be
invalid, in part or in whole, or should prove to be non-executable,
such shall not affect the validity of the remainder of the contract.
The parties shall replace the partially or wholly invalid or
non-executable provisions by a valid provision that comes closest to
the intended purpose and content of the provision to be replaced. The
same is true accordingly if the contract should prove to have
contractual loopholes.
Munich, the 21st of January 2000 /s/
----------------------------------
LambdaNet Communications GmbH
Munich, the 21st of January 2000 /s/
----------------------------------
Bayerische Hypo- und Vereinsbank AG
CONTRACT OF HYPOTHECATION FOR ACCOUNT CREDIT
PAGE 5 OF 5 OF THE DECLARATION FROM 21 JANUARY 2000
Munich, the 21st of January 2000 /s/
----------------------------------
Dresdner Bank AG
Munich, the 21st of January 2000 /s/
----------------------------------
Kreditanstalt fur Wiederaufbau
---------------------------------------------------------------------------------------------------------
CONTRACT OF ASSIGNMENT
---------------------------------------------------------------------------------------------------------
----------------------------------------------------- ---------------------------------------------------
BETWEEN: Name of the Loan/Credit Borrower:
Name and address of the Party furnishing the LambdaNet Communications GmbH
Security: Account No: 1 024 061
LambdaNet Communications GmbH at Dresdner Bank AG, Friedrichshafen Branch
Xxxxxxx Xxxxxx Allee 18 Bank Sort code: 651 800 05
30177 Hannover
Trade Registry No: HRB 578818
Court of Hanover
(hereinafter referred to as the "Party furnishing
the Security")
----------------------------------------------------- ---------------------------------------------------
AND THE
Bayersichen Hypo und Vereinsbank
Aktiengesellschaft, Munich (hereinafter referred to
as"HVB" or "Bank")
----------------------------------------------------- ---------------------------------------------------
the following contract of assignment is concluded:
1. OBJECT OF THE ASSIGNMENT
1.1 The Party furnishing the Security is the proprietor of the following
claims:
- All claims against the general enterprise Nortel Dasa Network Systems
GmbH & Co KG, Hahnstr. 37-39, 60528 Frankfurt-am-Main, Trade Registry
No: HRB 1378, Court of Friedrichshafen, in respect of the project
[supply, installation and commissioning of the transmission systems for
the pan-German glass fibre network of the Party furnishing the Security
with 21 effective sites. The transmission systems include both the
network elements such as multiplexers and repeaters as well as the
necessary management software for the monitoring and control of the
network elements, the computer belonging to this, the operating system
and databank platforms as well as other necessary hardware and software
for the connection of the network elements to the management system.
Contract of Assignment
Page 2 of the declaration dated 21.01.2000
In addition the general enterprise shall supply the regular and optional
services for all the systems supplied within the framework of this contract] in
accordance with the framework agreement covering the purchase of transmission
systems and the services linked hereto dated 21.09.1999 in addition to the
addenda and supplements and the respective individual contracts in connection
with this framework agreement, in particular the claims to unrestricted usable
and operational total execution of the installations as well as all contractual
or valid statutory guarantee claims, the claim to contract penalties and the
claim to repayment of the deposit/advance payment implemented by the Party
furnishing the Security , respectively together with the securities received for
the securing of the claims as well as the claims to use of the software produced
with the Party furnishing the Security and supplied with the related
documentation as well as all claims from the fee and undertaking letter and the
assignment agreement.
- All claims against
- The Bayerfonds Immobiliengesellschaft mbH & Co Object Hannover
Forum in the Pelikan Xxxxxxx KG, Innere Xxxxxx Xxx. 00, 00000
Xxxxxx, Trade Registry No: HRB 45696, Court of Munich, arising
from the Rental Contract dated 16.07.1999 in respect of the
site Xxxxxxx Xxxxxx Xxxxx 00, 00000 Xxxxxxx, registered in the
Land Registry by Xxxxx Xxxxxxxx, Sheet 7589, lot 3/18,
cadastral district 20.
- The Lech Elektrizitatswerke (Power Station) AG,
Schaezlerstrasse 3, 86150 Augsburg, Trade Registry No: HRB
6164, Court of Augsburg, arising from the Rental Contract
dated 01/07.07.1999 in respect of the premises in the basement
(North side) of the industrial hall Xxxxxxxxxxxxx 0, 00000
Xxxxxxxx.
- The GfW Gesellschaft fur Wohnsitz mbH & Co KG, Xxxxxx Xxxxxx
Xxx. 00, 00000 Xxxxxxx represented by Rentax Gesellschaft fur
Grundbesitzanlagen (landed properties) mbH Xxxxxxxx. 0-0,
00000 Xxxxxx, Trade Registry No: HRB 61512, Court of Berlin
Charlottenburg, arising from the Rental Contract dated
22/24.06.1999 in respect of the industrial estate component
part A of the building, KG, Alboinstr. 36-42, 12103 Berlin.
- The Immobilien Beteiligungsgesellschaft (Real estate
joint-venture company) Xx Xxxxx Xxxxx KG, Trade Registry No:
HRB 1629, Court of Cologne, arising from the Rental Contract
dated 20./26.07.1999 in respect of the administration area in
the object Xxxxxxxxx / Xxxxxxxxxx 0 / Xxxxxxxxxxxxx, 00000
Bielefeld.
Contract of Assignment
Page 3 of the declaration dated 21.01.2000
- The Xxxxx Xxxxx Grundbesitz Objekt Regensburg KG,
Xxxxxxx-Xxxxxx-Strasse 108, 28197 Bremen, Trade Registry No:
HRA 73208, Court of Munich, arising from the Rental Contract
dated 23./29.06.1999 in respect of the usable space of the
building CIF-Vers.-B, Xxxxxxx-Xxxxxx-Strasse 104-106, 28197
Bremen.
- The TRD-Reisen Xxxxx Xxxxxxx XxxX & Xx. XX, Xx Xxxxxxxxxxx 00,
00000 Xxxxxxxx, Trade Registry No: HRA 6661, Court of Dortmund
for the KOMMANDITGESELLSCHAFT (limited partnership) and Trade
Registry No: HRB 3499, Court of Dortmund for the
Geschaftsfuhrungs GmbH, arising from the Rental Contract dated
25.06./01.08.1999 inclusive of the addenda dated
01.08./30.08.1999 and 21.10.1999 in respect of the areas for
storage and use in the object Reisebuspark (Coach Park), Im
Xxxxxxxxxxx 00, 00000 Xxxxxxxx.
- The ESAG Energieversorgung (Sachsen Xxx XX,
Xxxxxxxxx-Xxxx-Xxxxx 0, 01069 Dresden, Trade Registry No: HRB
965, Court of Dresden, arising from the Rental Contract dated
29.10./22.11.1999 in respect of the premises in the city
centre at the main rail station in Dresden, Room D- 1.11
- The X.X. Xxxxxx & Co.Erze und Metalle GmbH & Co;
Xxxxxxxxxxxxxx 00, 00000 Xxxxxxxxxx, Trade Registry No: 10774,
Court of Dusseldorf, arising from the interim Rental Contract
dated 26.06.1999 as well as the final Rental Contract yet to
be concluded on the premises in the office building
Xxxxxxxxxx. 00, 00000 Xxxxxxxxxx.
- The Commerzbank AG, Kaiserplatz, 60311 Frankfurt/Main, Trade
Registry No: HRB 32000, Court of Frankfurt am Main, arising
from the Rental Contract dated 13.09./21.09.1999 in respect of
the site Juri-Xxxxxxx-Ring 86, 99084 Erfurt.
- The Deutsche Post AG, Generaldirektion, Bundeskanzlerplatz
2-10 / Bonn-Centre, 53113 Bonn, Trade Registry No: HRB 6792,
Court of Bonn, arising from the Rental Contract dated
22.06./06.07.1999 together with the addendum dated 28.07./
03.08.1999 in respect of the site Deutsche Post Immobilien
Essen (Hauptpost), Xxxxxxxxxxxx 0-0
- Xxx Xxxxxxxxxxx Xxxxxxxxx-Xxxxxxxxx GmbH, Frankenallee 71-81,
60327 Frankfurt/ Main, Trade Registry No: HRB 0000, Xxxxx xx
Xxxxxxxxx am Main, arising from the Rental Contract dated
07.06.1999 in respect of the site Frankenallee 71-81, 60327
Frankfurt/Main.
Contract of Assignment
Page 4 of the declaration dated 21.01.2000
- The Immobilien GbR Hamburg, Xxxxxxxxxxxxx 000, 00000 Xxxxxxx,
arising from the Rental Contract dated 08./13.07.1999 in
respect of the site Xxxxxxxxxxxxx 000, 00000 Xxxxxxx
("Luisenhof").
- The Technologiepark Karlsruhe GmbH, Xxxxxx-Xxxxxxx-Xxxxxxx 0,
00000 Xxxxxxxxx, Trade Registry No: HRB 6764, Court of
Karlsruhe, arsing from the Rental Contract dated
17./21.06.1999 in respect of the site Xxxxxx-Xxxxxxx-Xxxxxxx
0, 00000 Xxxxxxxxx, Building 7H in the Technology Park
Karlsruhe.
- The married couple Prof. Xx. Xxxxx Campinge, represented by
Immobilien- und Verwaltungsgesellschaft mbH, Xxxxxxxxxxxx 00,
00000 Xxxxxxx, arising from the Rental Contract dated
15.07./04.08.1999 in respect of the object a former cinema,
Xxxxxxx-Xxxxxxx-Xxxxxxx 0-0, Xxxxxxx, recorded at the Land
Registry of Koln-Deutz, Volume 72, Sheet 2/19, Xxx 000,
Xxxxxxxxx Xxxxxxxx 000.
- The joint clients Xxxxxx Xxxxx / Xxxxxx Grisslich, Zettachring
6, 70567 Stuttgart arising, from the Rental Contract dated
10./14.06.1999 in respect of the site Business Park Xxxxxxx,
Xxxxxxxxxxxxxxx 0, 00000 Xxxxxxx.
- The GbR Magdeburg Universitatsplatz, Xxxxxxxxxxxxxxx 00, 00000
Xxxxxxxxx/ Xxxx arising from the Rental Contract dated
23.06.1999 in respect of the site Xxxxxxxxxxxxxxxx 0, 00000
Xxxxxxxxx.
- Xx Xxxxxxx Xxxxxxxxxx, Xxxxxxxxxxxxxx 00, 00000 Xxxxxxxx,
arising from the Rental Contract dated 15./24.06.1999 in
respect of the site Xxxxxxxxxxxxxxxxx 00, 000000
Mannheim-Neckarau
- The Simon Grundbesitz Xxxxxxx & Partner AG & Co. KG,
Xxxxxxxxxxxxx 00, 00000 Xxxxxxxx, Trade Registry No: HRA
67361, Court of Munchen, arising from the Rental Contract
dated 04./10.06.1999 in respect of the site Xxxxxxxxxxxxx 000,
00000 Xxxxxxx, (Office building A)
- Xx Xxxx Xxxxxxxxx, Xxxxxxx Xxxxxxx 000, 00000 Nurnberg arising
from the Rental Contract dated 10.06./10.07.1999 in respect of
the site Further Strasse 212, 90429 Nurnberg, (Development 76)
- Xx Xxxx-Xxxxx Xxxx, Zettachring 6, 70567 Stuttgart arising
from the Rental Contract dated 10./22.06.1999 in respect of
the premises in the Business Park Stuttgart, Zettachring 10,
70567 Stuttgart
- The Xxxx Grundstucksverwaltungs-GmbH & Co. KG, Xxxxxxxxxxxx 0,
97076 Wurzburg, Trade Registry No: HRA 4677, Court of Wurzburg
arising from the Rental Contract dated 25.06.1999 in respect
of the site Xxxxxxxxxxxx 0, 00000 Xxxxxxxx
Contract of Assignment
Page 5 of the declaration dated 21.01.2000
- in particular the respective claims for contractual
fulfilment, the contractual or statutory guarantee claims and
the claims to contract penalties;
- all claims against the CNB Communications Netmanagement Bremen
GmbH, Xxxxxxx Xxxxx Xxxxx 00, 00000 Xxxxxx address, arising
from the RENTAL CONTRACT dated 04.10.1999 in respect of the
rental object: two pipes in accordance with CNB standard,
which run from public ground (shaft of the CNB) to the entry
to the house of Xxxxxxx Xxxxxx Strasse 106, in particular the
claims for contractual fulfilment, the contractual or
statutory guarantee claims and the claims to contract
penalties;
- all claims against / the company GasLINE
Telekommunikationsgesellschaft deutscher
Gasversorgungsunternehmen mbH & Co. KG, Huttropstr. 60, Essen,
Trade Registry No: HRA 6624, Court of Essen and HRB 12223,
Court of Essen for the general partner
from the contract covering the use of optical wave guides and
system engineering rooms dated 14.07.1999, in particular the
claims to contractual provision and maintenance of optical
wave guides and system engineering rooms, the contractual or
statutory guarantee claims, the claims to contract penalties
and the claims to repayment of the deposit/advance payment
implemented by the party furnishing the Security, respectively
together with the securities received for the securing of
these claims;
- as well as from the contract before the notary Xxxx-Xxxxxxxxx
Xxxxxx, Bochum dated 14.07.1999, Document Register No:
99/00142 (contract of loan and convertible bond),
- all claims against the company
- Corporate Network Essen Gesellschaft fur
Telekommunication mbH, am Alfredusbad 8, 45133 Essen,
arising from the Rental Contract for optical wave
guides dated 10.09.1999,
Contract of Assignment
Page 6 of the declaration dated 21.01.2000
- LEWTelNet GmbH, Xxxxxxxxxxxxx 0, 00000 Augsburg, arising from
the Rental Contract for optical wave guides dated
32./25.08.1999
- BerliKomm Telekommunikationsgesellschaft mbH, Xxxxxxxxxxxxxxxx
00, 00000 Xxxxxx, arising from the Rental Contract for optical
wave guides dated 22.09.1999
- BITel Gesellschaft for Telekommunikatio, Xxxxxxxxxxxx Xxxxxxx
00, 00000 Xxxxxxxx, arising from the Rental Contract for
optical wave guides dated 13./19.08.1999
- EWE TEL GmbH, Cloppenburger Strasse 3000, 26133 Xxxxxxxxx,
arising from the Rental Contract for optical wave guides dated
20.09.1999
- CNB Communications Netmanagement Bremen GmbH,
Xxxxxxx-Xxxx-Xxxxx 20, 28215 Bremen, arising from the Rental
Contract for optical wave guides dated 22./23.09.1999
- DOKOM GmbH, Xxxxxxxxxxx Xxxxx 00, 00000 Xxxxxxxx, arising from
the Rental Contract for optical wave guides dated
13./16.08.1999
- ESAG Energieversorgung Sachsen Ost AG, Friedrich-List-Platz 2,
01069 Dresden, arising from the Rental Contract For optical
wave guides dated 31.08./01.09.1999
- COLT Telecom GmbH, Xxxxxxxxx Xxxxxxx 00-00-, 00000 Xxxxxxxxxx,
arising from the Rental Contract for optical wave guides dated
20./27.09.1999
- Corporate Network Essen Gesellschaft fur telekommunikation
mbH, Xx Xxxxxxxxxxx 0, 00000 Xxxxx, arising from the Rental
Contract for optical wave guides dated 10.09.1999
- COLT Telecom GmbH, Xxxxxxxxxxxxx 00, 00000 Xxxx, arising from
the Rental Contract for optical wave guides dated
07./08.10.1999
- Magdeburg-City-Com GmbH, Xxxxxxxx Xxxxxxx 00-00, 00000
Xxxxxxxxx, arising from the Rental Contract for optical wave
guides dated 10.08./01.09.1999
- Manet GmbH Gesellschaft fur Telekommunikation ind Information,
Luisenring 49, 68159 Mannheim, arising from the Rental
Contract for optical wave guides dated 10.09./16.09.1999
- M"net Telekommunikations XxxX, Xxxxxxxxxxxxxxxx 00, 00000
Xxxxxxxx, arising from the Rental Contract for optical wave
guides dated 27./30.08.1999
- XXXxxxXxxxxxxxxxxxxxxxxx XxxX & Xx. XX, Xxxxxxxxxxxxxxxxx 00,
00000 Nurnberg, arising from the Rental Contract for optical
wave guides dated 13./24.08.1999
- Wurzburger Telekommunikationsgesellschaft mbH, Xxxxxxxxxxxxxxx
00, 00000 Xxxxxxxx, arising from the Rental Contract for
optical wave guides dated 06.08.1999
Contract of Assignment
Page 7 of the declaration dated 21.01.2000
- in particular respective claims for the contractual provision
of the optical wave guides, the respective contractual or
valid statutory guarantee claims, the respective claim to
contract penalties and the respective claim to repayment of
the deposit/advance payment implemented by the Party
furnishing the Security, respectively together with the
securities received for the securing of these claims;
- the necessary PERMISSIONS, AUTHORISATIONS, CONCESSIONS etc.
for the setting up / execution and the operation of the
project enterprise insofar as legally permissible;
- all claims against the following insurance company
- Xxxxxxxx Xxxxx Xxxxxxxxxxxx XX, Xxxxxxxxxxx. 00, 00000
Xxxxxxxxxx, Trade Registry No: HRB 90789 Court of Munich,
arising from the INSURANCE RELATIONSHIP in accordance with the
insurance contract for work travel, comprehensive insurance
cover No: K 3180893 dated 02.12.1999, in particular the claim
to payment of insurance settlements to the Party furnishing
the Security;
- Wurtembergische und Xxxxxxxx Xxxxxxxxxxxxx-Xxxxxxxxxxxxxxxxxx,
Xxxxxxxxxxx 00 - 00, Xxxxxxxx arising from the INSURANCE
RELATIONSHIP in accordance with the interim insurance contract
for telecommunications insurance as well as company liability
dated 30.12.1999, in particular the claim of payment of
insurance settlements due to the Party furnishing the
Security;
1.2 THE PARTY FURNISHING THE SECURITY assigns herewith all existing, conditional
and future claims to the BANK in accordance with Clause 1.1.
1.3 The BANK herewith accepts the afore-mentioned assignment.
Contract of Assignment
Page 8 of the declaration dated 21.01.2000
2. THE TIME OF THE TRANSFER OF THE CLAIMS AND DEMANDS
The current and conditional claims and demands are transferred to the BANK with
the conclusion of this contract, all those arising in future correspondingly.
3. PURPOSE OF THE SECURITY
The assignment serves as security for all existing, future and conditional
claims, which the HVB, the Dresdner Bank AG and the Kreditanstalt fur
Wiederaufbau [Loan Institution for Reconstruction] (hereinafter referred to as
"THE BANKS") with their total in national and foreign business sites as well as
the national and foreign subsidiaries arising from the guaranteeing of the loan
in accordance with the framework project loan contract dated 21.01.2000 against
THE PARTY FURNISHING THE SECURITY.
4. TRANSFER OF THE RIGHTS AND SECURITIES
With the assigned claims and demands all rights arising from the basic legal
transaction are transferred to the BANK. Insofar as securities have been
reserved which are not transferred by force of law to the BANK, the BANK can
demand their assignment, in so far as this lies in the legal province of THE
PARTY FURNISHING THE SECURITY.
5. ANNOUNCEMENT OF THE ASSIGNMENT / COLLECTION IN RESPECT OF ENFORCEMENT THROUGH
THE PARTY FURNISHING THE SECURITY
5.1 THE PARTY FURNISHING THE SECURITY shall instruct the BANK, to notify (a)
third party creditor(s) of the assignment on their behalf. As a matter of
principle the Party furnishing the Security is permitted to enforce the demands
assigned to the Bank within the framework of an orderly company operation.
Contract of Assignment
Page 9 of the declaration dated 21.01.2000
5.2 If the Party furnishing the Security should receive cheques or bills of
exchange for payment of the demands, which have been assigned to the BANK,
the Party furnishing the Security assigns all claims to the same to which
they are entitled in advance to the BANK as a safeguard. The BANK can
repeal or restrict the collection authority or impose conditions on the
collection in order to preserve their rightful interests.
6. ENFORCEMENT OF THE CLAIMS BY THE BANK
6.1 The Bank is entitled to oppose the enforcement of an authority allowed to
the Party furnishing the Security in accordance with Clause 5.2 as well as
the claims and rights which have been transferred to them in accordance
with Clause 4, to enforce, if the borrower is in arrears with payments due
on the demands which are secured by this contract, ceases their payments or
has applied for judicial proceedings for insolvency in respect of their
assets. The Bank shall only seize these measures to the extent that is
necessary for the fulfilment of the overdue demands.
6.2 The Bank shall give the Party furnishing the Security 2 weeks notice in
writing of the threat to enforce the claims. A threat and setting of a
deadline is not however necessary if the Party furnishing the Security has
ceased to implement payments or the opening of bankruptcy proceedings on
their assets has been applied for.
7. OBLIGATION OF NOTIFICATION OF THE PARTY FURNISHING THE SECURITY
In the event that the assigned demands are distrained or otherwise restricted
the Party furnishing the Security shall notify the Bank without delay and the
lienholder in writing of the Bank's security entitlement without delay.
Contract of Assignment
Page 10 of the declaration dated 21.01.2000
8. THE BANK'S RIGHTS TO INSPECT AND AUDIT
8.1 The Party furnishing the Security is obliged to provide the Bank on request
with all information, proofs and documents which are necessary for the
evaluation and enforcement of the assigned demands and claims. In the case of
the use of EDP systems the Party furnishing the Security is to print out the
necessary documentary proof; in the event that the print-out is not executed,
the necessary data-carriers and EDP programs are to be handed over to the Bank
so that they can produce the print-outs themselves.
8.2 The Party furnishing the Security permits the Bank to inspect their
documents or to have them inspected by an authorised agent for the
investigation and enforcement of the assigned demands and claims.
9. BLANKET NOTIFICATION LETTERS
The Party furnishing the Security shall hand over blanket notification letters
to the Bank, on request, for the information of third party debtors of the
assignment. The Bank is entitled to polycopy blanket notification letters signed
by the Party furnishing the Security.
10. RELEASE OF THE SECURITIES
10.1 After the satisfaction of the secured claims the Bank shall retransfer
the assigned demands and claims and hand over any possible surplus
arising from the liquidation thereof. The Bank shall however transfer the
security to a third party if they are obliged to do so; i.e. in the event
that the furnisher of the Security is at the same time the borrower and a
guarantor has satisfied the Bank.
10.2 The Bank is already obliged on request to release the securities (e.g.
transferred objects, land charges) secured by the assignment,
Contract of Assignment
Page 11 of the declaration dated 21.01.2000
before total satisfaction of their claims, to the respective furnisher of the
Security at their discretion either partially or wholly, insofar as the
realisable value covering 110% of all the secured claims of the Bank is not only
temporarily surpassed. Insofar as possible additional contracts of security at a
lower per cent rate are laid down this lower rate shall be decisive.
11. EVALUATION OF THE CLAIMS
11.1 The starting point for the establishing of the realisable value of the
assigned demands or claims is the nominal value or estimated value. The
following demands shall be deducted from the assigned demands,
- those where the Bank has not acquired the demands by reason of a
prohibition of assignment;
- those where counter demands exist which can be offset;
- those where the validity of the assignment in respect of the
registered office of the third party debtors being overseas or
where the application of foreign law on the part of the Bank with
reasonable expenditure cannot be established;
- those which are afflicted with defence because the supplies and
services on which they are based have not been fully implemented.
11.2 A deduction of 30% from the above-mentioned nominal value or estimated
value shall be made as security.
11.3 THE PARTY FURNISHING THE SECURITY and the BANK can demand a new
evaluation of the collateral security, if the latter's actual value
considerably deviates from the established value as a result of ad
interim alterations.
Contract of Assignment
Page 12 of the declaration dated 21.01.2000
12. OTHER / FINAL CONDITIONS
12.1 In addition the general conditions of business of the BANK are
applicable. These are already known to the Party furnishing the Security
and can in any case be seen in every branch of the BANK. On request they
will be sent by the BANK.
12.2 German Law is applicable. The place of performance and jurisdiction
is Frankfurt-am-Main.
12.3 Verbal agreements have not been made. Alterations to this contract
must be made in writing to be legally valid. This is also
applicable for the removal of this condition.
12.4 Should one or several conditions of this contract be partially or
wholly ineffective or prove to be unworkable, the effectiveness of
the remainder of the contract shall not be affected. The parties
shall replace the partially or wholly ineffective condition(s) by
(an) effective condition(s) which correspond(s) to the economic
purpose desired and the content of the condition(s) to be replaced
as closely as possible. This is applicable correspondingly for the
event that the contract should prove to have any gaps in the
regulations.
Signatures:
/s/
Munich, 21.01.2000 .................................
(Signature of Party furnishing
the Security )
/s/
Munich, 21.01.2000 .................................
(Signature of the Bayerschen Hypo-
und Vereinsbank AG))
To the
Bayersche Hypo- und Vereinsbank AG
Munich, 20.01.2000
Ladies and Gentlemen,
We have concluded a framework agreement with the company LambdaNet
Communications GmbH Xxxxxxx Xxxxxx Xxxxx 00, 00000 Xxxxxxxx (hereinafter
referred to as "LambdaNet") on 21.09.1999 for the amount of DEM 46,539,974.00.
We are aware that the company LambdaNet has assigned or will assign their claims
to you. We hereby declare that we are expressly in agreement with the said
assignment.
Munich, 21.01.2000 /s/
........................................
Nortel Dasa Network Systems GmbH & Co KG
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Auseinandersetzungsguthaben credit balance in case of partition
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Ausgleichsanspruch claim for adjustment
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Belastungsfreiheit freedom from encumbrance
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Gewinnbezugsrecht right to draw a share of profits
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Liquidationserlos liquidation proceeds
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Nachschusspflicht liability to make further contributions
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Pfandobjekt pledged property
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Pfandrechte (right of) lien
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Pfandungserklarung declaration of pledge
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Pfandungsvertrag contract of pledge
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Sicherungsrecht security right
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Verfugungsbefugnis power of disposal
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