Exhibit 10.9
LOAN AGREEMENT
between
ORLA SIEBZEHNTE VERMOGENSVERWALTUNG GmbH (GERMANY)
AS BORROWER
and
SONERA CORPORATION (FINLAND)
AS LENDER
dated SEPTEMBER 30, 2000
LOAN AGREEMENT
between
ORLA Siebzehnte Vermogensverwaltung GmbH, a German Gesellschaft mit
beschrankter Haftung, with a share capital EURO 25.000,-- , having its
registered office at c/o Oppenhoff & Xxxxxx Wirtschaftsprufungsgesellschaft
mbH, Xxxxxxx XxxxxxxxXXx 00, 00000 Xxxxxxxxx xx Xxxx,
hereinafter referred to as the "Borrower"
AND
Sonera Corporation, a company incorporated under the law of Finland, having
its registered office at Xxxxxxxxxxxxxx 00, 00000 Xxxxxxxx, Xxxxxxx,
hereinafter referred to as the "Lender"
hereinafter together referred to as the "Parties";
WHEREAS the Parties have entered into an oral loan agreement as of August 28,
2000 ("Oral Loan Agreement") according to which the Lender provided to the
Borrower a term credit facility of EURO 1,812,888,543.48 (one billion eight
hundred and twelve million eight hundred and eighty eight thousand and five
hundred and forty three EURO and forty eight cents) by way of a single
advance on September 1, 2000,
WHEREAS the Borrower has also entered into an oral loan agreement as of
August 28, 2000 with Sonera 3G Holding B.V. incorporated under the law of the
Netherlands, having its registered seat at Xxxxxx Xxxxxxxx 00, 0000 XX
Xxxxxxx xxx xxx Xxxxxx, according to which Sonera 3G Holding B.V. provided to
the Borrower a term credit facility of EURO 906,444,271.74 (nine hundred and
six million four hundred and fortyfour thousand two hundred and seventy one
EURO and seventy four cents) by way of a single advance on September 1, 2000,
such oral agreement is confirmed in writing on the date hereof (the "3G
Holding Loan"). This Facility and the 3G Holding Loan are hereinafter
together referred to as the "Sonera Facilities".
WHEREAS the Borrower has also entered into an oral loan agreement as of
August 28, 2000 with Telefonica International S.A. according to which the
Telefonica InterContinental S.A. provided to the Borrower a term credit
facility of EURO 3,634,248,528.758 (three billion, six hundred and thirty
four million, two hundred and forty eight thousand and five hundred and
twenty eight EURO and sevend hundred and fifty eight cents) by way of a
single advance on September 1, 2000, such oral agreement is confirmed in
writing on the date hereof (the "TICSA Bridging Loan").
NOW, THEREFORE, the Parties confirm in writing the agreed terms and
conditions of the Oral Loan Agreement as follows:
1. THE FACILITY
1.1 The Lender grants to the Borrower a term credit facility of EURO
1,812,888,543.48 (one billion eight hundred and twelve million eight
hundred and eighty eight thousand and five hundred and forty three EURO
and forty eight cents) available by way of a single advance ("Facility").
1.2 The advance was paid by the Lender to the Borrower on 1 SEPTEMBER, 2000 by
way of wire transfer to the account of the Regulatory Authority for
Telecommunications and Posts ("RegTP") specified by the Borrower. The
Borrower shall apply the advance granted pursuant to Para.1.1 for the
following purpose exclusively: The Borrower shall provide the entire
advance to its 100% subsidiary "Marabu" Vermogensverwaltung GmbH,
registered under HRB 73714 at the commercial Register of the local court
of Charlottenburg and having its registered seat in Berlin, ("Marabu") as
a term credit facility. The Borrower shall instruct Marabu, which has been
awarded a UMTS/IMT-2000 License for Germany ("License") by "RegTP, to
apply the advance for the payment of the fee required by RegTP for the
award of the License ("License Fee") in due time. In accordance with the
foregoing obligations, the Borrower and Marabu requested the Lender to
provide the advance by paying the License Fee directly to RegTP on behalf
of Marabu.
1.3 The Borrower shall repay the advance to the Lender in Euro on the date of
31 DECEMBER 2000. Not later than four (4) Berlin business days before the
31 December 2000, the Lender shall send the Borrower a notice specifying
the details of the bank and account to which the Lender wishes the advance
to be repaid.
1.4 The Borrower may not repay the advance by setting it off against sums due
by the Lender to the Borrower, except in case that the Lender gave its
express consent. In the
latter case payment shall be the date on which receipt of the set-off
notice has been acknowledged by the Lender.
2. INTEREST
2.1 The rate of interest applicable shall be EURIBOR + 1,5 per cent per annum.
The interest period for this loan is 4 months starting on September 1,
2000.
5.5 The Borrower shall pay the total unpaid interest accrued on the advance or
overdue sums to which it relates at the rate applicable on 31 December,
2000.
5.6 EURIBOR means the rate determined by the Lender for the interest period to
be the rate for Euro deposits for a period equal to the interest period
which appears on Reuters Page EURIBOR=, as of 11:00 a.m. London time, on
the day which is two London Banking days before the beginning of the
relevant interest period.
5.7 The interest rate will be rounded to the nearest five decimals. All
amounts used in or resulting from such calculations will be rounded
upwards to the nearest two decimals.
5.8 The Borrower shall also pay to the Lender an arrangement fee of 1,25 per
cent flat on the Facility amount, and it shall be due and payable on 1
November 2000.
3. DEFAULT INTEREST
If the Borrower does not pay any sum payable under this Agreement when
due, the Borrower shall pay interest amounting to 10% p.a. on that overdue
sum for the period beginning on its due date, and ending on the date of
its actual receipt by the Lender.
4. CALCULATIONS AND PAYMENTS
4.1 All interest, whether normal interest under Clause 2 or default interest
under Clause 3, shall accrue from day to day and shall be calculated on
the basis of a year of 360 days and the actual number of days elapsed.
4.2 On each day on which any sum is due from the Borrower, it shall make that
sum available to the Lender by payment before close of business in Berlin
on that date in EURO and in readily available funds, credited by the
Borrower to the account number to be notified by the Lender to the
Borrower not later than four (4) Berlin business days
before the respective payment is due, opened in the Lender's name on its
books or to any other account with respect to which the Lender has
notified the Borrower of the references.
4.3 If a new shareholder joins the Borrower by way of acquiring shares from
the Lender's subsidiary Sonera 3G Holding B.V. and/or the Borrower's other
shareholder Telefonica International S.A., and provided further that the
new shareholder provides funding to the Borrower by way of a shareholder's
loan or equity other than share capital, the Borrower shall apply such
funds to repay the Sonera Facilities and the TICSA Bridging Loan on a pro
rata basis.
4.4 If the Lender wishes to replace the Facility by a third party long-term
loan facility ("Third Party Loan") and, therefore, terminates this Loan
Agreement pursuant Para. 5.4, the Borrower shall apply the amount received
under the Third Party Loan to repay the Sonera Facilities and the TICSA
Bridging Loan on a pro rata basis.
5. EVENTS OF DEFAULT
The Lender shall have the right, upon notice to the Borrower, to terminate
the Agreement and to declare the advance, or unpaid accrued interest, and
any other sum then payable under this Agreement to be immediately due and
payable, whereupon they shall become so due and payable, if, at any time
and for any reason (and whether within or beyond the control of any party
to this Agreement), any of the following events ("Events of Default")
occurs:
5.1 the Borrower does not pay in the manner provided in this Agreement
any sum payable when due;
5.2 the Borrower and/or Marabu ceases to pay its debts generally as and
when they fall due or a judgement is issued for the judicial
liquidation of the Borrower or for transfer of the whole of its
business or, in the absence of legal proceedings, the Borrower and/or
Marabu makes a conveyance, assignment or other arrangement for the
benefit of its creditors, or a resolution is passed by the Borrower
and/or Marabu for its winding up or dissolution;
5.3 the Lender's subsidiary Sonera 3G Holding B.V., ceases to be a
shareholder of the Borrower, except if all shares which Sonera 3G
Holding B.V. holds in the Borrower are acquired by an entity which is
affiliated with the Lender within the meaning of Sec.15 German Stock
Corporation Act ("AKTIENGESETZ") (whereby a 50% participation
qualifies as being majority owned);
5.4 the Lender wishes to replace this Loan Agreement by a Third Party
Loan long-term to the Borrower, provided that in such event the
advance, or unpaid accrued interest, and any other sum then payable
under this Agreement, are due and payable 15 Berlin business days
after notification to the Borrower of the termination of the
Agreement;
5.5 Marabu breaches its obligations under the License and such breach is not
remedied within the applicable grace period and which in the reasonable
opinion of the Lender means that the License is at significant risk of
being terminated.
6. NEGATIVE PLEDGE
6.1 The Borrower hereby warrants and guarantees that its shares in Marabu are
completely unencumbered and have, in particular, not been pledged to a
third party.
6.2 The Borrower hereby undertakes and guarantees that it will not pledge any
of its shares in Marabu to any third party for so long as any amount shall
remain outstanding under the Facility, including any interests and default
interests as defined in Para.2 and 3.
7. COVENANTS
For so long as any amount shall remain outstanding under the Facility, the
Borrower shall
7.1 bear all withholdings, taxes and registration fees payable by it under
German law in connection with this Agreement for its own accounts;
7.2 perform its duties and obligations under this Agreement and exercise its
rights under this Agreement;
7.3 apply the advance under this Agreement only for the purposes stipulated in
Sec. 1.2 of this Agreement;
7.4 carry out all of its business activities, in all material respects, with
due diligence and efficiency and in accordance with sound administrative,
engineering, environmental, financial and acceptable business standards
and practices;
7.5 maintain proper books in accordance with German accounting standards;
7.6 comply with all laws, regulations, agreements, licenses and concessions
which are, in each case, material to the carrying of its business
7.7 instruct its 100% subsidiary Marabu to comply with all laws, regulations,
agreements, licenses and concessions which are, in each case, material to
the carrying the business of Marabu;
7.8 promptly notify the Lender of the occurrence of any Event of Default as
defined in Para. 5.
8. MISCELLANEOUS
8.1 The Lender may, at any time, transfer this Agreements, including all
rights and obligations of the Parties stipulated herein, to an entity
affiliated with the Lender within the meaning of Sec.15 Stock Corporation
Act (AKTIENGESETZ), (whereby a 50% participation qualifies as being
majority owned). Such transfer of the Agreement shall have discharging
effect with respect to all obligations of the Lender hereunder.
8.2 The obligations of the Borrower arising from this Loan Agreement
constitute direct, unconditional, unsecured and unsubordinated obligations
of the Borrower and rank pari passu, without any preference, among
themselves and pari passu with any other of the Borrower's unsecured and
unsubordinated liabilities owing and accruing.
8.3 The Borrower shall pay, on demand, all costs, expenses as well as any
stamp, documentary, registration or similar tax incurred by the Lender or
payable in connection with this Agreement, and shall indemnify the Lender
against any liability with respect to such obligations.
8.4 No failure by any of the parties hereto to exercise, nor any delay by the
Lender in exercising any right whatsoever hereunder shall operate as a
waiver of the right in question. Similarly, no partial exercise of a right
shall prevent any further exercise of rights which have not yet been fully
exercised. The rights referred to in this Clause are in addition to any
rights provided by law.
8.5 Any communication between the Borrower and the Lender shall be made by
fax, registered mail with return receipt, or personally delivered to the
following addresses:
If to the Borrower:
Xx. Xxxx Xxxxx-van Dam xx Xxxxxxx
Managing Director of ORLA Siebzehnte Vermogensverwaltung GmbH
Fax: 0000 00 000 0000
Address: Xxxx Xxx 00, 00000 Xxxxxx, Xxxxx
If to the Lender:
Sonera Corporation
X.X.Xxx 000, XXX-00000 XXXXXX, Xxxxxxx
Fax: x000 0000 00000
Attn: Corporate Finance
Notice shall be deemed to have been given:
- If by fax: on the date of dispatch to the number indicated above.
- If by registered mail with return receipt: on the date appearing on
the acknowledgement of receipt.
- If by personal delivery: on the date appearing on the receipt
signed by the addressee's employee or agent.
Any notice shall be deemed valid if made to a party at the address or fax
number set out above unless such party has notified the other of any other
address or fax number to which communications are to be in accordance with
the provision of this clause.
9. GOVERNING LAW AND JURISDICTION
9.1 This Agreement shall be governed by and construed in accordance with the
laws of the Federal Republic of Germany.
9.2 Any dispute which may arise in connection with the construction,
performance or enforcement of this Agreement shall be submitted in the
first instance exclusively to the district Court of Berlin.
9.3 If any provision of this Agreement shall be invalid or unenforceable, such
provision shall be ineffective to the extent of such invalidity or
unenforceability only, without affecting the remaining parts of such
provision or the remaining provisions hereunder. The void provision shall
be substituted by a valid provision, the nature and economic consideration
of which comes as close as possible to the void provision.
Executed in Madrid on SEPTEMBER 30, 2000 in two original copies
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ORLA Siebzehnte Vermogensverwaltung GmbH
Xx. Xxxx Xxxxx-van Dam xx Xxxxxxx
Managing Director
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Sonera Corporation
Xxxxx Xxxxxxxx Xxxxxx Xxxxxxxxxxx
Treasurer Manager, Back Office