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EXHIBIT 99.3
CONFORMED COPY
DATED 6 APRIL 2001
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SUPPLEMENTAL AGREEMENT
RELATING TO
FACILITIES OF UP TO
US$550,000,000
(TO BE REDUCED TO (euro)300,000,000)
AMONG
GLOBAL TELESYSTEMS EUROPE HOLDINGS B.V.
BANC OF AMERICA SECURITIES LIMITED
DEUTSCHE BANK AG LONDON
AND
DRESDNER BANK AG LONDON BRANCH
ARRANGERS
DEUTSCHE BANK AG LONDON
AGENT
▇▇▇▇▇▇ ▇▇▇▇
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CONTENTS
CLAUSE PAGE
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1 Interpretation.................................................................1
2 Amendments to the Principal Agreement..........................................2
3 Waivers to and consents under the Principal Agreement and Security Documents...2
4 Confirmations and agreements...................................................3
5 Representations and warranties.................................................7
6 Fees and expenses..............................................................9
7 Miscellaneous..................................................................9
8 Governing law..................................................................9
Schedule 1 The Original Guarantors.....................................................
Schedule 2 Restated Agreement..........................................................
Schedule 3 Waivers and consents to the Principal Agreement.............................
Schedule 4 Conditions Precedent........................................................
Schedule 5 (A) GTS Inc. Asset Transfer.................................................
Schedule 5(B) Esprit Asset Transfer....................................................
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THIS SUPPLEMENTAL AGREEMENT is dated 6 April 2001 and made
BETWEEN:
(1) GLOBAL TELESYSTEMS EUROPE B.V. as the Immediate Shareholder, Guarantor
and a Security Provider;
(2) GLOBAL TELESYSTEMS EUROPE HOLDINGS B.V. as Original Borrower;
(3) THE ENTITIES whose names and registered offices are set out in schedule 1
as Guarantors;
(4) GLOBAL TELESYSTEMS, INC. as the Ultimate Shareholder;
(5) BANC OF AMERICA SECURITIES LIMITED, DEUTSCHE BANK AG LONDON and DRESDNER
BANK AG LONDON as Arrangers;
(6) BANK OF AMERICA N.A., DEUTSCHE BANK AG LONDON and DRESDNER BANK AG LONDON
BRANCH as Banks;
(7) DEUTSCHE BANK AG LONDON as Agent, Working Capital Bank and as Security
Trustee.
WHEREAS:
(A) This Supplemental Agreement is supplemental to an agreement dated 14th
July 2000, made between Global TeleSystems Europe Holdings B.V. as
Original Borrower and Guarantor (1), Global TeleSystems Europe B.V. as
the Immediate Shareholder and Guarantor (2), the entities whose names and
registered offices are set out in part A of schedule 1 thereto as
Original Guarantors (3), Global TeleSystems, Inc. as the Ultimate
Shareholder (4), Deutsche Bank AG London Branch, Banc of America
Securities Limited and Dresdner Bank AG London Branch as Arrangers (5),
the banks and financial institutions whose names and addresses are set
out in part C of schedule 1 thereto (6), Deutsche Bank AG London as Agent
(7), Deutsche Bank AG London as Security Trustee (8), and Deutsche Bank
AG London as Working Capital Bank (9) (as amended and waived) (the
"PRINCIPAL Agreement").
(B) The parties to this Supplemental Agreement have agreed that the Principal
Agreement be amended and waived to the extent set out in this
Supplemental Agreement.
(C) The parties to this Supplemental Agreement recognise that the Ultimate
Shareholder will be inquiring into the possibility of obtaining private
equity investment in either itself or its affiliates, and agree to work
together in good faith to endeavour to identify, discuss and, subject to
the agreement of all the parties to this Supplemental Agreement, address
and implement changes to the Restated Agreement and this Supplemental
Agreement necessary or appropriate to obtain such investment.
NOW IT IS HEREBY AGREED as follows:
1 INTERPRETATION
1.1 DEFINITIONS IN PRINCIPAL AGREEMENT
Unless the context otherwise requires and save as mentioned below, words
and expressions defined in the Principal Agreement (or which will be
defined in the Principal Agreement following the amendments pursuant to
this Supplemental Agreement) or, unless otherwise defined in the
Principal Agreement (or which will be defined in the Principal Agreement
following the amendments pursuant to this Supplemental Agreement), the
Security Trust Deed shall have the same meanings when used in this
Supplemental Agreement. In this Supplemental Agreement, unless the
context otherwise requires:
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"EFFECTIVE DATE" means the date on which the Agent receives the documents
and evidence set out in schedule 4 satisfactory in form and substance to
all the Banks;
"PERMITTED ULTIMATE SHAREHOLDER ACQUISITION" means any transaction by a
member of the Ultimate Shareholder Group which is not a member of the
Group otherwise prohibited by clause 4.5 provided that:
(i) in the case of an acquisition, the consideration paid or payable by
the member of the Ultimate Shareholder Group in relation thereto is
satisfied entirely by the issue of shares in the Ultimate
Shareholder;
(ii) the aggregate amount of liabilities of the Ultimate Shareholder
Group (other than the Group) in respect of all Permitted Ultimate
Shareholder Acquisitions together with the aggregate amount of
liabilities of the Group in respect of Permitted Acquisitions does
not exceed (euro)25,000,000. For these purposes "liabilities" means
the transfer or application of cash (or its equivalent) whether by
loan or otherwise or assets to, or on behalf of, or for the account
of, any acquired entity, joint venture or partnership or the
guarantee of the obligations of any such acquired entity, joint
venture or partnership;
"RESTATED AGREEMENT" means the Principal Agreement as amended and waived
pursuant to this Supplemental Agreement;
"SUPPLEMENTAL AGREEMENT" means this Supplemental Agreement; and
"US CHARGE OVER ACCOUNT" means the charge over the Ultimate Shareholder's
account in New York with the Security Trustee entered into or to be
entered into by the Ultimate Shareholder in the agreed form.
1.2 INTERPRETATION OF PRINCIPAL AGREEMENT
References in the Principal Agreement to "THIS AGREEMENT" shall, with
effect from the Effective Date and unless the context otherwise requires,
be references to the Principal Agreement as amended by this Supplemental
Agreement and words such as "HEREIN", "HEREOF", "HEREUNDER", "HEREAFTER",
"HEREBY" and "HERETO", where they appear in the Principal Agreement shall
be construed accordingly.
1.3 INCORPORATION OF CERTAIN REFERENCES
Clauses 1.3, 1.4 and 1.5 of the Principal Agreement shall be deemed to be
incorporated in this Supplemental Agreement in full, mutatis mutandis.
1.4 CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
No terms of this Supplemental Agreement are enforceable under the
Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ by a person who is not a
party to this Supplemental Agreement.
2 AMENDMENTS TO THE PRINCIPAL AGREEMENT
With effect from the Effective Date, the Principal Agreement shall be
amended and restated as set out in schedule 2 and all obligations in the
Principal Agreement will be superseded as of the Effective Date and
replaced by the obligations set out in the Restated Agreement attached at
schedule 2.
3 WAIVERS TO AND CONSENTS UNDER THE PRINCIPAL AGREEMENT AND SECURITY
DOCUMENTS
With effect from the Effective Date, breaches (if any) of the clauses of
the Principal Agreement and Security Documents set out in schedule 3
shall be waived by the Banks and/or consents
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shall be given thereunder by the Banks to the extent of the matters set
out against the relevant clause in schedule 3.
4 CONFIRMATIONS AND AGREEMENTS
With effect from the Effective Date:
4.1 the Banks, relying on the representations and warranties provided by the
Original Borrower, the Immediate Shareholder and GTS Network at clause
5.1.9, confirm that the conditions subsequent set out in clauses 3.6.1
and 3.6.2 of the Principal Agreement to be satisfied no later than the
date falling 6 months or the date falling 9 months (as applicable) after
the date of the Principal Agreement have been satisfied;
4.2 the confirmation given in clause 4.1 is without prejudice to the on-going
application of clause 3.6 of the Restated Agreement and, for the
avoidance of doubt, the Original Borrower undertakes that it will
continue to comply with the terms of clause 3.6 of the Restated
Agreement;
4.3 the Ultimate Shareholder undertakes that it will ensure that all material
Necessary Authorisations not in the name of an Obligor on the Effective
Date are transferred to and/or replacements issued to an Obligor as soon
as reasonably practical after the Effective Date (other than those to
which the proviso to clause 3.6 of the Restated Agreement applies, which
should be transferred in accordance with the proviso to clause 3.6 of the
Restated Agreement) and will deliver to the Agent within 60 days of the
Effective Date a list providing reasonable details of all material
Necessary Authorisations which are not in the name of an Obligor;
4.4 the Ultimate Shareholder undertakes that, subject to clause 12.1.24 of
the Restated Agreement, all cash or equivalent balances retained by the
Ultimate Shareholder from the Effective Date (other than the Permitted
Cash Balances) will be held in the account which is the subject of the US
Charge over Accounts;
4.5 the Ultimate Shareholder undertakes that it will not and will procure
that no member of the Ultimate Shareholder Group will enter into any
joint venture or partnership arrangements, make any acquisition of shares
or other ownership interests in any person or acquire all or a
substantial part of the assets, property or business of any other person
or any other person or any assets that constitute a division or operating
unit of the business of any other person (other than (A) in the case of a
member of the Group, to the extent permitted under clause 12.2.8 of the
Restated Agreement and (B) a Permitted Ultimate Shareholder Acquisition);
4.6 the Finance Parties agree that to the extent that the Ultimate
Shareholder issues new shares after the date of this Supplemental
Agreement for consideration in cash or otherwise not exceeding
$50,000,000 (net of taxes, fees and commission directly relating to such
issue) in aggregate for all such issues, it may retain such consideration
for general corporate purposes (and, for the avoidance of doubt, shall
not be obliged to contribute the proceeds of such issue to the Group or
to apply such proceeds against the cash outflows of the Ultimate
Shareholder in respect of which the Original Borrower is entitled to make
payments to the Ultimate Shareholder pursuant to the Restated Agreement).
The Finance Parties further agree that such retained cash or otherwise
not exceeding $50,000,000 (net of taxes, fees and commission directly
relating to such issue) shall not be taken to form part of the gross cash
balances for the purpose of clause 4.1.3 of the Restated Agreement. The
Ultimate Shareholder undertakes to procure that any excess above
$50,000,000 and the proceeds (net of taxes, fees and commission directly
relating to such issue) of any other raising of funds by the Ultimate
Shareholder or any other member of the Ultimate Shareholder Group who is
not a member of the Group or the Central European Group (by way of the
issuance of shares, other than a Permitted Issuance, or the raising of
Borrowed Money) is applied promptly in or towards the prepayment and
cancellation of the Facility and the reduction of availability under
clause 4.1.1 of the Restated Agreement. For the purposes of this clause
4.6 "Permitted Issuance" means the issuance of shares of the Ultimate
Shareholder pursuant to any employee or officer stock ownership, purchase
or option plan or 401(k) plan;
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4.7 the parties to this Supplemental Agreement agree to work with each other
in good faith towards the objective of closing a refinancing of the
Facility in full as soon as reasonably practical;
4.8 the Original Borrower undertakes that no later than 1 June 2001, the
executed asset transfer agreements in respect of the assets identified in
schedule 5 (other than the asset transfer agreements in respect of shares
of Global TeleSystems (Luxembourg) Sarl, Netcom Holdings Limited, GTS
eSolutions, LLC and Global TeleSystems Property Limited which shall be
delivered on or before the Effective Date) will be delivered to the
Agent, together with a certificate from an Authorised Officer of the
Original Borrower that such agreements have become unconditional in all
respects, and, if an independent appraisal of the value of any of such
assets is required pursuant to the terms of the High Yield Securities, a
copy of such appraisal addressed to the Banks will be delivered to the
Agent. The parties to this Supplemental Agreement agree that there will
be no breach of this undertaking if on 1 June 2001 :
4.8.1 the asset transfer agreements referred to in this clause 4.8 are
delivered;
4.8.2 the appraisals addressed to the Banks referred to in this clause 4.8 are
delivered;
4.8.3 in respect of those asset transfers which have not become unconditional
in all respects as a result of any third party consents to such transfers
not being obtained (the "NON-TRANSFERRED ASSETS") (i) in respect of the
assets identified in schedule 5(B) the Ultimate Shareholder certifies
that it has assumed that part of the payable owed by Esprit to any member
of the Group which would have been extinguished by the acquisition by the
Group of such Non-Transferred Assets. In such an event such payable
assumed by the Ultimate Shareholder shall be netted off from the payables
owed by the Original Borrower to the Ultimate Shareholder which are the
subject of the Deed of Subordination and Assignment of Shareholders Loans
referred to in schedule 4 paragraph 11 and (ii) in respect of the assets
identified in schedule 5(A), the payables owed by the Original Borrower
to the Ultimate Shareholder in respect of such Non Transferred Assets
shall be netted off from the payables owed by the Original Borrower to
the Ultimate Shareholder which are the subject of the Deed of
Subordination and Assignment of Shareholder Loans referred to in schedule
4, paragraph 11.
All documents and evidence delivered pursuant to clause 4.8 shall be in
form and substance reasonably satisfactory to all the Banks;
4.9 the Original Borrower undertakes to and shall procure that each of Global
TeleSystems (Luxembourg) Sarl, Netcom Holdings Limited, GTS eSolutions,
LLC and Global TeleSystems Property Limited shall to the extent
applicable comply with clauses 10.18.1 and 12.1.22 of the Principal
Agreement;
4.10 the Ultimate Shareholder undertakes to procure that all shares in Esprit
Newco to be issued to a member of the Ultimate Shareholder Group are
issued to an Obligor and the Original Borrower undertakes to within 5
days of the making of the Court order in respect of the Esprit
Restructuring, deliver to the Agent a Share Security in respect of the
shares held by an Obligor in Esprit Newco, duly executed, together with
all applicable documents and evidence listed in part B of schedule 3 of
the Principal Agreement applicable to such Share Security, in each case
in form and substance reasonably satisfactory to all the Banks.
4.11 in respect of clause 4.11(vi), the Original Borrower and, in all other
respects, the Ultimate Shareholder undertake:
(i) to use all reasonable endeavours to procure that all its shares in
Golden Telecom are transferred to the Original Borrower as soon as
possible and, subject to the Banks' undertaking at clause 4.11(vi)
below, in any event shall procure that all such shares (other than
the Purchase Shares) are transferred to the Original Borrower
immediately after the day falling 60 days after the Closing Date;
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(ii) to use all reasonable endeavours to transfer all its shares in
Golden Telecom to the Original Borrower immediately if the Golden
Telecom Sale and Purchase Agreement is terminated; provided that
if such transfer is not made within a reasonable time, the
Ultimate Shareholder undertakes to deliver to the Agent, a Share
Security over its shares in Golden Telecom duly executed and
delivered, together will all applicable documents and evidence
listed in part B of schedule 3 of the Principal Agreement, in each
case in form and substance reasonably satisfactory to all the
Banks;
(iii) if the Ultimate Shareholder sells all its shares in Golden
Telecom, the Ultimate Shareholder undertakes, on the date of
receipt by the Ultimate Shareholder, to on-lend to the Original
Borrower the consideration received pursuant to the terms of the
intercompany loan agreement which is the subject of the Deed of
Subordination and Assignment of Shareholder Loans referred to in
schedule 4, part 11 to the extent that, on the date of such
receipt, the gross cash balances (other than the Permitted Cash
Balances) of the Ultimate Shareholder Group exceed $10,000,000;
(iv) not to amend any material provision of, or waive any material
right under, the Golden Telecom Sale and Purchase Agreement (or
any document delivered thereunder) without the consent of the
Banks (such consent not to be unreasonably withheld);
(v) in the event that payment under the Note is not made within 3 days
of 31 May 2001 to procure that the pledgee exercises its rights
under the Pledge Agreement to the fullest extent legally possible
(save that the pledgee shall not be obliged to exercise any such
right for a period of ten days after the day falling 3 days after
31 May 2001) and as soon as legally possible following the
exercise of such rights to procure that the Purchase Shares are
transferred to the Original Borrower;
(vi) in respect of all shares in Golden Telecom transferred to the
Original Borrower deliver to the Agent contemporaneously with the
transfer of such shares to the Original Borrower, a Share Security
duly executed and delivered by the Original Borrower, together
with all applicable documents and evidence listed in part B of
schedule 3 of the Principal Agreement, in each case in form and
substance reasonably satisfactory to all the Banks. The Banks
undertake to release such Share Security (unconditionally without
set-off and whether or not a Default has occurred) against payment
of the purchase price pursuant to the Golden Telecom Sale and
Purchase Agreement or the relevant option agreement in respect of
any shares sold to a Purchaser pursuant to the Alfa Stock Option
Agreement, the CIG Stock Option Agreement or the Barings Stock
Option Agreement (as applicable);
(vii) in the event that Alfa Bank Holdings Limited transfers its rights
and obligations under the Golden Telecom Sale and Purchase
Agreement to Alfa Telecom, use all reasonable endeavours to
deliver to the Agent the following documents in each case in form
and substance reasonably satisfactory to all the Banks:
(a) an assignment of the Ultimate Shareholder's rights under the
New York law guarantee issued to support the obligations of
Alfa Telecom under the Note in favour of the Security
Trustee;
(b) a certificate from an Authorised Officer of the Ultimate
Shareholder confirming that the constitutive documents of the
Ultimate Shareholder have not been amended from the form and
delivered to the Agent pursuant to a Principal Agreement;
(c) to the extent not approved by the resolutions referred to in
schedule 4 paragraph 12, a copy, certified as a true copy by
an Authorised Officer of the Ultimate Shareholder of
resolutions of the relevant boards and/or committees of the
Ultimate Shareholder, evidencing approval of the assignment
referred to in (a) above and authorising its appropriate
officers to execute and deliver the assignment and to give
all notices and take all other action required by the
Ultimate Shareholder under such assignment;
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(d) Specimen Signatures, authenticated by an Authorised Officer
of the Ultimate Shareholder of the persons authorised in the
resolutions of the Board of Directors or equivalent, referred
to in (c) above;
(e) a copy, certified as a true copy by an Authorised Officer of
the Ultimate Shareholder, of all consents, authorisations,
licences and approvals required by the Ultimate Shareholder
in connection with the execution, delivery, validity,
enforceability and admissibility in evidence of the
assignment and the performance by the Ultimate Shareholder;
(viii) in the event that the Note is issued, use all reasonable
endeavours to deliver to the Agent, in form and substance
reasonably satisfactory to the Banks, an assignment of the
relevant member of the Ultimate Shareholder Group's rights under
the Note in favour of the Security Trustee, together with all
documents listed in 4.11(viii) (b) to (e) above;
Capitalised terms used in this clause 4.11 shall, unless otherwise
defined in this Supplemental Agreement, have the meanings given to them
in the Golden Telecom Sale and Purchase Agreement.
4.12 the Ultimate Shareholder undertakes to procure that, within 90 days of
the Effective Date:
(i) the entire Central European Group is transferred to a new company,
incorporated in the Netherlands;
(ii) 100 per cent. of the issued share capital of such new company is
held by or transferred to the Original Borrower; and
(iii) a Share Security in respect of the shares of such new company is
delivered to the Agent, duly executed, together with all
applicable documents and evidence listed in part B of schedule 3
of the Principal Agreement applicable to such Share Security, in
each case in form and substance satisfactory to all the Banks;
4.13 the parties to this Supplemental Agreement agree that this Supplemental
Agreement shall not be deemed to have become effective on the Effective
Date and the terms and conditions contained herein shall not apply if
Ernst & Young have not issued an unqualified report on the financial
statements of the Ultimate Shareholder Group and the Immediate
Shareholder Group in respect of the financial year ended 31 December 2000
no later than 13 April 2001 or, in the case of the Group, 20 April 2001;
and
4.14 The Ultimate Shareholder undertakes to deliver to the Agent, in form and
substance reasonably satisfactory to all the Banks, prior to the date of
the transfers referred to herein, all copies, certified as true copies by
an Authorised Officer of the Ultimate Shareholder of (a) resolutions by
the relevant boards and/or committees of the Ultimate Shareholder
evidencing approval of the transfer of its shares in Golden Telecom and
the Central European Group after the date hereof and authorising its
appropriate officers to execute and deliver all documents required to
transfer its shares in Golden Telecom and the Central European Group and
take all action required by the Ultimate Shareholder to transfer its
Shares in Golden Telecom and the Central European Group and (b) all
consents, authorisations, licences and approvals requested by the
Ultimate Shareholder in connection with the execution, delivery,
validity, enforceability and admissibility in evidence of the transfer of
its shares in Golden Telecom and the Central European Group and the
performance by the Ultimate Shareholder in order to transfer its shares
in Golden Telecom and the Central European Group.
The undertakings referred to in clauses 4.2, 4.3, 4.7, 4.9, 4.11, 4.12
and 4.14 shall be deemed to be an undertaking for the purpose of clause
14.1.3 of the Principal Agreement and the undertakings referred to in
clauses 4.4, 4.5, 4.6, 4.8 and 4.10 shall be deemed to be an undertaking
for the purpose of clause 14.1.2 of the Principal Agreement.
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5 REPRESENTATIONS AND WARRANTIES
5.1 Each Obligor (other than the Immediate Shareholder) in respect of itself
and its Subsidiaries, other than in the case of clauses 5.1.7, 5.1.9 and
5.1.10 which shall be given by the Original Borrower, the Immediate
Shareholder and GTS Network (as applicable), the Immediate Shareholder
(in respect of itself only) and, as the case may be, the Ultimate
Shareholder (in respect of itself only) represents and warrants to each
of the Finance Parties that:
5.1.1 Due incorporation
the Ultimate Shareholder, all the Obligors and the members of the
Group are duly incorporated or formed and validly existing under the
laws of their respective places of incorporation or formation and have
power to carry on their respective businesses as they are now being
conducted and to own their respective property and other assets;
5.1.2 Corporate power
it has power to execute, deliver and perform its obligations under
this Supplemental Agreement and all necessary corporate, shareholder
and other action has been taken to authorise the execution, delivery
and performance of this Supplemental Agreement;
5.1.3 Binding obligations
this Supplemental Agreement, when executed and delivered by each
Obligor or (as the case may be), the Ultimate Shareholder or (as the
case may be) the Immediate Shareholder will constitute valid and
legally binding obligations of each of the Obligors, the Immediate
Shareholders and the Ultimate Shareholder enforceable in accordance
with its terms subject to the qualifications contained in the legal
opinions referred to in schedule 4;
5.1.4 No conflict with other obligations
the execution and delivery of, the performance of its obligations
under, and compliance with the provisions of, this Supplemental
Agreement by the Obligors, the Immediate Shareholder and the Ultimate
Shareholder will not (i) contravene, in any material respect, any
existing applicable law, statute, rule or regulation generally
applicable to transactions of this type or any judgment, decree or
permit to which any of the Obligors, the Immediate Shareholder and the
Ultimate Shareholder is subject and aware of, (ii) conflict with, in
any material respect, or result in any material breach of any of the
terms of, or constitute a material default under, any material
agreement or other instrument to which any of the Obligors, the
Immediate Shareholder and the Ultimate Shareholder is a party or is
subject or by which it or any of its property is bound (save for any
conflict, breach or default caused as a result of (i) the purchasers'
rights under the Golden Telecom Sale and Purchase Agreement and (ii)
rights of first refusal of minority shareholders in GTS Czech a.s.),
(iii) contravene or conflict with any provision of any of the
Obligors, the Immediate Shareholders and the Ultimate Shareholder
constitutive documents, (iv) breach in any respect any term of the
Licences, (v) breach in any material respect any term of the Necessary
Authorisations or (vi) save for the Encumbrances granted to the
Security Trustee pursuant to the Security Documents, result in the
creation or imposition of or oblige any of the Obligors, the Immediate
Shareholder and the Ultimate Shareholder to create any Encumbrance
(other than a Permitted Encumbrance) on any of their undertakings,
assets, rights or revenues;
5.1.5 No filings required
it is not necessary to ensure the legality, validity, enforceability
or admissibility in evidence of this Supplemental Agreement, that it
or any other instrument be notarised, filed, reworded, registered or
enrolled in any court, public office or elsewhere in any Relevant
Jurisdiction or that any stamp, registration or similar tax be paid in
any Relevant Jurisdiction on or in relation to this Supplemental
Agreement and this Supplemental Agreement is in proper form for its
enforcement in the courts of England;
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5.1.6 Consents obtained
every consent, authorisation, licence or approval of, or registration
with or declaration to, governmental or public bodies or authorities of
courts required by the Ultimate Shareholder, the Immediate Shareholder or
such Obligor (as the case may be) to authorise, or required by the
Ultimate Shareholder, the Immediate Shareholder or such Obligor (as the
case may be) in connection with, the execution, delivery, validity,
enforceability or admissibility in evidence of this Supplemental
Agreement or the performance by the Ultimate Shareholder, the Immediate
Shareholder or such Obligor (as the case may be) of its obligations under
this Supplemental Agreement has been obtained or made and is in full
force and effect and there has been no material default in the observance
of the conditions or restrictions (if any) imposed in, or in connection
with, any of the same;
5.1.7 No Default
(on the Effective Date only) no Default has occurred which is continuing;
5.1.8 No withholding Taxes
no Taxes are imposed by withholding or otherwise on any payment to be
made to any Finance Party by any Obligor under this Supplemental
Agreement, or are imposed on or by virtue of the execution or delivery by
any Obligor of this Supplemental Agreement or any document or instrument
to be executed or delivered under any of this Supplemental Agreement on
any Finance Party;
5.1.9 Licences/Necessary Authorisations
(on the Effective Date only):
(i) in the case of the Original Borrower, it has complied in all
respects with the terms set out in clauses 3.6.1 and 3.6.2 of the
Principal Agreement that are required to have been complied with
as of the date hereof; and
(ii) in the case of the Immediate Shareholder, it has transferred all
the Licences and material Necessary Authorisations granted to it
or which are in its name and which are required to have been
transferred in order to meet the requirements of clauses 3.6.1.
and 3.6.2 of the Principal Agreement to be satisfied no later than
the date falling 6 months or 9 months (as applicable) after the
date of the Principal Agreement;
(iii) in the case of the GTS Network, new Licences and material
Necessary Authorisations have been issued to it and/or Licences
and material Necessary Authorisations have been transferred to it
in order to meet the requirements of clauses 3.6.1 and 3.6.2 of
the Principal Agreement to be satisfied no later than the date
falling 6 months or 9 months (as applicable) after the date of the
Principal Agreement; and
5.1.10 Guarantors
(on the Effective Date only, by reference to the Three Month Period ended
31 December 2000 in respect of which Quarterly Management Accounts have
been delivered to the Agent under the Principal Agreement) (i) each
Subsidiary of the Original Borrower that is a Material Subsidiary is a
Guarantor (other than Global TeleSystems (Nederland) B.V.); and (ii) each
member of the Group which has received cash (or its equivalent) and/or
property, plant and equipment from any other member of the Group and/or
in respect of whose liabilities another member of the Group has issued a
guarantee and which the Original Borrower is obliged to procure becomes a
Guarantor pursuant to clause 10.18 has become a Guarantor (other than
Global TeleSystems (Nederland) B.V.).
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5.2 REPETITION
The representations and warranties in clause 5.1 (other than 5.1.6, 5.1.7
and 5.1.8) shall be deemed to be repeated by the Ultimate Shareholder,
the Immediate Shareholder, the Original Borrower and each Guarantor on
and as of the Effective Date, each Utilisation Date and the last day of
each Interest Period as if made with reference to the facts and
circumstances existing on each such day. The representations and
warranties in clause 5.1.7, 5.1.9 and 5.1.10 shall be given by the
Original Borrower, the Immediate Shareholder and GTS Network, as
applicable, on the Effective Date only.
6 FEES AND EXPENSES
6.1 FEES
The Original Borrower shall pay to the Agent, for the account of the
Arrangers, fees as set out in a letter from the Arrangers to the Original
Borrower dated the same date as this Supplemental Agreement.
6.2 EXPENSES
The Original Borrower shall pay to the Agent on demand all reasonable
expenses (including reasonable legal fees) incurred by the Finance
Parties in connection with the negotiation, preparation and execution of
this Supplemental Agreement.
6.3 STAMP AND OTHER DUTIES (GENERAL)
The Original Borrower shall pay all stamp, documentary, registration or
other duties or Taxes (including any duties or Taxes payable by, or
assessed on, the Finance Parties) imposed on or in connection with this
Supplemental Agreement and shall indemnify the Finance Parties against
any liability arising by reason of any delay or omission by the Parent to
pay such duties or Taxes.
7 MISCELLANEOUS
7.1 CONTINUATION OF PRINCIPAL AGREEMENT
Save as amended and waived by this Supplemental Agreement, the provisions
of the Principal Agreement shall continue in full force and effect and
the Principal Agreement and the relevant provisions of this Supplemental
Agreement shall be read and construed as one instrument.
7.2 COUNTERPARTS
This Supplemental Agreement may be executed in any number of counterparts
and by the different parties on separate counterparts, each of which when
so executed and delivered shall be an original but all counterparts shall
together constitute one and the same instrument.
7.3 FINANCE DOCUMENTS
The parties to this Supplemental Agreement agree that this Supplemental
Agreement shall be a Finance Document for the purposes of the Principal
Agreement.
8 GOVERNING LAW
8.1 LAW
This Supplemental Agreement shall be governed by English law.
8.2 SUBMISSION TO JURISDICTION
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12
The parties to this Supplemental Agreement agree for the benefit of the
Finance Parties that:
8.2.1 if any party has any claim against any other arising out of or in
connection with this Supplemental Agreement such claim shall (subject to
clause 8.2.3) be referred to the High Court of Justice in England, to the
jurisdiction of which each of the parties irrevocably submits;
8.2.2 the jurisdiction of the High Court of Justice in England over any such
claim against the Finance Parties shall be an exclusive jurisdiction and
no courts outside England shall have jurisdiction to hear or determine
any such claim; and
8.2.3 nothing in this clause 8.2 shall limit the right of the Finance Parties
to refer any such claim against any other party to any other court of
competent jurisdiction outside England, to the jurisdiction of which such
party hereby irrevocably agrees to submit, nor shall the taking of
proceedings by any Finance Party before the courts in one or more
jurisdictions preclude the taking of proceedings in any other
jurisdiction whether concurrently or not.
8.3 AGENT FOR SERVICE OF PROCESS
8.3.1 The Ultimate Shareholder, the Immediate Shareholder and each Obligor
designates, appoints and empowers GTS Carrier Services (UK) Limited at
present of ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ to receive for it and
on its behalf service of process issued out of the High Court of Justice
in England in relation to any claim arising out of or in connection with
this Agreement.
8.3.2 For the benefit of the Finance Parties and for the purpose of this
Supplemental Agreement and any claims arising out of or in connection
with this Supplemental Agreement, the Immediate Shareholder and the
Original Borrower irrevocably elects domicile (within the meaning of
Section 1.15 of The Netherlands Civil Code) at the address from time to
time of GTS Carrier Services (UK) Limited.
IN WITNESS whereof the parties hereto have caused this Supplemental Agreement to
be duly executed the day and year first above written.
SCHEDULE 1
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SCHEDULE 1
THE ORIGINAL GUARANTORS
COMPANY COUNTRY OF REGISTERED NUMBER REGISTERED ADDRESS
INCORPORATION (IF ANY)
------- ------------- ----------------- ------------------
▇▇▇▇▇ A/S Denmark CVR-nr. 19743144 ▇▇▇▇▇▇▇▇ ▇▇,▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Global TeleSystems (Denmark) A/S Denmark CVR-nr. 21480878 ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ V
GTS Transatlantic Limited Ireland 287207 ▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇
▇▇▇▇▇ Broadband Services Limited Ireland 276431 2 Custom House Plaza,
(formerly GTS Carrier Services ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇
(▇▇▇▇▇▇▇) Limited)
GTS Network (Ireland) Limited Ireland 275582 2 Custom ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇
GTS Network (Belgium) B.V.B.A. Belgium Brussels 610-354 ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇▇
14
SCHEDULE 2
DATED 14 JULY 2000
----------------------------------------------
(as amended and restated pursuant to a
supplemental agreement dated 6 April 2001)
Original Borrower
GLOBAL TELESYSTEMS EUROPE HOLDINGS B.V.
Guaranteed by
GLOBAL TELESYSTEMS EUROPE B.V., GLOBAL TELESYSTEMS
EUROPE HOLDINGS B.V. AND CERTAIN SUBSIDIARIES
OF GLOBAL TELESYSTEMS EUROPE HOLDINGS B.V.
Arrangers
BANK OF AMERICA INTERNATIONAL LIMITED
DEUTSCHE BANK AG LONDON
DRESDNER BANK AG LONDON BRANCH
Agent
DEUTSCHE BANK AG LONDON
Security Trustee
DEUTSCHE BANK AG LONDON
--------------------------------------------
LOAN AGREEMENT
FOR
(euro) 300,000,000 REVOLVING CREDIT FACILITY
WITH A TERM OUT OPTION
--------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇
15
CONTENTS
CLAUSE PAGE
------ ----
1 Purpose and definitions................................................................................1
2 The Facility..........................................................................................19
3 Conditions............................................................................................20
4 Utilisations..........................................................................................22
5 [Deliberately left blank].............................................................................25
6 Interest..............................................................................................24
7 Repayment, cancellation and prepayment................................................................26
8 Fees and expenses.....................................................................................28
9 Payments and Taxes; accounts and calculations.........................................................30
10 Guarantee.............................................................................................34
11 Representations and warranties........................................................................39
12 Undertakings..........................................................................................44
13 Financial covenants...................................................................................54
14 Events of Default.....................................................................................58
15 Indemnities...........................................................................................62
16 Unlawfulness and increased costs; mitigation..........................................................63
17 Set-off and pro rata payments.........................................................................66
18 Assignment, transfer and funding offices..............................................................67
19 Arrangers, Agent, Security Trustee, Reference Banks and Original Borrower.............................69
20 Notices and other matters.............................................................................75
21 Governing law and jurisdiction........................................................................77
Schedule 1 Part A - The Original Guarantors................................................................79
Part B - The Banks and their Commitments........................................................80
Schedule 2 Form of Utilisation Notice.......................................................................81
Schedule 3 Part A - Documents and evidence required as conditions precedent to first Utilisation...........82
Part B - Documents and evidence required as conditions precedent for any
Acceding Guarantor or Acceding Borrowers (as the case may be)...................................85
Schedule 4 Calculation of Additional Cost....................................................................87
Schedule 5 Form of Transfer Certificate......................................................................88
16
Schedule 6 Part A - Compliance Certificate to be delivered by an
Authorised Officer of the Original Borrower.....................................................91
Part B - Accountants Report to be delivered by the auditors of the Immediate
Shareholder Group...............................................................................93
Schedule 7 Licences..........................................................................................95
Schedule 8 Part A - Deed of Guarantor Accession............................................................96
Part B - Deed of Borrower Accession.............................................................97
Schedule 9 Form of Quarterly Management Accounts.............................................................98
Schedule 10 Disclosures against clause 11.1.6 and 11.2.5....................................................103
Schedule 11 Permitted Disposals.............................................................................104
Schedule 12 Disclosures Against clause 3.6.2................................................................105
Schedule 13 Business Services Assets........................................................................106
Schedule 14 Central Europe Group............................................................................107
17
THIS AGREEMENT is dated 14 July, 2000 (as amended and restated pursuant to an
agreement dated 5 April 2001) and made BETWEEN:
(1) GLOBAL TELESYSTEMS EUROPE HOLDINGS B.V. as Original Borrower;
(2) GLOBAL TELESYSTEMS EUROPE B.V. as the Immediate Shareholder;
(3) THE ENTITIES whose respective names and registered offices are set out in
part A of Schedule 1 as Original Guarantors;
(4) GLOBAL TELESYSTEMS INC. as the Ultimate Shareholder;
(5) DEUTSCHE BANK AG LONDON, BANC OF AMERICA SECURITIES LIMITED and DRESDNER
BANK AG LONDON BRANCH as Arrangers;
(6) THE BANKS AND FINANCIAL INSTITUTIONS whose names and addresses are set
out in part B of schedule 1 as Banks;
(7) DEUTSCHE BANK AG LONDON as Agent; and
(8) DEUTSCHE BANK AG LONDON as Security Trustee.
IT IS AGREED as follows:
1 PURPOSE AND DEFINITIONS
1.1 PURPOSE
This Agreement sets out the terms and conditions upon and subject to
which the Banks agree, according to their several obligations, to make
available to the Borrowers a revolving credit facility with a term out
option of up to (euro)300,000,000 such facility to be used for the
purposes of (i) in the case of the Original Borrower, making loans to any
of its wholly-owned Subsidiaries to be used by such Subsidiary for any
purpose not restricted, and to the maximum amount permitted, by this
Agreement, (ii) financing the Group's working capital and capital
expenditure requirements, (iii) financing expenses incurred in connection
with the Facility, (iv) making any payments of interest under the High
Yield Securities (other than the July 2000 and August 2000 interest
payments on the High Yield Securities to the extent that the Immediate
Shareholder has retained, as set out in paragraph (w)(iii) of schedule 3,
sufficient cash to make such payments) and any other high yield
securities agreed between the Original Borrower and the Agent (acting on
the instruction of the Majority Banks) and/or making payments to the
Ultimate Shareholder to the extent that the same constitute Permitted
Payments under paragraph (b) of the definition thereof.
1.2 DEFINITIONS
In this Agreement, unless the context otherwise requires:
"ACCEDING BORROWERS" means those entities which are to, or have become a
party to this Agreement as Borrowers pursuant to clause 3.5 ;
"ACCEDING GUARANTORS" means those entities which are to, or have become a
party to this Agreement as Guarantors pursuant to clause 10.18;
"ACCOUNTANTS REPORT" means a report substantially in the form set out in
part B of schedule 6 to be issued by the auditors of the Immediate
Shareholder Group pursuant to clause 12.1.9(b);
"ACQUIRED ASSETS" means the assets described in schedule 5 to the
Supplemental Agreement;
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"ADDITIONAL COST" means in relation to any period a percentage calculated
for such period at an annual rate determined in accordance with schedule
4;
"ADVANCE" means an advance made under the Facility;
"AGENT" means Deutsche Bank AG London of Winchester House, 1 Great
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇ or such other person as may be
appointed Agent for the Banks pursuant to clause 19.13;
"AGREED BASE CASE" means the GTS Inc. consolidated cash forecasts minus
Esprit plus GTI sale dated 20 March 2001 as provided to the Banks under a
letter of the same date;
"ANNUAL BUDGET" means a budget in respect of the Group for each financial
year containing information of a substantially similar type and to a
substantially similar level of detail as the agreed form delivered
pursuant to paragraph (i) of schedule 3 or containing such additional
information or additional level of detail as the Original Borrower
reasonably deems necessary, or, omitting such information or to such
lesser level of detail, as has at the relevant time, been approved in
writing by the Agent;
"ANNUALISED CONSOLIDATED NET OPERATING CASH FLOW" means four times the
aggregate of the Consolidated Net Operating Cash Flow of the Group (other
than the Golden Telecom Group) in respect of the relevant Three Month
Period after having adjusted the Consolidated Net Operating Cash Flow of
the Group in respect of such Three Month Period as follows:
(a) excluding the Consolidated Net Operating Cash Flow of the Golden
Telecom Group or attributable to the Business Services Assets to
the extent that the same is consolidated into the Consolidated Net
Operating Cash Flow of the Group;
(b) including the Consolidated Net Operating Cash Flow attributable to
the Acquired Assets in respect of the period from 1 January 2001;
(c) including the Consolidated Net Operating Cash Flow of the Central
European Group (in respect of any Utilisation made prior to its
disposal) in respect of the period from the 1 January 2001 up to a
maximum amount of (euro)2,000,000 in respect of any month;
(d) having made the adjustments in (a), 0 and (c) above, deducting any
Consolidated Net Operating Cash Flow of the Group attributable to
dark fibre asset sales in excess of (i) (euro)2,000,000 in any
month in 2001 or (ii) (euro)3,000,000 in any Three Month Period in
2001 or (iii) (euro)7,700,000 in aggregate in 2001, and completely
thereafter;
"ARRANGERS" means Deutsche Bank AG London of Winchester House, 1 Great
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇, Banc of America Securities Limited
of Bank of America House, ▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇ and Dresdner Bank
AG London Branch of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇;
"ASSIGNMENT OF INSURANCES" means the assignment over Insurances entered
into or to be entered into by the Immediate Shareholder in the agreed
form;
"ASSIGNMENT OF SHAREHOLDER LOANS" means, in the case of shareholder loans
made by the Immediate Shareholder, the Dutch Pledge of Intercompany
Receivables and, in any other case, any assignment of shareholder loans
to be entered into between any other Relevant Person and the Security
Trustee pursuant to the terms of this Agreement in such form as may be
reasonably agreed by the Security Trustee having regard to the applicable
laws relating to the assignment or pledging of receivables in the
jurisdiction in which the relevant loan is payable;
"ASSOCIATED COMPANY" of a person means (a) any other person which is
directly or indirectly controlled by, under common control with or
controlling such person or (b) any other person owning beneficially
and/or legally directly or indirectly 10 per cent. or more of the equity
interest in such person or 10 per cent. of whose equity interest is owned
beneficially and/or legally directly or indirectly by such person, where
"control" means possession, directly or indirectly, of
2
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the power to direct or cause the direction of the management and policies
of a person whether through the ownership of interests or voting
securities, by contract or otherwise;
"AUTHORISED OFFICER" means any director, employee or officer of the
Original Borrower or any other Obligor authorised to sign Compliance
Certificates, Utilisation Notices and other notices, requests or
confirmations referred to in this Agreement or relating to the Facility;
"AVAILABILITY PERIOD" means the Initial Availability Period or, if the
Initial Availability Period is extended pursuant to clause 7.1, the
period ending on whichever is the earlier of (a) 31 March 2003 or (b) the
date on which (i) the Original Borrower cancels the whole of the undrawn
Commitments under clause 7.4 or (ii) the Total Commitments are reduced to
zero pursuant to any relevant provision of this Agreement
"BANKING DAY" means:
(a) for interest rate fixing and payments purposes in relation to euro
and national currency units, a Target Day;
(b) for all other purposes a day (other than Saturday or Sunday) on
which banks are open for business in London;
"BANKS" means the banks and financial institutions listed in part B of
schedule 1 and includes their successors in title and Transferees;
"BELGIAN DEEDS OF GUARANTOR ACCESSION" means the Deed of Guarantor
Accession entered into, or to be entered into, by each of GTS Network
Services (Belgium) B.V.B.A. and GTS Support Services (Belgium) B.V.B.A.
and "BELGIAN DEED OF GUARANTOR ACCESSION" means any one of them;
"BELGIAN GUARANTORS" means GTS Network Services (Belgium) B.V.B.A. and,
until the merger described in paragraph 4 of schedule 11, GTS Support
Services (Belgium) B.V.B.A.;
"BELGIAN SHARE SECURITIES" means (i) the pledge over the shares of GTS
Network Services (Belgium) B.V.B.A. entered into, or to be entered into,
by GTS Network in the agreed form and (ii) the pledge over the shares of
GTS Support Services (Belgium) B.V.B.A. entered into, or to be entered
into, by the Original Borrower in the agreed form and "BELGIAN SHARE
SECURITY" means any one of them;
"BORROWED MONEY" means, without duplication, Indebtedness in respect of
(a) money borrowed or raised and debit balances at banks, (b) any bond,
note, loan stock, debenture or similar debt instrument, (c) acceptance or
documentary credit facilities, (d) receivables sold or discounted
(otherwise than on a non-recourse basis), (e) deferred payments for
assets acquired or services supplied other than in the ordinary course of
business and where payment is deferred for no more than 120 days (which,
for the avoidance of doubt, shall not include payments originally due
less than 120 days after the relevant asset was acquired or service
supplied where payment is being contested in good faith), (f) finance
leases and hire purchase contracts, (g) any other transaction (including
without limitation forward sale or purchase agreements) having the
commercial effect of a borrowing or raising of money or of any of (a) to
(f) above and (h) guarantees in respect of Indebtedness of any person
falling within any of (a) to (g) above;
"BORROWERS" means the Original Borrower together with, after its
accession pursuant to clause 3.5, any Acceding Borrowers and "BORROWER"
means any or a specific one of them;
"BUSINESS PLAN" means the management base case financial and operational
projections of the Group produced or to be produced by, or on behalf of,
the Original Borrower pursuant to paragraph (aa) of schedule 3;
"BUSINESS SERVICES ASSETS" means the assets set out in schedule 13;
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20
"CAPITAL LEASES" means any leases which are treated as capital leases in
accordance with GAAP and entered into by a member of the Group as lessee;
"CASH EQUIVALENTS" has the meaning given to it in the indenture in
respect of the(euro)275,000,000 11 per cent. senior notes due 2009 issued
by the Immediate Shareholder;
"CENTRAL EUROPEAN GROUP" means those companies which are shown in
schedule 14 as Subsidiaries of GTS-Hungaro, Inc., GTS-Hungary Holding,
Inc., GTS-Poland, Inc., GTS-Czech, Inc., GTS-Bulgaria, Inc. and
GTS-Romania, Inc. and their respective Subsidiaries from time to time
together with GTS Slovakia s.r.o. and its Subsidiaries from time to time;
"CHARGED ACCOUNTS" means the accounts of certain members of the Group
into which any intercompany receivables (including, without limitation,
all dividends payable by any Obligor to its shareholders (irrespective of
whether such shareholder is an Obligor)) and/or third party receivables
are to be paid and which are subject to the terms of any Irish Debenture
or any Pledge over Group Accounts;
"COLLATERAL INSTRUMENTS" means notes, bills of exchange, certificates of
deposit and other negotiable and non-negotiable instruments, guarantees
and any other documents or instruments which contain or evidence an
obligation (with or without security) to pay, discharge or be responsible
directly or indirectly for, any Indebtedness or liabilities under this
Agreement and includes Encumbrances;
"COMMITMENT" means in relation to a Bank the amount set opposite its name
in part B of schedule 1 and/or, in the case of a Transferee, the amount
transferred as specified in the relevant Transfer Certificate as varied
by any relevant term of this Agreement and so that, if at such time the
Total Commitments have been reduced to zero, references to a Bank's
Commitment shall be construed as a reference to that Bank's Commitment
immediately prior to such reduction to zero;
"COMPLIANCE CERTIFICATE" means a certificate substantially in the form
set out in part A of schedule 6 in relation to the compliance (or
otherwise) with the undertakings in clause 12.1.9 issued by the
Authorised Officer of the Original Borrower in relation to Quarterly
Management Accounts pursuant to clause 12.1.9(b);
"CONSOLIDATED CAPITAL EXPENDITURE" means, in respect of a person and a
period, the consolidated cash capital expenditure of that person and its
Subsidiaries as determined in accordance with GAAP;
"CONSOLIDATED NET OPERATING CASH FLOW" means, in respect of a person and
a period, the consolidated Net Operating Cash Flow of that person and its
Subsidiaries for such period;
"CONSOLIDATED REVENUES" means, in respect of a person and a period, the
consolidated revenues of that person and its Subsidiaries as determined
in accordance with GAAP;
"CONTRIBUTION" means in relation to a Bank at any relevant time, the
principal amount of the Loan owing to such Bank at such time;
"CUSTOMER CONTRACT AGREEMENT" means the agreement for the assignment of
customer contracts dated 30 September 1997 made between (1) Hermes Europe
Railtel B.V. (now known as Global TeleSystems Europe Holdings B.V.) and
(2) Hermes Europe Railtel (Ireland) Limited (now known as ▇▇▇▇▇ Broadband
Services Limited);
"DANISH SHARE SECURITIES" means (i) the pledge over the shares of ▇▇▇▇▇
A/S entered into or to be entered into by the Original Borrower in the
agreed form; and (ii) the pledge over the shares of Global TeleSystems
(Denmark) A/S entered into or to be entered into by ▇▇▇▇▇ A/S in the
agreed form and "DANISH SHARE SECURITY" means any one of them;
"DEED OF BORROWER ACCESSION" means a deed to be executed and delivered by
an Acceding Borrower, substantially in the form set out in part B of
schedule 8;
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"DEED OF GUARANTOR ACCESSION" means a deed to be executed and delivered
by an Acceding Guarantor, substantially in the form set out in part A of
schedule 8;
"DEFAULT" means any Event of Default or any event or circumstance which
would, upon the giving of a notice by the Agent and/or the expiry of the
relevant period and/or the fulfilment of any other condition (in each
case as specified in clause 14.1), constitute an Event of Default;
"DERIVATIVES CONTRACT" means a contract, agreement or transaction which
is:
(a) a rate swap, basis swap, commodity swap, forward rate transaction,
commodity option, equity (or equity or other index) swap or
option, bond option, interest rate option, foreign exchange
transaction, collar or floor, currency swap, currency option or
any other similar transaction; and/or
(b) any combination of such transactions,
in each case, whether on-exchange or otherwise;
"DOLLARS" and "US$" and "$" mean the lawful currency for the time being
of the United States of America;
"DUTCH PLEDGE OF ACCOUNTS" means the pledge of bank accounts agreement
entered into, or to be entered into, by the Original Borrower in the
agreed form;
"DUTCH PLEDGE OF INTERCOMPANY RECEIVABLES" means the disclosed pledge of
present and future claims in respect of intercompany receivables entered
into, or to be entered into, by the Original Borrower and the Immediate
Shareholder in the agreed form;
"DUTCH SHARE SECURITY" means the pledge over the shares of the Original
Borrower entered into, or to be entered into, by the Immediate
Shareholder and the Original Borrower in the agreed form;
"EMU" means Economic and Monetary Union as contemplated in the Treaty;
"EMU LEGISLATION" means legislative measures of the European Council for
the introduction of, changeover to, or operation of, a single or unified
European currency;
"ENCUMBRANCE" means any lien, mortgage, charge (whether fixed or
floating), security interest, hypothecation, assignment for security,
trust arrangement for the purpose of providing security or encumbrance or
preferential arrangement of any kind (including any conditional sale or
capital lease or other title retention agreement, any lease in the nature
thereof, any deposits of money with the primary intention of affording a
right of set off and any agreement to give any security interest);
"ENVIRONMENTAL CLAIM" means any claim, notice of violation, prosecution,
demand, action, official warning, abatement or other order (conditional
or otherwise) relating to Environmental Matters or any notification or
order requiring compliance with the terms of any Environmental Licence or
Environmental Law;
"ENVIRONMENTAL LAW" includes all or any laws, statutes, regulations,
treaties, by-laws, codes of practice, orders, notices, demands, decisions
of the courts or of any governmental authority or agency or any
regulatory body in any jurisdiction relating to Environmental Matters;
"ENVIRONMENTAL LICENCE" includes any permit, licence, authorisation,
consent or other approval required at any time by any Environmental Law;
"ENVIRONMENTAL MATTERS" includes (a) nuisance, noise, defective premises,
health and safety at work or elsewhere and (b) the pollution,
conservation or protection of the environment (both natural and built) or
of man or any living organisms supported by the environment or any other
matter whatsoever affecting the environment or any part of it;
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22
"ESPRIT" means Global TeleSystems (Europe) Limited and its Subsidiaries
from time to time;
"ESPRIT NEWCO" means the newly formed English company which is to own 100
per cent. of the share capital of GTS TeleSystems (Europe) Limited after
the Esprit Restructuring;
"ESPRIT RESTRUCTURING" means the creditors' voluntary arrangement or the
scheme of arrangement as described in the Lock-Up Agreement dated 27
March 2001, among Global TeleSystems (Europe) Limited, Global TeleSystems
Inc. and the Bondholders defined therein;
"EURIBOR" means in relation to any amount in euros and any period, the
offered rate for deposits for such amount and for such period which is:
(a) the rate of interest for such period which appears on the
"Euribor01" page of the Reuters screen (or such other page on the
Reuters screen as may customarily be used from time to time to
display EURIBOR rates) at or about 11 a.m. (Brussels Time) on the
Quotation Date for such period; or
(b) if the relevant page is not displayed on the Reuters screen or the
Reuters screen is not operating at the relevant time or if no such
offered rate appears on the Reuters screen for that period, the
rate of interest for such period which appears on page 248 of the
Dow ▇▇▇▇▇ Telerate screen (or such other page on the Dow ▇▇▇▇▇
Telerate screen as may customarily be used from time to time to
display EURIBOR rates) at or about 11 a.m. (Brussels Time) on the
Quotation Date for such period; or
(c) if the relevant rate of EURIBOR cannot be determined in accordance
with paragraphs (a) and (b) above, the rate determined by the
Agent to be the arithmetic mean (rounded upwards if necessary to
the nearest one sixteenth of one per cent.) of the rates
respectively quoted to the Agent by each of the Euro Reference
Banks (provided always that at least two Euro Reference Banks
shall have given such quotation) at the request of the Agent as
such Euro Reference Bank's offered rate for deposits in an amount
approximately equal to the amount in relation to which EURIBOR is
to be determined for a period equivalent to such period to leading
banks in the Euro Zone Interbank Market at or about 11 a.m.
(London time) on the Quotation Date for such period;
"EURO", "EUROS" and "(euro)" mean the single currency of Participating
Member States introduced in accordance with the provisions of Article
109(1)4 of the Treaty and in respect of all payments to be made under
this Agreement in Dollars means immediately available, freely
transferable funds;
"EURO REFERENCE BANKS" means the principal London offices of Deutsche
Bank AG, Bank of America and Dresdner Bank AG and/or any other Banks
appointed as such pursuant to clause 19.14;
"EURO UNIT" means the currency unit of the euro;
"EVENT OF DEFAULT" means any of the events or circumstances described in
clause 14.1;
"FACILITY" means the revolving credit facility with a term out option of
up to (euro)300,000,000 granted by the Banks to the Borrower pursuant to
clause 2.1;
"FINANCE DOCUMENTS" means this Agreement, the Security Documents, any
Transfer Certificates, any Deeds of Borrower Accession, any Deeds of
Guarantor Accession and any other document which the parties to this
Agreement agree shall be a Finance Document and "FINANCE DOCUMENT" means
any or a specific one of them;
"FINANCE PARTIES" means the Agent, the Arrangers, the Security Trustee
and the Banks and "FINANCE PARTY" means any or a specific one of them;
"GAAP" means generally accepted accounting principles and practices in
The United States of America;
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23
"GOLDEN TELECOM" means Golden Telecom, Inc.;
"GOLDEN TELECOM GROUP" means Golden Telecom and its Subsidiaries from
time to time;
"GOLDEN TELECOM SALE AND PURCHASE AGREEMENT" means the agreement dated 2
April 2001 between the Ultimate Shareholder, Alfa Bank Holdings Limited
and others in relation to the sale of 12,195,122 shares in Golden
Telecom;
"GROUP" means the Original Borrower and its Subsidiaries from time to
time;
"GROUP BUSINESS" means the business of (i) transmitting, or providing
services relating to the transmission of, voice, video or data through
owned or leased transmission facilities, (ii) constructing, creating,
developing or marketing communications related network equipment,
products, software, services and other devices for use in a
communications business, and (iii) evaluating, participating in or
pursuing any other activity or opportunity that is reasonably related,
ancillary or complementary to the activities identified in clause (i) or
(ii) above;
"GTS CREDITOR" means (i) any Relevant Person who has, at any relevant
time, entered into an Assignment of Shareholder Loans and the Security
Trust Deed or a Security Provider's Deed of Accession and, unless such
Relevant Person is the Immediate Shareholder, a Subordination Deed or
(ii) any other Relevant Person who has, at any relevant time, entered
into a Security Document and the Security Trust Deed or a Security
Provider's Deed of Accession;
"GTS IRELAND" means ▇▇▇▇▇ Broadband Services Limited whose registered no.
is 276431 and whose registered office is at 2 Custom ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇;
"GTS NETWORK" means GTS Network (Ireland) Limited whose registered no. is
275582 and whose registered office is at 2 Custom ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇;
"GTS TRANSATLANTIC" means GTS Transatlantic Limited whose registered no.
is 287207 and whose registered office is at ▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇;
"GUARANTEE" means the guarantee of the Guarantors contained in clause 10
and includes each separate or independent stipulation or agreement by the
Guarantors contained in clause 10;
"GUARANTEED LIABILITIES" means all moneys, obligations and liabilities
expressed to be guaranteed by the Guarantors in clause 10.1;
"GUARANTORS" means the Original Guarantors and the Belgian Guarantors
together with (i) until the last day of the Restriction Period, the
Immediate Shareholder and (ii), after its accession pursuant to clause
10.18, any Acceding Guarantor, and "GUARANTOR" means any or a specific
one of them;
"HIGH YIELD SECURITIES" means (i) the (euro)225,000,000 10 1/2% senior
notes due 2006 and 10 1/2% senior notes due 2006, series B; (ii) the
$200,000,000 103/8% senior notes due 2009 and the 103/8% senior notes due
2009, series B; (iii) the $265,000,000 11 1/2% senior notes due 2007 and
the 11 1/2% senior notes due 2007, series B, (iv) the (euro)275,000,000
11% senior notes due 2009 and 11% senior notes due 2009, series B, and
(v) the (euro)85,000,000 103/8% senior notes due 2006 and the 103/8%
senior notes due 2006, series B in each case, issued by the Immediate
Shareholder;
"HOLDING COMPANY" in relation to a person, means an entity of which that
person is a Subsidiary;
"IMMEDIATE SHAREHOLDER" means Global TeleSystems Europe B.V. a limited
liability company incorporated under the laws of the Netherlands with its
business office at ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇;
"IMMEDIATE SHAREHOLDER GROUP" means the Immediate Shareholder and its
Subsidiaries from time to time;
7
24
"IMMEDIATE SHAREHOLDER PLEDGED ACCOUNT" means the account of the
Immediate Shareholder with the Agent which is subject to the terms of the
IS Charge over Account;
"INCAPACITY" means, in relation to a person, the insolvency, liquidation,
dissolution, winding-up, administration, receivership or other incapacity
of that person whatsoever (and in the case of a partnership, includes the
termination or change in composition of the partnership);
"INDEBTEDNESS" means any obligation for the payment or repayment of
money, whether as principal or as surety and whether present or future,
actual or contingent;
"INFORMATION MEMORANDUM" means the Information Memorandum to be approved
by the Original Borrower and distributed by the Arrangers at the request
of the Original Borrower in connection with the facilities originally
provided under this Agreement;
"INITIAL AVAILABILITY PERIOD" means the period from the date of this
Agreement and ending on whichever is the earlier of (a) the Termination
Date or (b) the date on which (i) the Original Borrower cancels the whole
of the undrawn Commitments under clause 7.4 or (ii) the Total Commitments
are reduced to zero pursuant to any relevant provision of this Agreement;
"INTELLECTUAL PROPERTY RIGHTS" means any patent, trademark, service ▇▇▇▇,
registered design, trade name or copyright;
"INTEREST PERIOD" means in each period for the payment of interest in
respect of an Advance or the Loan determined in accordance with clause
4.4;
"INTERCOMPANY LOAN AGREEMENT" means the agreement between the Immediate
Shareholder, the Original Borrower and the Security Trustee in the agreed
form;
"IRISH DEBENTURES" means (i) the first ranking Irish Debenture entered
into or to be entered into by GTS Ireland (ii) the first ranking Irish
Debenture entered into by GTS Network and (iii) the first ranking Irish
Debenture entered into by GTS Transatlantic in each case in the agreed
form and "IRISH DEBENTURE" means any one of them;
"IRISH SHARE SECURITIES" means (i) the charge over the shares of GTS
Ireland entered into or to be entered into by GTS Network in the agreed
form; (ii) the charge over the shares of GTS Network entered into or to
be entered into by GTS Transatlantic in the agreed form and (iii) the
charge over the shares of GTS Transatlantic entered into or to be entered
into by the Original Borrower in the agreed form and "IRISH SHARE
SECURITY" means any one of them;
"IS CHARGE OVER ACCOUNT" means the charge over the Immediate
Shareholder's account with the Security Trustee entered into or to be
entered into by the Immediate Shareholder in the agreed form;
"LICENCE SECURITIES" means, after the transfer of licences pursuant to
clause 3.6, each pledge over Licences entered into, or to be entered
into, from time to time pursuant to clause 12.1.17(c);
"LICENCES" means those licences or registrations the details of which are
set out in schedule 7 and, if applicable, any other national or regional
licences of a similar type or registrations of a similar type required
under any Telecommunications and Cable Laws by any member of the Group in
respect of all or any part of the Group Business then conducted by the
Group which generates 5 per cent. (or more) of the revenues of the Group
determined by reference to the most recent Quarterly Management Accounts
delivered to the Agent under this Agreement, in each case as from time to
time amended, varied, restated or replaced or any successor national or
regional licence or registration of a similar type to the foregoing
granted pursuant to any Telecommunications and Cable Laws, in each case
in accordance with clause 12.1.17;
"MAJORITY BANKS" means at any relevant time such of the Banks (a) the
aggregate of whose Contributions equals at least 662/3 per cent. of the
Total Outstandings or (b) (if no Advances are
8
25
outstanding) the aggregate of whose Commitments equals at least 662/3 per
cent. of the Total Commitments;
"MARGIN" means the rate per annum calculated in accordance with clause
6.2;
"MATERIAL ADVERSE EFFECT" means a material adverse effect on the ability
of the members of the Group (taken as a whole) to perform all or any of
their material obligations under the Finance Documents;
"MATERIAL SUBSIDIARY" means any Subsidiary of the Original Borrower other
than the Golden Telecom Group and the Central European Group and (i)
which holds any Licences, is a party to any Principal Agreement or holds
any share capital of any other Material Subsidiary or (ii) whose assets
or revenues or Net Operating Cash Flow is at least five per cent. of the
Group's (other than the Golden Telecom Group) consolidated assets or
consolidated revenues or Consolidated Net Operating Cash Flow, determined
by reference to the most recent Quarterly Management Accounts in respect
of a Three Month Period ending on a Quarter Day delivered to the Agent
under this Agreement;
"MATURITY DATE" means, in relation to an Advance, the last day of the
Term of such Advance, in each case being a date falling on or before the
Termination Date and specified as the Maturity Date in the Utilisation
Notice relating to such Advance;
"MONTH" or "MONTHS" means a period beginning in one calendar month and
ending in the relevant later calendar month on the day numerically
corresponding to the day of the calendar month in which it started,
provided that (a) if the period started on the last Banking Day in a
calendar month or if there is no such numerically corresponding day, it
shall end on the last Banking Day in such later calendar month and (b) if
such numerically corresponding day is not a Banking Day, the period shall
end on the next following Banking Day in such later calendar month but if
there is no such Banking Day it shall end on the preceding Banking Day
and "monthly" shall be construed accordingly;
"NATIONAL CURRENCY UNIT" means the currency unit (other than a euro unit)
of a Participating Member State;
"NECESSARY AUTHORISATIONS" means all approvals, authorisations and
licences (other than the Licences) from, all rights granted by and all
filings, registrations and agreements with any government, regulatory or
other authority necessary in order to enable the Group to carry on the
Group Business then conducted by the Group;
"NET INCOME" means, in respect of any period, the net income or loss of
the relevant person for such period as determined in accordance with
GAAP;
"NET OPERATING CASH FLOW" means, in respect of any period or person, the
total of (i) the Net Income of that person for that period plus (ii) any
depreciation and amortisation, other non-cash expenses and taxes
attributable to that period plus (iii) interest or other charges in
respect of Borrowed Money for that period and less (iv) any interest
income of such person for such period excluding (x) any extraordinary or
exceptional gains or losses of the relevant person for such period and
(y) foreign currency gains or losses for such period provided that such
gains or losses are calculated on the same basis as was used to prepare
the consolidated audited financial statements of the Immediate
Shareholder Group in respect of the financial year ended 31 December
1999;
"OBLIGORS" means each Borrower and each Guarantor;
"ORIGINAL BORROWER" means Global TeleSystems Holdings Europe B.V. a
limited liability company incorporated under the laws of the Netherlands
with its business office at ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇;
9
26
"ORIGINAL GUARANTORS" means the Original Borrower and the Subsidiaries of
the Original Borrower whose names, registered addresses and registered
numbers are set out in part A of schedule 1;
"PARTICIPATING MEMBER STATE" means a member state of the European Union
that adopted a single currency in accordance with the Treaty;
"PERMITTED ACQUISITION" means any transaction otherwise prohibited by
clause 12.2.8 provided that:
(a) such transaction is for the purpose of the Group Business;
(b) in the case of an acquisition, the consideration paid or payable
by the member of the Group in relation thereto is satisfied
entirely by (i) the issue of shares in the Ultimate Shareholder
and/or (ii) consideration (other than cash or Cash Equivalents)
which has a fair market value in aggregate for all such
transactions not exceeding (euro)25,000,000;
(c) prior to committing to such transaction the Original Borrower
delivers to the Agent financial projections for the Group approved
by the Boards of Directors of the Ultimate Shareholder and the
Original Borrower and to a level of detail reasonably acceptable
to the Agent, showing that the Group will be in compliance with
the covenants set out in clause 13 at all times following such
transaction; and
(d) the aggregate amount of liabilities of the Group in respect of all
Permitted Acquisitions, together with the aggregate amount of
liabilities of members of the Ultimate Shareholder Group in
respect of Permitted Ultimate Shareholder Acquisitions (as defined
in the Supplemental Agreement), does not exceed (euro)25,000,000.
For these purposes "liabilities" means the transfer or application
of cash (or Cash Equivalents) whether by loan or otherwise or
assets to, or on behalf of, or for the account of, any acquired
entity, joint venture or partnership or the guarantee of the
obligations of any such acquired entity, joint venture or
partnership;
"PERMITTED BORROWING" means:
(a) any Shareholder Loans;
(b) any Capital Leases;
(c) Borrowed Money incurred under the Finance Documents or with the
prior written consent of the Agent acting on the instructions of
the Majority Banks;
(d) Borrowed Money owing to the Original Borrower by any of its wholly
owned Subsidiaries (other than the Golden Telecom Group and the
Central European Group) in respect of the on-lending of Advances
under the Facility and to the extent that such loan is permitted
under clause 12.2.9(iii);
(e) Borrowed Money under the Rabobank Facilities up to a maximum
aggregate amount of(euro)35,000,000;
(f) Borrowed Money constituted by the guarantee by any member of the
Group of the Indebtedness of the Immediate Shareholder or any
other member of the Group, provided that such guarantee
constitutes a Permitted Guarantee;
(g) Borrowed Money constituted by the issuance of a letter of credit
or guarantee on behalf of a member of the Group by a financial
institution or the counter-indemnity of such financial institution
by the relevant member of the Group in respect of payments under
such letter of credit or guarantee, provided that either (i) the
maximum liability under such letter of credit or guarantee does
not exceed $500,000 or (ii) such letter of credit is cash
collateralised by the relevant member of the Group;
10
27
(h) Borrowed Money not falling within paragraphs (a) to (g) incurred
up to an aggregate principal amount not exceeding
(euro)2,500,000 (or its equivalent in any relevant currencies);
(i) loans from one member of the Group to another member of the Group
(other than to a member of the Golden Telecom Group or, with the
exception of Permitted Central European Group Transactions, to the
Central European Group); and
(j) Borrowed Money of the Central European Group existing on the date
of the Supplemental Agreement up to the lower of (i) $10,200,000
and (ii) the limits on the availability of such Borrowed Money in
force on the date of the Supplemental Agreement;
"PERMITTED CASH BALANCES" means:
(a) the proceeds of issues of new shares by the Ultimate Shareholder
to the extent that the Ultimate Shareholder is not required to
procure that the same is applied in or towards prepayment and
cancellation of the Facility and the reduction of availability
under clause 4.1.1 pursuant to clause 4.6 of the Supplemental
Agreement;
(b) up to (euro)35,000,000 for the purposes of meeting the Ultimate
Shareholder's obligations under the working capital facility which
it has agreed to put in place as part of the Esprit Restructuring;
(c) cash collateral of up to (pound)5,152,890 with the lessor to
secure the Ultimate Shareholder's obligations in respect of the
lease of ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇;
(d) cash collateral of up to $20,000,000 to secure a letter of credit
with Dresdner Bank AG in connection with the purchase of a fibre
pair on the Flag Atlantic Limited transatlantic cable system;
(e) cash collateral of up to (euro)2,314,190 (or its equivalent in
other currencies at the date of the Supplemental Agreement)
deposited with, and in respect of guarantees issued by, Banque
Bruxelles ▇▇▇▇▇▇▇ (Brussels);
(f) cash collateral of up to (euro)10,901 (or its equivalent in other
currencies at the date of the Supplemental Agreement) deposited
with, and in respect of guarantees issued by, Raiffeisenbank;
(g) cash collateral of up to $188,406 (or its equivalent in other
currencies at the date of the Supplemental Agreement) deposited
with, and in respect of guarantees issued by, Hypo Landesbank;
(h) cash collateral of up to $718,200 (or its equivalent in other
currencies at the date of the Supplemental Agreement) deposited
with, and in respect of guarantees issued by, Deutsche Bank AG;
(i) cash collateral of up to $15,261,861 (or its equivalent in other
currencies at the date of the Supplemental Agreement) deposited
with, and in respect of guarantees issued by, ABN Amro Bank NV,
New York;
(j) cash collateral of $474,590 (or its equivalent in other currencies
at the date of the Supplemental Agreement) deposited with, and in
respect of guarantees issued by National Westminster Bank PLC;
(k) cash collateral of up to (euro)25,149,022 (or its equivalent in
other currencies at the date of the Supplemental Agreement)
deposited with, and in respect of guarantees issued by, Rabobank
International pursuant to the Rabobank Facilities; and
(l) cash collateral in respect of guarantees in an aggregate amount
not to exceed cash released from the deposits referred to in
paragraphs (c) and (e) to (k) above (inclusive);
11
28
provided that, other than in the case of (a), the cash collateral does
not exceed the maximum underlying liability;
"PERMITTED CENTRAL EUROPEAN GROUP TRANSACTIONS" means any transfer by a
member of the Group (other than a member of the Central European Group)
of cash (or its equivalent) whether by loan or otherwise or assets to, or
on behalf of, or for the account of any member of the Central European
Group or any guarantee by a member of the Group (other than a member of
the Central European Group) of the obligations of any member of the
Central European Group provided that in respect of the period from 1
April 2001 to the end of each month specified in column (1) below the
aggregate amount of cash and assets transferred and the maximum amount
guaranteed does not exceed the amount set against such month in column
(2) below:
(1) (2)
MONTH AMOUNT
----- ((euro) M)
-------------------
April 2001 5.0
May 2001 5.0
June 2001 7.5
July 2001 10.0
August 2001 12.0
September 2001 14.0
October 2001 16.0
November 2001 18.0
December 2001 20.0
Each month in 2002 and 2003 until the end of the plus 2.0 per month
Availability Period
"PERMITTED DISPOSALS" means, subject to the terms of the Security
Documents:
(a) disposals agreed in writing by the Agent acting on the
instructions of the Majority Banks;
(b) disposals on bona fide arms length commercial terms in the
ordinary course of trading and the liquidation of those
Subsidiaries set out in paragraph one of schedule 11;
(c) disposals of property or equipment that has become worn out,
obsolete or damaged or otherwise unsuitable for use in connection
with the Group Business;
(d) disposals of assets in exchange for other assets comparable or
superior as to type, value and quality;
(e) disposals of assets by a member of the Group to another member of
the Group or to the Immediate Shareholder (other than to a member
of the Golden Telecom Group or, with the exception of Permitted
Central European Group Transactions, to the Central European
Group) and the transfer of those Subsidiaries set out in
paragraphs two, five, six and seven of schedule 11;
12
29
(f) disposals of the backhaul assets to Flag Atlantic Limited (or any
of its Subsidiaries) on bona fide arms length commercial terms for
a cash consideration not less than the original cost to the Group;
(g) the disposal of the shares in Golden Telecom pursuant to the
Golden Telecom Sale and Purchase Agreement or otherwise at fair
market value;
(h) the disposal at fair market value of all or any of the shares in,
or any of the assets of, any member of the Central European Group;
(i) the disposal of the Business Services Assets as specified in
schedule 13 as part of the Esprit Restructuring;
(j) the disposal of cash in connection with transactions not otherwise
prohibited by the Finance Documents to the extent that such
disposal does not constitute a Restricted Payment other than a
Permitted Payment or is not otherwise prohibited by the Finance
Documents;
(k) the disposal of the web hosting site in Chantilly, Virginia and
excess space in the New York PoP sites; and
(l) the voluntary liquidation by their shareholders of dormant members
of the Group;
"PERMITTED ENCUMBRANCES" means:
(a) Encumbrances arising by operation of law in the ordinary course of
trading;
(b) Encumbrances arising out of title retention provisions in a
supplier's standard conditions of supply of goods acquired by the
relevant person in the ordinary course of its trading;
(c) Encumbrances in cash of up to(euro)35,000,000 created in respect
of the Rabobank Facilities envisaged at the date hereof;
(d) any lien arising by operation of law in favour of any taxation
authority in respect of any Taxes which are being contested in
good faith and not yet payable and for which adequate reserves
have been set aside in the books of the Group in accordance with
GAAP;
(e) Encumbrances arising out of Capital Leases;
(f) cash collateral securing solely the counter-indemnity liability of
the relevant member of the Group in respect of any guarantee or
letter of credit referred to in paragraph (g) of the definition of
Permitted Borrowings;
(g) any other Encumbrances created or outstanding with the prior
written consent of the Agent acting on the instructions of the
Majority Banks;
(h) in relation to the Central European Group, Encumbrances existing
at the date of the Supplemental Agreement in respect of Borrowed
Money permitted under paragraph (j) of the definition of Permitted
Borrowings; and
(i) any rights of set-off arising by virtue of any member of the Group
being provided with clearing or overdraft or cash management
facilities provided that such arrangements have been approved by
the Banks;
"PERMITTED GUARANTEES" means:
(a) guarantees or indemnities arising under the Finance Documents;
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30
(b) guarantees or indemnities agreed in writing by the Agent acting on
the instructions of the Majority Banks; and
(c) unsecured guarantees given by the Guarantors ranking pari passu
with the Guarantee and guaranteeing Borrowed Money falling within
paragraph (h) of the definition of "PERMITTED BORROWINGS";
(d) guarantees in existence as at the date of this Agreement in
respect of the Rabobank Facilities (subject to the limit referred
to in paragraph (e) of the definition of "PERMITTED BORROWINGS");
(e) guarantees in respect of Indebtedness incurred by a member of the
Group in respect of the obligations of another member of the Group
(other than of a member of the Golden Telecom Group or, with the
exception of Permitted Central European Group Transactions, of a
member of the Central European Group); and
(f) guarantees by members of the Group in respect of the Indebtedness
of the Immediate Shareholder in respect of the senior notes
referred to in paragraph (iii) of the definition of "HIGH YIELD
SECURITIES";
"PERMITTED PAYMENTS" means:
(a) any payment or transfer of assets (including cash), subject to the
terms of the Security Documents and the Intercompany Loan
Agreement, by a member of the Group to the Immediate Shareholder
provided that in the case of a payment of cash such payment is
made by crediting the same to the Immediate Shareholder Pledged
Account;
(b) so long as no Default has occurred and is continuing:
(i) on the effective date of the Supplemental Agreement
(euro)[6,400,000] to the Ultimate Shareholder in respect of
the cash outflows during April 2001 as set out in the Agreed
Base Case; and
(ii) in respect of each month thereafter, to the Ultimate
Shareholder on the first Banking Day of such month (or, if
required by the Ultimate Shareholder to make interest
payments in respect of debt or equity securities issued by
the Ultimate Shareholder before the date of the Supplemental
Agreement scheduled to be made on the first day of any month
as provided for in the Agreed Base Case, three Banking Days
before the first day of such month) (A) the amount required
to meet the cash outflows during such month of the Ultimate
Shareholder in respect of the items provided for in respect
of such month in the Agreed Base Case up to the amount set
out in the Agreed Base Case in respect of such month together
with (B) amounts required during such month to meet the
obligations of the Ultimate Shareholder to make payments on
behalf of members of the Group to the extent that such
amounts are included for such month as expenses of the Group
in the Agreed Base Case;
(c) the disposal of the Business Services Assets as specified in
schedule 13 as part of the Esprit Restructuring; and
(d) transactions with the Golden Telecom Group and the Central
European Group permitted pursuant to clause 12.2.15;
"PLEDGE OVER GROUP ACCOUNTS" means the Dutch Pledge of Accounts and such
other pledge over Charged Accounts (including the charge pursuant to each
Irish Debenture) entered into, or to be entered into, by any member of
the Group from time to time pursuant to clause 12.1.22;
"PLEDGE OF INTERCOMPANY RECEIVABLES" means the Dutch Pledge of
Intercompany Receivables and such other pledges or assignments of present
and future claims in respect of intercompany
14
31
receivables (including the charge pursuant to each Irish Debenture)
entered into, or to be entered into, by any member of the Group from time
to time pursuant to clause 12.1.22;
"PLEDGE OF THIRD PARTY RECEIVABLES" means any pledge of third party
receivables (including the charge pursuant to each Irish Debenture)
entered into, or to be entered by any Obligor from time to time pursuant
to clause 12.1.22;
"PPE SECURITIES" means each Irish Debenture and such other
pledges/charges over plant, property and equipment (other than fibre
leases), owned by any Obligors as may be executed in favour of the
Security Trustee from time to time pursuant to clause 12.1.22;
"PRINCIPAL AGREEMENTS" means (i) any fibre lease agreement or capacity
contract, in either case, accounted for as a capital lease in accordance
with GAAP (each a "FIBRE/CAPACITY AGREEMENT") entered into by any member
of the Group (other than the Golden Telecom Group) or, to the extent it
relates to the Group Business, the Immediate Shareholder that had a net
book value of 2 1/2% or more of the net book value of the Fibre/Capacity
Agreements of the Group (other than the Golden Telecom Group) as of the
last day of each Three Month Period ending on a Quarter Day in respect of
which Quarterly Management Accounts have been delivered to the Agent
under this Agreement and (ii) each Fibre/Capacity Agreement entered into
by any member of the Group (other than the Golden Telecom Group) and a
lessor or, to the extent that it relates to the Group Business, the
Immediate Shareholder and the same lessor, where the net book value of
the fibre lease or capacity which is the subject of such Fibre/Capacity
Agreement when aggregated with the net book value of any fibre lease or
capacity which is the subject of any other Fibre/Capacity Agreement
between any member of the Group and that same lessor or the Immediate
Shareholder and that same lessor had a net book value of 5% or more of
the net book value of the Fibre/Capacity Agreements of the Group (other
than the Golden Telecom Group) as of the last day of the most recently
ended Three Month Period ending on a Quarter Day in respect of which
Quarterly Management Accounts have been delivered to the Agent under this
Agreement;
"QUALIFYING BANK" means a person, being a bank or financial institution
(whether incorporated in the United Kingdom or elsewhere), which is
eligible to have payments made to it by any Borrower under this Agreement
without any deduction or withholding in respect of Taxes either (a) by
virtue of a double taxation treaty (assuming for this purpose only that a
direction or consent such as is referred to in clause 9.8 has been given)
or (b) by virtue of the fact that no such deduction or withholding is
imposed in the jurisdiction to which the relevant Borrower is subject;
"QUARTER DAY" means 31 March, 30 June, 30 September and 31 December in
any year;
"QUARTERLY MANAGEMENT ACCOUNTS" means the quarterly management accounts
of each of the Immediate Shareholder Group and the Group to be delivered
(or which may be delivered) to the Agent pursuant to clause 12.1.7
substantially in the form set out in schedule 10 or containing
information of the same type as is required by such form;
"QUOTATION DATE" means, in relation to a period for which EURIBOR is to
be determined, the second Banking Day before the first day of such
period;
"RABOBANK FACILITIES" means the credit facilities made or to be made
available by Rabobank International to GTS Network and other members of
the Group of up to (euro)35,000,000 pursuant to an agreement dated or to
be dated on or about the date hereof;
"REFERENCE BANKS" means the EURO Reference Banks;
"RELEVANT JURISDICTION" means each jurisdiction in which a member of the
Group is incorporated or formed or in which such member of the Group has
its principal place of business or owns any material assets;
"RELEVANT PERSON" means the Ultimate Shareholder, the Immediate
Shareholder and any company (not being a Subsidiary of the Original
Borrower) which is a Subsidiary of, or an
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32
Associated Company of the Ultimate Shareholder or the Immediate
Shareholder or any Holding Company of the Ultimate Shareholder or the
Immediate Shareholder or any Associated Company of any such Holding
Company;
"RESTRICTED PAYMENT" means (a) any direct or indirect distribution or
dividend (whether in cash, property, securities or otherwise) by any
member of the Group (including, without limitation, any payment on
account of the share capital of such member of the Group or capital stock
or other securities of such member of the Group) or any interest thereon,
(b) any transfer of assets by any member of the Group, (c) any payment
(whether in cash, property, securities or otherwise) of principal of, or
interest on, or redemption of Shareholder Loans and (d) any other
payment, in each case to, on behalf of or for the account of any Relevant
Person;
"RESTRICTION PERIOD" means the period starting from the date hereof and
ending on the day that all the conditions set out in clause 3.6 are
fulfilled to the satisfaction of the Agent;
"SECURITY DOCUMENTS" means the Intercompany Loan Agreement, the IS Charge
over Account, each Subordination Deed, the Share Securities, each Pledge
of Intercompany Receivables, each Pledge of Third Party Receivables, each
Pledge over Group Accounts, the PPE Securities, the Licence Securities,
the Assignment of Insurances, the Security Trust Deed, any Security
Provider's Deed of Accession, each Assignment of Shareholder Loans and
all other mortgages, charges, pledges, guarantees, indemnities and other
instruments from time to time entered into in favour of any Finance Party
by way of guarantee or other assurance of and/or security for amounts
owed to any of the Finance Parties under or in connection with the
Finance Documents;
"SECURITY PROVIDER'S DEED OF ACCESSION" has the meaning ascribed thereto
in the Security Trust Deed;
"SECURITY TRUST DEED" means the security trust deed entered into, or to
be entered into by the Finance Parties, each GTS Creditor and each
Obligor in the agreed form;
"SECURITY TRUSTEE" means Deutsche Bank AG London of Winchester House, ▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇;
"SERVED CITIES" means Amsterdam, Antwerp, Barcelona, Berlin, Bordeaux,
Brussels, Copenhagen, Dresden, Dusseldorf, Frankfurt, Geneva, Hamburg,
Hanover, London, Lyon, Madrid, Marseilles, Milan, Munich, Paris,
Rotterdam, Stuttgart, Vienna and Zurich;
"SHAREHOLDER CONTRIBUTIONS" means the aggregate principal amount of (a)
all Shareholder Loans and (b) the equity share capital (including share
premium) of the Original Borrower which has been paid up in cash by the
Immediate Shareholder;
"SHAREHOLDER LOANS" means any Borrowed Money owed by the Original
Borrower to any GTS Creditor (within paragraph (i) of such definition)
provided that, if such GTS Creditor is the Immediate Shareholder, such
Borrowed Money is subject to the terms of the Intercompany Loan
Agreement;
"SHAREHOLDERS" means the Immediate Shareholder and the Ultimate
Shareholder;
"SHARE SECURITIES" means the Dutch Share Security, the Belgian Share
Securities, the Danish Share Securities, the Irish Share Securities and
such other pledges/charges over shares of any of the Obligors as may be
executed in favour of the Security Trustee from time to time pursuant to
clause 10.18;
"STERLING" and "(POUND)" mean the lawful currency for the time being of
the United Kingdom and in respect of all payments to be made under this
Agreement in Sterling means immediately available, freely transferable
cleared funds;
"SUBORDINATION DEED" means a deed of subordination to be entered into
between any Relevant Person and the Security Trustee pursuant to the
terms of this Agreement substantially in such
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form as may be agreed by the Security Trustee having regard to the
applicable laws relating to the subordination of debt in the jurisdiction
in which the relevant loan is payable;
"SUBSIDIARY" of a person means any company or entity directly or
indirectly controlled by such person, for which purpose "control" means
either ownership of more than 50 per cent. of the voting share capital
(or equivalent right of ownership) of such company or entity or power to
direct its policies and management whether by contract or otherwise or
the right to receive more than 50 per cent. of any distribution (of
whatever nature) made in respect of the share capital or other ownership
interests of such company or entity;
"SUPPLEMENTAL AGREEMENT" means the supplemental agreement in relation to
this Agreement between the original parties to this Agreement dated 5
April 2001;
"TARGET DAY" means a day on which the Trans-European Automated Realtime
Gross Settlement Express Transfer System (TARGET) is operating;
"TAX ON OVERALL NET INCOME" of a person shall be construed as a reference
to Tax (other than Tax deducted or withheld from any payment) imposed on
that person by any jurisdiction on:
(i) the net income profits or gains of that person worldwide; or
(ii) such of its income, profits or gains as arise in or relate to the
jurisdiction in which it is resident or in which its principal
office is located;
"TAXES" includes all present and future taxes, levies, imposts, duties,
fees or charges of whatever nature together with interest thereon and
penalties in respect thereof and "Taxation" shall be construed
accordingly;
"TELECOMMUNICATIONS AND CABLE LAWS" means all laws, statutes, regulations
and judgments relating to the business of transmitting or providing
services related to the transmission of, voice, video or data through
owned or leased transmission facilities applicable to any member of the
Group and/or the business of transmitting or providing services related
to the transmission of, voice, video or data through owned or leased
transmission facilities carried on by any member of the Group in any
Relevant Jurisdiction;
"TERM" means, in relation to an Advance (other than an Advance made after
the Termination Date pursuant to clause 7.1), the period for which that
Advance is, or is to be, outstanding, as specified in the Utilisation
Notice for such Advance in accordance with clause 4.3;
"TERMINATION DATE" means 31 March 2002;
"THREE MONTH PERIOD" means each period comprising three calendar months
ending on the last day of the third month;
"TOTAL COMMITMENTS" means at any relevant time the total of the
Commitments of all the Banks at such time;
"TOTAL OUTSTANDINGS" and "LOAN" mean the aggregate principal amount of
all Advances;
"TRANSFER CERTIFICATE" means a certificate substantially in the terms of
schedule 5;
"TRANSFER AGREEMENTS" means (i) the agreement for the transfer of
equipment, lease of transmission capacity and assignment of fibre lease
obligations in all Relevant Jurisdictions other than France dated 30
September 1997 made between (1) Hermes Europe Railtel B.V. (now known as
Global TeleSystems Europe B.V.) and (2) Hermes Europe Railtel (Network)
Limited (now known as GTS Network (Ireland) Limited) and (ii) the
agreement for the transfer of equipment, lease of transmission capacity
and assignment of future lease obligations in France dated 30 September
1997 made between (1) Hermes Europe Railtel B.V. (now known as Global
TeleSystems Europe B.V.) and (2) Hermes Europe Railtel (Network) Limited
(now known as GTS Network (Ireland) Limited);
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34
"TRANSFEREE" has the meaning given to it in clause 18.3;
"TREATY" means the Treaty establishing the European Economic Community
being the Treaty of Rome of 25 March 1957 as amended by the Single
▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ and the Maastricht Treaty (which was signed on 7
February 1992 and came into force on 1 November 1993) as amended, varied
or supplemented from time to time;
"TWELVE MONTH PERIOD" means each period of 12 months ending on the last
day of a month;
"ULTIMATE SHAREHOLDER" means Global TeleSystems Inc., a Delaware
corporation with its principal office at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇.▇.▇.;
"ULTIMATE SHAREHOLDER GROUP" means the Ultimate Shareholder and its
Subsidiaries from time to time;
"UTILISATION" means a borrowing by any Borrower of an Advance;
"UTILISATION DATE" means the date on which the relevant Advance is, or is
to be, made being a Banking Day falling within the Availability Period;
"UTILISATION NOTICE" means a notice in the form or substantially in the
form of schedule 2.
1.3 HEADINGS
Clause headings and the table of contents are inserted for convenience of
reference only and shall be ignored in the interpretation of this
Agreement.
1.4 CONSTRUCTION OF CERTAIN TERMS
In this Agreement, unless the context otherwise requires:
(a) references to clauses and schedules are to be construed as
references to the clauses of, and schedules to, this Agreement and
references to this Agreement include its schedules and references
in any schedule to paragraphs are to paragraphs of that schedule;
(b) references to (or to any specified provision of) this Agreement or
any other document shall be construed as references to this
Agreement, that provision or that document as in force for the
time being and as from time to time amended in accordance with its
terms, or, as the case may be, with the agreement of the relevant
parties and (where such consent is, by the terms of this Agreement
or the relevant document, required to be obtained as a condition
to such amendment being permitted) the prior written consent of
the Agent, all of the Banks or the Majority Banks (as the case may
be);
(c) references to a "REGULATION" include any present or future
regulation, rule, directive, requirement, request or guideline
(whether or not having the force of law) of any agency, authority,
central bank or government department or any self-regulatory or
other national or supra-national authority;
(d) words importing the plural shall include the singular and vice
versa;
(e) references to a time of day are to London time;
(f) references to a "PERSON" shall be construed as including
references to an individual, firm, company, corporation,
unincorporated body of persons or any State or any agency thereof
and that person's successors in title;
(g) references to "ASSETS" include all or part of any business,
undertaking, real property, personal property, uncalled capital
and any rights (whether actual or contingent, present or future)
to receive, or require delivery of, any of the foregoing;
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35
(h) references to a "GUARANTEE" include references to an indemnity or
other assurance against financial loss including, without
limitation, an obligation to purchase assets or services as a
consequence of a default by any other person to pay any
Indebtedness and "GUARANTEED" shall be construed accordingly;
(i) references to the "EQUIVALENT" of an amount specified in a
particular currency (the "SPECIFIED CURRENCY AMOUNT") shall be
construed as a reference to the amount of the other relevant
currency which would be required to purchase the specified
currency amount in the London foreign exchange market at the
Agent's spot rate of exchange at or about 11 a.m. on the second
Banking Day before the day on which the calculation falls to be
made;
(j) references to the "AGREED FORM" means, in relation to any
document, the form of such document as shall be agreed between the
Original Borrower and the Agent (or the Security Trustee, as the
case may be for and on behalf of all of the Banks);
(k) reference to "DORMANT" mean in relation to a company that such
company is not, is not required to become, an Obligor, is not the
direct or indirect Holding Company of an Obligor or a company that
is required to become an Obligor, does not own any Licences or
Necessary Authorisations and does not trade or own any other
material assets; and
(l) references to any enactment shall be deemed to include references
to such enactment as re-enacted, amended or extended.
1.5 MAJORITY BANKS
Where this Agreement provides for any matter to be determined by
reference to the opinion of the Majority Banks or to be subject to the
consent or request of the Majority Banks or for any action to be taken on
the instructions of the Majority Banks, such opinion, consent, request or
instructions shall (as between the Banks) only be regarded as having been
validly given or issued by the Majority Banks if all the Banks shall have
been given prior notice of the matter on which such opinion, consent,
request or instructions are required to be obtained and the relevant
majority of Banks shall have given or issued such opinion, consent,
request or instructions but so that (as between the Obligors and the
Banks), once informed by the Agent that such opinion, consent, request or
instructions have been given, the Obligors shall be entitled (and bound)
to assume that such notice shall have been duly received by each Bank and
that the relevant majority shall have been obtained to constitute
Majority Banks whether or not this is in fact the case.
2 THE FACILITY
2.1 AMOUNTS
Upon and subject to the terms of this Agreement and in reliance on each
of the representations and warranties in clause 11, for the purposes set
out in clause 1.1 the Banks agree to make available to the Borrowers a
revolving credit facility with a term out option in the principal sum of
up to (euro)300,000,000.
The obligation of each Bank under this Agreement shall be to contribute
to that proportion of each Advance which, as at the Utilisation Date of
such Advance, its undrawn Commitment bears to the aggregate of the
undrawn Commitments of all the Banks.
2.2 OBLIGATIONS SEVERAL
The obligations of each Bank under this Agreement are several; the
failure of any Bank to perform such obligations shall not relieve any
other Finance Party of any of their respective obligations or liabilities
under this Agreement nor shall the Agent, the Security Trustee or the
Arrangers be responsible for the obligations of any Bank (except for its
own obligations, if any, as a Bank) nor shall any Bank be responsible for
the obligations of any other Bank under this Agreement.
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2.3 INTERESTS SEVERAL
Notwithstanding any other term of this Agreement (but without prejudice
to the provisions of this Agreement relating to or requiring action by
the Majority Banks) the interests of the Finance Parties are several and
the amount due to the Agent (for its own account), to each Arranger, the
Security Trustee and to each Bank is a separate and independent debt.
Each Finance Party shall have the right to protect and enforce its rights
arising out of this Agreement and it shall not be necessary for any other
Finance Party to be joined as an additional party in any proceedings for
this purpose.
2.4 EQUALISATION
Notwithstanding any other provisions of this Agreement, until such time
as Contributions of the Banks are equalised pursuant to this clause 2.4,
the Banks agree that:
2.4.1 in relation to any Advance which when drawn will cause the Total
Outstandings to exceed the Total Outstandings immediately prior to
the making of such Advance (after taking account of any Advance due
to be made or repaid on the Utilisation Date of such Advance) the
Banks shall contribute to such Advance in such proportions so that
the Contributions of the Banks, following the making of such Advance,
are equalised to the maximum extent possible;
2.4.2 in relation to any prepayment made pursuant to clause 7 (other than
clause 7.4), the Agent shall apply the amounts prepaid so that,
following such prepayment, the Contributions of the Banks are
equalised to the maximum extent possible; and
2.4.3 in relation to any Advance repaid on its Maturity Date (a "MATURING
ADVANCE") pursuant to clause 7.1, to the extent that the amount the
Maturing Advance exceeds the amount of a new Advance made on such
Maturity Date the Agent shall apply the excess so that, following
such repayment, the Contributions of the Banks are equalised to the
maximum extent possible.
3 CONDITIONS
3.1 DOCUMENTS AND EVIDENCE
The obligation of each Bank to make its Commitment available under the
Facility shall be subject to the condition that the Agent, or its duly
authorised representative, shall have received, not later than the
Banking Day on which the Utilisation Notice in respect of the first
Utilisation is given, the documents and evidence specified in part A of
schedule 3 in form and substance satisfactory to the Agent.
3.2 GENERAL CONDITIONS PRECEDENT
The obligation of each Bank to contribute to or participate in any
Advance is subject to the further conditions that at the date of the
relevant Utilisation Notice and on the relevant Utilisation Date no
guarantee referred to in paragraph (f) of the definition of Permitted
Guarantees has been entered into and:
(a) the representations and warranties set out in clause 11.1
(adjusted in accordance with clause 11.3) are true and correct on
and as of each such date as if each were made with respect to the
facts and circumstances existing at such date;
(b) no Default shall have occurred and be continuing or would result
from such Utilisation.
However in the case of an Advance which would not, if drawn, cause the
Total Outstandings to exceed the Total Outstandings immediately prior to
the making of that Advance (after taking account of any Advance due to be
made or repaid on the Utilisation Date of such Advance) clause 3.2 shall
not apply.
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3.3 WAIVER OF CONDITIONS PRECEDENT
The conditions specified in this clause 3 are inserted solely for the
benefit of the Banks and may be waived on their behalf in whole or in
part and with or without conditions by the Agent acting on the
instructions of all of the Banks in respect of the first Utilisation and
on the instructions of the Majority Banks with respect to any other
Utilisation without prejudicing the right of the Agent acting on such
instructions to require fulfilment of such conditions in whole or in part
in respect of any other Utilisation.
3.4 NOTIFICATION
The Agent shall notify the Banks and the Original Borrower promptly after
receipt by it of the documents and evidence referred to in clause 3.1 in
form and substance satisfactory to the Agent.
3.5 ACCEDING BORROWERS
3.5.1 The Original Borrower may request that any of its direct wholly owned
Material Subsidiaries who is a member of the Group becomes an
Acceding Borrower, by delivering to the Agent a Deed of Borrower
Accession duly executed by the Original Borrower and such Subsidiary,
together with the documents and evidence listed in part B of schedule
3 applicable to such Subsidiary and the Original Borrower.
3.5.2 Delivery of a Deed of Borrower Accession, duly executed by the
Original Borrower and the Acceding Borrower, constitutes confirmation
by that Acceding Borrower and the Original Borrower that the
representations and warranties set out in clause 11.1 and to be made
by them on the date of the Deed of Borrower Accession in accordance
with clause 11.4 are correct, as if made with reference to the facts
and circumstances then existing.
3.5.3 A Subsidiary of the Original Borrower shall become an Acceding
Borrower and assume all the rights, benefits and obligations of a
Borrower on the date on which the Agent notifies the Original
Borrower that:
(a) the Majority Banks have accepted the Original Borrower's request
in respect of such Subsidiary;
(b) it has received a Deed of Borrower Accession duly executed by the
Original Borrower and the Acceding Borrower, together with
documents and evidence listed in part B of schedule 3 applicable
to such Acceding Borrower and the Original Borrower in form and
substance satisfactory to the Agent; and
(c) such Subsidiary is a Guarantor or has become a Guarantor in
accordance with clause 10.18.
3.5.4 Each Finance Party irrevocably authorises the Agent to countersign
each Deed of Borrower Accession on its behalf without any further
consent of, or consultation with, any of the Finance Parties.
3.6 NECESSARY AUTHORISATIONS
The Original Borrower will use all reasonable endeavours to procure that
all material Necessary Authorisations granted to or which are in the name
of the Immediate Shareholder are transferred to and/or replacements are
issued to the Original Borrower or any other member of the Group which is
an Obligor on terms that are not materially less beneficial to the Group
and in any event shall procure that in relation to the Served Cities at
least two entry or exit network routes, or, if as at the date of this
Agreement the Immediate Shareholder Group has only one such entry or exit
network route, one entry or exit route, are transferred to and/or
replacements are issued to the Original Borrower or any other member of
the Group which is an Obligor on terms that are not materially less
beneficial to the Group no later than the date falling 6 months or, in
the case of any such Necessary Authorisations in the United Kingdom or
France, 9
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38
months, after the date of this Agreement; provided, however, that subject
to the requirement as to a minimum number of entry and exit routes in
Served Cities, in the case of any Necessary Authorisations which are not
currently used by the Group such unused Necessary Authorisations shall be
transferred to, and or replacements issued to an Obligor on terms that
are not materially less beneficial to the Group, by the later of (i) 3
months after they first become used or (ii) 6 months, or in France or the
United Kingdom, 9 months after the date of this Agreement and provided
further that this clause 3.6 shall not apply to the Necessary
Authorisations referred to in schedule 12.
4 UTILISATIONS
4.1 MAXIMUM OUTSTANDINGS
4.1.1 No Utilisations shall be made if, on the date of such Utilisation, the
Total Outstandings would exceed the amount set against the relevant
month in the table set out below as reduced pursuant to clauses 7 and
16.1.
MONTH MAXIMUM TOTAL OUTSTANDINGS
((euro) M)
----- -------------------------------------------------------
April 2001 200
May 2001 200
June 2001 200
July 2001 180
August 2001 220
September 2001 240
October 2001 260
November 2001 275
December 2001 285
January 2002 and thereafter until the end of the 300
Availability Period (or, if the Availability Period is extended pursuant
to clause 7.1, the Loan on the last day of the
Initial Availability Period plus the amount available
for borrowing pursuant to clause 7.1)
4.1.2 In addition to the limits set out in clause 4.1.1, no Utilisations
shall be made if the Utilisation Date falls within the month set out
in column (1) below and the ratio of the Loan on such day (including
the amount of any proposed Utilisation to be made on such day) to
Annualised Consolidated Net Operating Cash Flow (determined by
reference to the most recently ended Three Month Period in respect of
which Quarterly Management Accounts delivered to the Agent under this
Agreement) exceeds the amount set out against the month in column (2)
below, if the entire Central European Group has not been disposed of
prior to the Utilisation Date, or column (3) below, if the entire
Central European Group was disposed of both prior to the Utilisation
Date and on or before 30 September 2001, or column (4) below, if the
entire Central European Group was disposed of both prior to the
Utilisation Date and after 30 September 2001, in which the relevant
Utilisation Date falls:
MONTH RATIO OF THE LOAN TO ANNUALISED CONSOLIDATED
NET OPERATING CASH FLOW
----- ------------------------------------------------
(1) (2) (3) (4)
July 2001 2.50 2.42 -
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August 2001 3.02 3.10 -
September 2001 3.00 3.13 -
October 2001 2.93 3.07 2.75
November 2001 2.81 2.94 2.65
December 2001 2.59 2.72 2.46
January 2002 2.41 2.55 2.32
February 2002 2.17 2.29 2.08
March 2002 2.00 2.10 1.91
April 2002 N/A 1.79 1.63
May 2002 N/A 1.79 1.63
June 2002 N/A 1.79 1.63
July 2002 N/A 1.49 1.35
August 2002 N/A 1.49 1.35
September 2002 N/A 1.49 1.35
October 2002 N/A 1.25 1.13
November 2002 N/A 1.25 1.13
December 2002 N/A 1.25 1.13
January 2003 N/A 0.98 0.89
February 2003 N/A 0.98 0.89
March 2003 N/A 0.98 0.89
4.1.3 In addition to the limits set out in clauses 4.1.1 and 4.1.2, no
Utilisations shall be made unless on the date of the Utilisation
Notice the gross cash balances of the Ultimate Shareholder Group
(other than the Group) are not more than (euro)10,000,000 and the
gross cash balances of the Group are not more than (euro)10,000,000.
For the purposes of this clause 4.1.3, the Permitted Cash Balances
shall be ignored;
4.1.4 In addition to the limits under clause 4.1.1, 4.1.2 and 4.1.3, no
Utilisation may be made prior to both (i) the making of the court
order in respect of the Esprit Restructuring and (ii) Closing taking
place and the payment by the Purchaser in full of the Purchase Price
(including under the Note) in respect of the Purchase Shares if, on
the day of such Utilisation, the Total Outstandings would exceed
(euro)200,000,000 less any amount which, pursuant to clause 7 or 16.1
reduces all or any of the amounts set out in clause 4.1.1.
Capitalised terms used in this clause 4.1.1 where not otherwise
defined in this Agreement shall have the meanings set out in the
Golden Telecom Sale and Purchase Agreement in its original form.
4.2 ADVANCES
Subject to the terms and conditions of this Agreement, an Advance shall
be made following receipt by the Agent from a Borrower of a duly
completed Utilisation Notice not later than 10 a.m. on the third Banking
Day before the proposed Utilisation Date. A Utilisation Notice in respect
of an Advance shall be effective on actual receipt by the Agent and, once
given, shall, subject as provided in clause 6.6.1, be irrevocable. No
Utilisation Notice in respect of an Advance may be given in respect of an
amount which is the subject of a notice of cancellation under clause 7.2.
4.3 AMOUNT AND TERM OF ADVANCES
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4.3.1 Each Advance shall be of an amount which is a minimum of
(euro)5,000,000 and an integral multiple of (euro)1,000,000 or the
balance of the Commitments of the Banks.
4.3.2 Each Advance (other than an Advance made after the Termination Date
pursuant to clause 7.1) shall have a Term of one, two, three or six
months (or, with the prior agreement of all of the Banks, such other
period as the relevant Borrower may request) ending on or before the
Termination Date.
4.3.3 Not more than 15 Advances may be outstanding at any one time.
4.4 SELECTION OF INTEREST PERIODS
Following the Original Borrower giving notice to the Agent pursuant to
clause 7.1 in respect of all Interest Periods in respect of the Loan or
Advances made after the Termination Date pursuant to clause 7.1
commencing on or after the Termination Date, the Original Borrower may by
notice received by the Agent not later than 11 a.m. on the third Banking
Day before the beginning of each such Interest Period specify whether
such Interest Period shall have a duration of one month or two, three or
six months or (with the prior agreement of all of the Banks) such other
period as the Original Borrower may request provided that:
(a) an Interest Period in respect of the Loan shall end on 31 March
2003;
(b) in respect of any Advance made after the Termination Date pursuant
to clause 7.1, the initial Interest Period shall commence on the
date of such Advance and end on the last day of the then current
Interest Period in respect of the Loan. On the last day of such
Interest Period, it shall be consolidated with the Loan; and
(c) If the Original Borrower fails to specify the duration of an
Interest Period in accordance with the provisions of this clause,
such Interest Period shall, subject to the provisions of paragraph
(a) above, have a duration of one month.
4.5 NOTIFICATION TO BANKS
As soon as practicable after receipt of a Utilisation Notice in respect
of an Advance complying with the terms of this Agreement, the Agent shall
notify each Bank and, subject to clause 3, each of the Banks shall on the
Utilisation Date, make available to the Agent its portion of the
principal amount of the relevant Advance in accordance with clause 9.2.
4.6 APPLICATION OF PROCEEDS
Without prejudice to the Obligors' obligations under clause 12.1.3, none
of the Finance Parties shall have any responsibility for the application
of the proceeds of or the purpose of any Utilisation by any Borrower.
5 [DELIBERATELY LEFT BLANK]
6 INTEREST
6.1 NORMAL INTEREST RATE
Up to the Termination Date the Borrowers shall pay interest on each
Advance on the last day of its Term and thereafter the Borrowers shall
pay interest on each Advance made after the Termination Date pursuant to
clause 7.1 and the Loan in respect of each Interest Period on the last
day of such Interest Period or, in relation to a Term or an Interest
Period longer than 6 months on the date falling 6 months after the first
day of such Term or Interest Period and on the last day of such Term or
Interest Period, at the rate per annum determined by the Agent to be the
aggregate of either (a) the applicable Margin, (b) the Additional Cost
(if any) and (c) EURIBOR.
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6.2 APPLICABLE MARGIN
6.2.1 The Margin in relation to any Advance or the Loan, any unpaid sum due
under this Agreement and for the purposes of clause 8.1.3 shall be 1.25
per cent. per annum.
6.2.2 In the event that the Original Borrower gives notice the Agent pursuant
to clause 7.1, with effect from 1 April 2002 the Margin shall be 5 per
cent. per annum and shall increase by a further 0.50 per cent. per annum
on the first day of each month thereafter until the Loan is repaid or
prepaid in full. The changes to the Margin pursuant to this clause 6.2.2
shall take effect immediately regardless of whether or not the relevant
day is not a calculation date or the first day of an Interest Period.
6.3 INTEREST FOR LATE PAYMENT
If any Obligor fails to pay any sum (including, without limitation, any
sum payable pursuant to this clause 6.3) on its due date for payment
under this Agreement such Obligor shall pay interest on such sum from the
due date up to the date of actual payment (as well after as before
judgment) at a rate determined by the Agent pursuant to this clause 6.3.
The period beginning on such due date and ending on such date of payment
shall be divided into successive periods of not more than three months as
selected by the Agent (after consultation with the Banks so far as
reasonably practicable in the circumstances) each of which (other than
the first, which shall commence on such due date) shall commence on the
last day of the preceding such period. The rate of interest applicable to
each such period shall be the aggregate (as determined by the Agent) of
(a) one per cent. per annum, (b) the applicable Margin, (c) the
Additional Cost (if any) and (d) EURIBOR, unless such unpaid sum is an
amount of principal which shall have become due and payable, by reason of
a declaration by the Agent under clause 14.2.2 or a prepayment pursuant
to clause 7.8 or 16.1, prior to the end of the Term or Interest Period
relating thereto, in which case the first such period selected by the
Agent shall end on the last day of such Term or Interest Period and
interest shall be payable on such unpaid sum during such period at a rate
one per cent. above the rate applicable thereto immediately before it
shall have become so due and payable. Interest under this clause 6.3
shall be due and payable on the last day of each period determined by the
Agent pursuant to this clause 6.3 or, if earlier, on the date on which
the sum in respect of which such interest is accruing shall actually be
paid. If, for the reasons specified in clause 6.6.1(a) or 6.6.1(b), the
Agent is unable to determine a rate in accordance with the foregoing
provisions of this clause 6.3, each Bank shall promptly notify the Agent
of the cost of funds to such Bank and interest on any sum not paid on its
due date for payment shall be calculated for each Bank at a rate
determined by the Agent to be one per cent. per annum above the aggregate
of the Margin and the cost of funds (including any Additional Cost) to
such Bank.
6.4 NOTIFICATION OF INTEREST RATE
The Agent shall notify the Original Borrower and the Banks promptly of
each rate of interest determined by it under this clause 6.
6.5 REFERENCE BANK QUOTATIONS
If any Reference Bank is unable or otherwise fails to furnish a quotation
for the purpose of calculating EURIBOR where such quotation is required
having regard to the definition of "EURIBOR" in clause 1.2, the interest
rate for the relevant Term or Interest Period or other period shall be
determined, subject to clause 6.6, on the basis of the quotations
furnished by the remaining EURIBOR Reference Banks.
6.6 MARKET DISRUPTION; NON-AVAILABILITY
6.6.1 If and whenever, at any time prior to the making of an Advance or
commencement of an Interest Period:
(a) (at any time when Reference Bank quotations are required having
regard to the definition of "EURIBOR" in clause 1.2) the Agent
shall have determined by reason of
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circumstances affecting the Euro-Zone Interbank market, after
consultation with the EURO Reference Banks (which determination
shall, in the absence of manifest error, be conclusive), that
adequate and fair means do not exist for ascertaining EURIBOR for
the relevant Term or Interest Period or if none of the EURO
Reference Banks supplies the Agent with a quotation for the
purpose of calculating EURIBOR; or
(b) the Agent shall have received notification from Banks with
Contributions aggregating not less than one-third of the Total
Outstandings that matching deposits in the relevant currency are
not available on the relevant rate fixing date to such Banks in
the euro-zone Interbank Market in the ordinary course of business
in sufficient amounts to fund their contribution to the relevant
Advance or the Loan or that EURIBOR does not accurately reflect
the cost to such Banks of obtaining such deposits,
the Agent shall forthwith give notice (a "DETERMINATION NOTICE") to
the Original Borrower and to each of the Banks and, in the case of a
new Advance, such Advance shall not be made. A Determination Notice
shall contain particulars of the relevant circumstances giving rise
to its issue.
6.6.2 After the giving of any Determination Notice the undrawn amount of
the Total Commitments shall not be drawn until the circumstances
giving rise to the issue of the Determination Notice have ceased.
During the period of 10 Banking Days after any Determination Notice has
been given by the Agent under clause 6.6.1, the Original Borrower and
each of the Banks may enter into negotiations with a view to agreeing an
alternative basis (the "SUBSTITUTE BASIS") for each Bank making available
or, as the case may be, maintaining its contribution to the Loan. The
Substitute Basis may (without limitation) include alternative interest
periods, alternative currencies or alternative rates of interest but
shall include a margin above the cost of funds including Additional Cost,
if any, to each Bank equivalent to the Margin. If no Substitute Basis is
agreed, each Bank shall certify a substitute basis for funding its
Contribution from whatever sources it may reasonably select. Each
Substitute Basis so agreed or substitute basis certified by a Bank shall
be binding upon the Borrowers and shall take effect in accordance with
its terms from the date specified in the Determination Notice until such
time as none of the circumstances specified in clause 6.6.1 continues to
exist whereupon the normal interest rate fixing provisions of this
Agreement shall apply.
7 REPAYMENT, CANCELLATION AND PREPAYMENT
7.1 REPAYMENT OF THE LOAN
The Borrowers shall repay each Advance on its Maturity Date if such
Maturity Date falls on or before the last day of the Availability Period
and, on the last day of the Initial Availability Period, the Total
Commitments shall be reduced to zero, save as set out below. If the
Original Borrower has notified the Agent in writing not earlier than 45
Banking Days and not later than 30 Banking Days prior to the end of the
Initial Availability Period that all or part of the Loan is to convert to
a term loan, then the Borrowers shall not be obliged to repay any
Advances whose Maturity Date is the last day of the Availability Period,
but on such day such Advances shall be consolidated and converted into a
term loan and shall instead be repaid on or before 31 March 2003. Unless
the Original Borrower gives a notice voluntarily cancelling such
Commitments pursuant to clause 7.2 with effect from the last day of the
Initial Availability Period, in the event that the Original Borrower has
mandatorily repaid the Loan pursuant to clause 7.6.3 in an amount more
than the reduction in the Total Commitments pursuant to clause 7.6.3 (the
"EXCESS") and on the last day of the Initial Availability Period the Loan
is less than the Total Commitments (the "SHORTFALL") then the Shortfall
(but in no event more than the Excess), shall, subject to the terms and
conditions of this Agreement, remain available for borrowing until 31
March 2003 and the Initial Availability Period shall be extended
accordingly.
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7.2 VOLUNTARY CANCELLATION OF COMMITMENTS
The Original Borrower may at any time during the Availability Period by
notice to the Agent (effective only on actual receipt) cancel with effect
from a date not less than 5 Banking Days after the receipt by the Agent of
such notice the whole or any part (being euro 10,000,000 or any larger sum
which is an integral multiple of euro 1,000,000) of the Commitments, any
such notice of cancellation, once given, shall be irrevocable and upon such
cancellation taking effect the Commitment of each Bank shall be reduced
proportionately. Any amounts so cancelled shall not be available for
redrawing and each amount set out in clause 4.1.1 shall be reduced by the
amount cancelled.
7.3 VOLUNTARY PREPAYMENT
The Borrowers may prepay any Advance or the Loan in the currency in which
it is denominated (in whole or in part provided that, in the case of part,
such part is a minimum of euro 2,500,000 and an integral multiple of euro
500,000) at any time without premium or penalty, but subject to clause
15.1. No amount prepaid pursuant to this clause 7.3 after the end of the
Initial Availability Period shall be available for redrawing and the
relevant amount set out in clause 4.1.1 shall be reduced by the amount
cancelled.
7.4 ADDITIONAL VOLUNTARY PREPAYMENT
Any Borrower may also prepay (in whole but not in part only), without
premium or penalty, but without prejudice to its obligations under clauses
9.5 and 15.2, the Contribution of any Bank to which such Borrower shall
have become obliged to pay additional amounts under clause 9.5 or 15.2.
Upon any notice of such prepayment being given, the Commitment of the
relevant Bank shall be reduced to zero and the amount of the Total
Commitments and each amount set out in clause 4.1.1 shall be reduced
accordingly.
7.5 AMOUNTS PAYABLE ON PREPAYMENT
Any prepayment under this clause 7 shall be made together with (a) accrued
interest to the date of prepayment, (b) any additional amount payable under
clauses 6.6, 9.5, or 15.2 and (c) all other sums payable by the relevant
Borrower under this Agreement including, without limitation, any accrued
commitment commission payable under clause 8.1.3 and, other than in the
case of a mandatory prepayment under clause 7.6, any amounts payable under
clause 15.1.
7.6 MANDATORY PREPAYMENT AND CANCELLATION
7.6.1 In the event that any person acquires or persons acting in concert
acquire control of the Ultimate Shareholder, unless such person is a
recognised and experienced international telecommunications operator
the credit rating of whose long term debt is rated at least "A3" by
▇▇▇▇▇'▇ and "A-" by Standard and Poor's, the Borrowers shall
immediately prepay or repay the Loan and the Total Commitments shall
be reduced to zero. For the purposes of this clause 7.6.1 "acting in
concert" shall have the meaning given to such expression in the City
Code on Takeovers and Mergers and "control" means (i) the beneficial
ownership, directly or indirectly, of shares of corporate stock or
other equity participations with voting power under ordinary
circumstances to elect the Board of Directors ("voting equity
interests") representing 50% or more of the total voting power of the
voting equity interests of the Ultimate Shareholder or (ii) the
possession of the power, directly or indirectly, to elect a majority
of the Board of Directors of the Ultimate Shareholder.
7.6.2 The Original Borrower shall apply or procure the application of euro
50,000,000 of the sale proceeds of the shares in Golden Telecom
received pursuant to the Golden Telecom Sale and Purchase Agreement
(including under the Note issued thereunder) in prepayment of the Loan
and the figures set out in clause 4.1.1 against the months of April
2001, May 2001 and June 2001 shall each be reduced by the amount of
each prepayment under this clause 7.6.2. Such prepayment shall be made
as to euro 25,000,000 of the first instalment of the Purchase Price
under the Golden Telecom Sale and Purchase Agreement (as therein
defined) and euro 25,000,000 of the second instalment of the Purchase
Price under the Golden Telecom
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Sale and Purchase Agreement or, if the Purchase Price is paid in one
instalment, euro 50,000,000.
7.6.3 The Original Borrower shall apply or procure the application of the
cash (or Cash Equivalents) proceeds of the sale (net of taxes, fees
and commissions directly relating to such sale) of the shares in, or
assets of, any member of the Central European Group (other than sales
of assets by the Central European Group in the ordinary course of
trading which, for the avoidance of doubt, shall include the sale of
dark fibre) in immediate prepayment of the Loan. The Total Commitments
and each figure set out in clause 4.1.1 shall be reduced by the amount
of any prepayment under this clause 7.6.3 save that, if the total
proceeds so applied pursuant to this clause 7.6.3 on or before 30
September 2001 exceed euro 25,000,000, the Total Commitments and each
figure set out in clause 4.1.1 shall not be reduced by the amount of
such excess, however if the total proceeds so applied by 30 September
2001 do not exceed euro 25,000,000, the Total Commitments and each
figure set out in clause 4.1.1 shall be reduced by all such proceeds
up to euro 50,000,000.
7.7 NOTICE OF PREPAYMENT
No prepayment may be effected under this clause 7 (other than clause 7.6)
unless the relevant Borrower shall have given the Agent at least 3 Banking
Days' notice of its intention to make such prepayment. Every notice of
prepayment shall be effective only on actual receipt by the Agent, shall be
irrevocable and shall oblige the relevant Borrower to make such prepayment
on the date specified.
7.8 NO OTHER PREPAYMENT
The Borrowers may not prepay the Loan or any part thereof save as expressly
provided in this Agreement.
8 FEES AND EXPENSES
8.1 FEES
The Original Borrower shall pay to the Agent whether or not any part of the
Commitments is ever drawn:
8.1.1 for the account of the Arrangers, an arrangement fee of an amount and
on the dates agreed between the Original Borrower and the Arrangers in
a letter dated 30 June 2000;
8.1.2 on the earlier of (i) the date of the first Utilisation and (ii) the
date falling five Banking Days after the date of this Agreement and on
each anniversary of the date of this Agreement until all moneys owing
under this Agreement have been paid in full, for the account of the
Agent or the Security Trustee (as the case may be), an agency fee and
security trustee fee of an amount agreed between the Original Borrower
and the Agent and the Security Trustee respectively in a letter dated
the date of this Agreement;
8.1.3 in arrears on each Quarter Day after the date of this Agreement and on
the last day of the Availability Period, for the account of each Bank,
commitment commission on the daily undrawn and uncancelled amount of
such Bank's Commitment computed from the date of this Agreement at the
rate of (i) from the date of signing this Agreement until the date
falling twelve calendar months thereafter, 0.60 per cent. per annum
and (ii) thereafter the lesser of 0.50 per cent. per annum and 50 per
cent. of the Margin applicable on each day during the relevant period;
and
8.1.4 in the event that the Original Borrower gives notice to the Agent
pursuant to clause 7.1, for the account of the Banks a term out fee of
an amount set out in a letter from the Arrangers to the Original
Borrower dated the same date as the Supplemental Agreement.
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8.2 EXPENSES
The Original Borrower shall pay to the Agent on demand:
8.2.1 all reasonable expenses (including legal, printing, travel and
out-of-pocket expenses, but subject to any limitations agreed in
writing prior to the date of this Agreement in relation thereto)
incurred by the Finance Parties in connection with the negotiation,
preparation and execution of the Finance Documents, the syndication of
the Facility and the preparation and distribution of the Information
Memorandum and advertising in connection with this Agreement and of
any amendment or extension of, or the granting of any waiver or
consent under, the Finance Documents together with interest at the
rate referred to in clause 6.3 from the date of demand for payment of
such expenses to the date of payment (as well after as before
judgment); and
8.2.2 all expenses (including legal, travel and out-of-pocket expenses)
incurred by the Finance Parties or any of them in contemplation of, or
otherwise in connection with, the enforcement or attempted enforcement
of, or preservation or attempted preservation of any rights under, the
Finance Documents including, without limitation after the occurrence
of a Default or if otherwise agreed with the Original Borrower, the
fees and expenses of accountants or other experts incurred in relation
to any investigation into the affairs of the Original Borrower or any
other member of the Group or otherwise in respect of the moneys owing
under the Finance Documents together with interest at the rate
refereed to in clause 6.3 from the date of demand for payment of such
expenses to the date of payment (as well after as before judgment).
8.3 VALUE ADDED TAX
All amounts payable pursuant to this Agreement shall be paid together with
an amount equal to any value added tax payable in respect thereof.
8.4 STAMP AND OTHER DUTIES
The Original Borrower shall pay all stamp, documentary, registration or
other similar duties or Taxes (including any such duties or Taxes payable
by, or assessed on, the Finance Parties or any of them) imposed on or in
connection with the Finance Documents or the Facility.
8.5 INDEMNITY
The Original Borrower shall indemnify the Finance Parties against any
liability arising by reason of any delay or omission by the Original
Borrower to pay such duties or Taxes.
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9 PAYMENTS AND TAXES; ACCOUNTS AND CALCULATIONS
9.1 NO SET-OFF OR COUNTERCLAIM; DISTRIBUTION TO THE BANKS
All payments to be made by the Obligors under this Agreement shall be made
in full, without any set-off or counterclaim whatsoever and, subject as
provided in clause 9.5, free and clear of any deductions or withholdings
(except to the extent required by law) in euros (except for costs, charges
or expenses which shall be payable in the currency in which they are
incurred) on the due date to the account of the Agent at such bank in the
principal financial centre of the currency concerned or, in the case of
euros, Brussels, as the Agent may from time to time specify for this
purpose. Save where this Agreement provides for a payment to be made for
the account of the Agent (for its own account), the Arrangers, the Security
Trustee or a particular Bank, in which case the Agent shall distribute the
relevant payment to the Agent, the Arrangers, the Bank concerned or the
Security Trustee (as the case may be), payments to be made by any Obligor
under this Agreement shall be for the account of all the Banks and the
Agent shall forthwith distribute such payments in like funds as are
received by the Agent to the Banks rateably in accordance with their
Commitments or Contributions, as the case may be.
9.2 PAYMENTS BY THE BANKS
All sums to be paid by the Banks to the Borrowers under this Agreement
shall be remitted in the relevant currency on the relevant Utilisation Date
to the account of the Agent at such bank as the Agent may have notified to
the Banks and shall be paid by the Agent on such date in like funds as are
received by the Agent to the account of the relevant Borrower specified in
the relevant Utilisation Notice.
9.3 NON-BANKING DAYS
When any payment under this Agreement would otherwise be due on a day which
is not a Banking Day, the due date for payment or the date of such
reduction shall be postponed to the next following Banking Day unless such
Banking Day falls in the next calendar month in which case payment shall be
made on the immediately preceding Banking Day. If any date or day
specifically referred to in this Agreement is not a Banking Day all
references thereto shall be deemed to be to the immediately preceding
Banking Day.
9.4 AGENT MAY ASSUME RECEIPT
Where any sum is to be paid under this Agreement to the Agent for the
account of another person, the Agent may assume that the payment will be
made when due and may (but shall not be obliged to) make such sum available
to the person so entitled. If it proves to be the case that such payment
was not made to the Agent, then the person to whom such sum was so made
available shall on request refund such sum to the Agent together with
interest thereon sufficient to compensate the Agent for the cost of making
available such sum up to the date of such repayment and the person by whom
such sum was payable shall indemnify the Agent for any and all loss or
reasonable expense which the Agent may sustain or incur as a consequence of
such sum not having been paid on its due date.
9.5 GROSSING-UP FOR TAXES
Subject to clauses 9.6 and 9.7, at any time any Obligor is required to make
any deduction or withholding in respect of Taxes (other than any Tax on the
Overall Net Income of any Finance Party) from any payment due under any of
the Finance Documents for the account of any Finance Party (or if the Agent
or Security Trustee is required to make any such deduction or withholding
from a payment to an any other Finance Party), the sum due from the
relevant Obligor in respect of such payment shall, subject to the Finance
Party's compliance with clause 9.8.2, be increased to the extent necessary
to ensure that, after the making of such deduction or withholding, each
Finance Party receives on the due date for such payment (and retains, free
from any liability in respect of such deduction or withholding) a net sum
equal to the sum which it would have received had no such deduction or
withholding been required to be made and the relevant Obligor shall
indemnify each Finance Party against any losses or costs incurred by any
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of them by reason of any failure of such Obligor to make any such deduction
or withholding or by reason of any increased payment not being made on the
due date for such payment. The relevant Obligor shall promptly deliver to
the Agent any receipts, certificates or other proof evidencing the amounts
(if any) paid or payable in respect of any such deduction or withholding.
9.6 QUALIFYING BANKS
If any Finance Party is not or ceases to be a Qualifying Bank then it shall
promptly notify the Original Borrower upon becoming aware of the same and
the relevant Obligor shall not be obliged to pay such Finance Party under
clause 9.5 any amount in excess of the amount it would have been obliged to
pay if such Finance Party was or had not ceased to be a Qualifying Bank
provided that this clause 9.6 shall not apply (and the relevant Obligor
shall be obliged to comply with its obligations under clause 9.5) if after
the date of this Agreement (or, in the case of a Finance Party which became
a party to this Agreement after the date of this Agreement, the date on
which it became a party) there shall have been any change in, or in the
interpretation or application of, any relevant law, directive, treaty
(including, without limitation any applicable double taxation treaty) or
regulation or practice of any applicable taxation authority and as a result
thereof the relevant Finance Party ceases to be a Qualifying Bank or the
relevant Obligor will be required to make a deduction or withholding on
account of tax irrespective of whether the recipient of the relevant
payment is or is not a Qualifying Bank.
9.7 CLAW-BACK OF TAX BENEFIT
If following any such deduction or withholding as is referred to in clause
9.5 any Finance Party shall receive or be granted a credit against or
remission for any Taxes payable by it, such Finance Party shall, subject to
the relevant Obligor having made any increased payment in accordance with
clause 9.5 and to the extent that such Finance Party can in its absolute
discretion acting in good faith do so without prejudicing the retention of
the amount of such credit or remission and without prejudice to the right
of such Finance Party to obtain any other relief or allowance which may be
available to it, reimburse the relevant Obligor with such amount as such
Finance Party shall in its absolute discretion acting in good faith certify
to be the proportion of such credit or remission as will leave such Finance
Party (after such reimbursement) in no worse position than it would have
been in had there been no such deduction or withholding from the payment by
the relevant Obligor as aforesaid. Such reimbursement shall be made
forthwith upon such Finance Party certifying that the amount of such credit
or remission has been received by it. Nothing contained in this Agreement
shall oblige any Finance Party to rearrange its tax affairs or to disclose
any information regarding its tax affairs and computations. Without
prejudice to the generality of the foregoing, the Obligors shall not, by
virtue of this clause 9.7, be entitled to enquire about any Finance Party's
tax affairs.
9.8 CERTIFICATION TO SECURE A TAX BENEFIT
If, in order to make any payment due under this Agreement to any Finance
Party without deduction or withholding for or on account of Tax or to
secure the benefit of any reduced rate of such deduction or withholding,
any Obligor requires a direction from, or the consent, of a government or
taxing authority:
9.8.1 the Obligors agree to use their reasonable endeavours to complete
(accurately and in a manner reasonably satisfactory to such Finance
Party), execute, arrange for any required certification of, and
deliver to such Finance Party or such government or taxing authority
as such Finance Party reasonably directs, any form or document
reasonably required of it, and to provide such information that such
Finance Party or such government or taxing authority may reasonably
require or request in order to assist or enable such Finance Party to
secure that such a direction or consent is given to the relevant
Obligor in respect of any payment. Each Obligor shall perform its
obligations under this clause 9.8.1 promptly upon the earlier of:
(a) being notified that the form, document or information is required
or requested; and
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(b) demand being made by such Finance Party or the relevant
government or taxing authority, as the case may be; and
9.8.2 each Finance Party agrees to use its reasonable endeavours to
complete, execute, arrange for any required certification of, and
deliver to the relevant Obligor, or such government or taxing
authority as the Original Borrower may reasonably direct, any form or
document reasonably required of it, and to provide such information
that the Original Borrower or such government or taxing authority may
reasonably require or request in order to assist or enable the
Original Borrower to secure that such a direction or consent is given
to the relevant Obligor in respect of any payment.
9.9 BANK ACCOUNTS
Each Bank shall maintain, in accordance with its usual practices, an
account or accounts evidencing the amounts from time to time advanced by,
owing to and paid to it under this Agreement. The Agent shall maintain a
control account showing each Utilisation and other sums owing by each
Obligor under this Agreement and all payments in respect thereof made by
the Obligors from time to time. The control account shall, in the absence
of manifest or proven error, be conclusive as to the amount from time to
time owing by each Obligor under this Agreement.
9.10 PARTIAL PAYMENTS
If, on any date on which a payment is due to be made by any Obligor under
this Agreement, the amount received by the Agent from the relevant Obligor
falls short of the total amount of the payment due to be made by the
relevant Obligor on such date then, without prejudice to any rights or
remedies available to the Finance Parties under this Agreement, the Agent
shall apply the amount actually received from the relevant Obligor in or
towards discharge of the obligations of the Obligors under this Agreement
in the following order, notwithstanding any appropriation made, or
purported to be made, by the relevant Obligor:
9.10.1 firstly, in or towards payment, on a pro rata basis, of any unpaid
fees, costs and expenses of the Agent under this Agreement together
with any portion of the agency fee payable under clause 8.1.2 which
remains unpaid;
9.10.2 secondly, in or towards payment to the Arrangers of any portion of the
arrangement fee payable under clause 8.1.1 which remains unpaid;
9.10.3 thirdly, in or towards payment to the Banks, on a pro rata basis, of
any accrued commitment commission payable under clause 8.1.3 which
shall have become due but remains unpaid;
9.10.4 fourthly, in or towards payment to the Banks, on a pro rata basis, of
any accrued interest and guarantee commission under this Agreement
which shall have become due but remains unpaid;
9.10.5 fifthly, in or towards payment to the Banks, on a pro rata basis, of
any principal under this Agreement which shall have become due but
remains unpaid; and
9.10.6 sixthly, in or towards payment of any other sum which shall have
become due under this Agreement but remains unpaid (and, if more than
one such sum so remains unpaid, on a pro rata basis).
The order of application set out in this clause 9.10.3 - 9.10.6 shall be
varied by the Agent if all the Banks so direct, without any reference to,
or consent or approval from, any of the Obligors.
9.11 CALCULATIONS
All interest, commission and other payments of an annual nature under this
Agreement shall accrue from day to day and be calculated on the basis of
actual days elapsed and a 360 day year. In calculating the actual number of
days elapsed in a period which is one of a series of
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consecutive periods with no interval between them or a period on the last
day of which any payment falls to be made in respect of such period, the
first day of such period shall be included but the last day excluded.
9.12 CERTIFICATES CONCLUSIVE
Any certificate or determination of any Finance Party as to any rate of
interest or commission or any amount payable under this Agreement shall be
prima facie evidence of such amount and binding on the Obligors and (in the
case of a certificate or determination by the Agent) on the other Finance
Parties.
9.13 EFFECT OF MONETARY UNION
The provisions of this clause 9.13 apply in relation to any amount payable
in the currency of a Participating Member State provided that, if and to
the extent that any provision relates to any state (or the currency of such
state) which was not a Participating Member State on 1 January 1999, such
provision shall come into effect in relation to such state (and the
currency of such state) on and with effect from the date on which such
state becomes a Participating Member State.
9.13.1 REDENOMINATION AND ALTERNATIVE CURRENCIES
Each obligation under this Agreement of a party to this Agreement
which has been denominated in the national currency unit of a
Participating Member State shall be redenominated into the euro unit
in accordance with EMU Legislation, provided that, if and to the
extent that any EMU Legislation provides that following 1 January 1999
an amount denominated either in the euro or in the national currency
unit of a Participating Member State and payable within that
Participating Member State by crediting an account of the creditor can
be paid by the debtor either in the euro unit or in that national
currency unit, each party to this Agreement shall be entitled to pay
or repay any such amount either in the euro unit or in such national
currency unit.
9.13.2 ADVANCES
Any Advance in the currency of a Participating Member State shall be
made in the euro unit.
9.13.3 PAYMENTS TO THE AGENT
Clauses 9.1 and 9.2 shall be construed so that, in relation to the
payment of any sum denominated in the euro or in a national currency
unit, such sum shall be made available to the Agent by payment in the
euro unit or, as the case may be, such national currency unit and in
immediately available, freely transferable, cleared funds to the
accounts notified by it under clauses 9.1 and 9.2.
9.13.4 PAYMENTS BY THE AGENT TO THE FINANCE PARTIES
Any amount payable by the Agent to any other Finance Party under this
Agreement in the currency of a Participating Member State shall be
paid in the euro unit.
9.13.5 PAYMENTS BY THE AGENT
The Agent shall not be liable to the Borrowers or any of the other
Finance Parties in any way whatsoever for any delay, or the
consequences of any delay, in the crediting to any account of any
amount required by this Agreement to be paid by the Agent if the Agent
shall have taken all relevant steps to achieve, on the date required
by this Agreement, the payment of such amount in immediately
available, freely transferable, cleared funds (in the euro unit or, as
the case may be, in a national currency unit) to the account with the
bank in the principal financial centre in the Participating Member
State which the relevant Borrower or, as the case may be, Finance
Party shall have specified for such purpose. In this clause 9.13.5
"ALL RELEVANT STEPS" means all such steps as may be prescribed from
time to time by the
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regulations or operating procedures of such clearing or settlement
system as the Agent may from time to time after consultation with the
Borrowers and the other Finance Parties determine for the purpose of
clearing or settling payments of the euro.
9.13.6 ROUNDING AND OTHER CONSEQUENTIAL CHANGES
Without prejudice and in addition to any method of conversion or
rounding prescribed by any EMU Legislation and without prejudice to
the respective liabilities for Indebtedness of the Borrowers to the
Finance Parties and the Finance Parties to the Borrowers under or
pursuant to this Agreement (and after consultation with the Borrowers
and the Finance Parties):
(a) each reference in this Agreement to a minimum amount (or an
integral multiple thereof) in a national currency unit to be paid
to or by the Agent shall be replaced by a reference to such
reasonably comparable and convenient amount (or an integral
multiple thereof) in the euro unit as the Agent may from time to
time specify; and
(b) save as expressly provided in this clause 9.13.6 each provision
of this Agreement shall be subject to such reasonable changes of
construction as the Agent may from time to time specify after
consultation with the Original Borrower to be necessary or
appropriate to reflect the changeover to the euro in
Participating Member States.
9.13.7 AMENDMENTS
After consultation with the Original Borrower and the Banks for such
period as the Agent shall in good faith determine is necessary and
reasonable in all the circumstances and notwithstanding clause 19.11,
the Agent shall be entitled to make from time to time such amendments
to this Agreement as it may determine to be necessary to take account
of monetary union and any consequent changes in market practices
(whether as to the settlement or rounding of obligations, the
calculation of interest, place of payment or otherwise howsoever). Any
amendment so made to this Agreement by the Agent shall be promptly
notified to the other Finance Parties and the Original Borrower by the
Agent and shall be binding on all other Finance Parties and the
Obligors.
10 GUARANTEE
10.1 LIMITS OF GUARANTEE
Notwithstanding the provisions of clause 10.2 to 10.18 inclusive, the
following limitations shall apply to the relevant Guarantors:
Denmark
Notwithstanding anything to the contrary herein or in any other
Finance Document, the maximum amount that can be recovered from
any Guarantor incorporated in Denmark (the "Danish Guarantor")
under the Guarantee shall in no event exceed the higher of (i)
the amounts borrowed by and utilised by or recovered by way of
intercompany loan by the relevant Danish Guarantor (provided that
such amount has not been on lent or disposed of to any parent of
the Danish Guarantor which is not incorporated in Denmark); and
(ii) the aggregate at such time of the net equity of such Danish
Guarantor.
The limitation referred to in clause 10.1(i) shall apply only as
long as Danish company legislation (presently section 115)
prevents the Danish Guarantors from guaranteeing the obligations
of their non-Danish parent companies. The Danish Guarantors and
the Original Borrower undertake to execute such addenda to this
Agreement as may thereafter be required by the Agent to reflect
the inapplicability of such legislation.
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10.2 COVENANT TO PAY
In consideration of the Banks making or continuing to make Utilisations
to the Borrowers pursuant to this Agreement each Guarantor hereby
irrevocably and unconditionally but subject always to the provisions of
clause 10.1:
10.2.1 jointly and severally guarantee to each Finance Party, the due
performance by any members of the Group of all their respective
obligations under or pursuant to the Finance Documents; and
10.2.2 jointly and severally guarantee to each Finance Party the payment of
all moneys now or hereafter due, owing or incurred by any member of the
Group under or pursuant to the Finance Documents when the same become
due whether by acceleration or otherwise.
10.3 GUARANTORS AS PRINCIPAL DEBTORS; INDEMNITY
As a separate and independent stipulation, the Guarantors jointly and
severally agree that if any purported obligation or liability of any
member of the Group which would have been the subject of this Guarantee
had it been valid and enforceable is not or ceases to be valid or
enforceable against such member of the Group on any ground whatsoever
whether or not known to the Finance Parties or any of them (including,
without limitation, any irregular exercise or absence of any corporate
power or lack of authority of, or breach of duty by, any person
purporting to act on behalf of such member of the Group or any legal or
other limitation, or any disability or Incapacity or any change in the
constitution of any relevant member of the Group) the Guarantors shall
nevertheless be jointly and severally liable in respect of that
purported obligation or liability as if the same were fully valid and
enforceable and such Guarantor was the principal debtor in respect
thereof. The Guarantors hereby irrevocably and unconditionally jointly
and severally agree to indemnify and keep indemnified each Finance
Party for the benefit of the Finance Parties against any loss or
liability arising from any failure of any member of the Group to
perform or discharge any such purported obligation or liability or from
any invalidity or unenforceability of any of the same against any
member of the Group, subject to the provisions of clause 10.1.
10.4 NO SECURITY TAKEN BY GUARANTORS
The Guarantors hereby jointly and severally warrant that they have not
taken or received, and undertake that until all the Guaranteed
Liabilities have been paid or discharged in full, they will not take or
receive, the benefit of any security from any other Obligor or any
other person in respect of their obligations under this Guarantee.
10.5 INTEREST
Each Guarantor agrees to pay interest on each amount demanded of it
under this Guarantee from the date of such demand until payment (as
well after as before judgment) at the rate specified in clause 6.3,
except that no interest shall be recoverable under this clause 10.5 if
and to the extent that interest has been paid on the underlying amount
pursuant to clause 6.3 or otherwise. Such interest shall be compounded
at the end of each period determined for this purpose by the Agent in
the event of it not being paid when demanded but without prejudice to
each Finance Party's right to require payment of such interest.
10.6 CONTINUING SECURITY AND OTHER MATTERS
This Guarantee shall:
10.6.1 extend to the ultimate balance from time to time owing to the Finance
Parties by the members of the Group and shall be a continuing
guarantee, notwithstanding any settlement of account or other matter
whatsoever;
10.6.2 be in addition to any present or future Collateral Instrument, right or
remedy held by or available to the Finance Parties or any of them; and
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10.6.3 not be in any way prejudiced or affected by the existence of any such
Collateral Instrument, rights or remedies or by the same becoming
wholly or in part void, voidable or unenforceable on any ground
whatsoever or by the Finance Parties or any of them dealing with,
exchanging, varying or failing to perfect or enforce any of the same or
giving time for payment or indulgence or compounding with any other
person liable.
10.7 NEW ACCOUNTS
If this Guarantee ceases to be continuing for any reason whatsoever
each Finance Party may nevertheless continue any account of any member
of the Group or open one or more new accounts and the liability of each
Guarantor under this Guarantee shall not in any manner be reduced or
affected by any subsequent transactions or receipts or payments into or
out of any such account.
10.8 LIABILITY UNCONDITIONAL
The liability of each Guarantor shall not be affected nor shall this
Guarantee be discharged or reduced by reason of:
10.8.1 the Incapacity or any change in the name, style or constitution of any
Obligor or any other person liable; or
10.8.2 any of the Finance Parties granting any time, indulgence or concession
to, or compounding with, discharging, releasing or varying the
liability of any other Obligor or any other person liable or renewing,
determining, varying or increasing any accommodation, facility or
transaction or otherwise dealing with the same in any manner whatsoever
or concurring in, accepting or varying any compromise, arrangement or
settlement or omitting to claim or enforce payment from any Obligor or
any other person liable; or
10.8.3 any act or omission which would not have discharged or affected the
liability of such Guarantor had it been a principal debtor instead of a
Guarantor or by anything done or omitted which but for this provision
might operate to exonerate such Guarantor.
10.9 COLLATERAL INSTRUMENTS
None of the Finance Parties shall be obliged to make any claim or
demand on any member of the Group or to resort to any Collateral
Instrument or other means of payment now or hereafter held by or
available to them or it before enforcing this Guarantee and no action
taken or omitted by any of the Finance Parties in connection with any
such Collateral Instrument or other means of payment shall discharge,
reduce, prejudice or affect the liability of any Guarantor under this
Guarantee nor shall any of the Finance Parties be obliged to apply any
money or other property received or recovered in consequence of any
enforcement or realisation of any such Collateral Instrument or other
means of payment in reduction of the Guaranteed Liabilities.
10.10 WAIVER OF GUARANTOR'S RIGHTS
Until all the Guaranteed Liabilities have been paid, discharged or
satisfied in full (and notwithstanding payment of a dividend in any
liquidation or under any compromise or arrangement) each Guarantor
agrees that, without the prior written consent of the Agent, it will
not:
10.10.1 exercise its rights of subrogation, reimbursement and indemnity against
any other Obligor or any other person liable; or
10.10.2 demand or accept any security to be executed in respect of any of its
obligations under this Guarantee or any other Indebtedness now or
hereafter due to such Obligor from any other member of the Group or
from any other person liable; or
10.10.3 take any step or enforce any right against any other Obligor or any
other person liable in respect of any Guaranteed Liabilities; or
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10.10.4 exercise any right of set-off or counterclaim against any other Obligor
or any other person liable or claim or prove or vote as a creditor in
competition with any of the Finance Parties in the liquidation,
administration or other insolvency proceeding of any other Obligor or
any other person liable or have the benefit of, or share in, any
payment from or composition with, any other Obligor or any other person
liable or any other Collateral Instrument now or hereafter held by any
of the Finance Parties for any Guaranteed Liabilities or for the
obligations or liabilities of any other person liable but so that, if
so directed by the Agent, it will prove for the whole or any part of
its claim in the liquidation of any other Obligor on terms that the
benefit of such proof and of all money received by it in respect
thereof shall be held on trust for the Finance Parties and applied in
or towards discharge of the Guaranteed Liabilities in such manner as
the Agent shall deem appropriate.
10.11 SUSPENSE ACCOUNTS
Any money received in connection with this Guarantee (whether before or
after any Incapacity of any Obligor) may be placed to the credit of a
suspense account with a view to preserving the rights of the Finance
Parties to prove for the whole of their respective claims against any
Obligor or any other person liable or may be applied in or towards
satisfaction of the Guaranteed Liabilities as the Agent may from time
to time conclusively determine in its absolute discretion.
10.12 SETTLEMENTS CONDITIONAL
Any release, discharge or settlement between any Obligor and any of the
Finance Parties shall be conditional upon no security, disposition or
payment to any of the Finance Parties by any Obligor or any other
person liable being void, set aside or ordered to be refunded pursuant
to any enactment or law relating to bankruptcy, liquidation,
administration or insolvency or for any other legal reason whatsoever
and if such condition shall not be fulfilled the Finance Parties shall
be entitled to enforce this Guarantee subsequently as if such release,
discharge or settlement had not occurred and any such payment had not
been made.
10.13 GUARANTORS TO DELIVER UP CERTAIN PROPERTY
If, contrary to clauses 10.4 or 10.10, any Guarantor takes or receives
the benefit of any security or receives or recovers any money or other
property, such security, money or other property shall be held on trust
for the Finance Parties and shall be delivered to the Agent on demand.
10.14 RETENTION OF THIS GUARANTEE
The Finance Parties shall be entitled to retain this Guarantee after as
well as before the payment or discharge of all the Guaranteed
Liabilities for such period as the Agent may reasonably determine but
the Finance Parties shall deliver this Guarantee to each Guarantor in
any event upon the Guaranteed Liabilities being paid or discharged in
full and the Finance Parties being satisfied that no such avoidance,
setting aside or order such as is referred to in clause 10.11 is likely
to occur or be made.
10.15 CHANGES IN CONSTITUTION OR REORGANISATIONS OF THE FINANCE PARTIES
For the avoidance of doubt and without prejudice to the provisions of
clause 18, this Guarantee shall remain binding on each Guarantor
notwithstanding any change in the constitution of the Finance Parties
or any of them or their or its absorption in, or amalgamation with, or
the acquisition of all or part of their or its undertaking or assets
by, any other person, or any reconstruction or reorganisation of any
kind, to the intent that this Guarantee shall remain valid and
effective in all respects in favour of any successor in title of the
Finance Parties, any Transferee and any successor Agent appointed
pursuant to clause 19.13 or any successor Security Trustee appointed
pursuant to the terms of the Security Trust Deed in the same manner as
if such successor in title, Transferee or successor Agent or successor
Security Trustee had been named in this guarantee as a party instead
of, or in addition to, the relevant Finance Party.
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10.16 OTHER GUARANTORS
Each Guarantor agrees to be bound by this Guarantee notwithstanding
that any other person intended to execute or to be bound by any other
guarantee or assurance under or pursuant to this Agreement may not do
so or may not be effectually bound and notwithstanding that such other
guarantee or assurance may be determined or be or become invalid or
unenforceable against any other person, whether or not the deficiency
is known to the Finance Parties or any of them.
10.17 DANISH GUARANTORS
The Original Borrower shall establish and maintain records for the
purpose of recording the total actual or contingent liability of each
of the Danish Guarantors. Each member of the Group, the Security
Trustee, its advisers and the Danish Guarantors shall have the right at
any time to upon giving reasonable notice to the Original Borrower to
inspect the books and records of the Original Borrower in order to
monitor the Original Borrower's adherence to its obligations hereunder.
10.18 ACCEDING GUARANTORS
10.18.1 The Original Borrower shall procure that each Material Subsidiary of
the Original Borrower (other than the Original Guarantors) becomes an
Acceding Guarantor either:
(a) in the case of a person which is a member of the Group on the
date of this Agreement within 15 days of it becoming a Material
Subsidiary; or
(b) in the case of a person which becomes a Subsidiary of the
Original Borrower after the date of this Agreement in the event
that such Subsidiary is a Material Subsidiary within 15 days of
that person becoming a Subsidiary of the Original Borrower,
in each case by delivering to the Agent a Deed of Guarantor Accession,
duly executed by such Subsidiary and the Original Borrower.
10.18.2 The Original Borrower shall procure that within 60 days of the last day
of each Three Month Period ending on a Quarter Day commencing with the
Three Month Period ended 31 March 2001 (or within 45 days of the last
day of each Three Month Period ending on a Quarter Day commencing with
the Three Month Period ended 30 September 2001), each member of the
Group which is not a Guarantor and which has at any time received cash
(or its equivalent) and/or property, plant and equipment from any other
member of the Group and/or in respect of whose liabilities another
member of the Group has at any time issued a guarantee such that the
aggregate of (i) the principal amount of all such cash (or its
equivalent) which has not been repaid, (ii) the book value of all such
property plant and equipment and (iii) the maximum amount so guaranteed
is in excess of $10,000,000, shall become an Acceding Guarantor by
delivering to the Agent a Deed of Guarantor Accession, duly executed by
such Subsidiary and the Original Borrower.
10.18.3 The Original Borrower shall procure that within 60 days of each Quarter
Day commencing with 31 March 2001 (or within 45 days of each Quarter
Day commencing with 30 September 2001), in the event that the Group
(other than the Obligors) at any time received cash (or its equivalent)
and/or property, plant and equipment from the Obligors (taken as a
whole) and/or in respect of whose liabilities the Obligors (taken as a
whole) have at any time issued guarantees such that the aggregate of
(i) the principal amount of all such cash (or its equivalent) which has
not been repaid, (ii) the book value of all such property, plant and
equipment and (iii) the maximum amount so guaranteed, is in excess of
euro 50,000,000, one or more Subsidiaries of the Original Borrower
which are not already Guarantors and which have received all or part of
the cash (or its equivalent) and/or property, plant and equipment
and/or benefit of a guarantee referred to herein, shall to the extent
necessary to ensure that the aggregate of (i) the principal amount of
all such cash (or its equivalent) which has not been repaid, (ii) the
book value of all such property, plant and equipment and (iii) the
maximum amount so guaranteed is in respect of members of the Group
which are not
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Guarantors does not exceed euro 50,000,000, become an Acceding
Guarantor by delivering to the Agent a Deed of Guarantor Accession,
duly executed by such Subsidiary or Subsidiaries and the Original
Borrower.
10.18.4 The Original Borrower shall procure that, at the same time as a Deed of
Guarantor Accession is delivered to the Agent, there is delivered to
the Agent all the applicable documents and evidence listed in part B of
schedule 3, in respect of the relevant Subsidiary and the Original
Borrower, in each case in form and substance satisfactory to the Agent,
acting reasonably.
10.18.5 Delivery of a Deed of Guarantor Accession duly executed by an Acceding
Guarantor and the Original Borrower constitutes confirmation by the
relevant Acceding Guarantor and the Original Borrower that the
representations and warranties set out in clause 11.1 and to be made by
them on the date of the Deed of Guarantor Accession in accordance with
clause 11.4 are correct, as if made by it with reference to the facts
and circumstances then existing.
10.18.6 Each Acceding Guarantor, before entering into a Deed of Guarantor
Accession, shall comply with all relevant legislation in its Relevant
Jurisdiction(s), to the satisfaction of the Security Trustee, to ensure
that its giving of, and performance under, the Guarantee is in
compliance with all relevant provisions of such legislation and to
ensure that its giving of, and performance under, the Guarantee is
legal, valid and binding on such Acceding Guarantor subject to any
general principles of law limiting its obligations which are
specifically referred to in clause 10.1 hereof and in any legal opinion
delivered pursuant to part A of schedule 3 in relation to the
Guarantee.
10.18.7 Each Finance Party irrevocably authorises the Security Trustee to
countersign each Deed of Guarantor Accession on its behalf without any
further consent of, or consultation with, any of the Finance Parties.
10.18.8 On receipt by the Security Trustee of a Deed of Guarantor Accession
duly executed by the Original Borrower and the Acceding Guarantor,
together with the documents and evidence listed in part B of schedule 3
applicable to such Acceding Guarantor and the Original Borrower in form
and substance satisfactory to the Agent, such Acceding Guarantor shall
become a Guarantor.
11 REPRESENTATIONS AND WARRANTIES
11.1 REPEATED REPRESENTATIONS AND WARRANTIES
Each Obligor (other than the Immediate Shareholder) in respect of
itself and its Subsidiaries, the Immediate Shareholder (in respect of
itself only) and, as the case may be, the Ultimate Shareholder (in
respect of itself only) represents and warrants to each of the Finance
Parties that:
11.1.1 DUE INCORPORATION
the Ultimate Shareholder, all the Obligors and the members of the Group
are duly incorporated or formed and validly existing under the laws of
their respective places of incorporation or formation and have power to
carry on their respective businesses as they are now being conducted
and to own their respective property and other assets;
11.1.2 CORPORATE POWER
it has power to execute, deliver and perform its obligations under the
Finance Documents to which it is party and, in the case of the
Borrowers, to borrow under this Agreement; all necessary corporate,
shareholder and other action has been, or in the case of clause 3.6
will be, taken to authorise the execution, delivery and performance of
the same and no limitation on its powers to borrow or on its powers to
give guarantees will be exceeded as a result of utilisation of the
Facility or as a result of the giving of the Guarantee;
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11.1.3 BINDING OBLIGATIONS
the Finance Documents to which it is a party, when executed and
delivered by the relevant Obligor, will, subject to any general
principles of law limiting its obligations which are specifically
referred to in clause 10.1 hereof and in any legal opinion delivered
pursuant to part A of schedule 3 in relation to the relevant Finance
Document, with the exception of the Licence Securities, constitute
valid and legally binding obligations of such Obligor enforceable in
accordance with their respective terms;
11.1.4 NO CONFLICT WITH OTHER OBLIGATIONS
the execution and delivery of, the performance of its obligations
under, and compliance with the provisions of, the Finance Documents to
which it is party will not (i) contravene in any material respect any
existing applicable law, statute, rule or regulation generally
applicable to transactions of this type or any judgment, decree or
permit to which such Obligor is subject and aware of, (ii) conflict
with in any material respect, or result in any material breach of any
of the terms of, or constitute a material default under, any material
agreement or other instrument to which such Obligor is a party or is
subject or by which it or any of its property is bound, (iii)
contravene or conflict with any provision of such Obligor's
constitutive documents (iv) breach in any respect any term of the
Licences, (iv) breach in any material respect any term of the Necessary
Authorisations or (v) save for the Encumbrances granted to the Security
Trustee pursuant to the Security Documents, result in the creation or
imposition of or oblige any member of the Group to create any
Encumbrance (other than a Permitted Encumbrance) on any member of the
Group's undertakings, assets, rights or revenues;
11.1.5 NO FILINGS REQUIRED
it is not necessary to ensure the legality, validity, enforceability or
admissibility in evidence of any Finance Document, that it or any other
instrument be notarised, filed, recorded, registered or enrolled in any
court, public office or elsewhere in any Relevant Jurisdiction or that
any stamp, registration or similar tax or charge be paid in any
Relevant Jurisdiction on or in relation to any of the Finance Documents
(or, if it is necessary to take such actions or make such payment, it
has been done or will be done within the applicable time period for
such action or payment or, if no such time period is specified, as soon
as is practical) and the Finance Documents are in proper form for their
enforcement in the courts of any Relevant Jurisdiction;
11.1.6 NO LITIGATION
save as disclosed in schedule 10 and in the Immediate Shareholder's
10-K for the year ending 31st December 1999 or in writing to Agent, no
litigation, arbitration or administrative proceeding is to the
knowledge of such Obligor taking place, pending or threatened against
any member of the Group which would reasonably be likely to have a
Material Adverse Effect;
11.1.7 FINANCIAL STATEMENTS CORRECT AND COMPLETE
(a) the audited consolidated financial statements of the Immediate
Shareholder Group, in respect of the financial year ended on 31
December 1999 as delivered to the Agent have been prepared in
accordance with GAAP which principles have been consistently
applied and present fairly and accurately the financial position
of each of the Immediate Shareholder Group as at such date and
the consolidated results of the operations of each of the
Immediate Shareholder Group for the financial year ended on such
date and, as at such date, no member of the Immediate Shareholder
Group had any material liabilities (contingent or otherwise) or
any losses which are not disclosed by, or reserved against or
provided for in, such financial statements; and
(b) the unaudited Quarterly Management Accounts for each of the
Immediate Shareholder Group and the Group in respect of the Three
Month Period ended 31 March 2000 as delivered to the Agent have
been prepared in accordance with GAAP whose principles
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have been consistently applied and present fairly and accurately
the results of operations of each of the Immediate Shareholder
Group and the Group for such Three Month Period as at such date;
11.1.8 NO MATERIAL ADVERSE CHANGE
there has been no material adverse change in the consolidated financial
position of the Immediate Shareholder Group, from that set forth in the
financial statements referred to in clause 11.1.7(a);
11.1.9 TITLE TO ASSETS
each member of the Group is the legal and/or beneficial owner of and
has valid title to or valid leases or licences of all its material
assets free and clear of any Encumbrance (other than Permitted
Encumbrances) in respect of the interest of such member of the Group in
such assets;
11.1.10 INTELLECTUAL PROPERTY RIGHTS
(a) the material Intellectual Property Rights owned by or licensed to
each member of the Group are free from (i) any Encumbrance (save
for Permitted Encumbrances) and (ii) any other rights or
interests in favour of third parties which, in either case,
relate to the interest of such member of the Group in such
Intellectual Property Rights;
(b) the Intellectual Property Rights owned by or licensed to each
member of the Group are all the Intellectual Property Rights
required by them in order to carry on, maintain and operate in
all material respects their respective businesses, properties and
assets and no member of the Group in carrying on its business
infringes any Intellectual Property Rights of any third party in
any material respect; and
(c) no Intellectual Property Rights owned by any member of the Group
are being infringed, nor is there any threatened infringement of
any such Intellectual Property Rights which, in either case,
would reasonably be likely to have a Material Adverse Effect;
11.1.11 PARI PASSU
the obligations of the Obligors under this Agreement rank at least pari
passu with all other present and future unsecured and unsubordinated
Indebtedness of the Obligors other than any obligations which are
mandatorily preferred by law and not by contract;
11.1.12 GUARANTOR COMPANIES
(a) each Subsidiary of the Original Borrower that on the last day of
the most recently ended Three Month Period ending on a Quarter
Day in respect of which Quarterly Management Accounts have been
delivered to the Agent under this Agreement, was a Material
Subsidiary, is a Guarantor; and
(b) each member of the Group which has received cash (or its
equivalent) and/or property, plant and equipment from any other
member of the Group and/or in respect of whose liabilities
another member of the Group has issued a guarantee and which the
Original Borrower is obliged to procure becomes a Guarantor
pursuant to clause 10.18 has become a Guarantor.
11.2 FURTHER REPRESENTATIONS AND WARRANTIES
Each Obligor (other than the Immediate Shareholder) in respect of
itself and its Subsidiaries, the Immediate Shareholder (in respect of
itself only) and, as the case may be, the Ultimate Shareholder (in
respect of itself only) further represents and warrants to each of the
Finance Parties that:
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11.2.1 PRINCIPAL AGREEMENTS
the Principal Agreements which have been entered into on or prior to
the date of this Agreement are in full force and effect and there is no
existing, pending or to the knowledge of such Obligor or threatened
termination, suspension, revocation or cancellation thereof;
11.2.2 CONSENTS OBTAINED
every consent, authorisation, licence or approval of, or registration
with or declaration to, governmental or public bodies or authorities of
courts (other than the Licences and the Necessary Authorisations and
the consents referred to in clause 3.6 and except in the case of any
such matters required in relation to the Security Documents which will
be effected within the applicable time period for so doing) required by
the Ultimate Shareholder or such Obligor (as the case may be) to
authorise, or required by the Ultimate Shareholder or such Obligor (as
the case may be) in connection with, the execution, delivery, validity,
enforceability or admissibility in evidence of the Finance Documents or
the performance by the Ultimate Shareholder or such Obligor (as the
case may be) of its obligations under the Finance Documents has been
obtained or made and is in full force and effect and there has been no
material default in the observance of the conditions or restrictions
(if any) imposed in, or in connection with, any of the same except any
such consent, authorisation, licence, approval, registration or
declaration in connection with the exercise of remedies and rights
under the Security Documents which seek to take security over the
Necessary Authorisations and Licences;
11.2.3 NO DEFAULT
no Default has occurred which is continuing;
11.2.4 NO WITHHOLDING TAXES
no Taxes are imposed by withholding or otherwise on any payment to be
made to any Finance Party by any Obligor under any of the Finance
Documents, or are imposed on or by virtue of the execution or delivery
by any Obligor of this any of the Finance Documents or any document or
instrument to be executed or delivered under any of the Finance
Documents;
11.2.5 LICENCES
save as set out in schedule 10, the Licences are in full force and
effect and each member of the Group is in compliance in all material
respects with all provisions thereof. To the best of its knowledge and
belief, none of the Licences are the subject of any actual, pending or
threatened attack or revocation save as set out in schedule 10;
11.2.6 NECESSARY AUTHORISATIONS
subject to the provisions of clause 3.6, each member of the Group has
obtained all material Necessary Authorisations, all such Necessary
Authorisations are in full force and effect and each member of the
Group is in compliance in all material respects with all provisions
thereof. To the best of its knowledge and belief, none of the Necessary
Authorisations are the subject of any actual, pending or threatened
attack or revocation that would reasonably be likely to have a Material
Adverse Effect;
11.2.7 TELECOMMUNICATIONS AND CABLE LAWS
each member of the Group is in compliance in all material respects with
all Telecommunications and Cable Laws;
11.2.8 SHARES
all shares issued by each member of the Group have been validly issued;
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11.2.9 ENVIRONMENTAL MATTERS
(a) each member of the Group is in compliance, in all respects, with
all requirements of Environmental Laws except where failure to do
so would not reasonably be likely to have a Material Adverse
Effect;
(b) no Environmental Claim is, to the knowledge of any member of the
Group, pending, threatened or existing, as at the date of this
Agreement, which would reasonably be likely to have a Material
Adverse Effect; and
(c) each member of the Group has obtained and maintains in full force
and effect all Environmental Licences, and there are no facts and
circumstances entitling any such Environmental Licences to be
revoked, suspended, amended, varied, withdrawn or not renewed
where such revocation, suspension, amendment, variation,
withdrawal or non-renewal, would reasonably be likely to have a
Material Adverse Effect; and
11.2.10 COPYRIGHT MATTERS
no Obligor has any knowledge, nor is aware of any claim, that any
member of the Group is or may be liable to any person for any copyright
infringement of any nature whatsoever as a result of the operation of
its business which liability would reasonably be likely to have a
Material Adverse Effect.
11.2.11 CHOICE OF LAW
the choice by the Obligors of English law to govern this Agreement and
the submission by the Obligors to the non-exclusive jurisdiction of the
High Court of Justice in England are valid and binding subject to any
general principles regarding choice of law which are specifically
referred to in any legal opinion delivered pursuant to part A of
schedule 3 in relation to this Agreement;
11.2.12 TRANSFER AGREEMENTS AND CUSTOMER CONTRACT AGREEMENT
(a) all notice, consents and novation requirements required in order
to validly assign or novate to (i) GTS Network all contracts
referred to in the Transfer Agreements and (ii) to GTS Ireland
all contracts in existence at the date hereof which were referred
to in the Customer Contract Assignment, have been obtained and
fulfilled; and
(b) the Immediate Shareholder's interest in all assets referred to in
the Transfer Agreements has been validly leased or otherwise
transferred to GTS Network; and
11.2.13 SECURITY DOCUMENTS
(a) each Obligor (other than the Immediate Shareholder) which is
entitled to receive third party receivables (including without
limitation, payments from customers), equal to or in excess of
$5,000,000 has entered into, or will prior to the first
Utilisation in accordance with the requirements of clause 3.1,
enter into an Irish Debenture or a Pledge over Group Accounts and
a Pledge over Third Party Receivables;
(b) each Obligor (other than the Immediate Shareholder) which has
made any intercompany loan to any member of the Group has entered
into, or will prior to the first Utilisation in accordance with
the requirements of clause 3.1, enter into an Irish Debenture or
a Pledge over Group Accounts and a Pledge over Intercompany
Receivables; and
(c) (i) each Obligor (other than the Immediate Shareholder) which
owns any property, plant and equipment which has a net book value
equal to or in excess of $7,500,000 has entered into, or will
prior to the first Utilisation in accordance with the
requirements of clause 3.1, enter into a PPE Security and (ii)
each Obligor which owns property, plant and equipment in
aggregate equal to or in excess of $25,000,000 has entered into a
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PPE Security in respect of each individual item of plant,
property and equipment which has a net book value equal to or in
excess of $2,500,000.
11.3 REPETITION
The representations and warranties in clause 11.1, (so that (a) the
representation and warranty in clause 11.1.7(a) shall for this purpose
refer to the then latest audited consolidated financial statements of
the Immediate Shareholder Group and, commencing with the financial year
ending 31 December 2000, the Group, delivered to the Agent under clause
12.1, (b) the representation and warranty in clause 11.1.7(b) shall for
this purpose refer to the then latest Quarterly Management Accounts of
the Immediate Shareholder Group and the Group delivered to the Agent
under clause 12.1, and (c) the representation and warranty in clause
11.1.8 shall for this purpose refer to the latest audited financial
statements of the Immediate Shareholder Group and, commencing with the
financial year ending 31 December 2000, the Group, delivered to the
Agent under clause 12.1) shall be deemed to be repeated by the Obligors
and the Ultimate Shareholder on and as of each Utilisation Date and the
last day of each Interest Period as if made with reference to the facts
and circumstances existing on each such day.
11.4 ACCEDING GUARANTORS AND ACCEDING BORROWERS
In the case of a Subsidiary of the Original Borrower which becomes a
party to this Agreement after the date of this Agreement, the
representations and warranties in clauses 11.1 to 11.1.5 (inclusive),
11.1.9, 11.1.10, 11.1.11, 11.2.2, 11.2.3 and 11.2.4 shall be deemed to
be repeated by the Original Borrower and that Obligor on the date that
such Obligor executes a Deed of Guarantor Accession, a Belgian Deed of
Guarantor Accession or a Deed of Borrower Accession (as the case may
be) as if made with reference to the facts and circumstances existing
on such date.
12 UNDERTAKINGS
12.1 POSITIVE COVENANTS
Each Obligor, in respect of itself and its Subsidiaries, undertakes
with each of the Finance Parties that, from the date of this Agreement
and so long as any moneys are owing under this Agreement (actually or
contingently) or remain available for utilisation by the Borrowers, it
will:
12.1.1 NOTICE OF DEFAULT, AND OTHER EVENTS
procure that the Agent is promptly informed of (in the case of (a) to
(e) inclusive) or provided with a copy of (in the case of (f) to (i)
inclusive):
(a) any Default forthwith upon becoming aware thereof and will from
time to time, if so requested by the Agent, confirm to the Agent
in writing that, save as otherwise stated in such confirmation,
no Default has occurred and is continuing;
(b) any lapse, suspension or termination of, or refusal by any person
to renew or extend, any Licence or any material breach of any
Licence;
(c) (to the extent known to any member of the Group) the commencement
of all proceedings and investigations by or before any
governmental body and all actions and proceedings in any court or
before any arbitrator where any such proceedings, investigations
or actions would be reasonably likely to have a Material Adverse
Effect;
(d) any material breach of any Telecommunications and Cable Laws by
any member of the Group;
(e) any material litigation, arbitration or administrative
proceedings being commenced (or threatened) against any member of
the Group;
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(f) any material breach, or threatened breach or repudiation, of any
Principal Agreement by any party thereto;
(g) each agreement entered into by way of replacement of a Principal
Agreement after the date of this Agreement;
(h) any material report, notice or other communication relating to
the Principal Agreements or the Licences (other than any such
report, notice or communication the disclosure of which would
breach a confidentiality undertaking or lead to loss of attorney
client privilege);
(i) copies of such financial and other reports and documents relating
to any member of the Group and their respective affairs as the
Agent or any Bank (acting through the Agent) may from time to
time reasonably require (other than any such report, notice or
communication the disclosure of which would breach a
confidentiality undertaking or lead to loss of attorney client
privilege);
12.1.2 CONSENTS AND LICENCES
without prejudice to clauses 3 and 11.1, obtain or cause to be
obtained, maintain in full force and effect and comply in all material
respects with the conditions and restrictions (if any) imposed in, or
in connection with, every consent, authorisation, licence or approval
of governmental or public bodies or authorities or courts (other than
Licences, Necessary Authorisations and the consents referred to in
clause 3.6) required by any Obligor and/or the Immediate Shareholder to
execute and deliver the Finance Documents and do, or cause to be done,
all other acts and things which may from time to time be necessary or
desirable under applicable law for the continued due performance of all
the obligations of the Obligors and the Immediate Shareholder under the
Finance Documents;
12.1.3 USE OF PROCEEDS
use the proceeds of Utilisations exclusively for the purposes specified
in clause 1.1;
12.1.4 PARI PASSU
ensure that its obligations under this Agreement shall, without
prejudice to the provisions of clause 12.2 or the security intended to
be created pursuant to the Security Documents, at all times rank at
least pari passu with all its other present and future unsecured and
unsubordinated Indebtedness with the exception of any obligations which
are mandatorily preferred by law and not by contract;
12.1.5 GROUP BUSINESS
(in the case of each member of the Group) engage in the Group Business
and in no other activities;
12.1.6 FINANCIAL STATEMENTS
(in the case of the Original Borrower) procure the preparation of
annual audited:
(a) consolidated financial statements of the Immediate Shareholder
Group; and
(b) commencing with the financial year ending 31 December 2000,
consolidated financial statements of the Group;
each in accordance with GAAP and cause such financial statements to be
reported on by its auditors and deliver to the Agent sufficient copies
of the same for distribution to all of the Banks as soon as practicable
but not later than 120 days after the end of the financial year to
which they relate; and
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12.1.7 QUARTERLY MANAGEMENT ACCOUNTS
(in the case of the Original Borrower) procure in respect of each month
commencing with the month ending 31 March 2001, the preparation of
unaudited Quarterly Management Accounts in respect of the Three Month
Period ending on the last day of such month for each of the Immediate
Shareholder Group and the Group (in the case of the Group showing the
Golden Telecom Group and the Central European Group separately) and
deliver sufficient copies of the same to the Agent for distribution to
all of the Banks as soon as practicable but not later than 45 days, in
respect of the Three Month Period ending 31 March 2001, or 30 days,
otherwise, after the end of the Three Month Period to which they
relate;
12.1.8 CHANGE IN BASIS OF ACCOUNTS
(in the case of the Original Borrower) ensure that all annual
statements delivered under clause 12.1.6 are prepared in accordance
with the accounting principles and practices used in the preparation of
the financial statements referred to in clause 11.1.7(a) (the "ORIGINAL
BASIS") consistently applied in respect of each financial year unless
to do so would be inconsistent with the then current GAAP (the "NEW
BASIS"). If the preparation of annual financial statements on the
Original Basis is contrary to the New Basis then the Original Borrower
shall promptly notify the Agent in writing of the relevant change and
prepare and deliver to the Agent audited annual financial statements on
the New Basis, in the opinion of the Agent, acting reasonably, such
adjustments would affect the calculation of any amount used to
determine compliance or otherwise with the covenants contained in
clause 13.1 and/or the margin pursuant to clause 6.2 then, at its
option, the Original Borrower shall either (i) deliver to the Agent
with the relevant audited financial statements an unaudited
reconciliation statement prepared by the Original Borrower (a
"RECONCILIATION STATEMENT") showing those adjustments necessary in
order to reconcile the financial statements produced on the New Basis
to the Original Basis or (ii) request the Agent to enter into good
faith negotiations for such amendments (if any) as are necessary to the
covenants contained in clause 13.1 and/or the provisions of clauses 4.1
and 6.2 and any other provisions of this Agreement affected by such
change, in which event the Agent will enter into such negotiations for
a period of not more than 28 days. If agreement is reached between the
Original Borrower and the Agent (acting on the instructions of the
Majority Banks) within such period as to the amendment of any such
covenants or provisions, then the parties hereto will enter into such
documentation and take such other steps as are required to put such
amendments into effect following which the Original Borrower shall then
be obliged to procure the preparation and delivery to the Agent of
audited financial statements on the New Basis only. If no such
agreement is reached then the Original Borrower shall be obliged to
procure the preparation and delivery to the Agent of audited financial
statements on the New Basis accompanied by, if required, a
Reconciliation Statement.
The Original Borrower shall ensure that Quarterly Management Accounts
are prepared on the basis of the same accounting principles and
practices as used in the audited consolidated financial statements,
save as contemplated in the agreed forms of Quarterly Management
Accounts. Accordingly, where the Original Borrower is under an
obligation to deliver financial statements under clause 12.1.6 on the
New Basis but accompanied, if applicable, by a Reconciliation
Statement, Quarterly Management Accounts shall also be delivered on the
New Basis but accompanied, if applicable, by a Reconciliation
Statement.
All annual financial statements, Quarterly Management Accounts and
Reconciliation Statements delivered pursuant to this clause 12.1.8
shall be delivered within the relevant time period set out in clause
12.1.6 or 12.1.7.
If any financial information is produced on the New Basis, but
accompanied by a Reconciliation Statement for the purposes of this
Agreement all calculations made under this Agreement by reference to
such financial information shall be determined on the New Basis as
amended by the Reconciliation Statement;
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12.1.9 DELIVERY OF REPORTS
deliver to the Agent sufficient copies for distribution to all of the
Banks of each of the following documents, in each case promptly
following issue thereof or (in the case of the Compliance Certificates
and Accountants Reports referred to in (b) below) within the same
period that the Quarterly Management Accounts or annual audited
financial statements in respect of the financial period to which such
Compliance Certificate or Accountants Report (as the case may be)
relates are required to be delivered under clause 12.1.6 or clause
12.1.7 respectively:
(a) every material document issued by any member of the Ultimate
Shareholder Group to the holders of their publicly traded debt;
(b) (in the case of the Original Borrower only) an Accountants Report
from the auditors of the Immediate Shareholder Group in respect
of each financial year and a Compliance Certificate from an
Authorised Officer of the Original Borrower in respect of each
month commencing with the month ending 31 March 2001;
(c) an Annual Budget for each financial year for each of the Group
and the Group no later than the last day of February in such
financial year; and
(d) every document or announcement issued by the Ultimate Shareholder
to its shareholders generally or made available by the Ultimate
Shareholder to the public where any such document or announcement
relates to the financial position or prospects of the Ultimate
Shareholder (including, without limitation, reports on forms 10-Q
and 10-K as and when delivered to the United States Securities
and Exchange Commission);
12.1.10 FINANCIAL YEAR END
maintain a financial year end of 31 December for each member of the
Immediate Shareholder Group save with the prior written consent of the
Majority Banks;
12.1.11 AUTHORISED OFFICERS
ensure that any new or replacement Authorised Officer has provided the
Agent with evidence satisfactory to it of his authority and a specimen
of his or her signature(s) prior to his signing any Compliance
Certificates, Utilisation Notices, or any other notices, requests or
confirmations referred to in this Agreement or relating to the
Facility;
12.1.12 AUDITORS
ensure that, at all times, Ernst & Young is appointed as auditor of
each member of the Immediate Shareholder Group and not change such
appointment without appointing a major accounting firm of recognised
international standing and repute;
12.1.13 INSURANCE
(i) insure and keep insured, and will procure that each of its
Subsidiaries insures and keeps insured, all its properties and assets,
(ii) maintain, and procure that each of its Subsidiaries maintains,
business interruption insurance and (iii) maintain, and procure that
each of its Subsidiaries maintains, third party liability insurance, in
each case with underwriters or insurance companies of repute to such
extent and against such risks as prudent companies, engaged in
businesses similar to those of the Group, normally insure and produce
to the Agent on request copies of all insurance policies from time to
time effected by it and each of its Subsidiaries together with evidence
of the payment of all premiums then due under such policies;
12.1.14 INSPECTION
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if required by the Agent (acting on the instructions of the Majority
Banks), at any time whilst a Default is continuing, permit, to the
extent it is able to do so, representatives of the Agent upon
reasonable prior written notice to (i) visit and inspect the properties
of any member of the Group during normal business hours, (ii) inspect
and make extracts from and copies of its books and records other than
records which the relevant member of the Group is prohibited by law
from disclosing to the Agent and/or any relevant Bank and (iii) discuss
with its principal officers and auditors its business, assets,
liabilities, financial position, results of operations and business
prospects;
12.1.15 COMPLIANCE WITH LAWS AND REGULATIONS
(i) comply and procure that its Subsidiaries comply in all material
respects with the terms and conditions of all Licences and
Telecommunications and Cable Laws applicable to it or any of its
Subsidiaries, and (ii) comply and procure that its Subsidiaries comply
in all respects with all other laws, regulations agreements, licences
and concessions (including the Necessary Authorisations, the
Environmental Licences and Environmental Laws) applicable to it or any
of its Subsidiaries except where non-compliance would not reasonably be
likely to have a Material Adverse Effect;
12.1.16 TAXES
file or cause to be filed all tax returns required to be filed in all
jurisdictions in which it or any of its Subsidiaries is situated or
carries on business or is otherwise subject to Taxation and will pay or
cause to be paid all Taxes shown to be due and payable on such returns
or any assessments made against it or any of its Subsidiaries within
the period stipulated for such payment save for those being contested
in good faith by appropriate proceedings in circumstances where the
relevant member of the Group can lawfully withhold payment and as to
which adequate reserves are being maintained by the Group;
12.1.17 LICENCES
(a) obtain or cause to be obtained in the name of any Obligor other
than the Immediate Shareholder (unless such Licence is required
for the business of the Central European Group and the Central
European Group is part of the Group, in which event it may be
obtained in the name of a member of the Central European Group),
every Licence for which application is made after the date of
this Agreement (other than in respect of the Golden Telecom
Group);
(b) (i) ensure that none of the Licences held by any member of the
Group (other than the Golden Telecom Group) are revoked,
cancelled, suspended, withdrawn, terminated or expire and are not
renewed or otherwise cease to be in full force and effect without
a new one being put in place with an Obligor (or, if the original
Licence was held by a member of the Central European Group and
the Central European Group is part of the Group, a member of the
Central European Group) on substantially identical terms or on
terms that are not materially less beneficial to the Group unless
such Licence is no longer required under all applicable laws; and
(ii) ensure that none of the Licences (other than the Licences of
the Golden Telecom Group) are modified in any material respect
(other than modification to the same on terms that are not
materially less beneficial to the Group or required by the
relevant governmental or public body or authority or court in the
relevant jurisdiction) and that no member of the Group (other
than the Golden Telecom Group) commits any material default in
the observance of the conditions or restrictions (if any) imposed
in, or in connection with, any of the same unless such default is
in respect of a matter which the relevant member of the Group is
disputing in good faith by appropriate proceedings and as to
which adequate reserves are being maintained by the Group and
pending resolution of such dispute the Group can continue to
operate under the relevant Licence;
(c) (in the case of the Original Borrower), procure that following
the issue of a new Licence to an Obligor other than GTS Network
or GTS Ireland, such Obligor which has obtained a Licence in its
name, shall to the fullest extent permitted by applicable law
enter into a
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Licence Security in form and substance satisfactory to the Agent,
acting reasonably and provide the Agent with such other documents
as it may reasonably require as to the power and authority of the
Obligor to enter into such Licence Security;
12.1.18 NECESSARY AUTHORISATIONS
(a) obtain or cause to be obtained in the name of any Obligor other
than the Immediate Shareholder (unless such Necessary
Authorisation is required for the business of the Central
European Group and the Central European Group is part of the
Group, in which event it may be obtained in the name of a member
of the Central European Group), every Necessary Authorisation for
which application is made after the date of this Agreement (other
than in respect of the Golden Telecom Group);
(b) (i) ensure that none of the Necessary Authorisations held by any
member of the Group (other than the Golden Telecom Group) are
revoked, cancelled, suspended, withdrawn, terminated or expire
and are not renewed or otherwise cease to be in full force and
effect without a new one being put in place with an Obligor (or,
if the original Necessary Authorisation was held by a member of
the Central European Group and the Central European Group is part
of the Group, a member of the Central European Group) on
substantially identical terms or on terms that are not materially
less beneficial to the Group unless such Necessary Authorisations
is no longer required under all applicable laws and (ii) ensure
that none of the Necessary Authorisations (other than the
Necessary Authorisations of the Golden Telecom Group) are
modified in any respect (other than modification to the same on
terms that are not materially less beneficial to the Group or
required by the relevant governmental or public body or authority
or court in the relevant jurisdiction) and that no member of the
Group (other than the Necessary Authorisations of the Golden
Telecom Group) commits any default in the observance of the
conditions or restrictions (if any imposed) in, or in connection
with, any of the same if, in the case of any of the matters set
out in paragraphs (i) and (ii) above such matter would be
reasonably likely to have a Material Adverse Effect;
12.1.19 SUBORDINATION OF SHAREHOLDER FUNDING
(in the case of the Original Borrower) procure that prior to any
Relevant Person (other than the Immediate Shareholder) making any
Borrowed Money available to any member of the Group, such Relevant
Person shall enter into a Subordination Deed, an Assignment of
Shareholder Loans and a Security Provider's Deed of Accession and
provide the Agent with such documents and evidence as it may reasonably
require as to the power and authority of the Relevant Person to enter
into such Subordination Deed, Assignment of Shareholder Loans and
Security Provider's Deed of Accession and that the same constitute
valid and legally binding obligations of such Relevant Person
enforceable in accordance with its terms subject to any qualifications
set out in the legal opinions referred to in part A of schedule 3 which
are applicable to the relevant Security Document;
12.1.20 OBLIGOR GROUP
that at all times each of the total assets, revenues and Net Operating
Cash Flow of the Obligors which are members of the Group (taken
together) is not less than 90 per cent. of the consolidated total
assets, consolidated revenues and Consolidated Net Operating Cash Flow
respectively of the Group (other than the Golden Telecom Group). For
the purposes of this clause 12.1.20 the revenues and Net Operating Cash
Flow of the Group or any Obligor shall be determined by reference to
the most recently ended Twelve Month Period ending on a Quarter Day in
respect of which Quarterly Management Accounts have been delivered to
the Agent under this Agreement and total assets of the Group or any
Obligor shall be determined as at such Quarter Day by reference to such
Quarterly Management Accounts. In determining compliance with the
undertaking contained in this clause 12.1.20 following any acquisition
by a member of the Group the consolidated revenues and Consolidated Net
Operating Cash Flow of the Group shall be adjusted to take account of
the revenues and Net Operating Cash Flow attributable to the
acquisition in respect of the Twelve Month Period
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ending on such Quarter Day and the consolidated total assets of the
Group shall be adjusted to take account of the total assets
attributable to such acquisition as at such Quarter Day;
12.1.21 PRINCIPAL AGREEMENTS
procure that all Principal Agreements entered into after the date of
this Agreement by a member of the Group (other than the Golden Telecom
Group and the Central European Group) are entered into by an Obligor;
12.1.22 SECURITY
(a) each Obligor who has entered into a Security Document shall at
its own expense take all such action as the Security Trustee may
reasonably require (to the extent legally possible and
commercially practicable) for the purpose of perfecting or
protecting the Security Trustee's rights under and preserving the
security interests intended to be created or evidenced by any of
the Security Documents and following the making of any
declaration pursuant to clause 14.2 for facilitating the
realisation of any such security or any part thereof.
(a) (in the case of the Original Borrower) procure either, in the
case of an Obligor, within 60 days of each Quarter Day (or within
45 days of each Quarter Day commencing 30 September 2001) or, in
the case of a member of the Group which is obliged pursuant to
clause 10.18.1 or clause 10.18.2 to become or which will become
pursuant to clause 10.18.3 an Obligor, within the relevant period
set out in clause 10.18;
(i) any Obligor (or other member of the Group which is obliged
pursuant to clause 10.18.1 or clause 10.18.2 to become, or
which will become pursuant to clause 10.18.3, an Obligor)
which was entitled to receive third party receivables equal
to or in excess of $5,000,000 at any time during the
relevant Three Month Period ending on a Quarter Day
(determined by reference to the relevant Quarterly
Management Accounts) or, in the case of a Material
Subsidiary to which clause 10.18.1 applies, at any time
prior to it becoming an Acceding Guarantor, shall enter into
a Pledge over Group Accounts and a Pledge of Third Party
Receivables;
(i) (A) any Obligor (or other member of the Group which is
obliged pursuant to clause 10.18.1 or clause 10.18.2 to
become, or which will become pursuant to clause 10.18.3, an
Obligor) which acquires any property, plant and equipment
with an individual net book asset value equal to or in
excess of $7,500,000 at any time during the relevant Three
Month Period ending on a Quarter Day (determined by
reference to the relevant Quarterly Management Accounts) or,
in the case of a Material Subsidiary to which clause 10.18.1
applies, owns any such asset, shall enter into a PPE
Security and (B) any Obligor (or any other member of the
Group which is obliged pursuant to clause 10.18.1 or clause
10.18.2 to become or which will become pursuant to clause
10.18.3, an Obligor) which has property, plant and equipment
which has an aggregate net book value equal to or in excess
of $25,000,000 at any time during the relevant Three Month
Period ending on a Quarter Day (determined as at such
Quarter Day by reference to the relevant Quarterly
Management Accounts), or in the case of a Material
Subsidiary to which clause 10.18.1 applies, owns any such
asset, shall enter into a PPE Security in respect of each
individual item of property, plant and equipment which has a
net book value in excess of $2,500,000;
(ii) any member of the Group (other than the Original Borrower,
GTS Ireland, the Golden Telecom Group and the Central
European Group) which makes any intercompany loans shall
enter into a Pledge over Group Accounts and a Pledge over
Intercompany Receivables;
(in the case of (b) above) the Original Borrower shall procure that
each Obligor shall also enter into a Security Providers Deed of
Accession and provide the Agent with such documents and
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evidence as it may reasonably require as to the power and authority of
such Obligor to enter into the relevant Security Documents and a
Security Provider's Deed of Accession and that the same constitutes
valid and legally binding obligations of such Obligor enforceable in
accordance with its terms subject to any qualifications set out in the
legal opinions referred to in part A of schedule 3 which are applicable
to the relevant Security Document;
12.1.23 IMMOVABLE ASSETS SUBJECT TO THE TRANSFER AGREEMENT
in the event that any of the assets referred to in the Transfer
Agreement are stated to have been leased (rather than transferred) take
all reasonable steps required to transfer title to such assets to GTS
Network within 3 months of the date of this Agreement; and
12.1.24 ACCOUNTS WITH DEUTSCHE BANK AG LONDON
ensure that all cash (or cash equivalent) credit balances of any member
of the Group (other than the Golden Telecom Group and the Central
European Group) are maintained in accounts of an Obligor with Deutsche
Bank AG London, save for (i) the Permitted Cash Balances and (ii) other
gross cash balances of both the Group (other than the Golden Telecom
Group and the Central European Group) and the Ultimate Shareholder (to
the extent not subject to a charge with Deutsche Bank AG London) not
exceeding euro 7,500,000 in aggregate.
12.2 NEGATIVE COVENANTS
Each Obligor (other than the Immediate Shareholder in respect of
clauses 12.2.2, 12.2.4, 12.2.5, 12.2.6, 12.2.7, 12.2.8, 12.2.9,
12.2.10, 12.2.11 and 12.2.12) in respect of itself and its Subsidiaries
undertakes with each of the Finance Parties that, from the date of this
Agreement and so long as any moneys are owing under this Agreement
(actually or contingently) or remain available for utilisation by the
Borrowers, without the prior written consent of the Agent acting on the
instructions of the Majority Banks:
12.2.1 NEGATIVE PLEDGE
it will not permit any Encumbrance (other than the Permitted
Encumbrances) by any member of the Group (other than the Golden Telecom
Group) to subsist, arise or be created or extended over all or any part
of their respective present or future undertakings, assets, rights or
revenues to secure or prefer any present or future Indebtedness of any
member of the Group or any other person;
12.2.2 NO MERGER
it will not merge or consolidate with any other company or person and
it will procure that no member of the Group merges or consolidates with
any other company or person save for (i) any merger or consolidation
undertaken in accordance with the conditions set out in clause 12.1.8,
and/or (ii) mergers between any member of the Group with any or all of
the other members of the Group, other than the Golden Telecom Group or
the Central European Group, ("ORIGINAL ENTITIES") into one or more
entities (each a "MERGED ENTITY") provided that in each case:
(a) reasonable details of the proposed merger in order to demonstrate
satisfaction with clauses (b) to (d) below are provided to the
Agent at least 10 days before the merger is to be consummated;
(b) such Merged Entity is a member of the Group and is liable for the
obligations of the relevant Original Entities (including the
obligations under the Finance Documents) which remains unaffected
thereby and entitled to the benefit of all the rights of such
Original Entities;
(c) such Merged Entity has entered into Security Documents which
provided security over the same assets of at least an equivalent
nature and ranking to the security provided by
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the relevant Original Entities pursuant to any Security Documents
entered into by them and any possibility of the Security
Documents referred to in this clause 12.2.2(c) or clause
12.2.2(d) below being challenged or set aside is not greater than
any such possibility in relation to the Security Documents
entered into by or in respect of the share capital of any
relevant Original Entity;
(d) (if all or any part of the share capital of the relevant Original
Entities was charged pursuant to a Security Document) the
equivalent part of the share capital of such Merged Entity is
charged pursuant to a Security Document on terms of at least an
equivalent nature and equivalent ranking as any Security Document
relating to the shares in each relevant Original Entity;
(e) that all the property and other assets of the relevant Original
Entities are vested in the Merged Entity and that the Merged
Entity has assumed all the rights and obligations of the relevant
Original Entities under the Principal Agreements, the Licences
and all Necessary Authorisations and/or replacements have been
entered into by or issued in favour of the Merged Entity;
12.2.3 DISPOSALS
save for Permitted Disposals and, in the case of the Immediate
Shareholder, the transfers contemplated by clause 3.6 and any other
transfer of assets from the Immediate Shareholder to the Group, it will
not and will procure that no other member of the Group will sell,
transfer, lend or otherwise dispose of or cease to exercise direct
control over any part of its present or future undertaking, assets,
rights or revenues whether by one or a series of transactions related
or not, including by way of de-merger;
12.2.4 INTRA-GROUP ACCOUNTS
it will not subordinate, assign, postpone, defer or otherwise dispose
of any Indebtedness owing to it by any member of the Group and will
procure that no member of the Group (other than the Golden Telecom
Group) will subordinate, assign, postpone or defer or otherwise dispose
of, any Indebtedness owing to it by any other member of the Group save
as required pursuant to this Agreement
12.2.5 BORROWED MONEY
it will not and will procure that no member of the Group (other than
the Golden Telecom Group) will create, assume, incur or otherwise
permit to be outstanding any Borrowed Money (other than Permitted
Borrowings);
12.2.6 GUARANTEES
it will not and will procure that no member of the Group (other than
the Golden Telecom Group) will incur any obligations or assume any
liability under any guarantee other than Permitted Guarantees;
12.2.7 REDUCTION OF SHARE CAPITAL/ISSUE OF SHARES
(a) other than (subject to the terms of the Security Documents) any
such reduction, purchase or redemption resulting in any dividend
or distribution either (i) to any member of the Group, (ii) to
the Immediate Shareholder, it will not and will procure that no
member of the Group will reduce its capital or purchase or redeem
any class of its shares; and
(b) it will not issue, and will procure that no member of the Group
issues, any shares of any class other than in accordance with
clause 12.2.2 provided that any member of the Group may issue
shares to any other member of the Group and the Original Borrower
may issue shares to the Immediate Shareholder so long as (if any
of the existing shares in the relevant member of the Group are
charged or pledged pursuant to any Security
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Document) such shares are contemporaneously with the issue
thereof charged or pledged pursuant to the terms of a Security
Document and there are delivered at the same time to the Security
Trustee the relevant share certificates and blank stock transfer
forms (or equivalent documents) in respect thereof together with
such other documents and evidence and legal opinions as the Agent
may reasonably require as to the power and authority of the
relevant chargor to enter into such Security Document and that
the same constitutes valid and legally binding obligations of
such chargor enforceable in accordance with its terms subject (to
the extent applicable) to the qualifications in the legal
opinions referred to in part A of schedule 3;
12.2.8 ACQUISITIONS
it will not and will procure that no member of the Group (other than
the Golden Telecom Group) will enter into any joint venture or
partnership arrangements, makes any acquisition of shares of or other
ownership interests in any person or acquires all or a substantial part
of the assets, property or business of any other person or any other
person or any assets that constitute a division or operating unit of
the business of any other person (other than Permitted Acquisitions or
an acquisition of assets in the ordinary course of business from a
supplier or a Subsidiary of a supplier for the purposes of the Group
Business);
12.2.9 LOANS
it will not and will procure that no other member of the Group (other
than the Golden Telecom Group) will make any loan or advance to, or
enter into any transaction having the effect of lending money with, any
person (including the acquisition of any document evidencing Borrowed
Money, loan stock or other debt securities) other than (i) loans from
members of the Group to the Immediate Shareholder or the Ultimate
Shareholder to the extent that the same constitute Permitted Payments,
(ii) normal trade credit in the ordinary course of day to day trading
with payment terms not exceeding 120 days, (iii) loans from a member of
the Group to another member of the Group (other than to a member of the
Golden Telecom Group or the Central European Group, with the exception
of Permitted Central European Group Transactions) and (iv) loans and
advances to employees in the ordinary course of business not to exceed
$3,000,000 in the aggregate at any time outstanding;
12.2.10 CAPITAL EXPENDITURE
it will not and will procure that no other member of the Group will
incur any capital expenditure other than in relation to the Group
Business;
12.2.11 DERIVATIVES CONTRACTS
it will not and will procure that no other member of the Group will
enter into any interest rate or currency swaps or other hedging
arrangement for speculative purposes or otherwise other than (i)
interest rate hedging directly relating to liabilities incurred in
relation to the Group Business; (ii) interest rate hedging directly
relating to the risk management of any Borrowed Money of the Group
(other than the Shareholder Loans); and (iii) currency hedging of
foreign exchange liabilities or assets of the Group on a transactional
basis (which, for the avoidance of doubt, shall not include any hedging
of the High Yield Securities or any intercompany loans from the
Ultimate Shareholder or the Immediate Shareholder to any member of the
Group);
12.2.12 RESTRICTED PAYMENTS
it will not and will procure that no other member of the Group will
make any Restricted Payments other than Permitted Payments;
12.2.13 TRANSACTIONS WITH RELEVANT PERSONS
without prejudice to clause 12.2.12, procure that no member of the
Group enters into any contractual or other arrangements with a Relevant
Person providing for the payment of
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consideration by or to a Relevant Person other than (i) Permitted
Payments, (ii) as expressly permitted under the Supplemental Agreement
and (iii) on terms that (other than in the case of Golden Telecom if
Golden Telecom continues to be a Relevant Person following the sale of
shares in Golden Telecom pursuant to the Golden Telecom Sale and
Purchase Agreement) the consideration payable to the relevant member of
the Group is pre-funded by the payment of cash to the Original Borrower
to the credit of an account with Deutsche Bank AG London and otherwise
(including in the case of Golden Telecom) on bona fide arms length
commercial terms in the ordinary course of trading;
12.2.14 TRANSACTIONS WITH ESPRIT
it will procure that no member of the Group enters into any contractual
or other arrangements with Esprit other than (i) the contribution of
the Business Services Assets pursuant to the consent contained in the
Supplement Agreement and (ii) on bona fide arm's length terms in the
ordinary course of trading (including no more than 60 days payment
terms) and in any event provided that (a) in respect of the period
prior to 1 January 2002 the consideration payable to the Group for such
transactions (other than in respect of the contribution of the Business
Services Assets) does not exceed euro 20,000,000 and is pre-funded by
the payment of cash to the Original Borrower to the credit of an
account with Deutsche Bank AG (London) which is the subject of a Pledge
over Group Accounts and (b) in respect of the period commencing 1
January 2002, the aggregate amount due and payable by Esprit to the
members of the Group at no time exceeds euro 5,000,000 in aggregate;
and
12.2.15 TRANSACTIONS WITH GOLDEN TELECOM GROUP AND CENTRAL EUROPEAN GROUP
it will procure that no member of the Group which is not a member of
the Golden Telecom Group or the Central European Group respectively,
enters into a transactions with a member of the Golden Telecom Group or
the Central European Group (save for Permitted Central European Group
Transactions and the acquisition by the new company referred to in
clause 4.12 of the Supplemental Agreement of the Central European
Group) other than on bona fide arms length commercial terms in the
ordinary course of trading, in particular but without prejudice to the
generality of the foregoing it will ensure that no such member of the
Group lends money to, guarantees the liabilities of, disposes of assets
to, mergers with or give more than 60 days payment terms to any member
of the Golden Telecom Group or the Central European Group.
13 FINANCIAL COVENANTS
13.1 FINANCIAL COVENANTS
The Original Borrower undertakes with each of the Finance Parties, from
the date of this Agreement and so long as any moneys are owing under
this Agreement (actually or contingently) or remain available for
utilisation by the Borrowers:
13.1.1 MINIMUM CONSOLIDATED REVENUES
to ensure that in respect of each Three Month Period set out in column
(1) Consolidated Revenues of the Group after having adjusted the
Consolidated Revenues of the Group in respect of such Three Month
Period as follows:
(a) excluding the Consolidated Revenues of the Golden Telecom
Group or revenues attributable to the Business Services Assets
(to the extent that the same is consolidated into the
Consolidated Revenues of the Group);
(b) including the revenues attributable to the Acquired Assets in
respect of the period from 1 January 2001;
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(c) including, in respect of any Three Month Period ending prior
to its disposal, the Consolidated Revenues of the Central
European Group in respect of the period from 1 January 2001
until their disposal by the Group;
(d) having made the adjustments in (a), (b) and (c) above,
deducting any revenues attributable to dark fibre asset sales
in excess of (i) euro 3,000,000 in any month in 2001 or (ii)
euro 4,000,000 in any Three Month Period in 2001, or (iii)
euro 10,000,000 in aggregate in 2001, and completely
thereafter, or to the sale of all or part of the Golden
Telecom Group, the Central European Group, or the Business
Services Assets;
shall not be less than the amount set out against such Three Month Period
in column (2) below, if the entire Central European Group was not
disposed of prior to the beginning of such Three Month Period or, column
3 below, otherwise:
THREE MONTH PERIOD MINIMUM CONSOLIDATED REVENUES
------------------------ ----------------------------------
(euro M)
(1) (2) (3)
----- ------ ---------
January to March 2001 88.39 70.02
February to April 2001 88.97 69.98
March to May 2001 90.99 71.10
April to June 2001 93.92 73.01
May to July 2001 98.00 76.21
June to August 2001 103.38 80.86
July to September 2001 109.64 86.11
August to October 2001 115.05 90.25
September to November 2001 120.44 94.32
October to December 2001 125.50 98.40
November 2001 to January 2002 130.09 102.27
December 2001 to February 2002 134.78 106.51
January to March 2002 140.03 111.76
April to June 2002 149.97 121.70
July to September 2002 168.81 140.54
October to December 2002 185.87 157.60
January to March 2003 216.15 187.88
13.1.2 MINIMUM CONSOLIDATED NET OPERATING CASH FLOW
to ensure that in respect of each Three Month Period set out in column
(1) below, the amount of Consolidated Net Operating Cash Flow for the
Group after having adjusted the Consolidated Net Operating Cash Flow of
the Group in respect of such Three Month Period as follows:
(a) excluding the Consolidated Net Operating Cash Flow of the Golden
Telecom Group or attributable to the Business Services Assets (to
the extent that the same is consolidated into the Consolidated
Net Operating Cash Flow of the Group);
(b) including the Consolidated Net Operating Cash Flow attributable
to the Acquired Assets in respect of the period from 1 January
2001;
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(c) including, in respect of any Three Month Period ending prior to
its disposal, the Consolidated Net Operating Cash Flow of the
Central European Group in respect of the period from 1 January
2001 up to a maximum amount of euro 2,000,000 in respect of any
month;
(d) having made the adjustments in (a), (b) and (c) above, deducting
any Consolidated Net Operating Cash Flow of the Group
attributable to dark fibre asset sales in excess of (i) euro
2,000,000 in any month in 2001 or (ii) euro 3,000,000 in any
Three Month Period in 2001 or (iii) euro 7,700,000 in aggregate
in 2001, and completely thereafter, or to the sale of all or part
of the Golden Telecom Group, the Central European Group, or the
Business Services Assets;
shall be not less than the amount set out against such period in column
(2) below, if the entire Central European Group was not disposed of
prior to the beginning of such Three Month Period or, column (3) below,
otherwise:
THREE MONTH PERIOD MINIMUM CONSOLIDATED NET OPERATING CASH FLOW
------------------- ----------------------------------------------
(euro M)
(1) (2) (3)
----- ----- -----
January to March 2001 19.56 17.85
February to April 2001 17.88 16.15
March to May 2001 17.98 15.98
April to June 2001 18.18 15.73
May to July 2001 19.98 17.17
June to August 2001 22.19 19.13
July to September 2001 24.47 21.25
August to October 2001 27.52 23.89
September to November 2001 31.09 26.95
October to December 2001 34.55 30.01
November 2001 to January 2002 37.49 32.68
December 2001 to February 2002 40.12 35.23
January to March 2002 43.24 38.34
April to June 2002 51.15 46.25
July to September 2002 60.09 55.19
October to December 2002 75.11 70.21
January to March 2003 89.12 84.23
13.1.3 MAXIMUM CUMULATIVE CONSOLIDATED CAPITAL EXPENDITURE
to ensure that in respect of the period commencing on 1 January 2001
and ending on the last day of the month set out in column (1) below the
amount of Consolidated Capital Expenditure for the Group after having
adjusted the cumulative Consolidated Capital Expenditure of the Group
in respect of the relevant period as follows:
(a) excluding the Consolidated Capital Expenditure attributable to
the Golden Telecom Group and capital expenditure attributable to
the Business Services Assets (to the extent that the same is
consolidated into the Consolidated Capital Expenditure of the
Group);
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(b) including the capital expenditure attributable to the Acquired
Assets in respect of the period from 1 January 2001;
(c) including, in respect of any Three Month Period ending prior to
its disposal, the Consolidated Capital Expenditure of the Central
European Group in respect of the period from 1 January 2001;
(d) having made the adjustments in (a), (b) and (c) above, adding or
subtracting any increase or decrease (respectively) in capital
expenditure payable since 31 December 2000;
shall not exceed the amount set out against such month in column (2)
below, if the entire Central European Group was not disposed or prior
to the beginning of such Three Month Period or, column (3) below,
otherwise:
THREE MONTH PERIOD MAXIMUM CUMULATIVE CONSOLIDATED CAPITAL EXPENDITURE
-------------------- -----------------------------------------------------
(euro M)
(1) (2) (3)
----- ------- -------
March 2001 79.20 70.20
April 2001 106.60 94.80
May 2001 132.00 117.40
June 2001 157.40 140.00
July 2001 181.00 160.80
August 2001 204.40 181.40
September 2001 226.80 201.00
October 2001 245.20 216.60
November 2001 263.60 232.20
December 2001 282.80 247.80
January 2002 298.87 259.67
February 2002 31.575 271.55
March 2002 332.62 283.42
June 2002 379.43 315.23
September 2002 424.99 345.79
December 2002 483.49 389.29
March 2003 533.49 424.29
13.2 CURE
13.2.1 If in respect of any Three Month Period the Consolidated Net Operating
Cash Flow of the Group (adjusted as set out in clause 13.1.2) is less
than the amount set out in clause 13.1.2 but not less than 0.75/0.85
multiplied by the amount set out in clause 13.1.2 there shall be deemed
not to have been a breach of clause 13.1.2.
13.2.2 If in respect of any Three Month Period subsequent to a previous Three
Month Period to which clause 13.2.1 applies the Consolidated Net
Operating Cash Flow of the Group (adjusted as set out in clause 13.1.2)
is less than the amount set out in clause 13.1.2 but the amount of such
shortfall plus the shortfall in respect of the Three Month Period to
which clause 13.2.1 applied is less than aggregate amount by which the
Consolidated Net
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Operating Cash Flow of the Group (adjusted as set out in clause 13.1.2)
in respect of the period since 1 January 2001, has exceeded the
projected amount for such period set out in the Agreed Base Case there
shall be deemed not to have been a breach of clause 13.1.2.
13.2.3 Clauses 13.2.1 and 13.2.2 may each apply in respect of one Three Month
Period only.
13.3 AUDITORS' CERTIFICATE
If at any time the Majority Banks do not consider that any figure set
out in any Compliance Certificate issued by any Authorised Officer is
correct, they shall be entitled within 30 days of the date of the
delivery of such Compliance Certificate to the Agent pursuant to clause
12.1 to call for a certificate from the Original Borrower's auditors as
to such figure. For such purposes the Original Borrower's auditors
shall act as independent experts and not as arbitrators and every such
certificate shall be addressed to the Agent (on behalf of the Banks)
and be at the expense of the Original Borrower (unless the certificate
so provided by the Original Borrower's conditions shows the figures set
out in the Compliance Certificate are in fact correct in which case the
such certificate shall be at the expenses of the Banks). The Majority
Banks may only call for one such certificate in any four consecutive
Three Month Periods ending on a Quarter Day unless the relevant figure
set out in any Compliance Certificates provided by an Authorised
Officer in respect of any Three Month Period ending on a Quarter Day in
such four consecutive Three Month Periods ending on a Quarter Day is
incorrect in which case such limitation shall not apply. If the
Majority Banks call for such a certificate all calculations under this
Agreement by reference to the relevant figure shall (a) until the
Original Borrower's auditors deliver the relevant certificate under
this clause 13.3 be made by reference to the figure set out in the
relevant Compliance Certificate delivered to the Agent under this
Agreement and (b) following the delivery by the Original Borrower's
auditors of a certificate under this clause 13.3 be made by reference
to such certificate and the Original Borrower undertakes forthwith to
take all action including, without limited, the repayment of all or
part of the Facility so as to procure that all action taken on the
basis of the relevant Compliance Certificate which on the basis of such
auditors' certificate would not have been permitted is reversed.
14 EVENTS OF DEFAULT
14.1 EVENTS OF DEFAULT
Each of the events and circumstances set out below is an Event of
Default (whether or not caused by any reason outside the control of an
Obligor):
14.1.1 NON-PAYMENT:
any Borrower fails to pay (i) any principal due and payable under this
Agreement on the due date or (ii) any interest or any other sum
hereunder after 5 days when the same shall become due and payable and,
in each such case, in the currency and in the manner stipulated in this
Agreement; or
14.1.2 BREACH OF CERTAIN OBLIGATIONS
any Obligor commits any breach of or omits to observe any of the
obligations or undertakings expressed to be assumed by it under clauses
10.18.2, 10.18.3, 12.1.6, 12.1.7, 12.1.8, 12.1.9(c), 12.1.16, 12.1.24
and 12.2 or clause 13.1; or
14.1.3 BREACH OF OTHER OBLIGATIONS
any Obligor or any GTS Creditor commits any breach of or omits to
observe any of the obligations or undertakings expressed to be assumed
by it under any Finance Document to which it is a party (other than
failure to pay any sum when due or any breach of the undertakings
referred to in clause 14.1.2) and, in respect of any such breach or
omission which is capable of remedy, such action as the Agent may
reasonably require shall not have been taken within 30 days of the
Agent notifying the relevant Obligor or the relevant GTS Creditor (as
the case may be) of such default and of such required action; or
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14.1.4 MISREPRESENTATION
any representation or warranty made or deemed to be made or repeated by
or in respect of any Obligor or any GTS Creditor or any other member of
the Group in or pursuant to any Finance Document or in any notice,
certificate or statement referred to in or delivered under any Finance
Document is or proves to have been incorrect or misleading in any
material respect; or
14.1.5 SECURITY DOCUMENTS
any Security Document is not or ceases to be effective in any material
respect or any GTS Creditor or any member of the Group (or any
liquidator, administrator, administrative or other receiver or similar
officer) shall bring proceedings to challenge, the prior status of the
charges created by (in the case of a Subordination Deed, the
subordination effected by) the Security Documents or the validity or
enforceability of the Security Documents (other than, in each case, any
Licence Security); or
14.1.6 CROSS-DEFAULT
(i) any Borrowed Money of any member of the Immediate Shareholder Group
is not paid when due or (ii) any Borrowed Money of any member of the
Immediate Shareholder Group becomes (whether by declaration validly
made or automatically in accordance with the relevant agreement or
instrument constituting the same) due and payable prior to the date
when it would otherwise have become due or (iii) any creditor of any
member of the Immediate Shareholder Group becomes entitled to declare
any Borrowed Money of any member of the Immediate Shareholder Group so
due and payable or to require cash collateralisation or security for
any such Borrowed Money or (iv) any facilities or commitment available
to any member of the Immediate Shareholder Group relating to Borrowed
Money is withdrawn, suspended or cancelled, and the amount, or
aggregate amount at any one time, of all Borrowed Money in relation to
which any of the foregoing events shall have occurred and be continuing
is equal to or greater than $15,000,000 or its equivalent in the
currency in which the same is denominated and payable; or
14.1.7 LEGAL PROCESS
any judgment or order for an amount of at least $10,000,000 (or its
equivalent) is made against any member of the Group and is not stayed,
complied with or discharged within 14 days or a creditor attaches or
takes possession of, or any distress, execution, attachment,
sequestration or other process arising out of any claim by any third
party is levied or enforced upon, or sued out against, all or any
material part of the undertakings, assets, rights or revenues of any
member of the Group and is not discharged within 14 days; or
14.1.8 INSOLVENCY
any Obligor is, or is deemed for the purpose of any law applicable to
it to be, unable to pay its debts generally as they fall due or to be
insolvent or admits its inability generally to pay its debts as they
fall due or suspends making payments on all or any class of its debts
or announces an intention to do so or declares a moratorium in respect
of its Indebtedness generally and, more particularly: (i) with respect
to any Obligor incorporated in Belgium, any such Obligor is declared
bankrupt under the Bankruptcy Act of 8 August 1997 of Belgium (or any
replacement enactment therefor which is enacted after the date of this
Agreement) or is otherwise subject to the proceeding provided in
Section 8 of that Bankruptcy Act or takes any step to or otherwise
enters into composition proceedings under the Composition Act of 17
July 1997 of Belgium (or any replacement enactment therefor which is
enacted after the date of this Agreement); or (ii) with respect to any
Obligor incorporated in the Netherlands, and such Obligor is declared
bankrupt (in staat van faillissement verklaard) or enters into a
primary or definitive moratorium (in voorlopige of definitieve
surseance van betaling gaan) pursuant to the Dutch Bankruptcy Act
(Faillisementswet); or
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14.1.9 WINDING UP
any petition is presented and is not discharged within 14 days or other
step is taken by any Obligor for the purpose of the winding up of such
company (not being a petition or step which can be demonstrated to the
satisfaction of the Agent by providing an opinion of leading lawyers in
the relevant jurisdiction is frivolous, vexatious or an abuse of the
process of the court) or an order is made or resolution passed for the
winding up of any Obligor or a notice is issued convening a meeting for
the purpose of passing any such resolution other than for the purposes
of a voluntary amalgamation or reconstruction previously approved in
writing by the Agent acting on the instructions of the Majority Banks
(acting reasonably); or
14.1.10 ADMINISTRATION/EXAMINATION
any petition is presented or resolution passed for the appointment of
an administrator or an examiner of or to any Obligor and, in the case
of an administrator only, any such petition is not withdrawn or shown
to be frivolous and vexatious to the reasonable satisfaction of the
Agent not less than two Banking Days before the first date fixed for
hearing of such petition or an administration order, or an order to
appoint an examiner is made in relation to any Obligor; or
14.1.11 APPOINTMENT OF RECEIVERS AND MANAGERS
any administrative or other receiver is appointed of any Obligor or any
material part of their respective assets and/or undertakings or any
other steps are taken to enforce any Encumbrance over all or any
material part of the assets of any Obligor and is not discharged within
14 days; or
14.1.12 COMPOSITIONS
any steps are taken, by any Obligor with a view to proposing any kind
of composition, compromise or arrangement involving such company and
its creditors generally; or
14.1.13 ANALOGOUS PROCEEDINGS
there occurs, in relation to any Obligor, in any country or territory
in which any of them carries on business or to the jurisdiction of
whose courts any part of their respective assets is subject, any event
which corresponds with, or have an effect equivalent or similar to, any
of those mentioned in clauses 14.1.7 to 14.1.12 (inclusive), or any
Obligor otherwise becomes the subject, in any such country or
territory, of insolvency, bankruptcy or liquidation proceedings or any
such proceedings are commenced against any Obligor and not discharged
within the equivalent periods mentioned in clauses 14.1.7 to 14.1.12;
or
14.1.14 CESSATION OF GROUP BUSINESS
the Group suspends or ceases to carry on in any material respect the
Group Business; or
14.1.15 SEIZURE
all or a material part of the undertakings, assets, rights or revenues
of, or shares or other ownership interests in, any member of the Group
are seized, nationalised, expropriated or compulsorily acquired by or
under the authority of any government; or
14.1.16 PRINCIPAL AGREEMENTS
any Principal Agreement is terminated, suspended, revoked or cancelled
or otherwise ceases to be in full force and effect unless such
Principal Agreement is replaced by a fibre lease agreement or
agreements or capacity contract or contracts (which are accounted for
as capital leases in accordance with GAAP) or alternative arrangements
(including providing own build network or wireless transmission), in
each case, providing sufficient alternative capacity on terms that are
not materially less beneficial to the Group or (as the case may be) the
Immediate
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Shareholder than the predecessor Principal Agreement, within 60 days of
such Principal Agreement being so terminated, suspended, revoked,
cancelled or ceasing to be in full force and effect, or the Original
Borrower has failed to demonstrate to the reasonable satisfaction of
the Majority Banks that such event would not materially adversely
affect the operations of the Group; or
14.1.17 UNLAWFULNESS
it becomes unlawful at any time for any Obligor or any GTS Creditor to
perform any of its material obligations under any Finance Document to
which it is a party or any of the material obligations of any Obligor
or any GTS Creditor under any of the Finance Documents to which it is a
party becomes unenforceable in any way or there ceases to be security
over any material relevant property or assets of the relevant Obligor
(or, in the case of a Subordination Deed, any payment due from a member
of the Group to a GTS Creditor, is not or ceases to be subordinated to
the amounts owing under this Agreement) as intended to be created by
the Security Documents; or
14.1.18 TELECOMMUNICATIONS AND CABLE LAWS
any member of the Group fails to comply with any term or condition of
Telecommunications and Cable Law where such non-compliance would
reasonably be likely to have a Material Adverse Effect or a material
adverse effect on the Group Business or financial condition of the
Group taken as a whole; or
14.1.19 REPUDIATION
any Obligor or any GTS Creditor repudiates any Finance Document to
which it is a party or threatens in writing to repudiate any Finance
Document to which it is a party; or
14.1.20 MATERIAL EVENTS
any guarantee is issued pursuant to paragraph (f) of the definition of
Permitted Guarantees and the Majority Banks consider that an Obligor
may not be able to perform all or any of its obligations under the
Finance Documents or any other event occurs or circumstances arise
which in the opinion of the Majority Banks (acting reasonably) would
reasonably be likely to have a Material Adverse Effect; or
14.1.21 CHANGE OF CONTROL
the Immediate Shareholder ceases directly to own or the Ultimate
Shareholder ceases indirectly to own that part of the issued share
capital of the Original Borrower representing more than 50 per cent. of
the voting and economic interest in the Original Borrower; for the
purposes of this clause 14.1.21, the Ultimate Shareholder's indirect
interest in the Original Borrower shall be calculated by multiplying
the percentage ownership interest in each company through which it owns
its interest in the Original Borrower by the percentage ownership
interest of the Immediate Shareholder in the Original Borrower; or
14.1.22 REGULATORY COMPLIANCE
(i) any Licence is terminated, cancelled or revoked (before a new one
is put in place with an Obligor (other than the Immediate Shareholder)
on substantially identical terms or on terms that are not materially
less beneficial to the Group unless such Licence is no longer required
under all applicable laws) or (ii) the relevant authorities notify the
member of the Group in writing that any Licence will be terminated,
cancelled or revoked unless the relevant member of the Group is
disputing such notice in good faith by all appropriate proceedings and
demonstrates to the reasonable satisfaction of the Majority Banks that
it has a good case and pending resolution of such dispute the Group can
continue to operate under such Licence, provided that if any such
notification to terminate, cancel or revoke any Licence is made subject
to the relevant member of the Group's compliance with any conditions it
shall
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be an Event of Default only if the Majority Banks determine that the
relevant member of the Group will not be able to satisfy such
conditions within any applicable time periods; or
14.2 ACCELERATION
The Agent may with the consent of the Majority Banks and if so
requested by the Majority Banks shall, without prejudice to any other
rights of the Banks, at any time after the happening of an Event of
Default and so long as the same is continuing, unremedied or unwaived
by notice to the Original Borrower declare that:
14.2.1 the obligation of each Bank to make its Commitment available shall be
terminated, whereupon the Total Commitments shall be reduced to zero
forthwith; and/or
14.2.2 all or any outstanding Advances and all or any interest and commitment
commission accrued and all or any other sums payable under this
Agreement have become immediately due and payable or have become due
and payable on demand, whereupon the same shall, immediately or in
accordance with the terms of such notice, become so due and payable;
and/or
14.2.3 the Security Documents (or any of them) have become enforceable
whereupon the same shall become enforceable.
On or at any time after the making of any such declaration, the Agent
shall be entitled, to the exclusion of the Original Borrower (and
without prejudice to clause 6.3), to select the duration of each period
for the calculation of interest in relation to any outstanding Advances
or other sums payable under this Agreement.
14.3 DEMAND BASIS
If, pursuant to clause 14.2.2, the Agent declares the outstanding
principal amount of all or any of the Advances to be due and payable on
demand then the Agent may (and, if so instructed by the Majority Banks,
shall) at any time by written notice to the Original Borrower (a) call
for repayment of the outstanding principal amount of all or any of the
Advances on such date as may be specified in such notice whereupon the
Advances shall become due and payable on the date so specified together
with all interest and commitment commission accrued and all other sums
payable under this Agreement or (b) withdraw such declaration with
effect from the date specified in such notice.
15 INDEMNITIES
15.1 MISCELLANEOUS INDEMNITIES
The Original Borrower shall on demand indemnify each Finance Party,
without prejudice to any of their other rights under the Finance
Documents, against any loss (including loss of Margin) or expense which
such Finance Party shall certify in such demand as sustained or
incurred by it as a consequence of:
15.1.1 any default in payment by any Obligor or any GTS Creditor of any sum
under any Finance Document when due;
15.1.2 the occurrence of any other Event of Default;
15.1.3 other than as a result of a mandatory prepayment pursuant to clause
7.6, any repayment of all or part of any Advance or the Loan being made
otherwise than its Maturity Date or the last day of an Interest Period
relative thereto respectively; or
15.1.4 any Utilisation not being made or issued for any reason (excluding any
default by any Finance Party) after a Utilisation Notice has been
given,
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including, in any such case, but not limited to, any loss or expense
sustained or incurred by such Finance Party in maintaining or funding
all or any part of its Contribution or in liquidating or re-employing
deposits from third parties acquired or contracted for to fund all or
any part of its Contribution or any other amount owing to such Finance
Party.
15.2 CURRENCY OF ACCOUNT; CURRENCY INDEMNITY
No payment by any Obligor under this Agreement which is made in a
currency other than the currency ("Contractual Currency") in which such
payment is required to be made pursuant to this Agreement shall
discharge the obligation in respect of which it is made except to the
extent of the net proceeds in the Contractual Currency received by the
Agent upon the sale of the currency so received, after taking into
account any costs of exchange in connection with such sale. For the
avoidance of doubt, Finance Parties shall not be obliged to accept any
such payment in a currency other than the Contractual Currency nor
shall the Finance Parties be liable to any Obligor for any loss or
alleged loss arising from fluctuations in exchange rates between the
date on which such payment is so received by the Agent and the date on
which the Agent effects such sale, as to which the Agent shall (as
against the relevant Obligor) have an absolute discretion. If any sum
due from any Obligor under this Agreement or any order or judgment
given or made in relation to this Agreement is required to be converted
from the Contractual Currency or the currency in which the same is
payable under such order or judgment (the "first currency") into
another currency (the "second currency") for the purpose of (a) making
or filing a claim or proof against the relevant Obligor, (b) obtaining
an order or judgment in any court or other tribunal or (c) enforcing
any order or judgement given or made in relation to this Agreement, the
relevant Obligor shall indemnify and hold harmless the Finance Parties
from and against any loss suffered as a result of any difference
between (i) the rate of exchange used for such purpose to convert the
sum in question from the first currency into the second currency and
(ii) the rate or rates of exchange at which the relevant Finance Party
may in the ordinary course of business purchase the first currency with
the second currency upon receipt of a sum paid to it in satisfaction,
in whole or in part, of any such order, judgment, claim or proof. Any
amount due from any Obligor under the indemnity contained in this
clause 15.2 shall be due as a separate debt and shall not be affected
by judgment being obtained for any other sums due under or in respect
of this Agreement and the term "rate of exchange" includes any costs of
exchange payable in connection with the purchase of the first currency
with the second currency.
15.3 ESCB RESERVE REQUIREMENTS
The Original Borrower agrees to indemnify on demand each Bank against
any cost or loss suffered by it as a result of complying with the
reserve requirements of the European System of Central Banks to the
extent such requirements relate to its participation in the Facility
and are not recoverable by such Bank under clause 16.2.
16 UNLAWFULNESS AND INCREASED COSTS; MITIGATION
16.1 UNLAWFULNESS
If it becomes contrary to any law or regulation for any Bank to
maintain its Commitment or fund its Contribution such Bank shall
promptly, through the Agent, notify the Original Borrower whereupon (a)
such Bank's Commitment shall be reduced to zero and the Total
Commitments and each figure set out in clause 4.1.1 shall be adjusted
accordingly and (b) the Borrowers shall be obliged to repay to such
Bank's Contribution either (i) forthwith or (ii) on a future specified
date not being earlier than the latest date permitted by the relevant
law or regulation. Any prepayment pursuant to this clause 16.1 shall be
made together with all accrued interest, any additional amount payable
under clauses 9.5 or 16.2 and all other amounts payable to the relevant
Bank under this Agreement, including accrued commitment commission
payable under clause 8.1.3 and any amounts payable under clauses 6.3
and 15.1.
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16.2 INCREASED COSTS
If the result of any change in, or in the interpretation or application
of, or the introduction of, any law or any regulation, request or
requirement following the date of this Agreement (whether or not having
the force of law, but, if not having the force of law, with which the
relevant Bank or, as the case may be, its holding company habitually
complies), including (without limitation) those relating to Taxation,
capital adequacy, liquidity, reserve assets, cash ratio deposits and
special deposits, is to:
16.2.1 subject any Bank to Taxes or change the basis of Taxation of any Bank
with respect to any payment under this Agreement (other than Tax on
Overall Net Income, of such Bank imposed by the jurisdiction in which
such Bank's principal or lending office under this Agreement is
located); and/or
16.2.2 increase the cost to, or impose an additional cost on, any Bank or its
holding company in making or keeping available all or part of such
Bank's Commitment or maintaining or funding all or part of such Bank's
Contribution; and/or
16.2.3 reduce the amount payable or the effective return to any Bank under
this Agreement; and/or
16.2.4 reduce any Bank's or its holding company's rate of return on its
overall capital by reason of a change in the manner in which it is
required to allocate capital resources to such Bank's obligations under
this Agreement; and/or
16.2.5 require any Bank or its holding company to make a payment or forgo a
return calculated by reference to or on any amount received or
receivable by such Bank under this Agreement; and/or
16.2.6 require any Bank or its holding company to incur or sustain a loss
(including a loss of future potential profits) by reason of being
obliged to deduct all or part of such Bank's Commitment or Contribution
from its capital for regulatory purposes,
then and in each such case (but subject to clause 16.3):
(a) such Bank (as the case may be) shall notify the Original Borrower
through the Agent in writing of such event promptly upon its
becoming aware of the same; and
(b) the Original Borrower shall on demand, (whether or not such
Bank's Contribution has been repaid), pay to the Agent for the
account of such Bank the amount which such Bank specifies (in a
certificate signed by a duly authorised officer of the Bank
setting forth the basis of the computation of such amount but not
including any matters which such Bank or its holding company
reasonably regards as confidential) is required to compensate
such Bank and/or its holding company for such liability to Taxes,
increased or additional cost, reduction, payment, forgone return
or loss.
For the purposes of this clause 16.2 and clauses 16.3 and 16.4 "holding
company" means, in relation to a Bank, the company or entity (if any)
within the consolidated supervision of which such Bank is included.
16.3 EXCEPTIONS
Nothing in clause 16.2 shall entitle any Bank to receive any amount in
respect of compensation for any such liability to Taxes, increased or
additional cost, reduction, payment, forgone return or loss to the
extent that the same:
16.3.1 is taken into account in calculating the Additional Cost; or
16.3.2 is the subject of an additional payment under clause 9.5 (or would have
been the subject of an additional payment under such clause but for one
or more of the reasons contained in clause 9.6); or
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16.3.3 arises as a consequence of (or of any law or regulation implementing)
(i) the proposals for international convergence of capital measurement
and capital standards published by the Basle Committee on Banking
Regulations and Supervisory Practices in June 1999 and/or (ii) any
applicable directive of the European Union (in each case) unless it
results from any change in, or in the interpretation or application of,
such proposals or any such applicable directive (or any law or
regulation implementing the same) occurring after the date of this
Agreement; or
16.3.4 arises as a result of a breach by such Bank of any regulation, request
or requirement (which either (i) is in existence at the date of this
Agreement or (ii) which comes into effect after the date of this
Agreement and with which such Bank would have complied if such
regulation, request or requirement was in effect on the date of this
Agreement) of any applicable central bank or other fiscal, monetary or
other authority (whether or not having the force of law).
For the purposes of clause 16.3.3 the term "applicable directive" means
(exclusively) each of the Own Funds Directive (89/299/EEC of 17th April
1989) and the Solvency Ratio Directive (89/647/EEC of 18th December
1989).
16.4 MITIGATION
If circumstances arise which would, or would upon the giving of notice,
result in:
16.4.1 the application of clause 6.6. in relation to any Bank;
16.4.2 any Obligor being required to make an increased payment to any Bank;
16.4.3 the reduction of any Bank's Commitment to zero or the Borrowers being
required to repay any Bank's Contribution pursuant to clause 16.1; or
16.4.4 any Borrower being required to make a payment to any Bank to compensate
such Bank or its holding company for a liability to Taxes, increased or
additional cost, reduction, payment, forgone return or loss pursuant to
clause 16.2;
then, without in any way limiting, reducing or otherwise qualifying the
obligations of the Obligors under clause 9 and this clause 16, such
Bank shall, in consultation with the Agent, endeavour to take such
reasonable steps (and/or, in the case of clause 16.2.2 and where the
increased or additional cost, reduction, payment, forgone return or
loss is that of its holding company, endeavour to procure that its
holding company takes such reasonable steps) as are open to it (or, as
the case may be, its holding company) to mitigate or remove such
circumstances (including (in the case of such Bank) the transfer of its
rights and obligations under this Agreement to another bank or
financial institution acceptable to the Original Borrower) unless the
taking of such steps might in the reasonable opinion of such Bank, be
prejudicial to such Bank, or, as the case may be, its holding company)
or be in conflict with such Bank's (or, as the case may be, its holding
company's) general banking policies or involve such Bank (or, as the
case may be, its holding company) in any material expense or any
material increased administrative burden.
16.5 REPLACEMENT OF BANKS
If at any time, any Bank becomes a Non-Funding Bank then the Original
Borrower may, on 10 Banking Days' prior written notice to the Agent and
such Bank, replace such Bank by causing such Bank to (and such Bank
shall) assign and transfer all of its rights and obligations under this
Agreement to a Bank or other entity selected by the Original Borrower
and acceptable to the Agent for a purchase price equal to such Bank's
Contribution and all accrued interest, fees and other amounts payable
to it under this Agreement provided that:
(a) the Original Borrower shall have no right to replace the Agent;
(b) neither the Agent nor any Bank shall have any obligation to the
Original Borrower to find a replacement Bank or other such
entity;
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(c) in no event shall the Bank hereby replaced be required to pay or
surrender to such replacement Bank or other entity any of the
fees received by such Bank hereby replaced pursuant to this
Agreement; and
(d) the Original Borrower's right to replace a Non-Funding Bank is,
and shall be, in addition to and not in lieu of all other rights
and remedies available to the Borrowers against such Non-Funding
Bank under this Agreement, at law, in equity or by statute.
For the purposes of this clause 16.5:
"NON-FUNDING BANK" means any Bank:
(a) to whom the Original Borrower is obliged to pay any sum pursuant
to clause 16.2 or 9.5; or
(e) in respect of which it becomes contrary to any law or regulation
for it to contribute to Advances or to maintain its Commitment or
fund its Contribution pursuant to clause 16.1.
17 SET-OFF AND PRO RATA PAYMENTS
17.1 SET-OFF
Following an Event of Default which is continuing, each Obligor
authorises each Finance Party to apply any credit balance to which such
Obligor is then entitled on any account of such Obligor with such
Finance Party at any of its branches in or towards satisfaction of any
sum then due and payable from such Obligor to such Finance Party under
this Agreement. For this purpose each Finance Party is authorised to
purchase with the moneys standing to the credit of such account such
other currencies as may be necessary to effect such application. No
Finance Party shall be obliged to exercise any right given to it by
this clause 17.1. Each Finance Party shall notify the Agent and the
relevant Obligor (giving full details) forthwith upon the exercise or
purported exercise of any right of set-off and the Agent shall inform
the other Finance Parties.
17.2 PRO RATA PAYMENTS
17.2.1 If at any time any Finance Party (the "RECOVERING BANK") receives or
recovers any amount owing to it by any Obligor under this Agreement
by direct payment, set-off or in any manner other than by payment
through the Agent pursuant to clause 9.1 or 9.10 (not being a
payment received from a Transferee in such Bank's Contribution or
any other payment of an amount due to the Recovering Bank for its
sole account pursuant to clauses 8, 9.5, 15.1, 15.2, 16.1 or 16.2),
the Recovering Bank shall, within two Banking Days of such receipt
or recovery (a "RELEVANT RECEIPT") notify the Agent of the amount of
the Relevant Receipt. If the Relevant Receipt exceeds the amount
which the Recovering Bank would have received if the Relevant
Receipt had been received by the Agent and distributed pursuant to
clause 9.1 or 9.10 (as the case may be) then:
(a) within two Banking Days of demand by the Agent, the Recovering
Bank shall pay to the Agent an amount equal (or equivalent) to
the excess;
(b) the Agent shall treat the excess amount so paid by the
Recovering Bank as if it were a payment made by the relevant
Obligor and shall distribute the same to the Finance Parties
(other than the Recovering Bank) in accordance with clause
9.10; and
(c) as between the relevant Obligor and the Recovering Bank the
excess amount so re-distributed shall be treated as not having
been paid but the obligations of the relevant Obligor to the
other Finance Parties shall, to the extent of the amount so
re-distributed to them, be treated as discharged.
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17.2.2 If any part of the Relevant Receipt subsequently has to be wholly or
partly refunded by the Recovering Bank (whether to a liquidator or
otherwise) each Finance Party to which any part of such Relevant
Receipt was so re-distributed shall on request from the Recovering Bank
repay to the Recovering Bank such Finance Party's pro rata share of the
amount which has to be refunded by the Recovering Bank.
17.2.3 Each Finance Party shall on request supply to the Agent such
information as the Agent may from time to time request for the purpose
of this clause 17.2.
17.2.4 Notwithstanding the foregoing provisions of this clause 17.2 no
Recovering Bank shall be obliged to share any Relevant Receipt which it
receives or recovers pursuant to legal proceedings taken by it to
recover any sums owing to it under this Agreement with any other party
which has a legal right to, but does not, either join in such
proceedings or commence and diligently pursue separate proceedings to
enforce its rights in the same or another court (unless the proceedings
instituted by the Recovering Bank are instituted by it without prior
notice having been given to such party through the Agent).
17.3 NO RELEASE
For the avoidance of doubt it is hereby declared that failure by any
Recovering Bank to comply with the provisions of clause 17.2 shall not
release any other Recovering Bank from any of its obligations or
liabilities under clause 17.2.
17.4 NO CHARGE
The provisions of this clause 17 shall not, and shall not be construed
so as to, constitute a charge by a Finance Party over all or any part
of a sum received or recovered by it in the circumstances mentioned in
clause 17.2.
18 ASSIGNMENT, TRANSFER AND FUNDING OFFICES
18.1 BENEFIT AND BURDEN
This Agreement shall be binding upon, and enure for the benefit of, the
Finance Parties and the Obligors and their respective successors and
permitted assigns.
18.2 NO ASSIGNMENT BY OBLIGORS
None of the Obligors or the Ultimate Shareholder may assign or
otherwise transfer any of their respective rights or obligations under
this Agreement.
18.3 TRANSFER
Each Bank (an "EXISTING BANK") may transfer all or any part (being at
least $10,000,000 and an integral multiple of $5,000,000) of its
rights, benefits and/or obligations under this Agreement and the other
Finance Documents to a Qualifying Bank (a "Transferee"). Any such
transfer shall be effected upon not less than 5 Banking Days' prior
notice by delivery to the Agent of a duly completed Transfer
Certificate duly executed by the Existing Bank and the Transferee which
the Agent shall then counter-sign (for itself and the other parties to
this Agreement and the Security Trust Deed). On the Effective Date (as
specified and defined in a Transfer Certificate so executed and
delivered):
18.3.1 to the extent that in such Transfer Certificate the Existing Bank seeks
to transfer such obligations and rights hereunder the existing parties
to this Agreement and the Security Trust Deed and the Existing Bank
shall be released from their respective obligations towards one another
under this Agreement and the Security Trust Deed, other than the
obligations thereunder which remain outstanding from the Obligors to
the Existing Bank ("DISCHARGED OBLIGATIONS") and their respective
rights against one another under this Agreement and the Security Trust
Deed other than the outstanding rights thereunder of the Existing Bank
against the Obligors ("DISCHARGED RIGHTS") shall be cancelled and the
rights of the Existing
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Bank against the Obligors shall be assigned to the Transferee party
to the relevant Transfer Certificate (the "ASSIGNED RIGHTS");
18.3.2 the Transferee party to the relevant Transfer Certificate and the
existing parties to this Agreement and the Security Trust Deed (other
than such Existing Bank) shall assume obligations towards each other
which differ from the discharged obligations only insofar as they are
owed to or assumed by such Transferee instead of to or by such
Existing Bank as a result of such transfer; and
18.3.3 the Transferee party to the relevant Transfer Certificate and the
existing parties to this Agreement and the Security Trust Deed (other
than such Existing Bank) shall acquire rights against each other
which differ from the discharged rights and the assigned rights only
insofar as they are exercisable by or against such Transferee instead
of by or against such Existing Bank as a result of such transfer
and, on such Effective Date, the Transferee shall pay to the Agent for
its own account a fee of $1,500. The Agent shall promptly notify the
Original Borrower of the receipt by it of any Transfer Certificate and
shall promptly deliver a copy of such Transfer Certificate to the
Original Borrower.
18.4 RELIANCE ON TRANSFER CERTIFICATE
The Finance Parties, the Obligors, the Ultimate Shareholder and each
GTS Creditor shall be fully entitled to rely on any Transfer
Certificate delivered to the Agent in accordance with the foregoing
provisions of this clause 18 which is complete and regular on its face
as regards its contents and purportedly signed on behalf of the
relevant Existing Bank and the Transferee and none of the Finance
Parties or the Obligors or the Ultimate Shareholder or the GTS
Creditors shall have any liability or responsibility to any party as a
consequence of placing reliance on and acting in accordance with any
such Transfer Certificate if it proves to be the case that the same was
not authentic or duly authorised.
18.5 AUTHORISATION OF AGENT
Each party to this Agreement irrevocably authorises the Agent to
counter-sign each Transfer Certificate on its behalf for the purposes
of clause 18.3 without any further consent of, or consultation with,
any such party except, in the case of the Original Borrower, the
consent required pursuant to clause 18.3 and, in the case of any
Obligor incorporated in Ireland or Denmark, the notice required
pursuant to clause 18.3.
18.6 CONSTRUCTION OF CERTAIN REFERENCES
If any Bank transfers all or any part of its rights, benefits and
obligations as provided in clause 18.3 all relevant references in this
Agreement to such Bank shall thereafter be construed as a reference to
such Bank and/or its Transferee to the extent of their respective
interests.
18.7 LENDING OFFICES
Each Bank shall lend through its office at the address specified in
part B of schedule 1 or, as the case may be, in any relevant Transfer
Certificate or through any other office of such Bank selected from time
to time by such Bank through which such Bank wishes to lend. If the
office through which a Bank lending is changed pursuant to this clause
18.7, such Bank shall notify the Agent and the Original Borrower
promptly of such change.
18.8 DISCLOSURE OF INFORMATION
No Finance Party shall disclose any Confidential Information to any
person without the consent of the Original Borrower, other than (a) to
such Finance Party's associate companies and their officers, directors,
employees, agents and advisors provided that such Person shall have
agreed in writing to maintain confidentiality on the equivalent terms
as set forth herein, (b) to an actual or prospective Transferee
provided that such Transferee shall have agreed in writing to
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maintain confidentiality on the equivalent terms as set forth herein or
(c) as required by any law, rule or regulation or order of any court or
order or request of any governmental agency with whose instructions the
recipient habitually complies. For the purposes of this clause 18.8
"Confidential Information" means information that any member of the
Group furnishes to any Finance Party on a confidential basis, but does
not include any such information that is already known to the
recipient, is or becomes generally available to the public other than
as a result of a breach by any Finance Party of its obligations
hereunder or that is or becomes available to such Finance Party from a
source other than the Group.
18.9 RESTRICTIONS ON TRANSFERS
Where a Bank transfers part of its rights, benefits and obligations
pursuant to clause 18.3, that Bank must transfer equal fractions of its
Commitment and Contribution. The Transfer Certificate relating to any
such transfer shall be completed accordingly.
19 ARRANGERS, AGENT, SECURITY TRUSTEE, REFERENCE BANKS AND ORIGINAL
BORROWER
19.1 APPOINTMENT OF AGENT
Each Bank irrevocably appoints the Agent as its Agent for the purposes
of this Agreement and the other Finance Documents and irrevocably
authorises the Agent in such capacity:
19.1.1 to execute all documents as may be approved by the Majority Banks for
execution by the Agent; and
19.1.2 (whether or not by or through employees or agents) to take such
action on such Bank's behalf and to exercise such rights, remedies,
powers and discretions as are specifically delegated to the Agent by
this Agreement or any other Finance Document, together with such
powers and discretions as are reasonably incidental thereto (but
subject to any restrictions or limitations specified in this
Agreement or any other Finance Document). None of the Agent, or the
Arrangers or the Security Trustee shall, however, have any duties,
obligations or liabilities (whether fiduciary or otherwise) to the
Banks beyond those expressly stated in this Agreement or any other
Finance Document.
Notwithstanding that the Agent and the Security Trustee may from time
to time be the same entity, the Agent and Security Trustee have
entered into this Agreement in their separate capacities as agent for
the Banks under and pursuant to this Agreement and as security
trustee for the Beneficiaries (as defined in the Security Trust Deed)
to hold the security created or to be created by the Security
Documents on the terms set out in the Security Trust Deed. However,
where this Agreement provides for the Agent to communicate with or
provide instructions to the Security Trustee, while the Agent and the
Security Trustee are the same entity, it will not be necessary for
there to be any such formal communications or instructions
notwithstanding that this Agreement provides in certain cases for the
same to be in writing.
19.2 AGENT'S ACTIONS
Any action taken by the Agent under or in relation to this Agreement
with requisite authority, or on the basis of appropriate instructions,
received from the Majority Banks (or as otherwise duly authorised)
shall be binding on all the Banks.
19.3 AGENT'S DUTIES
The Agent shall:
19.3.1 promptly notify each Bank of the contents of each notice, certificate
or other document received by the Agent from any Obligor or GTS
Creditor under or pursuant to this Agreement or any other Finance
Document;
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19.3.2 consult with the Banks as to whether and, if so, how a discretion
vested in the Agent is, either in any particular instance or generally,
to be exercised but so that this shall not prevent the Agent in
exceptional circumstances where time does not permit such consultation
and urgent action is required, from exercising its rights and powers,
or from instructing the Security Trustee to exercise its rights and
powers, to preserve the security constituted by the Security Documents
so long as the Agent promptly notifies the Banks subsequently of such
exercise; and
19.3.3 (subject to the other provisions of this clause 19) take such action
or, as the case may be, refrain from taking such action with respect to
the exercise of any of its rights, remedies, powers and discretions as
Agent or Security Trustee as the Majority Banks may reasonably direct.
19.4 AGENT'S RIGHTS
The Agent may:
19.4.1 in the exercise of any right, remedy, power or discretion in relation
to any matter, or in any context, not expressly provided for by this
Agreement, act or, as the case may be, refrain from acting in
accordance with the instructions of the Majority Banks, and shall be
fully protected in so doing;
19.4.2 unless and until it shall have received directions from the Majority
Banks, take such action, or refrain from taking such action in respect
of a Default of which the Agent has actual knowledge as it shall deem
advisable in the best interests of the Banks (but shall not be obliged
to do so);
19.4.3 refrain from acting in accordance with any instructions of the Majority
Banks to institute, or to instruct the Security Trustee to institute
any legal proceedings arising out of or in connection with this
Agreement or any other Finance Document until it has been indemnified
and/or secured to its satisfaction against any and all costs, expenses
or liabilities (including legal fees) which it and/or the Security
Trustee would or might incur as a result;
19.4.4 deem and treat (i) each Bank as the person entitled to the benefit of
the Contribution of such Bank for all purposes of this Agreement and
the Security Documents unless and until a Transfer Certificate shall
have been filed with the Agent and shall have become effective, and
(ii) the office set opposite the name of each Bank in part B of
schedule 1 or, as the case may be, in any relevant Transfer Certificate
as such Bank's funding office unless and until a written notice of
change of funding or issuing (as the case may be) office shall have
been received by the Agent; and the Agent may act upon any such notice
unless and until the same is superseded by a further such notice;
19.4.5 rely as to matters of fact which might reasonably be expected to be
within the knowledge of any Obligor or GTS Creditor upon a certificate
signed by any director of the relevant Obligor or GTS Creditor on
behalf of such Obligor or GTS Creditor; and
19.4.6 refrain from doing anything which would, or might in its opinion, be
contrary to any law or regulation of any jurisdiction and may do
anything which is in its opinion necessary or desirable to comply with
any such law or regulation.
19.5 RIGHTS OF THE SECURITY TRUSTEE
In addition to all rights of the Security Trustee set out in the Security
Trust Deed, each Bank hereby grants a power of attorney to the Security
Trustee, with the right of substitution to enter into the Security
Documents on its behalf.
19.6 NO LIABILITY OF ARRANGERS, AGENT, SECURITY TRUSTEE
None of the Arrangers, the Security Trustee, the Agent or any of their
respective employees and agents shall:
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19.6.1 be obliged to request any certificate or opinion under clause 12.1 or
any other provision of any Finance Document or to make any enquiry as
to the use of the proceeds of the Facility unless (in the case of the
Agent) so required in writing by any Bank, in which case the Agent
shall promptly make the appropriate request of the relevant Obligor
or GTS Creditor; or
19.6.2 be obliged to make any enquiry as to any breach or default by any
Obligor or GTS Creditor in the performance or observance of any of
the provisions of any Finance Document or as to the existence of a
Default unless (in the case of the Agent) the Agent has actual
knowledge thereof or has been notified in writing thereof by a Bank,
in which case the Agent shall promptly notify the Banks of the
relevant event or circumstance; or
19.6.3 be obliged to enquire whether or not any representation or warranty
made by any Obligor or GTS Creditor pursuant to any Finance Document
is true; or
19.6.4 be obliged to do anything (including, without limitation, disclosing
any document or information) which would, or might in its opinion, be
contrary to any law or regulation or be a breach of any duty of
confidentiality or otherwise be actionable or render it liable to any
person; or
19.6.5 be obliged to account to any Bank for any sum or the profit element
of any sum received by it for its own account; or
19.6.6 be obliged to institute any legal proceedings arising out of or in
connection with, or otherwise take steps to enforce, any Finance
Document other than on the instructions of the Majority Banks; or
19.6.7 be liable to any Bank for any action taken or omitted under or in
connection with any Finance Document or the Total Outstandings unless
caused by its gross negligence or wilful misconduct.
For the purposes of this clause 19 neither the Agent, the Arrangers or
the Security Trustee shall be treated as having actual knowledge of any
matter of which the corporate finance or any other division outside the
agency or loan administration department of the person for the time
being acting as the Agent or the Security Trustee, as the case may be,
may become aware in the context of corporate finance, advisory or
funding activities from time to time undertaken by the Agent or the
Security Trustee, as the case may be, for the Ultimate Shareholder or
any of its Subsidiaries or Associated Companies or any other person
which may be a trade competitor of any of the Obligors or GTS Creditors
or may otherwise have commercial interests similar to those of any of
the Obligors or GTS Creditors.
19.7 NON-RELIANCE ON ARRANGERS, AGENT OR SECURITY TRUSTEE
Each Bank acknowledges, by virtue of its execution of this Agreement
or, as the case may be, a Transfer Certificate, that it has not relied
on any statement, opinion, forecast or other representation made by the
Arrangers, the Agent or the Security Trustee to induce it to enter into
this Agreement and that it has made and will continue to make, without
reliance on the Agent, the Arrangers or the Security Trustee and based
on such documents as it considers appropriate, its own appraisal of the
creditworthiness of the Immediate Shareholder and its Subsidiaries and
its own independent investigation of the financial condition, prospects
and affairs of the Immediate Shareholder and its Subsidiaries in
connection with the making and continuation of the Total Outstandings
under this Agreement. None of the Arrangers, the Agent or the Security
Trustee shall have any duty or responsibility, either initially or on a
continuing basis, to provide any Bank with any credit or other
information with respect to the Obligors or GTS Creditors whether
coming into its possession before the making of any Advance or the
issue of any Bank Guarantee or at any time or times thereafter, other
than (in the case of the Agent) as provided in clause 19.3.1.
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19.8 NO RESPONSIBILITY ON ARRANGERS, AGENT OR SECURITY TRUSTEE FOR ANY
OBLIGOR'S OR GTS CREDITORS PERFORMANCE
None of the Arrangers, the Agent or the Security Trustee shall have
any responsibility or liability to any Bank:
19.8.1 on account of the failure of any Obligor or GTS Creditor to perform
its obligations under any Finance Document to which it is party; or
19.8.2 for the financial condition of any Obligor or GTS Creditor; or
19.8.3 for the completeness or accuracy of any statements, representations
or warranties in any of the Finance Documents or the Information
Memorandum or any document delivered under any of the Finance
Documents; or
19.8.4 for the execution, effectiveness, adequacy, genuineness, validity,
enforceability or admissibility in evidence of any of the Finance
Documents or of any certificate, report or other document executed or
delivered under any of the Finance Documents; or
19.8.5 (save as otherwise provided in this clause 19) for taking or omitting
to take any other action under or in relation to the Finance
Documents or any aspect thereof; or
19.8.6 in the case of the Arrangers, on account of the failure of the Agent
or the Security Trustee to perform or discharge any of their
respective duties or obligations under the Finance Documents; or
19.8.7 otherwise in connection with the Facility or its negotiation or for
acting (or, as the case may be, refraining from acting) in accordance
with the instructions of the Majority Banks.
19.9 RELIANCE ON DOCUMENTS AND PROFESSIONAL ADVICE
The Arrangers, the Agent and the Security Trustee shall be entitled to
rely on any communication, instrument or document believed by it to be
genuine and correct and to have been signed or sent by the proper
person and shall be entitled to rely as to legal or other professional
matters on opinions and statements of any legal or other professional
advisers selected or approved by it (including those in the Agent's,
any Arranger's or the Security Trustee's, as the case may be
employment).
19.10 OTHER DEALINGS
The Arrangers, the Agent and the Security Trustee may, without any
liability to account to the Banks, accept deposits from, lend money to,
and generally engage in any kind of banking or other business with, and
provide advisory or other services to, the Ultimate Shareholder, the
Immediate Shareholder or any of their respective Subsidiaries or
Associated Companies or any Relevant Person or any of the Banks as if
it were not an Arranger, the Agent or the Security Trustee, as the case
may be.
19.11 RIGHTS OF AGENT AND SECURITY TRUSTEE AS BANK; NO PARTNERSHIP
With respect to its own Commitment and Contribution (if any) the Agent
and the Security Trustee shall have the same rights and powers under
this Agreement and the Security Documents as any other Bank and may
exercise the same as though it were not performing the duties and
functions delegated to it under this Agreement and/or the Security
Documents and the term "Banks" shall, unless the context clearly
otherwise indicates, include the Agent and/or the Security Trustee in
its individual capacity as a Bank. This Agreement shall not and shall
not be construed so as to constitute a partnership between the parties
or any of them.
19.12 AMENDMENTS; WAIVERS
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19.12.1 Subject to clause 19.12.2, the Agent may, with the consent of the
Majority Banks (or if and to the extent expressly authorised by
the other provisions of this Agreement) and, if so instructed by
the Majority Banks, shall (i) agree amendments or modifications
to any Finance Document with the Obligors, the Ultimate
Shareholder or any GTS Creditor and/or (ii) vary or waive
breaches of, or defaults under, or otherwise excuse performance
of, any provision any Finance Document by any Obligor, the
Ultimate Shareholder or any GTS Creditor. Any such action so
authorised and effected by the Agent shall be documented in such
manner as the Agent shall (with the approval of the Majority
Banks) determine, shall be promptly notified to the Banks by the
Agent and (without prejudice to the generality of clause 19.2)
shall be binding on all the Banks.
19.12.2 Except with the prior written consent of all the Banks, the Agent
shall not have authority on behalf of the Banks (A) to agree with
any Obligor, the Ultimate Shareholder or any GTS Creditor any
amendment or modification to any Finance Document or to grant
waivers in respect of breaches or defaults or to vary or excuse
performance of or under any Finance Document by any Obligor, the
Ultimate Shareholder or any GTS Creditor, if the effect of such
amendment, modification, waiver, variation or excuse would be to
(i) reduce the Margin, (ii) postpone the due date or reduce the
amount of any reduction in availability, any payment of
principal, interest, commitment commission or other amount
payable by any Obligor or GTS Creditor under any Finance
Document, (iii) change the currency in which any amount is
payable by any Obligor or GTS Creditor under any Finance
Document, (iv) increase any Bank's Commitment, (v) extend the
Availability Period or (vi) change the definition of "Majority
Banks" in clause 4.2, (vii) change any provision of any Finance
Document which requires the approval or consent of all the Banks
such that the relevant approval or consent may be given otherwise
than with the sanction of all the Banks, (viii) change the order
of distribution under clause 9.10, (ix) change clause 17.2, (x)
change clause 6.2 or (xi) change this clause 19.11 or (B) to
release any Guarantor from its obligations under the Guarantee or
(C) release any asset of whatever nature that is subject to a
Security Document unless such release is to permit the disposal
or other dealing with such asset in accordance with the terms of
this Agreement and the relevant Security Document.
19.12.3 For the purposes of this clause 19.12 it is expressly agreed and
acknowledged that the execution of a Deed of Guarantor Accession
or a Deed of Borrower Accession or any deed or instrument
pursuant to a further assurance provision in the Security
Documents shall not constitute an amendment or modification to,
or variation of, this Agreement or any of the Security Documents
shall not constitute an amendment or modification to, or
variation of, this Agreement.
19.13 REIMBURSEMENT AND INDEMNITY BY BANKS
Each Bank shall reimburse the Security Trustee, the Arrangers and the
Agent (rateably in accordance with such Bank's Commitment or
Contribution), to the extent that the Security Trustee, the Arrangers
or the Agent are not reimbursed by the Obligors, for the costs, charges
and expenses incurred by the Security Trustee, the Arrangers and the
Agent contemplation of, or otherwise in connection with, the
enforcement or attempted enforcement of, or the preservation or
attempted preservation of any rights under, or in carrying out its
duties under, the Finance Documents including (in each case) the fees
and expenses of legal or other professional advisers. Each Bank shall
on demand indemnify the Agent and the Security Trustee (rateably in
accordance with its Commitment or Contribution) against all
liabilities, damages, costs and claims whatsoever incurred by the Agent
or the Security Trustee (as the case may be) in connection with the
Finance Documents or the performance of its duties under the Finance
Documents or any action taken or omitted by the Agent or the Security
Trustee (as the case may be) under any of the Finance Documents, unless
such liabilities, damages, costs or claims arise from the Agent's or
the Security Trustee's (as the case may be) own gross negligence or
wilful misconduct.
19.14 RETIREMENT OF AGENT
19.14.1 The Agent may retire from its appointment as Agent under this
Agreement having given to the Original Borrower, each of the
Banks not less than 30 days' notice of its intention to do
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so and provided that no such retirement shall take effect unless
there has been appointed by the Banks as a successor Agent:
(a) a Bank nominated by the Majority Banks with the consent of
the Original Borrower (not to be unreasonably withheld or
delayed) or, failing such a nomination,
(b) any reputable and experienced bank or financial institution
with offices in London nominated by the Agent with the
consent of the Original Borrower (not to be unreasonably
withheld or delayed).
Any corporation into which the Agent may be merged or converted
or any corporation with which the Agent may be consolidated or
any corporation resulting from any merger, conversion,
amalgamation, consolidation or other reorganisation to which the
Agent shall be a party shall, to the extent permitted by
applicable law, be the successor Agent under this Agreement
without the execution or filing of any document or any further
act on the part of any of the parties to this Agreement, save
that notice of any such merger, conversion, amalgamation,
consolidation or other reorganisation shall forthwith be given to
the Original Borrower and the Banks.
19.14.2 Upon any such successor as aforesaid being appointed, the
retiring Agent shall be discharged from any further obligation
under this Agreement (but shall continue to have the benefit of
this clause 19 in respect of any action it has taken or refrained
from taking prior to such discharge) and its successor and each
of the other parties to this Agreement shall have the same rights
and obligations among themselves as they would have had if such
successor had been a party to this Agreement in place of the
retiring Agent. The retiring Agent shall (at the expense of the
Original Borrower) provide its successor with copies of such of
its records as its successor reasonably requires to carry out its
functions under the Finance Documents.
19.15 CHANGE OF REFERENCE BANKS
If (a) the whole of the Contribution (if any) of any Reference Bank is
prepaid, (b) the Commitment (if any) of any Reference Bank is reduced
to zero in accordance with clause 16.1, (c) a Reference Bank transfers
the whole of its rights and obligations (if any) as a Bank under this
Agreement or (d) any Reference Bank generally ceases to provide
quotations to the Agent for the purposes of determining LIBOR or
EURIBOR (as the case may be), the Agent may, acting on the instructions
of the Majority Banks, terminate the appointment of such Reference Bank
and with the approval of the Borrowers (such approval not to be
unreasonably withheld or delayed) appoint another Bank to replace such
Reference Bank.
19.16 PROMPT DISTRIBUTION OF PROCEEDS
Moneys received by the Security Trustee (whether from a Receiver or
otherwise) pursuant to the exercise of (or otherwise by virtue of the
existence of) any rights and powers under or pursuant to any of the
Security Documents shall be paid to the Agent for distribution in
accordance with the terms of the Security Trust Deed shall be
distributed by the Agent as soon as is practicable after the relevant
moneys are received by, or otherwise become available to, the Agent
save that (without prejudice to any other provision contained in any of
the Security Documents) the Agent (acting on the instructions of the
Majority Banks) may credit any moneys received by it to a suspense
account for so long and in such manner as the Agent may from time to
time determine with a view to preserving the rights of the Finance
Parties or any of them to prove for the whole of their respective
claims against any Obligor, GTS Creditor or any other person liable.
19.17 ORIGINAL BORROWER
19.17.1 Each Obligor (other than the Original Borrower) and the Ultimate
Shareholder by its execution of this Agreement or a Deed of
Borrower Accession or a Deed of Guarantor Accession irrevocably
appoints the Original Borrower to act on its behalf as its agent
in relation to the Finance Documents and irrevocably authorises
(i) the Original Borrower on its
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behalf to supply all information concerning itself contemplated by
this Agreement and to give all notices and instructions (including,
in the case of a Borrower, Utilisation Notices) to execute on its
behalf any Deed of Borrower Accession or Deed of Guarantor Accession
and to make such agreements capable of being given or made by any
Obligor notwithstanding that they may affect such Obligor or the
Ultimate Shareholder (as the case may be), without further reference
to or consent of such Obligor or the Ultimate Shareholder (as the
case may be) and (ii) each Finance Party to give any notice, demand
or other communication to such Obligor or the Ultimate Shareholder
(as the case may be) pursuant to the Finance Documents to the
Original Borrower on its behalf, and in each case such Obligor or
the Ultimate Shareholder (as the case may be) shall be bound thereby
as though such Obligor itself had given such notices and
instructions (including, without limitation, any Utilisation
Notices) or executed or made such agreements or receive any such
notice, demand or other communication.
19.17.2 Every act, omission, agreement, undertaking, settlement, waiver,
notice or other communication given or made by the Original Borrower
or given to the Original Borrower under this Agreement, or in
connection with this Agreement (whether or not known to any other
Obligor or the Ultimate Shareholder (as the case may be) and whether
occurring before or after such other Obligor or the Ultimate
Shareholder (as the case may be) became a party to this Agreement)
shall be binding for all purposes on the Ultimate Shareholder and
all other Obligors as if the Ultimate Shareholder and the other
Obligors had expressly made, given or concurred with the same. In
the event of any conflict between any notices or other
communications of the Original Borrower and any other Obligor or the
Ultimate Shareholder (as the case may be), those of the Original
Borrower shall prevail.
19.18 THE ULTIMATE SHAREHOLDER
The Ultimate Shareholder acknowledges (i) for the benefit of the
Finance Parties the terms and conditions of this Agreement including,
without limitation, the representations and warranties and undertakings
given by its Subsidiaries provided, however, that nothing in this
Agreement shall create any liability of the Ultimate Shareholder to the
Finance Parties or the Finance Parties to the Ultimate Shareholder and
(ii) that it will be inquiring into the possibility of obtaining
private equity investment in either itself or its affiliates. In
relation thereto, each party to this Agreement agrees to work together
in good faith to endeavour to identify, discuss and, subject to the
agreement of all the parties to this Agreement, address and implement
changes to this Agreement and the Supplemental Agreement necessary or
appropriate to obtain such investment.
20 NOTICES AND OTHER MATTERS
20.1 NOTICES
Every notice, request, demand or other communication under this
Agreement shall:
20.1.1 be in writing delivered personally or by priority registered letter
(airmail if available) or telefax;
20.1.2 be deemed to have been received, subject as otherwise provided in
this Agreement in the case of a letter when delivered and, in the
case of a telefax, when a complete and legible copy is received by
the addressee (unless the date of despatch is not a business day in
the country of the addressee or the time of despatch of any telefax
is after the close of business in the country of the addressee in
which case it shall be deemed to have been received at the opening
of business on the next such business day); and
20.1.3 be sent:
(a) to the Ultimate Shareholder and each Obligor at:
GTS Carrier Services (UK) Ltd
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇
▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
Telefax: +44 (0) (▇▇) ▇▇▇▇ ▇▇▇▇
Attention: Corporate Treasurer and General Counsel
(b) to the Agent and the Security Trustee at:
Deutsche Bank AG London
Winchester House
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Telefax: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇/6419
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇/▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(c) to the Arrangers at:
Deutsche Bank AG London
Winchester House
1 Great ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Telefax: + 44 207 545 7130
Attention: Project and Export Finance Group
Bank of America International Limited.
Bank of America House
▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
Telefax: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Dresdner Bank AG London Branch
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Telefax: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
(d) to each Bank
at its address or telefax number
specified (in the case of a Bank) in part B of schedule 1 or
in any relevant Transfer Certificate
or to such other address or telefax number as is notified by the
relevant party to the other parties to this Agreement.
20.2 NOTICES THROUGH THE AGENT
Every notice, request, demand or other communication under this
Agreement to be given by any Obligor to any other party shall be given
to the Agent for onward transmission as appropriate and to be given to
the Ultimate Shareholder or the Obligors (or any of them) shall (except
as otherwise provided in this Agreement) be given by the Agent.
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20.3 NO IMPLIED WAIVERS, REMEDIES CUMULATIVE
No failure or delay on the part of the Finance Parties or any of them
to exercise any power, right or remedy under this Agreement shall
operate as a waiver thereof, nor shall any single or partial exercise
by the Finance Parties or any of them of any power, right or remedy
preclude any other or further exercise thereof or the exercise of any
other power, right or remedy. The remedies provided in this Agreement
are cumulative and are not exclusive of any remedies provided by law.
20.4 ENGLISH TRANSLATIONS
All certificates, instruments and other documents to be delivered under
this Agreement shall be in the English language or shall be accompanied
by a certified English translation upon which the Finance Parties shall
be entitled to rely.
20.5 COUNTERPARTS
This Agreement may be executed in any number of counterparts and by the
different parties on separate counterparts, each of which when so
executed and delivered shall be an original, but all counterparts shall
together constitute one and the same instrument.
20.6 CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
No term of this Agreement is enforceable under the Contracts (Rights of
Third Parties) ▇▇▇ ▇▇▇▇ by a person who is not party to this Agreement.
21 GOVERNING LAW AND JURISDICTION
21.1 LAW
This Agreement shall be governed by English law.
21.2 SUBMISSION TO JURISDICTION
The parties to this Agreement agree for the benefit of the Finance
Parties that:
21.2.1 if any party has any claim against any other arising out of or in
connection with this Agreement such claim shall (subject to clause
21.2.3) be referred to the High Court of Justice in England, to the
jurisdiction of which each of the parties irrevocably submits;
21.2.2 the jurisdiction of the High Court of Justice in England over any
such claim against the Finance Parties shall be an exclusive
jurisdiction and no courts outside England shall have jurisdiction
to hear or determine any such claim; and
21.2.3 nothing in this clause 21.2 shall limit the right of any Finance
Party to refer any such claim against any other party to any other
court of competent jurisdiction outside England, to the jurisdiction
of which such party hereby irrevocably agrees to submit, nor shall
the taking of proceedings by any Finance Party before the courts in
one or more jurisdictions preclude the taking of proceedings in any
other jurisdiction whether concurrently or not.
21.3 AGENT FOR SERVICE OF PROCESS
21.3.1 Each Obligor irrevocably designates, appoints and empowers GTS
Carrier Services (UK) Limited at present of ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ to receive for it and on its behalf service of
process issued out of the High Court of Justice in England in
relation to any claim arising out of or in connection with this
Agreement.
21.3.2 For the benefit of the Finance Parties and for the purpose of this
Agreement and any claims arising out of or in connection with this
Agreement, each Obligor which is a legal entity
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organised and existing under the laws of The Netherlands hereby
irrevocably elects domicile (within the meaning of Section 1.15 of The
Netherlands Civil Code) at the address from time to time of GTS Carrier
Services (UK) Limited.
IN WITNESS whereof the parties to this Agreement have caused this Agreement to
be duly executed on the date first above written.
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SCHEDULE 1
PART A - THE ORIGINAL GUARANTORS
COMPANY COUNTRY OF REGISTERED NUMBER REGISTERED ADDRESS
INCORPORATION (IF ANY)
-------- -------------- ------------------ ------------------------------
▇▇▇▇▇ A/S Denmark CVR-nr. 19743144 ▇▇▇▇▇▇▇▇ ▇▇,▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Global TeleSystems (Denmark) A/S Denmark CVR-nr. 21480878 ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ V
GTS Transatlantic Limited Ireland 287207 ▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇
▇▇▇▇▇ Broadband Services Limited Ireland 276431 2 Custom ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇
GTS Network (Ireland) Limited Ireland 275582 2 Custom ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇
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SCHEDULE 1
PART B - THE BANKS AND THEIR COMMITMENTS
NAME, ADDRESS AND FAX NUMBER COMMITMENT (EURO)
---------------------------- ------------------
Bank of America, N.A.
▇▇▇▇▇▇ ▇▇ ▇▇▇ 100,000,000
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax number:▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Deutsche Bank AG London
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 100,000,000
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Attention: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Fax number: Project and Export Finance Group
Dresdner Bank AG London Branch
Riverbank House
2 Swan Lane 100,000,000
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Fax number: ▇▇▇▇ ▇▇▇ ▇▇▇▇
TOTAL (euro) 300,000,000
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SCHEDULE 2
FORM OF UTILISATION NOTICE
To: Deutsche Bank AG London
Winchester House
1 Great ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Attention: Credit Administration Department
With a copy to: Deutsche Bank AG London
Winchester House
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇-▇▇▇▇▇/▇▇▇▇▇▇▇ ▇▇▇▇▇▇
(Corporate Trust & Agency Services) [Date]
(EURO) 300,000,000 TERM LOAN FACILITY AGREEMENT
DATED O, 2000 (AS FROM TIME TO TIME AMENDED, VARIED, EXTENDED, RESTATED,
REFINANCED OR REPLACED, THE "AGREEMENT")
We refer to the Agreement and hereby give you notice that we wish to draw down
an Advance on o with a Term of o months.
The funds should be credited to [name and number of account] with [details of
bank].
We confirm that:
(a) so far as we are aware, no event or circumstance has occurred and is
continuing which constitutes a Default; and
(b) the representations and warranties contained in clause 11.1 of the
Agreement (as adjusted in accordance with clause 11.3 of the Agreement)
are true and correct as at the date of this notice as if made with
respect to the facts and circumstances existing at the date of this
notice.
We confirm that:
(i) the ratio of the Loan (including for these purposes the amount of the
Utilisation the subject of this notice) to Annualised Consolidated Net
Operating Cash Flow (determined by reference to the most recently ended
month in respect of which Quarterly Management Accounts in respect of the
Three Month Period ending on the last day of such month have been
delivered under the Agreement) (does not exceed [ ]; and
(ii) on the Utilisation Date the gross cash balances (other than the Ultimate
Shareholder Permitted Cash Balances) of the Ultimate Shareholder Group
(other than the Group) are not more than (euro)10,000,000 and the gross
cash balances (other than the Group Permitted Cash Balances) of the Group
are less than (euro)10,000,000.
Words and expressions defined in the Agreement shall have the same meanings
where used in this notice.
For and on behalf of
[RELEVANT BORROWER]
----------------------------------------
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SCHEDULE 3
PART A - DOCUMENTS AND EVIDENCE REQUIRED AS CONDITIONS PRECEDENT
TO FIRST UTILISATION
(a) A copy, certified as a true, complete and up-to-date copy by an
Authorised Officer of the relevant Obligor (including, for the avoidance
of doubt for the purpose of the whole of schedule 3 Part A, GTS Network
Services (Belgium) B.V.B.A. and GTS Support Services (Belgium) B.V.B.A.)
of the constitutive documents of the Ultimate Shareholder and each
Obligor amended, in the case of the Belgian and Irish constitutive
documents (including, without limitation, the Articles of Association) to
the extent required by the Agent.
(b) A copy, certified as a true copy by an Authorised Officer of the Ultimate
Shareholder or the relevant Obligor, of resolutions of the relevant
boards, committees and/or bodies of the shareholders of the Ultimate
Shareholder and each Obligor evidencing approval of the Finance Documents
to which it is party and authorising the appropriate officers of such
company to execute and deliver the Finance Documents to which it is party
and to give all notices (including, in the case of the Original Borrower,
Utilisation Notices) and take all other action required by each such
company under the Finance Documents to which it is party.
(c) Specimen signatures, authenticated by an Authorised Officer of the
Ultimate Shareholder or the relevant Obligor, of the persons authorised
in the resolutions referred to in paragraph (b) above.
(d) A copy, certified as a true copy by an Authorised Officer of the Ultimate
Shareholder or the relevant Obligor, of all consents, authorisations,
licences and approvals required by the Ultimate Shareholder and each
Obligor to authorise, or required by the Ultimate Shareholder or each
Obligor in connection with, the execution, delivery, validity,
enforceability and admissibility in evidence of the Finance Documents and
the performance by (as the case may be) the relevant Obligor (as the case
may be) of their respective obligations under the Finance Documents.
(e) An opinion of ▇▇▇▇▇▇ ▇▇▇▇ addressed to the Finance Parties, dated not
more than five Banking Days prior to the first Utilisation Date, in a
form acceptable to the Agent.
(f) Opinions of ▇▇▇▇▇ Dutilh, ▇▇▇▇▇ ▇'▇▇▇▇▇▇▇ & Partners, Gorrissen
Federspeil and Huysmans Trenite Van Doorne addressed to the Finance
Parties dated not more than five Banking Days prior to the first
Utilisation Date, in a form acceptable to the Agent.
(g) A copy, certified as a true copy by an Authorised Officer of the Original
Borrower of a letter from each agent for receipt of service by process
accepting its appointment by each Obligor under the Agreement and the
Security Trust Deed.
(h) A copy of the audited financial statements of the Immediate Shareholder
Group for the financial year ended on 31 December 1999.
(i) An agreed format of budget.
(j) A copy of the Quarterly Management Accounts of the Group and the Group in
respect of the Three Month Period ending on 31 March 2000.
(k) Copies, certified by an Authorised Officer of the relevant Obligor to be
true, complete and up to date copies of the Principal Agreements and the
Licences, together with a certificate from an Authorised Officer of the
relevant Obligor confirming that such documents are in full force and
effect.
(l) Evidence of all existing Encumbrances except Capital Leases.
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99
(m) The fee letters referred to in clause 8 duly signed by the Original
Borrower.
(n) The IS Charge over Account, each Belgian Share Security, each Danish
Share Security, each Irish Share Security, the Dutch Share Security, the
Dutch Pledge of Accounts, the Dutch Pledge of Intercompany Receivables,
the Assignment over Insurance, the Intercompany Loan Agreement, each
Irish Debenture, each Belgian Deed of Guarantor Accession and the
Security Trust Deed duly executed by the relevant Obligor as party
thereto together with all documents, deeds, notices, certificates
required to be delivered pursuant to the terms thereof.
(o) Due diligence reports addressed to the Finance Parties from ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇ Dutilh, Gaedertz and Huysmans Trenite Van Doorne and, in respect of
certain regulatory matters, General Counsel of the Ultimate Shareholder
(in form and substance satisfactory to the Banks) and an opinion from
▇▇▇▇▇▇ & ▇▇▇▇▇▇ in respect of the Licences (in form and substance
satisfactory to the Banks).
(p) Evidence that the Belgian Share Security and the Danish Share Securities
have been notified in the relevant shareholders registers.
(q) If applicable in the Relevant Jurisdiction, Share Certificates and duly
executed stock transfer forms undated (with the name of the transferee
left blank) of all companies which are subject to the terms of a Share
Security.
(r) A report of A H & T Technology Brokers, insurers brokers of the Group.
(s) Copies of all notices (in the form attached to the Security Documents
referred to in paragraph (n) above) referred to in such Security
Documents and acknowledgements of the same by the relevant addresses.
(t) An Opinion of Shearman & Sterling addressed to the Finance Parties dated
not more than five Banking Days prior to the first Utilisation Date
confirming that the execution, delivery by the Obligors and performance
of their obligations under the Finance Documents will not breach,
conflict with or result in a default under the indentures in respect of
the High Yield Securities.
(u) An Opinion of in-house counsel of the Ultimate Shareholder addressed to
the Finance Parties dated not more than five Banking Days prior to the
first Utilisation Date, in a form acceptable to the Agent.
(v) A certificate from Ernst & Young as auditors to the Group for the
purposes of sections 34 and 35 of the Irish Companies ▇▇▇ ▇▇▇▇.
(w) A certificate of an Authorised Officer of the Original Borrower
certifying that (i) in addition to the amount of $518,472,000 injected in
the Original Borrower by the Immediate Shareholder by way of shareholder
loans to, or subscription for equity share capital in, the Original
Borrower, all cash (or equivalent) on the balance sheet of the Immediate
Shareholder Group as of 31 December 1999 together with all interest
thereon has been injected in the Original Borrower by way of shareholder
loans to, or subscription for equity share capital in, the Original
Borrower which shall be approximately $900,000,000 but in any event no
less than $890,000,000 (in each case, excluding foreign currency
translation losses); and (ii) no dividends or other distributions in
respect of its share capital have been paid or other distributions in
respect of its share capital have been paid or declared by the Original
Borrower or payments made in respect of principal of or interest on any
shareholder loans made by the Immediate Shareholder to the Original
Borrower.
The following will be exempted from the requirements of clause (i) above:
(i) $55 million cash or cash equivalents allowed to remain at the
Immediate Shareholder;
(ii) cash used to make interest payments on the High Yield Securities
up to 30 June 2000 (for the avoidance of doubt $56,959,375);
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(iii) cash required to fund the July 2000 and the August 2000 interest
payments on the High Yield Securities (for the avoidance of doubt
$30,021,875); and
(iv) any other adjustments to be mutually agreed upon by the Original
Borrower and the Agent (acting on the instructions of the Majority
Banks).
(x) An opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ addressed to the Finance Parties dated
not more than five Banking Days prior to the first Utilisation Date in a
form reasonably acceptable to the Agent.
(y) A letter addressed to the Arrangers from Ernst & Young stating Ernst &
Young have performed certain procedures with respect to the arithmetic
calculations in and logical connections between the Excel spreadsheets
included in the Business Plan referred to in paragraph (aa) below and
that Ernst & Young found no exceptions as a result of performing any of
the procedures.
(z) (i) Corporate formalities certificate in respect of each Irish Obligor
signed by a director of each Irish Obligor and (ii) corporate formalities
certificate in respect of each Belgian Guarantor signed by a director of
each Belgian Obligor.
(aa) The Business Plan, together with a letter (including a representation)
addressed to the Agent from the Original Borrower in relation to the
Business Plan.
(bb) A letter of undertaking addressed to the Agent from the Ultimate
Shareholder in relation inter alia to the City Enterprise Networks and
the Web Hosting Centre Businesses.
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PART B - DOCUMENTS AND EVIDENCE REQUIRED AS CONDITIONS PRECEDENT FOR ANY
ACCEDING GUARANTOR OR ACCEDING BORROWERS (AS THE CASE MAY BE)
1 A copy, certified as a true, complete and up-to-date copy by an
Authorised Officer of the proposed Acceding Borrower or Acceding
Guarantor, of the constitutional documents of such proposed Acceding
Borrower or Acceding Guarantor amended to the extent required by the
Agent.
2 A copy, certified as a true, complete and up-to-date copy by an
Authorised Officer of the proposed Acceding Borrower or Acceding
Guarantor, of the applicable resolutions of such proposed Acceding
Borrower or Guarantor in the relevant jurisdiction approving the
execution and delivery of a Deed of Borrower Accession or Deed of
Guarantor Accession and any Security Documents to which it is party, the
accession of such proposed Acceding Borrower or Acceding Guarantor to
this Agreement and the Security Trust Deed and the performance of its
obligations under the Agreement and the Security Documents to which it is
a party and authorising a named person or persons to sign such Deed of
Borrower Accession or Deed of Guarantor Accession, any other Security
Document and any other documents to be delivered by such proposed
Acceding Borrower or Acceding Guarantor pursuant thereto.
3 A certificate of an Authorised Officer of the proposed Acceding Borrower
or Acceding Guarantor setting out the names and signatures of the person
or persons authorised to sign, on behalf of such proposed Acceding
Borrower or Acceding Guarantor, the Deed of Borrower Accession or Deed of
Guarantor Accession, any other Security Documents to which it is a party
and any other documents to be delivered by such proposed Acceding
Borrower or Acceding Guarantor pursuant thereto.
4 If the proposed Acceding Borrower or Acceding Guarantor is incorporated
in a jurisdiction other than England and Wales, a copy, certified a true
copy by or on behalf of the proposed Acceding Borrower or Acceding
Guarantor, of all consents, authorisations, licences and approvals
required by such Acceding Borrower or Acceding Guarantor to authorise, or
required by such Acceding Borrower or Acceding Guarantor in connection
with the execution, delivery, validity, enforceability, admissibility in
evidence of the relevant Deed of Borrower Accession or Deed of Guarantor
Accession or Security Documents to which it is party and to enable the
proposed Acceding Borrower or Acceding Guarantor to perform its
obligations thereunder and under the Finance Documents.
5 If the proposed Acceding Borrower or Acceding Guarantor is incorporated
in a jurisdiction other than England and Wales, an opinion of the Banks'
local counsel in the relevant jurisdiction addressed to the Finance
Parties in such form and substance so as to cover the same issues as were
opined on in the legal opinions referred to in schedule 3 part A.
6 If the proposed Acceding Borrower or Acceding Guarantor is to become a
Borrower or a Guarantor (as the case may be) and is incorporated in
England and Wales, a letter from the Acceding Borrower or Acceding
Guarantor to the agent confirming that such proposed Acceding Borrower or
Acceding Guarantor is not prohibited by section 151 of the Companies ▇▇▇
▇▇▇▇ from entering into the Finance Documents and performing its
obligations thereunder.
7 An opinion of ▇▇▇▇▇▇ ▇▇▇▇ addressed to the Finance Parties in such form
and substance so as to cover the same issues as were opined on in the
legal opinions referred to in schedule 3 part A.
8 If the proposed Acceding Borrower or Acceding Guarantor is incorporated
in a jurisdiction other than England and Wales, evidence that the process
agent specified in the relevant Finance Documents has agreed to act as
its agent for the service of process in England.
9 A Share Security over the shares of the Acceding Guarantor, duly executed
as a deed by the parties to it.
10 If applicable, share certificates and stock transfer forms executed in
blank.
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11 The proposed Acceding Borrower or Acceding Guarantor has given security
over its relevant assets as requested by the Agent pursuant to clause
12.1.22 (which may include, for the avoidance of doubt, a Pledge over
Intercompany Receivables, a Pledge over Third Party Receivables, a Pledge
over Group Accounts, Licence Securities, a PPE Security, a Security
Provider's Deed of Accession).
12 A certificate of an Authorised Officer of the relevant Acceding Guarantor
or Acceding Borrower confirming that utilisation of the Facility would
not cause any borrowing or guarantee limit binding on the Acceding
Guarantor or Acceding Borrower to be exceeded.
13 A copy of any other authorisation or other document, opinion or assurance
which is necessary for the execution, delivery, validity and
enforceability of the Deed of Guarantor Accession or Deed of Borrower
Accession or any Finance Document to which it is party insofar as it is
necessitated by the execution of the Deed of Guarantor Accession or Deed
of Borrower Accession or any Security Document to which it is party.
14 A certificate of an Authorised Officer of the Original Borrower
confirming that its constitutional documents have not been amended (or,
if they have, enclosing a copy of the amended constitutional documents)
and that all authorisations and resolutions authorising its appropriate
officers to execute and deliver the Deed of Guarantor Accession or Deed
of Borrower Accession are full force and effect.
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SCHEDULE 4
CALCULATION OF ADDITIONAL COST
1 The Additional Cost shall be calculated by the Agent in respect of each
period for which it falls to be calculated in accordance with the
following formula:
0.01F
Y ----- = per cent. per annum
100
Where:
F = The amount of Sterling per (pound)1,000,000 of the fee
base of an authorised institution payable to the Financial
Services Authority per annum (disregarding any minimum fee payable
under the Fees Regulations).
Y = The fraction of foreign currency liabilities taken into
account under the Fees Regulations in calculating the fee base
(disregarding any offset for claims on non-resident offices).
2 For the purposes of calculating the Additional Cost:
(i) the formula is applied on the first day of each period for which
it falls to be calculated (and the result shall apply for the
duration of such period);
(ii) each amount is rounded up to the nearest four decimal places; and
(iii) if the formula produces a negative percentage, the percentage
shall be taken as zero.
3 If alternative or additional financial requirements are imposed by the
Bank of England, the Financial Services Authority or any other United
Kingdom governmental authority or agency which in the Agent's opinion
(after consultation with the Banks) make the formulae (or either of them)
no longer appropriate, the Agent shall be entitled by notice to the
Original Borrower to stipulate such other formulae as shall be suitable
to apply in substitution for the formulae. Any such other formulae so
stipulated shall take effect in accordance with the terms of such notice.
4 In this schedule 4:
"AUTHORISED" and "INSTITUTION" have the meanings given to those terms in
the Banking ▇▇▇ ▇▇▇▇;
"BANK OF ENGLAND ACT" means the Bank of ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇;
"ELIGIBLE INSTITUTION" has the meaning given to that term in schedule 2
to the Bank of England Act;
"ELIGIBLE LIABILITIES" has the meaning given to that term in the Cash
Ratio Deposits (Eligible Liabilities) Order 1998 or the applicable
substitute order made under the Bank of England Act as is in force on the
date of application of the formulae;
"FEE BASE" has the meaning given to that term in the Fees Regulations;
"FEES REGULATIONS" means the Banking Supervision (Fees) Regulations 2000
or the applicable substitute regulations made under the Bank of England
Act as are in force on the date of application of the formulae; and
"SPECIAL DEPOSITS" has the meaning given to that term by the Bank of
England on the date of application of the formulae.
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SCHEDULE 5
FORM OF TRANSFER CERTIFICATE
BANKS ARE ADVISED NOT TO EMPLOY TRANSFER CERTIFICATES WITHOUT FIRST ENSURING
THAT THE TRANSACTION COMPLIES WITH ALL APPLICABLE LAWS AND REGULATIONS,
INCLUDING THE FINANCIAL SERVICES ▇▇▇ ▇▇▇▇ AND REGULATIONS MADE THEREUNDER.
To: Deutsche Bank AG London
Winchester House
1 Great ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
on its own behalf, as Agent for the Banks and on behalf of the Arrangers, the
Security Trustee, each GTS Creditor, each Obligor and each other party to the
Security Trust Deed.
Attention: Credit Administration Department [Date]
[NOTE: ALL TRANSFERS SHOULD BE NOTIFIED BY THE ORIGINAL BORROWER TO ANY IRISH OR
DANISH OBLIGORS AND ANY TRANSFEREE SHOULD HAVE ITS INTEREST NOTED ON THE SHARE
REGISTER OF ANY DANISH OBLIGOR]
Transfer Certificate
This Transfer Certificate relates to an agreement (as from time to time amended,
varied, extended, restated, refinanced or replaced, the "AGREEMENT") dated o
2000 between Global TeleSystems Europe Holdings BV as Original Borrower and
Guarantor (1), Global TeleSystems Europe B.V. as Immediate Shareholder and
Guarantor (2), the Subsidiaries of the Original Borrower whose respective names
and addresses are set out in part A of schedule 1 thereto as Original Guarantors
(3), Global TeleSystems Inc, as the Ultimate Shareholder (4), Deutsche Bank AG
London, Bank of America N.A. and Dresdner Bank AG as Arrangers (5), the banks
and financial institutions whose respective names and addresses are set out in
part B of schedule 1 thereto as Banks (6) Deutsche Bank AG London as Agent (7)
and Deutsche Bank AG London as Security Trustee (8). Terms defined in the
Agreement shall have the same meaning in this Transfer Certificate.
1 [Name of Existing Bank] (the "EXISTING BANK") (a) confirms the accuracy
of the summary of its Commitment and Contribution in respect of the
Revolving Credit Facility set out in the schedule to this Transfer
Certificate; (b) requests [Transferee Bank] (the "TRANSFEREE") to accept
and procure the transfer to the Transferee of the portion of such
Commitment and Contribution specified in the schedule to this Transfer
Certificate by counter-signing and delivering this Transfer Certificate
to the Agent at its address for the service of notices specified in the
Agreement and (c) further requests the Transferor to accept and procure
the transfer to the Transferee of all its claims, rights and obligations
under each Danish Share Security.
2 The Transferee requests the Agent (on behalf of itself and the other
parties to the Security Trust Deed) to accept this Transfer Certificate
as being delivered to the Agent pursuant to and for the purposes of
clause 18.3 of the Agreement, so as to take effect in accordance with its
terms on [date of transfer], (the "EFFECTIVE DATE").
3 The Agent (on behalf of itself and the other parties to the Security
Trust Deed) confirms the transfer effected by this Transfer Certificate
pursuant to and for the purposes of clause 18.3 of the Agreement so as to
take effect in accordance with the terms thereof.
4 The Transferee confirms:
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(a) that it has received a copy of each of the Finance Documents and
other documentation and information required by it in connection
with the transactions contemplated by this Transfer Certificate;
(b) that it has made its own assessment of the execution,
effectiveness, adequacy, genuineness, validity, enforceability and
admissibility in evidence of each of the Finance Documents and
this Transfer Certificate and has not relied and will not rely on
the Existing Bank or any statements made by the Existing Bank in
that respect;
(c) that it has made and will continue to make its own appraisal of
the creditworthiness of the Immediate Shareholder Group and the
GTS Creditors and its own independent investigation of the
financial condition, prospects and affairs of the Immediate
Shareholder Group and the GTS Creditors and has not relied and
will not rely on the Existing Bank, or any other Finance Party or
any statement, opinion, forecast or other representation made by
the Existing Bank or any other Finance Party in that respect;
(d) accordingly, none of the Existing Bank, the Agent, the Arrangers,
the Security Trustee or any other Bank shall have any liability or
responsibility to the Transferee in respect of any of the
foregoing matters; and
(e) it is a Qualifying Bank.
5 Execution of this Transfer Certificate by the Transferee constitutes its
representation to the Existing Bank and all other parties to the Finance
Documents that it has power to become party to the Agreement and the
Security Trust Deed as a Bank on the terms herein and therein set out and
has taken all necessary steps to authorise execution and delivery of this
Transfer Certificate.
6 The Existing Bank makes no representation or warranty and assumes no
responsibility with respect to the legality, validity, effectiveness,
adequacy or enforceability of each of the Finance Documents or any
document relating thereto and assumes no responsibility for the financial
condition of the Immediate Shareholder Group or any other party to any
Finance Document or for the performance and observance by the Obligors,
the GTS Creditors or any other such party of any of its obligations under
any Finance Document or any document relating thereto and any and all
such conditions and warranties, whether express or implied by law or
otherwise, are hereby excluded.
7 The Transferee hereby undertakes to the Existing Bank, the GTS Creditors,
the Obligors, the Security Trustee, the Arrangers and the Agent that it
will perform in accordance with their terms all those obligations which
by the respective terms of the Agreement and the Security Trust Deed will
be assumed by it after acceptance of this Transfer Certificate by the
Agent.
8 The Transferee acknowledges that the Existing Bank has no obligation to
repurchase or reacquire any of the rights and obligations transferred by
virtue of this Transfer Certificate or to support, indemnify or
compensate the Transferee for any losses suffered by the Transferee as a
consequence of the transfer effected by virtue of this Transfer
Certificate.
9 This Transfer Certificate and the rights and obligations of the parties
hereunder are governed by and shall be construed in accordance with
English law.
Note: This Transfer Certificate is not a security, bond, note, debenture,
investment or similar instrument.
AS WITNESS the hands of the authorised signatories of the parties hereto on the
date appearing below.
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THE SCHEDULE
Amount of outstanding Maturity Dates Portion transferred
Advances and Currency
Amount of Portion transferred
Commitment (euro)
(euro)
Administrative Details of Transferee
Funding office:
Account for payments:
Telephone:
Telefax:
Attention:
[Existing Bank] [Transferee]
By: By:
Date: Date:
The Agent
By:
on its own behalf
and on behalf of the other parties to the Agreement and the Security Trust Deed
Date:
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SCHEDULE 6
PART A - COMPLIANCE CERTIFICATE TO BE DELIVERED BY AN AUTHORISED OFFICER
OF THE ORIGINAL BORROWER
To: Deutsche Bank AG London
Winchester House
1 Great ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
(As Agent under the Agreement
as defined below)
Attention: ▇▇▇▇▇▇ ▇▇▇▇-▇▇▇▇▇/▇▇▇▇▇▇▇ ▇▇▇▇▇▇
(Corporate Trust & Agency Services)
[Date]
Dear Sirs,
(euro)300,000,000 TERM LOAN FACILITY AGREEMENT
DATED O, 2000 (AS FROM TIME TO TIME AMENDED, VARIED, EXTENDED, RESTATED,
REFINANCED OR REPLACED THE "AGREEMENT")
We refer to the Agreement and deliver this Certificate in respect of the Three
Month Period ended [SPECIFY LAST DAY OF MONTH] pursuant to clause 12.1.9(b)
thereof. Terms defined in the Agreement shall have the same meaning when used in
this Certificate.
We confirm the figures and ratios set out in the schedule based on the Quarterly
Management Accounts delivered to the Agent pursuant to clause 12.1.7 of the
Agreement in respect of the Three Month Period ended [ ]:
Accordingly, we confirm that [save as disclosed in this certificate] on [LAST
DAY OF MONTH] the Original Borrower was in compliance with those covenants
contained in clauses 13.1.1 to 13.1.3 inclusive of the Agreement which were
applicable as at such date.
We also confirm that the representations and warranties referred contained in
clause 11.1 of the Agreement (as adjusted in accordance with clause 11.3 of the
Agreement) are true and correct at the date hereof as if each was made with
respect to the facts and circumstances arising at the date hereof and that no
event or circumstance has occurred and is continuing which would constitute a
Default.
We further notify you that the following agreements are Principal Agreements for
the purposes of the Agreement [ ].
For and on behalf of
Global TeleSystems Europe Holdings BV
--------------------------------------------------
Authorised Officer
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THE SCHEDULE
FIGURES
-------
(i) Consolidated Revenues of the Group adjusted as set out in clause
13.1.1 of the Agreement in respect of the Three Month Period ended
[ ] were [ ]
[insert calculation details].
(ii) Consolidated Net Operating Cash Flow of the Group adjusted as set
out in clause 13.1.2 of the Agreement in respect of the Three Month
Period ended [ ] was [ ]
[insert calculation details].
(iii) Consolidated Capital Expenditure of the Group adjusted as set out in
clause 13.1.3 of the Agreement in respect of the period from 1
January 2001 to [ ] was [ ]
[insert calculation details].
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PART B - ACCOUNTANTS REPORT TO BE DELIVERED BY THE AUDITORS
OF THE IMMEDIATE SHAREHOLDER GROUP
To: Deutsche Bank AG London
Winchester House
1 Great ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
(As Agent under the Agreement
as defined below)
Attention: ▇▇▇▇▇▇ ▇▇▇▇-▇▇▇▇▇/▇▇▇▇▇▇▇ ▇▇▇▇▇▇
(Corporate Trust & Agency Services)
[Date]
GLOBAL TELESYSTEMS EUROPE HOLDINGS B.V.
(euro)300,000,000 TERM LOAN FACILITY AGREEMENT
DATED O, 2000 (AS FROM TIME TO TIME AMENDED, VARIED, EXTENDED, RESTATED,
REFINANCED OR REPLACED THE "AGREEMENT")
We have audited, in accordance with auditing standards generally accepted in the
United States, the financial statements of Global TeleSystems Europe B.V. and
Global TeleSystems Europe Holdings B.V. as of and for the year ended December
31, 20XX, and have issued our reports thereon dated March XX, 20XX and March XX,
20XX, respectively. Words and expressions defined in the Agreement shall have
the same meanings when used in this letter.
In addition, we have performed the procedures enumerated below, which were
agreed to by the Agent and management of Global TeleSystems Europe B.V., solely
to assist you in evaluating the accompanying Statement of Financial Covenants of
Global TeleSystems Europe Holdings B.V. for the year ended December 31, 200X.
This agreed-upon procedures engagement was performed in accordance with
attestation standards established by the American Institute of Certified Public
Accountants. The sufficiency of these procedures is solely the responsibility of
the specified users of the report. Consequently, we make no representation
regarding the sufficiency of the procedures described below either for the
purpose for which this report has been requested or for any other purpose.
We performed the following procedures:
1. Compared the dollar amounts in the accompanying Statement of Financial
Covenants to the amounts in the audited consolidated financial statements
of Global TeleSystems Europe B.V. and Global TeleSystems Europe Holdings
B.V. described in the introductory paragraph of this letter to the extent
such amounts are included in or can be derived from such statements and
found them to be in agreement;
2. Proved the arithmetical accuracy of the Consolidated Revenues of the
Group adjusted as set out in clause 13.1.1 of the Agreement;
3. Proved the arithmetical accuracy of the Consolidated Net Operating Cash
Flow of the Group adjusted as set out in clause 13.1.2 of the Agreement;
and
4. Proved the arithmetical accuracy of the Consolidated Capital Expenditure
of the Group adjusted as set out in clause 13.1.3 of the Agreement.
The method of calculating the Financial Covenants is prescribed by Clauses
13.1.1; 13.1.2 and 13.1.3 of the Agreement.
We were not engaged to, and did not, perform an examination, the objective of
which would be the expression of an opinion on the accompanying Statement of
Financial Covenants. Accordingly, we do
93
110
not express such an opinion. Had we performed additional procedures, other
matters might have come to our attention that would have been reported to you.
This report is intended solely for the information and use of Banks party to the
Agreement and members of management of Global TeleSystems Europe B.V., and
should not be used by those who have not agreed to the procedures and taken
responsibility for the sufficiency of the procedures for their purposes.
94
111
SCHEDULE 7
LICENCES
Location: Type:
--------- -----
Austria Individual License - K ▇▇/▇▇-▇
▇▇▇▇▇▇▇ Individual Licence - INFR/PL99/0007
Denmark General Authorisation without Notification, Executive Order No. 581 dated July 6, 1999 on the
provision of Telecoms Networks and Services, part 1.1.5 and 1.5
France Individual Licence - ECO19700673A and ECOI002009LA
Germany Individual License, Class 3 - 97 03 ▇▇▇▇▇▇-▇
▇▇▇▇▇ Individual Licence
Netherlands General Authorisations with Registration - 900097, 900033, 900034 and ▇▇▇▇▇▇
▇▇▇▇▇ Individual Licence, Type C1 - ▇-▇▇▇/▇▇
▇▇▇▇▇▇▇▇▇▇▇ Individual License - Concession No. 25510 0023, modified on December 17, 1999 and including
the notification to OFCOM, Switzerland, dated 2 December 1999 (re: Geneva) and the
notification to OFCOM, Switzerland, dated 12 June 2000 (re: Zurich)
United Kingdom Individual License (PTO) - 3/1220/1/88
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SCHEDULE 8
PART A - DEED OF GUARANTOR ACCESSION
To: o as Agent
From: [ACCEDING GUARANTOR] and Global TeleSystems Europe Holdings BV
Date: [ ]
GLOBAL TELESYSTEMS EUROPE HOLDINGS BV $550,000,000 MULTI CURRENCY CREDIT
FACILITY AGREEMENT DATED O, 2000 (AS FROM TIME TO TIME AMENDED, VARIED,
EXTENDED, RESTATED, REFINANCED OR REPLACED THE "FACILITY AGREEMENT")
We refer to clause 10.18 of the Facility Agreement. Words and expressions
defined in the Facility Agreement have the same meanings when used in this Deed.
[NAME OF ACCEDING GUARANTOR] of [ADDRESS] (the "ACCEDING GUARANTOR") agrees to
become a Guarantor and to be bound by the terms of the Facility Agreement and
the Security Trust Deed as a Guarantor in accordance with clause 10.18 of the
Facility Agreement and clause 10.9 of the Security Trust Deed.
[Guarantee limitation language if necessary]
The address for notices of the Acceding Guarantor for the purposes of clause
20.1 of the Facility Agreement is:
[ ]
This Deed is intended to be executed as a deed and is governed by English law.
Clause 21 of the Facility Agreement is incorporated in this Deed as if set out
in this Deed, mutatis mutandis.
[NEW GUARANTOR] GLOBAL TELESYSTEMS EUROPE HOLDINGS BV
Authorised Signatory Authorised Signatory
[Appropriate execution clause] [Appropriate execution clause]
By: By:
[AGENT]
[Appropriate execution clause]
By:
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113
PART B - DEED OF BORROWER ACCESSION
To: o as Agent
From: [ACCEDING BORROWER] and Global TeleSystems Europe Holdings BV
Date: [ ]
GLOBAL TELESYSTEMS EUROPE HOLDINGS BV $550,000,000 MULTI CURRENCY REVOLVING
CREDIT FACILITY AGREEMENT DATED O, 2000 (AS FROM TIME TO TIME AMENDED, VARIED,
EXTENDED, RESTATED, REFINANCED OR REPLACED THE "FACILITY AGREEMENT")
We refer to clause 3.5 of the Facility Agreement. Words and expressions defined
in the Facility Agreement have the same meanings when used in this Deed.
[NAME OF ACCEDING RESTRICTED SUBSIDIARY] of [ADDRESS] (the "ACCEDING RESTRICTED
SUBSIDIARY") agrees to become a Borrower and to be bound by the terms of the
Facility Agreement and the Security Trust Deed as a Borrower in accordance with
clause 3.5 of the Facility Agreement and clause 10.9 of the Security Trust Deed.
The address for notices of the Acceding Borrower Subsidiary for the purposes of
clause 20.1 of the Facility Agreement is:
[ ]
This Deed is intended to be executed as a deed and is governed by English law.
Clause 21 of the Facility Agreement is incorporated in this Deed as if set out
in this Deed, mutatis mutandis.
[NEW BORROWER] GLOBAL TELESYSTEMS EUROPE HOLDINGS BV
Authorised Signatory Authorised Signatory
[Appropriate execution clause] [Appropriate execution clause]
By: By:
[AGENT]
[Appropriate execution clause]
By:
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SCHEDULE 9
FORM OF QUARTERLY MANAGEMENT ACCOUNTS
GLOBAL TELESYSTEMS EUROPE B.V.
CONDENSED CONSOLIDATED BALANCE SHEET
Current
Period
-----------
ASSETS
CURRENT ASSETS
Cash and cash equivalents
Restricted cash
Accounts receivable, net
Other current assets
-----------
TOTAL CURRENT ASSETS
Property and equipment, net
Goodwill and intangible assets, net
Other non-current assets
-----------
TOTAL ASSETS
===========
LIABILITIES AND SHAREHOLDERS' EQUITY
CURRENT LIABILITIES
Accounts Payable and accrued expenses
Deferred Revenue
Current portion of capital lease obligations
-----------
TOTAL CURRENT LIABILITIES
Long-term debt, less current portion
Long-term portion of capital lease obligations
Deferred revenue and other non-current liabilities
-----------
TOTAL LIABILITIES
SHAREHOLDERS' EQUITY
Common stock, 1000 guilders par value (297,000 shares
authorised; 200,316 shares issued and outstanding)
Additional paid-in capital
Accumulated other comprehensive loss
Accumulated deficit
-----------
TOTAL SHAREHOLDERS' EQUITY
-----------
TOTAL LIABILITIES AND SHAREHOLDERS' EQUITY
===========
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115
GLOBAL TELESYSTEMS EUROPE B.V.
CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS
Three Months
Ended
------------
Revenues
Operating expenses:
Access and network services
Selling, general and administrative
Depreciation and amortisation
Total operating expenses
-----------
Income from operations Other expense:
Interest, net
Foreign currency losses
Other expenses
-----------
Net loss before income taxes
Income taxes
-----------
Net loss before income taxes
===========
GLOBAL TELESYSTEMS EUROPE B.V.
CONDENSED CONSOLIDATED STATEMENT OF CASH FLOWS
Three Months
Ended
------------
NET CASH PROVIDED BY/(USED IN) OPERATING ACTIVITIES
INVESTING ACTIVITIES
Purchases of property and equipment
Restricted cash
Acquisitions, net of cash acquired
-----------
NET CASH USED IN INVESTING ACTIVITIES
FINANCING ACTIVITIES
Proceeds from debt
Repayments of debt
Payment of debt issuance costs
Due to affiliated companies, net
-----------
NET CASH PROVIDED BY/(USED IN) FINANCING ACTIVITIES
Effect of exchange rate changes on cash and cash equivalents
Net (decrease) increase in cash and cash equivalents
Cash and cash equivalents at beginning of period
-----------
CASH AND CASH EQUIVALENTS AT END OF PERIOD
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION:
-----------
Capitalisation of leases
===========
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116
GLOBAL TELESYSTEMS EUROPE HOLDINGS B.V.
CONDENSED CONSOLIDATED BALANCE SHEET
Current
Period
-------------
ASSETS
CURRENT ASSETS
Cash and cash equivalents
Restricted cash
Accounts receivable, net
Other current assets
-------------
TOTAL CURRENT ASSETS
Property and equipment, net
Goodwill and intangible assets, net
Other non-current assets
-------------
TOTAL ASSETS
=============
LIABILITIES AND SHAREHOLDERS' EQUITY
CURRENT LIABILITIES
Accounts Payable and accrued expenses
Deferred Revenue
Due to Affiliated Companies - Short-term
Current portion of capital lease obligations
-------------
TOTAL CURRENT LIABILITIES
Long-term debt, less current portion
Long-term portion of capital lease obligations
Deferred revenue Intercompany Loans - Long-term
Other non-current liabilities
-------------
TOTAL LIABILITIES
SHAREHOLDERS' EQUITY
Common stock, 1000 guilders par value (297,000 shares authorised; 200,316
shares issued and outstanding)
Additional paid-in capital
Accumulated other comprehensive loss
Accumulated deficit
-------------
TOTAL SHAREHOLDERS' EQUITY
-------------
TOTAL LIABILITIES AND SHAREHOLDERS' EQUITY
=============
100
117
GLOBAL TELESYSTEMS EUROPE HOLDINGS B.V.
CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS
Three Months
Ended
------------
Revenues
Operating expenses:
Access and network services
Selling, general and administrative
Depreciation and amortisation
Total operating expenses
------------
Income from operations Other expense:
Interest, net
Foreign currency losses
Other expenses
------------
Net loss before income taxes
Income taxes
------------
Net loss before income taxes
============
101
118
GLOBAL TELESYSTEMS EUROPE HOLDINGS B.V.
CONDENSED CONSOLIDATED STATEMENT OF CASH FLOWS
Three Months
Ended
------------
NET CASH PROVIDED BY/(USED IN) OPERATING ACTIVITIES
INVESTING ACTIVITES
Purchases of property and equipment
Restricted cash
Acquisitions, net of cash acquired
------------
NET CASH USED IN INVESTING ACTIVITIES
FINANCING ACTIVITIES
Proceeds from debt
Repayments of debt
Payment of debt issuance costs
Due to affiliated companies, net
------------
NET CASH PROVIDED BY/(USED IN) FINANCING ACTIVITIES
Effect of exchange rate changes on cash and cash equivalents
Net (decrease) increase in cash and cash equivalents
Cash and cash equivalents at beginning of period
------------
CASH AND CASH EQUIVALENTS AT END OF PERIOD
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION:
------------
Capitalisation of leases
============
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SCHEDULE 10
DISCLOSURES AGAINST CLAUSE 11.1.6 AND 11.2.5
FRANCE
On March 26, 1999, the Immediate Shareholder initiated a procedure opposing the
amount of the 1998 license fee imposed by the French regulator as, among other
things, contrary to Article 11 of EC Directive 97/13 which requires license fees
to cover only the administrative cost of managing a license. On September 23,
1999, the French Regulator informed the Immediate Shareholder that it had
rejected the Immediate Shareholder's position. On November 24, 1999, the
Immediate Shareholder filed a complaint before the French administrative
tribunal opposing the license fee.
On February 25, 2000, the Immediate Shareholder initiated a procedure opposing
the amount of the 1999 license fee imposed by the French regulator for the same
reasons stated above. After the Immediate Shareholder's position was rejected by
the French regulator on April 14, 2000, the Immediate Shareholder filed a
complaint before the French administrative tribunal on June 16, 2000.
Neither of these proceedings, regardless what the outcome may be, will have any
effect on the validity of the license or the rights granted by the license.
Under French law, the Immediate Shareholder would not be required to pay the
license fee until such time as a ruling by the French administrative court is
issued. If the Immediate Shareholder's claim is rejected in a final
non-appealable judgment, it will only be required to pay the full amount of the
license fee in France.
GERMANY
In Germany the Immediate Shareholder has opposed the amount of the license fee
imposed by the German regulator as, among other things, contrary to Article 11
of EC Directive 97/13 which requires license fees to cover only the
administrative cost of managing a licence. The Immediate Shareholder lodged an
appeal before the administrative court on March 29, 2000.
This proceeding, regardless what the outcome may be, will not have any effect on
the validity of the license or the rights granted by the license. If the
Immediate Shareholder's claim is rejected in a final non-appealable judgment,
the Immediate Shareholder will not be required to make any additional payments
because, in accordance with German law, it paid the license fee prior to the
appeal.
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120
SCHEDULE 11
PERMITTED DISPOSALS
(1) The liquidation of GTS Business Services (Portugal) LDA, GTS Carrier
Services (Vienna) GmbH, GTS Carrier Services (Denmark) Ltd., provided
that the relevant company at all times remains dormant.
(2) The liquidation of GTS Carrier Services (France) sarl provided that it
has previously transferred all of its assets to a member of the Group.
(3) The transfer of Global TeleSystems (Austria) GmbH, GTS Italia Srl and GTS
Slovakia s.r.o. from the Immediate Shareholder to the Original Borrower.
(4) The merger of Global TeleSystems (Denmark) AS with ▇▇▇▇▇ AS provided that
the conditions set out in clause 12.2.2 are satisfied.
(5) The merger of GTS Support Services (Belgium) B.V.B.A. with GTS Network
Services (Belgium) B.V.B.A. provided that the conditions set out in
clause 12.2.2 are satisfied.
(6) The disposal of the net assets of GTS Carrier Services (Italy) Srl to GTS
Italia Srl and the subsequent disposal of such assets from GTS Italia Srl
back to GTS Carrier Services (Italy) Srl.
(7) The disposal of the net assets of GTS Carrier Services (Czech) s.r.o.
from the Original Borrower to Czechnet and the subsequent liquidation of
the transferor provided that such company is then dormant.
(8) DC203144: Convention Cadre definissant les conditions generales
d'occupation du domaine public de la Ville de Paris ("Framework Agreement
defining the general conditions of using public rights of way in Paris")
between Ville de Paris and Global TeleSystems Europe BV dated February
21, 2000. This is a right of way which will be transferred to GTS Omnicom
S.A. as it is used for Paris CEN purposes only.
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121
SCHEDULE 12
DISCLOSURES AGAINST CLAUSE 3.6.2
1. Jakinarazpena/Notificacion dated December 23, 1998 for Canalizacion
Subterranea Y Cableado de Fibra Optica Para Telecomunicaciones, granted
by the Diputacion ▇▇▇▇▇ de Gipuzkoa: The Spanish authorities will be
notified of the transfer of this right of way immediately following the
transfer of the Spanish license to GTS Network (Ireland) Ltd. but the
Obligors cannot guarantee that such authorities will not require that
other procedures be followed.
2. Grant of Wayleave from Suffolk Coastal District Council: There is
currently a dispute with the Council over the amount of compensation to
be paid for a right of way across land and beach at Aldeburgh, Suffolk.
Although an oral settlement with the Council has been reached, the
settlement papers have not yet been signed. In the event that settlement
is not reached, this dispute will proceed to trial. It is anticipated
that in such event the right of way will only be transferable upon
conclusion of the proceedings.
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122
SCHEDULE 13
BUSINESS SERVICES ASSETS
ASSET SELLER PURCHASER CONSIDERATION
----- ------ --------- -------------
Low Order Transmission GTS Network (Ireland) Various Esprit Entities Cash or Assets
Equipment - 175 Alcatel 1641 Limited
ADMs
4 DCN IP Routers GTS Network (Ireland) Various Esprit Entities Cash or Assets
Limited
2 Cisco VoIP routers GTS Network (Ireland) Global TeleSystems (UK) Cash or Assets
Limited Limited
Shares in Global TeleSystems Global TeleSystems Europe the newly formed company Shares in Esprit Newco
(Nederland) B.V. Holdings B.V. which will own 100 per
cent. of the share
capital of Global
TeleSystems (Europe)
Limited following the
Esprit Restructuring
Shares in Global TeleSystems ▇▇▇▇▇ A/S the newly formed company Shares in Esprit Newco
(Denmark) AS which will own 100 per
cent. of the share
capital of Global
TeleSystems (Europe)
Limited following the
Esprit Restructuring
Shares in Global TeleSystems Global TeleSystems Europe the newly formed company Shares in Esprit Newco
(Sverige) AB Holdings B.V. which will own 100 per
cent. of the share
capital of Global
TeleSystems (Europe)
Limited following the
Esprit Restructuring
Shares in GTS Italia Srl Global TeleSystems Europe Attika Telecommunications Cash or Assets
Holdings B.V. plc (or another third
party)
106
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SCHEDULE 14
CENTRAL EUROPEAN GROUP
107
124
SCHEDULE 3
WAIVERS AND CONSENTS TO THE PRINCIPAL AGREEMENT
(CLAUSES REFER TO THE PRINCIPAL AGREEMENT UNLESS OTHERWISE STATED)
1 Clause 13.3 The breach (if any) of such clause in respect of the
Quarter Day 31 December 2000 shall be waived.
2 Clause 12.2.8 The Banks consent to:
(A) the acquisition by the relevant members of the Group
of the assets set out in schedule 5(A).
(B) the acquisition of the shares of the Ultimate
Shareholder in Golden Telecom by the Original
Borrower as set out in clause 4.11 of this
Supplemental Agreement.
(C) the acquisition of the shares of the new company
incorporated in The Netherlands referred to in
clause 4.12 by the Original Borrower.
for the following consideration: (a) first, a reduction of
$81 million in the payables owed to ▇▇▇▇▇ Broadband
Services Limited or other members of the Group (other than
the Golden Telecom Group and the Central European Group) by
other members of the Ultimate Shareholder Group (other than
Esprit) and (b) secondly, the agreement by the Original
Borrower to pay, under an intercompany loan agreement, to
the Ultimate Shareholder the balance of the fair market
value for the acquisitions described in (A), (B) and (C),
provided that no amount of principal or interest in respect
thereof is payable whilst any amount is outstanding or
capable of becoming outstanding under the Restated
Agreement.
3 Clause 12.2.8 The Banks consent to the acquisition by the relevant
members of the Group of the assets set out in schedule 5(B)
in consideration for a discharge of $43 million payables
owed by Esprit to members of the Group.
4 Clause 12.2.5 The breach (if any) of clause 12.2.5 as a result of the
payables which are created pursuant to the transactions
described in 2 above shall be waived.
5 Clause 12.2.9 The breach (if any) of clause 12.2.9 as a result of the non
payment by Esprit and the Ultimate Shareholder Group of the
payables owed to ▇▇▇▇▇ Broadband Services Limited or other
members of the Group (other than the Golden Telecom Group
and the Central European Group) which are to be discharged
as set out under paragraph 2 above shall be waived.
6 Clause 12.2.3 The Banks consent to the disposal by the Group of the
Business Services Assets as part of the Esprit
Restructuring for the consideration set out in schedule 13
of the Restated Agreement provided that the only third
party recourse to a member of the Group in relation to the
Business Services Assets or, in the case of a Company, the
obligations of such company following such disposal is in
relation to the transfer of the Business Service Assets;
125
7 Clause 11.1.8 Any breach of such representation to the extent
attributable to events or circumstances existing prior to
the Effective Date, which events and circumstances have
been notified to the Banks in writing by the Original
Borrower prior to the date of this Supplemental Agreement;
8 Clause 6.2(c) The Banks consent to variations to the terms of agreements
of the Dutch relating to the Intercompany Receivables (other than the
Pledge of Intercompany Loan Agreement) to allow amounts to be repaid
Intercompany and reborrowed thereunder following the Effective Date.
Receivables Capitalised terms have the meanings used in the Dutch
Pledge of Intercompany Receivables.
9 Clause 10.18.2 The Banks consent to Global TeleSystems (Nederland) B.V.
not becoming an Acceding Guarantor subject to the terms of
the proviso to paragraph 5 above.
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SCHEDULE 4
CONDITIONS PRECEDENT
1 A certificate from an Authorised Officer of the Original Borrower
confirming that the constitutive documents of each Obligor (prior to the
Effective Date), the Immediate Shareholder and the Ultimate Shareholder
have not been amended from the forms delivered to the Agent pursuant to
the Principal Agreement or, if they have been amended, attaching a copy
certified to be a true, complete and up-to-date copy of the amended
constitutive documents;
2 A copy, certified as a true copy by an Authorised Officer of each
Obligor and the Immediate Shareholder, of resolutions of the relevant
boards, committees and/or bodies of the shareholders of each Obligor and
the Immediate Shareholder evidencing approval of this Supplemental
Agreement and, in the case of any Obligors which are party to any of the
documents described at paragraphs 9 and 10, the documents to which it is
a party and authorising its appropriate officers to execute and deliver
this Supplemental Agreement and, in the case of any Obligors which are
party to any of the documents described at paragraphs 9 and 10, the
documents to which it is a party and to give all notices and take all
other action required by the relevant Obligor and the Immediate
Shareholder under this Supplemental Agreement and, in the case of any
Obligors which are party to any of the documents described at paragraphs
9 and 10, the documents to which it is a party;
3 Specimen signatures, authenticated by an Authorised Officer of the
Obligor, the Immediate Shareholder, the Ultimate Shareholder and GTS
European Telecommunications Corp of the persons authorised in the
resolutions of the Board of Directors or equivalent, referred to in
paragraph 2 above and paragraphs 12 and 15 below;
4 A copy, certified as a true copy by an Authorised Officer of the
Immediate Shareholder, the relevant Obligor, of all consents,
authorisations, licences and approvals required by the Immediate
Shareholder or the relevant Obligor in connection with the execution,
delivery, validity, enforceability and admissibility in evidence of this
Supplemental Agreement and, in the case of any Obligors which are party
to any of, the documents described at paragraphs 9 and 10, the documents
to which it is a party and the performance by (as the case may be) the
Immediate Shareholder or the relevant Obligor (as the case may be) of
their respective obligations under the Supplemental Agreement and, in the
case of any Obligors which are party to any of the documents described at
paragraphs 9 and 10, the documents to which it is a party.
5 An opinion of ▇▇▇▇▇▇ ▇▇▇▇ London (in respect of this Supplemental
Agreement and the document described at paragraph 10 below), Shearman &
Sterling (in respect of this Supplemental Agreement and the documents
described at 7, 8 and 11 below), ▇▇▇▇▇▇ ▇▇▇▇ & Associates (in respect of
this Supplemental Agreement and the document described at paragraph 10
below), ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ (in respect of this Supplemental Agreement
only), ▇▇▇▇▇ Dutilh (in respect of this Supplemental Agreement and the
deed of accession documents described at paragraphs 8 and 9 below),
Huysmans Trenite Van Doorne (in respect of this Supplemental Agreement
and the documents described at paragraph 9 below).
6 A copy, certified as a true copy by an Authorised Officer of the
Original Borrower of a letter from each agent for receipt of service of
process accepting its appointment under this Supplemental Agreement and
under the English law documents described at paragraphs 8 and 9 below.
7 Share Securities over the shares of each of (i) GTS-Hungaro, Inc., (ii)
GTS-Hungary Holding, Inc., (iii) GTS-Poland, Inc., (iv) GTS-Czech, Inc.,
(v) GTS-Bulgaria, Inc. and (vi) GTS-Romania, Inc., duly executed and
delivered by GTS European Telecommunications Corp.
8 A Guarantee and a Security Provider's Deed of Accession, each duly
executed and delivered by GTS European Telecommunications Corp.
127
9 A Pledge of Group Accounts and a Security Provider's Deed of
Accession each duly executed by GTS Network Services (Belgium) B.V.B.A.,
together with evidence that the notice described in clause 2.2 of the
Pledge of Group Accounts has been delivered.
10 The proceeds of the assets which are the subject of the Charge over
Shares in the Fidelity Institutional Cash Fund plc dated 19 September
2000 having been transferred to an account of GTS Network (Ireland)
Limited with Deutsche Bank AG London and GTS Network (Ireland) Limited
having executed a charge over such account, together with duly executed
copies of notices and acknowledgements from and to the Account Bank
referred to therein.
11 A Deed of Subordination, an Assignment of Shareholder Loans and a
Security Provider's Deed of Accession with respect to the payments to the
Ultimate Shareholder of the intercompany loan referred to in paragraph
2(b) of schedule 3 and a US Charge over Account, duly executed by the
Ultimate Shareholder, together with confirmation in the Shearman and
Sterling legal opinion that the execution, delivery and performance by
the Ultimate Shareholder of its obligations under the documents described
in this paragraph 11 will not breach, conflict with or result in a
default under the indentures in respect of the High Yield Securities.
12 A copy, certified as a true copy by an Authorised Officer of the
Ultimate Shareholder, of resolutions by the relevant boards and/or
committees of the Ultimate Shareholder evidencing approval of this
Supplemental Agreement, the documents described in paragraph 11 above and
the transfer of all assets described at schedule 5(A) and authorising its
appropriate officers to execute and deliver this Supplemental Agreement,
the documents described in paragraph 11 above and all documents required
to transfer of all assets described at schedule 5(A) and take all other
action required by the Ultimate Shareholder of its obligations under this
Supplemental Agreement, the documents described in paragraph 11 above and
to transfer of all assets described at schedule 5(A).
13 A copy, certified as a true copy by an Authorised Officer of the
Ultimate Shareholder of all consents, authorisations, licences and
approvals required by the Ultimate Shareholder in connection with the
execution, delivery, validity, enforceability and admissibility in
evidence of this Supplemental Agreement, the documents described in
paragraph 11 above and the transfer of all assets described at schedule
5(A) and the performance by the Ultimate Shareholder of its obligations
under this Supplemental Agreement, the documents described in paragraph
11 above and in order to transfer of all assets described at schedule
5(A).
14 A copy, certified as a true, complete and up-to-date copy by an
Authorised Officer of the Ultimate Shareholder of the constitutive
documents of GTS European Telecommunications Corp and GTS-Hungaro, Inc.,
GTS-Hungary Holding, Inc., GTS-Poland, Inc., GTS-Czech, Inc.,
GTS-Bulgaria, Inc. and GTS-Romania, Inc.
15 A copy, certified as a true copy by an Authorised Officer of GTS
European Telecommunications Corp, of resolutions of the relevant boards
and/or committees of the shareholders of GTS European Telecommunications
Corp evidencing approval of the documents described at paragraphs 7 and 8
above and authorising its appropriate officers to execute and deliver the
documents described at paragraphs 7 and 8 above and take all other action
required by the GTS European Telecommunications Corp under the documents
described at paragraphs 7 and 8 above;
16 A copy, certified as a true copy by an Authorised Officer of the
Ultimate Shareholder or (as the case may be) GTS European
Telecommunications Corp of all consents, authorisations, licences and
approvals required by GTS European Telecommunications Corp in connection
with the execution, delivery, validity, enforceability and admissibility
in evidence of the documents described at paragraphs 7 and 8 above and
the performance by GTS European Telecommunications Corp of its
obligations under the documents described at paragraphs 7 and 8 above to
which it is a party.
17 A Certificate of an Authorised Officer of GTS European Telecommunications
Corp. confirming that the Utilisation of the Facility will not cause any
borrowing or guarantee limit binding on GTS European Telecommunications
Corp to be exceeded.
128
18 Share Certificates and duly executed stock transfer forms (with the name
of the transferee left blank) in respect of GTS-Hungaro, Inc.,
GTS-Hungary Holding, Inc., GTS-Poland, Inc., GTS-Czech, Inc.,
GTS-Bulgaria, Inc. and GTS-Romania, Inc.
19 The Golden Telecom Sale and Purchase Agreement having been executed and
delivered by all parties thereto, together with a copy of the fairness
opinion delivered to the Ultimate Shareholder by CSFB in relation to the
value of the Ultimate Shareholder's shares in Golden Telecom, Inc.
20 In respect of the Licences granted to or which were in the name of the
Immediate Shareholder, copies, certified to be true, up-to-date and
complete copies by an Authorised Officer of the Original Borrower of
either new Licences granted to Obligors and/or transfer documents
transferring unconditionally the Licences to Obligors.
21 Corporate formalities certificates in respect of (i) each Obligor
incorporated in Ireland signed by a director of each Irish Obligor and
(ii) each Obligor incorporated in Belgium signed by a director of each
Belgian Obligor.
22 A certificate from Ernst & Young as auditors to the Group for the
purposes of sections 34 and 25 of the Irish Companies ▇▇▇ ▇▇▇▇.
23 The Immediate Shareholder having paid all its cash (or equivalent)
balances to the Original Borrower to the credit of an account in the name
of the Original Borrower with Deutsche Bank AG London, save for balances
not exceeding (euro)1,000,000 in aggregate and the Group Permitted Cash
Balances.
24 The asset transfer agreements in respect of the shares of Global
TeleSystems (Luxembourg) Sarl, Netcom Holdings Limited, GTS eSolutions,
LLC and Global TeleSystems Property Limited required to be delivered
pursuant to clause 4.8 of this Supplemental Agreement, together with the
share certificates of each such company and copies of the stock transfer
forms of each such company with the name of Global TeleSystems Europe
Holdings B.V. completed as transferee, duly executed by the seller of
such shares named at schedule 5(A).
129
SCHEDULE 5(A)
GTS INC. ASSET TRANSFER
SELLER PURCHASER ASSETS
------ --------- ------
FRANCE
GTS Access Services (France) Sarl GTS Network (Ireland) Limited Paris CEN Assets
LUXEMBOURG
GTS Benelux BV Global TeleSystems Europe Holdings Transfer of shares in Global
BV TeleSystems (Luxembourg) sarl
UK
Global TeleSystems Inc Global TeleSystems Europe Holdings Transfer of shares in Netcom
BV Holdings Limited
USA
GTS Carrier Services Inc ▇▇▇▇▇ (North America) Inc PoP
Global TeleSystems Inc Global TeleSystems Europe Holdings Transfer of shares in GTS
BV eSolutions, LLC
CENTRAL EUROPE
Entities within the Central European Subsidiaries of the Original Fibre, cable, duct and equipment
Group Borrower in Central Europe
130
SCHEDULE 5(B)
ESPRIT ASSET TRANSFER
SELLER PURCHASER ASSETS
------ --------- ------
BELGIUM
GTS (Belgium) SA GTS Network Services (Belgium) BVBA National Data Contracts
GTS (Belgium) ▇▇ ▇▇▇▇▇ Broadband Services Limited International Data Contracts and
Internet Direct
DENMARK
GTS (Denmark) AS ▇▇▇▇▇ AS Data Contracts;
Employees
FRANCE
GTS Omnicom GTS Carrier Services France sarl Data Contracts;
PoP (BS to ▇▇▇▇▇);
Network Management Services (▇▇▇▇▇
to BS);
Employees
GTS Omnicom GTS Network (Ireland) Limited Paris CEN Assets
Esprit Telecom France SA GTS Network (Ireland) Limited Paris CEN Assets
GERMANY
Global TeleSystems Netzwerk GmbH & GTS Network (Ireland) Limited Berlin CEN Assets
▇▇.▇▇
GTS (Deutschland) GmbH ▇▇▇▇▇ (Germany) GmbH Data Contracts;
PoP (BS to ▇▇▇▇▇);
Employees;
Office space
IRELAND
GTS BS (Ireland) Limited ▇▇▇▇▇ Broadband Services Limited Data Contracts;
Employees
131
SELLER PURCHASER ASSETS
------ --------- ------
NORWAY
Global TeleSystems Group (Norge) AS Global TeleSystems Norge AS Data Contracts;
Employees
SPAIN
GTS (Espagna) SA GTS Network (Ireland) Limited Madrid CEN Assets
Barcelona CEN Assets
GTS (Espagna) SA GTS Carrier Services (Spain) SL Data Contracts;
Employees;
PoP (BS to ▇▇▇▇▇)
SWEDEN
GTS (Sverige) AB GTS Carrier Services (Sweden) AB Data Contracts;
Employees
SWITZERLAND
GTS Business Services (Switzerland) GTS Carrier Services (Switzerland) Data Contracts;
GmbH GmbH
Employees;
PoP Space (BS to ▇▇▇▇▇)
Office space
UK
Global TeleSystems (UK) Limited GTS Carrier Services (UK) Limited Data Contracts;
Employees
Global TeleSystems (UK) Limited ▇▇▇▇▇ Broadband Services Limited Transfer of certain international
Data contracts
Esprit Telecom Networks Limited ▇▇▇▇▇ Broadband Services Limited International Data contracts
Global TeleSystems (Europe) Limited GTS Carrier Services (UK) Limited Employees
Global TeleSystems (Europe) Limited Global TeleSystems Europe Holdings Transfer of shares in Global
BV TeleSystems Property Limited
(Shaftesbury Avenue)
132
SELLER PURCHASER ASSETS
------ --------- ------
Global TeleSystems (UK) Limited GTS Network (Ireland) Ltd London CEN Assets
PAN EUROPEAN FIBRE AND EQUIPMENT
ASSETS
Various Esprit Entities Subsidiaries of the Original Sundry Fibre and Equipment which
Borrower may have been purchased locally or
was previously owned by Esprit
entities.
Maintenance contracts
Utility contracts
Various POPs and co-location
agreements
Various permits and rights of use
133
THE IMMEDIATE SHAREHOLDER, SECURITY PROVIDER AND GUARANTOR
----------------------------------------------------------
SIGNED for and on behalf of )
GLOBAL TELESYSTEMS ) ▇▇▇▇▇▇▇ ▇▇▇▇▇
EUROPE B.V. )
by: )
THE ORIGINAL BORROWER
---------------------
SIGNED for and on behalf of )
GLOBAL TELESYSTEMS EUROPE ) ▇▇▇▇▇▇▇ ▇▇▇▇
HOLDINGS B.V. )
by: )
THE ULTIMATE SHAREHOLDER
------------------------
SIGNED for and on behalf of )
GLOBAL TELESYSTEMS, INC. ) ▇▇▇▇▇ ▇▇▇▇▇▇
by: )
THE ARRANGERS
-------------
SIGNED for and on behalf of )
BANC OF AMERICA ) ▇▇▇▇▇▇▇ ▇▇▇▇▇
SECURITIES LIMITED )
by: )
SIGNED for and on behalf of ) ▇▇▇▇▇▇ ▇▇▇▇
DEUTSCHE BANK AG LONDON )
by: ) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
SIGNED for and on behalf of ) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
DRESDNER BANK AG LONDON BRANCH )
by: ) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
THE BANKS
---------
SIGNED for and on behalf of )
BANK OF AMERICA, N.A. ) ▇▇▇▇▇▇▇ ▇▇▇▇▇
by: )
SIGNED for and on behalf of ) ▇▇▇▇▇▇ ▇▇▇▇
DEUTSCHE AG LONDON BRANCH )
by: ) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
134
SIGNED for and on behalf of ) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
DRESDNER BANK AG LONDON BRANCH )
by: ) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
THE AGENT
---------
SIGNED for and on behalf of ) ▇▇▇▇▇▇ ▇▇▇▇
DEUTSCHE BANK AG LONDON )
by: ) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
THE SECURITY TRUSTEE
--------------------
SIGNED for and on behalf of ) ▇▇▇▇▇▇ ▇▇▇▇
DEUTSCHE BANK AG LONDON )
by: ) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
THE WORKING CAPITAL BANK
------------------------
SIGNED for and on behalf of ) ▇▇▇▇▇▇ ▇▇▇▇
DEUTSCHE BANK AG LONDON )
by: ) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
GUARANTORS
----------
SIGNED for and on behalf of )
▇▇▇▇▇ A/S ) ▇▇▇▇▇▇▇ ▇▇▇▇▇
by: )
SIGNED for and on behalf of )
GLOBAL TELESYSTEMS (DENMARK) A/S ) ▇▇▇▇▇ ▇▇▇▇▇▇
by: )
SIGNED for and on behalf of )
GTS TRANSATLANIC LIMITED ) ▇▇▇▇▇▇▇ ▇▇▇▇▇
by: )
SIGNED for and on behalf of )
▇▇▇▇▇ BROADBAND SERVICES LIMITED ) ▇▇▇▇▇▇▇ ▇▇▇▇▇
by: )
SIGNED for and on behalf of )
GTS NETWORK (IRELAND) LIMITED ) ▇▇▇▇▇▇▇ ▇▇▇▇▇
by: )
135
SIGNED for and on behalf of )
GTS NETWORK SERVICES (BELGIUM) B.V.B.A ) ▇▇▇▇▇▇▇ ▇▇▇▇▇
by: )