XXXXXXXX
CHANCE Exhibit 10.34
PUNDER
DATED 30 APRIL 2002
WESTERN WIRELESS INTERNATIONAL D.O.O.
as Borrower
IKB DEUTSCHE INDUSTRIEBANK AG
as Lead Arranger, Off Shore Security Agent,
Off Shore Facility Agent and Original Euro Facility Bank
KREDITANSTALT FUR WIEDERAUFBAU
as Lead Arranger and Original Euro Facility Bank
RAIFFEISENLANDESBANK OBEROSTERREICH REG.GEN.M.B.H.
as Senior Co-Arranger and Original Euro Facility Bank
NOVA LJUBLJANSKA BANKA D.D., LJUBLJANA
as Senior Co-Arranger, On Shore Security Agent,
On Shore Facility Agent and Original SIT Facility Bank
LANDESBANK SCHLESWIG-HOLSTEIN GIROZENTRALE
as Co-Arranger and Original Euro Facility Bank
HYPO ALPE-ADRIA-BANK AG
as Co-Arranger and Original Euro Facility Bank
HYPO ALPE-ADRIA-BANK D.D.
as Original SIT Facility Bank
and
OTHERS
------------------------------------------------
FACILITY AGREEMENT
RELATING TO THE PROJECT FINANCING OF THE
XXXX GSM TELECOMMUNICATIONS NETWORKS IN SLOVENIA
------------------------------------------------
CONTENTS
CLAUSE PAGE
1. Definitions and Interpretation ............................... 2
2. The Facilities ............................................... 27
3. Purpose ...................................................... 28
4. Conditions of Utilisation .................................... 29
5. Utilisation .................................................. 30
6. Loans ........................................................ 33
7. Guarantees and Letters of credit ............................. 33
8. SIT Facility Guarantees and Letters of Credit ................ 34
9. Interest on Loans ............................................ 36
10. Interest Periods ............................................. 41
11. Changes to the Calculation of Interest ....................... 42
12. Fees ......................................................... 43
13. Repayment .................................................... 45
14. Prepayment and Cancellation .................................. 46
15. Tax Gross-Up and Indemnities ................................. 50
16. Increased Costs .............................................. 52
17. Other Indemnities ............................................ 53
18. Mitigation by the Banks ...................................... 54
19. Costs and Expenses ........................................... 54
20. Representations .............................................. 56
21. Reporting Requirements ....................................... 62
22. Financial Covenants and Network Milestones ................... 65
23. Accounts and Payments ........................................ 68
24. General Undertakings ......................................... 77
25. Events of Default ............................................ 85
26. Changes to the Parties ....................................... 90
27. Role Of The Agent And The Arranger ........................... 94
28. Conduct Of Business By The Finance Parties ................... 98
29. Sharing Among The Finance Parties ............................ 99
30. Payment Mechanics ............................................ 101
31. Set Off ...................................................... 103
32. Notices ...................................................... 103
33. Calculations and Certificates ................................ 106
34. Partial Invalidity ........................................... 107
35. Remedies and Waivers ......................................... 107
36. Amendments and Waivers ....................................... 107
37. Counterparts ................................................. 108
38. Governing Law ................................................ 109
39. Arbitration .................................................. 109
40. Jurisdiction ................................................. 109
THIS AGREEMENT is dated 30 April 2002 and made between:
(1) WESTERN WIRELESS INTERNATIONAL D.O.O., LJUBLJANA as borrower (the
"BORROWER");
(2) IKB DEUTSCHE INDUSTRIEBANK AG AND KREDITANSTALT FUR WIEDERAUFBAU, as lead
arrangers (the "LEAD ARRANGERS");
(3) RAIFFEISENLANDESBANK OBEROSTERREICH REG.GEN.M.B.H. and NOVA LJUBLJANSKA
BANKA D.D., LJUBLJANA as senior co-arrangers (the "SENIOR CO-ARRANGERS");
(4) LANDESBANK SCHLESWIG-HOLSTEIN GIROZENTRALE and HYPO ALPE-ADRIA-BANK AG as
co-arrangers (the "CO-ARRANGERS");
(5) IKB DEUTSCHE INDUSTRIEBANK AG, KREDITANSTALT FUR WIEDERAUFBAU,
RAIFFEISENLANDESBANK OBEROSTERREICH REG.GEN.M.B.H. LANDESBANK
SCHLESWIG-HOLSTEIN GIROZENTRALE and HYPO ALPE-ADRIA-BANK AG as original
lenders with regard to the Euro Facility (the "ORIGINAL EURO FACILITY
BANKS");
(6) IKB DEUTSCHE INDUSTRIEBANK AG, as facility agent with regard to the Euro
Facility and the SIT Facility (the "OFF SHORE FACILITY AGENT");
(7) IKB DEUTSCHE INDUSTRIEBANK AG, as security agent with regard to the Off
Shore Security (the "OFF SHORE SECURITY AGENT");
(8) NOVA LJUBLJANSKA BANKA D.D., LJUBLJANA as an original lender and issuing
bank with regard to the SIT Facility and HYPO ALPE-ADRIA-BANK D.D. as
original lender with regard to the SIT Facility (the "ORIGINAL SIT
FACILITY BANKS");
(9) NOVA LJUBLJANSKA BANKA D.D., LJUBLJANA as local facility agent with regard
to the SIT Facility (the "ON SHORE FACILITY AGENT"); and
(10) NOVA LJUBLJANSKA BANKA D.D., LJUBLJANA as security agent with regard to
the On Shore Security (the "ON SHORE SECURITY AGENT").
WHEREAS
(A) On November 16, 2000, the Borrower was selected to become the third mobile
operator in Slovenia by the Slovenian telecommunications regulator and on
3 January 2001 signed the Concession Agreement.
(B) The Borrower intends to install and to operate a third wireless
communication network in Slovenia.
(C) For the financing of the construction and operation of such network the
Original Euro Facility Banks have agreed to grant two term loan facilities
in the amount of Euro 96,443,308.50 upon the terms and conditions set out
below and the Original SIT Facility Banks have agreed to grant a revolving
loan, guarantee and letter of credit facility in the amount of SIT
4,400,000,000.
- 1 -
IT IS AGREED as follows:
SECTION 1
INTERPRETATION
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
"ABANDONMENT OF THE PROJECT" means that the Sponsors and/or Shareholders
fail to provide the Borrower with:
(a) the assistance required pursuant to clause 3.2.2 (Technical and
managerial capacity and assistance) of the Sponsors' and
Shareholders' Undertaking and Completion Guarantee and/or the
Management Agreement; and/or
(b) the Sponsor Contributions required in accordance with the Sponsors'
and Shareholders' Undertaking and Completion Guarantee are not made
at the times and in the manner required by the Sponsors' and
Shareholders' Undertaking and Completion Guarantee.
"AFFILIATE" means, in relation to any person, a Subsidiary of that person
or a Holding Company of that person or any other Subsidiary of that
Holding Company.
"AGENT" means the Off Shore Facility Agent and/or the On Shore Facility
Agent as the case may be.
"AGREEMENT" means this agreement including all of its Schedules.
"AMOUNT DEMANDED" has the meaning given to it in Clause 8.1 (Notification
of demand).
"ANNUALISED EBITDA" means twice the aggregate EBITDA in respect of the
last two (2) Quarters immediately preceding the relevant calculation date.
"APPLICABLE MARGIN" means the ECA Facility Applicable Margin, the
Commercial Facility Applicable Margin or the SIT Facility Applicable
Margin as the case may be.
"ARRANGER" means any of the Lead Arrangers, the Senior Co-Arrangers and/or
the Co-Arrangers as the case may be.
"ASSET AND LICENCE PLEDGE AND LEASE CONTRACTS ASSIGNMENT AGREEMENT" means
the asset and licence pledge and lease contracts assignment agreement to
be entered into between the Borrower and the Senior Creditors.
"ASSIGNMENT OF RECEIVABLES AS SECURITY AND ASSIGNMENT OF INSURANCE
POLICIES AGREEMENT" means the assignment of receivables as security and
assignment of insurance policies agreement to be entered into between the
Borrower and the Senior Creditors.
"AUTHORISATION" means an authorisation, consent, approval, resolution,
licence, exemption, filing, notarisation or registration.
- 2 -
"AVAILABILITY PERIOD" means:
(a) in relation to the ECA Facility, the period from the date upon which
the conditions precedent in Schedule 6 (Conditions Precedent) have
been satisfied up to and including 31 December 2003;
(b) in relation to the Commercial Facility, the period from the date
upon which the conditions precedent in Schedule 6 (Conditions
Precedent) have been satisfied up to and including 31 December 2004;
and
(c) in relation to the SIT Facility, the period from the date upon which
the conditions precedent in Schedule 6 (Conditions Precedent) have
been satisfied up to and including 31 October 2009.
"AVAILABLE COMMITMENT" means, in relation to a Facility, a Bank's
Commitment under that Facility minus:
(a) the amount of its participation under that Facility in any
outstanding Loans and, if applicable, SIT Facility Guarantees or
LCs; and
(b) in relation to any proposed Utilisation, the amount of its
participation under that Facility in any Loans that are due to be
made and, if applicable, SIT Facility Guarantees or LCs that are due
to be issued or opened on or before the proposed Utilisation Date,
other than, in relation to any proposed Utilisation under the SIT Facility
only, that Bank's participation in any SIT Facility Loans and, if
applicable, SIT Facility Guarantees or LCs that are due to be repaid or
prepaid or expire on or before the proposed Utilisation Date.
"AVAILABLE FACILITY" means:
(a) in relation to a Euro Facility, the aggregate of each Euro Facility
Bank's Available Commitment; and
(b) in relation to the SIT Facility, the aggregate of each SIT Facility
Bank's Available Commitment.
"BANK" means:
(a) any of the Original Euro Facility Banks and any of the Original SIT
Facility Banks; and
(b) any bank, financial institution, trust, fund or other entity which
has become a Party in accordance with Clause 26 (Changes to the
Parties),
which in each case has not ceased to be a Party in accordance with the
terms of this Agreement.
"BENEFICIARY" means a beneficiary of a SIT Facility Guarantee or LC.
"BILLS OF EXCHANGE" means ten (10) blank bills of exchange to be issued by
the Borrower as collateral for the purpose of securing the obligations of
the Borrower under this Agreement.
"BORROWER" means Western Wireless International d.o.o.
- 3 -
"BORROWER'S SHARE PLEDGE AGREEMENT" means the agreement to be entered into
by the Shareholders, the Borrower and the Senior Creditors for the purpose
of pledging the Shareholders' interests in the Borrower to the Senior
Creditors.
"BREAK COSTS" means, in the case of any Euro Facility Loan, the amount (if
any) in Euro or, in the case of any SIT Facility Loan, the amount (if any)
in SIT by which:
(i) the interest which a Bank should have received for the period from
the date of receipt of all or any part of its participation in a
Loan or Unpaid Sum to the last day of the current Interest Period in
respect of that Loan or Unpaid Sum, had the principal amount or
Unpaid Sum received been paid on the last day of that Interest
Period;
exceeds:
(ii) the amount which that Bank would be able to obtain by placing an
amount equal to the principal amount or Unpaid Sum received by it on
deposit with a leading bank in the European Interbank Market or as
the case may be the Slovenian Interbank Market for a period starting
on the Business Day following receipt or recovery and ending on the
last day of the current Interest Period
in each case as determined and notified to the Borrower by the relevant
Bank in accordance with Clause 11.4 (Break Costs) on the date the Borrower
becomes liable for such costs in accordance with this Agreement.
"BUSINESS DAY" means a day (other than a Saturday or Sunday) on which
banks are open for general business in Ljubljana (in relation to any date
for payment or a Utilisation under the SIT Facility) and in all other
cases in Dusseldorf and Ljubljana and (in relation to any date for payment
or purchase of Euro) any TARGET Day.
"BUSINESS PLAN" means, prior to the delivery of the first Updated Business
Plan, the Initial Business Plan and thereafter the most recently delivered
Updated Business Plan.
"CAPITAL EXPENDITURE RESERVE ACCOUNT" means the account established
pursuant to Clause 23.7 (Capital Expenditure Reserve Account).
"CASH FLOW" means, in respect of the relevant period, EBITDA plus the
amount of any reductions in working capital and any realised foreign
exchange gains less the amount of any increases in working capital, income
tax and realised foreign exchange losses.
"CASH INTEREST EXPENSE" means in relation to any period the total amount
of all interest, fees and commissions due and payable in respect of
Financial Indebtedness during such period.
"CASH SHORTFALL" means the inability of the Borrower to meet its payment
obligations when due in accordance with Clauses 23.3(d)(i) to (vii)
(Application of moneys on the Proceeds and Revenue Accounts) at any time.
"CFO" means the person holding the office of chief financial officer of
the Borrower.
"CLAIMS ASSIGNMENT AND BILLS OF EXCHANGE AGREEMENT" means the claims
assignment and bills of exchange agreement to be entered into between the
Borrower and the Senior Creditors.
"CO-ARRANGERS" means Landesbank Schleswig-Holstein Girozentrale and Hypo
Alpe-Adria-Bank AG.
- 4 -
"COMMERCIAL FACILITY" means the term loan facility made available under
this Agreement as described in Clause 2 (The Facilities).
"COMMERCIAL FACILITY APPLICABLE MARGIN" has the meaning given to it in
Clause 9.2(b) (Calculation of floating rate interest under the Commercial
Facility).
"COMMERCIAL FACILITY APPLICABLE MARGIN ADJUSTMENT DATE" has the meaning
given to it in Clause 9.2(b) (Calculation of floating rate interest under
the Commercial Facility).
"COMMERCIAL FACILITY COMMITMENT" means:
(a) in relation to an Original Euro Facility Bank, the amount set
opposite its name under the heading "Commercial Facility Commitment"
in Schedule 1 (Commitments) and the amount of any other Commercial
Facility Commitment transferred to it under this Agreement; and
(b) in relation to any other Euro Facility Bank, the amount of any
Commercial Facility Commitment transferred to it under this
Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement.
"COMMERCIAL FACILITY LOAN" means a loan made or to be made under the
Commercial Facility or the principal amount outstanding for the time being
of that loan.
"COMMERCIAL FACILITY REPAYMENT DATE" means the dates set out in Schedule 2
(Repayment dates).
"COMMITMENT" means a ECA Facility Commitment, Commercial Facility
Commitment or SIT Facility Commitment.
"CONCESSION AGREEMENT" means the concession agreement between the
Government and the Borrower dated January 03, 2001 based on the
Government's decision no. 347-16/99-6 dated 16 November 2000.
"CONFIDENTIALITY UNDERTAKING" means a confidentiality undertaking
substantially in a recommended form of the LMA as set out in Schedule 3
(LMA Form of Confidentiality Undertaking) or in any other form agreed
between the Borrower and the Off Shore Facility Agent.
"CONTRIBUTED CAPITAL" means the sum of (a) Equity Contributions to the
Borrower plus (b) Subordinated Loans (but excluding in each case any
deferred interest or dividend amounts thereon).
"CONTRIBUTED CAPITAL RATIO" means the ratio of Contributed Capital to the
sum of Contributed Capital plus aggregate Financial Indebtedness.
"COVENANT COMPLIANCE CERTIFICATE" means a certificate substantially in the
form set out in Schedule 14 (Covenant Compliance Certificate).
"DEBT SERVICE" means, in relation to any period, the sum of (a) Cash
Interest Expense plus (b) the principal amount of any Financial
Indebtedness due to be repaid in accordance with its terms during such
period.
"DEBT SERVICE COVER RATIO" OR "DSCR" means the Cash Flow calculated by
reference to the last two (2) Quarters immediately preceding the relevant
calculation date divided
- 5 -
by the Debt Service calculated by reference to the last two (2) Quarters
immediately preceding the relevant calculation date.
"DEBT SERVICE PAYMENTS" means any interest, principal, fees and any other
financing costs payable by the Borrower under the Facilities, the Hedging
Agreements, the Sponsors Unsecured Loan Agreement and the Lucent Loan
Agreement.
"DEBT SERVICE RESERVE ACCOUNT" means the account to be set up and funded
by the Borrower in accordance with Clause 23.9 (Debt Service Reserve
Account).
"DEBT SERVICE RESERVE ACCOUNT PLEDGE AGREEMENT" means the debt service
reserve account pledge agreement to be entered into between the Borrower
and the Off Shore Security Agent acting on behalf of the Senior Creditors.
"DEBT SERVICE ACCOUNT" means the account established pursuant to Clause
23.6 (Debt Service Account).
"DEBTOR" has the meaning given to it in Clause 25.1.8 (Insolvency).
"DELIVERY CONTRACT" means the delivery contract between the Equipment
Vendor and the Borrower dated 15 March 2001 and signed on 21 March 2001
and 30 April 2001 as amended from time to time.
"DELIVERY CONTRACT CLAIMS AND LICENCE ASSIGNMENT AGREEMENT" means the
delivery contract claims and licence assignment agreement to be entered
into between the Equipment Vendor and the Off Shore Facility Agent acting
on behalf of the Senior Creditors.
"DISCHARGED RIGHTS AND OBLIGATIONS" has the meaning given to it in Clause
26.5(b)(i) (Procedure for transfer).
"DISPUTE" has the meaning given to it in Clause 39.1 (Arbitration).
"DSRA-REQUIRED BALANCE" has the meaning given to it in Clause 23.9.2 (Debt
Service Reserve Account).
"EBITDA" means in relation to the relevant period, the sum of:
(a) net income;
(b) the sum of interest expense in respect of Financial Indebtedness
minus interest earnings;
(c) taxes;
(d) depreciation and amortisation; and
(e) other finance and non-cash charges.
"ECA" means Hermes Kreditversicherungs AG-, Hamburg.
"ECA COVER DOCUMENTS" means the documentation issued by the ECA in
connection with a "Guarantee of Finance Credit" under the terms of which
the ECA guarantees the repayment of 95% of the ECA Facility upon the
occurrence of certain political and/or commercial risk events.
- 6 -
"ECA FACILITY" means the term loan facility made available under this
Agreement as described in Clause 2 (The Facilities) (divided into ECA
Facility Tranche 1, ECA Facility Tranche 2 and ECA Facility Tranche 3) and
which is covered by the ECA pursuant to the ECA Cover Documents.
"ECA FACILITY APPLICABLE MARGIN" has the meaning given to it in Clause
9.1(b) (Calculation of floating rate interest under the ECA Facility).
"ECA FACILITY APPLICABLE MARGIN ADJUSTMENT DATE" has the meaning given to
it in Clause 9.1(b) (Calculation of floating rate interest under the ECA
Facility).
"ECA FACILITY COMMITMENT" means:
(a) in relation to an Original Euro Facility Bank, the aggregate amount
set opposite its name under the heading "ECA Facility Commitment" in
Schedule 1 (Commitments) and the amount of any other ECA Facility
Commitment transferred to it under this Agreement; and
(b) in relation to any other Euro Facility Bank, the amount of any ECA
Facility Commitment transferred to it under this Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement.
"ECA FACILITY LOAN" means a loan made or to be made under the ECA Facility
or the principal amount outstanding for the time being of that loan.
"ECA FACILITY TRANCHE 1" has the meaning given to it in Clause 2.1(a)(i)
(The Facilities).
"ECA FACILITY TRANCHE 2" has the meaning given to it in Clause 2.1(a)(i)
(The Facilities).
"ECA FACILITY TRANCHE 3" has the meaning given to it in Clause 2.1(a)(i)
(The Facilities).
"ECA FACILITY TRANCHE 1 COMMITMENT" means:
(a) in relation to an Original Euro Facility Bank, the amount set
opposite its name under the heading "ECA Facility Tranche 1
Commitment" in Schedule 1 (Commitments) and the amount of any other
ECA Facility Tranche 1 Commitment transferred to it under this
Agreement; and
(b) in relation to any other Euro Facility Bank, the amount of any ECA
Facility Tranche 1 Commitment transferred to it under this
Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement.
"ECA FACILITY TRANCHE 2 COMMITMENT" means:
(a) in relation to an Original Euro Facility Bank, the amount set
opposite its name under the heading "ECA Facility Tranche 2
Commitment" in Schedule 1 (Commitments) and the amount of any other
ECA Facility Tranche 2 Commitment transferred to it under this
Agreement; and
(b) in relation to any other Euro Facility Bank, the amount of any ECA
Facility Tranche 2 Commitment transferred to it under this
Agreement,
- 7 -
to the extent not cancelled, reduced or transferred by it under this
Agreement.
"ECA FACILITY TRANCHE 3 COMMITMENT" means:
(a) in relation to an Original Euro Facility Bank, the amount set
opposite its name under the heading "ECA Facility Tranche 3
Commitment" in Schedule 1 (Commitments) and the amount of any other
ECA Facility Tranche 3 Commitment transferred to it under this
Agreement; and
(b) in relation to any other Euro Facility Bank, the amount of any ECA
Facility Tranche 3 Commitment transferred to it under this
Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement.
"ECA PREMIUM" means the fee payable to the ECA by the Off Shore Facility
Agent pursuant to the ECA Cover Documents and by the Equipment Vendor
pursuant to any additional cover granted by the ECA to the Equipment
Vendor in connection with the Delivery Contract.
"ELIGIBLE EXPENDITURE" means expenditures which do not exceed and may be
applied in respect of:
(a) 85 per cent. of the Estimated Contract Value;
(b) 85 per cent. of the ECA Premium due to the ECA (or to the Equipment
Vendor in reimbursement of amounts paid by the Equipment Vendor to
the ECA in respect of the ECA Premium) under the terms of the ECA
Cover Documents; and
(c) 85 per cent. of interest due on the ECA Facility during the
Availability Period.
"ENVIRONMENTAL CLAIM" means any claim, proceeding or investigation by any
person in respect of any Environmental Law.
"ENVIRONMENTAL LAW" means any applicable law, regulation, court decision
or administrative decision binding on the Borrower in any jurisdiction in
which the Borrower conducts business which relates to the pollution or
protection of the environment or harm to or the protection of human health
or the health of animals or plants.
"ENVIRONMENTAL PERMITS" means any Authorisation and the filing of any
notification, report or assessment required under any Environmental Law
for the operation of the business of the Borrower conducted on or from the
properties owned or used by the Borrower.
"EQUIPMENT REVENUES" means revenues deriving from the sale of hand-sets.
"EQUIPMENT VENDOR" means Lucent Technologies Network Systems GmbH,
Nurnberg, Germany.
"EQUITY CONTRIBUTION" means a cash contribution in the Share Capital or
subsequent payments in cash or in kind towards the capital (Naknadna
vplaeila).
"ESTIMATED CONTRACT VALUE" means the estimated value of the equipment and
services for all phases of the Project (comprising the Initial
Configuration and the Planned Network Expansion) payable under the
Delivery Contract, being Euro 60,548,303.
- 8 -
"ETSI" means the European Telecommunications Standards Institute.
"EURIBOR" means, in relation to any Loan in Euro:
(a) the applicable Screen Rate; or
(b) (if no Screen Rate is available for the Interest Period of that
Loan) the arithmetic mean of the rates (rounded upwards to four
decimal places) as supplied to the Off Shore Facility Agent at its
request quoted by the Reference Banks to leading banks in the
European Interbank Market, as of 11:00 am (Central European time) on
the Quotation Day for the offering of deposits in Euro for a period
comparable to the Interest Period of the relevant Loan.
"EURO" means the single currency unit of the European Union as constituted
by the Treaty on European Union as referred to in European Monetary Union
legislation.
"EURO FACILITY" means the ECA Facility and/or the Commercial Facility.
"EURO FACILITY BANK" means any Bank which has become a Party in accordance
with the terms of this Agreement, which will participate in the Euro
Facility and which, in any case, has not ceased to be a Party to this
Agreement.
"EURO FACILITY INTEREST PAYMENT DATE" means the last day of an Interest
Period or where an Interest Period is longer than 3 Months, the last day
of each consecutive period of 3 Months from (and including) the first day
of that Interest Period.
"EURO FACILITY LOAN" means a loan made or to be made under a Euro Facility
or the principal amount outstanding for the time being of that loan.
"EVENT OF DEFAULT" means any event or circumstance specified as such in
Clause 25 (Events of Default).
"EXCESS CASH FLOW" means any amount available for further distribution
from time to time following the application of any amounts from time to
time standing to the credit of the Proceeds and Revenue Accounts pursuant
to Clauses 23.3(d)(i) to (vii) (Application of moneys on the Proceeds and
Revenue Accounts) excluding the following amounts, as at the date of
prepayment pursuant to Clause 14.5.1(Mandatory prepayments):
(a) the amount of any Contributed Capital:
(i) in addition to that required to be provided by the Sponsors or
the Shareholders under the Sponsors' and Shareholders'
Undertaking and Completion Guarantee; and/or
(ii) made by a Sponsor under clause 3.3 (Contingent Equity) of the
Sponsors' and Shareholders' Undertaking and Completion
Guarantee, which exceeds the amount of the Cash Shortfall,
in each case contributed in the immediately preceding Quarter;
(b) the amount of any Insurance Proceeds standing to the credit of the
Insurance Proceeds Account;
(c) the amount of any Proceeds and Revenues standing to the credit of
the Sale Proceeds Account;
- 9 -
(d) the amounts planned to be paid by the Borrower in accordance with
Clause 23.3(d)(iii) and (vii) (Application of moneys on the Proceeds
and Revenue Accounts) within the next twelve (12) month period which
are provided for in the Business Plan and which are standing to the
credit of the Capital Expenditure Reserve Account; and
(e) the principal amount of any outstanding Permitted Indebtedness
(other than indebtedness for borrowed money under the Finance
Documents or the Subordinated Loans).
"EXISTING BANK" has the meaning given to it in Clause 26.1 (Assignments
and transfers by the Banks).
"EXISTING WWIC LOAN" means the unsecured loan made to the Borrower by
Western Wireless International Corporation in an aggregate principal
amount not exceeding US Dollars 25,000,000.
"EXISTING WWIC LOAN AGREEMENT" means the loan agreement, amended on 15
April 2002 and as further amended on 30 April 2002 setting forth the terms
of the Existing WWIC Loan to the Borrower.
"FACILITY" means the ECA Facility, the Commercial Facility and/or the SIT
Facility.
"FACILITY OFFICE" means the office or offices notified by a Bank to the
Off Shore Facility Agent in writing on or before the date it becomes a
Bank (or, following that date, by not less than five (5) Business Days
written notice) as the office or offices through which it will perform its
obligations under this Agreement.
"FEE LETTER" means any letter or letters dated on or about the date of
this Agreement between any of the Arrangers and the Borrower or any of the
Agents and the Borrower setting out any of the fees referred to in Clause
12 (Fees) and the advisory agreement between the Borrower and the Off
Shore Facility Agent dated 2 February 2001 as amended from time to time.
"FINANCE DOCUMENTS" means each of:
(a) this Agreement;
(b) any Fee Letter;
(c) the Security Documents;
(d) any Hedging Agreement;
(e) the Intercreditor Agreement;
(f) the Sponsors' and Shareholders' Undertaking and Completion
Guarantee;
(g) the Lucent Loan Agreement;
(h) the Sponsors Unsecured Loan Agreement; and
(i) any other document designated as such by the Off Shore Facility
Agent, the On Shore Facility Agent and the Borrower.
"FINANCE PARTY" means any of the Agents, the Security Agents, the Issuing
Bank, the Arrangers or the Banks.
- 10 -
"FINANCIAL INDEBTEDNESS" means, without duplication, any indebtedness for
or in respect of:
(a) moneys borrowed;
(b) any amount raised by acceptance under any acceptance credit
facility;
(c) any amount raised pursuant to any note purchase facility or the
issue of bonds, notes, debentures, loan stock or any similar
instrument;
(d) the amount of any liability in respect of any lease or hire purchase
contract which would, in accordance with US GAAP, be treated as a
finance or capital lease;
(e) receivables sold or discounted (other than any receivables to the
extent they are sold on a non-recourse basis);
(f) any amount raised under any other transaction (including any forward
sale or purchase agreement) having the commercial effect of a
borrowing but excluding trade indebtedness arising in the normal
course of business paid within 45 days from the date of invoice;
(g) any derivative transaction entered into in connection with
protection against or benefit from fluctuation in any rate or price
(and, when calculating the value of any derivative transaction, only
the marked to market value shall be taken into account PROVIDED THAT
in respect of calculating the value of any interest rate or currency
exchange rate derivative transaction entered into pursuant to a
Hedging Agreement no account shall be taken of such transaction);
(h) any counter-indemnity obligation (including a reimbursement
obligation) in respect of a guarantee, indemnity, bond, standby or
documentary letter of credit or any other instrument issued by a
bank or financial institution; and
(i) the amount of any liability in respect of any guarantee or indemnity
for any of the items referred to in paragraphs (a) to (h) above.
"3GPP" means the 3G Partnership Project.
"GOVERNMENT" means the Government of the Republic of Slovenia.
"GSM" means Global System For Mobile Communications, a standard for
digital mobile telephone transmissions.
"GSM ACTIVITIES" means all activities relating to or in connection with
the use of GSM technology in relation to the Project.
"HEDGING AGREEMENT" means any hedging agreement between the Borrower and
any Hedging Counterparty designated as a Hedging Agreement by the Borrower
and the Hedging Counterparty and notified to the Off Shore Facility Agent,
in each case, in accordance with the terms of the Intercreditor Agreement.
"HEDGING COUNTERPARTY" means the Original Hedging Counterparty and any
bank or financial institution which accedes to the terms of the
Intercreditor Agreement in accordance with the terms thereof.
"HEDGING LETTER" means a letter from the Borrower to the Off Shore
Facility Agent setting out its interest rate hedging strategy.
- 11 -
"HOLDING COMPANY" means, in relation to a company or corporation, any
other company or corporation in respect of which it is a Subsidiary.
"INCREASED COSTS" has the meaning given to it in Clause 16.1 (Increased
costs).
"INDEPENDENT TECHNICAL CONSULTANT" means Xx Xxxx Xxx of Teleconsultants
and Associates Limited, who shall assist the Banks in connection with the
Project or any replacement consulting firm nominated by the Majority Banks
after consultation with the Borrower.
"INFORMATION MEMORANDUM" means the document dated September 2001 prepared
by the Off Shore Facility Agent and approved by the Borrower in relation
to the Project, distributed to the Banks and the ECA prior to the date
hereof.
"INITIAL BUSINESS PLAN" means a statement of the technical, economic and
tax assumptions in the form of the financial model agreed between the
Parties and referred to as the excel spreadsheet named "Base Case 12 July
01.xls".
"INITIAL CONFIGURATION" means such part of the deliveries and services as
agreed as at the date of the Delivery Contract to be made or rendered
under the terms of the Delivery Contract for which the Borrower has placed
a firm order with the Equipment Vendor.
"INSURANCE" means any of the contracts of insurance which the Borrower is
required from time to time to procure and maintain pursuant to Schedule 11
(Insurance).
"INSURANCE PROCEEDS" means all proceeds of insurance payable to or
received by the Borrower in relation to the Project but excluding third
party insurance proceeds.
"INSURANCE PROCEEDS ACCOUNT" means the account established pursuant to
Clause 23.4 (Insurance Proceeds Account).
"INTELLECTUAL PROPERTY" means the Intellectual Property Rights (i)
required by the Borrower to carry on its business as it is then being
conducted or (ii) any other Intellectual Property Rights which are
material to the business of the Borrower.
"INTELLECTUAL PROPERTY RIGHTS" means all know-how, patents, trademarks,
designs, trading names, copyrights and other intellectual property rights
(in each case whether registered or not and including all applications for
the same).
"INTERCREDITOR AGREEMENT" means the intercreditor agreement to be entered
into between the Senior Creditors and the Borrower.
"INTEREST COVERAGE RATIO" means the ratio of Cash Flow (calculated by
reference to the last two (2) Quarters immediately preceding the relevant
calculation date) to Cash Interest Expense for the same period.
"INTEREST PAYMENT DATE" means a Euro Facility Interest Payment Date and/or
a SIT Facility Interest Payment Date.
"INTEREST PERIOD" means, in relation to a Loan, each period determined in
accordance with Clause 10 (Interest Periods) and, in relation to an Unpaid
Sum, each period determined in accordance with Clause 9.5 (Default
interest).
"INTERNATIONAL MOBILE SUBSCRIBER IDENTITY" means a number allocated by a
mobile operator which uniquely identifies a Subscriber. The number format
and allocation methodology is stipulated within the relevant ETSI
standards.
- 12 -
"ISSUING BANK" means Nova Ljubljanska banka d.d., Ljubljana or such other
financial institution or bank from time to time which issues a SIT
Facility Guarantee or LC.
"ITU" means the International Telecommunications Union.
"LEAD ARRANGERS" means IKB Deutsche Industriebank AG and Kreditanstalt fur
Wiederaufbau.
"LEGAL DUE DILIGENCE REPORT" means the due diligence report dated 28 March
2002 prepared by counsel to the Banks based on certain information
provided by the Borrower.
"LICENCE" means the GSM-1800 licence issued by the Government to the
Borrower (including the Concession Agreement) and any renewal, extension
or replacement thereof.
"LMA" means the Loan Market Association.
"LOAN" means a Euro Facility Loan or a SIT Facility Loan.
"LOAN PROCEEDS ACCOUNT" means the account established pursuant to Clause
23.6 (Loan Proceeds Account).
"LUCENT LOAN AGREEMENT" means the loan agreement to be entered into
between Lucent Technologies Inc., the Equipment Vendor, the Borrower, and
the Off Shore Facility Agent acting on behalf of the Senior Creditors.
"MAJORITY BANKS" means:
(a) if there are no Loans then outstanding and, if applicable, no SIT
Facility Guarantees or LCs issued or opened, a Bank or Banks whose
Commitments aggregate more than 66 2/3% of the Total Commitments
(or, if the Total Commitments have been reduced to zero, aggregated
more than 66 2/3% of the Total Commitments immediately prior to the
reduction); or
(b) at any other time a Bank or Banks whose participations in the Loans
then outstanding and, if applicable, SIT Facility Guarantees or LCs,
on issue or opened aggregate more than 66 2/3% of all Loans then
outstanding and SIT Facility Guarantees or LCs then on issue or
opened
"MAJORITY SENIOR CREDITORS" has the meaning given to it in the
Intercreditor Agreement.
"MANAGEMENT AGREEMENT" means the management agreement to be entered into
between the Borrower and Western Wireless International Corporation.
"MARKET DISRUPTION EVENT" has the meaning given to it in Clause 11.2(c)
(Market disruption).
"MARKET STUDY" means the evaluation by DETECON GmbH, Bonn of the Business
Plan for the Borrower dated 10 May 2001 with the update dated 27 July
2001.
"MATERIAL ADVERSE EFFECT" means any event, occurrence or condition which
has or could reasonably be expected to have a material adverse effect on:
(a) the business, operation, property (taken as a whole) and/or
financial condition of the Borrower and/or the Shareholders;
- 13 -
(b) the ability of the Borrower and/or the Sponsors to perform a payment
obligation or other material obligation under a Transaction Document
to which it is a party;
(c) except as permitted under this Agreement, the validity or
enforceability of a Material Contract; or
(d) the validity or enforceability of any of the Security purported to
be granted under the Security Documents (as and when such Security
is required to be valid and enforceable).
"MATERIAL ASSET" means any asset of the Borrower:
(a) subject to or required to become subject to the Security Documents;
(b) with a book value in excess of Euro 100,000; or
(c) that is necessary in any material respect for the design,
functionality or operability of the Network or for charging or
maintenance of Subscribers of the Network and which the Off Shore
Facility Agent (acting reasonably) notifies the Borrower (acting on
the advice of the Independent Technical Consultant) is a Material
Asset.
"MATERIAL CONTRACTS" means each of:
(a) the Licence and all material related documents;
(b) the Software Licences;
(c) the Delivery Contract;
(d) the Finance Documents;
(e) **CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT**
(f) the contracts for the provision of civil works and/or site
acquisition concluded between the Borrower and MIBO Kommunikacije
d.o.o., Reime NIS AS, Xxxxxx d.o.o. and Kapetan d.o.o.;
(g) the contracts for the procurement of or support services in relation
to Material Assets;
(h) the lease agreement in respect of the Borrower's premises at
Xxxxxxxxx xxxxx 00, 0000 Xxxxxxxxx and those lease agreements in
respect of property upon which the assets subject to the Asset and
Licence Pledge and Lease Contracts Assignment Agreement are
situated;
(i) the contracts in respect of the leasing of lines or sharing of
infrastructure;
(j) the Management Agreement;
(k) the Existing WWIC Loan Agreement;
(l) the documents entitled "General Terms and Conditions" relating to
pre-paid and post-paid Subscribers which have been approved by the
Ministry of Information Society or any substitute of such documents;
- 14 -
(m) any other document or agreement which the Off Shore Facility Agent
and the Borrower agree to be a Material Contract; and
(n) any replacement or substituted contract in respect of any of the
above documents.
"MONTH" means a period starting on one day in a calendar month and ending
on the numerically corresponding day in the next calendar month, except
that:
(a) (subject to paragraph (c) below) if the numerically corresponding
day is not a Business Day, that period shall end on the next
Business Day in that calendar month in which that period is to end
if there is one, or if there is not, on the immediately preceding
Business Day;
(b) if there is no numerically corresponding day in the calendar month
in which that period is to end, that period shall end on the last
Business Day in that calendar month;
(c) if an Interest Period begins on the last Business Day of a calendar
month, that Interest Period shall end on the last Business Day in
the calendar month in which that Interest Period is to end.
The above rules will only apply to the last Month of any period.
"NETWORK" means the Borrower's telecommunication network including,
without limitation, all associated hardware, software, infrastructure,
civil works, tower, masts and antenna systems, links and interconnection
in Slovenia using the GSM ETSI standards and any evolution of these
standards to 3GPP standards, or otherwise, and any equipment conforming to
ITU standards and shall include all hardware, licensed software and
documentation, services and support procured under the Delivery Contract.
"NEW BANK" has the meaning given to it in Clause 26.1 (Assignments and
transfers by the Banks).
"OFF SHORE FACILITY AGENT" means IKB Deutsche Industriebank AG.
"OFF SHORE SECURITY" has the meaning given to it in the definition of
Security Documents in this Clause 1.1.
"OFF SHORE SECURITY AGENT" means IKB Deutsche Industriebank AG.
"ON SHORE FACILITY AGENT" means Nova Ljubljanska banka d.d., Ljubljana.
"ON SHORE SECURITY" has the meaning given to it in the definition of
Security Documents in this Clause 1.1.
"ON SHORE SECURITY AGENT" means Nova Ljubljanska banka d.d., Ljubljana.
"ORACLE SOFTWARE ASSIGNMENT AGREEMENT" means the assignment agreement
relating to the Oracle software licence to be entered into between the
Borrower and the Senior Creditors.
"ORIGINAL EURO FACILITY BANK" means each of IKB Deutsche Industriebank AG,
Kreditanstalt fur Wiederaufbau, Raiffeisenlandesbank Oberosterreich
reg.Gen.m.b.H., Landesbank Schleswig-Holstein Girozentrale and Hypo
Alpe-Adria-Bank AG.
- 15 -
"ORIGINAL FINANCIAL STATEMENTS" means in relation to the Borrower, its
audited financial statements for the financial year ended 31 December 2001
prepared in accordance with US GAAP.
"ORIGINAL HEDGING COUNTERPART" means IKB International S.A., Luxembourg.
"ORIGINAL SIT FACILITY BANK" means each of Nova Ljubljanska banka d.d. and
Hypo Alpe-Adria-Bank d.d..
"PARTICIPATING MEMBER STATE" means any member state of the European
Community that adopts or has adopted the Euro as its lawful currency in
accordance with legislation of the European Community relating to Economic
and Monetary Union.
"PARTY" means a party to this Agreement.
"PERMITTED ACCOUNTS" means the accounts listed in Schedule 7 (Permitted
Accounts), those accounts required to be opened by the Borrower under
Clause 23 (Accounts and Payments) and/or such other accounts agreed with
the Off Shore Facility Agent pursuant to Clause 24.22 (Bank accounts).
"PERMITTED ASSET SALES" means any sale, lease, transfer or disposal of any
assets (including obsolete surplus assets) of the Borrower in the ordinary
course of business (other than sales of Material Assets) on arm's length
terms.
"PERMITTED ENCUMBRANCES" means:
(a) Security created pursuant to any of the Security Documents;
(b) Security which does not affect or impair the Security created
pursuant to the Security Documents or the assets subject to the
Security created pursuant to the Security Documents, in each case
arising out of retention of title provisions relating to the supply
of goods in the ordinary course of business, payment for which is
discharged when due;
(c) any lien arising by operation of law in the ordinary course of the
Borrower's business and securing an amount which is being contested
in good faith or for which appropriate reserves have been made;
(d) rights of set off arising by operation of law in the ordinary course
of the Borrower's business which are being contested in good faith
or for which appropriate reserves have been made;
(e) Security created in accordance with Clause 24.33 (UMTS and other
licences) and/or Clause 24.38 (Bills of Exchange and Security
Deposits); and
(f) Security created with the consent of the Banks.
"PERMITTED INDEBTEDNESS" has the meaning given to it in Clause 24.31
(Indebtedness).
"PLANNED NETWORK EXPANSION" means such part of the deliveries and services
as agreed as at the date of the Delivery Contract to be made or rendered
under the terms of the Delivery Contract for which the Borrower has been
granted an option to place a firm order with the Equipment Vendor.
"POPULATION COVERAGE" has the meaning given to it in Schedule 18
(Population Coverage Verification).
- 16 -
"POTENTIAL EVENT OF DEFAULT" means any event or circumstance specified in
Clause 25 (Events of Default) which would (with the expiry of a grace
period, the giving of notice, the making of any determination under the
Finance Documents or any combination of any of the foregoing) be an Event
of Default.
"PROCEEDS AND REVENUES" has the meaning given to it in Clause 23.2
(Payments into the Proceeds and Revenue Accounts).
"PROCEEDS AND REVENUE ACCOUNT" means any of the accounts set up in
accordance with Clause 23.1 (Proceeds and Revenue Accounts).
"PROJECT" means the design, construction, testing, completion and
operation of the Network.
"PROJECT CONTRACTS" means any agreement entered into by the Borrower from
time to time (other than a Material Contract).
"PROJECT COSTS" means all costs and expenses for the design, construction,
testing, financing and completion of the Project as set out in the Initial
Business Plan and operation of the Project in accordance with the Business
Plan.
"PROJECT STATUS AND PROGRESS REPORT" means a report required pursuant to
Clause 21.1(c)(iii) (Financial statements and other information)
substantially in the form set out in Schedule 15 (Project Status and
Progress Report).
"QUARTER" means each period of three months in a financial year of the
Borrower, the first such period of any financial year commencing on the
first day of such financial year.
"QUOTATION DAY" means:
(a) in relation to any period for which an interest rate is to be
determined in Euro two TARGET Days before the first day of that
period unless market practice differs in the European Interbank
Market for a currency, in which case the Quotation Day for that
currency will be determined by the Off Shore Facility Agent in
accordance with market practice in the European Interbank Market
(and if quotations would normally be given by leading banks in the
European Interbank Market on more than one day, the Quotation Day
will be the last of those days); and
(b) in relation to any period for which an interest rate is to be
determined in SIT two (2) Business Days before the first day of that
period.
"RECOVERING FINANCE PARTY" has the meaning given to it in Clause 29.1
(Payments to Finance Parties).
"REFERENCE BANKS" means, in relation to EURIBOR, the principal office in
Frankfurt am Main of Deutsche Bank AG, the principal office in Dusseldorf
of Westdeutsche Landesbank Girozentrale and the principal office in London
of XX Xxxxxx Xxxxx or such other banks as may be appointed by the Off
Shore Facility Agent in consultation with the Borrower.
"REFERENCE INTEREST RATE" means, on any Quotation Day, the highest
interest rate used by the On Shore Facility Agent for long term deposits
of legal entities in SIT with maturities longer than two (2) years and
shorter than 3 years and one day in accordance with the applicable
"Resolution on Interest Rates of Nova Ljubljanska banka d.d., Ljubljana
(Sklep o obrestnih merah Nove Ljubljanske banke d.d., Ljubljana)" or any
- 17 -
other applicable document of the On Shore Facility Agent containing
substantially similar terms.
"REPAYMENT DATE" means in relation to a Facility the dates specified for
repayment in Schedule 2 (Repayment dates).
"REPEATED REPRESENTATIONS" has the meaning given to it in Clause 20.2
(Repetition).
"ROLLOVER SIT FACILITY LOAN" means one or more SIT Facility Loans:
(a) made or to be made on the same day that a maturing SIT Facility Loan
is due to be repaid;
(b) the aggregate amount of which is equal to or less than the maturing
SIT Facility Loan in SIT; and
(c) made or to be made to the Borrower for the purpose of refinancing a
maturing SIT Facility Loan.
"RULES" has the meaning given to it in Clause 39.1 (Arbitration).
"SALE PROCEEDS ACCOUNT" means the account established pursuant to Clause
23.5 (Sale Proceeds Account).
"SCREEN RATE" means, in relation to EURIBOR, the percentage rate per annum
determined by the Banking Federation of the European Union for the
relevant period, displayed on the appropriate page of the Reuters screen
as of 11:00 a.m. (Brussels time) on the Quotation Day. If the agreed page
is replaced or service ceases to be available, the Off Shore Facility
Agent may specify another page or service displaying the appropriate rate
after consultation with the Borrower and the Euro Facility Banks.
"SECURITY" means a mortgage, charge, pledge, xxxx, xxxx of exchange,
security deposit or other security interest securing any obligation of any
person or any other agreement or arrangement having a similar effect.
"SECURITY AGENT" means the Off Shore Security Agent and/or the On Shore
Security Agent.
"SECURITY ASSIGNMENT OF RIGHTS UNDER A SUPPLY AND LICENSE AGREEMENT" means
the security assignment of rights under a supply and license agreement to
be entered into between the Borrower and the Off Shore Facility Agent
acting on behalf of the Senior Creditors.
"SECURITY DOCUMENTS" means each of:
(a) the ECA Cover Documents;
(b) the Security Assignment of Rights under a Supply and License
Agreement;
(c) the Delivery Contract Claims and Licence Assignment Agreement;
(d) the Sponsors' Cash Collateral Account Pledge Agreement;
(e) the Shareholders Pledge Agreement; and
(f) the Debt Service Reserve Account Pledge Agreement;
- 18 -
(together the "OFF SHORE SECURITY"); and
(g) the Borrower's Share Pledge Agreement;
(h) the Asset and Licence Pledge and Lease Contracts Assignment
Agreement;
(i) the Claims Assignment and Bills of Exchange Agreement;
(j) the Bills of Exchange;
(k) the Assignment of Receivables as Security and Assignment of
Insurance Policies Agreement;
(l) the Trademark Pledge Agreement; and
(m) the Oracle Software Assignment Agreement
(together the "ON SHORE SECURITY"); and
(n) any other document or agreement which the Off Shore Facility Agent
and the Borrower agree to be a Security Document.
"SELECTION NOTICE" means a notice substantially in the form set out in
Schedule 5 (Selection Notice) given in accordance with Clause 10 (Interest
Periods) in relation to a Euro Facility.
"SENIOR CO-ARRANGERS" means Raiffeisenlandesbank Oberosterreich
reg.Gen.m.b.H. and Nova Ljubljanska banka d.d., Ljubljana.
"SENIOR CREDITORS" means the Finance Parties, the Hedging Counterparties
and Lucent Technologies Inc.
"SERVICE REVENUES" means Total Revenues minus Equipment Revenues.
"SHARE" means an ordinary fully paid up share in the Share Capital.
"SHARE CAPITAL" means the share capital of the Borrower as increased from
time to time in accordance with the Sponsors' and Shareholders'
Undertaking and Completion Guarantee.
"SHAREHOLDERS" means Western Wireless International Slovenia Corporation
and Western Wireless International Slovenia II Corporation and any
permitted transferee in accordance with and pursuant to the Sponsors' and
Shareholders' Undertaking and Completion Guarantee.
"SHAREHOLDERS PLEDGE AGREEMENT" means the shareholder pledge agreement to
be entered into by Western Wireless International Corporation for the
purposes of pledging its interests in the Shareholders to the Off Shore
Security Agent acting on behalf of the Senior Creditors.
"SHARING PAYMENT" has the meaning given to it in Clause 29.1 (Payments to
Finance Parties).
"SIM" means a subscriber identity module.
"SIT" means the lawful monetary unit of the Republic of Slovenia from time
to time.
- 19 -
"SIT FACILITY" means the revolving loan, guarantee and letter of credit
issuance facility made available under this Agreement as described in
Clause 2 (The Facilities).
"SIT FACILITY APPLICABLE MARGIN" has the meaning set out in Clause
9.3.1(b) (Calculation of floating rate interest under the SIT Facility).
"SIT FACILITY BANK" means any Bank which has become a Party in accordance
with the terms of this Agreement, which will participate in the SIT
Facility and which, in any case, has not ceased to be a Party to this
Agreement.
"SIT FACILITY COMMITMENT" means:
(a) in relation to an Original SIT Facility Bank, the amount set
opposite its name under the heading "SIT Facility Commitment" in
Schedule 1 (Commitments) and the amount of any other SIT Facility
Commitment transferred to it under this Agreement; and
(b) in relation to any other SIT Facility Bank, the amount of any SIT
Facility Commitment transferred to it under this Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement.
"SIT FACILITY GUARANTEE OR LC" means any guarantee issued or to be issued
or letter of credit opened or to be opened by the Issuing Bank upon
request of the Borrower.
"SIT FACILITY GUARANTEE OR LC PERCENTAGE" means, in relation to a SIT
Facility Bank and a SIT Facility Guarantee or LC, the proportion
(expressed as a percentage) borne by such SIT Facility Bank's Available
Commitment to the Available Facility, immediately prior to the date of
issue or opening of the SIT Facility Guarantee or LC.
"SIT FACILITY INTEREST PAYMENT DATE" has the meaning given to it in Clause
9.4.2 (Payment of interest).
"SIT FACILITY LOAN" means a loan made or to be made under the SIT Facility
or the principal amount outstanding for the time being of that loan (as
such amount may be revalued in accordance with Clause 6.3) (Revaluation of
SIT Facility Loans).
"SLOVENIAN ACCOUNTING STANDARDS" means Slovenian Accounting Standards,
issued by the Association of Accountants, Treasurers and Auditors of
Slovenia (Zveza Racunovodij, Financnikov In Revizorjev Slovenije).
"SMOM" means, in relation to any SIT Facility Loan:
(a) the applicable SMOM Screen Rate; or
(b) (if no Screen Rate is available for the Interest Period of that SIT
Facility Loan) the arithmetic mean of the rates (rounded upwards to
four decimal places) as supplied to the On Shore Facility Agent at
its request quoted by the SMOM Reference Banks to leading banks in
the Slovenian Interbank Market, as of 11.00 a.m. (Ljubljana time) on
the Quotation Day for the offering of deposits in SIT for a period
comparable to the Interest Period of the relevant SIT Facility Loan.
"SMOM REFERENCE BANKS" means Hypo Alpe-Adria-Bank d.d., Ljubljana, SKB
Banka d.d., Ljubljana and Nova Ljubljanska banka d.d., Ljubljana or such
other banks as may be appointed by the On Shore Facility Agent in
consultation with the Borrower.
- 20 -
"SMOM SCREEN RATE" means, in relation to SMOM, the percentage rate per
annum determined by the Slovenian Banking Association for the relevant
period displayed on its website (xxx.xxx-xxx.xx) as of 11.00 a.m.
(Ljubljana time) on the Quotation Day. If the website is replaced or
service ceases to be available, the On Shore Facility Agent may specify
another website or service displaying the appropriate rate after
consultation with the Borrower and the SIT Facility Banks.
"SOFTWARE LICENCES" means:
(a) the software licence granted to the Borrower by the Equipment Vendor
according to the Delivery Contract;
(b) the software licence granted to the Borrower by Protek Flagship (UK)
Ltd in relation to customer care and billing software systems; and
(c) the software licence granted by Oracle Software d.o.o., Ljubljana to
the Borrower.
"SPONSOR CONTRIBUTIONS" means contributions made to the Borrower by way of
Equity Contributions or Subordinated Loans.
"SPONSORS" means Western Wireless International Corporation, Western
Wireless International Slovenia Corporation and Western Wireless
International Slovenia II Corporation.
"SPONSORS' AND SHAREHOLDERS' UNDERTAKING AND COMPLETION GUARANTEE" means
the Sponsors' and Shareholders' undertaking and completion guarantee
agreement on or about the date of this Agreement between the Borrower, the
Sponsors, the Shareholders and the Off Shore Facility Agent acting on
behalf of the Senior Creditors.
"SPONSORS' CASH COLLATERAL ACCOUNT" has the meaning given to it in the
Sponsors' and Shareholders' Undertaking and Completion Guarantee.
"SPONSORS' CASH COLLATERAL ACCOUNT PLEDGE AGREEMENT" means the cash
collateral account pledge agreement to be entered into between Western
Wireless International Corporation and the Off Shore Security Agent acting
on behalf of the Senior Creditors.
"SPONSORS UNSECURED LOAN AGREEMENT" means the credit agreement to be
entered into between the Sponsors and the Borrower in respect of Sponsors
Unsecured Loans.
"SPONSORS UNSECURED LOANS" means any loans made by the Sponsors in
accordance with the Sponsors Unsecured Loan Agreement up to a maximum
principal amount of Euro 1,561,318.60 and upon the terms approved by the
Off Shore Facility Agent prior to the date of this Agreement.
"SUBORDINATED LOAN" means a subordinated loan (other than a Sponsors
Unsecured Loan) made to the Borrower in accordance with the Sponsors' and
Shareholders' Undertaking and Completion Guarantee.
"SUBSCRIBER" means an entity or individual with an International Mobile
Subscriber Identity belonging to the Network who is not disconnected or
barred from making and receiving calls on the respective date of the
reporting of the figure EXCLUDING the Borrower's employees, subscribers
with any test SIM cards, any SIM cards used for demonstration purposes and
any SIM cards used for international roaming tests and any contractors
that are given terms or conditions preferable to those generally provided
to other subscribers and:
- 21 -
(a) For the purpose of counting the number of postpaid Subscribers, the
Subscriber must have generated revenue of an equivalent amount of at
least Euro 5 (excluding VAT) within the last Quarter immediately
preceding the relevant calculation date:
(b) For the purposes of determining the revenue per postpaid Subscriber,
such revenue shall be determined as follows:
(i) the initial connection fee depreciated on a straight line
basis over the minimum duration (and if not stipulated within
the contract, then 12 months shall be assumed) of the
Subscriber's contract (totalled for the relevant Quarter).
(ii) rental fee or periodic subscription fee of that Subscriber for
the relevant Quarter;
(iii) any other periodic, one time and regular fees levied during
the relevant Quarter;
(iv) call. SMS and any usage related fees (excluding any credits
given to the Subscriber by the Borrower) for calls made by
that Subscriber during the relevant Quarter; plus
(v) interconnect revenue (interconnect income from other
operators) calculated per Subscriber during the relevant
Quarter.
(c) Handset and SIM fees charged to the Subscriber shall not be included
in the calculation.
(d) For the purpose of counting the number of prepaid Subscribers, the
Subscriber must have generated five decremented events in a given
Quarter. A decremented event is a call, SMS or any other usage
related fee that is decremented from the Subscriber's prepaid
balance, (excluding any credits given to the Subscriber by the
Borrower).
(e) For both post-paid and prepaid Subscribers, the 5 Euro or five
decremented events respectively shall not apply for Subscribers that
have been activated in the most recently reported Quarter.
"SUBSIDIARY" means, in relation to any company or corporation, any
company, corporation or partnership:
(a) which is controlled, directly or indirectly, by the first-mentioned
company or corporation and, for these purposes, a company,
corporation or partnership shall be treated as being controlled by a
company or corporation if that other company or corporation is able
to direct its affairs and/or to control the composition of its board
of directors or equivalent body;
(b) more than half the issued share capital or partnership interest of
which is beneficially owned, directly or indirectly, by the
first-mentioned company or corporation; or
(c) which is a subsidiary of another subsidiary of the first-mentioned
company or corporation.
"TARGET" means Trans-European Automated Real-time Gross Settlement Express
Transfer payment system.
- 22 -
"TARGET DAY" means any day on which TARGET is open for the settlement of
payments in Euro.
"TAX" means any tax, levy, impost, duty or other charge or withholding of
a similar nature (including any penalty or interest payable in connection
with any failure to pay or any delay in paying any of the same).
"TERMINATION DATE" means 30 November 2009.
"XXX" means the applicable base rate in accordance with the Slovenian Law
on Prescribed Interest Rates for Late Payment and on the Base Rate
(Official Gazettes of the Republic of Slovenia No. 45/1995 and 109/2001)
and published by Banka Slovenije in accordance with the Decree on Base
Interest Rate (Official Gazettes of the Republic of Slovenia No. 61/1996,
3/1997, 23/1997 and 81/1997).
"TOTAL COMMERCIAL FACILITY COMMITMENTS" means the aggregate of the
Commercial Facility Commitments, being Euro 42,800,000 at the date of this
Agreement.
"TOTAL COMMITMENTS" means the aggregate of the Total ECA Facility
Commitments, the Total Commercial Facility Commitments and the Total SIT
Facility Commitments.
"TOTAL ECA FACILITY COMMITMENTS" means the aggregate of the ECA Facility
Commitments, being Euro 53,643,308.50 at the date of this Agreement.
"TOTAL ECA FACILITY TRANCHE 1 COMMITMENTS" means the aggregate of the ECA
Facility Tranche 1 Commitments.
"TOTAL ECA FACILITY TRANCHE 2 COMMITMENTS" means the aggregate of the ECA
Facility Tranche 2 Commitments.
"TOTAL ECA FACILITY TRANCHE 3 COMMITMENTS" means the aggregate of the ECA
Facility Tranche 3 Commitments.
"TOTAL LEVERAGE RATIO" means the ratio of aggregate Financial Indebtedness
to Annualised EBITDA of the Borrower at the relevant calculation date.
"TOTAL REVENUES" means all revenues as determined in accordance with US
GAAP.
"TOTAL SIT FACILITY COMMITMENTS" means the aggregate of the SIT Facility
Commitment, being SIT 4,400,000,000 at the date of this Agreement and
which, at no time shall exceed the Euro equivalent amount of Euro
20,000,000 as reduced in accordance with the terms hereof.
"TRADEMARK PLEDGE AGREEMENT" means the trademark pledge agreement to be
entered into between the Borrower and the Senior Creditors.
"TRANSACTION DOCUMENTS" means:
(a) the Project Contracts; and
(b) the Material Contracts.
"TRANSFER CERTIFICATE" means a certificate substantially in the form set
out in Schedule 10 (Form of Transfer Certificates) or any other form
agreed between the Off Shore Facility Agent and the Borrower.
- 23 -
"TRANSFER DATE" means, in relation to a transfer, the later of:
(a) the proposed transfer date specified in the Transfer Certificate;
and
(b) the date on which the Agent executes the Transfer Certificate.
"UMTS" means a Universal Mobile Telecommunications System, being the third
generation communications system based on the standards delivered by the
ITU and the ETSI.
"UMTS ACTIVITIES" means all activities relating to or in connection with
the use of UMTS technology and for the avoidance of doubt excludes any
activities conducted using GSM 1800 frequencies.
"UMTS SUBSIDIARY" has the meaning given to it in Clause 24.33 (UMTS and
other licences).
"UNPAID SUM" means any sum due and payable but unpaid under the Finance
Documents by the Borrower.
"UPDATED BUSINESS PLAN" means an update of the Business Plan in a manner
consistent with the most recent financial statements delivered and
reviewed in accordance with Clause 21 (Reporting requirements).
"US GAAP" means generally accepted accounting principles, standards and
practices in the United States of America consistently applied.
"UTILISATION" means a utilisation of a Facility.
"UTILISATION DATE" means the date of a Utilisation, being the date on
which the relevant Loan is to be made or, as the case may be, SIT Facility
Guarantee or LC is to be issued or opened or, in the case of a Rollover
SIT Facility Loan, the date on which the maturing SIT Facility Loan in
respect of which it is made is due to be repaid.
"UTILISATION REQUEST" means a notice substantially in the form set out in
Schedule 4A (Utilisation Request (Borrower)), Schedule 4B (Utilisation
Request (Payments to Equipment Vendor)) or Schedule 4C (Utilisation
Request (Payments to ECA)) as the case may be.
"VAT" means value added tax as provided for in the Law on Value Added Tax
published in the Official Gazettes of the Republic of Slovenia, no. 89/98,
17/2000 - decision of Constitution Court, 30/2001 and any other tax of a
similar nature.
"WITHDRAWAL OF THE LICENCE" means the Licence is withdrawn or measures
have been taken or court proceedings have been commenced which, in the
opinion of the Majority Banks (acting reasonably), are reasonably likely
to result in an order to withdraw the Licence as a consequence of the
construction, coverage provided by or technical performance of the Network
failing to meet the specifications of the Licence.
1.2 CONSTRUCTION
1.2.1 Unless a contrary indication appears, any reference in this Agreement to:
(a) the "OFF SHORE FACILITY AGENT", the "OFF SHORE SECURITY AGENT", the
"ON SHORE FACILITY AGENT", the "ON SHORE SECURITY AGENT", the
"ISSUING BANK", any "ARRANGER", any "FINANCE PARTY", any "BANK", the
"BORROWER", any "SENIOR Creditor", any "HEDGING COUNTERPARTY" or any
"PARTY" shall be
- 24 -
construed so as to include its successors in title, permitted
assigns and permitted transferees;
(b) "ASSETS" includes present and future properties, revenues and rights
of every description;
(c) "DBM" means decibel above or below 1 milliwatt;
(d) except as expressly provided in this Agreement, the "EQUIVALENT" on
any given date in one currency (the "FIRST CURRENCY") of an amount
denominated in another currency (the "SECOND CURRENCY") is a
reference to the amount of the first currency which could be
purchased with the amount of the second currency at the mean spot
rate of exchange quoted to the Off Shore Facility Agent at or about
11.00 a.m. (Dusseldorf time) on such date for the purpose of the
purchase of the first currency with the second currency;
(e) the "EUROPEAN INTERBANK MARKET" means the interbank market for Euro
operating in Participating Member States;
(f) a "TRANSACTION DOCUMENT" or any other agreement or instrument is a
reference to that Transaction Document or other agreement or
instrument as amended or novated;
(g) "INDEBTEDNESS" includes any obligation (whether incurred as
principal or as surety) for the payment or repayment of money,
whether present or future, actual or contingent;
(h) a "PERSON" includes any person, firm, company, corporation,
government, state or agency of a state or any association, trust or
partnership (whether or not having separate legal personality) or
two or more of the foregoing;
(i) a "REGULATION" includes any regulation, rule, official directive,
request or guideline (whether or not having the force of law) of any
governmental, intergovernmental or supranational body, agency,
department or regulatory, self-regulatory or other authority or
organisation;
(j) a provision of law is a reference to that provision as amended or
re-enacted; and
(k) Section, Clause and Schedule headings are for ease of reference
only.
(l) unless a contrary indication appears, a term used in any other
Finance Document or in any notice given under or in connection with
any Finance Document has the same meaning in that Finance Document
or notice as in this Agreement.
1.2.2 In this Agreement:
(a) A Potential Event of Default is continuing if it has not been
remedied or waived.
(b)
(i) An Event of Default can be assumed to be continuing unless the
Borrower has satisfied the Agents or Security Agents (in each
case acting on the instructions of the Majority Banks acting
reasonably) that such Event of Default has been cured or
waived.
- 25 -
(ii) If any enforcement action as directed by the Majority Senior
Creditors in accordance with the Intercreditor Agreement,
permitted to be taken upon an Event of Default, has been
commenced, the Borrower may not subsequently cure such Event
of Default without the prior written consent of the Agents or
Security Agents (in each case acting on the instructions of
the Majority Senior Creditors).
- 26 -
SECTION 2
THE FACILITIES
2. THE FACILITIES
2.1 THE FACILITIES
Subject to the terms of this Agreement:
(a) the Euro Facility Banks make available to the Borrower:
(i) a term loan facility in an aggregate principal amount of up to
the Total ECA Facility Commitments on the following basis:
(1) the Total ECA Facility Tranche 1 Commitments (being no
more than 85% of the Estimated Contract Value being an
amount of not more than Euro 47,163,886.50) payable
directly by the Off Shore Facility Agent to the
Equipment Vendor subject to the conditions set out in
this Agreement ("ECA FACILITY TRANCHE 1"); and
(2) the Total ECA Facility Tranche 2 Commitments (being no
more than 85% of the ECA Premium being an amount of not
more than Euro 2,122,820.50) payable directly by the Off
Shore Facility Agent to the ECA for payment of the ECA
Premium and/or to the Equipment Vendor in reimbursement
of amounts paid to the ECA in respect of the ECA Premium
("ECA FACILITY TRANCHE 2"),
(3) the Total ECA Facility Tranche 3 Commitments (being no
more than 85% of scheduled interest due on the ECA
Facility during the Availability Period being an amount
of not more than Euro 4,356,601.50) payable directly to
the Off Shore Facility Agent for the account of the Euro
Facility Banks subject to the conditions set out in this
Agreement ("ECA FACILITY TRANCHE 3"); and
(ii) a term loan facility in an aggregate principal amount of up to
the Total Commercial Facility Commitments; and
(b) the SIT Facility Banks make available to the Borrower a revolving
loan, guarantee and letter of credit issuance facility in an
aggregate principal amount of up to the Total SIT Facility
Commitments.
2.2 FINANCE PARTIES' RIGHTS AND OBLIGATIONS
(a) The obligations of each Finance Party under the Finance Documents
are several. Failure by a Finance Party to perform its obligations
under the Finance Documents does not affect the obligations of any
other party under the Finance Documents. No Finance Party is
responsible for the obligations of any other Finance Party under the
Finance Documents.
(b) The rights of each Finance Party under or in connection with the
Finance Documents are separate and independent rights and any debt
arising under the Finance Documents to a Finance Party from the
Borrower shall be a separate and independent debt.
- 27 -
(c) A Finance Party may, except as otherwise stated in the Finance
Documents where a Finance Party must first comply with a Majority
Banks or all Bank decision, separately enforce its rights under the
Finance Documents.
3. PURPOSE
3.1 PURPOSE
(a) The Borrower shall apply all ECA Facility Loans in payment of
Eligible Expenditures.
(b) The Borrower shall apply all Commercial Facility Loans towards
Project Costs (other than those which are financed by the ECA
Facility) and the repayment of principal, interest and other amounts
owing under the Existing WWIC Loan Agreement (in accordance with
Clause 23.8 (Loan Proceeds Account)).
(c) The Borrower shall apply all SIT Facility Loans towards and only
request SIT Facility Guarantees or LCs in respect of:
(i) Project Costs; and
(ii) for such other purposes as set out in this Agreement.
In no event shall any amounts made available under this Agreement be used
by the Borrower in connection with any UMTS Activities or for any other
purpose than those relating to the GSM Activities unless such amounts have
been expressly listed in the Business Plan.
3.2 MONITORING
No Finance Party is bound to monitor or verify the application of any
amount borrowed pursuant to this Agreement.
- 28 -
SECTION 3
UTILISATION OF THE FACILITIES
4. CONDITIONS OF UTILISATION
4.1 CONDITIONS PRECEDENT TO THE FIRST UTILISATION UNDER ALL FACILITIES
The Borrower may only deliver a Utilisation Request and the Banks will
only be obliged to comply with Clause 6 (Loans) and Clause 7.1 (SIT
Facility Banks' participation in SIT Facility Guarantees or LCs) if the
Off Shore Facility Agent has received all of the documents and other
evidence listed in Schedule 6 (Conditions Precedent) in form and substance
satisfactory to the Off Shore Facility Agent (acting reasonably) or in the
case of the funding of the Sponsors' Cash Collateral Account, the Off
Shore Facility Agent is satisfied that contemporaneous with the first
Utilisation such condition shall be satisfied. The Off Shore Facility
Agent shall notify the Borrower and the Banks promptly upon being so
satisfied.
4.2 FURTHER CONDITIONS PRECEDENT TO ALL UTILISATIONS
4.2.1 Subject to Clause 4.2.2 and other than in the case of Rollover SIT
Facility Loans, the Banks will only be obliged to comply with Clause 6
(Loans) and Clause 7.1 (SIT Facility Banks' participation in SIT Facility
Guarantees or LCs) if on the date of the Utilisation Request and on the
proposed Utilisation Date:
(a) the conditions set out below have been satisfied in form and
substance satisfactory to the Off Shore Facility Agent (acting
reasonably):
(i) the proposed aggregate amount of a Loan or, as the case may
be, SIT Facility Guarantee or LC will not exceed the Available
Facility under the relevant Facility;
(ii) the Sponsors have complied with their obligations to provide
Sponsor Contributions pursuant to, and the Borrower and the
Sponsors and/or Shareholders have complied with clause 3.4.20
(Confirmation of contributions) of the Sponsors' and
Shareholders' Undertaking and Completion Guarantee;
(iii) the Contributed Capital Ratio is or as a result of such
Utilisation will be at least 0.4;
(iv) in respect of the SIT Facility, the aggregate SIT Facility
Loans and reimbursement obligations under the SIT Facility
Guarantees or LCs will not exceed an equivalent amount of Euro
20,000,000 at the exchange rate (middle rate) of Banka
Slovenije on the date of calculation on or before the proposed
Utilisation Date; and
(v) in respect of the SIT Facility, evidence that at least 50% of
the Total ECA Facility Commitments has been utilised;
(b) in respect of a proposed Utilisation by way of an issue or opening
of a SIT Facility Guarantee or LC, the form of the proposed SIT
Facility Guarantee or LC has been agreed with the Issuing Bank (in
each case acting reasonably);
(c) no Event of Default or Potential Event of Default is continuing or
would result from the proposed Loan or, as the case may be, SIT
Facility Guarantee or LC; and
- 29 -
(d) the Repeated Representations to be made by the Borrower are true in
all material respects.
4.2.2 The Banks will only be obliged to comply with Clause 6 (Loans) in relation
to a Rollover SIT Facility Loan if on the Utilisation Date:
(a) no Event of Default is continuing or would result from the Rollover
SIT Facility Loan; and
(b) the aggregate SIT Facility Loans and reimbursement obligations under
the SIT Facility Guarantees or LCs will not exceed the lesser of:
(i) an equivalent amount of Euro 20,000,000 at the exchange rate
(middle rate) of Banka Slovenije on the proposed Utilisation
Date; and
(ii) the amount to which the SIT Facility Commitment is to be
reduced in accordance with Clause 13.3 (Reduction of the SIT
Facility Commitment) on or before the proposed Utilisation
Date.
5. UTILISATION
5.1 DELIVERY OF UTILISATION REQUEST
5.1.1 The Borrower may utilise a Facility if the Off Shore Facility Agent with
regard to any Utilisation of the Euro Facility and the On Shore Facility
Agent with regard to a Utilisation of the SIT Facility receives a duly
completed Utilisation Request (together with all related documentation):
(a) with regard to a Utilisation of a Euro Facility Loan, no later than
11.00 a.m. (Dusseldorf time) five (5) Business Days (or in the case
of the first Utilisation of the Facilities, three (3) Business Days)
prior to the proposed Utilisation Date;
(b) with regard to a Utilisation of a SIT Facility Loan in an amount
exceeding SIT 500,000,000, no later than 11:00 a.m. (Ljubljana time)
five (5) Business Days (or in the case of the first Utilisation of
the Facilities, three (3) Business Days) prior to the proposed
Utilisation Date;
(c) with regard to a Utilisation of a SIT Facility Loan in an amount of
up to SIT 500,000,000, no later than 11:00 a.m. (Ljubljana time) two
(2) Business Day prior to the proposed Utilisation Date; and
(d) with regard to a SIT Facility Guarantee or LC, no later than 11:00
a.m. (Ljubljana time) five (5) Business Days (or in the case of the
first Utilisation of the Facilities, three (3) Business Days) prior
to the proposed Utilisation Date,
PROVIDED THAT if the Borrower fails to issue a Utilisation Request in
respect of a Rollover SIT Facility Loan such request shall, subject to
compliance with Clause 4.2.2(a) (Further conditions precedent to all
Utilisations) and any repayments necessary to comply with Clause 4.2.2(b),
be deemed to have been given by the Borrower to the On Shore Facility
Agent.
5.1.2 If a Utilisation Request is required to be issued pursuant to Clause 5.1.1
(Delivery of Utilisation Request) and PROVIDED THAT the Agent has received
such Utilisation Request, the Agent shall:
(a) in the case of the Euro Facility, notify each Euro Facility Bank no
later than 11:00 a.m. (Dusseldorf time) three (3) Business Days
prior to the proposed
- 30 -
Utilisation Date of the amount of the Loan and its participation in
that Loan; and
(b) in the case of the SIT Facility, notify each SIT Facility Bank no
later than 11:00 a.m. (Ljubljana time) two (2) Business Days prior
to the proposed Utilisation Date of the amount of the Loan, or as
the case may be, the face amount of the SIT Facility Guarantee or LC
and its participation therein.
5.2 COMPLETION OF A UTILISATION REQUEST
(a) Each Utilisation Request is irrevocable and will not be regarded as
having been duly completed unless:
(i) it identifies the Facility to be utilised, and:
(1) in the case of a requested Loan in respect of ECA
Facility Tranche 1, is in the form set out in Schedule
4B (Utilisation Request (Payments to Equipment Vendor)),
duly completed and executed by the Equipment Vendor and
is accompanied by the following documents that in the
reasonable opinion of the Off Shore Facility Agent are
in accordance with the "Uniform Rules for Collection,
1995 Revision, ICC Publication no. 522" (i) an original
invoice to the Borrower from the Equipment Vendor; and
(ii) in respect of a Utilisation Request completed with
reference to clause 1.10.2(b)(iii) of the Delivery
Contract a copy of a certificate executed by the
Borrower and referring to the final acceptance of the
Initial Configuration;
(2) in the case of a requested Loan in respect of ECA
Facility Tranche 2 where such Loan shall be payable to
the Equipment Vendor in reimbursement of amounts paid to
the ECA in respect of the ECA Premium, is in the form
set out in Schedule 4C (Utilisation Request (Payments to
ECA)), duly completed and executed by the Equipment
Vendor, together with an original invoice to the
Equipment Vendor from the ECA that is due and payable
pursuant to the ECA Cover Documents; and
(3) in the case of a requested Loan in respect of the
Commercial Facility or a request for a SIT Facility Loan
or SIT Facility Guarantee or LC in the form set out in
Schedule 4A (Utilisation Request (Borrower)) duly
completed and executed by the Borrower;
(ii) the proposed Utilisation Date is a Business Day within the
Availability Period applicable to that Facility;
(iii) the amount of the Utilisation:
(1) in the case of a Utilisation of the ECA Facility, is a
minimum amount of Euro 500,000 (except in the case of a
Utilisation in respect of the ECA Facility Tranche 2 or
ECA Facility Tranche 3) or in respect of the last
payment under the Delivery Contract such lesser amount
payable thereunder and relates to Eligible Expenditures;
- 31 -
(2) in the case of a Utilisation of the Commercial Facility,
is a minimum amount of Euro 3,000,000 or, if less, the
amount of Available Facility; and
(3) in the case of a Utilisation of the SIT Facility, is a
minimum amount of SIT 100,000,000 or, if less, the
amount of Available Facility;
(iv) in the case of a Loan, the proposed Interest Period complies
with Clause 10 (Interest Periods).
(b) Only one Loan or, as the case may be, SIT Facility Guarantee or LC
may be requested in each Utilisation Request.
(c) Each Utilisation Request shall be accompanied by the documentation
and evidence as required by such Utilisation Request, in form and
substance satisfactory to the Off Shore Facility Agent (acting
reasonably) and, in the case of a Utilisation Request for the SIT
Facility, the On Shore Facility Agent (acting reasonably).
5.3 AUTHORISATION
The Off Shore Facility Agent is irrevocably authorised and instructed by
the Borrower:
(a) in respect of a Utilisation Request received pursuant to:
(i) Clause 5.2(a)(i)(1) (Completion of a Utilisation Request) in
relation to a loan in respect of ECA Facility Tranche 1; or
(ii) Clause 5.2(a)(i)(2) (Completion of a Utilisation Request) in
relation to a Loan in respect of ECA Facility Tranche 2 where
such Loan shall be payable to the Equipment Vendor in
reimbursement of amounts paid to the ECA in respect of the ECA
Premium,
pay the proceeds of each such Loan to, or into an account designated
by, the Equipment Vendor;
(b) in respect of an amount payable:
(i) to the ECA in respect of the ECA Premium for which the Off
Shore Facility Agent has been invoiced by the ECA and in
respect of which a reimbursement is not payable to the
Equipment Vendor; or
(ii) under ECA Facility Tranche 3, in respect of the payment of
interest on the ECA Facility during the Availability Period,
to make Loans at such times and in such manner for the payment of
such amounts and pay the proceeds of such Loans to:
(1) in the case of the ECA Premium, directly to the ECA; and
(2) in the case of the payment of interest on the ECA Facility
directly to the Off Shore Facility Agent for the account of
the Euro Facility Banks.
Notwithstanding that the Borrower does not issue any Utilisation Request
in respect of such payments, the Borrower acknowledges that such payments
made by the Off Shore Facility Agent constitute Loans under this
Agreement. The Off Shore Facility Agent
- 32 -
will promptly notify the Borrower of the details of any Loans made under
the ECA Facility.
6. LOANS
6.1 EURO FACILITY BANKS' PARTICIPATION IN EURO FACILITY LOANS
(a) If the conditions set out in this Agreement have been met, each Euro
Facility Bank shall make its participation in each Euro Facility
Loan available by the Utilisation Date through its Facility Office
to the account designated for such purpose by the Off Shore Facility
Agent to the other Finance Parties.
(b) The amount of each Euro Facility Bank's participation in each Euro
Facility Loan will be equal to the proportion borne by its Available
Commitment to such Available Facility immediately prior to making
the Euro Facility Loan.
6.2 SIT FACILITY BANKS' PARTICIPATION IN SIT FACILITY LOANS
(a) If the conditions set out in this Agreement have been met, each SIT
Facility Bank shall make its participation in each SIT Facility Loan
available by the Utilisation Date through its Facility Office to the
account designated for such purpose by the On Shore Facility Agent
to the other Finance Parties.
(b) The amount of each SIT Facility Bank's participation in each SIT
Facility Loan will be equal to the proportion borne by its Available
Commitment to such Available Facility immediately prior to making
the SIT Facility Loan.
6.3 REVALUATION OF SIT FACILITY LOANS
On the first day of each calendar month ("XXX DETERMINATION DATE"), the
principal amount of the SIT Facility Loans outstanding shall be adjusted
for inflation by the On Shore Facility Agent applying the then current
rate of XXX in accordance with the applicable resolutions relating thereto
and the On Shore Facility Agent's standard procedures and advise the
Borrower and the SIT Facility Banks of any adjustments to the principal
amount of the SIT Facility Loans outstanding for that month. The Borrower
shall repay to the SIT Facility Banks the amount of such adjustment (if
any) on the 8th Business Day of the calendar month immediately following
the calendar month in which the XXX Determination Date occurred.
7. GUARANTEES AND LETTERS OF CREDIT
7.1 SIT FACILITY BANKS' PARTICIPATION IN SIT FACILITY GUARANTEES OR LCS
If the conditions set out in this Agreement have been met, on the
Utilisation Date on which a SIT Facility Guarantee or LC is to be issued
or opened, the Borrower and each SIT Facility Bank hereby authorises the
Issuing Bank to issue or open such SIT Facility Guarantee or LC on behalf
of the SIT Facility Banks by completing the issue or opening date and
executing and delivering such SIT Facility Guarantee or LC to the
Beneficiary so that each SIT Facility Bank shall be liable for its
relevant SIT Facility Guarantee or LC Percentage of each claim thereunder
PROVIDED THAT no SIT Facility Bank's liability to the Issuing Bank will
exceed its Available Commitment.
7.2 SIT FACILITY GUARANTEE AND LC FEES
The Borrower shall pay to the On Shore Facility Agent for the benefit of
each SIT Facility Bank a fee equivalent to the SIT Facility Applicable
Margin calculated on that SIT Facility Bank's exposure under each SIT
Facility Guarantee or LC outstanding from time to time and pay such fee at
the times required for the payment of interest under the SIT Facility
Loans in accordance with Clause 9.4 (Payment of interest).
- 33 -
SECTION 4
SIT FACILITY GUARANTEES AND LETTERS OF CREDIT
8. SIT FACILITY GUARANTEES AND LETTERS OF CREDIT
8.1 NOTIFICATION OF DEMAND
If, at any time, a demand for payment (the amount so demanded being herein
referred to as the "AMOUNT DEMANDED") is made by a Beneficiary to the
Issuing Bank under any SIT Facility Guarantee or LC, the Issuing Bank
shall notify the Borrower of such demand and provide to the Borrower a
copy of such demand promptly and in any event by 5:00 p.m. (Ljubljana
time) on the Business Day following receipt by the Issuing Bank of the
demand from the Beneficiary.
8.2 DEMAND ON SIT FACILITY BANKS
The Issuing Bank shall (at the same time as notifying the Borrower
pursuant to Clause 8.1 (Notification of demand)) make demand of each SIT
Facility Bank for an amount equal to its relevant SIT Facility Guarantee
or LC Percentage of the Amount Demanded, whereupon each SIT Facility Bank
shall pay to the Issuing Bank promptly upon receipt of a demand made on it
by the Issuing Bank, and in any event no later than 11.00 a.m. (Ljubljana
time) on the second Business Day following receipt of the demand, the
amount so demanded by the Issuing Bank.
8.3 PAYMENT TO BENEFICIARIES
8.3.1 Upon receipt of all or any of the Amount Demanded pursuant to Clause 8.2
(Demand on SIT Facility Banks), the Issuing Bank shall pay the relevant
amount to each Beneficiary in accordance with the terms of the relevant
SIT Facility Guarantee or LC.
8.3.2 Any payment by the Issuing Bank of the Amount Demanded made pursuant to
Clause 8.3 (Payment to Beneficiaries) shall be deemed to be a SIT Facility
Loan made to the Borrower by the SIT Facility Banks in an amount equal to
the Amount Demanded PROVIDED THAT the provisions of Clause 4.2.1 (Further
conditions precedent to all Utilisations) will not apply to such
Utilisation.
8.3.3 The Utilisation Date of any SIT Facility Loan made under Clause 8.3.2
(Payment to Beneficiaries) will be the date of payment of the Amount
Demanded by the Issuing Bank under Clause 8.3.1 (Payment to
Beneficiaries).
8.4 INDEMNIFICATION
The Borrower hereby irrevocably and unconditionally agrees to indemnify
and keep indemnified each SIT Facility Bank against each and every sum
paid or payable by any such SIT Facility Bank under any SIT Facility
Guarantee or LC and against all liabilities, costs, claims, losses,
damages and expenses which each SIT Facility Bank may at any time incur or
sustain in connection with or arising out of any third party actions or
proceedings relating to such SIT Facility Guarantee or LC.
8.5 PAYMENTS UNDER THE SIT FACILITY GUARANTEES OR LCS
The Issuing Bank and each SIT Facility Bank shall be entitled to make any
payment under any SIT Facility Guarantee or LC for which a demand in the
manner required by such SIT Facility Guarantee or LC has been made without
any reference to or further authority from the Borrower or any other
investigation or enquiry, need not concern themselves with the propriety
of any demand made under and in the manner required by the terms of such
SIT Facility Guarantee or LC and shall be entitled to assume that any
person expressed in such SIT Facility Guarantee or LC or in any notice
served pursuant to such SIT Facility Guarantee or LC to be entitled to
make demand is so entitled and that such person is duly authorised to do
so; accordingly, it shall not be a defence to any demand made of the
Borrower, nor shall the Borrower's obligations hereunder be
- 34 -
impaired by the fact (if it be the case), that any SIT Facility Bank or
the Issuing Bank was or might have been justified in refusing payment, in
whole or in part, of the amounts so demanded.
8.6 ACTS OR OMISSIONS
The obligations of the Borrower to the Issuing Bank and each SIT Facility
Bank under this Clause 8.6 shall not be discharged, lessened or impaired
by any act, omission or circumstance whatsoever which, but for this
provision, might operate to release or exonerate the Borrower from all or
part of such obligations or in any other way discharge, lessen or impair
the same.
8.7 CONCLUSIVE CERTIFICATE
A certificate of the Issuing Bank as to the amount paid out by the Issuing
Bank or any SIT Facility Bank under any SIT Facility Guarantee or LC
shall, save for manifest error, be conclusive and binding upon the
Borrower for the purposes of this Agreement and prima facie evidence of
the payment of such amounts in any legal action or proceedings arising in
connection therewith.
8.8 CASH COLLATERAL
In respect of any SIT Facility Guarantee or LC which has a date of expiry
after the Termination Date, the Borrower shall at least five (5) Business
Days before the Termination Date procure that the Issuing Bank's and SIT
Facility Banks' actual or contingent obligations in relation to each SIT
Facility Guarantee or LC are cancelled or discharged in full or provide
100% cash cover to the satisfaction of the Issuing Bank and the SIT
Facility Banks together with an authorisation from the Borrower (in form
and substance satisfactory to the Issuing Bank) to the Issuing Bank
permitting such cash cover to be set off against any liability of the
Issuing Bank and the SIT Facility Banks under such SIT Facility Guarantee
or LC.
- 35 -
SECTION 5
COSTS OF UTILISATION
9. INTEREST ON LOANS
9.1 CALCULATION OF FLOATING RATE INTEREST UNDER THE ECA FACILITY
The rate of interest on each ECA Facility Loan for each Interest Period is
the percentage rate per annum which is the aggregate of the applicable:
(a) EURIBOR;
(b) a margin (the "ECA FACILITY APPLICABLE MARGIN") in an amount of,
initially, 1.25% per annum and thereafter the rate per annum set out
in the column headed "Margin (% p.a.)" opposite the relevant
Population Coverage (set out in the same line in the column headed
"Population Coverage") and subject to the achievement of the
relevant financial performance tests (set out in the same line in
the column headed "Financial Performance") in the table below, in
each case as at the end of the most recently ended Quarter:
POPULATION MARGIN
COVERAGE FINANCIAL PERFORMANCE (% P.A.)
---------- --------------------- -------
75% EBITDA for the immediately preceding two (2) 1.10
Quarters does not negatively deviate by more
than 10% from the EBITDA in the Initial
Business Plan.
80% EBITDA for the immediately preceding two (2) 1.00
Quarters does not negatively deviate by more
than 10% from the EBITDA in the Initial
Business Plan.
87% Total Leverage Ratio greater than 6.00. 0.90
87% Total Leverage Ratio less than or equal to 0.80
6.00 and greater than 5.00.
87% Total Leverage Ratio less than or equal to 0.70
5.00 and greater than 4.00.
87% Total Leverage Ratio less than or equal to 0.60
4.00 and greater than 3.00.
87% Total Leverage Ratio less than or equal to 0.50
3.00 and greater than 2.00.
87% Total Leverage Ratio less than or equal to 0.40
2.00.
PROVIDED THAT:
(i) any change to the ECA Facility Applicable Margin shall take
place from the immediately following Euro Facility Interest
Payment Date (the "ECA FACILITY APPLICABLE MARGIN ADJUSTMENT
DATE") (subject to Clause 9.1(b)(iii)) if:
(1) the Borrower has requested a reduction in the Applicable
Margin in the Covenant Compliance Certificate at least
15 Business Days prior to such Euro Facility Interest
Payment Date or the Off Shore Facility Agent has
notified the Borrower, based on the information referred
to in (2) below, that there will be an increase in the
Applicable Margin in accordance with the above
provisions of this paragraph (b);
- 36 -
(2) the Off Shore Facility Agent has confirmed the
satisfaction of the above conditions relating to
financial performance of the Borrower on the basis of
the most recent information required to be provided by
the Borrower pursuant to Clauses 21.1(a) and (c)
(Financial statements and other information) and Clause
21.3 (Covenant Compliance Certificate);
(3) no Event of Default or Potential Event of Default is
continuing; and
(4) the Off Shore Facility Agent has confirmed the
satisfaction of the above conditions relating to
Population Coverage (on receipt of confirmation of such
Population Coverage from the Independent Technical
Consultant) or such confirmation has not been received
by the date upon which the Borrower would be entitled to
a change in the ECA Facility Applicable Margin (had such
confirmation been received);
(ii) if the Off Shore Facility Agent has not received the
information required to be provided by the Borrower pursuant
to Clauses 21.1(a) and (c) (Financial statements and other
information) and Clause 21.3 (Covenant Compliance Certificate)
in respect of the relevant period by its due date for delivery
pursuant to this Agreement, the Applicable Margin will be
1.25% per annum from that date until such time as the Borrower
satisfies the conditions set out in this paragraph (b) and is
in compliance with its obligations under Clause 21 (Reporting
requirements);
(iii) if after an ECA Facility Applicable Margin Adjustment Date the
Independent Technical Consultant is of the opinion that the
above conditions relating to Population Coverage have not been
satisfied but the ECA Facility Applicable Margin has been
changed by the Off Shore Facility Agent the ECA Facility
Applicable Margin shall be readjusted to the applicable level
in accordance with the above provisions of this paragraph (b)
for the entire Interest Period from such ECA Facility
Applicable Margin Adjustment Date.
9.2 CALCULATION OF FLOATING RATE INTEREST UNDER THE COMMERCIAL FACILITY
The rate of interest on each Commercial Facility Loan for each Interest
Period is the percentage rate per annum which is the aggregate of the
applicable:
(a) EURIBOR;
(b) a margin (the "COMMERCIAL FACILITY APPLICABLE MARGIN") in an amount
of, initially, 3.25% per annum and thereafter the rate per annum set
out in the column headed "Margin (% p.a.)" opposite the relevant
Population Coverage (set out in the same line in the column headed
"Population Coverage") and subject to the achievement of the
relevant financial performance tests (set out in the same line in
the column headed "Financial Performance") in the table below, in
each case as at the end of the most recently ended Quarter:
- 37 -
POPULATION COVERAGE FINANCIAL PERFORMANCE MARGIN (% P.A.)
------------------- --------------------- ---------------
75% EBITDA for the immediately preceding two (2) 2.50
Quarters does not negatively deviate by more
than 10% from the
EBITDA in the Initial Business Plan.
80% EBITDA for the immediately preceding two (2) 2.25
Quarters does not negatively deviate by more
than 10% from the EBITDA in the Initial
Business Plan.
87% Total Leverage Ratio greater than 6.00 or 2.25
EBITDA for the immediately preceding two (2)
Quarters is negative.
87% Total Leverage Ratio less than or equal to 2.00
6.00 and greater than 5.00.
87% Total Leverage Ratio less than or equal to 1.50
5.00 and greater than 4.00.
87% Total Leverage Ratio less than or equal to 1.25
4.00 and greater than 3.00.
87% Total Leverage Ratio less than or equal to 1.00
3.00 and greater than 2.00.
87% Total Leverage Ratio less than or equal to 0.75
2.00.
PROVIDED THAT:
(i) any change to the Commercial Facility Applicable Margin shall
take place from the immediately following Euro Facility
Interest Payment Date (the "COMMERCIAL FACILITY APPLICABLE
MARGIN ADJUSTMENT DATE") (subject to Clause 9.2(b)(iii)) if:
(1) the Borrower has requested a reduction in the Applicable
Margin in the Covenant Compliance Certificate at least
15 Business Days prior to such Euro Facility Interest
Payment Date or the Off Shore Facility Agent has
notified the Borrower, based on the information referred
to in (2) below, that there will be an increase in the
Applicable Margin in accordance with the above
provisions of this paragraph (b);
(2) the Off Shore Facility Agent has confirmed the
satisfaction of the above conditions relating to
financial performance of the Borrower on the basis of
the most recent information required to be provided by
the Borrower pursuant to Clauses 21.1(a) and (c)
(Financial statements and other information) and Clause
21.3 (Covenant Compliance Certificate);
(3) no Event of Default or Potential Event of Default is
continuing; and
(4) the Off Shore Facility Agent has confirmed the
satisfaction of the above conditions relating to
Population Coverage (on receipt of confirmation of such
Population Coverage from the Independent Technical
Consultant) or such confirmation has not been received
by the date upon which the Borrower would be entitled to
a change in the Commercial Facility Applicable Margin
(had such confirmation been received);
(ii) if the Off Shore Facility Agent has not received the
information required to be provided by the Borrower pursuant
to Clauses 21.1(a)
- 38 -
and (c) (Financial statements and other information) and
Clause 21.3 (Covenant Compliance Certificate) in respect of
the relevant period by its due date for delivery pursuant to
this Agreement, the Applicable Margin will be 3.25% per annum
from that date until such time as the Borrower satisfies the
conditions set out in this paragraph (b) and is in compliance
with its obligations under Clause 21 (Reporting requirements);
(iii) if after a Commercial Facility Applicable Margin Adjustment
Date the Independent Technical Consultant is of the opinion
that the above conditions relating to Population Coverage have
not been satisfied but the Commercial Facility Applicable
Margin has been changed by the Off Shore Facility Agent, the
Commercial Facility Applicable Margin shall be readjusted to
the applicable level in accordance with the above provisions
of this paragraph (b) for the entire Interest Period from such
Commercial Facility Applicable Margin Adjustment Date.
9.3 CALCULATION OF FLOATING RATE INTEREST UNDER THE SIT FACILITY
9.3.1 The rate of interest on each SIT Facility Loan for each Interest Period is
the aggregate sum of:
(a) the Reference Interest Rate; and
(b) a margin (the "SIT FACILITY APPLICABLE MARGIN") in an amount of,
initially, 1.50% per annum and thereafter the rate per annum set out
in the column headed "Margin (% p.a.)" subject to the achievement,
as at the end of the most recently ended Quarter, of the relevant
financial performance tests set out in the same line in the column
headed "Financial Performance" in the table below:
FINANCIAL PERFORMANCE MARGIN (% P.A.)
--------------------- ---------------
Total Leverage Ratio greater than 4.00 or EBITDA for 1.50
the immediately preceding two (2) Quarters is negative
Total Leverage Ratio less than or equal to 4.00 and 1.25
greater than 2.00
Total Leverage Ratio less than or equal to 2.00 1.00
PROVIDED THAT:
(i) any change to the SIT Facility Applicable Margin shall take
place from the first day of the immediately following Interest
Period if:
(1) the Borrower has requested a reduction in the Applicable
Margin in the Covenant Compliance Certificate at least
15 Business Days prior to such Interest Period or the
Off Shore Facility Agent has notified the Borrower,
based on the information referred to in (2) below, that
there will be an increase in the Applicable Margin in
accordance with the above provisions of this paragraph
(b);
(2) the On Shore Facility Agent has confirmed the
satisfaction of the above conditions relating to
financial performance of the Borrower on the basis of
the most recent information required to be provided by
the Borrower pursuant to Clauses 21.1(a) and
- 39 -
(c) (Financial statements and other information) and
Clause 21.3 (Covenant Compliance Certificate); and
(3) no Event of Default or Potential Event of Default is
continuing;
(ii) if the On Shore Facility Agent has not received the
information required to be provided by the Borrower pursuant
to Clauses 21.1(a) and (c) (Financial statements and other
information) and Clause 21.3 (Covenant Compliance Certificate)
in respect of the relevant period by its due date for delivery
pursuant to this Agreement, the Applicable Margin will be
1.50% per annum from that date until such time as the Borrower
satisfies the conditions set out in this paragraph (b) and is
in compliance with its obligations under Clause 21 (Reporting
requirements).
9.4 PAYMENT OF INTEREST
9.4.1 The Borrower shall pay accrued interest on each Euro Facility Loan on each
Euro Facility Interest Payment Date.
9.4.2 The Borrower shall pay on each SIT Facility Loan interest accrued in
respect of an Interest Period on the 8th Business Day of the calendar
month immediately following the calendar month in which the last day of
that Interest Period (a "SIT FACILITY INTEREST PAYMENT DATE") occurred.
9.5 DEFAULT INTEREST
9.5.1 If the Borrower fails to pay any amount (other than interest) payable by
it hereunder on its due date, interest will accrue on the overdue amount
from the due date up to the date of actual payment at a rate of 2 per
cent. per annum above:
(a) in relation to an amount becoming due and payable before expiration
of the Interest Period applicable thereto, for the period until the
expiration of such Interest Period the rate applicable to such
overdue amount immediately prior to the due date; and
(b) in all other cases, the interest rate on the most recent Quotation
Day for such periods as the Agent may designate, PROVIDED THAT such
Interest Period will not exceed three (3) months,
All interest accrued hereunder shall be paid at the end of each month.
9.5.2 If the Borrower fails to pay any interest payable by it hereunder on its
due date, it will make, at the time of payment of all arrears of interest
and in any event on a monthly basis, a lump sum payment for all arrears of
interest in the amount of 2 per cent. above, in the case of the Euro
Facility, EURIBOR for such periods as the Agent may designate or, in the
case of the SIT Facility, SMOM applicable to an interest period of one (1)
month.
9.5.3 The rights of the Banks to compensation for any loss (in addition to those
set out in Clauses 9.5.1 and 9.5.2) arising from the default remain
unaffected.
9.5.4 The Agent will promptly notify the Borrower and the Banks of the
determination of any default interest. Each determination by the Agent
will, in the absence of a manifest error, be conclusive and binding on the
Borrower and the Banks.
- 40 -
9.6 NOTIFICATION OF INTEREST RATES
The Off Shore Facility Agent shall promptly notify the relevant Banks and
the Borrower of the determination of a rate of interest in respect of the
ECA Facility or the Commercial Facility and the On Shore Facility Agent
shall promptly notify the Off Shore Facility Agent, the relevant Banks and
the Borrower of the determination of a rate of interest in respect of the
SIT Facility.
10. INTEREST PERIODS
10.1 INTEREST PERIODS FOR THE EURO FACILITY LOANS
(a) The first Interest Period for the first Euro Facility Loan shall
begin on the Utilisation Date therefor and shall end on the last day
of the calendar month in which such Utilisation is made. The first
Interest Period for any subsequent Euro Facility Loan shall begin on
the Utilisation Date therefor and shall end on the last day of the
then applicable Interest Period relating to the first Euro Facility
Loan.
(b) The Borrower may select an Interest Period for a Loan under the Euro
Facility in a Selection Notice.
(c) Each Selection Notice for a Loan under the Euro Facility is
irrevocable and must be delivered to the Off Shore Facility Agent by
the Borrower no later than 11.00 a.m. (Dusseldorf time) five (5)
Business Days prior to the first day of the relevant Interest
Period. Upon receipt of a Selection Notice from the Borrower the Off
Shore Facility Agent shall notify each Euro Facility Bank no later
than 11.00 a.m. (Dusseldorf time) three (3) Business Days prior to
the first day of the relevant Interest Period.
(d) If the Borrower fails to deliver a Selection Notice to the Off Shore
Facility Agent in accordance with paragraph (c) above, the relevant
Interest Period will be three (3) Months and the Off Shore Facility
Agent shall notify each Euro Facility Bank accordingly.
(e) Subject to this Clause 10, the Borrower may select an Interest
Period of 3, 6 or 12 Months or any other period agreed between the
Borrower and the Off Shore Facility Agent (acting on the
instructions of all Euro Facility Banks) PROVIDED THAT the Borrower
shall select Interest Periods to ensure that the Interest Period
immediately preceding a Repayment Date under the Euro Facility ends
on such Repayment Date.
10.2 INTEREST PERIODS FOR THE SIT FACILITY LOANS
(a) Each Interest Period under the SIT Facility, other than the first
Interest Period for each SIT Facility Loan, shall begin on the first
day and end on the last day of each calendar month.
(b) The first Interest Period for each Loan under the SIT Facility shall
begin on the Utilisation Date of a SIT Facility Loan and end on the
last day of the calendar month during which the drawdown occurred.
10.3 DURATION OF INTEREST PERIODS An Interest Period for a Loan shall not
extend beyond the Termination Date.
10.4 NON-BUSINESS DAYS Except as provided in Clause 10.2 (Interest Periods for
the SIT Facility Loans), if an Interest Period would otherwise end on a
day which is not a Business Day, that Interest
- 41 -
Period will instead end on the next Business Day in that calendar month
(if there is one) or the preceding Business Day (if there is not).
10.5 CONSOLIDATION
If two or more Interest Periods relate to a Loan in the same currency and
end on the same date those Loans will, unless the Borrower specifies to
the contrary, be consolidated into, and treated as, a single Loan on the
last day of the Interest Period.
11. CHANGES TO THE CALCULATION OF INTEREST
11.1 ABSENCE OF QUOTATIONS
Subject to Clause 11.2 (Market disruption), if EURIBOR is to be determined
by reference to the Reference Banks but a Reference Bank does not supply a
quotation by 11:00 a.m. (Brussels Time) on the Quotation Day, the
applicable EURIBOR shall be determined on the basis of the quotations of
the remaining Reference Banks.
11.2 MARKET DISRUPTION
(a) If a Market Disruption Event occurs in relation to a Euro Facility
Loan for any Interest Period, then the rate of interest on each Euro
Facility Bank's share of that Euro Facility Loan for the Interest
Period shall be the rate per annum which is the sum of:
(i) the Applicable Margin; and
(ii) the rate notified to the Off Shore Facility Agent by that Bank
as soon as practicable and in any event before interest is due
to be paid in respect of that Interest Period, to be that
which expresses as a percentage rate per annum the cost to
that Euro Facility Bank of funding its participation in that
Euro Facility Loan from whatever source it may reasonably
select.
(b) The Off Shore Facility Agent shall, upon becoming aware of a Market
Disruption Event, notify the Borrower thereof.
(c) In this Agreement "MARKET DISRUPTION EVENT" means:
(i) at or about noon on the Quotation Day for the relevant
Interest Period the Screen Rate is not available and none or
only one of the Reference Banks supplies a rate to the Off
Shore Facility Agent to determine EURIBOR for the relevant
currency and Interest Period; or
(ii) before close of business in Dusseldorf on the Quotation Day
for the relevant Interest Period, the Off Shore Facility Agent
receives notifications from a Euro Facility Bank or Euro
Facility Banks (whose participations in a Euro Facility Loan
in aggregate exceed 66 2/3 per cent. of that Euro Facility
Loan) that the cost to it of obtaining matching deposits in
the European Interbank Market would be in excess of EURIBOR.
11.3 ALTERNATIVE BASIS OF INTEREST OR FUNDING
(a) If a Market Disruption Event occurs and the Off Shore Facility Agent or
the Borrower so requires, the Off Shore Facility Agent and the Borrower
shall enter into negotiations (for a period of not more than thirty days)
with a view to agreeing a substitute basis for determining the rate of
interest.
- 42 -
(b) Any alternative basis agreed pursuant to paragraph (a) above shall,
with the prior consent of all the Euro Facility Banks and the
Borrower, be binding on all Parties.
11.4 BREAK COSTS
(a) The Borrower shall, within three (3) Business Days of demand by a
Finance Party, pay to that Finance Party its Break Costs
attributable to all or any part of a Loan or Unpaid Sum being paid
by that Borrower on a day other than the last day of an Interest
Period for that Loan or Unpaid Sum.
(b) Each Bank shall, as soon as reasonably practicable after a demand by
the Off Shore Facility Agent, provide a certificate confirming the
amount of its Break Costs for any Interest Period in which they
accrue.
12. FEES
12.1 COMMITMENT FEES
(a) The Borrower shall pay to the Off Shore Facility Agent (for the
account of each Euro Facility Bank) a fee computed at the rate of:
(i) 0.75% per annum on each Bank's Available Commitment under the
Euro Facility until 75% of the ECA Facility Commitment and the
Commercial Facility Commitment has been disbursed; and
(ii) thereafter 0.50% per annum on that Bank's Available Commitment
under the Euro Facility for the Availability Period applicable
to the Euro Facility.
(b) The Borrower shall pay to the On Shore Facility Agent (for the
account of each SIT Facility Bank) a fee computed at the rate of
0.10% per annum on the Available Commitment under the SIT Facility.
(c) The fees under paragraphs (a) and (b) above shall be payable
quarterly in arrears from the date of execution of this Agreement.
12.2 UNDERWRITING FEE
The Borrower shall pay to the Off Shore Facility Agent (for the account of
each of the Arrangers) within ten (10) Business Days after execution of
this Agreement an underwriting fee as set out in a Fee Letter.
12.3 ON SHORE SECURITY AGENT FEE
The Borrower shall pay to the On Shore Security Agent for its services an
annual fee as set out in a Fee Letter.
12.4 SIT FACILITY GUARANTEE OR LC ISSUANCE FEES
The Borrower shall pay to the Issuing Bank for its own account a fronting
fee, at the rates set out in the Fee Letter and payable at the times and
in the manner set forth therein.
12.5 ECA PREMIUM
The Borrower shall pay or reimburse the Off Shore Facility Agent and/or
the Equipment Vendor for payment of any ECA Premium to the ECA.
- 43 -
12.6 PROCEEDS AND REVENUE ACCOUNT #2
The Borrower shall pay to Hypo Alpe-Adria-Bank d.d., for its own account,
fees in relation to the opening and handling of the Proceeds and Revenue
Account #2 as set out in the Fee Letter and payable at the times and in
the manner set forth therein.
- 44 -
SECTION 6
REPAYMENT
13. REPAYMENT
13.1 REPAYMENT OF THE EURO FACILITY LOANS
13.1.1 Each Euro Facility Loan shall be repaid on the dates and in the amounts
which correspond to the percentage rates set out in Schedule 2 (Repayment
dates).
13.1.2 The Borrower may not re-borrow any part of a Euro Facility Loan which is
repaid.
13.2 REPAYMENT OF THE SIT FACILITY LOANS
Each SIT Facility Loan shall be repaid on the last day of its Interest
Period PROVIDED THAT if the conditions set out in Clause 4.2.2 (Further
conditions precedent to all Utilisations) are satisfied or the proviso in
Clause 5.1.1 (Delivery of Utilisation Request) applies the Borrower may
refinance any outstanding SIT Facility Loans with SIT Facility Rollover
Loans.
13.3 REDUCTION OF THE SIT FACILITY COMMITMENT
The SIT Facility Commitment shall be reduced on the dates and in the
amounts which correspond to the percentage rates set out in Schedule 2
(Repayment Dates).
- 45 -
SECTION 7
PREPAYMENT AND CANCELLATION
14. PREPAYMENT AND CANCELLATION
14.1 ILLEGALITY
If it becomes unlawful in any applicable jurisdiction for a Bank to
perform any of its obligations as contemplated by this Agreement:
(a) that Bank shall promptly notify the Off Shore Facility Agent upon
becoming aware of that event;
(b) the Off Shore Facility Agent shall, upon becoming aware of the same,
notify the Borrower thereof;
(c) upon the Off Shore Facility Agent notifying the Borrower and if
necessary the On Shore Facility Agent, the Commitment of that Bank
will be immediately cancelled;
(d) the Borrower shall repay that Bank's participation in the Loans made
to the Borrower on the last day of the Interest Period for each Loan
occurring after the Off Shore Facility Agent has notified the
Borrower or, if earlier, the date specified by the Bank in the
notice delivered to the Off Shore Facility Agent (being no earlier
than the last day of any applicable grace period permitted by law);
and
(e) if such Bank is the Issuing Bank or a SIT Facility Bank guaranteeing
the Issuing Bank, the Borrower shall procure that the Issuing Bank's
or SIT Facility Bank's actual or contingent obligations in relation
to each SIT Facility Guarantee or LC are cancelled or discharged in
full or within 30 days from the date of the notification mentioned
in (d) above provide 100% cash cover to the satisfaction of the
Issuing Bank and the SIT Facility Banks together with an
authorisation from the Borrower (in form and substance satisfactory
to the Issuing Bank, acting reasonably) to the Issuing Bank
permitting such cash cover to be set off against any liability of
the Issuing Bank and the SIT Facility Banks under such SIT Facility
Guarantee or LC.
14.2 CHANGE OF CONTROL, WITHDRAWAL OF THE LICENCE AND ABANDONMENT OF THE
PROJECT
If:
(a) Western Wireless International Corporation's direct or indirect
shareholding in the Borrower at any time falls below 80% of the
Share Capital without the prior written consent of the Majority
Banks;
(b) there is a Withdrawal of the Licence; or
(c) there is an Abandonment of the Project,
then:
(i) the Borrower shall promptly notify the Off Shore Facility
Agent upon becoming aware of that event;
(ii) the Borrower shall not request a Utilisation (except for a
Rollover SIT Facility Loan) unless otherwise agreed by the
Majority Banks;
- 46 -
(iii) the Off Shore Facility Agent may (acting on the instructions
of the Majority Banks), by not less than 30 days notice to the
Borrower, declare all outstanding Loans, together with accrued
interest, and all other amounts accrued under the Finance
Documents immediately due and payable;
(iv) the Off Shore Facility Agent may (acting on the instructions
of the Majority Banks), instruct each Bank to cancel its
Available Commitment; and
(v) the Borrower shall procure that the Issuing Bank's actual or
contingent obligations in relation to each SIT Facility
Guarantee or LC are cancelled or discharged in full or within
30 days from the date of the declaration mentioned in (iii)
above provide 100% cash cover to the satisfaction of the
Issuing Bank and the SIT Facility Banks together with an
authorisation from the Borrower (in form and substance
satisfactory to the Issuing Bank, acting reasonably) to the
Issuing Bank permitting such cash cover to be set off against
any liability of the Issuing Bank and the SIT Facility Banks
under such SIT Facility Guarantee or LC.
14.3 CANCELLATION BY THE BORROWER
The Borrower may, if it gives the Off Shore Facility Agent and, in
respect of a cancellation of the SIT Facility Commitment, the On Shore
Facility Agent not less than five (5) Business Days' prior notice and has
satisfied the Off Shore Facility Agent (acting reasonably) that it has
sufficient funds to pay all relevant Project Costs, cancel the whole or
any part (being a minimum amount of Euro 1,000,000 or the equivalent
amount in SIT at the exchange rate (middle rate) of Banka Slovenije on
the relevant calculation date) of an Available Facility in respect of the
SIT Facility or the Commercial Facility. Subject to Clause 14.6.1 (Right
of repayment and cancellation in relation to a single Bank), the Borrower
may only cancel any part of an Available Facility in respect of the ECA
Facility with the prior written consent of the ECA, the Equipment Vendor
and the Off Shore Facility Agent. Any cancellation under this Clause 14.3
shall reduce the Commitments of the Banks rateably under that Facility.
14.4 VOLUNTARY PREPAYMENT OF EURO FACILITY LOANS
In addition to the Borrower's rights set forth in Clause 14.6 (Right of
repayment and cancellation in relation to a single Bank) the Borrower
may, after the end of the Availability Period and if it gives the Off
Shore Facility Agent not less than five (5) Business Days' (or such
shorter period as the Majority Banks may agree) prior notice, prepay any
part of any ECA Facility Loan and any Commercial Facility Loan in minimum
amounts of Euro 1,000,000.
14.5 MANDATORY PREPAYMENTS
14.5.1 The Borrower shall:
(a) on the immediately following Interest Payment Date, apply all
proceeds of sale or exchange of any assets required to be repaid in
accordance with Clause 23.5 (Sale Proceeds Account);
(b) on the immediately following Interest Payment Date, apply proceeds
of insurance policies required to be prepaid in accordance with
Clause 23.4 (Insurance Proceeds Account);
- 47 -
(c) on the last Interest Payment Date of each Quarter of the Borrower
apply 50% of the Excess Cash Flow; and
(d) on the last Interest Payment Date of each Quarter, apply all amounts
that have been standing to the credit of the Capital Expenditure
Reserve Account for a period of more than twelve (12) months,
towards the mandatory prepayment of the Euro Facility Loans and the
Lucent Loan Agreement and, at the option of the On Shore Facility Agent,
a reduction of the SIT Facility Commitments.
14.5.2 Prepayments under Clause 14.5.1 (Mandatory prepayments) will be applied
in an inverse order of maturity to the amounts outstanding under the Euro
Facility Loans and the Lucent Loan Agreement, and, if the On Shore
Facility Agent has requested reduction of the SIT Facility Commitments or
prepayment of SIT Facility Loans, under the SIT Facility pro rata across
the relevant Facilities. If the On Shore Facility Agent elects such
reduction in the SIT Facility Commitments, the Available Commitment in
respect of the SIT Facility shall be cancelled by the amount which is
applied in reduction thereof.
14.6 RIGHT OF REPAYMENT AND CANCELLATION IN RELATION TO A SINGLE BANK
14.6.1 If:
(a) any sum payable to any Bank by the Borrower is required to be
increased under Clause 15.2(c) (Tax gross-up); or
(b) any Bank claims indemnification from the Borrower under Clause 15.3
(Tax indemnity) or Clause 16.1 (Increased Costs);
and the steps, if any, taken by the relevant Finance Party in accordance
with Clause 18 (Mitigation by the Banks) have not successfully mitigated
the circumstance giving rise to the requirement or indemnification, the
Borrower may, whilst the circumstance giving rise to the requirement or
indemnification continues, give the Agent notice of cancellation of the
Commitment of that Bank and its intention to procure the repayment of
that Bank's participation in the Loans.
14.6.2 On receipt of a notice referred to in Clause 14.6.1(a) (Right of
repayment and cancellation in relation to a single Bank), the Commitment
of that Bank shall immediately be reduced to zero.
14.6.3 On the last day of each Interest Period which ends after the Borrower has
given notice under Clause 14.6.1(a) (Right of repayment and cancellation
in relation to a single Bank) (or, if earlier, the date specified by the
Borrower in that notice), the Borrower shall repay that Bank's
participation in the Loans.
14.7 RESTRICTIONS
14.7.1 Any notice of cancellation or prepayment given by any Party under this
Clause 14 shall be irrevocable and, unless a contrary indication appears
in this Agreement, shall specify the date or dates upon which the
relevant cancellation or prepayment is to be made and the amount of that
cancellation or prepayment.
14.7.2 Any prepayment under this Agreement shall be made together with accrued
interest on the amount prepaid and, subject to any Break Costs, without
premium or penalty.
- 48 -
14.7.3 The Borrower shall not repay or prepay all or any part of the Loans or
cancel all or any part of the Commitments except at the times and in the
manner expressly provided for in this Agreement.
14.7.4 If the Off Shore Facility Agent receives a notice under this Clause 14 it
shall promptly forward a copy of that notice to either the Borrower or
the affected Bank, as appropriate.
14.7.5 Unless a contrary indication appears in this Agreement, amounts prepaid
may not be reborrowed.
14.7.6 No amount of the Total Commitments cancelled under this Agreement may be
subsequently reinstated.
14.7.7 Any prepayment under Clause 14.4 (Voluntary prepayment of Euro Facility
Loans) and Clause 14.5 (Mandatory prepayments) shall satisfy the
obligations under Clause 13 (Repayment) in inverse chronological order.
- 49 -
SECTION 8
ADDITIONAL PAYMENT OBLIGATIONS
15. TAX GROSS-UP AND INDEMNITIES
15.1 DEFINITIONS
15.1.1 In this Clause 15:
"PROTECTED PARTY" means a Finance Party which is or will be, for or on
account of Tax, subject to any liability or required to make any payment
in relation to a sum received or receivable (or any sum deemed for the
purposes of Tax to be received or receivable) under a Finance Document.
"TAX CREDIT" means a credit against, relief or remission for, or
repayment of any Tax.
"TAX DEDUCTION" means a deduction or withholding for or on account of Tax
from a payment under a Finance Document.
"TAX PAYMENT" means an increased payment made by the Borrower to a
Finance Party under Clause 15.2 (Tax gross-up) or a payment under Clause
15.3 (Tax indemnity).
15.1.2 In this Clause 15 a reference to "determines" or "determined" means a
determination made in the absolute discretion of the person making the
determination and the determination may be on an affiliated group basis.
15.2 TAX GROSS-UP
(a) The Borrower shall make all payments to be made by it without any
Tax Deduction, unless a Tax Deduction is required by law.
(b) The Borrower or a Bank shall promptly upon becoming aware that the
Borrower must make a Tax Deduction (or that there is any change in
the rate or the basis of a Tax Deduction) notify the Off Shore
Facility Agent accordingly. If the Off Shore Facility Agent receives
such notification from a Bank it shall promptly notify the Borrower.
(c) If a Tax Deduction is required by law to be made by the Borrower in
one of the circumstances set out in paragraph (d) below, unless
paragraph (g) below applies, the amount of the payment due from the
Borrower shall be increased to an amount which (after making any Tax
Deduction) leaves an amount equal to the payment which would have
been due if no Tax Deduction had been required.
(d) The circumstances referred to in paragraph (c) above are where a
person entitled to the payment is an Agent, an Arranger or a
Security Agent, Issuing Bank or a Bank.
(e) If the Borrower is required to make a Tax Deduction, the Borrower
shall make that Tax Deduction and any payment required in connection
with that Tax Deduction within the time allowed and in the minimum
amount required by law.
(f) Within thirty days of making either a Tax Deduction or any payment
required in connection with that Tax Deduction, the Borrower making
that Tax Deduction shall deliver to the Off Shore Facility Agent for
the Finance Party entitled to the payment evidence reasonably
satisfactory to that Finance Party
- 50 -
that the Tax Deduction has been made or (as applicable) any
appropriate payment paid to the relevant taxing authority.
(g) The Borrower is not obliged to make a Tax Payment under paragraph
(c) above in respect of any Tax Deduction which would not have been
required had the Finance Party concerned co-operated in completing
any declaration, claim, exemption or other form reasonably requested
by the Borrower which it is able to complete or provide unless the
Finance Party determines in good faith to do so would prejudice its
legal or commercial position.
15.3 TAX INDEMNITY
(a) The Borrower shall (within five (5) Business Days of demand by the
Off Shore Facility Agent) pay to a Protected Party an amount equal
to the loss, liability or cost which that Protected Party determines
will be or has been (directly or indirectly) suffered for or on
account of Tax by that Protected Party in connection with the
transactions contemplated under the Finance Documents. Such demand
shall include reasonable details of such loss, liability or cost
which the Protected Party determined will be or has been suffered.
(b) Paragraph (a) above shall not apply with respect to any Tax assessed
on a Finance Party:
(i) under the law of the jurisdiction in which that Finance Party
is incorporated or, if different, the jurisdiction (or
jurisdictions) in which that Finance Party is treated as
resident for tax purposes; or
(ii) under the law of the jurisdiction in which that Finance
Party's Facility Office is located in respect of amounts
received or receivable in that jurisdiction,
if that Tax is imposed on or calculated by reference to the net
income received or receivable (but not any sum deemed to be received
or receivable) by that Finance Party.
(c) A Protected Party making, or intending to make, a claim pursuant to
paragraph (a) above shall promptly notify the Agent of the event
which will give, or has given, rise to the claim, following which
the Agent shall notify the Borrower.
(d) A Protected Party shall, on receiving a payment from the Borrower
under this Clause 15.3, notify the Agent.
15.4 TAX CREDIT
If the Borrower makes a Tax Payment and the relevant Finance Party
determines that:
(a) a Tax Credit is attributable to that Tax Payment; and
(b) that Finance Party has obtained, utilised and retained that Tax
Credit,
the Finance Party shall pay an amount to the Borrower which that Finance
Party determines will leave it (after that payment) in the same after-tax
position as it would have been in had the Tax Payment not been made by the
Borrower. The Finance Party will provide to the Borrower reasonable
details of the calculation of the amounts it has determined to be payable
to the Borrower.
- 51 -
15.5 STAMP TAXES
The Borrower shall pay and, within five (5) Business Days of demand,
indemnify each Finance Party against any cost, loss or liability that
Finance Party incurs in relation to all stamp duty, registration and other
similar Taxes payable in respect of any Finance Document.
15.6 VALUE ADDED TAX
(a) All consideration payable under a Finance Document by the Borrower
to a Finance Party shall be deemed to be exclusive of any VAT. If
VAT is chargeable, the Borrower shall pay to the Finance Party (in
addition to and at the same time as paying the consideration) an
amount equal to the amount of the VAT on receipt of a copy of a VAT
invoice.
(b) Where a Finance Document requires the Borrower to reimburse a
Finance Party for any costs or expenses, the Borrower shall also at
the same time pay and indemnify that Finance Party on receipt of a
copy of a VAT invoice against all VAT incurred by that Finance Party
in respect of the costs or expenses save to the extent that that
Finance Party is entitled to repayment or credit in respect of the
VAT.
16. INCREASED COSTS
16.1 INCREASED COSTS
(a) Subject to Clause 16.3 (Exceptions) the Borrower shall, within five
(5) Business Days of a demand by the Off Shore Facility Agent
(setting forth in reasonable detail the amounts so payable), pay for
the account of a Finance Party the amount of any Increased Costs
incurred by that Finance Party or any of its Affiliates as a result
of (i) the introduction of or any change in (or in the
interpretation, administration or application of) any law or
regulation after the date of this Agreement or (ii) compliance with
any law or regulation made after the date of this Agreement
(including the New Basle Capital Accord known as "Basle II" and any
replacement thereof).
(b) In this Agreement "INCREASED COSTS" means:
(i) a reduction in the rate of return from the Facility or on a
Finance Party's (or its Affiliate's) overall capital;
(ii) an additional or increased cost; or
(iii) a reduction of any amount due and payable under any Finance
Document,
which is incurred or suffered by a Finance Party or any of its
Affiliates to the extent that it is attributable to that Finance
Party having entered into its Commitment or funding or performing
its obligations under any Finance Document.
16.2 INCREASED COSTS CLAIMS
(a) A Finance Party intending to make a claim pursuant to Clause 16.1
(Increased Costs) shall notify the Off Shore Facility Agent of the
event giving rise to the claim, following which the Off Shore
Facility Agent shall promptly notify the Borrower.
- 52 -
(b) Each Finance Party shall, as soon as practicable after a demand by
the Off Shore Facility Agent, provide a certificate confirming the
amount of its Increased Costs.
16.3 EXCEPTIONS
(a) Clause 16.1 (Increased Costs) does not apply to the extent any
Increased Cost is:
(i) attributable to a Tax Deduction required by law to be made by
the Borrower;
(ii) compensated for by Clause 15.3 (Tax indemnity) (or would have
been compensated for under Clause 15.3 (Tax indemnity) but was
not so compensated solely because the exclusion in Clause
15.3(b) (Tax indemnity) applied); or
(iii) attributable to the wilful breach by the relevant Finance
Party or its Affiliates of any law or regulation.
(b) In this Clause 16.3, a reference to "Tax Deduction" has the same
meaning given to the term in Clause 15.1 (Definitions).
17. OTHER INDEMNITIES
17.1 CURRENCY INDEMNITY
(a) If any sum due from the Borrower under the Finance Documents (a
"SUM"), or any order, judgment or award given or made in relation to
a Sum, has to be converted from the currency (the "FIRST CURRENCY")
in which that Sum is payable into another currency (the "SECOND
CURRENCY") for the purpose of:
(i) making or filing a claim or proof against the Borrower; or
(ii) obtaining or enforcing an order, judgment or award in relation
to any litigation or arbitration proceedings,
the Borrower shall as an independent obligation, within five (5)
Business Days of demand, indemnify each Finance Party to whom that
Sum is due against any cost, loss or liability arising out of or as
a result of the conversion including any discrepancy between (1) the
rate of exchange used to convert that Sum from the First Currency
into the Second Currency and (2) the rate or rates of exchange
available to that person at the time of its receipt of that Sum.
(b) The Borrower waives any right it may have in any jurisdiction to pay
any amount under the Finance Documents in a currency or currency
unit other than that in which it is expressed to be payable.
17.2 OTHER INDEMNITIES
The Borrower shall, within five (5) Business Days of demand, indemnify
each Finance Party against any cost, loss or liability reasonably incurred
by that Finance Party as a result of:
(a) the occurrence of any Event of Default or Potential Event of Default
and any costs reasonably incurred by any of the Banks in attending
any meetings to consider any Event of Default or Potential Event of
Default or the investigation of any Event of Default or Potential
Event of Default;
- 53 -
(b) a failure by the Borrower to pay any amount due under a Finance
Document on its due date including, without limitation, any cost,
loss or liability arising as a result of Clause 29 (Sharing among
the Finance Parties);
(c) funding, or making arrangements to fund, its participation in a Loan
requested by the Borrower in a Utilisation Request but not made by
reason of the operation of any one or more of the provisions of this
Agreement (other than by reason of default or negligence by that
Finance Party); or
(d) a Loan (or part of a Loan) not being prepaid in accordance with a
notice of prepayment given by the Borrower.
17.3 INDEMNITY TO THE AGENTS
The Borrower shall promptly indemnify each Agent against any cost, loss or
liability incurred by the relevant Agent (acting reasonably) as a result
of:
(a) investigating any event which it reasonably believes is an Event of
Default or Potential Event of Default;
(b) except as expressly provided in this Agreement, the Agent performing
and discharging its obligations in accordance with the requirements
of the Finance Documents; and/or
(c) acting or relying on any notice, request or instruction which it
reasonably believes to be genuine, correct and appropriately
authorised.
18. MITIGATION BY THE BANKS
18.1 MITIGATION
(a) Each Finance Party shall, in consultation with the Borrower, take
all reasonable steps to mitigate any circumstances which arise and
which would result in any amount becoming payable under or pursuant
to, or cancelled pursuant to, any of Clause 14.1 (Illegality),
Clause 15 (Tax gross-up and indemnities) or Clause 16 (Increased
Costs) including (but not limited to) transferring its rights and
obligations under the Finance Documents to another Affiliate or
Facility Office.
(b) Paragraph (a) above does not in any way limit the obligations of the
Borrower under the Finance Documents.
18.2 LIMITATION OF LIABILITY
(a) The Borrower shall indemnify each Finance Party for all costs and
expenses reasonably incurred by that Finance Party as a result of
steps taken by it under Clause 18.1 (Mitigation).
(b) A Finance Party is not obliged to take any steps under Clause 18.1
(Mitigation) if, in the opinion of that Finance Party (acting
reasonably), to do so might be prejudicial to it.
19. COSTS AND EXPENSES
19.1 TRANSACTION EXPENSES
The Borrower shall promptly on demand pay the Off Shore Facility Agent
(for the account of the Agents, the Security Agents, the Issuing Bank, the
ECA and the Arrangers) the amount of all out of pocket costs and expenses
(including but not limited to the fees of the Independent Technical
Consultant, insurance consultant and legal fees
- 54 -
of Slovenian law counsel to the Banks (Selih, Selih, Xxxxxxx &
Jarcovic) and German, New York and Luxembourg law counsel to the Banks
(Xxxxxxxx Chance)) reasonably incurred by any of them in connection with
the negotiation, preparation, execution, registration, implementation,
preservation, and syndication of the Finance Documents irrespective of
whether this financing is completed or any Utilisation is made (including,
without limitation in connection with any perfection of a security
interest under or any amendment of any Security Document).
19.2 AMENDMENT COSTS
If (a) the Borrower requests an amendment, waiver or consent or (b) an
amendment is required pursuant to Clause 30.9 (Change of currency), the
Borrower shall, within three (3) Business Days of demand, reimburse each
Agent for the amount of all costs and expenses (including legal fees)
reasonably incurred by it in responding to, evaluating, negotiating or
complying with that request or requirement.
19.3 ENFORCEMENT COSTS
The Borrower shall, within three (3) Business Days of demand, pay to each
Finance Party the amount of all costs and expenses (including legal fees)
incurred by that Finance Party in connection with the enforcement of, or
the preservation of any rights under, any Finance Document.
- 55 -
SECTION 9
REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT
20. REPRESENTATIONS
20.1 REPRESENTATIONS
The Borrower makes the representations and warranties set out in this
Clause 20.1 to each Finance Party on the date of this Agreement and
acknowledges that the Finance Parties have entered into this Agreement in
reliance on such representations and warranties.
20.1.1 STATUS
The Borrower is a corporation duly incorporated and validly existing
under the laws of Slovenia and has the power and all necessary
governmental and other material Authorisations under any applicable
jurisdiction to own its property and assets and to carry on its business
as currently conducted.
20.1.2 POWER AND AUTHORITY
The Borrower has the power to enter into, perform and deliver, and has
taken all necessary action to authorise its entry into, performance and
delivery of, the Transaction Documents to which it is a party and the
transactions contemplated by those Transaction Documents.
20.1.3 OWNERSHIP OF THE BORROWER
Western Wireless International Corporation owns, directly or indirectly,
at least 80% of the Shares.
20.1.4 BINDING OBLIGATIONS
The Transaction Documents create (or will once executed) legal, valid and
binding obligations of the Borrower and, to the Borrower's knowledge, the
other parties thereto, enforceable (or in the case of the Security
Documents will be enforceable once perfected) against such parties in
accordance with the terms thereof subject to any general principles of
law limiting such parties' obligations which are specifically referred to
in any legal opinion delivered pursuant to Clause 4.1 (Conditions
precedent to the first Utilisation under all Facilities).
20.1.5 COMPLIANCE
The Borrower has duly performed and observed in all material respects all
obligations under the applicable laws and the Material Contracts and has
duly performed and observed all obligations under the Project Contracts
except where failure to do so would not have a Material Adverse Effect.
20.1.6 AUTHORISATIONS
(a) All Authorisations required:
(i) to enable it lawfully to enter into, exercise the Borrower's
rights and comply with its obligations in the Transaction
Documents to which it is a party;
(ii) to make the Transaction Documents to which the Borrower is a
party admissible in evidence in Slovenia;
(iii) to enable the Borrower to conduct its business according to
the Business Plan; and
- 56 -
(iv) to enable the Borrower to create the Security to be created by
it pursuant to any Security Document and to ensure that such
Security has the priority and ranking it is expressed to have,
have been obtained or effected and are in full force and effect
except Authorisations which are not required to be obtained by the
Borrower (based upon its then current operations) until a future
date and (in the case of paragraphs (i) to (iii) above)
Authorisations the failure of which to obtain would not have a
Material Adverse Effect and.
(b) The Borrower is in compliance in all material respects with all of
the terms and conditions of such Authorisations and no
circumstances exist which would entitle the granting authority to
terminate or revoke such Authorisations.
20.1.7 GOVERNING LAW AND ENFORCEMENT
(a) The choice of the governing law of each of the Material Contracts
will be recognised and enforced in the jurisdiction applicable to
that Material Contract.
(b) Any judgment obtained in the jurisdiction applicable to each of
the Material Contracts in relation to that Material Contract will
be recognised and enforced in that jurisdiction.
20.1.8 TAXES; REGISTRATION OF TRANSACTION DOCUMENTS
(a) All Taxes imposed on the Borrower have been paid and discharged
duly and punctually within the time period allowed therefor
without the imposition of penalties in excess of Euro 15,000 or
its equivalent or the creation of encumbrances with priority to
the Banks or any Security granted by or created pursuant to the
Security Documents (save to the extent payment thereof is being
contested in good faith by the Borrower and where payment thereof
can be lawfully withheld and would not result in an encumbrance
having priority to the Banks or any Security granted by or created
pursuant to the Security Documents).
(b) The Borrower is not required under the laws of Slovenia to make
any deduction or withholding for or on account of Tax from any
payment it may make under any Finance Document.
(c) Under the laws of Slovenia it is not necessary:
(i) that the Material Contracts be filed, recorded, registered
or enrolled with any court or other authority in that
jurisdiction (other than reporting the execution of this
Agreement to Banka Slovenije); or
(ii) that any stamp, registration or similar tax be paid on or
in relation to the Material Contracts or the transactions
contemplated by the Material Contracts.
20.1.9 NO DEFAULT
(a) No Event of Default or Potential Event of Default has occurred and
is continuing or is reasonably expected to occur to the best of
the Borrower's knowledge and belief.
(b) No other event or circumstance is outstanding which constitutes a
default under any other agreement or instrument which is binding
on the Borrower or to
- 57 -
which its assets are subject which would reasonably be expected to
have a Material Adverse Effect.
20.1.10 NO WINDING-UP
The Borrower has not taken any corporate action nor have any other steps
been taken or legal proceedings been started or threatened against the
Borrower for its winding-up, dissolution, administration or
re-organisation or for the appointment of a receiver, administrator,
administrator receiver, trustee or similar officer of it or of all of its
assets or revenues.
20.1.11 NO MISLEADING INFORMATION
(a) Any factual information provided by it for the purposes of the
Initial Business Plan, Information Memorandum and/or the Legal Due
Diligence Report is true, complete and accurate in all material
respects as at the date it was provided or as at the date (if any)
at which it is stated.
(b) The financial projections contained in the Initial Business Plan
and Information Memorandum provided to the ECA in September 2001
have been prepared on the basis of information available as at
such date and on the basis of reasonable assumptions.
(c) Nothing has occurred or been omitted from the Initial Business
Plan, Information Memorandum and/or the Legal Due Diligence Report
and no information has been given or withheld that results in the
information contained in the Initial Business Plan, Information
Memorandum and/or the Legal Due Diligence Report being untrue or
misleading in any material respect.
(d) All of the information (other than the Initial Business Plan, the
Information Memorandum and the Legal Due Diligence Report)
supplied by the Borrower and the Sponsors to the Arrangers, the
Banks and the Independent Technical Consultant is true, complete
and accurate in all material respects as at the date such
information was supplied and the Borrower and the Sponsors have
not failed to disclose to the Arrangers, the Banks and to the
Independent Technical Consultant any facts or circumstances the
omission of which would render any such information misleading in
any material aspects.
20.1.12 FINANCIAL STATEMENTS
(a) The Borrower's Original Financial Statements were prepared in
accordance with US GAAP and the Borrower' financial statements for
the year ending 31 December 2001, which are stated to be in
accordance with Slovenian Accounting Standards, were prepared in
accordance with Slovenian Accounting Standards, in each case
consistently applied (unless expressly disclosed to the Off Shore
Facility Agent in writing to the contrary before the date of this
Agreement).
(b) The Borrower's Original Financial Statements fairly represent its
financial condition and operations as at the end of and during the
relevant financial year (unless expressly disclosed to the Off
Shore Facility Agent in writing to the contrary before the date of
this Agreement).
(c) As at the date as of which the Original Financial Statements were
prepared the Borrower had no liabilities (contingent or otherwise)
which were not disclosed thereby (or by notes thereto) or reserved
against therein nor any unrealised or anticipated losses arising
from commitments entered into by it which were not
- 58 -
so disclosed or reserved against and which in each such case would
reasonably be expected to have a material adverse effect on the
Borrower's ability to perform its obligations hereunder.
(d) There has been no material adverse change in the Borrower's
business or financial condition since the date as at which the
Original Financial Statements were delivered to the Banks.
20.1.13 ENCUMBRANCES
No encumbrance exists over all or any of the assets of the Borrower
other than Permitted Encumbrances.
20.1.14 FINANCIAL INDEBTEDNESS
The Borrower has no Financial Indebtedness except for Permitted
Indebtedness.
20.1.15 NO OBLIGATION TO CREATE SECURITY
Except as provided in Clause 20.1.13 (Encumbrances), the Borrower's
execution of the Transaction Documents and its exercise of its rights
and performance of its obligations hereunder and thereunder will not
result in the existence of nor oblige the Borrower to create an
encumbrance over all or any of its present or future revenues or assets.
20.1.16 PARI PASSU RANKING
The Borrower's payment obligations under the Finance Documents rank at
least pari passu with the claims of all its other unsecured and
unsubordinated creditors, except for obligations mandatorily preferred
by law applying to companies generally.
20.1.17 PROCEEDINGS AND MAJOR LABOUR UNREST
No litigation, arbitration or administrative proceedings of or before
any court, arbitral body or agency which, if adversely determined, might
reasonably be expected to have a Material Adverse Effect have been
started or threatened against it nor are there or might reasonably be
expected major labour unrests in the Borrower's business.
20.1.18 OWNERSHIP OF ASSETS
The Borrower has good title to or valid leases or licences of all
Material Assets necessary to conduct its business where failure to do so
would be reasonably likely to have a Material Adverse Effect.
20.1.19 INTELLECTUAL PROPERTY
(a) The Borrower owns or has the legal right to use all Intellectual
Property and it does not infringe any Intellectual Property Rights
of any third party except in the case of Intellectual Property
Rights which are not necessary to the carrying on of its business
where such infringement would not be reasonably likely to have a
Material Adverse Effect.
(b) No Intellectual Property is being infringed except in the case of
Intellectual Property which is not necessary to the carrying on of
its business where such infringement would not be reasonably
likely to have a Material Adverse Effect nor is there any
threatened infringement by any third party of any Intellectual
Property.
(c) All registered Intellectual Property owned by the Borrower is
subsisting and all actions required to maintain the same in full
force and effect have been taken.
20.1.20 ENVIRONMENTAL COMPLIANCE
The Borrower has duly performed and observed in all material respects
all Environmental Law, Environmental Permits and all other material
covenants,
- 59 -
conditions, restrictions or agreements directly or indirectly concerned
with any contamination, pollution or waste or the release or discharge
of any toxic or hazardous substance in connection with any real
property which is or was at any time owned, leased or occupied by the
Borrower or on which it has conducted any activity where, in each case,
failure to do so could reasonably be expected to have a Material
Adverse Effect.
20.1.21 EXECUTION OF FINANCE DOCUMENTS
Its execution of the Finance Documents and its exercise of its rights
and performance of its obligation hereunder and thereunder do not and
will not:
(a) conflict with the Licence, or to the best of its knowledge having
made all due enquiry any other agreement, mortgage, bond or other
instrument or treaty to which it is party or which is binding upon
it or any of its assets;
(b) conflict with its constitutive documents;
(c) conflict with any applicable law, regulation or official or
judicial order.
20.1.22 NO IMMUNITY
In any proceedings taken in Slovenia in relation to any of the Material
Contracts it will not be entitled to claim for itself or any of its
assets immunity from suit, execution, attachment or other legal process
except for any property which is exempt from attachment and execution
pursuant to the laws of Slovenia of general application to the extent
that such exemption has not been validly waived pursuant to Clause 40.4
(Waiver of immunity).
20.1.23 DEALING ON OWN ACCOUNT
For all matters related to the Transaction Documents the Borrower is
dealing on its own account.
20.1.24 EASEMENTS
The Borrower has all easements, rights of way, rights of ingress and
egress necessary for the construction and operation of the Project
except where the failure to do so would not have a Material Adverse
Effect.
20.1.25 MATERIAL CONTRACTS
All contracts required for the design, engineering, development,
construction, installation, testing, operation and maintenance of the
Network are in full force and effect, there are no other Material
Contracts in existence which have not been disclosed to the Off Shore
Facility Agent and it has no notice of any material breach by any
person of its obligations thereunder.
20.1.26 AMENDMENTS TO MATERIAL CONTRACTS
There have been no material amendments (other than those permitted
under Clause 24.27 (Amendments) to any of the Material Contracts
including those provided to the Off Shore Facility Agent in connection
with the Legal Due Diligence Report.
20.1.27 CAPITAL
As of the date hereof the registered Share Capital is SIT 7,000,000,000
comprising 2 Shares owned by the following Shareholders in the
following percentages.
Western Wireless International Slovenia Corporation 95%
Western Wireless International Slovenia II Corporation 5%
and no person will have any right to subscribe for any additional
Shares in the Share Capital.
- 60 -
20.1.28 ACCOUNTS
The Borrower has no accounts other than those permitted, established or
to be established in accordance with this Agreement.
20.1.29 SUBSIDIARIES
The Borrower does not have any Subsidiaries (other than as permitted
under Clause 24.33 (UMTS and other licences) or those created with the
consent of the Banks, not to be unreasonably withheld or delayed) or
any investments in any other person.
20.1.30 SERVICES AND FACILITIES
All services, facilities and other materials necessary for the
importation, construction, installation, operation and maintenance of
the Network are or, to the best of the Borrower's knowledge after due
inquiry, will be available to the Borrower when necessary for the
construction, installation, testing, operation and maintenance of the
Network, and to the extent necessary, arrangements have been made on
commercially reasonable terms for such services, facilities and other
materials, with respect to which arrangements the Borrower has no
reason to believe such arrangements will not be made at the time so
required, except where the failure of such services, facilities and
other materials to be available or arranged would not reasonably be
likely to have a Material Adverse Effect.
20.1.31 RANKING OF SECURITY
Other than the ECA Cover Documents, each Security Document creates (or,
once entered into, will create) in favour of the Finance Parties the
Security which it is expressed to create over the secured assets
referred to therein with first ranking and priority which are not
subject to any prior or pari passu Security.
20.1.32 BUSINESS PLAN
The projections and forecasts appearing in the most recent Business
Plan are in accordance with the requirements of Clause 22 (Financial
covenants and network milestones) and consistent with Clause 24
(General undertakings) and were made on the basis of grounds believed
at the time to be correct.
20.1.33 PROHIBITED PAYMENTS
None of the Borrower's officers, directors, employees and/or agents
acting on its behalf have offered, given, insisted on, received or
solicited any illegal payment or advantage to influence the action of
any person in connection with the Project.
20.2 REPETITION
The representations in Clause 20.1 (Representations) (other than in
Clause 20.1.11 (No misleading information) and Clause 20.1.27
(Capital)) ("REPEATED REPRESENTATIONS") shall be expressly repeated by
the Borrower by reference to the facts and circumstances then existing
at:
(a) the date of each Utilisation Request (including any SIT Facility
Rollover Loan); and
(b) each repayment date as determined under Clause 13 (Repayment).
- 61 -
21. REPORTING REQUIREMENTS
The undertakings in this Clause 21 remain in force from the date of this
Agreement for so long as any amount is outstanding under the Finance
Documents or any Commitment is in force.
21.1 FINANCIAL STATEMENTS AND OTHER INFORMATION
The Borrower shall supply to the Off Shore Facility Agent in sufficient
copies for all of the Banks:
(a) as soon as the same become available, but in any event not later
than 120 days after the end of each financial year one set of its
audited annual financial statements for that financial year prepared
in accordance with US GAAP and one set of its audited annual
financial statements for that financial year prepared in accordance
with Slovenian Accounting Standards;
(b) as soon as the same becomes available, but in any event not later
than three weeks after the commencement of a new financial year of
the Borrower, the Updated Business Plan in respect of the following
financial year which shall, without limitation:
(i) be in the same format and comprise the same items as the most
recent Business Plan and otherwise include a description of
any changes and sufficient information, in form and substance
as may be reasonably required by the Off Shore Facility Agent,
to enable the Banks to make an accurate comparison between the
most recent Business Plan and such Updated Business Plan;
(ii) demonstrate that the Borrower is in compliance with the
requirements of Clause 22 (Financial covenants and network
milestones) and such Updated Business Plan is consistent with
Clause 24 (General undertakings); and
(iii) include a profit and loss statement, balance sheet, cash flow
statement and details of investments in fixed assets, capital
and operation expenditures updated to reflect the
circumstances then existing and anticipated for the
forthcoming financial year and any information relevant at
such time that was not included in the Initial Business Plan;
and
(iv) include an outline of major future business plans;
(c) as soon as the same becomes available but in any event not later
than 45 days after the end of each Quarter and starting as at 31
December 2001, a management report for that Quarter, signed by the
CFO, which shall include, without limitation:
(i) a profit and loss statement, balance sheet, cash flow
statement, details of investments in fixed assets, debt
profile (including aggregate lease obligations) short term and
long term;
(ii) a list of all existing accounts of the Borrower identifying
the financial institution with which those are held and the
balances thereon; and
(iii) a Project Status and Progress Report setting out in detail
information addressing the matters referred to in Schedule 15
(Project Status and
- 62 -
Progress Report) (signed by the CFO and the chief technical
officer of the Borrower); and
(d) every week bank statements (in the form agreed between the Off Shore
Facility Agent, the On Shore Facility Agent and Hypo Alpe-Adria-Bank
d.d.) in respect of the Permitted Accounts and the Proceeds and
Revenue Accounts and the Borrower authorises and instructs the On
Shore Facility Agent and Hypo Alpe-Adria-Bank d.d. to provide such
bank statements in respect of the Proceeds and Revenue Accounts to
the Off Shore Facility Agent at such times.
21.2 REQUIREMENTS AS TO FINANCIAL STATEMENTS
(a) Each set of financial statements delivered by the Borrower pursuant
to Clause 21.1 (Financial statements and other information) shall be
certified by the CFO as fairly representing its financial condition
as at the end of and for the period up to the date as at which those
financial statements were drawn up.
(b) The Borrower shall procure that each set of financial statements
delivered pursuant to Clause 21.1 (Financial statements and other
information) or that is required to be in accordance with US GAAP is
prepared using US GAAP, accounting practices and financial reference
periods consistent with those applied in the preparation of the
financial statements of the immediately preceding year unless, in
relation to any set of financial statements delivered immediately
after any change has taken place, it notifies the Off Shore Facility
Agent that there has been a change in US GAAP or the accounting
practices or reference periods and its auditors deliver to the Off
Shore Facility Agent:
(i) a description of any change necessary for those financial
statements to reflect the US GAAP, accounting practices and
reference periods upon which the financial statements for the
immediately preceding year were prepared; and
(ii) sufficient information, in form and substance as may be
reasonably required by the Off Shore Facility Agent, to enable
the Banks to determine whether Clause 22 (Financial covenants
and network milestones) has been complied with and make an
accurate comparison between the financial position indicated
in those financial statements and the financial statements for
the immediately preceding year.
Any reference in this Agreement to those financial statements shall
be construed as a reference to those financial statements as
adjusted to reflect the basis upon which the financial statements
for the immediately preceding year were prepared.
(c) The Borrower shall procure that each set of financial statements
delivered pursuant to Clause 21.1(a) (Financial statements and other
information) that is to be prepared in accordance with Slovenian
Accounting Standards or any other financial statements required to
be prepared by applicable law are delivered to the Off Shore
Facility Agent and in each case are prepared using Slovenian
Accounting Standards, accounting practices and financial reference
periods consistent with those applied in the preparation of the
financial statements of the immediately preceding financial year
unless, in relation to any set of financial statements delivered
immediately after any change has taken place, it notifies the Off
Shore Facility Agent that there has been a change in Slovenian
Accounting Standards or the accounting practices or reference
periods and its auditors deliver to the Off Shore Facility Agent:
- 63 -
(i) a description of any change necessary for those financial
statements to reflect the Slovenian Accounting Standards,
accounting practices and reference periods upon which the
financial statements for the immediately preceding year were
prepared; and
(ii) sufficient information, in form and substance as may be
reasonably required by the Off Shore Facility Agent, to enable
the Banks to determine whether Clause 22 (Financial covenants
and network milestones) has been complied with and make an
accurate comparison between the financial position indicated
in those financial statements and the financial statements for
the immediately preceding year.
Any reference in this Agreement to those financial statements shall be
construed as a reference to those financial statements as adjusted to
reflect the basis upon which the financial statements for the immediately
preceding year were prepared.
21.3 COVENANT COMPLIANCE CERTIFICATE
(a) The Borrower shall supply the Off Shore Facility Agent, with each
set of financial statements prepared in accordance with US GAAP
delivered pursuant to Clauses 21.1(a) and (c)(i) (Financial
statements and other information), a Covenant Compliance Certificate
setting out (in reasonable detail) computations as to compliance
with Clause 22 (Financial covenants and network milestones) as at
the date as at which those financial statements were drawn up and
confirming compliance with the requirements of Clause 23.3
(Application of moneys on the Proceeds and Revenue Accounts).
(b) Each Covenant Compliance Certificate shall be signed by the CFO and,
if required to be delivered with the financial statements delivered
pursuant to Clause 21.1(a) (Financial statements and other
information), shall be reported on by the Borrower's auditors.
21.4 INFORMATION: MISCELLANEOUS
The Borrower shall supply the Off Shore Facility Agent (in sufficient
copies for all the Banks, if the Off Shore Facility Agent so requests)
with:
(a) all documents dispatched by the Borrower to its creditors generally
at the same time as they are dispatched;
(b) promptly upon becoming aware of them, the details of any litigation,
arbitration or administrative proceedings against the Borrower
(which are not considered to be frivolous or vexatious) which are
current, threatened or pending, and which might, if adversely
determined, have a Material Adverse Effect;
(c) promptly, such further information regarding its financial
condition, business and operations as any Finance Party (through the
Agent) may reasonably request; and
(d) any other information that from time to time may be reasonably asked
for by the Off Shore Facility Agent and the Independent Technical
Consultant.
21.5 NOTIFICATION OF DEFAULT AND CASH SHORTFALL
(a) The Borrower shall notify the Off Shore Facility Agent of any Event
of Default or Potential Event of Default or Cash Shortfall (and the
steps, if any, being taken to remedy it) promptly upon becoming
aware of its occurrence.
- 64 -
(b) Promptly upon a request by the Off Shore Facility Agent (acting
reasonably), the Borrower shall supply to the Off Shore Facility
Agent a certificate signed by two of its directors or senior
officers on its behalf certifying that no Event of Default or
Potential Event of Default or Cash Shortfall is continuing (or
if an Event of Default or Potential Event of Default or Cash
Shortfall is continuing, specifying the Event of Default or
Potential Event of Default or the extent of the Cash Shortfall
and the steps, if any, being taken to remedy it).
21.6 BUSINESS PLAN REVIEW
Within the earlier of:
(a) 14 days from the receipt by the Off Shore Facility Agent of an
Updated Business Plan; and
(b) five weeks from the commencement of a financial year of the
Borrower, the Borrower and the Off Shore Facility Agent shall
meet and review the Updated Business Plan delivered in
accordance with Clause 21.1(b) (Financial statements and other
information).
22. FINANCIAL COVENANTS AND NETWORK MILESTONES
The calculation of ratios and other amounts under this Clause 22 shall
be made by reference to the most recent financial statements, Covenant
Compliance Certificate and Project Status and Progress Report for the
period or periods in relation to which the calculation or
determination falls to be made.
22.1 SPONSOR CONTRIBUTIONS
22.1.1 The Borrower shall request the Sponsors make their funding
contributions in accordance with the Sponsors' and Shareholders'
Undertaking and Completion Guarantee; and
22.1.2 The Borrower shall ensure that, at all times, the Contributed Capital
Ratio is at least 0.4.
22.2 STAGE I COVENANTS
From the first Utilisation up to and including 31 December 2003, the
Borrower shall ensure that the financial and performance parameters
set out in Clauses 22.2(a) to (d) are achieved, as confirmed by the
Independent Technical Consultant in respect of the performance
parameters set out in paragraphs (a) and (b) below and in accordance
with Clause 22.4 (Confirmation by Independent Technical Consultant),
to the satisfaction of the Off Shore Facility Agent (acting
reasonably) by the dates set out therein:
(a) MINIMUM SUBSCRIBERS
The number of Subscribers shall be:
(i) as at 31 March 2002, at least 8,000;
(ii) as at 30 June 2002, at least 40,000;
(iii) as at 31 December 2002, at least 80,000;
(iv) as at 30 June 2003, at least 120,000; and
(v) as at 31 December 2003, at least 160,000;
(b) POPULATION COVERAGE
The Population Coverage shall be:
-65-
(i) as at 28 February 2002, at least 60%;
(ii) as at 31 March 2002, at least 65%;
(iii) as at 30 June 2002, at least 65% or 70% if no national
roaming agreement is in place;
(iv) as at 31 December 2002, at least 80%;
(v) as at 30 June 2003, at least 83%; and
(vi) as at 31 December 2003, at least 85%.
(c) QUARTERLY REVENUE TEST
At the end of each Quarter commencing from 31 March 2002 up to
and including 31 December 2003, the Service Revenues in Euro
shall be at least 80% of the Service Revenues forecast in the
table below.
Q I 2002 Q II 2002 Q III 2002 Q IV 2002
-------- --------- ---------- ---------
Forecast
Service
Revenues 487,046 3,132,584 5,775,553 8,421,241
80% of
Service
Revenues 389,637 2,506,067 4,620,442 6,736,993
Q I 2003 Q II 2003 Q III 2003 Q IV 2003
-------- --------- ---------- ---------
Forecast
Service
Revenues 11,595,595 13,503,960 15,041,689 16,737,582
80% of
Service
Revenues 9,276,476 10,803,168 12,033,351 13,390,066
(d) QUARTERLY EBITDA TEST
At the end of each Quarter commencing from 31 December 2001 up
to and including 31 December 2003 the aggregate EBITDA in Euro
of the immediately preceding two Quarters shall not negatively
deviate more than 20% from the level set out in column headed
"Aggregate EBITDA Base Case" in the table below.
MAXIMUM
NEGATIVE
AGGREGATE AGGREGATE
EBITDA EBITDA BASE EBITDA
BASE CASE CASE (-20%)
--------- ---- ------
Quarter IV 2001 -4,271,528 -7,397,292 -8,876,751
Quarter I 2002 -6,286,190 -10,557,719 -12,669,263
Quarter II 2002 -7,370,611 -13,656,801 -16,388,161
Quarter III 2002 -6,082,746 -13,453,357 -16,144,028
Quarter IV 2002 -5,922,727 -12,005,473 -14,406,568
Quarter I 2003 -2,494,642 -8,417,368 -10,100,842
Quarter II 2003 -1,450,262 -3,944,904 -4,733,885
Quarter III 2003 261,541 -1,188, 721 -1,426,465
Quarter IV 2003 -757,513 -495,972 -595,166
-66-
22.3 STAGE II COVENANTS
(a) MINIMUM EBITDA
At the end of any Quarter, from and including the Quarter ending
on 31 March 2004 up to and including 30 September 2004, the
Borrower shall ensure that Annualised EBITDA is positive.
(b) TOTAL LEVERAGE RATIO
From and including the Quarter ending on 31 December 2004 up to
and including the Termination Date the Borrower shall ensure
that the Total Leverage Ratio shall not exceed the following:
TOTAL LEVERAGE
DATE RATIO
---- -----
as at 31 December 2004 11.00
as at 31 March 2005 6.00
as at 30 June 2005 6.00
as at 30 September 2005 5.00
as at 31 December 2005 and at the end 4.00
of any Quarter thereafter
as at 31 December 2006 and at the end 3.00
of any Quarter thereafter
as at 31 December 2007 and at the end 2.00
of any Quarter thereafter
and at the end of any Quarter thereafter 2.00
(c) INTEREST COVERAGE RATIO
From and including 30 June 2004 up to and including the
Termination Date the Borrower shall ensure that the Interest
Coverage Ratio shall not be less than the following:
-67-
INTEREST
DATE COVERAGE RATIO
---- --------------
30 June 2004 1.25
30 September 2004 1.50
31 December 2004 1.75
and at the end of any Quarter thereafter 3.50
For the purpose of calculating the Interest Coverage Ratio for
the first calculation on 30 June 2004, the Cash Flow at that
time will be taken to include Sponsor Contributions in the
amount of Euro 3,000,000 to the extent actually contributed in
cash into the Proceeds and Revenue Accounts.
(d) DEBT SERVICE COVER RATIO
From and including 30 June 2004 the Debt Service Cover Ratio
shall not be less than the following:
DEBT SERVICE
DATE COVER RATIO
---- -----------
30 June 2004 1.20
30 September 2004 1.30
31 December 2004 1.30
and at the end of any Quarter thereafter 1.30
For the purpose of calculating the Debt Service Cover Ratio as
at 30 June 2004, the Cash Flow at that time will be measured to
include a Sponsors Contribution in the amount of Euro 3,000,000
to the extent actually contributed in cash into the Proceeds and
Revenue Accounts.
For the purpose of calculating the Debt Service Cover Ratio as
at 30 September 2004, the Cash Flow at that time will be
measured to include a Sponsor Contributions in the amount of
Euro 500,000 to the extent actually contributed in cash to the
Proceeds and Revenue Accounts.
(e) POPULATION COVERAGE
The Population Coverage shall be as at 31 December 2004 at least
87%.
22.4 CONFIRMATION BY INDEPENDENT TECHNICAL CONSULTANT
The figures in Clauses 22.2(a) and (b) (Stage I covenants) and Clause
22.3(e) (Stage II covenants) shall be confirmed by the Independent
Technical Consultant annually commencing on 31 December 2002 and ending on
31 December 2004.
23. ACCOUNTS AND PAYMENTS
23.1 PROCEEDS AND REVENUE ACCOUNTS
The Borrower will open a transactional account with the On Shore Security
Agent ("PROCEEDS AND REVENUE ACCOUNT #1") and Hypo Alpe-Adria-Bank d.d.
Ljubljana ("PROCEEDS AND REVENUE ACCOUNT #2") prior to the first
Utilisation Date (the "PROCEEDS AND REVENUE ACCOUNTS"), such accounts to
be pledged by the Borrower in
- 68 -
favour of the Senior Creditors by entering into the Claims Assignment and
Bills of Exchange Agreement.
23.2 PAYMENTS INTO THE PROCEEDS AND REVENUE ACCOUNTS
(a) The Borrower will ensure that it pays into the Proceeds and Revenue
Account #1 all loan, insurance, sale and other proceeds, receivables
and Equity Contributions and proceeds of Subordinated Loans and
Sponsors Unsecured Loans and revenues of any nature and all payments
to be made to the Borrower other than as permitted by Clause
23.2(b).
(b) The Borrower will use reasonable commercial efforts to have 30% of
the revenues and payments to be made to the Borrower paid into the
Proceeds and Revenue Account #2 (other than in respect of loan,
insurance, sale proceeds, Equity Contributions, Subordinated Loans
and Sponsors Unsecured Loans) provided that the balance standing to
the credit of such account shall not exceed Euro 2,000,000 or its
equivalent.
(the payments into the Proceeds and Revenue Account #1 and the
payments into the Proceeds and Revenue Account #2, together the
"PROCEEDS AND REVENUES").
23.3 APPLICATION OF MONEYS ON THE PROCEEDS AND REVENUE ACCOUNTS
Subject to Clause 23.10 (Remedies on Potential Event of Default or Event
of Default), the Borrower shall and, in the case of an Event of Default,
only with the Off Shore Facility Agent's written consent (acting on the
instructions of the Majority Banks) apply any moneys standing to the
credit of the Proceeds and Revenue Accounts as follows:
(a) any Proceeds and Revenues that constitute Insurance Proceeds shall
be paid into the Insurance Proceeds Account in the applicable
currency and applied in accordance with Clause 23.4 (Insurance
Proceeds Account);
(b) any Proceeds and Revenues arising from the sale, disposal or
exchange of any asset shall be paid into the Sale Proceeds Account
in the applicable currency and applied in accordance with Clause
23.5 (Sale Proceeds Account);
(c) any Proceeds and Revenues that constitute Contributed Capital or
Sponsors Unsecured Loans or the proceeds of any Loans payable to the
Borrower under the Euro Facility shall be paid into the Loan
Proceeds Account and applied in accordance with Clause 23.6 (Loan
Proceeds Account) PROVIDED THAT in respect of any amounts
contributed as Contributed Capital to permit the Borrower to make
contributions to the UMTS Subsidiary in accordance with Clause
24.33(b)(ii) (UMTS and other licenses), the Borrower may transfer,
after compliance with the provisions of Clause 24.33(b)(iii) (UMTS
and other licenses), such amounts to the UMTS Subsidiary; and
(d) subject to Clause 23.9 (Debt Service Reserve Account) and Clause
23.6.2 (Debt Service Account) all Proceeds and Revenues (other than
those expressly referred to in paragraphs (a) to (c) above) shall be
applied for the following purposes and exclusively in the following
order:
(i) first, in and towards payment of any Tax payment due and
payable;
(ii) second, in or towards payment of all due and payable operating
costs as shown in the Initial Business Plan (including amounts
in respect of direct costs payable under the Management
Agreement which are
- 69 -
provided for in the Initial Business Plan but excluding any amounts
payable under the Lucent Loan Agreement);
(iii) third, in or towards payment of all due and payable on-going capital
costs in relation to the build-out of the Network as shown in the
Initial Business Plan and necessary to perform its business but
excluding any amounts payable under the Lucent Loan Agreement;
(iv) fourth, in and towards Debt Service Payments due and payable and
payments to be made to the Debt Service Account in accordance with
Clause 23.6 (Debt Service Account) which shall be applied:
(1) towards payment of any unpaid costs and expenses of the Banks,
the Agents, the Security Agents, with the exception of the
payments mentioned under paragraphs (2) to (4) and (viii)
below;
(2) in or towards payment of any amount due and payable under the
Hedging Agreements;
(3) in or towards payment of any accrued interest and fees due and
payable to the Banks hereunder and to the Sponsors under the
Sponsors Unsecured Loan Agreement and Lucent Technologies Inc.
under the Lucent Loan Agreement;
(4) in or towards payment of any principal due and payable to the
Banks under this Agreement and to the Sponsors under the
Sponsors Unsecured Loan Agreement and Lucent Technologies Inc.
under the Lucent Loan Agreement;
(v) fifth, in or towards any payment of any amount due and payable into
the Debt Service Reserve Account in accordance with Clause 23.9
(Debt Service Reserve Account);
(vi) sixth, in and towards payment of all due and payable operating costs
and expenses that have not been paid pursuant to Clause 23.3(d)(ii);
(vii) seventh, in or towards payment of capital costs in the amounts and
at the times set out in the Business Plan (other than the Initial
Business Plan) and amounts in respect of any margin payable under
the Management Agreement in an amount not exceeding (A) US Dollars
700,000 or its equivalent in the financial year ending 31 December
2002 and (B) in each financial year thereafter the lesser of (Y) 50%
of any direct costs payable under the Management Agreement and (Z)
US Dollars 700,000 or its equivalent;
(viii) eighth, in payment of any amounts planned to be paid by the
Borrower in the immediately following 12 month period in respect of
capital expenditure to the Capital Expenditure Reserve Account;
(ix) ninth, in prepayment of the Facilities in accordance with Clause
14.5 (Mandatory prepayments); and
(x) tenth, in or towards any payment due and payable to the Shareholders
(including any interest payable on any Subordinated Loans or other
amounts payable under the Management Agreement that have not been
- 70 -
paid pursuant to Clauses 23.3(d)(ii) or (vii)) in an amount not to
exceed 50% of the Excess Cash Flow.
(e) The Borrower shall only be entitled to make the payments referred to
in this Clause 23.3 out of the Proceeds and Revenue Accounts on the
following basis:
(i) amounts payable pursuant to paragraphs (d)(i) to (vii) above
inclusive shall be paid when due; and
(ii) amounts payable pursuant to paragraph (d)(x) above shall only
be paid on satisfaction of the conditions set out in paragraph
(f) below.
(f) Payments by the Borrower from the Proceeds and Revenue Accounts to
the Shareholders pursuant to paragraph (d)(x) above are permitted
only:
(i) from the expiry of the Availability Period of the Euro
Facility;
(ii) subject to the absence of an Event of Default or Potential
Event of Default;
(iii) upon provision of the most recent financial statements
required in accordance with Clause 21 (Reporting requirements)
covering the relevant period and showing a net profit before
payments are made to the Shareholders;
(iv) upon the provision of a Covenant Compliance Certificate
confirming that the Borrower complies with the financial
covenants and other requirements set out in the Covenant
Compliance Certificate;
(v) within a period of ten (10) Business Days following a
Repayment Date of a Euro Facility Loan; and
(vi) if the Debt Service Cover Ratio at any Repayment Date of a
Euro Facility Loan is equal to or greater than 1.30.
(g) Upon the occurrence and during the continuance of an Event of
Default or Potential Event of Default the Borrower authorises the
Agents (on behalf of the Senior Creditors) to debit:
(i) the Proceeds and Revenue Accounts with all amounts referred to
in paragraph (d)(iv) above when due; and
(ii) if the funds in the Proceeds and Revenue Accounts are not
sufficient to pay any amounts set out in paragraph (d) (iv)
above, to debit the Debt Service Reserve Account with any such
amount,
and to apply any amount so debited in payment of the relevant
amounts.
23.4 INSURANCE PROCEEDS ACCOUNT
23.4.1 The Borrower will open a transactional account with the On Shore Security
Agent ("INSURANCE PROCEEDS ACCOUNT") prior to the first Utilisation Date,
such account to be pledged by the Borrower in favour of the Senior
Creditors by entering into the Claims Assignment and Bills of Exchange
Agreement.
- 71 -
23.4.2 Insurance Proceeds in an amount less than Euro 250,000 in respect of any
single event may be withdrawn from the Insurance Proceeds Account to make
payment in respect of the costs of repair or restoration of the Project,
as determined by the Borrower.
23.4.3 Insurance Proceeds in an amount equal to or greater than Euro 250,000 in
respect of any single event may be withdrawn from the Insurance Proceeds
Account PROVIDED THAT:
(a) funds so withdrawn are used to make payment in respect of the costs
of repair or restoration of the Project; and
(b) the Borrower has consulted with the Off Shore Facility Agent to the
reasonable satisfaction of the Off Shore Facility Agent in respect
of progress of the repair or restoration and the application of
Insurance Proceeds.
23.4.4 All other Insurance Proceeds shall be applied in prepayment in accordance
with Clause 14.5.1(b) (Mandatory prepayments).
23.4.5 Notwithstanding any other provisions of this Clause 23.4 and subject to
Clause 23.10 (Remedies on Potential Event of Default or Event of Default)
if:
(a) an Event of Default has occurred and is continuing:
(i) the On Shore Facility Agent shall have the right to take over
sole conduct of the Borrower's claims under or in connection
with the insurance policies of the Borrower; and
(ii) the On Shore Facility Agent shall be entitled to require all
Insurance Proceeds (including funds in the Borrower's
Insurance Proceeds Account) to be applied by the Borrower in
or towards the settlement of the Loans; and
(b) a Potential Event of Default has occurred and is continuing the Off
Shore Facility Agent and the Borrower shall agree on the conduct of
any of the Borrower's claims under or in connection with the
insurance policies of the Borrower.
23.5 SALE PROCEEDS ACCOUNT
23.5.1 The Borrower will open a transactional account with the On Shore Security
Agent ("SALE PROCEEDS ACCOUNT") prior to the first Utilisation Date, such
account to be pledged by the Borrower in favour of the Senior Creditors by
entering into the Claims Assignment and Bills of Exchange Agreement.
23.5.2 Subject to the existence of no Event of Default or Potential Event of
Default and Clause 23.10 (Remedies on Potential Event of Default or Event
of Default), the Borrower may:
(a) withdraw amounts standing to the credit of the Sale Proceeds Account
for use in accordance with Clause 23.3(d) (Application of moneys on
the Proceeds and Revenue Accounts):
(i) up to a maximum aggregate per annum of Euro 100,000 or its
equivalent; and
(ii) in respect of sale proceeds from assets which are no longer
required in connection with the Project; and
- 72 -
(b) except as provided in Clause 23.5.2(a), only use amounts standing to
the credit of the Sale Proceeds Account in or towards purchases of
replacement assets PROVIDED THAT:
(i) the Borrower has furnished to the Off Shore Facility Agent an
invoice, duly certified by the CFO and the relevant vendor, in
respect of the replaced asset; and
(ii) the Borrower purchases the replacement asset within:
(1) in the case of replacements of Material Assets 180 days;
and
(2) in all other cases 360 days,
of receipt of such sales proceeds.
23.5.3 Any amounts standing to the credit of the Sale Proceeds Account that are
not used in accordance with Clause 23.5.1 (Sale Proceeds Account) shall be
applied in prepayment in accordance with Clause 14.5.1(a) (Mandatory
prepayments).
23.6 DEBT SERVICE ACCOUNT
23.6.1 The Borrower will open a debt service account (the "DEBT SERVICE
ACCOUNT") with the On Shore Security Agent prior to the first Utilisation
Date, such account to be pledged by the Borrower in favour of the Senior
Creditors by entering into the Claims Assignment and Bills of Exchange
Agreement.
23.6.2 The Borrower shall pay into the Debt Service Account on the last day of
each Month pursuant to Clause 23.3(d)(iv) (Application of moneys on the
Proceeds and Revenue Accounts) an amount equal:
(a) to one third of the Debt Service Payments (other than in respect of
the SIT Facility and other than as provided in paragraph (b) below)
due and payable in respect of that Interest Period on the next Euro
Facility Interest Payment Date; and
(b) from the date falling six (6) Months prior to the first Repayment
Date, one sixth of the Debt Service Payments (other than in respect
of the SIT Facility and other than in respect of interest and
amounts payable under the Hedging Agreements prior to their
termination) due and payable on the next repayment date under the
Euro Facility, the Sponsors Unsecured Loan Agreement and under the
Lucent Loan Agreement.
23.6.3 Subject to Clause 23.10 (Remedies on Potential Event of Default or Event
of Default) the Borrower shall be entitled to use the amount standing to
the credit of the Debt Service Account on each Euro Facility Interest
Payment Date or Repayment Date under the Euro Facility to satisfy its Debt
Service Payment obligations to the Senior Creditors (other than the SIT
Facility Banks), the Equipment Vendor under the Lucent Loan Agreement and
the Sponsors under the Sponsors Unsecured Loan Agreement, in each case,
pursuant to Clause 23.3(d)(iv) (Application of moneys on the Proceeds and
Revenue Accounts).
23.7 CAPITAL EXPENDITURE RESERVE ACCOUNT
23.7.1 The Borrower will open a capital expenditure reserve account (the
"CAPITAL EXPENDITURE RESERVE ACCOUNT") with the On Shore Security Agent
prior to the first
- 73 -
Utilisation Date, such account to be pledged by the Borrower in favour of
the Senior Creditors by entering into the Claims Assignment and Bills of
Exchange Agreement.
23.7.2 The Borrower may pay into the Capital Expenditure Reserve Account
pursuant to Clause 23.3(d)(viii) (Application of moneys on the Proceeds
and Revenue Accounts) amounts that the Borrower plans to pay in respect of
capital expenditure which may be withdrawn for the payment of such capital
expenditure and shall be withdrawn to effect prepayments, in each case at
the times and in the manner provided for in Clause 23.3 (Application of
moneys on the Proceeds and Revenue Accounts).
23.8 LOAN PROCEEDS ACCOUNT
23.8.1 The Borrower will open a transactional account with the On Shore Security
Agent ("LOAN PROCEEDS ACCOUNT") prior to the first Utilisation Date, such
account to be pledged by the Borrower in favour of the Senior Creditors by
entering into the Claims Assignment and Bills of Exchange Agreement.
23.8.2 The Borrower may withdraw amounts standing to the credit of the Loan
Proceeds Account PROVIDED THAT funds so withdrawn are used to:
(a) make payment in respect of Project Costs but in the case of the
proceeds of any Loans, excluding any amounts payable to the Debt
Service Reserve Account; and
(b) after giving effect to the conversion of Euro 18,500,000 of Existing
WWIC Loans into Sponsors Contributions and Euro 1,561,318.60 of
Existing WWIC Loans into Sponsors Unsecured Loans, to repay any
remaining Existing WWIC Loans which are outstanding in respect of
agreed Project Costs PROVIDED THAT:
(i) such repayment is made from the proceeds of a Utilisation of
the Commercial Facility;
(ii) no Event of Default or Potential Event of Default will be
caused by such repayment;
(iii) no Cash Shortfall will be caused by such repayment;
(iv) no breach of the financial covenants set out in Clause 22
(Financial covenants and network milestones) will be caused by
such repayment;
(v) interest shall be payable thereon at the rate set out in the
Existing WWIC Loan Agreement; and
(vi) the Borrower has obtained the prior written approval of the
Off Shore Facility Agent, which will not be withheld if the
Off Shore Facility Agent is satisfied that conditions set out
in this paragraph (b) are met and the Off Shore Facility Agent
has received:
(1) a certificate, in form and substance reasonably
satisfactory to the Off Shore Facility Agent, signed by
a director of the Borrower stating that the Existing
WWIC Loans to be repaid were in respect of payments made
for Project Costs; and
(2) evidence of payment of the Existing WWIC Loans to the
Borrower and payment by the Borrower of the respective
Project Costs.
- 74 -
23.9 DEBT SERVICE RESERVE ACCOUNT
23.9.1 The Borrower will open a debt service reserve account (the "DEBT SERVICE
RESERVE ACCOUNT") with IKB International S.A., Luxembourg prior to the
first Utilisation Date, such account to be pledged by the Borrower in
favour of the Senior Creditors by entering into the Debt Service Reserve
Account Pledge Agreement.
23.9.2 The Borrower shall pay into the Debt Service Reserve Account on the last
day of each Month (other than in respect of the first payment which shall
be within five (5) Business Days of the first Utilisation Date) pursuant
to Clause 23.3(d)(v) (Application of moneys on the Proceeds and Revenue
Accounts) and Clause 23.9.4 (Debt Service Reserve Account) an amount so
that the amount standing to the credit of the Debt Service Reserve Account
is no less than the aggregate of all Debt Service Payments falling due
under the Facilities, the Hedging Agreements and the Lucent Loan Agreement
during the immediately following six Month period as determined in
accordance with Clause 23.9.3 (Debt Service Reserve Account) (or in the
absence of a notification from the Off Shore Facility Agent, as notified
by the Borrower pursuant to Clause 23.9.3(b) (Debt Service Reserve
Account) ("DSRA REQUIRED BALANCE")). In no event shall the proceeds of any
loan be used to fund the Debt Service Reserve Account.
23.9.3
(a) The On Shore Facility Agent shall, not less than ten (10) Business
Days before the first day of each Month, notify the Off Shore
Facility Agent of the SIT equivalent amount in Euro (calculated at
the exchange rate (middle rate) of Banka Slovenije on the date of
calculation) which is the aggregate of all Debt Service Payments
falling due under the SIT Facility during the immediately following
six (6) Month period commencing from the first day of such Month.
(b) The Borrower shall, not less than ten (10) Business Days before the
first day of each Month, notify the Off Shore Facility Agent of the
amount which is the aggregate of the net amount in Euro of all Debt
Service Payments falling due from the Borrower (or, as the case may
be, the net amount of all amounts payable to the Borrower) under any
Hedging Agreements, the Lucent Loan Agreement and the Facilities in
the immediately following six (6) Month period commencing from the
first day of such Month. The Borrower shall provide such information
and such documents as the Off Shore Facility Agent may reasonably
request in order to verify the amounts so stated by the Borrower.
(c) The Off Shore Facility Agent shall, not less than five (5) Business
Days before the first day of each Month determine the Debt Service
Payments under the Facilities, the Hedging Agreements and the Lucent
Loan Agreement payable by the Borrower for the immediately following
six (6) Month period commencing from the first day of such Month
based on information provided to the Off Shore Facility Agent by the
On Shore Facility Agent and the Borrower and as determined by the
Off Shore Facility Agent and shall notify the Borrower of the amount
of such Debt Service Payments under the Facilities, the Hedging
Agreements and the Lucent Loan Agreement.
(d) Each Agent may assume:
(i) for the purposes of calculating the Debt Service Payments
(other than in respect of principal repayments) under the
Facilities, the Hedging Agreements and the Lucent Loan
Agreement that:
(1) interest will accrue for the following six (6) Month
period o under the relevant Facility and the Lucent Loan
Agreement on
- 75 -
principal outstanding at the rate of interest which
applies on the relevant date of calculation (including
the Applicable Margin thereunder at such time);
(2) the principal outstanding under the Facilities and the
Lucent Loan Agreement during the following six (6) Month
period is the principal amount outstanding on the
relevant date of calculation taking into account any
repayments that are required to be made in such period
pursuant to Clause 13 (Repayment); and
(3) any outstanding SIT Facility Loans on the relevant date
of calculation will be refinanced with SIT Facility
Rollover Loans;
(ii) for the purposes of calculating the Debt Service Payments
under the Facilities, the Hedging Agreements and the Lucent
Loan Agreement in respect of principal repayments that fall
due over the following six (6) Month period:
(1) only those repayments and, in the case of the SIT
Facility, reductions of the SIT Facility Commitment,
required to be made under Clause 13 (Repayment) will be
made; and
(2) any outstanding SIT Facility Loans on the relevant date
of calculation will be refinanced with SIT Facility
Rollover Loans.
23.9.4 If following the application of proceeds standing to the credit of the
Proceeds and Revenue Accounts in accordance with Clause 23.3(d)
(Application of moneys on the Proceeds and Revenue Accounts) and Clause
23.9.1 (Debt Service Reserve Account) the DSRA-Required Balance is not
achieved the Borrower shall request the Sponsors to make Sponsor
Contributions in accordance with clause 3.3 (Contingent Equity) of the
Sponsors' and Shareholders' Undertaking and Completion Guarantee to ensure
that the amount standing to the credit of the Debt Service Reserve Account
is no less than the DSRA-Required Balance.
23.9.5 The Off Shore Facility Agent is entitled to set off the credit balance in
the Debt Service Reserve Account against any obligations of the Borrower
due and payable under the Finance Documents to the Senior Creditors if the
Borrower fails in a timely manner to perform such obligations.
23.9.6 Upon any debit to the Debt Service Reserve Account, the Borrower is
obliged to replenish the Debt Service Reserve Account up to the
DSRA-Required Balance as soon as possible with moneys from the Proceeds
and Revenue Accounts subject to the provisions contained in Clause 23.3(d)
(Application of moneys on the Proceeds and Revenue Accounts). Provided
that if no Potential Event of Default or Event of Default has occurred and
is continuing, any amount standing to the credit of the Debt Service
Reserve Account in excess of the DSRA-Required Balance shall be paid into
a Proceeds and Revenue Account by the Off Shore Security Agent upon
receipt of a written request from the Borrower.
23.10 REMEDIES ON POTENTIAL EVENT OF DEFAULT OR EVENT OF DEFAULT
Without prejudice to any other rights under the Finance Documents
available to the Senior Creditors, upon the occurrence and during the
continuance of an Event of
- 76 -
Default or Potential Event of Default the Off Shore Facility Agent may
require the Borrower to transfer amounts standing to the credit of the
Insurance Proceeds Account, Loan Proceeds Account, Sale Proceeds Account,
the Debt Service Account and/or the Capital Expenditure Reserve account to
a different account, set up by the Off Shore Security Agent, in the name
of or held on behalf of the Borrower and for such purpose may request the
On Shore Facility Agent to make such payment. The Borrower hereby
authorises the On Shore Facility Agent (without an obligation to make
further inquiry) to pay such amounts to the Off Shore Security Agent upon
receipt of request by the Off Shore Facility Agent hereunder. Such account
shall be secured in favour of the Senior Creditors and the Senior
Creditors shall be entitled upon the occurrence and during the continuance
of an Event of Default to set off the amounts standing to the credit of
the new account against amounts owing to the Senior Creditors under the
Finance Documents.
24. GENERAL UNDERTAKINGS
The undertakings in this Clause 24 remain in force from the date of this
Agreement for so long as any amount is outstanding under the Finance
Documents or any Commitment is in force.
24.1 MAINTENANCE OF LEGAL VALIDITY
The Borrower shall:
(a) do all that is necessary to maintain its existence as a legal
person; and
(b) promptly apply for and obtain, comply with and do all that is
necessary to maintain in full force and effect any Authorisation
required under any law or regulation of Slovenia to enable it to
perform its obligations under the Transaction Documents and to
ensure the legality, validity, enforceability or admissibility in
evidence in its jurisdiction of incorporation of any Transaction
Document in each case, except (other than in respect of the Security
Documents) where failure to do so would not reasonably be expected
to have a Material Adverse Effect.
24.2 AUTHORISATIONS TO CONDUCT BUSINESS
The Borrower shall promptly:
(a) apply for and obtain, comply with and do all that is necessary to
maintain in full force and effect and supply certified copies to the
Agent of the Licence and all Authorisations required under any law
or regulation of each jurisdiction in which it conducts its business
to enable it to carry on its business as it is then being conducted;
and
(b) report this Agreement to (and in any event within ten (10) Business
Days from the date hereof), and report on the transactions
undertaken in respect of the Debt Service Reserve Account and any
other offshore bank accounts of the Borrower to and at the times
required by, Banka Slovenije.
24.3 COMPLIANCE WITH LAWS
The Borrower shall comply in all respects with all laws and regulations to
which it may be subject, if failure so to comply would materially impair
its ability to perform its obligations under the Material Contracts and
shall perform and observe in all material respects its obligations under
the Material Contracts.
- 77 -
24.4 COMPLIANCE WITH BUSINESS PLAN
The Borrower shall carry out the Project substantially in accordance with
the Business Plan and shall promptly notify and consult with the Off Shore
Facility Agent as soon as it becomes aware of any increases of 20% or more
in the annual operating and/or capital expenditures contemplated in the
Business Plan.
24.5 NETWORK
The Borrower shall maintain, preserve, repair or replace its assets and
subject to the terms of Clause 24.26 (New contracts) enter into such
contracts as are, in each case, necessary to construct, install, test,
maintain, develop and operate the Network in accordance with prudent
industry practice.
24.6 INSURANCE
The Borrower shall give effect to the insurance requirements set out in
Schedule 11 (Insurance).
24.7 FINANCIAL SYSTEMS AND AUDITORS
The Borrower shall maintain adequate billing, cash collection, accounting,
management information and cost control systems and software and maintain
the appointment of an independent and reputable firm of auditors
acceptable to the Off Shore Facility Agent (acting reasonably).
24.8 UNTRUE REPRESENTATIONS
The Borrower shall after the delivery of any Utilisation Request and
before the making of a Loan or the issue of a SIT Facility Guarantee or LC
as the case may be, requested therein, notify the Off Shore Facility Agent
of the occurrence of any event which results in or may reasonably be
expected to result in the Repeated Representations (or in the case of the
first Utilisation of the Facilities the representations contained in
Clause 20.1 (Representations)) being untrue at or before the time of the
making of such Loan or SIT Facility Guarantee or LC, as the case may be.
24.9 SPONSOR AND SHAREHOLDER SUPPORT
The Borrower shall request from the Sponsors such technical and managerial
assistance as and when required to enable the Borrower to undertake
technical design of the Network and implement and operate the Network and
shall request the Sponsors to provide trained seconded staff in accordance
with the assumptions in the Initial Business Plan at the times and in the
numbers set out therein and the Borrower shall request all such financial
support from the Sponsors as provided in the Sponsors' and Shareholders'
Undertaking and Completion Guarantee.
24.10 TAXES
The Borrower shall duly and punctually pay and discharge:
(a) all Taxes imposed upon it or its assets within the time period
allowed therefor without imposing penalties in excess of Euro 15,000
or its equivalent and without resulting in an encumbrance having
priority to the Banks or any Security purported to be granted by or
created pursuant to the Security Documents (save to the extent
payment thereof is being contested in good faith by the Borrower,
appropriate reserves have been made by the Borrower, and where
payment thereof can lawfully be withheld and would not result in an
encumbrance having priority to the Security created or evidenced by
the Security Documents); and
(b) all lawful claims which, if unpaid, would by law become encumbrances
upon its assets.
- 78 -
24.11 SECURITY PRESERVATION
The Borrower shall at its own expense, take all such action at the times
and in the manner specified as conditions subsequent to the making of any
Loans under this Agreement set out in Schedule 9 (Security Documents -
Conditions Precedent and Conditions Subsequent) and as the Security Agents
may reasonably require for the purpose of perfecting or protecting the
Banks' rights under and preserving the security interests intended to be
created by any of the Security Documents and shall grant and perfect such
additional Security over Material Assets as the Off Shore Security Agent
may require.
24.12 INSPECTION RIGHTS
(a) The Borrower shall permit the Agents and the Security Agents or any
of their representatives, advisers or agents to, without
unreasonably disrupting the Borrower's normal course of business,
inspect its place of business and its books and records during
normal business hours and upon ten (10) days prior notice and shall
permit and authorise the Agents and Security Agents to directly
contact and address questions to the auditors of the Borrower in the
presence of representatives of the Borrower.
(b) The Borrower shall permit the Off Shore Facility Agent and the
Independent Technical Consultant full access, during normal business
hours and upon five (5) Business Days' prior notice, to the Network
and all data and information relating thereto to enable the Off
Shore Facility Agent and the Banks to check the Borrower's
compliance with the terms of this Agreement PROVIDED THAT such
access does not unreasonably disrupt the Borrower's normal course of
business.
(c) The Borrower shall request counterparties to the Project Contracts
to permit the Agents and the Security Agents or any of their
representatives, advisors or agents to make appropriate inspections
on the basis set out in paragraph (a) above.
24.13 PAYMENTS TO THE BORROWER
The Borrower shall ensure that all monies received by it are paid into the
Proceeds and Revenue Accounts.
24.14 NOTIFICATION OF DEFAULTS
The Borrower shall promptly inform the Off Shore Facility Agent of the
occurrence of any default under any Material Contract (howsoever called)
upon becoming aware of it and, upon receipt of a written request to that
effect from the Off Shore Facility Agent, confirm to the Off Shore
Facility Agent that, save as previously notified to the Off Shore Facility
Agent or as notified in such confirmation, no default under any Material
Contract (howsoever called) has occurred.
24.15 CLAIMS PARI PASSU
The Borrower shall ensure that at all times the claims of the Finance
Parties against it under the Finance Documents rank at least pari passu
with the claims of all its other unsecured and unsubordinated creditors
save those whose claims are preferred by any bankruptcy, composition,
insolvency, liquidation, reorganisation, moratorium or other similar laws
of general application.
24.16 ENVIRONMENTAL COMPLIANCE
The Borrower shall in all material respects:
(a) comply with all Environmental Laws; and
- 79 -
(b) obtain and maintain any Environmental Permits required in connection
with its business and take all reasonable steps in anticipation of
known or expected future changes to or obligations under the same.
24.17 ENVIRONMENTAL CLAIMS
The Borrower shall inform the Off Shore Facility Agent in writing as soon
as reasonably practicable upon becoming aware of the same:
(a) if any Environmental Claim has been commenced or (to the best of the
Borrower's knowledge and belief) is threatened against the Borrower,
or
(b) of any facts or circumstances which will or are reasonably likely to
result in any Environmental Claim being commenced or threatened
against the Borrower.
24.18 REAL ESTATE SITE LEASES AND OTHER CONTRACTS RELATING TO THE USE OF LAND
(a) The Borrower shall exercise all of its rights and/or options to
extend the term of, and shall not exercise any options to terminate,
any of the real estate site leases or other contracts relating to
the use of land unless it would not:
(i) cause an interruption to the operation of the Network; or
(ii) be necessary to the operation of the Project; and
(iii) affect the Security created under the Security Documents.
(b) The Borrower shall validly register at the competent Slovenian land
registry its rights of use and/or of entry against the respective
owner obtained according to any real estate site lease upon which
Material Assets subject to the Asset and Licence Pledge and Lease
Contracts Assignment Agreement are situated within nine (9) Months
from the date of this Agreement.
(c) The Borrower shall obtain the consent of each of the owners of the
land the subject of the lease agreements which are the subject of
the Lease Agreement Assignments within nine (9) Months from the date
of this Agreement.
24.19 NEGATIVE PLEDGE
The Borrower shall not:
(a) create or permit to subsist any Security over any of its assets.
(b) (i) sell, transfer or otherwise dispose of any of its assets on
terms whereby they are or may be leased to or re-acquired by the
Borrower;
(ii) sell, transfer or otherwise dispose of any of its receivables
on recourse terms;
(iii) enter into any arrangement under which money or the benefit of
a bank or other account may be applied, set-off or made
subject to a combination of accounts; or
(iv) enter into any other preferential arrangement having a similar
effect to the arrangements set out in paragraphs (i) to (iii)
above,
in circumstances where the arrangement or transaction is entered
into primarily as a method of raising Financial Indebtedness or of
financing the acquisition of an asset;
- 80 -
(c) Paragraphs (a) and (b) above do not apply to Permitted Encumbrances.
24.20 DISPOSAL
(a) The Borrower shall not enter into a single transaction or a series
of transactions (whether related or not) and whether voluntary or
involuntary to sell, lease, transfer to a third party or otherwise
dispose of any asset or remove any Material Asset which is subject
to the Asset and Licence Pledge and Lease Contracts Assignment
Agreement from its original site without the prior written consent
of the Off Shore Facility Agent (such consent not to be unreasonably
withheld or delayed).
(b) Paragraph (a) above does not apply to Permitted Asset Sales PROVIDED
THAT the proceeds of such sales are applied in accordance with
Clause 23.5 (Sale Proceeds Account).
24.21 ARM'S LENGTH TERMS
The Borrower shall not incur any liability to or enter into any contract
with or for the benefit of any Sponsor or any of its Affiliates, (other
than in relation to Subordinated Loans and the Management Agreement)
otherwise than on terms no less favourable to the Borrower than arm's
length terms in the ordinary course of business.
24.22 BANK ACCOUNTS
The Borrower shall not open any bank accounts except:
(a) as provided in this Agreement;
(b) Permitted Accounts; or
(c) with the prior written consent of the Off Shore Facility Agent and
subject to the Borrower's compliance with any conditions attached
thereto,
PROVIDED THAT in each case such accounts are secured to the satisfaction
of the Off Shore Facility Agent.
24.23 MERGER
The Borrower shall not enter into any amalgamation, demerger, merger or
corporate reconstruction without the consent of the Off Shore Facility
Agent (in the case of a corporate reconstruction not to be unreasonably
withheld or delayed).
24.24 LOANS AND GUARANTEES
The Borrower shall not make or permit to subsist any loans, grant or
permit to subsist any credit or give any guarantee or indemnity (except as
required under any of the Finance Documents) to or for the benefit of any
person or otherwise voluntarily assume any liability, whether actual or
contingent, in respect of any obligation of any other person other than:
(a) with the prior written consent of the Off Shore Facility Agent;
(b) advances to or guarantees in respect of employees, in accordance
with prudent industry practice, not to exceed in aggregate Euro
500,000 or its equivalent at any one time; or
(c) trade credit to unrelated parties in the ordinary course of business
of the Borrower PROVIDED THAT such trade credit is payable within 90
days.
- 81 -
24.25 CHANGE OF BUSINESS
The Borrower shall not make any material changes to the general nature of
its business as carried on at the date hereof, or carry on any other
business other than those defined in the Business Plan without the prior
written consent of the Banks (such consent not to be unreasonably withheld
or delayed).
24.26 NEW CONTRACTS
The Borrower shall not without the prior written consent of the Off Shore
Facility Agent enter into any Project Contract and/or Material Contract
which could reasonably be expected to cause the Borrower to exceed its
approved obligations as set out in the Business Plan. The Borrower shall
promptly send a copy of all Material Contracts it enters into to the Off
Shore Facility Agent.
24.27 AMENDMENTS
The Borrower shall not terminate or consent to any modification,
substitution or amendment of:
(a) any Material Contract without the prior written consent of the Off
Shore Facility Agent (acting on the instructions of the Majority
Banks) which, in the case of the documents referred to in Clause
24.27(a)(iii), shall not be unreasonably withheld PROVIDED THAT
(other than in respect of a Finance Document) no such consent shall
be required if:
(i) such modification, substitution or amendment relates to the
same subject matter (and in the case of substitution such
Material Contract is substituted by another contract) and does
not result in:
(1) an increase in the obligations of the Borrower; and
(2) a deterioration of the rights of the Borrower;
(ii) any Material Contract expires in accordance with its terms; or
(iii) **CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT**
(b) any other Authorisation or other agreement where such amendment
would materially adversely affect the Borrower's business or
financial condition or on the ability of the Borrower to comply with
its obligations hereunder.
24.28 APPLICATION OF UTILISATIONS
The Borrower shall not use the Facilities other than in or towards the
purposes described in Clause 3 (Purpose).
24.29 APPLICATION OF MONEYS ON PROCEEDS AND REVENUE ACCOUNTS
The Borrower shall not make any distribution, dividend or payment
(including under any Subordinated Loan) other than in accordance with
Clause 23.3(d)(x) (Application of moneys on the Proceeds and Revenue
Accounts).
24.30 SUBSIDIARIES
Except as provided in Clause 24.33 (UMTS and other licences), the Borrower
shall not create any Subsidiary or permit to exist any interest in any
person (whether by shareholding, joint venture, partnership, whether any
income or profits are, or would be, shared or transferred with any other
party or otherwise) without the prior written consent of the Banks (such
consent not be unreasonably withheld or delayed) and the
- 82 -
Borrower shall not dispose of, or liquidate, or do or permit to occur any
of the corporate actions referred to in Clause 24.23 (Merger) in relation
to any Subsidiary or interest in a person without the prior written
consent of the Banks (such consent not to be unreasonably withheld or
delayed).
24.31 INDEBTEDNESS
The Borrower shall not create, assume, incur or otherwise permit to be
outstanding any indebtedness for borrowed money (including Financial
Indebtedness) other than:
(a) indebtedness for borrowed money under the Finance Documents;
(b) indebtedness for borrowed money under the Sponsors Unsecured Loan
Agreement;
(c) indebtedness for borrowed money under the Existing WWIC Loan
Agreement up to an aggregate principal amount of US Dollars
25,000,000 or its equivalent PROVIDED THAT such indebtedness is
converted to Sponsor Contributions and Sponsors Unsecured Loans in
accordance with Schedule 6 and the amount remaining is repaid in
accordance with Clause 23.8 (Loan Proceeds Account);
(d) indebtedness for borrowed money to any of the Shareholders or
Sponsors PROVIDED THAT such indebtedness for borrowed money is made
by way of Subordinated Loan;
(e) indebtedness for borrowed money other than under paragraphs (a) or
(b) above which does not exceed Euro 1,000,000 in aggregate at any
time other than Subordinated Loans; and
(f) indebtedness incurred with the prior written consent of the Off
Shore Facility Agent (acting on the instructions of the Majority
Banks) (together "PERMITTED INDEBTEDNESS").
24.32 CAPITAL
The Borrower shall not decrease, buy-back or redeem its Share Capital or
the rights or obligations applicable in respect of any Share or increase
or alter its Share Capital unless Security in respect thereof is granted
to the Senior Creditors.
24.33 UMTS AND OTHER LICENCES
(a) The Borrower shall not, without the prior written consent of the
Banks, engage in any UMTS Activities or other telecommunication
service activities other than under the Licence.
(b) Paragraph (a) above does not apply if all of the following
conditions are satisfied and evidence of compliance with such
conditions (in form and substance satisfactory to the Off Shore
Facility Agent (acting reasonably) is provided to the Off Shore
Facility Agent:
(i) the purchase of any UMTS licence is carried out by a
subsidiary of the Borrower the legal and economic interests in
which are owned and controlled as to at least 50.1% by the
Borrower (the "UMTS SUBSIDIARY") and pledged to the Senior
Creditors;
(ii) any contributions (whether by the purchase of shares, making
of loans or otherwise) made by the Borrower to the UMTS
Subsidiary shall only be permitted if such contributions are
made by the Sponsors or Shareholders making Sponsor
Contributions to the Borrower (in
- 83 -
addition to any payment obligations the Sponsors or
Shareholders have pursuant to the Sponsors' and Shareholders'
Undertaking and Completion Guarantee) as Equity Contributions
or Subordinated Loans to enable the Borrower to make such
contributions;
(iii) at the time of making such contributions to the UMTS
Subsidiary the Borrower has met all of its payment
obligations, when due, in accordance with Clause 23.3(d)(i) to
(vii) (Application of moneys on the Proceeds and Revenue
Accounts);
(iv) in no event shall the UMTS Subsidiary exploit or operate under
any UMTS licence without the prior written consent of the
Banks who shall be entitled to withhold such consent if, in
such Banks' reasonable opinion, the Borrower would be unlikely
to perform its obligations under the Finance Documents
PROVIDED THAT if such consent is not provided by the Banks
such UMTS licence may be sold by the UMTS Subsidiary on a
commercial arm's length basis and the proceeds thereof may,
provided no Event of Default has occurred and is continuing,
be paid by the Borrower to the Sponsors notwithstanding the
provisions of Clause 23.3 (Application of moneys on the
Proceeds and Revenue Accounts); and
(v) the shares or interests owned or held in the UMTS Subsidiary
by any party (other than the Borrower) do not contain or are
subject to terms that are more favourable to that party than
the Borrower or conditions that are less onerous than those to
which the Borrower is subject.
The Borrower shall promptly notify the Off Shore Facility Agent if it or
any of its Affiliates acquires any telecommunications business or any new
licence (excluding any renewal of or addition to any existing
telecommunications licence), in particular any UMTS licence.
24.34 HEDGING
(a) The Borrower shall maintain interest rate hedging in accordance with
the Hedging Letter.
(b) The Borrower may hedge its interest rate exposure under this
Agreement with a Bank and any indebtedness arising under any Hedging
Agreement with such Bank shall be secured by the Security Documents
pari passu with indebtedness arising pursuant to this Agreement.
24.35 TREASURY TRANSACTIONS
The Borrower shall not enter into any swap, cap, ceiling, floor, collar,
option, futures transaction, forward rate agreement, foreign exchange
transaction or other treasury or derivative transaction or any similar
instrument other than in accordance with Clause 24.34 (Hedging).
24.36 PROHIBITED PAYMENTS
The Borrower will not and will ensure that its officers, directors,
employees and agents acting on its behalf will not offer, give, insist on,
receive or solicit any illegal payment or advantage to influence the
action of any person in connection with the Project.
24.37 LICENCE ASSIGNMENT AGREEMENT
The Borrower will in accordance with instructions reasonably given by the
Off Shore Facility Agent use reasonable efforts to seek the consent of the
Government to the
- 84 -
assignment of the rights of the Borrower under the Licence pursuant to the
Licence Assignment Agreement.
24.38 BILLS OF EXCHANGE AND SECURITY DEPOSITS
The Borrower may issue bills of exchange or security deposits to third
parties in respect of Permitted Indebtedness provided that:
(a) the liability secured by any Security including any bills of
exchange and by any security deposit shall not exceed in aggregate
Euro 1,000,000 or its equivalent; and
(b) in the case of bills of exchange issued after the date of this
Agreement, such bills of exchange are in the form set forth in
Schedule 16 ("PERMITTED XXXX OF EXCHANGE") and expressly state the
liability of the Borrower to such third parties.
25. EVENTS OF DEFAULT
25.1 Each of the events or circumstances set out in this Clause 25.1 is an
Event of Default.
25.1.1 NON-PAYMENT
The Borrower does not pay on the due date any amount payable pursuant to a
Finance Document at the place at and in the currency in which it is
expressed to be payable unless payment is made within five (5) Business
Days of its due date.
25.1.2 FINANCIAL COVENANTS AND NETWORK MILESTONES
(a) At any time any of the requirements of Clause 22 (Financial
covenants and network milestones) is not satisfied.
(b) No Event of Default under paragraph (a) above will occur if failure
to satisfy such requirement, if capable of remedy, is remedied
within 30 Business Days (or, if and to the extent that any greater
grace period applies under clause 2.3 (Failure of Milestone
completion) of the Sponsors' and Shareholders' Undertaking and
Completion Guarantee, within such grace period),
PROVIDED THAT in the event that any of the requirements of Clause 22
(Financial covenants and network milestones) (other than Clauses
22.2(a) and (b)) is not satisfied, then within five (5) Business
Days of delivery of the Covenant Compliance Certificate, the
Shareholders may, in addition to the Sponsors' obligations under the
Sponsors' and Shareholders' Undertaking and Completion Guarantee,
cure such failure to satisfy any such requirement by making
Subordinated Loans and/or Equity Contributions to the Borrower which
Subordinated Loans and/or Equity Contributions shall be treated as
(i) having been contributed on the last day of the relevant Quarter
and (ii) additional capital or revenues of the Borrower.
25.1.3 OBLIGATIONS
(a) The Borrower fails duly to perform or comply:
(i) with any of its obligations under the Security Documents;
(ii) in any respect with its obligations under the Finance
Documents that are stated to be subject to any materiality or
Material Adverse Effect qualification or in any material
respect with its other obligations under the Finance
Documents; or
- 85 -
(iii) with any payment obligation in respect of which a xxxx of
exchange has been issued or security deposit given and such
xxxx of exchange is presented for payment or such security
deposit is retained or set off.
(b) No Event of Default under paragraph (a) above will occur if failure
to comply is capable of remedy and is remedied within ten (10)
Business Days.
25.1.4 BREACH OF MATERIAL CONTRACTS
(a) Any Material Contract is modified or amended without the consent of
the Off Shore Facility Agent or materially breached (other than a
breach by a Finance Party of its obligations under the Finance
Documents).
(b) Any Material Contract is cancelled, revoked or terminated prior to
the end of its term without the consent of the Off Shore Facility
Agent.
(c) No Event of Default under paragraph (a) above will occur if the
relevant breach is capable of remedy and is remedied within any
grace period applicable under such Material Contract.
(d) No Event of Default under paragraph (a) or (b) above will occur if
such Material Contract is permitted to be modified, amended,
substituted, terminated or expire in accordance with the terms of
Clause 24.27(a) (Amendments).
25.1.5 MISREPRESENTATION
Any representation or statement made or deemed to be made by the Borrower
in the Finance Documents or in any notice or other document or certificate
delivered by or on behalf of the Borrower under or in connection with any
Finance Document is or proves to have been incorrect or misleading in any
material respect when made or deemed to be made.
25.1.6 CROSS DEFAULT/FINANCIAL INDEBTEDNESS
(a) Any Financial Indebtedness of the Borrower or any of the Sponsors is
not paid when due nor within any original applicable grace period.
(b) Any Financial Indebtedness of the Borrower or any of the Sponsors is
declared to be or otherwise becomes due and payable prior to its
specified maturity as a result of an event of default (however
described).
(c) Any commitment for any Financial Indebtedness of the Borrower or any
of the Sponsors is cancelled or suspended by a creditor of the
Borrower or any of the Sponsors as a result of an event of default
(however described).
(d) Any creditor of the Borrower or any of the Sponsors becomes entitled
to declare any Financial Indebtedness of the Borrower or any of the
Sponsors due and payable prior to its specified maturity as a result
of an event of default (however described).
No Event of Default will occur under this Clause 25.1.6 if the aggregate
amount of Financial Indebtedness or commitment for Financial Indebtedness
falling within paragraphs (a) to (d) above is less than Euro 100,000 in
the case of the Borrower and Euro 500,000 in the case of each Sponsor (or
its equivalent in any other currency or currencies (which, in the case of
SIT, shall be calculated at the exchange rate (middle rate) of Banka
Slovenije on the calculation date)).
- 86 -
25.1.7 AUTHORISATIONS
The Borrower fails to comply with the terms and conditions of the Licence
and/or any Authorisation necessary for the Borrower's business where
(except in the case of the Licence) such failure to comply with the terms
and conditions of such Authorisation would have a Material Adverse Effect
or the Licence and/or such Authorisation is revoked or suspended where
(except in the case of the Licence) such revocation or suspension of such
Authorisation would have a Material Adverse Effect.
25.1.8 INSOLVENCY
(a) The Borrower or any of the Sponsors (together the "DEBTORS") is
unable or admits inability to pay its debts as they fall due,
suspends making payments on any of its debts or, by reason of actual
or anticipated financial difficulties, commences negotiations with
one or more of its creditors with a view to rescheduling any of its
indebtedness.
(b) Under the laws of the jurisdiction to which the Debtor is subject,
the Debtor is deemed to be insolvent or capable of being wound-up.
(c) A moratorium is declared in respect of any indebtedness of any
Debtor.
25.1.9 INSOLVENCY PROCEEDINGS
Any corporate action, legal proceedings or other procedure or step is
taken in relation to:
(a) the suspension of payments, a moratorium of any indebtedness,
winding-up, dissolution, administration or reorganisation (by way of
voluntary arrangement, scheme of arrangement or otherwise) of the
Borrower;
(b) a composition, assignment or arrangement with any creditor (other
than any arrangement made in the ordinary course of business) of the
Borrower;
(c) the appointment of a liquidator, receiver, administrator,
administrative receiver, compulsory manager or other similar officer
in respect of the Borrower or any of its assets; or
(d) enforcement of any Security (other than Permitted Encumbrances) over
any assets of the Borrower,
or any analogous procedure or step is taken in any jurisdiction PROVIDED
THAT no Event of Default will occur under this Clause 25.1.9 if any such
event is, in the reasonable opinion of the Majority Banks, frivolous or
vexatious or dismissed or discharged (if capable of being dismissed or
discharged) within 20 days from the commencement of such event.
25.1.10 LITIGATION
Any litigation, arbitration, administrative proceedings or governmental or
regulatory investigations, proceedings or disputes are commenced or
threatened against the Borrower or its respective assets or revenues or
there are any circumstances likely to give rise to any such litigation,
arbitration, administrative proceedings or governmental or regulatory
investigations, proceedings or disputes where it would be reasonably
likely to be adversely determined and have a Material Adverse Effect.
25.1.11 OWNERSHIP OF THE BORROWER
Western Wireless International Corporation holds less than 80% of the
Shares, directly or indirectly, without the prior written consent of the
Off Shore Facility Agent (acting on the instructions of the Majority
Banks).
- 87 -
25.1.12 ILLEGALITY
At any time it is or becomes unlawful for the Borrower to perform or
comply with any of its material obligations under the Finance Documents or
any of the material obligations of the Borrower hereunder or thereunder
are not or cease to be legal, valid and binding.
25.1.13 SPONSORS' AND SHAREHOLDERS' UNDERTAKING AND COMPLETION GUARANTEE
Any breach by a Sponsor or Shareholder of clauses 2 (Completion guarantee)
to 11 (No subrogation) of the Sponsors' and Shareholders' Undertaking and
Completion Guarantee or any other breach that is likely to result in a
Material Adverse Effect or at any time it is or becomes unlawful for a
Sponsor or Shareholder to perform or comply with its material obligations
thereunder or any of the material obligations of any of the Sponsors or
Shareholders thereunder are not or cease to be legal, valid and binding.
25.1.14 SECURITY
From and after the date required under this Agreement, any Security
Document is not in full force and effect or does not create in favour of
the parties thereto or the Security Agent for the benefit of the Secured
Creditors the Security which it is expressed to create with the ranking
and priority it is expressed to have.
25.1.15 GOVERNMENTAL INTERVENTION
By or under the authority of any government, (a) the management of the
Borrower is wholly or partially displaced or the authority of the Borrower
in the conduct of its business is wholly or partially curtailed in any
material respect or (b) all or a majority of the issued Shares or the
whole or any part (the book value of which is five per cent. or more of
the book value of the whole) of revenues or assets of the Borrower is
seized, nationalised, expropriated or compulsorily acquired.
25.1.16 REPUDIATION
The Borrower repudiates a Material Contract or evidences an intention to
repudiate a Material Contract (otherwise than as permitted under Clause
24.27 (Amendments).
25.1.17 MATERIAL ADVERSE EFFECT
Any event or series of events which have or could reasonably be expected
to have a Material Adverse Effect.
25.1.18 COMPETITION
Western Wireless Corporation or any of its Affiliates participates in any
way in any telecommunication system in Slovenia except the Project or as
provided and in accordance with the terms and conditions set out in Clause
24.33 (UMTS and other licences) or any of the conditions set out in Clause
24.33 (UMTS and other licences) do not remain satisfied.
25.2 ACCELERATION
On and at any time after the occurrence and during the continuance of an
Event of Default the Off Shore Facility Agent may, and shall if so
directed by the Majority Banks, by notice to the Borrower:
(a) cancel the Total Commitments whereupon they shall immediately be
cancelled;
(b) declare that all or part of the Loans, together with accrued
interest, and all other amounts accrued or outstanding under the
Finance Documents (other than the Lucent Loan Agreement and Sponsors
Unsecured Loan Agreement) be immediately due and payable, whereupon
they shall become immediately due and payable;
- 88 -
(c) declare that all or part of the Loans be payable on demand,
whereupon they shall immediately become payable on demand by the
Agent on the instructions of the Majority Banks; and/or
(d) require the Borrower to procure that the Issuing Bank's actual or
contingent obligations in relation to each SIT Facility Guarantee or
LC are cancelled or discharged in full or provide 100% cash cover to
the satisfaction of the Issuing Bank and the SIT Facility Banks
together with an authorisation from the Borrower (in form and
substance satisfactory to the Issuing Bank) to the Issuing Bank
permitting such cash cover to be set off against any liability of
the Issuing Bank and the SIT Facility Banks under such SIT Facility
Guarantee or LC.
- 89 -
SECTION 10
CHANGES TO PARTIES
26. CHANGES TO THE PARTIES
26.1 ASSIGNMENTS AND TRANSFERS BY THE BANKS
Subject to this Clause 26, a Bank (the "EXISTING BANK") may:
(a) assign any of its claims against the Borrower in a minimum amount
of, in the case of a Euro Facility Bank, Euro 5,000,000, or in the
case of a SIT Facility Bank, SIT 600,000,000 provided that if a Bank
has as its only remaining claim against the Borrower a claim in an
amount which is less than the relevant amounts set out herein, it
may assign such lesser amount; or
(b) transfer any of its rights and obligations,
to another bank or financial institution or to a trust, fund or other
entity which is regularly engaged in or established for the purpose of
making, purchasing or investing in loans, securities or other financial
assets (the "NEW BANK").
26.2 CONDITIONS OF ASSIGNMENT OR TRANSFER
(a) The consent of the Borrower, the Off Shore Facility Agent and, in
the case of an assignment or transfer by a SIT Facility Bank, the On
Shore Facility Agent is required for an assignment or transfer by a
Bank, unless the assignment or transfer is to another Bank or an
Affiliate of a Bank or if an Event of Default has occurred and is
continuing on the Transfer Date.
(b) The consent of the Borrower to an assignment or transfer must not be
unreasonably withheld or delayed. The Borrower will be deemed to
have given its consent five (5) Business Days after the Borrower has
received the Bank's written request for such consent unless consent
is expressly refused by the Borrower within that time.
(c) An assignment will only be effective on receipt by the Agent of
written confirmation from the New Bank (in form and substance
satisfactory to the Agent) that the New Bank will assume the same
obligations to the other Finance Parties as it would be under if it
were an Existing Bank.
(d) A transfer will only be effective if the procedure set out in Clause
26.5 (Procedure for transfer) is complied with.
(e) If:
(i) a Bank assigns or transfers any of its rights or obligations
under the Material Contracts or changes its Facility Office;
and
(ii) as a result of circumstances existing at the date the
assignment, transfer or change occurs, the Borrower would be
obliged to make a payment to the New Bank or Bank acting
through its new Facility Office under Clause 15 (Tax gross-up
and indemnities) or Clause 16 (Increased Costs),
then the New Bank or Bank acting through its new Facility Office is
only entitled to receive payment under those Clauses to the same
extent as the Existing Bank or Bank acting through its previous
Facility Office would have been if the assignment, transfer or
change had not occurred.
- 90 -
26.3 ASSIGNMENT OR TRANSFER FEE
The New Bank shall, on the date upon which an assignment or transfer takes
effect, pay to the Agent (for its own account) a fee of Euro 1,000.
26.4 LIMITATION OF RESPONSIBILITY OF EXISTING BANKS
(a) Unless expressly agreed to the contrary, an Existing Bank makes no
representation or warranty and assumes no responsibility to a New
Bank for:
(i) the legality, validity, effectiveness, adequacy or
enforceability of the Transaction Documents or any other
documents;
(ii) the financial condition of the Borrower;
(iii) the performance and observance by the Borrower of its
obligations under the Transaction Documents or any other
documents; or
(iv) the accuracy of any statements (whether written or oral) made
in or in connection with any Transaction Document or any other
document,
and any representations or warranties implied by law are excluded to
the broadest extent legally permissible.
(b) Each New Bank confirms to the Existing Bank and the other Finance
Parties that it:
(i) has made (and shall continue to make) its own independent
investigation and assessment of the financial condition and
affairs of the Borrower and its related entities in connection
with its participation in this Agreement and has not relied
exclusively on any information provided to it by the Existing
Bank in connection with any Transaction Document; and
(ii) will continue to make its own independent appraisal of the
creditworthiness of the Borrower and its related entities
whilst any amount is or may be outstanding under the
Transaction Documents or any Commitment is in force.
(c) Nothing in any Transaction Document obliges an Existing Bank to:
(i) accept a re-transfer from a New Bank of any of the rights and
obligations assigned or transferred under this Clause 26; or
(ii) support any losses directly or indirectly incurred by the New
Bank by reason of the non-performance by the Borrower of its
obligations under the Transaction Documents or otherwise.
26.5 PROCEDURE FOR TRANSFER
(a) Subject to the conditions set out in Clause 26.2 (Conditions of
assignment or transfer) a transfer is effected in accordance with
paragraph (b) below when the Agent executes an otherwise duly
completed Transfer Certificate delivered to it by the Existing Bank
and the New Bank. The Agent shall, as soon as reasonably practicable
after receipt by it of a duly completed Transfer Certificate as set
out in Schedule 10 (Form of Transfer Certificates) appearing on its
face to comply with the terms of this Agreement and delivered in
accordance with the terms of this Agreement, execute that Transfer
Certificate.
- 91 -
(b) On the Transfer Date:
(i) to the extent that in the Transfer Certificate the Existing
Bank seeks to transfer its rights and obligations under the
Finance Documents the Borrower and the Existing Bank shall be
released from further obligations towards one another under
the Finance Documents and their respective rights against one
another shall be cancelled (being the "DISCHARGED RIGHTS AND
OBLIGATIONS");
(ii) the Borrower and the New Bank shall assume obligations towards
one another and/or acquire rights against one another which
differ from the Discharged Rights and Obligations only insofar
as the Borrower and the New Bank have assumed and/or acquired
the same in place of the Borrower and the Existing Bank;
(iii) the Off Shore Facility Agent, the On Shore Facility Agent, the
Off Shore Security Agent, the On Shore Security Agent, the
Issuing Bank, each Arranger, the New Bank and other Banks
shall acquire the same rights and assume the same obligations
between themselves as they would have acquired and assumed had
the New Bank been an Original Bank with the rights and/or
obligations acquired or assumed by it as a result of the
transfer and to that extent the Agent, the Arranger and the
Existing Bank shall each be released from further obligations
to each other under this Agreement; and
(iv) the New Bank shall become a Party as a "Bank".
For the avoidance of doubt, a transfer shall not constitute a novation.
The identity of the transferred obligations and rights shall not be
affected by the transfer.
26.6 DISCLOSURE OF INFORMATION
26.6.1 Any Bank may disclose to any of its Affiliates and any other person:
(a) to (or through) whom that Bank assigns or transfers (or may
potentially assign or transfer) all or any of its rights and
obligations under this Agreement;
(b) with (or through) whom that Bank enters into (or may potentially
enter into) any sub-participation in relation to, or any other
transaction under which payments are to be made by reference to,
this Agreement or the Borrower; or
(c) to whom, and to the extent that, information is required to be
disclosed by any applicable law or regulation,
any information about the Borrower and the Transaction Documents as that
Bank shall consider appropriate if, in relation to paragraphs (a) and (b)
above, the person to whom the information is to be given has entered into
a Confidentiality Undertaking.
26.6.2 Subject to Clause 26.6.1, each Bank shall keep confidential and not,
without the prior written consent of the Borrower, use any information
supplied by the Borrower or any Sponsor under any Finance Document. This
Clause 26.6.2 shall not apply to disclosure of information:
(a) that is in the public domain (other than as a result of a breach of
the undertakings herein);
- 92 -
(b) that is required to be disclosed by applicable law, any court or
tribunal of competent jurisdiction, rating agency, governmental
body, banking or taxation authority or by any stock exchange upon
which it is listed or intends to list;
(c) in connection with any legal proceedings arising out of or in
connection with the Finance Documents or the performance of its
obligations under the Finance Documents; and/or
(d) to its officers, employees, directors, auditors, legal or other
professional advisors.
26.7 ASSIGNMENTS AND TRANSFER BY THE BORROWER
The Borrower may not assign any of its rights or transfer any of its
rights or obligations under the Finance Documents.
- 93 -
SECTION 11
THE FINANCE PARTIES
27. ROLE OF THE AGENT AND THE ARRANGER
27.1 APPOINTMENT OF THE AGENTS
(a) Each other Finance Party appoints the Off Shore Facility Agent to
act as its agent under and in connection with the Finance Documents
in respect of the Euro Facility.
(b) Each other Finance Party appoints the On Shore Facility Agent to act
as its facility agent under and in connection with the Finance
Documents in respect of the SIT Facility.
(c) Each other Finance Party authorises the Agents to exercise the
rights, powers, authorities and discretions specifically given to
the respective Agent under or in connection with the Finance
Documents together with any other incidental rights, powers,
authorities and discretions.
27.2 DUTIES OF THE AGENTS
(a) Each Agent shall promptly forward to a Party the original or a copy
of any document which is delivered to such Agent for that Party by
any other Party.
(b) Except where a Finance Document specifically provides otherwise, an
Agent is not obliged to review or check the adequacy, accuracy or
completeness of any document it forwards to another Party.
(c) If an Agent receives notice from a Party referring to this
Agreement, describing a mandatory prepayment event set out in Clause
14.2 (Change of control, Withdrawal of the Licence and Abandonment
of the Project), an Event of Default or Potential Event of Default
and stating that the circumstance described is a mandatory
prepayment event set out in Clause 14.2 (Change of control,
Withdrawal of the Licence and Abandonment of the Project), an Event
of Default or Potential Event of Default, it shall promptly notify
the Finance Parties.
(d) If an Agent is aware of the non-payment of any principal, interest,
commitment fee or other fee payable to a Finance Party (other than
an Agent or an Arranger) under this Agreement it shall promptly
notify the other Finance Parties.
(e) Each Agent's duties under the Finance Documents are solely
mechanical and administrative in nature.
27.3 ROLE OF AN ARRANGER
Except as specifically provided in the Finance Documents, an Arranger has
no obligations of any kind to any other Finance Party under or in
connection with any Finance Document.
27.4 NO FIDUCIARY DUTIES
(a) Nothing in this Agreement constitutes an Agent or an Arranger as a
trustee or fiduciary of any other person.
(b) Neither an Agent nor an Arranger shall be bound to account to any
Bank for any sum or the profit element of any sum received by it for
its own account.
- 94 -
27.5 RIGHTS AND DISCRETIONS OF THE AGENT
(a) Each Agent may rely on:
(i) any representation, notice or document believed by it to be
genuine, correct and appropriately authorised; and
(ii) any statement made by a director, authorised signatory or
employee of any person regarding any matters which may
reasonably be assumed to be within his knowledge or within his
power to verify.
(b) Each Agent may assume (unless it has received notice to the contrary
in its capacity as agent for the Banks) that:
(i) no Event of Default or Potential Event of Default has occurred
(unless it has actual knowledge of an Event of Default or
Potential Event of Default arising under Clause 25.1.1
(Non-payment)); and
(ii) any right, power, authority or discretion vested in any Party
or the Majority Banks has not been exercised.
(c) Each Agent may engage, pay for and rely on the advice or services of
any lawyers, accountants, surveyors or other experts.
(d) Each Agent may act in relation to the Finance Documents through its
personnel and agents.
(e) Each Agent may disclose to any other Party any information it
reasonably believes it has received as agent under this Agreement.
(f) Notwithstanding any other provision of any Finance Document to the
contrary, neither an Agent nor an Arranger is obliged to do or omit
to do anything if it would or might in its reasonable opinion
constitute a breach of any law or a breach of a fiduciary duty or
duty of confidentiality.
27.6 MAJORITY BANKS' INSTRUCTIONS
(a) Unless a contrary indication appears in a Finance Document, an Agent
shall (i) exercise any right, power, authority or discretion vested
in it as Agent in accordance with any instructions given to it by
the Majority Banks (or, if so instructed by the Majority Banks,
refrain from exercising any right, power, authority or discretion
vested in it as Agent) and (ii) not be liable for any act (or
omission) if it acts (or refrains from taking any action) in
accordance with an instruction of the Majority Banks.
(b) Unless a contrary indication appears in a Finance Document, any
instructions given by the Majority Banks will be binding on all the
Finance Parties.
(c) Each Agent may refrain from acting in accordance with the
instructions of the Majority Banks (or, if appropriate, the Banks)
until it has received such security as it may require for any cost,
loss or liability (together with any associated VAT) which it may
incur in complying with the instructions.
(d) In the absence of instructions from the Majority Banks (or, if
appropriate, the Banks), each Agent may act (or refrain from taking
action) as it considers to be in the best interest of the Banks.
- 95 -
(e) An Agent is not authorised to act on behalf of a Bank (without first
obtaining that Bank's consent) in any legal or arbitration
proceedings relating to any Finance Document.
27.7 RESPONSIBILITY FOR DOCUMENTATION
Neither an Agent nor an Arranger:
(a) is responsible for the adequacy, accuracy and/or completeness of any
information (whether oral or written) supplied by such Agent, such
Arranger or any other person given in or in connection with any
Finance Document, the Information Memorandum or the Legal Due
Diligence Report; or
(b) is responsible for the legality, validity, effectiveness, adequacy
or enforceability of any Finance Document or any other agreement,
arrangement or document entered into, made or executed in
anticipation of or in connection with any Finance Document.
27.8 EXCLUSION OF LIABILITY
(a) Without limiting paragraph (b) below, an Agent will not be liable
for any action taken or omitted by it under or in connection with
any Finance Document, unless directly caused by its gross negligence
or wilful misconduct.
(b) No Finance Party may take any proceedings against any officer,
employee or agent of an Agent in respect of any claim it might have
against such Agent or in respect of any act or omission of any kind
by that officer, employee or agent in relation to any Finance
Document and any officer, employee or agent of such Agent may rely
on this Clause 27.8.
(c) An Agent will not be liable for any delay (or any related
consequences) in crediting an account with an amount required under
the Finance Documents to be paid by such Agent if such Agent has
taken all necessary steps as soon as reasonably practicable to
comply with the regulations or operating procedures of any
recognised clearing or settlement system used by such Agent for that
purpose.
27.9 BANKS' INDEMNITY TO THE AGENT
Each Bank shall (in proportion to its share of the Total Commitments or,
if the Total Commitments are then zero, to its share of the Total
Commitments immediately prior to their reduction to zero) indemnify an
Agent, within three (3) Business Days of demand, against any cost, loss or
liability incurred by such Agent (otherwise than by reason of such Agent's
gross negligence or wilful misconduct) in acting as Agent under the
Finance Documents (unless such Agent has been reimbursed by the Borrower
pursuant to a Finance Document).
27.10 RESIGNATION OF THE AGENT
(a) Each Agent may resign and appoint one of its Affiliates acting
through an office as successor by giving notice to the other Finance
Parties and the Borrower.
(b) Alternatively each Agent may resign by giving notice to the other
Finance Parties and the Borrower, in which case the Majority Banks
(after consultation with the Borrower) may appoint a successor
Agent.
(c) If the Majority Banks have not appointed a successor Agent in
accordance with paragraph (b) above within thirty (30) days after
notice of resignation was
- 96 -
given, a retiring Agent (after consultation with the Borrower) may
appoint a successor Agent.
(d) The retiring Agent shall, at its own cost, make available to the
successor Agent such documents and records and provide such
assistance as the successor Agent may reasonably request for the
purposes of performing its functions as Agent under the Finance
Documents.
(e) An Agent's resignation notice shall only take effect upon the
appointment of a successor.
(f) Upon the appointment of a successor, the retiring Agent shall be
discharged from any further obligation in respect of the Finance
Documents but shall remain entitled to the benefit of this Clause
27. Its successor and each of the other Parties shall have the same
rights and obligations amongst themselves as they would have had if
such successor had been an original Party.
27.11 CONFIDENTIALITY
(a) In acting as agent for the Finance Parties, an Agent shall be
regarded as acting through its agency division which shall be
treated as a separate entity from any other of its divisions or
departments.
(b) If information is received by another division or department of an
Agent, it may be treated as confidential to that division or
department and such Agent shall not be deemed to have notice of it.
27.12 RELATIONSHIP WITH THE BANKS
Each Agent may treat each Bank as a Bank, entitled to payments under this
Agreement and acting through its Facility Office unless it has received
not less than five (5) Business Days prior notice from that Bank to the
contrary in accordance with the terms of this Agreement.
27.13 CREDIT APPRAISAL BY THE BANKS
Without affecting the responsibility of the Borrower for information
supplied by it or on its behalf in connection with any Finance Document,
each Bank confirms to an Agent and an Arranger that it has been, and will
continue to be, solely responsible for making its own independent
appraisal and investigation of all risks arising under or in connection
with any Finance Document including but not limited to:
(a) the financial condition, status and nature of the Borrower and each
of the Sponsors and Shareholders;
(b) the legality, validity, effectiveness, adequacy or enforceability of
any Transaction Document and any other agreement, arrangement or
document entered into, made or executed in anticipation of, under or
in connection with any Transaction Document;
(c) whether that Bank has recourse, and the nature and extent of that
recourse, against any Finance Party or any of its respective assets
under or in connection with any Transaction Document, the
transactions contemplated by the Transaction Documents or any other
agreement, arrangement or document entered into, made or executed in
anticipation of, under or in connection with any Transaction
Document; and
(d) the adequacy, accuracy and/or completeness of the Initial Business
Plan, the Information Memorandum, Legal Due Diligence Report and any
other
- 97 -
information provided by an Agent, any Finance Party or by any other
person under or in connection with any Transaction Document, the
transactions contemplated by the Transaction Documents or any other
agreement, arrangement or document entered into, made or executed in
anticipation of, under or in connection with any Transaction
Document.
27.14 REFERENCE BANKS
If a Reference Bank (or, if a Reference Bank is not a Bank, the Bank of
which it is an Affiliate) ceases to be a Bank, the Off Shore Facility
Agent shall (in consultation with the Borrower) appoint another Bank or an
Affiliate of a Bank to replace that Reference Bank.
27.15 DUTIES OF THE ON SHORE FACILITY AGENT TO THE OFF SHORE FACILITY AGENT
The On Shore Facility Agent shall:
(a) deliver to the Off Shore Facility Agent on the second Business Day
of each Month, a report including the amount drawndown under the SIT
Facility and the extent of the undrawn SIT Facility Commitment as at
the last Business Day of that Month;
(b) promptly forward to the Off Shore Facility Agent an original or a
copy of any document which is delivered to the On Shore Facility
Agent and/or the On Shore Security Agent by the Borrower or any
party to any of the Transaction Documents; and
(c) immediately upon becoming aware of any breach of any Transaction
Document, Potential Event of Default, Event of Default or any Cash
Shortfall, notify the Off Shore Facility Agent of such breach.
27.16 DEDUCTION FROM AMOUNTS PAYABLE BY THE AGENTS
If any Party owes an amount to an Agent under the Finance Documents such
Agent may, after giving notice to that Party, deduct an amount not
exceeding that amount from any payment to that Party which such Agent
would otherwise be obliged to make under the Finance Documents and apply
the amount deducted in or towards satisfaction of the amount owed. For the
purposes of the Finance Documents that Party shall be regarded as having
received any amount so deducted.
28. CONDUCT OF BUSINESS BY THE FINANCE PARTIES
No provision of this Agreement will:
(a) interfere with the right of any Finance Party to arrange its affairs
(tax or otherwise) in whatever manner it thinks fit;
(b) oblige any Finance Party to investigate or claim any credit, relief,
remission or repayment available to it or the extent, order and
manner of any claim except to the extent set forth in Clause 18
(Mitigation by the Banks); or
(c) oblige any Finance Party to disclose any information relating to its
affairs (tax or otherwise) or any computations in respect of Tax
except to the extent set forth in Clause 15.3 (Tax indemnity) or
Clause 15.4 (Tax Credit).
- 98 -
29. SHARING AMONG THE FINANCE PARTIES
29.1 PAYMENTS TO FINANCE PARTIES
If a Finance Party (a "RECOVERING FINANCE PARTY") receives or recovers any
amount from the Borrower other than in accordance with Clause 30 (Payment
mechanics) and applies that amount to a payment due under the Finance
Documents then:
(a) the Recovering Finance Party shall, within ten (10) Business Days,
notify details of the receipt or recovery to the relevant Agent;
(b) the Agent shall determine whether the receipt or recovery is in
excess of the amount the Recovering Finance Party would have been
paid had the receipt or recovery been received or made by the Agent
and distributed in accordance with Clause 30 (Payment mechanics),
without taking account of any Tax which would be imposed on the
Agent in relation to the receipt, recovery or distribution; and
(c) the Recovering Finance Party shall, within ten (10) Business Days of
demand by the Agent, pay to the Agent an amount (the "SHARING
PAYMENT") equal to such receipt or recovery less any amount which
the Agent determines may be retained by the Recovering Finance Party
as its share of any payment to be made, in accordance with Clause
30.5 (Partial payments).
29.2 REDISTRIBUTION OF PAYMENTS
The Agent shall treat the Sharing Payment as if it had been paid by the
relevant Finance Party and distribute it between the Finance Parties
(other than the Recovering Finance Party) in accordance with Clause 30.5
(Partial payments).
29.3 RECOVERING FINANCE PARTY'S RIGHTS
(a) On a distribution by the Agent under Clause 29.2 (Redistribution of
payments), the Recovering Finance Party will be subrogated to the
rights of the Finance Parties which have shared in the
redistribution.
(b) If and to the extent that the Recovering Finance Party is not able
to rely on its rights under paragraph (a) above, the Borrower shall
be liable to the Recovering Finance Party for a debt equal to the
Sharing Payment which is immediately due and payable.
29.4 REVERSAL OF REDISTRIBUTION
If any part of the Sharing Payment received or recovered by a Recovering
Finance Party becomes repayable and is repaid by that Recovering Finance
Party, then:
(a) each Finance Party which has received a share of the relevant
Sharing Payment pursuant to Clause 29.2 (Redistribution of payments)
shall, upon request of the Agent, pay to the Agent for account of
that Recovering Finance Party an amount equal to the appropriate
part of its share of the Sharing Payment (together with an amount as
is necessary to reimburse that Recovering Finance Party for its
proportion of any interest on the Sharing Payment which that
Recovering Finance Party is required to pay); and
(b) that Recovering Finance Party's rights of subrogation in respect of
any reimbursement shall be cancelled and the Borrower will be liable
to the reimbursing Finance Party for the amount so reimbursed.
- 99 -
29.5 EXCEPTIONS
(a) This Clause 29 shall not apply to the extent that the Recovering
Finance Party would not, after making any payment pursuant to this
Clause, have a valid and enforceable claim against the Borrower.
(b) A Recovering Finance Party is not obliged to share with any other
Finance Party any amount which the Recovering Finance Party has
received or recovered as a result of taking legal or arbitration
proceedings, if
(i) it notified that other Finance Party of the legal or
arbitration proceedings; and
(ii) that other Finance Party had an opportunity to participate in
those legal or arbitration proceedings but did not do so as
soon as reasonably practicable having received notice and did
not take separate legal or arbitration proceedings.
(c) This Clause 29 shall not apply to any Excluded Proceeds (as defined
in the Intercreditor Agreement) which shall be applied in accordance
with the Intercreditor Agreement.
29.6 PERFECTION OF TRANSFERS
Each Finance Party hereby undertakes vis-a-vis each of the other Finance
Parties to enter into all additional agreements and to execute all
additional documents, which might be required under the laws of each
relevant jurisdiction for the perfection of the transfers and subrogations
contemplated by this Clause 29. The Borrower hereby agrees to consent to
all relevant transfers and it hereby undertakes vis-a-vis each of the
Finance Parties to enter into all additional agreements and to execute all
additional documents, which are required under the laws of each relevant
jurisdiction for the perfection of the transfers and subrogations
contemplated by this Clause 29.
- 100 -
SECTION 12
ADMINISTRATION
30. PAYMENT MECHANICS
30.1 PAYMENTS TO THE AGENT
(a) On each date on which the Borrower or a Bank is required to make a
payment under a Finance Document, the Borrower or Bank shall make
the same available to the Off Shore Facility Agent in respect of a
payment in Euro or the On Shore Facility Agent in respect of a
payment in SIT (unless a contrary indication appears in a Finance
Document) for value on the due date at the time and in such funds
specified by the relevant Agent as being customary at the time for
settlement of transactions in the relevant currency in the place of
payment.
(b) Payment shall be made to such account in Ljubljana if payment is to
be made in SIT or in Dusseldorf if payment is to be made in Euro
with such bank as the relevant Agent specifies.
Each Bank shall promptly indemnify the relevant Agent against any cost,
loss or liability incurred by such Agent as a result of late or
non-performance by such Bank of any of its payment obligations under this
Agreement.
30.2 DISTRIBUTIONS BY THE AGENT
Each payment received by an Agent under the Finance Documents for another
Party shall, subject to Clause 30.3 (Distributions to the Borrower) and
Clause 30.4 (Clawback) be made available by such Agent as soon as
practicable after receipt to the Party entitled to receive payment in
accordance with this Agreement (in the case of a Bank, for the account of
its Facility Office), to such account as that Party may notify to such
Agent by not less than five (5) Business Days' notice.
30.3 DISTRIBUTIONS TO THE BORROWER
The Agent may (with the consent of the Borrower or in accordance with
Clause 31 (Set-off)) apply any amount received by it for the account of
the Borrower in or towards payment (on the date and in the currency and
funds of receipt) of any amount due from the Borrower under the Finance
Documents, or in or towards purchase of any amount of any currency to be
so applied.
30.4 CLAWBACK
(a) Where a sum is to be paid to an Agent under the Finance Documents
for another Party, such Agent is not obliged to pay that sum to that
other Party (or to enter into or perform any related exchange
contract) until it has been able to establish to its satisfaction
that it has actually received that sum.
(b) If an Agent pays an amount to another Party and it proves to be the
case that such Agent had not actually received that amount, then the
Party to whom that amount (or the proceeds of any related exchange
contract) was paid by such Agent shall on demand refund the same to
such Agent together with interest on that amount from the date of
payment to the date of receipt by such Agent, calculated by such
Agent to reflect its cost of funds.
30.5 PARTIAL PAYMENTS
(a) If an Agent receives a payment that is insufficient to discharge all
the amounts then due and payable by the Borrower under the Finance
Documents, such
- 101 -
Agent shall apply that payment towards the obligations of the
Borrower under the Finance Documents in the following order:
(i) first, in or towards payment pro rata of any unpaid fees,
costs and expenses of the Agents under the Finance Documents;
(ii) secondly, in or towards payment pro rata of any accrued
default interest, interest, fee or commission due but unpaid
under this Agreement;
(iii) thirdly, in or towards payment pro rata of any principal due
but unpaid under this Agreement; and
(iv) fourthly, in or towards payment pro rata of any other sum due
but unpaid under the Finance Documents.
(b) Such Agent shall, if so directed by the Majority Banks, vary the
order set out in paragraphs (a)(ii) to (iv) above and such direction
shall also apply in respect of payments received by the other Agent.
(c) Paragraphs (a) and (b) above will override any appropriation made by
the Borrower.
(d) This Clause 30.5 shall not apply to any Excluded Proceeds (as
defined in the Intercreditor Agreement).
30.6 NO SET-OFF BY THE BORROWER
All payments to be made by the Borrower under the Finance Documents shall
be calculated and be made without (and free and clear of any deduction
for) set-off or counterclaim.
30.7 BUSINESS DAYS
(a) Any payment which is due to be made on a day that is not a Business
Day shall be made on the next Business Day and in the case of the
Euro Facility such Business Day shall be in the same calendar month
(if there is one) or the preceding Business Day (if there is not).
(b) During any extension of the due date for payment of any principal or
Unpaid Sum under this Agreement interest is payable on the principal
or Unpaid Sum at the rate payable on the original due date.
30.8 CURRENCY OF ACCOUNT
(a) A repayment of a Loan or Unpaid Sum or a part of a Loan or Unpaid
Sum shall be made in the currency in which that Loan or Unpaid Sum
is denominated on its due date.
(b) Each payment of interest shall be made in the currency in which the
sum in respect of which the interest is payable was denominated when
that interest accrued.
(c) Each payment in respect of costs, expenses or Taxes shall be made in
the currency in which the costs, expenses or Taxes are incurred.
- 102 -
30.9 CHANGE OF CURRENCY
(a) Unless otherwise prohibited by law, if more than one currency or
currency unit are at the same time recognised by the central bank of
any country as the lawful currency of that country, then:
(i) any reference in the Finance Documents to, and any obligations
arising under the Finance Documents in, the currency of that
country shall be translated into, or paid in, the currency or
currency unit of that country designated by the relevant Agent
(after consultation with the Borrower); and
(ii) any translation from one currency or currency unit to another
shall be at the official rate of exchange recognised by the
central bank for the conversion of that currency or currency
unit into the other, rounded up or down by the relevant Agent
(acting reasonably) or in the case of any translation from or
to SIT at the relevant exchange rate from the list of Nova
Ljubljanska banka d.d., Ljubljana for the foreign exchange
transactions with legal entities (Tecajna lista Nove
Ljubljanske banka d.d., Ljubljana, za obracundeviznih prilivov
in odlivov podjetij) or any other applicable document of Nova
Ljubljanska banka d.d., Ljubljana with essentially similar
substance.
(b) If a change in any currency of a country occurs, this Agreement
will, to the extent that the relevant Agent (acting reasonably and
after consultation with the Borrower) specifies to be necessary, be
amended to comply with any generally accepted conventions and market
practice in the European Interbank Market and otherwise to reflect
the change in currency.
31. SET OFF
A Finance Party may set off any matured obligation due from the Borrower
under the Finance Documents (to the extent beneficially owned by that
Finance Party) against any matured obligation owed by that Finance Party
to the Borrower, regardless of the place of payment, booking branch or
currency of either obligation. If the obligations are in different
currencies, the Finance Party may for the purpose of the set off convert
either obligation at a market rate of exchange in its usual course of
business or, in the case of a SIT Facility Bank, at the relevant exchange
rate from the list of Nova Ljubljanska banka d.d., Ljubljana for the
foreign exchange transactions with legal entities (Tecajna lista Nove
Ljubljanske banka d.d., Ljubljana, za obracundeviznih prilivov in odlivov
podjetij) or any other applicable document of Nova Ljubljanska banka d.d.,
Ljubljana with essentially similar substance.
32. NOTICES
32.1 COMMUNICATIONS IN WRITING
Any communication, demand or notice to be made under or in connection with
the Finance Documents shall be made in writing and, unless otherwise
stated, may be made by fax or letter.
32.2 ADDRESSES
The address and fax number (and the department or officer, if any, for
whose attention the communication is to be made) of each Party for any
communication or document to be made or delivered under or in connection
with the Finance Documents is:
- 103 -
(a) in case of the Borrower:
WESTERN WIRELESS INTERNATIONAL D.O.O.
Address: Xxxxxxxxx xxxxx 00
0000 Xxxxxxxxx, Xxxxxxxx
Telephone: x000 0 0000 000
Fax: x000 0 0000 000
Attention of: Xxxxxx Fast
Copy to: Western Wireless International Corporation
Address: 0000 000xx Xxxxxx, X.X., Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000, XXX
Telephone: x0 000 000 0000
Fax: x0 000 000 0000
Attention of: Xxxxx Xxxxxxxx
(b) in case to the Borrower's process agent:
FIDEUROP - TREUHANDGESELLSCHAFT FUR DEN GEMEINSAMEN MARKT MBH
Address: Xxxxx-Xxxxx Xxxxxxx 00
00000 Xxxxxxxxx xx Xxxx, Xxxxxxx
Telephone: x00 00 00 000
Fax: x00 00 00 00 0000
Attention of: Dr. Xxxxx Xxxxxxxxxx
(c) in case of the Off Shore Facility Agent and the Off Shore Security
Agent:
IKB DEUTSCHE INDUSTRIEBANK AG
Address: Xxxxxxx-Xxxxxxx-Xxxx(xxxx)x 0
00000 Xxxxxxxxxx, Xxxxxxx
Telephone: x00 000 0000 0000 or x00 000 0000 0000
Fax: x00 000 0000 0000 or x00 000 0000 0000
Attention of: Xxxxxxx Xxxxxxx or Xxxxxxx Xxxxxx,
Structured Finance Department
- 104 -
(d) in case of the On Shore Facility Agent and the On Shore Security
Agent:
NOVA LJUBLJANSKA BANKA D.D., LJUBLJANA
Address: Xxxxxxxxxx 000, XX - 0000 Xxxxxxxxx, Xxxxxxxx
Telephone: x000 0 000 0000
Fax: x000 0 000 00 00
Attention of: Ms. Jasna Istenic or Xx. Xxxxxxx Xxxxx
(e) in the case of a Bank, as identified with its signature below or in
a Transfer Certificate, as the case may be,
or any substitute address, fax number or department or officer as
the relevant Party may notify to the relevant Agent (or an Agent may
notify to the other Parties, if a change is made by the Agent) by
not less than five (5) Business Days' notice.
32.3 DELIVERY
(a) Any communication or document made or delivered by one person to
another under or in connection with the Finance Documents will only
be effective:
(i) if by way of fax, when received in legible form; or
(ii) if by way of letter, when it has been left at the relevant
address or three (3) Business Days after being deposited with
a reputable overnight courier service; or
and, if a particular department or officer is specified as part of its
address details provided under Clause 32.2 (Addresses), if addressed to
that department or officer.
(b) Any communication or document to be made or delivered to an Agent
will be effective only when actually received by such Agent and then
only if it is expressly marked for the attention of the department
or officer identified with such Agent's signature below (or any
substitute department or officer as such Agent shall specify for
this purpose).
(c) All notices from or to the Borrower shall be sent through an Agent.
32.4 NOTIFICATION OF ADDRESS AND FAX NUMBER
Promptly upon receipt of notification of an address or fax number or
change of address or fax number pursuant to Clause 32.2 (Addresses) or
changing its own address or fax number, an Agent shall notify the other
Parties.
32.5 ELECTRONIC COMMUNICATION
(a) Any communication to be made between an Agent and a Bank under or in
connection with the Finance Documents may be made by electronic mail
or other electronic means, if such Agent and the relevant Bank:
(i) agree that, unless and until notified to the contrary, this is
to be an accepted form of communication;
- 105 -
(ii) notify each other in writing of their electronic mail address
and/or any other information required to enable the sending
and receipt of information by that means; and
(iii) notify each other of any change to their address or any other
such information supplied by them.
(b) Any electronic communication made between an Agent and a Bank will
be effective only when actually received in readable form and in the
case of any electronic communication made by a Bank to such Agent
only if it is addressed in such a manner as such Agent shall specify
for this purpose.
32.6 ENGLISH LANGUAGE
Any notice given or any other document provided under or in connection
with:
(i) the Finance Documents which is required by law or in
accordance with standard banking practice to be made in
Slovenian shall be made in Slovenian and in each case
accompanied by an English translation thereof unless such
notice or other document is identical (other than for
calculation figures) in all material respects to those
previously agreed with the Off Shore Facility Agent;
(ii) the documentation related to the ECA Cover Documents shall be
in the German language; and
(iii) the Finance Documents shall be in English unless otherwise
provided for under (i) and (ii) above.
33. CALCULATIONS AND CERTIFICATES
33.1 ACCOUNTS
In any litigation or arbitration proceedings arising out of or in
connection with a Finance Document, the entries made in the accounts
maintained by a Finance Party are prima facie evidence of the matters to
which they relate absent manifest error.
33.2 CERTIFICATES AND DETERMINATIONS
Any certification or determination by a Finance Party of a rate or amount
under any Finance Document is, in the absence of manifest error,
conclusive evidence of the matters to which it relates.
33.3 DAY COUNT CONVENTION
(a) In respect of the Euro Facility any interest, commission or fee
accruing under a Finance Document will accrue from day to day and is
calculated on the basis of the actual number of days elapsed and a
year of 360 days or, in any case where the practice in the European
Interbank Market differs, in accordance with that market practice.
(b) In respect of the SIT Facility any interest, commission or fee
accruing under a Finance Document will accrue from day to day and is
calculated in accordance with the Resolution on Interest Rates of
Nova Ljubljanska Banka d.d., Ljubljana using the conform method of
calculating interest and XXX and on the basis of a year of 365 days.
- 106 -
34. PARTIAL INVALIDITY
If, at any time, any provision of the Finance Documents is or becomes
illegal, invalid or unenforceable in any respect under any law of any
jurisdiction, neither the legality, validity or enforceability of the
remaining provisions nor the legality, validity or enforceability of such
provision under the law of any other jurisdiction will in any way be
affected or impaired.
35. REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of any
Finance Party, any right or remedy under the Finance Documents shall
operate as a waiver, nor shall any single or partial exercise of any right
or remedy prevent any further or other exercise or the exercise of any
other right or remedy. The rights and remedies provided in this Agreement
are cumulative and not exclusive of any rights or remedies provided by
law.
36. AMENDMENTS AND WAIVERS
36.1 REQUIRED CONSENTS
(a) Subject to Clause 36.2 (Exceptions) any term of the Finance
Documents may be amended or waived only with the consent of the
Majority Banks and the Borrower and any such amendment or waiver
will be binding on all Parties.
(b) The Off Shore Facility Agent may effect, on behalf of any Finance
Party, any amendment or waiver permitted by this Clause.
36.2 EXCEPTIONS
(a) An amendment or waiver that has the effect of changing or which
relates to:
(i) the definition of "Majority Banks" in Clause 1.1
(Definitions);
(ii) an extension to the date of payment of any amount under the
Finance Documents;
(iii) a reduction in the Applicable Margin or a reduction in the
amount of any payment of principal, interest, fees or
commission payable;
(iv) an increase in or an extension of any Commitment;
(v) a change to the Borrower;
(vi) any provision which expressly requires the consent of all the
Banks;
(vii) Clause 2.2 (Finance Parties' rights and obligations), Clause
21 (Reporting requirements), Clause 26 (Changes to the
Parties) or this Clause 36,
shall not be made without the prior consent of all the Banks.
(b) An amendment or waiver which relates to the rights or obligations of
an Agent, a Security Agent, the Issuing Bank or an Arranger may not
be effected without the consent of such party.
- 107 -
37. COUNTERPARTS
Each Finance Document may be executed in any number of counterparts, and
this has the same effect as if the signatures on the counterparts were on
a single copy of the Finance Document.
- 108 -
SECTION 13
GOVERNING LAW AND ENFORCEMENT
38. GOVERNING LAW
This Agreement shall be governed by, and shall be construed in accordance
with, German law.
39. ARBITRATION
39.1 ARBITRATION
Subject to Clause 39.4 (Agent's option), any dispute (a "DISPUTE") arising
out of or in connection with this Agreement (including a dispute regarding
the existence, validity or termination of this Agreement or the
consequences of its nullity) shall be finally settled under the Rules of
Arbitration of the International Chamber of Commerce (the "RULES") by
three arbitrators appointed in accordance with the Rules.
39.2 PROCEDURE FOR ARBITRATION
The arbitral tribunal shall consist of three arbitrators. The place of
arbitration shall be Paris and the language of the arbitration shall be
English.
39.3 RECOURSE TO COURTS
Save as provided in Clause 39.4 (Agent's option), the parties exclude the
jurisdiction of the courts.
39.4 AGENT'S OPTION
In the case of any Dispute in which the Agent for and on behalf of the
Finance Parties is or the Finance Parties are the claimant, the Off Shore
Facility Agent may (acting upon the instructions of the Majority Banks)
prior to having initiated arbitral proceedings, by notice in writing to
all other parties to this Agreement require that such Dispute be heard by
a court of law. If the Off Shore Facility Agent gives such notice, the
Dispute to which such notice refers shall be determined in accordance with
Clause 40 (Jurisdiction).
40. JURISDICTION
40.1 GERMAN COURTS
Each of the Parties irrevocably agrees for the benefit of each of the
other Parties that xxx xxxxxx xx Xxxxxxxxxx, Xxxxxxx, shall have
non-exclusive jurisdiction to settle any Dispute.
40.2 SERVICE OF PROCESS
The Borrower agrees that the process by which any suit, action or
proceedings in Germany is begun may be served on it by being delivered to
the process agent in Germany appointed or to be appointed by the Borrower
according to Schedule 13 (Process Agent Confirmation) for the time being.
If the appointment of such process agent ceases to be effective in respect
of the Borrower, the Borrower shall immediately appoint a further person
in Germany to accept service of process on its behalf in Germany and,
failing such appointment within fifteen (15) days, the Agent shall be
entitled to appoint such a person by notice to the Borrower. Nothing
contained herein shall affect the right to serve process in any other
manner permitted by relevant law.
40.3 NON-EXCLUSIVE SUBMISSIONS
The submission to the jurisdiction of the courts referred to in Clause
40.1 (German courts) shall not (and shall not be construed so as to) limit
the right of an Agent, an Arranger and the Banks or any of them to take
proceedings against the Borrower in any
- 109 -
other court of competent jurisdiction nor shall the taking of proceedings
in any one or more jurisdiction preclude the taking or proceedings in any
other jurisdiction (whether concurrently or not) if and to the extent
permitted by applicable law.
40.4 WAIVER OF IMMUNITY
To the extent that the Borrower may in any jurisdiction claim for itself
or its assets immunity from suit, execution, attachment (whether in aid of
execution, before judgement or otherwise) or other legal process and to
the extent that in any such jurisdiction there may be attributed to itself
or its assets such immunity (whether or not claimed), the Borrower hereby
irrevocably agrees not to claim and hereby irrevocably waives such
immunity to the full extent permitted by the laws of such jurisdiction.
- 110 -
SCHEDULE 1
COMMITMENTS
PART I
EURO FACILITY
ECA FACILITY COMMERCIAL
FINANCIAL INSTITUTION COMMITMENT FACILITY
COMMITMENT
ECA FACILITY ECA FACILITY ECA FACILITY
XXXXXXX 0 XXXXXXX 0 XXXXXXX 0
COMMITMENT COMMITMENT COMMITMENT
IKB Deutsche Industriebank AG Euro 15,328,263.11 Euro 689,916.66 Euro 1,415,895.49 Euro 13,910,000.00
Kreditanstalt fur Wiederaufbau Euro 15,328,263.11 Euro 689,916.66 Euro 1,415,895.48 Euro 13,910,000.00
Raiffeisenlandesbank Euro 7,234,745.16 Euro 325,631.89 Euro 668,284.65 Euro 8,560,000.00
Oberosterreich
reg.Gen.m.b.H.
Landesbank Euro 7,074,582.98 Euro 318,423.08 Euro 653,490.23 Euro 6,420,000.00
Schleswig-Holstein
Girozentrale
Hypo Alpe-Adria-Bank AG Euro 2,198,032.14 Euro 98,932.21 Euro 203,035.65 None
- 111 -
PART II
SIT FACILITY
FINANCIAL INSTITUTION SIT FACILITY COMMITMENT EQUIVALENT TO
Nova Ljubljanska Banka d.d., Ljubljana SIT 3,400,000,000.00
Hypo Alpe-Adria-Bank d.d. SIT 1,000,000,000.00
- 112 -
SCHEDULE 2
REPAYMENT DATES
REPAYMENT DATE / ECA FACILITY COMMERCIAL FACILITY SIT FACILITY
REDUCTION DATE
30.05.2004 1.25% 0.00%
30.11.2004 1.25% 0.00%
30.05.2005 5.75% 5.75%
30.11.2005 5.75% 5.75% 5.00%
30.05.2006 8.00% 8.00%
30.11.2006 8.00% 8.00% 5.00%
30.05.2007 10.00% 12.50%
30.11.2007 10.00% 12.50% 10.00%
30.05.2008 12.00% 12.50%
30.11.2008 12.00% 12.50% 20.00%
30.05.2009 13.00% 14.00% 20.00%
30.11.2009 13.00% 8.50% 40.00%
TOTAL 100.00% 100.00% 100.00%
- 113 -
SCHEDULE 3
LMA FORM OF CONFIDENTIALITY UNDERTAKING
From: [Seller]/[Seller's agent/broker]
To: [Potential Purchaser]/[Purchaser's agent/broker]
Dated:
Dear Sirs
FACILITY AGREEMENT
DATED [-] (THE "AGREEMENT")
BORROWER:
DATE:
AMOUNT:
AGENT:
We understand that you are considering [acquiring](a)/[arranging the acquisition
of](b) an interest in the Agreement (the "Acquisition"). In consideration of us
agreeing to make available to you certain information, by your signature of a
copy of this letter you agree as follows:
1. Confidentiality Undertaking You undertake (a) to keep the Confidential
Information confidential and not to disclose it to anyone except as
provided for by paragraph 2 below and to ensure that the Confidential
Information is protected with security measures and a degree of care that
would apply to your own confidential information, (b) to use the
Confidential Information only for the Permitted Purpose, (c) to use all
reasonable endeavours to ensure that any person to whom you pass any
Confidential Information (unless disclosed under paragraph 2[(c)/(d)](c)
below) acknowledges and complies with the provisions of this letter as if
that person were also a party to it, and (d) not to make enquiries of any
member of the Group or any of their officers, directors, employees or
professional advisers relating directly or indirectly to the Acquisition.
2. Permitted disclosure We agree that you may disclose Confidential
Information:
(a) to members of the Purchaser Group and their officers, directors,
employees and professional advisers to the extent necessary for the
Permitted Purpose and to any auditors of members of the Purchaser
Group;
(b) [subject to the requirements of the Agreement, in accordance with
the Permitted Purpose so long as any prospective purchaser has
delivered a letter to you in equivalent form to this letter;]
[(b/c)](c) subject to the requirements of the Agreement, to any person to
(or through) whom you assign or transfer (or may potentially assign
or transfer) all or any of the rights, benefits and obligations
which you may acquire under the Agreement or with (or through) whom
you enter into (or may potentially enter into) any sub-participation
in relation to, or any other transaction under which payments are to
be made by reference to, the Agreement or the Borrower or
- 114 -
any member of the Group so long as that person has delivered a
letter to you in equivalent form to this letter; and
[(c/d)](c) (i) where requested or required by any court of competent
jurisdiction or any competent judicial, governmental, supervisory or
regulatory body, (ii) where required by the rules of any stock
exchange on which the shares or other securities of any member of
the Purchaser Group are listed or (iii) where required by the laws
or regulations of any country with jurisdiction over the affairs of
any member of the Purchaser Group.
3. Notification of required or unauthorised disclosure You agree (to the
extent permitted by law) to inform us of the full circumstances of any
disclosure under paragraph 2[(c)/(d)](c) or upon becoming aware that
Confidential Information has been disclosed in breach of this letter.
4. Return of copies If we so request in writing, you shall return all
Confidential Information supplied to you by us and destroy or permanently
erase all copies of Confidential Information made by you and use all
reasonable endeavours to ensure that anyone to whom you have supplied any
Confidential Information destroys or permanently erases such Confidential
Information and any copies made by them, in each case save to the extent
that you or the recipients are required to retain any such Confidential
Information by any applicable law, rule or regulation or by any competent
judicial, governmental, supervisory or regulatory body or in accordance
with internal policy, or where the Confidential Information has been
disclosed under paragraph 2[(c)/(d)](c) above.
5. Continuing obligations The obligations in this letter are continuing and,
in particular, shall survive the termination of any discussions or
negotiations between you and us. Notwithstanding the previous sentence,
the obligations in this letter shall cease (without in any way prejudicing
the confidentiality obligations under the Agreement) (a) if you become a
party to or otherwise acquire (by assignment or sub-participation) an
interest, direct or indirect, in the Agreement or (b) twelve months after
you have returned all Confidential Information supplied to you by us and
destroyed or permanently erased all copies of Confidential Information
made by you (other than any such Confidential Information or copies which
have been disclosed under paragraph 2 above (other than sub-paragraph
2(a)) or which, pursuant to paragraph 4 above, are not required to be
returned or destroyed).
6. No representation; consequences of breach, etc You acknowledge and agree
that:
(a) neither we, [nor our principal](d) nor any member of the Group nor
any of our or their respective officers, employees or advisers (each
a "RELEVANT PERSON") (i) make any representation or warranty,
express or implied, as to, or assume any responsibility for, the
accuracy, reliability or completeness of any of the Confidential
Information or any other information supplied by us or the
assumptions on which it is based or (ii) shall be under any
obligation to update or correct any inaccuracy in the Confidential
Information or any other information supplied by us or be otherwise
liable to you or any other person in respect to the Confidential
Information or any such information; and
(b) we [or our principal](d) or members of the Group may be irreparably
harmed by the breach of the terms hereof and damages may not be an
adequate remedy; each Relevant Person may be granted an injunction
or specific performance for any threatened or actual breach of the
provisions of this letter by you.
- 115 -
7. No waiver; amendments, etc This letter sets out the full extent of your
obligations of confidentiality owed to us in relation to the information
the subject of this letter. No failure or delay in exercising any right,
power or privilege hereunder will operate as a waiver thereof nor will any
single or partial exercise of any right, power or privilege preclude any
further exercise thereof or the exercise of any other right, power or
privileges hereunder. The terms of this letter and your obligations
hereunder may only be amended or modified by written agreement between us.
8. Inside information You acknowledge that some or all of the Confidential
Information is or may be price-sensitive information and that the use of
such information may be regulated or prohibited by applicable legislation
relating to insider dealing and you undertake not to use any Confidential
Information for any unlawful purpose.
9. Nature of undertakings The undertakings given by you under this letter are
given to us and (without implying any fiduciary obligations on our part)
are also given for the benefit of [our principal,](d) the Borrower and
each other member of the Group.
10. Third party rights
(a) Subject to paragraph 6 and paragraph 9 the terms of this letter may
be enforced and relied upon only by you and us.
(b) Notwithstanding any provisions of this letter, the parties to this
letter do not require the consent of any Relevant Person or any
member of the Group to rescind or vary this letter at any time.
11. Governing Law and Jurisdiction This letter (including the agreement
constituted by your acknowledgement of its terms) shall be governed by and
construed in accordance with German law and the parties submit to the
non-exclusive jurisdiction of the courts at Dusseldorf, Germany.
12. Definitions In this letter (including the acknowledgement set out below)
terms defined in the Agreement shall, unless the context otherwise
requires, have the same meaning and:
"CONFIDENTIAL INFORMATION" means any information relating to the Borrower,
the Group, the Agreement and/or the Acquisition provided to you by us or
any of our affiliates or advisers, in whatever form, and includes
information given orally and any document, electronic file or any other
way of representing or recording information which contains or is derived
or copied from such information but excludes information that (a) is or
becomes public knowledge other than as a direct or indirect result of any
breach of this letter or (b) is known by you before the date the
information is disclosed to you by us or any of our affiliates or advisers
or is lawfully obtained by you thereafter, other than from a source which
is connected with the Group and which, in either case, as far as you are
aware, has not been obtained in violation of, and is not otherwise subject
to, any obligation of confidentiality;
"GROUP" means the Borrower and each of its Affiliates;
"PERMITTED PURPOSE" means [subject to the terms of this letter, passing on
information to a prospective purchaser for the purpose of](b) considering
and evaluating whether to enter into the Acquisition; and
"PURCHASER GROUP" means you and each of your Affiliates.
- 116 -
Please acknowledge your agreement to the above by signing and returning
the enclosed copy.
Yours faithfully
----------------------------------------------
For and on behalf of
[Seller/Seller's agent/broker]
To: [Seller]
[Seller's agent/broker]
The Borrower and each other member of the Group
We acknowledge and agree to the above:
----------------------------------------------
For and on behalf of
[POTENTIAL PURCHASER/PURCHASER'S AGENT/BROKER]
----------
(a) Delete if addressee is acting as broker or agent.
(b) Delete if addressee is acting as principal.
(c) Select applicable option.
(d) Delete if letter is sent out by the Seller rather than the Seller's
broker or agent.
- 117 -
SCHEDULE 4A
UTILISATION REQUEST (BORROWER)
From: Western Wireless International d.o.o
To: [Off Shore Facility Agent/On Shore Facility Agent with copy to Off Shore
Facility Agent]
Dated:
Dear Sirs
FACILITY AGREEMENT
DATED [-] (THE "AGREEMENT")
1. We refer to the Agreement. This is a Utilisation Request. Terms defined in
the Agreement have the same meaning in this Utilisation Request unless
given a different meaning in this Utilisation Request.
2. UTILISATION OF A LOAN
We wish to borrow a Loan on the following terms:
Proposed Utilisation Date: [-] (or, if that is not a Business Day, the next
Business Day)
Facility to be utilised: [Commercial Facility]/ [SIT Facility]
Currency of Loan: [Euro]/[SIT]
Amount: [-] or, if less, the Available Facility
Interest Period: [-]
Account to which proceeds are payable: Proceeds and Revenue Account [account number] [for
further transfer in respect of Euro Facility Loans
to the Loan Proceeds Account]
3. UTILISATION UNDER THE SIT FACILITY GUARANTEE OR LC Please issue or open a
SIT Facility Guarantee or LC on the following terms:
Proposed Utilisation Date: [-] (or, if that is not a Business Day, the next
Business Day)
Issuance of: [a guarantee]/[a letter of credit]*
Amount: SIT [-]
Term of the [guarantee]/[letter of credit]: [-]
Beneficiary: [-]
* Select applicable option.
- 118 -
4. We confirm that the [proceeds of the Loan]/[guarantee]/[letter of credit]
[are]/[is] to be used [in payment of capital expenditure as provided for
in the [Initial Business Plan][Updated Business Plan]]/[in payment of
operational expenditure as provided for in the [Initial Business
Plan][Updated Business Plan]]/[towards repayment of amounts owing under
the Existing WWIC Loan Agreement]/[other].
5. We confirm that each condition specified in Clause 4.2 (Further conditions
precedent to all Utilisations) is satisfied on the date of this
Utilisation Request and the Contributed Capital Ratio is or as a result of
the requested Utilisation will be at least 0.4.
6. We confirm that each of the Repeated Representations is correct by
reference to the facts and circumstances existing at the date of this
Utilisation Request.
7. This Utilisation Request is irrevocable.
Yours faithfully
-------------------------------------
authorised signatory for
Western Wireless International d.o.o.
- 119 -
SCHEDULE 4B
UTILISATION REQUEST (PAYMENTS TO EQUIPMENT VENDOR)
From: Lucent Technologies Network Systems GmbH
To: IKB Deutsche Industriebank AG as Off Shore Facility Agent
Dated:
Dear Sirs
FACILITY AGREEMENT
DATED [-] (THE "AGREEMENT")
1. We refer to the Agreement. This is a Utilisation Request. Terms defined in
the Agreement have the same meaning in this Utilisation Request unless
given a different meaning in this Utilisation Request.
2. This is to confirm that
(a) on [-] deliveries/services in the value of [-]
(b) on [-] deliveries/services in the value of [-]
(c) on [-] deliveries/services in the value of [-]
TOTAL [-]
were effected/rendered.
A copy certified true and complete by us of an original invoice from us to
the Borrower in respect of the above is enclosed herewith.
3. Our claim under the Delivery Contract in respect of:
(a) the deliveries/services referred to in paragraph 2(a) above
represent 85 % / 70 % / 10 % / 5 %* of the value of such
deliveries/services and thus amounts to [-];
(b) the deliveries/services referred to in paragraph 2(b) above
represent 85 % / 70 % / 10 % / 5 %* of the value of such
deliveries/services and thus amounts to [-];
(c) the deliveries/services referred to in paragraph 2(c) above
represents 85 % / 70 % / 10 % / 5 %* of the value of such
deliveries/services and thus amounts to [-],
TOTAL [-]
4. We ask you to disburse Euro [-] to our account number [-] with [insert
name of bank].
* Select applicable option.
- 120 -
5. We further confirm that:
(a) [the Borrower has so far fulfilled all of its payment obligations to
be performed pursuant to the Delivery Contract;]**
(b) the goods/services covered by the present Utilisation Request are in
conformity with the Delivery Contract;
(c) the goods/services covered by the present Utilisation Request have
been delivered/rendered in accordance with the Delivery Contract;
and
(d) the Equipment Vendor is, and the requests made hereunder are, in
compliance with the Delivery Contract and the Delivery Contract
remains in full force and effect as at the date hereof.
6. We attach a copy of a certificate executed by the Borrower and referring
to the final acceptance of the Initial Configuration.***
Yours faithfully
----------------------------------------
authorised signatory for
Lucent Technologies Network Systems GmbH
** To be included in all Utilisation Requests, except the first.
*** Only in respect of a Utilisation Request completed with reference to
Section 1.10.2 (b) (iii) of the Delivery Contract.
- 121 -
SCHEDULE 4C
UTILISATION REQUEST (PAYMENTS TO ECA)
From: Lucent Technologies Network Systems GmbH
To: IKB Deutsche Industriebank AG as Off Shore Facility Agent
Dated:
Dear Sirs
FACILITY AGREEMENT
DATED [-] (THE "AGREEMENT")
1. We refer to the Agreement. This is a Utilisation Request. Terms defined in
the Agreement have the same meaning in this Utilisation Request unless
given a different meaning in this Utilisation Request.
2. This is to confirm that we have effected the payment of ECA Premium in the
amount of Euro [-] to the ECA on [insert date] in accordance with the
invoice issued by the ECA on [-], a copy of which is enclosed herewith.
3. We ask you to disburse 85 % of this amount being Euro [-] to account
number [-] with [insert name of bank].
Yours faithfully
----------------------------------------
authorised signatory for
Lucent Technologies Network Systems GmbH
- 122 -
SCHEDULE 5
SELECTION NOTICE
APPLICABLE TO A LOAN UNDER THE EURO FACILITY
From: Western Wireless International d.o.o.
To: IKB Deutsche Industriebank AG as Off Shore Facility Agent
Dated:
Dear Sirs
FACILITY AGREEMENT
DATED [-] (THE "AGREEMENT")
1. We refer to the Agreement. This is a Selection Notice. Terms defined in
the Agreement have the same meaning in this Selection Notice unless given
a different meaning in this Section Notice.
2. We refer to the following Loan[s] under the Euro Facility with an Interest
Period ending on [-].*
3. We request that the next Interest Period for the above Loan[s] is [-].
4. This Selection Notice is irrevocable.
Yours faithfully
-------------------------------------
authorised signatory for
Western Wireless International d.o.o.
* Insert details of all Loans under the Euro Facility which have an Interest
Period ending in the same date.
- 123 -
SCHEDULE 6
CONDITIONS PRECEDENT
CONDITIONS PRECEDENT TO INITIAL UTILISATION REQUEST
1. BORROWER
(a) A copy of the constitutional documents of the Borrower.
(b) A copy of a resolution of the board of directors of the Borrower:
(i) approving the terms of, and the transactions contemplated by,
the Material Contracts to which it is a party and resolving
that it execute the Finance Documents to which it is a party;
(ii) authorising a specified person or persons to execute the
Finance Documents to which it is a party on its behalf; and
(iii) authorising a specified person or persons, on its behalf, to
sign and/or despatch all documents and notices (including, if
relevant, any Utilisation Request and Selection Notice) to be
signed and/or despatched by it under or in connection with the
Finance Documents to which it is a party.
(c) A specimen of the signature of each person authorised by the
resolution referred to in paragraph (b) above.
(d) A certificate of an authorised signatory of the Borrower certifying
that all Material Contracts as at the date of the Agreement have
been fully disclosed to the Off Shore Facility Agent and each copy
document relating to it specified in this Schedule 6 is correct,
complete and in full force and effect as at the date of this
Agreement.
(e) Evidence that all accounts required to be open prior to the first
Utilisation under the Agreement have been duly opened.
2. SPONSORS AND SHAREHOLDERS
(a) A copy of the constitutional documents of each of the Sponsors.
(b) A copy of a resolution of the board of directors of each of the
Sponsors:
(i) approving the terms of, and the transactions contemplated by,
the Material Contracts to which it is a party and resolving
that it execute the Finance Documents to which it is a party;
(ii) authorising a specified person or persons to execute the
Finance Documents to which it is a party on its behalf; and
(iii) authorising a specified person or persons, on its behalf, to
sign and/or despatch all documents and notices to be signed
and/or despatched by it under or in connection with the
Finance Documents to which it is a party.
(c) A specimen of the signature of each person authorised by the
resolution referred to in paragraph (b) above.
- 124 -
(d) A copy of a resolution of the Shareholders approving the terms of,
and the transactions contemplated by, the Finance Documents to which
the Borrower is a party.
3. LEGAL OPINIONS
(a) Legal opinions of Xxxxxxxx Chance, legal advisers to the Off Shore
Facility Agent as to matters of German, New York and Luxembourg law,
substantially in the form agreed with the Off Shore Facility Agent.
(b) A legal opinion of the in-house counsel to the Borrower, confirming
that all Material Contracts are in full force and effect and create
legal, valid and binding obligations of the parties thereto in the
form agreed with the Off Shore Facility Agent.
(c) A legal opinion of Xxxxxxxx Xxxxxx Xxxxxx & Xxxxxxx LLP, legal
advisers to the Sponsors, substantially in the form agreed between
the Off Shore Facility Agent and the Sponsors.
(d) A legal opinion of Selih, Selih, Xxxxxxx & Jarcovic, Ljubljana,
the local legal advisers to the Off Shore Facility Agent,
substantially in the form agreed with the Off Shore Facility Agent.
(e) Legal opinions in form and substance satisfactory to the Off Shore
Facility Agent addressing the matters set forth in clause 3(f) of
the Lucent Loan Agreement.
(f) Legal opinions in form and substance satisfactory to the Off Shore
Facility Agent confirming that the direct agreement between the
Equipment Vendor and the Off Shore Facility Agent and the guarantee
and undertaking agreement between Lucent Technologies Inc. and the
Off Shore Facility Agent are in full force and effect and create
legal, valid and binding obligations on the parties thereto.
4. OTHER DOCUMENTS AND EVIDENCE
(a) A confirmation from the process agent of each of the Borrower, the
Sponsors and the Shareholders, as applicable, in Germany, New York
and England and Wales.
(b) A copy of any other Authorisation or other document, opinion or
assurance which the Off Shore Facility Agent considers to be
necessary or desirable (if it has notified the Borrower accordingly)
in connection with the entry into and performance of the
transactions contemplated by any Finance Document or for the
validity and enforceability of any Finance Document.
(c) A copy of the Original Financial Statements of the Borrower.
(d) Evidence that the fees, costs and expenses then due from the
Borrower pursuant to Clause 12 (Fees) and Clause 19 (Costs and
expenses) have been paid or will be paid.
(e) Confirmation that the ECA has given its final approval to the
provision of cover and the Off Shore Facility Agent being satisfied
that the Finance Documents conform to the requirements thereof.
- 125 -
(f) Evidence that the conditions precedent relating to the Security
Documents set out in Schedule 9 have been satisfied.
(g) Evidence that the Borrower holds the Licence which has been paid for
in full by the Borrower in cash.
(h) A set of ten (10) Bills of Exchange duly signed by the Borrower and
with the date of issue inserted but otherwise left blank together
with a duly notarised and apostilled power of attorney.
(i) Evidence of the satisfactory completion of the due diligence
including all consultant reports.
(j) A copy of each Material Contract (other than the international
roaming contracts and contracts in respect of leasing of lines) and
evidence of due execution thereof.
(k) A copy of the Initial Business Plan and the Updated Business Plan to
be delivered by the Borrower.
(l) A copy of the Hedging Letter and Hedging Agreement and, in each
case, evidence of due execution thereof.
(m) A copy of the Market Study to be delivered by the Borrower.
(n) A copy of an initial report of the Independent Technical Consultant
issued in the form set out in Schedule 19 (Initial report of
Independent Technical Consultant).
(o) A confirmation in writing from the Equipment Vendor in the form set
out in Schedule 12 (Confirmation from the Equipment Vendor).
(p) A letter of comfort from the Government in the form agreed with the
Off Shore Facility Agent.
(q) A confirmation in writing substantially in the form set out in
Schedule 8 (Form of letter of confirmation) from each of MIBO
Kommunikacije d.o.o., Reime NIS AS and Xxxxxx d.o.o. to the Off
Shore Facility Agent.
(r) Evidence that this Agreement and the Debt Service Reserve Account
and any other offshore bank accounts of the Borrower have been
reported to Banka Slovenije.
(s) Duly notarised and apostiled powers of attorney from each of the
Finance Parties (other than the SIT Facility Banks);.
(t) A letter, in the form agreed, from Western Wireless Corporation
addressed to the Off Shore Facility Agent on behalf of the Banks in
relation to the ownership and funding of certain companies within
the Western Wireless Group.
(u) Evidence of a deposit, in an amount not less than SIT 320,000,000 or
its equivalent as determined by the On Shore Facility Agent for the
account of Nova Ljubljanska banka d.d., Ljubljana as applied or
reduced in accordance with a SIT Facility syndication agreement to
be agreed between the Borrower, the Sponsors and the On Shore
Facility Agent.
- 126 -
(v) A copy of the direct agreement between the Equipment Vendor and the
Off Shore Facility Agent and evidence of due execution thereof.
(w) Evidence that at least ten (10) Business Days prior to the proposed
first Utilisation Date Existing WWIC Loans have been converted into
Sponsor Contributions, in an amount equivalent to Euro 18,500,000
and Sponsors Unsecured Loans, in an amount equivalent to Euro
1,561,318.60 and in each case that the Existing WWIC Loans in
respect of such amounts are cancelled.
(x) A copy of the guarantee and undertaking agreement between Lucent
Technologies Inc. and the Off Shore Facility Agent and evidence of
due execution thereof.
(y) Audit report from PriceWaterhouseCoopers, Slovenia in relation to
Capital Contributions, in the form agreed with the Off Shore
Facility Agent.
(z) A copy of the comfort letter from Western Wireless Corporation in
the form agreed with the Off Shore Facility Agent and evidence of
due execution thereof.
(aa) The form of agreed xxxx of exchange to be used by the Borrower in
accordance with Clause 24.38 (Bills of Exchange and Security
Deposits) and included in the Agreement as Schedule 16.
(bb) Evidence that the conditions set forth in clause 3(e) and (g) of the
Lucent Loan Agreement have been satisfied.
(cc) Evidence that all accounts of the Borrower other than those
mentioned in Schedule 7 (Permitted Accounts) have been closed.
- 127 -
SCHEDULE 7
PERMITTED ACCOUNTS
- IKB International S.A., Luxembourg, Account Numbers: 66922 and 80601;
- IKB Deutsche Industriebank AG, Account Number: 2012894685
- Nova Ljubljanska Banka d.d., Ljubljana, Account Number: 02922-0089881553,
and all other accounts required to be opened in accordance with Clause 23;
- Hypo Alpe-Adria-Bank d.d., Ljubljana, Account Number: 33000-0000000000;
- Nova KBM d.d., Ljubljana, Account Number: 04302-0000348020 (This account
is only permitted until 30 June 2002 and only on the condition that on the
date of first Utilisation (a) there are no funds standing to the credit of
this account or, should that not be permissible under the terms of the
account, (b) there is not more than the minimum permissible amount under
such terms standing to the credit of this account).
- 128 -
SCHEDULE 8
FORM OF LETTER OF CONFIRMATION
From: [MIBO Kommunikacije d.o.o.] [Reime NIS AS] [Xxxxxx d.o.o.]
To: IKB Deutsche Industriebank AG as Off Shore Facility Agent
Dated:
Dear Sirs
FACILITY AGREEMENT
DATED [-] (THE "AGREEMENT")
1. We refer to the Agreement. This is a letter of confirmation. Terms defined
in the Agreement have the same meaning in this letter of confirmation
unless given a different meaning in this letter of confirmation.
2. We confirm that we have performed works or services in connection with
[insert number of sites] sites details of which are listed in the schedule
hereto (the "SITES") that:
(a) we have received payment in full in respect of the works and
services performed by us on or in connection with [insert number of
sites] Sites the details of such works and services and amounts paid
are set out in the schedule ; [and]
(b) [we have received site acceptance certificates from the Borrower in
respect of [insert number of sites] Sites the details of which are
set out in the schedule; and]*
(c) [title to the works performed by us on [insert number of sites]
Sites has passed to the Borrower the details of which are set out in
the schedule]*,
in accordance with the terms of the agreement entered into between us and
the Borrower.
3. We confirm that we have no liens in connection with any of the works or
services performed by us on or in connection with the Sites, whether
arising by operation of law or otherwise.
Yours faithfully
----------------------------------------------------------
authorised signatory for
[MIBO Kommunikacije d.o.o.] [Reime NIS AS] [Xxxxxx d.o.o.]
* To be included only in respect of the agreements entered into with MIBO
Kommunikacije d.o.o. and Xxxxxx d.o.o.
- 129 -
THE SCHEDULE
SITES FOR WHICH OR IN CONNECTION WITH WHICH WORKS AND SERVICES HAVE BEEN PERFORMED
Number Address Works or Payment Received Site acceptance Transfer of Title to
Services Certificate from the the Borrower
Performed Borrower
Yes No Yes (Date No Yes No
(in the of Receipt)
amount of)
Total of [-] Sites Total of Total of Total of Total Total of Total of
[-] Sites [-] Sites [-] Sites of [-] Sites [-] Sites [-] Sites
- 130 -
SCHEDULE 9
SECURITY DOCUMENTS - CONDITIONS PRECEDENT AND CONDITIONS SUBSEQUENT
GENERAL
STEPS FOR PERFECTION
--------------------
CONDITION PRECEDENT TO DRAWDOWN CONDITION SUBSEQUENT
------------------------------- --------------------
- Translation of Facility Agreement into the Slovenian
language
- Summary and Translation of Hedging Agreement into the
Slovenian language
- Certified copies of the extract of commercial register
for Borrower, Shareholders, Senior Creditors
- Legal opinion of Selih that all security documents - Once perfected an additional legal
have been duly executed and are legal, valid and opinion of Selih that the security
binding obligations documents create the security
which they purport to create
- Power of Attorney (for signing of all on shore
securities agreements) of Senior Creditors authorising
representative of the Off Shore Facility Agent to sign
all on shore security documents plus complete all
formalities necessary for the perfection of the pledge
where applicable
- Only for the Asset and Licence Pledge and Lease
Contracts Assignment Agreement, Trade Xxxx Pledge
Agreement and Share Pledge Agreement: Power of
Attorney in the English language signed by each Senior
Creditor, with a notarial confirmation of the
authorisation of the person who signs on behalf of
each Senior Creditor to sign on behalf of the
particular Senior Creditor (Vertretungsbestatigung)
and confirmation of its signature
(Unterschriftenbeglaubigung) and apostilled,
authorising Xxxx Xxxxx/Xxxx Xxxxx to enter into
notarial deeds in relation to all relevant security
documents
- Such other requirements as may be reasonably required
to complete, register and perfect the Security
Documents
ON SHORE SECURITY DOCUMENTS
DOCUMENT SECURED ASSETS STEPS FOR PERFECTION
-------- -------------- ---------------------------------------------------------------------------------
CONDITION PRECEDENT TO DRAWDOWN CONDITION SUBSEQUENT
------------------------------- ----------------------------------------
ASSET AND Pledged Equipment - Execution of Asset Pledge,
LICENCE PLEDGE Licence Transfer, Licence
AND LEASE Pledge and Lease Contracts
CONTRACTS Assignment Agreement
ASSIGNMENT
AGREEMENT - Execution of notarial deed in
respect of Pledged Equipment
- Provide Schedule 1, 2 & 3 to - Competent court officer must
the Asset and Licence Pledge take record of the pledged
and Lease Contracts assets, make lists of pledged
Assignment Agreement - assets per site and xxxx the
provide missing addresses of pledged assets by putting
sites and relevant court stickers on them (Court officer
districts, as well as modify when visiting sites to be
designation (description) of accompanied by WWI technical
certain items (confirmed by staff) Borrower shall have
Xxxx Xxx and X. Xxxxx) achieved 50% after 6 months
following the date of signing
of the Facility Agreement
- 131 -
DOCUMENT SECURED ASSETS STEPS FOR PERFECTION
-------- -------------- ---------------------------------------------------------------------------------
CONDITION PRECEDENT TO DRAWDOWN CONDITION SUBSEQUENT
------------------------------- ----------------------------------------
- Within 9 months of signing of
the Facility Agreement, On
Shore Security Agent to check
conformity of Schedule 1 with
the lists issued by the court;
Xxxx Xxxxx to give notice of
receipt of the list
- Application by Selih for
registration of the Asset
Pledge in respect of the
Pledged Equipment with the
competent court (depending on
where each asset is located)
- Pay notary fees and
application fees for
registration, Xxxx Xxxxx to
advise Xxxxxx Fast of bank
account for fee to be paid
into, Xxxxxx Fast to provide
proof of payment (e.g. bank
statement
- Copies of the building
permits for sites on which
Pledged Equipment is situated
Pledged Equipment - 1 month after first drawdown,
II and under the Commercial Facility,
Substitution confirm to Onshore Security
Equipment Agent that title in respect of
Pledged Equipment II has passed/
- During the first 5 Months after
the date of signing of the
Facility Agreement provide to
the On Shore Security Agent 10
Business days after the end of
each Month a list with those of
the 41 sites for which a
building permit has been issued.
- Within 5 months after the date
of signing of the Facility
Agreement execution of notarial
deed in respect of Pledged
Equipment II and any
Substitution Equipment, if
applicable
- Within 5 months after signing
of the Facility Agreement
filing of application for
registration of Pledged
Equipment II and any
Substitution Equipment, if
applicable
- Pay notary fees and application
fees for registration, Xxxx
Xxxxx to advise Xxxxxx Fast of
bank account for fee to be paid
into, Xxxxxx Fast to provide
proof of payment (e.g. bank
statement)
- Within 9 months of signing of
Facility Agreement, competent
court officer must take record
of the Pledged Equipment II,
make a list of pledged assets
per site and xxxx the pledged
assets by putting stickers on
them
- Within 9 months of signing of
the Facility Agreement, On
Shore Security Agent to check
conformity of Schedule 2 with
the lists issued by the court;
Xxxx Xxxxx to give notice of
receipt of the list
Licence - Copy of concession - Within 5 business days of issue
of licence, inform On
Shore and Off Shore Security Agent
and send copy
- 132 -
DOCUMENT SECURED ASSETS STEPS FOR PERFECTION
-------- -------------- ---------------------------------------------------------------------------------
CONDITION PRECEDENT TO DRAWDOWN CONDITION SUBSEQUENT
------------------------------- ----------------------------------------
- Copy of application / bid - Within 1 month after issue of
licence enter into the
contractual pledge (as
attached as a Schedule to
Asset Pledge)
- Certificate that as of the - Borrower to sign Power of
date of signing of the Attorney as set out in
Facility Agreement no Schedule 10 (once licence
change/amendment of/to the granted)
Concession Agreement has
been made
Leases - Evidence of filing of the - Borrower to provide originals
applications for the of consent letter from
registration of the 41 lease Landlords I, II and
site agreements (except for Substitution Landlords
the 11 leases entered with confirming the consent to the
Elektro Slovenia and RTV) conditional assignment as
with the competent courts in follows:
accordance with clauses
11.4(f) and 12.4(b) of the
Asset and Licence Pledge and
Lease Contracts Assignment;
Agreement
- Within 3 Months from the date
of signing of the Facility
Agreement consent letters
in respect of at least 15
sites,
- Within 6 Months from the date
of signing of the Facility
Agreement consent letters
in respect of at least 30
sites; and
- Within 9 Months from the date
of signing of the Facility
Agreement consent letters
in respect of all 41 sites
and a list of all original
consent letters
- Copies of Leases I and II and
Substitution Lease (as
applicable)
- File for registration of
Substitution Leases
(applicable only in case
of substitution pledge)
and, where applicable,
provide the consent of the
relevant Substitution
Landlords to the
Substitution Assignment
within 9 Months from the
date of signing of the
Facility Agreement
- Inform the On Shore Security
Agent immediately of
rejection of filed
applications for
registration of the
relevant leases in respect
of some of the 41 sites
(except for the 11 sites)
(eg where building permit
missing) after becoming
aware of such rejection
and of refilling of the
application
- Within 9 Months from the date
of signing of the Facility
Agreement, register the
relevant leases in respect
of some of the 41 sites
(with the exception of the
11 sites) with the Land
Registers
BORROWER'S Shares - Execution of agreement - Within 2 Months from the date
SHARE PLEDGE of the signing of the
AGREEMENT Facility Agreement to
register the share pledge
with the Register of
Commercial Companies
(there must be an
obligation for the
Borrower in the Facility
Agreement to provide
evidence for such
registration)
- Execution of notarial deed in - Provide evidence of registration
respect of pledged equipment within 9 Months from the date of
signing of the Facility
Agreement
- 133 -
DOCUMENT SECURED ASSETS STEPS FOR PERFECTION
-------- -------------- ---------------------------------------------------------------------------------
CONDITION PRECEDENT TO DRAWDOWN CONDITION SUBSEQUENT
------------------------------- ----------------------------------------
- Submission to the competent
court in Ljubljana of the
application for the
registration of the share
pledge with the Register of
Commercial Companies
- Pay notary fees and
application fees for
registration of the pledge,
Xxxx Xxxxx to advise Xxxxxx
Fast of bank account for fee
to be paid into, Xxxxxx Fast
to provide proof of payment
(e.g. bank statement) and the
escrow agreement relating to
the holding of such envelope
TRADEMARK Trademarks - Execution of agreement - Within 9 months from signing of
PLEDGE AGREEMENT the Facility Agreement
provide evidence of
registration of the TM
Pledge by the Patent Office
- Withdraw 2 outstanding
applications for registration
of the trademarks "EHO" and
"VIVA" and provide to the On
Shore Security Agent evidence
of such withdrawal at the
latest 10 Business Days
before it makes the first
Utilisation Request under the
Facility Agreement
- Borrower's consent to
registration of the pledge
(Schedule 5)
- Submission to the Patent
Office of application to
register the TM Pledge
- Pay notary fees and
application fees for
registration, Xxxx Xxxxx to
advise Xxxxxx Fast of bank
account for fee to be paid
into, Xxxxxx Fast to provide
proof of payment (e.g. bank
statement)
SOFTWARE Oracle Software - Execution of agreement
LICENSE License Agreement
ASSIGNMENT
AGREEMENT
- Schedule 2 - Copy of Deed of
Consent and Waiver
- Schedule 1 (Oracle License
Agreement)
ASSIGNMENT OF Receivables - Signing of agreement
RECEIVABLES AS
SECURITY AND
ASSIGNMENT OF
INSURANCE
POLICIES
AGREEMENT
- Borrower to provide Schedule
1 complete information
- Sealed Envelope (containing
details of all subscribers
(natural persons) must be
submitted to the notary,
identified in the Assignment
of Receivables as Security
and Assignment of Insurance
Policies Agreement
- 134 -
DOCUMENT SECURED ASSETS STEPS FOR PERFECTION
-------- -------------- ---------------------------------------------------------------------------------
CONDITION PRECEDENT TO DRAWDOWN CONDITION SUBSEQUENT
------------------------------- ----------------------------------------
Insurance - Copies of the insurance
policies as required under
the Facility Agreement
- Original vinculation
certificates
- Borrower to provide Schedule
2 (list of insurances,
amounts, claims)
CLAIMS Claims - Signing of agreement
ASSIGNMENT AND
BILLS OF
EXCHANGE
AGREEMENT
- Notarised copies of account
agreements (NLB + Hypo
Alpe-Adria Bank) must be
submitted to the Off Shore
Facility Agent
- Acknowledgement by NLB and
Hypo Alpe-Adria Bank
- Schedule 1 (account details)
Bills of Exchange - Provide set of 10 bills of
exchange duly signed and
filled in only with the date
of issuance (Schedule 5)
- Confirmation by holders of
bills of exchange that they
will inform NLB at the latest
5 Business Days before
presenting any bills of
exchange to NLB
OFF SHORE SECURITY DOCUMENTS
DOCUMENT SECURED ASSETS STEPS FOR PERFECTION
-------- -------------- ---------------------------------------------------------------------------------
CONDITION PRECEDENT TO DRAWDOWN CONDITION SUBSEQUENT
------------------------------- ----------------------------------------
INTERCREDITOR - Execution of the agreement
AGREEMENT
DELIVERY - Execution of the agreement
CONTRACT CLAIMS
AND ASSIGNMENT - Execution and provision of
AGREEMENT the Security Interest
Provision Permission Agreement
SECURITY - Execution of the agreement
ASSIGNMENT OF (in the form of a deed) and
RIGHTS UNDER A evidence thereof
SUPPLY AND
LICENSE - Execution of the Deed of
AGREEMENT Consent and Waiver and
evidence thereof
- Give notice of assignment to
Protek Flagship (UK) Ltd
SPONSOR CASH Cash Collateral - Execution of the pledge
COLLATERAL Account agreement
ACCOUNT PLEDGE
AGREEMENT - Acknowledgement by the
Account Bank (IKB
International S.A.)
- Required cash collateral to
be paid into the account
DEBT SERVICE Debt Service - Execution of the pledge - 5 business days after first
RESERVE ACCOUNT Reserve Account agreement utilisation to be funded with
PLEDGE AGREEMENT the DSRA-Required Balance
- Acknowledgement by the
Account Bank (IKB
International S.A.)
- 135 -
DOCUMENT SECURED ASSETS STEPS FOR PERFECTION
-------- -------------- ---------------------------------------------------------------------------------
CONDITION PRECEDENT TO DRAWDOWN CONDITION SUBSEQUENT
------------------------------- ----------------------------------------
PLEDGE - Execution of the pledge
AGREEMENT (NY) Shares agreement;
- Delivery of all original
certificated shares to the
Secured Party;
- Delivery of a stock power
endorsed in blank to the
Secured Party; and
- The filing of a UCC-1
Financing Statement
- 136 -
SCHEDULE 10
FORM OF TRANSFER CERTIFICATES
To: [Off Shore Facility Agent [and On Shore Facility Agent]]
From: [The Existing Bank] (the "EXISTING BANK") and [The New Bank] (the "NEW
BANK")
Dated:
FACILITY AGREEMENT
DATED [-] (THE "AGREEMENT")
1. We refer to the Agreement. This is a Transfer Certificate. Terms defined
in the Agreement have the same meaning in this Transfer Certificate unless
given a different meaning in this Transfer Certificate.
2. We refer to Clause 26.5 (Procedure for transfer):
(a) The Existing Bank and the New Bank agree to the Existing Bank
transferring to the New Bank all or part of the Existing Bank's
Commitment, rights and obligations referred to in the schedule
hereto in accordance with Clause 26.5 (Procedure for transfer).
(b) The proposed Transfer Date is [-].
(c) The Facility Office and address, fax number and attention details
for notices of the New Bank for the purposes of Clause 32.2
(Addresses) are set out in the schedule hereto.
3. The New Bank expressly acknowledges the limitations on the Existing Bank's
obligations set out in paragraph (c) of Clause 26.4 (Limitation of
responsibility of Existing Banks).
[4/5]. This Transfer Certificate may be executed in any number of counterparts
and this has the same effect as if the signatures on the counterparts were
on a single copy of this Transfer Certificate.
[5/6] The Existing Bank hereby transfers in favour of the New Bank [all] [ %] of
its interest in the amount of Euro [-] in the following Security
Documents:
[NOTE: INSERT DESCRIPTION OF ALL RELEVANT SECURITY DOCUMENTS]
In respect of the transfer relating to the interest in [SPECIFY RELEVANT
MOVEABLE PROPERTY SUBJECT TO THE ASSET AND LICENCE PLEDGE AND LEASE
CONTRACTS ASSIGNMENT AGREEMENT], the Existing Bank hereby assents to and
permits the registration of such transfer in favour of the New Bank in
relevant court register(s) in Slovenia.
The New Bank may apply to the competent court registrar for the
registration of the transfer from the Existing Bank to the New Bank in
accordance with this Transfer Certificate.
[6/7] Save for the provisions of paragraph [5/6] above (which shall be governed
by and construed in accordance with Slovenian law), this Transfer
Certificate and the rights and obligations of the parties hereunder shall
be governed by and construed in accordance with German law.
- 137 -
THE SCHEDULE
COMMITMENT/RIGHTS AND OBLIGATIONS TO BE TRANSFERRED
[insert relevant details]
[Facility Office address, fax number and attention details
for notices and account details for payments,]
[Existing Bank] [New Bank]
By: By:
This Transfer Certificate is accepted by the Off Shore Facility Agent [and the
On Shore Facility Agent] and the Transfer Date is confirmed as [-].
[Off Shore Facility Agent]
By:
[On Shore Facility Agent]
By:
- 138 -
SCHEDULE 11
INSURANCE
The Borrower shall comply with the insurance policies in force at the date of
this Agreement and shall enter into, perform and execute the requirements of an
insurance schedule to be agreed between the Borrower and the Off Shore Facility
Agent (each acting in good faith) within two months from the date hereof, such
schedule shall replace this Schedule 11.
- 139 -
SCHEDULE 12
CONFIRMATION FROM THE EQUIPMENT VENDOR
From: Lucent Technologies Network Systems GmbH
To: IKB Deutsche Industriebank AG as Off Shore Facility Agent
Dated:
Dear Sirs
FACILITY AGREEMENT
DATED [-] (THE "AGREEMENT")
1. We refer to the Agreement. Terms defined in the Agreement have the same
meaning in this confirmation unless given a different meaning in this
confirmation.
2. We hereby confirm that the Delivery Contract was concluded on [-] and
amended on [-] and has come into force on [-] and is still in full force
and effect, that all permissions necessary have been granted and that we
have received a down payment in relation to 15 % of the Estimated Contract
Value in an amount of Euro 9,082,245.40, which is evidenced by the
enclosed bank receipts.
Yours faithfully
----------------------------------------
authorised signatory for
Lucent Technologies Network Systems GmbH
- 140 -
SCHEDULE 13
PROCESS AGENT CONFIRMATION
From: [Process Agent]
To: IKB Deutsche Industriebank AG as Off Shore Facility Agent
Dated:
Dear Sirs
FACILITY AGREEMENT
DATED [-] (THE "AGREEMENT")
1. We refer to the Agreement. Terms defined in the Agreement have the same
meaning in this process agent confirmation unless given a different
meaning in this process agent confirmation.
2. Pursuant to Clauses [-] the Agreement, the Borrower has irrevocably
designated, appointed and empowered us, in the case of any court
proceedings or legal actions in connection with the Agreement and the
other Finance Documents to receive for and on behalf of the Borrower
service of process in respect of such proceedings or legal actions.
3. We hereby confirm that we irrevocably accept the appointment as German
process agent upon the condition that we shall not be liable for any loss
or delay in transit of any documents or for mutilation or errors in the
transmission of any telecommunication and we agree that we will promptly
forward any process documents served on the Borrower to the address of the
Borrower set forth in the Agreement or such other address as the Borrower
or the Off Shore Facility Agent may notify to us from time to time.
Yours faithfully
----------------------------------------
authorised signatory for
[Process Agent]
- 141 -
SCHEDULE 14
COVENANT COMPLIANCE CERTIFICATE
To: IKB Deutsche Industriebank AG as Off Shore Facility Agent
From: Western Wireless International d.o.o.
Dated:
Dear Sirs
FACILITY AGREEMENT
DATED [-] (THE "AGREEMENT")
1. We refer to the Agreement. This is a Covenant Compliance Certificate.
Terms defined in the Agreement have the same meaning in this Covenant
Compliance Certificate unless given a different meaning in this Covenant
Compliance Certificate.
2. We confirm that as at the date of the financial statements in respect of
[-]:
(a) all contributions required to be made by the Shareholders pursuant
to the Sponsors' and Shareholders' Undertaking and Completion
Guarantee have been made when due;
(b) the Contributed Capital Ratio is [-];
(c) the number of Subscribers was [-];
(d) the Population Coverage was [-];
(e) the Service Revenues were [-];
(f) EBITDA was [-] and the variance from the Initial Business Plan of
[-] was [-];
(g) the Total Leverage Ratio was [-];
(h) the Interest Coverage Ratio was [-];
(i) the Debt Service Cover Ratio was [-];
(j) the financial statements were prepared in accordance with [US GAAP]
[and, if applicable, Slovenian Accounting Standards] consistently
applied and represent a true and fair view of the Borrower and do
not omit any material liability;
(k) we have received Sponsors Unsecured Loans in the amount of [-],
and attached hereto are detailed calculations and/or evidence thereof.
3. We confirm that as of the date hereof:
- 142 -
(a) no Potential Event of Default or Event of Default is continuing;(1)
(b) [no Cash Shortfall] [a Cash Shortfall] exists [in an amount equal to
[-]].(2)
4. As at the date of this Covenant Compliance Certificate the Repeated
Representations are correct by reference to the facts and circumstances as
at the date hereof except for representations which were made as of a
specific date which shall be correct in all material respects as of such
date.
5. We hereby request that the Applicable Margin in relation to the [state
Facility] be adjusted from [insert] to [insert].
Signed:______________________________ ____________________________________
Director Director
[insert applicable auditor certification language](3)
__________________________________
for and on behalf of
[name of auditors of the Borrower](4)
(1) If this statement cannot be made, the certificate should identify any
Event of Default or Potential Event of Default that is continuing and the
steps, if any, being taken to remedy it.
(2) Include if Cash Shortfall exists.
(3) To be agreed with the Borrower's auditors and the Banks prior to signing
the Agreement. Auditors must verify all of the above statements other than
points 2(c), (d) or 3.
(4) Only applicable if the Covenant Compliance Certificate accompanies the
audited financial statements and is to be signed by the auditors. To be
agreed with the Borrower's auditors prior to signing the Agreement.
- 143 -
SCHEDULE 15
PROJECT STATUS AND PROGRESS REPORT
To: IKB Deutsche Industriebank AG as Off Shore Facility Agent
From: Western Wireless International d.o.o.
Dated:
Dear Sirs
FACILITY AGREEMENT
DATED [-] (THE "AGREEMENT")
1. We refer to the Agreement. This is a Project Status and Progress Report.
Terms defined in the Agreement have the same meaning in this Project
Status and Progress Report unless given a different meaning herein.
2. Set out below is:
(1) with respect to the Eligible Expenditures under the ECA Facility a
list of (i) all purchase orders placed, and (ii) deliveries received
and/or services rendered during the Quarter together with copies of
the relevant invoices from the Equipment Vendor;
(2) a detailed and full description of the status of the installation of
the Network in comparison to the most recent Business Plan and the
status of all national roaming agreements;
(3) a comparison of the Borrower's actual business and network
development (including but not limited to network roll out and
network quality measured in Population Coverage and dBm and services
offered) with the Licence requirements and the Business Plan;
(4) the information contained in the annex hereto;
(5) a description of any non-compliance with delays in performance of,
cost increases under or other issues arising out of any Material
Contracts that could reasonably be expected to affect the Borrower's
ability to perform its obligations under the Finance Documents;
(6) a detailed description of any material financial, operational,
construction, regulatory, administrative, legal or other issues that
have had or could reasonably be expected to have a significant
impact on the Borrower;
(7) a list of all Material Contracts entered into, amended, terminated
or substituted in the last Quarter; and
(8) a description of any complaints received and correspondence from the
Government or any governmental bodies or other authority in relation
to the Project; and
(9) details of all tariff plans and Subscriber acquisition costs (in
total and per subscriber) including (without limitation) subsidies
spent on the provision of handsets and any special offers to
Subscribers; and
- 144 -
(10) an update of the sales and marketing strategy report comprised in
the Initial Business Plan and covering subscriber acquisition cost,
marketing cost and handset and other subsidies; and
(11) a written outline of major market and business developments.
Signed:______________________________ ____________________________________
Chief Financial Officer Chief Technical Officer
I herewith confirm the accuracy of the statements made in respect of the items
mentioned under paragraphs 2(2) and 2(4) above.
Signed on:
____________________________________
Independent Technical Consultant*
* In respect of (i) any Project Status and Progress Report delivered in
connection with any request for a change in the Applicable Margin
according to Clause 9.1(b)(i)(2) (Calculation of floating rate interest
under the ECA Facility) and Clause 9.2(b)(i)(2) (Calculation of floating
rate interest under the Commercial Facility); or (ii) any Project Status
and Progress Report delivered as at 31.12.2002, 31.12.2003 or 31.12.2004.
- 145 -
ANNEX
1. USAGE STATISTICS
In respect of each of post pay and prepay subscribers:
1.1 Number of active subscribers reported as at the last day of the Quarter;
1.2 Number of churned subscribers (subscribers who no longer have the status
of active subscriber) from the last day of the previous Quarter up until
the last day of the Quarter;
1.3 Average minutes of use per subscriber for Mobile Originated (MO) and
Mobile Terminated (MT) calls reported during the Quarter;
1.4 Number of Busy Hour Call Attempts (BHCA) per subscriber averaged over each
Month during the Quarter;
1.5 Percentage of calls for fax during the Quarter;
1.6 Percentage of calls for data during the Quarter;
1.7 Average minutes of use for fax for MO and MT calls during the Quarter; and
1.8 Average minutes of use for data for MO and MT calls during the Quarter.
2. PERFORMANCE AND QUALITY MEASUREMENT
The following Network performance key performance indicators as measured
on weekdays during busy hour and averaged over each Month during the
Quarter:
2.1 Call Set-Up Success Rate;
2.2 Handover Success Rate;
2.3 Traffic Channel (TCH) blocking rate;
2.4 Standalone Dedicated Control Channel (SDDCH) blocking rate;
2.5 An interface blocking rate (point of interconnects, A interface and
A(ter)); and
2.6 Overall network system drop call rate Base Station Subsystem (BSS) and
Network Subsystem (NSS).
3. INTELLIGENT NETWORK
In respect of each prepay subscriber during the Quarter:
3.1 Number of recharge attempts split into recharge method (such as voucher,
ATM and credit card);
3.2 Number of successful recharges of account; and
3.3 Percentage blocking (busy hour) or call gapping at SCP's INAP (Service
Control Point's Intelligent Network Application Part) interface during
each Month in the Quarter.
- 146 -
4. VOICE MAIL USAGE
In respect of each prepay and per postpay subscriber during the quarter:
4.1 Average length (in minutes) of voice mail messages deposits per day;
4.2 Average number of Voice Mails per day;
4.3 Average number voice mail retrievals per day;
4.4 Average length of Interactive Voice Response (IVR) sessions that do not
lead to a voice mail retrieval or voice mail message per day.
5. SHORT MESSAGE USAGE
In respect of each prepay and per post pay subscriber:
5.1 Average busy Hour SMSs (Short Message Service) for MO and MT SMSs;
5.2 Average total SMSs per Quarter for the whole Network preferably broken
down into:
- MO SMS;
- MT SMS;
- SIM Toolkit SMS OTA (Over The Air) originated;
- Voice mail notification; and
- Other (such as fleet messaging).
6. GPRS USAGE
Number of General Package Radio System (GPRS) subscribers measured in
respect of the Quarter on the last day of the Quarter.
Average number of kilo Bits for MO per GPRS subscriber per Quarter.
Average number of kilo Bits for MT per GPRS subscriber per Quarter.
7. CALL DETAILS
7.1 The total number of minutes per Quarter for incoming (to the Network)
calls from:
- the Network (intra the Network);
- PSTN (Public Switch Telephone Network - fixed line);
- Other PLMN's (Public Land Mobile Networks); and
- International gateway (preferably broken down into Country or xxxxxx
xxxx).
7.2 The total number of minutes during the Quarter for outgoing (from the
Network) minutes to:
- the Network (intra the Network);
- 147 -
- PSTN (Public Switch Telephone Network - fixed line);
- Other PLMNs (Public Land Mobile Networks); and
- International gateway (preferably broken down into country or tariff
area).
8. INTERNATIONAL ROAMING SUBSCRIBERS
8.1 Total duration (in minutes) during the Quarter of incoming calls.
8.2 Total duration (in minutes) during the Quarter of outgoing calls to:
- the Network;
- PSTN;
- Other PLMNs; and
- International Gateway (preferably broken down into country or tariff
area).
9. NATIONAL ROAMING
In respect of the Quarter:
9.1 Total Number of MO minutes;
9.2 Total Number of MT minutes;
9.3 Number of SMS MO; and
9.4 Number of SMS MT.
- 148 -
SCHEDULE 16
FORM OF PERMITTED XXXX OF EXCHANGE
To be agreed prior to first Utilisation
- 149 -
SCHEDULE 17
POPULATION COVERAGE VERIFICATION
1. DEFINITIONS
"POPULATION COVERAGE" means coverage of the Slovenian population with the
Borrower's own Network, unless otherwise indicated measured at a receive
signal level of -100 dBm, as described below excluding any coverage
derived from roaming agreements with other operators or the assistance of
any other telecommunications system other than the Network. The total
population number shall be calculated using recent substantive population
density data issued or based on Slovenian national statistics bureau.
2. POPULATION COVERAGE MEASUREMENT
2.1 The Borrower shall present soft and hard copies of maps showing the
Population Coverage based on detailed maps of Slovenia, area coverage
based on a receive signal strength of -85 dBm, -95 dBm and -100 dBm and
recent substantive Slovenian population density data imported into a
Geographic Information System (GIS) software tool to display coverage maps
and calculate the Population Coverage as defined in paragraph 3.4 below.
2.2 The coverage areas shall be based on the receive signal strength of -100
dBm and shall include the predicted Population Coverage for this area. The
Borrower shall use the most recent substantive Slovenian population
density data available on the market and the density of population
distribution data shall be per one kilometre square grid (or denser)
across the whole of the territory of Slovenia with a coordinate for each
respective grid located in the most populated area within the one
kilometre. Any further assumptions for this coverage shall be clearly
stated.
2.3 EVIDENCE OF POPULATION COVERAGE
The Borrower shall present to the Off Shore Facility Agent as soon as the
same becomes available but in any event not later than 45 days after the
respective date for the achievement of the Population Coverage covenant as
indicated in Clause 22.2(b) (Population Coverage) or Clause 22.4
(Confirmation by Independent Technical Consultant) together with the
respective Covenant Compliance Certificate the following evidences for the
achievement of the respective Population Coverage as stipulated in Clause
22.2(b) (Population Coverage) or Clause 22.4 (Confirmation by Independent
Technical Consultant), which shall be verified by the Independent
Technical Consultant:
2.3.1 Detailed coverage maps showing the receive signal strength of -100 dBm and
-95 dBm (best server) for its own GSM Network as well as the site
locations, site references and central coordinates of population
settlements.
2.3.2 Operation and Maintenance Centre (OMC) reports per site showing site names
and cell status (on air, TRX (TRX - Transceiver or Transmitter Receiver)
power levels, BCCH channels (Broadcast Control Channel)).
2.3.3 Drive tests' reports verifications of the Population Coverage as defined
in paragraph 3.5 below.
2.4 By the measurement of the Population Coverage the Borrower shall not
include coverage areas provided:
2.4.1 by any other network (such as for national roaming);
- 150 -
2.4.2 temporary sites that have been established less than four weeks or any
temporary site which are intended to be removed within 12 weeks after the
milestone date without establishing a permanent site that gives equivalent
coverage; and
2.4.3 by use of any temporary signal booster such as high power amplifier used
to distort coverage.
3. VERIFICATION OF POPULATION COVERAGE
3.1 DRIVE TEST ROUTES AND TIMESCALES
The Borrower shall present detailed data as defined in paragraph 2.3 above
on the proposed coverage area maps of regions in Slovenia at the latest
six weeks prior to any of the dates for achievement of a certain level of
Population Coverage as indicated in Clause 22.2(b) (Population Coverage)
or Clause 22.4 (Confirmation by Independent Technical Consultant). This
shall be based on the Borrower's BTS (Base Transceiver Station) sites that
are projected to be 'on air' on the respective date for achievement of the
respective level of Population Coverage as indicated in Clause 22.2(b)
(Population Coverage) or Clause 22.4 (Confirmation by Independent
Technical Consultant).
In order to verify the coverage areas, drive test routes shall be mutually
agreed between the Borrower and the Independent Technical Consultant at
the latest three weeks prior to the respective date for achievement of a
certain level of Population Coverage as indicated in Clause 22.2(b)
(Population Coverage) or Clause 22.4 (Confirmation by Independent
Technical Consultant) in order to substantiate coverage areas. Sample
routes shall focus on areas with minimal coverage (below -95dBm best
server) shown on the coverage maps and just within the borders of
contiguous areas of Population Coverage. The Independent Technical
Consultant may accompany the Borrower whilst performing some of the tests.
3.2 DURATION OF DRIVE TESTING
3.2.1 Drive routes shall be limited to no more than 10 days duration in total
per Population Coverage covenant as indicated in Clause 22.2(b)
(Population Coverage) unless prolonged by repeat tests as described in
paragraph 3.2.2 below.
3.2.2 However should EITHER
a) the drive test reports (the format of which is as described in
paragraph 3.5 below) show; OR
b) during the performance of the drive test it is observed that
one or more routes whereby there occurs several dropped calls or that the
receive signal strength is indicated below -100 dBm for a distance of 400
metres or more (or for more than a total of five percent of the total
distance of any drive route), THEN the associated drive route test shall
be repeated with a nearby route in an area with higher receive signal
strength until these criteria have been fulfilled.
3.3 FINALISATION OF THE POPULATION COVERAGE CALCULATION
The final coverage maps, if amended by the drive tests reports according
to measured coverage, shall be mutually agreed between the Independent
Technical Consultant and the Borrower for the relevant Population Coverage
covenant. Should the receive signal strength be -100 dBm or better for the
majority of the land area within the grid (as defined in paragraph 2.2
above) and should the coordinate for the respective grid be also covered
then the population number for this grid shall be considered to be
covered.
- 151 -
3.4 TOOLS AND TEST EQUIPMENT REQUIRED BY THE BORROWER
The Borrower shall use commercially available proven tools and test
equipment to establish evidence of Population Coverage. The Borrower shall
notify the Independent Technical Consultant prior to revising the proposed
tools (as mentioned herein). Any replacement tool shall conform to the
requirements as set out herein. The following Clauses describe these
tools.
3.4.1 The Geographic Information System (GIS) software tool is an information
system that is designed to work with data referenced by spatial or
geographic coordinates. GIS is both a database system with specific
capabilities for spatially referenced data, as well as a set of operations
for analysis of the data. The GIS tool shall import detailed maps of
Slovenia; statistical population density data and radio coverage plots in
order to calculate the Population Coverage for all Slovenia. The
calculation shall be made according to the methodology presented in
paragraph 3.3. The proposed tools which will be used to perform this
function are called Logica Odyssey and Arc View.
3.4.2 The drive test equipment and software is used in a suitable vehicle to
analyse parameters of the uplink and downlink radio path between the
mobile terminal and the BTS during idle mode, during call set-up and
whilst in call mode. This should work with a laptop personal computer, a
GPS (Global Positioning System) receiver with external antenna and a
compatible Global System for Mobile Communication (GSM) (1800 band) mobile
terminal equipped with the manufacturer's test software. The handset shall
preferably use an externally mounted GSM antenna on the vehicle along with
suitable in line loss pad between the GSM antenna and the unit to
compensate for external antenna gain. The proposed tool which will be used
to perform this function is called Agilent E7475A with a Sagem mobile
handset equipped with test software.(5)
3.4.3 A post processing software tool should be used to perform detailed
analysis of the data produced by the drive testing. This shall be
presented in the form of statistics and detailed drive test maps showing
the routes and drive test reports for each route as defined in paragraph
3.5. The proposed tool which will be used to perform this function is
called Actix Analyzer software version 4.1.
3.5 DRIVE TEST REPORTS
For each route the Borrower shall prepare a report containing all relevant
measured data. The report shall be made available in softcopy to the
Independent Technical Consultant and the Off Shore Facility Agent.
This report shall include a statistical summary of the field measurements
(RXQUAL (Receive quality according to indicators reflecting the Bit Error
Rate), RXLEV (Receive Signal level stated in dBm) distribution) and the
plot of measured RXLEV and RXQUAL, as well as the location of call set-up
failures and call drops on a map that shall also show the defined drive
routes. RXQUAL and RXLEV shall be measured only whilst the mobile terminal
is on a permanent call and not whilst in idle mode. The cell BCCH channel
number shall also be detailed on the map.
Actix UK company providing quality measurement and
analysis software to the mobile industry.
Headquartered in Xxxxxx Xxxxx, 00 Xxxxxx Xxxxxx
Xxxx, Xxxxxxxxxxx, Xxxxxx.
(5) Outside antenna gives more accurate and consistent results. Up to 10 dB
variations can be introduced due to exact location of handset (such as on
passenger seat or clipped to dashboard) which is affected by losses from
surrounding such as body-loss.
- 152 -
Agilent Technologies US company formerly owned by Hewlett Packard
specialising in medical, test and communications
equipment and software. Headquartered in 395
Page Xxxx Xxxx, XX Xxx 00000, Xxxx Xxxx,
Xxxxxxxxxx.
ArcView GIS Software ArcView is a mapping and GIS software tool for
the desktop PCs.
Sagem French company specialising in communications,
defence electronics and mobile terminals.
Headquartered in Le Xxxxxx xx Xxxxx, 00 xxx
Xxxxxxx, 00000 Xxxxx.
- 153 -
SCHEDULE 18
INITIAL REPORT OF THE INDEPENDENT TECHNICAL CONSULTANT
To: IKB Deutsche Industriebank AG as Off Shore Facility Agent
From: Independent Technical Consultant
Dated: [-]
Dear Sirs
FACILITY AGREEMENT
DATED [-] (THE "AGREEMENT")
1. I refer to the Agreement. This is an initial report as referred to in
point 4 (n) of Schedule 6 (Conditions Precedent). Terms defined in the
Agreement have the same meaning in this initial report unless given a
different meaning in this initial report.
2. I certify that I have reviewed the information provided by the Borrower
(attached hereto) and confirm, in all material respects (other than in
relation to paragraph 2.1 below), the following.
2.1 As at [date], the:
(a) Population Coverage has reached 65%; and
(b) the number of Subscribers is 8,000.
2.2 The Network is operational, including Core Network elements [MSC (Mobile
Switching Centre), HLR (Home Location Register), VLR (Visitor Location
Register), AuC (Authentication Centre)], Value Added Services [Voice Mail
System and Short Message Centre], Intelligent Network [prepay
application], Base Station Subsystems [Transcoders, BSCs (Base Station
Controllers) and BTSs (Base Station Transceiver)], OMCs [Operation and
Maintenance Centre] and, as at the date mentioned in paragraph 2.1 above,
[-] base stations are on air.
2.3 That other supporting systems for the operation of the Network are in
place, including customer care, billing centre, critical IT infrastructure
[_______________________________________________________________], power
systems, and building control systems.
2.4 The National Roaming Agreement with Mobitel dated 9 November 2001 is in
full force and effect.
I confirm that the information provided by the Borrower is sufficient to make
the confirmations set out in paragraphs 2.1 to 2.4 above.
Yours faithfully
_______________________________________
Independent Technical Consultant
- 154 -
SIGNATORIES TO THE FACILITY AGREEMENT
THE BORROWER
WESTERN WIRELESS INTERNATIONAL D.O.O.
By: JULIEN COUSTAURY
Name: Julien Coustaury Name:
Title: General Director Title:
Address: Xxxxxxxxx xxxxx 00, 0000 Xxxxxxxxx, Xxxxxxxx
Telephone: x000 0 0000 000
Fax: x000 0 0000 000
Attention of: Xxxxxx Fast
LEAD ARRANGER, OFF SHORE SECURITY AGENT, OFF SHORE FACILITY AGENT AND ORIGINAL
EURO FACILITY BANK
IKB DEUTSCHE INDUSTRIEBANK AG
By: XXXXXX XXXXXXXXX JAN-XXXXXX XXXXX
Name: Xxxxxx Xxxxxxxxx Name: Jan-Xxxxxx Xxxxx
Title: Member of the Title: Assistant Director
Board of Directors
Address: Xxxxxxx-Xxxxxxx-Xxxx(xxxx)x 0, 00000 Xxxxxxxxxx, Xxxxxxx
Telephone: x00 000 0000 0000 or x00 000 0000 0000
Fax: x00 000 0000 0000 or x00 000 0000 0000
Attention of: Xxxxxxx Xxxxxxx or Xxxxxxx Xxxxxx
LEAD ARRANGER AND ORIGINAL EURO FACILITY BANK
KREDITANSTALT FUR WIEDERAUFBAU
By: XXXXXX PROVE
Name: Xxxxxx Xxxxxx Name:
Title: Senior Project Manger Title:
Address: Xxxxxxxxxxxxxxx(xxxx)x 0-0, 00000 Xxxxxxxxx xx Xxxx, Xxxxxxx
Telephone: x00 00 0000 0000
Fax: x00 00 0000 0000
Attention of: Xxxxxx Prove
SENIOR CO-ARRANGER AND ORIGINAL EURO FACILITY BANK
RAIFFEISENLANDESBANK OBEROSTERREICH REG.GEN.M.B.H.
By: XXXXXX XXXXXXXXX XXXXXXX ZIWEY
Name: Xxxxxx Xxxxxxxxx Name: Xxxxxxx Ziwey
Title: Assistant Director Title: Director
Address: Xxxxxxxxxxxxxxx 0, 0000 Xxxx, Xxxxxxx
Telephone: x00 000 0000 0000
Fax: x00 000 0000 0000
Attention of: Xx. Xxxxxxx Xxxxxxxx
SENIOR CO-ARRANGER, ON SHORE SECURITY AGENT, ON SHORE FACILITY AGENT AND
ORIGINAL SIT FACILITY BANK
NOVA LJUBLJANSKA BANKA D.D., LJUBLJANA
By: MATEVZ PIRNAT
Name: Matevz Pirnat Name:
Title: SVP and Resident Title:
Representative
Address: Xxxxxxxxxx 000, XX - 0000 Xxxxxxxxx, Xxxxxxxx
Telephone: x000 0 000 0000
Fax: x000 0 000 00 00
Attention of: Ms. Jasna Istenie or Mr. Bostjan Kovae
CO-ARRANGER AND ORIGINAL EURO FACILITY BANK
LANDESBANK SCHLESWIG-HOLSTEIN GIROZENTRALE
By: XXXXXX XXXXXXXXX XXXXXXX ZIWEY
Name: Xxxxxx Xxxxxxxxx Name: Xxxxxxx Ziwey
Title: Assistant Director Title: Director
Address: Xxxxxxxxxxx 0, 00000 Xxxx, Xxxxxxx
Telephone: x000 000 0000
Fax: x000 000 0000
Attention of: Xxxxx-Xxxxxx Xxxx
- 156 -
CO-ARRANGER AND ORIGINAL EURO FACILITY BANK
HYPO ALPE-ADRIA-BANK AG
By: XXXXXX XXXXXXXXX XXXXXXX ZIWEY
Name: Xxxxxx Xxxxxxxxx Name: Xxxxxxx Ziwey
Title: Assistant Director Title: Director
Address: Stock im Xxxxx-Xxxxx 0, 0000 Xxxx, Xxxxxxx
Telephone: x00 0 000 0000
Fax: x00 0 000 0000 0000
Attention of: International Finance
ORIGINAL SIT FACILITY BANK
HYPO ALPE-ADRIA-BANK D.D.
By: XXXXXX XXXXXXXXX XXXXXXX ZIWEY
Name: Xxxxxx Xxxxxxxxx Name: Xxxxxxx Ziwey
Title: Assistant Director Title: Director
Address: Trg Osvobodilne fronte 12
XX Xxx 0000, XX - 0000 Xxxxxxxxx, Xxxxxxxx
Telephone: x000 0 000 0000
Fax: x000 0 000 0000
Attention of: Xx. Xxxxxx Xxxxxxx
