Exhibit 10.24
DATED 6 APRIL 2000
BETWEEN
COMPLETEL EUROPE N.V.
AS PARENT
COMPLETEL S.A.S.
AS OBLIGORS' AGENT
MEMBERS OF THE COMPLETEL GROUP
AS ORIGINAL BORROWERS
MEMBERS OF THE COMPLETEL GROUP
AS ORIGINAL GUARANTORS
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL AND PARIBAS
AS LEAD ARRANGERS
EUROPEAN INVESTMENT FUND
AS RISK PARTICIPANT
PARIBAS
AS SECURITY AGENT
PARIBAS
AS FACILITY AGENT
AND
OTHERS
_______________________________________________
SUPPLEMENTAL AGREEMENT
RELATING TO THE SUSPENSION OF
CERTAIN PROVISIONS OF
A CREDIT AGREEMENT
DATED 6 JANUARY 2000 AND A
PARTICIPATION AGREEMENT DATED 17 MARCH 2000
_______________________________________________
THIS AGREEMENT is made on 6 April 2000
BETWEEN
(1) COMPLETEL EUROPE N.V. (the "Parent");
(2) COMPLETEL S.A.S. in its capacity as the obligors' agent (the "Obligors
Agent");
(3) THE COMPANIES listed in Part A of Schedule 1 (The Original Parties) of the
Credit Agreement (defined below) in their capacity as borrowers (the
"Original Borrowers");
(4) THE COMPANIES listed in Part B of Schedule 1 (The Original Parties) of the
Credit Agreement (defined below) in their capacity as original guarantors
(the "Original Guarantors");
(5) ▇▇▇▇▇▇▇ SACHS INTERNATIONAL and PARIBAS as lead arrangers (the "Lead
Arrangers")
(6) PARIBAS as facility agent for the Participants (the "Facility Agent");
(7) PARIBAS as security agent for the Participants (the "Security Agent");
(8) EUROPEAN INVESTMENT FUND as risk participant (the "EIF"); and
(9) THE FINANCIAL INSTITUTIONS named in Part C of Schedule 1 (The Original
Parties) of the Credit Agreement (defined below) in their capacity as Banks
(the "Banks").
RECITALS
IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Deed:
"Credit Agreement" means the euro 265,000,000 Credit Agreement dated 6
January 2000 between the Parent, the Obligors' Agent, the Original
Borrowers, the Original Guarantors, the Lead Arrangers, the Facility Agent,
the Security Agent and the Banks defined therein as amended and restated by
the Supplemental Deed.
"Effective Date" means the date the Facility Agent receives a notice from
the Parent stating that the New High Yield Bond is expected to close
imminently and requesting this Agreement to become effective immediately.
"Enlarged Business Plan" means the management base case for the Group
reflecting the utilisation of proceeds of the IPO and the New High Yield
Bond to be delivered by the Parent to the Facility Agent.
"New High Yield Bond" means the, up to, euro 300,000,000 senior notes due
2010 of the Parent to be issued in April 2000.
"Restricted Period" shall have the meaning given to such term in sub-clause
4.1.2 hereunder.
"Supplemental Deed" means the supplemental deed relating to the Credit
Agreement and the Subordination, Security Agency and Intercreditor Deed
dated 17 March 2000.
1.2 Incorporation of Defined Terms
Terms defined in the Credit Agreement shall, unless otherwise defined
herein, have the same meaning herein and the principles of construction set
out in the Credit Agreement shall have effect as if set out in this
Agreement.
1.3 Clauses
In this Agreement any reference to a "Clause" or a "Schedule" is, unless the
context otherwise requires, a reference to a Clause or a Schedule hereof.
Clause headings are for ease of reference only.
2. EFFECTIVE DATE
2.1 Effective Date
This Agreement (other than this Clause 2 (Effective Date), Clause 6 (Fees
Costs and Expenses) and Clause 7 (Miscellaneous)) shall become effective on
the Effective Date. Clause 2 (Effective Date), Clause 6 (Fees, Costs and
Expenses) and Clause 7 (Miscellaneous) are effective as at the date hereof.
In the event that either:
(i) the Effective Date has not occurred by the date falling thirty days
after the date hereof; or
(ii) the New High Yield Bond has not closed within five Business Days of the
Effective Date,
this Agreement shall terminate and the provisions of the Credit Agreement
and the Participation Agreement shall continue in full force and effect.
2.2 Notification
The Facility Agent shall promptly notify the Participants of the occurrence
of the Effective Date and any termination of this Agreement pursuant to
Clause 2.1.
3. REPRESENTATIONS
3.1 Repeated Representations
The Original Borrowers and the Original Guarantors on the date hereof and on
the Effective Date shall be deemed to make the representations set out in
Clauses 20.1 (Status) to 20.4 (Execution of the Finance Documents) and
Clause 20.8 (Validity and Admissibility in Evidence) of the Credit Agreement
as if the same were set out in full herein and as if each reference therein
to the "Credit Facility Documents" or the "Finance Documents" includes a
reference to this Agreement Provided that in respect of the deemed
repetition
of such representations on the Effective Date, any misrepresentation that
occurs solely because of the issue of the New High Yield Bond shall be
waived.
3.2 New Representation
Each Obligor on the date hereof and on the Effective Date represents and
warrants to the Participants that there have been no changes to the
constitutional documents delivered by such Obligor pursuant to the Credit
Agreement and the Supplemental Deed other than any changes notified and
evidenced to and acceptable to the Facility Agent on or prior to the
Effective Date.
4. AMENDMENTS TO THE CREDIT AGREEMENT AND THE PARTICIPATION AGREEMENT
4.1 The Credit Agreement
On the Effective Date, the relevant provisions of the Credit Agreement shall
be amended, read and construed so as to give effect to the provisions set
out in sub-clauses 4.1.1 to 4.1.10 below:
4.1.1 The Parent shall procure (and each Borrower which has drawn an
Advance shall repay its share of the Loan and accrued interest in
order to ensure) that the Loan and all amounts of accrued interest
are repaid in full on the Effective Date. No amount payable pursuant
to this sub-clause 4.1.1 or in respect of an amount payable pursuant
to this sub-clause 4.1.1 shall constitute an Overdue Amount for the
purposes of the Participation Agreement.
4.1.2 Each of the parties hereto agrees that the Facilities will not be
available for drawing and no Notice of Default may be given by the
Participating Lender to the EIF during the period beginning on the
Effective Date and ending on the earlier of:
(i) the date falling six months after the Effective Date or, if
before the end of such six month period the Parent has served
a notice on the Facility Agent requesting an extension of
three months, the date falling nine months after the Effective
Date;
(ii) the date upon which the Facilities are cancelled in full
pursuant to the provisions of Clause 13 (Cancellation and
Prepayment) of the Credit Agreement; and
(iii) the date the Facilities are restructured to reflect the
Enlarged Business Plan,
(the "Restricted Period"). Each of the parties hereto acknowledges
and confirms that the Banks shall be under no commitment to lend and
the EIF shall not be obliged to make payments under the Participation
Agreement during the Restricted Period.
4.1.3 The Parent and each of the Borrowers, jointly and severally, shall
pay to the Facility Agent for the account of each Bank a commitment
commission on the amount of such Bank's Tranche A Term Commitment and
Revolving
Commitment less, in the case of the Participating Lender, the Traded
Proportion (as defined in the Participation Agreement) of the
commitment commission calculated at the same rate and payable on the
same days as it is calculated and payable under Clause 26.1
(Commitment Commission on the Tranche A Term Facility) and Clause
26.2 (Commitment Commission on the Revolving Facility) of the Credit
Agreement.
4.1.4 The Parent and each of the Borrowers, jointly and severally, shall
pay to the Facility Agent for the account of the EIF the Traded
Proportion of the commitment commission referred to in sub-clause
4.1.3 on the Participated Portion of the Participating Lender's
Commitment calculated at the same rate and payable on the same days
as it is calculated and payable under Clause 26.5 of the Credit
Agreement.
4.1.5 Each of the Participants agrees, subject to receipt by it of all
amounts owed to it under sub-clause 4.1.1, to:
(i) waive the occurrence of any Event of Default subsisting on the
Effective Date;
(ii) disapply the provisions of Clause 22 (Financial Condition),
Clause 23 (Covenants) and Clause 24 (Events of Default) of the
Credit Agreement; and
(iii) disapply the provisions of any undertakings or covenants in
any of the Security Documents and the provisions of Clauses
11.2, 24.2 and 24.3 of the Intercreditor Agreement,
during the Restricted Period Provided that if this Agreement is
terminated pursuant to the provisions of Clause 2.1 hereof or
following the Restricted Period, the Finance Parties shall be
entitled to exercise any rights they may have under any of the
Finance Documents as if such waivers and disapplication of provisions
of the Finance Documents under this sub-clause 4.1.5 had never
occurred.
4.1.6 Each of the parties hereto agrees that none of the Obligors will be
obliged to deliver any statements, reports or information required by
the terms of Clause 21 (Financial Condition) of the Credit Agreement
or any other statements, reports or information required by the terms
of any of the other Finance Documents during the Restricted Period
save that during the Restricted Period the Parent shall:
(i) continue to be obliged to deliver all financial and other
information required by the terms of Clause 21.1 (Annual
Statements) of the Credit Agreement; and
(ii) deliver to the Facility Agent in sufficient copies for the
Participants, as soon as the same become available, copies of
the Form 10-Q submitted to the Securities and Exchange
Commission at the end of each quarter of its financial years.
4.1.7 The Parent shall as soon as the same become available deliver to the
Facility Agent in sufficient copies for the Participants the offering
memoranda in respect of the New High Yield Bond and the IPO.
4.1.8 The Parent undertakes to finalise the Enlarged Business Plan and to
forward it to the Lead Arrangers as soon as reasonably practicable
and in any event at least 60 days prior to the end of the Restricted
Period. The Lead Arrangers will forward the Enlarged Business Plan
and proposals for restructuring the Facilities to the Facility Agent
as soon as reasonably practicable thereafter and the Facility Agent
will deliver copies to the Participants promptly on receipt of this
information. The Lead Arrangers and the Parent will agree a timetable
for obtaining the views of the Participants and documenting the
restructuring of the Facilities and, after being informed of the
same, all the Participants shall use reasonable endeavours to work
towards this timetable.
4.1.9 Each of the Participants may determine, in its complete discretion,
whether it wishes to commit to lend or, in the case of the EIF, to
risk participate under the Participation Agreement under
documentation restructuring the Facilities once the Enlarged Business
Plan and restructuring proposal have been delivered to it. In the
event a Bank decides not to enter into this restructuring
documentation at the end of the Restricted Period the Commitment of
such Bank shall be reduced to zero. In the event the EIF decides to
terminate the Participation Agreement at the end of the Restricted
Period the Commitment of the Participating Lender shall be reduced by
the Participated Portion.
4.1.10 If the Enlarged Business Plan and/or the restructuring proposal is
not presented and agreed by the end of the Restricted Period, the
Facilities shall be cancelled, the Commitment of each Bank shall be
reduced to zero, the Participation Agreement shall be terminated and
all the security constituted under the Security Documents shall be
released in accordance with its terms.
4.2 The Participation Agreement
Notwithstanding the provisions of Clause 2.3 of the Participation Agreement,
the Participation Agreement shall remain effective during the Restricted
Period provided that no Notice of Default may be given by the Participating
Lender to the EIF during the Restricted Period. At the end of the
Restricted Period the EIF shall determine, in its complete discretion, if it
wishes to terminate the Participation Agreement and shall notify the
Participating Lender and the Facility Agent accordingly.
4.3 This Agreement
In the event of any inconsistency between the terms of the Credit Agreement
and this Agreement or, as the case may be, the terms of the Participation
Agreement and this Agreement, the terms of this Agreement shall prevail.
For the avoidance of doubt, the Facility Agent and the Obligors' Agent
hereby agree this document is designated a Finance Document.
5. CONTINUITY AND FURTHER ASSURANCE
5.1 Continuing Obligations
Each of the parties hereto expressly acknowledges that the provisions of the
Credit Agreement, the Participation Agreement and the other Finance
Documents shall, save as amended and modified hereby, continue in full force
and effect. All parties hereto acknowledge that the "Effective Date" as
defined in the Supplemental Deed occurred on 30 March 2000.
5.2 Further Assurance
Each of the Original Borrowers and the Original Guarantors and the Banks
shall, at the request of the Facility Agent and at its own expense, do all
such acts and things necessary or desirable to give effect to the amendments
and modifications effected or to be effected pursuant to this Agreement.
6. FEES, COSTS AND EXPENSES
6.1 Transaction Expenses
The Parent shall within ten days of a written demand, reimburse each of the
Agents and each of the Lead Arrangers for all reasonable costs and expenses
(including legal fees) notified to it together with any VAT thereon incurred
by it in connection with (i) the negotiation, preparation and execution of
this Agreement and the completion of the transactions herein contemplated
and (ii) the negotiation, preparation and execution of the Finance Documents
and the completion of the transactions therein contemplated.
6.2 Preservation and Enforcement of Rights
The Original Borrowers shall, from time to time on demand of the Facility
Agent, reimburse the Finance Parties and the EIF for all costs and expenses
(including legal fees) on a full indemnity basis together with any VAT
thereon incurred in or in connection with the preservation and/or
enforcement of any of the rights of the Finance Parties and/or the EIF, as
the case may be, under this Agreement and any other document referred to in
this Agreement.
6.3 Stamp Taxes
The Original Borrowers shall pay all stamp, registration and other taxes to
which this Agreement, any other document referred to in this Agreement or
any judgment given in connection herewith is or at any time may be subject
(other than those imposed by reason of assignment or novation) and shall,
from time to time on demand of the Facility Agent, indemnify the Finance
Parties and the EIF against any liabilities, costs, claims and out of pocket
expenses resulting from any failure to pay or any delay in paying any such
tax.
7. MISCELLANEOUS
7.1 Incorporation of Terms
The provisions of Clause 35.1 (Binding Agreement), Clause 39 (Remedies and
Waiver, Partial Invalidity), Clause 43 (Governing Law) and Clause 44
(Jurisdiction) of the Credit Agreement shall be incorporated into this
Agreement as if set out in full herein and as if
references therein to this Agreement or the Finance Documents are references
to this Agreement.
7.2 Counterparts
This Agreement may be executed in any number of counterparts, with different
parties executing different counterparts all of which taken together shall
constitute one and the same instrument.
AS WITNESS the hands of duly authorised representatives of the parties hereto
the day and year first before written.
SIGNATURES
The Parent
COMPLETEL EUROPE N.V.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
Address: ▇▇▇▇▇▇▇▇ ▇▇▇
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Fax: ▇▇ ▇▇ ▇▇ ▇▇▇ ▇▇▇▇
The Obligors' Agent
COMPLETEL S.A.S.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
Address: Tour Egee
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Fax: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇
The Original Borrowers
COMPLETEL ECC B.V.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
Address: ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
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Fax: ▇▇ ▇▇ ▇▇ ▇▇▇ ▇▇▇▇
COMPLETEL GmbH
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
Address: Hans-Stiessberger - ▇▇▇▇▇▇▇ ▇▇
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Fax: ▇▇ ▇▇ ▇▇ ▇▇ ▇▇▇ ▇▇▇
COMPLETEL SERVICES S.A.S.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
Address: Tour Egee
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Fax: ▇▇ ▇▇ ▇ ▇▇▇▇ ▇▇▇▇
COMPLETEL S.A.S.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
Address: Tour Egee
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Fax: ▇▇ ▇▇ ▇ ▇▇▇▇ ▇▇▇▇
The Original Guarantors
COMPLETEL EUROPE N.V.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
Address: ▇▇▇▇▇▇▇▇ ▇▇▇
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Fax: ▇▇ ▇▇ ▇▇ ▇▇▇ ▇▇▇▇
COMPLETEL ECC B.V.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
Address: ▇▇▇▇▇▇▇▇ ▇▇▇
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Fax: ▇▇ ▇▇ ▇▇ ▇▇▇ ▇▇▇▇
COMPLETEL HOLDING I B.V.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
Address: ▇▇▇▇▇▇▇▇ ▇▇▇
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Fax: ▇▇ ▇▇ ▇▇ ▇▇▇ ▇▇▇▇
COMPLETEL HOLDING II B.V.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
Address: ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
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Fax: ▇▇ ▇▇ ▇▇ ▇▇▇ ▇▇▇▇
COMPLETEL GmbH
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
Address: Hans-Stiessberger - ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
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Fax: ▇▇ ▇▇ ▇▇ ▇▇ ▇▇▇ ▇▇▇
COMPLETEL SERVICES S.A.S.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
Address: Tour Egee
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Fax: ▇▇ ▇▇ ▇ ▇▇▇▇ ▇▇▇▇
COMPLETEL S.A.S.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
Address: Tour Egee
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Fax: ▇▇ ▇▇ ▇ ▇▇▇▇ ▇▇▇▇
ACCES ET SOLUTIONS INTERNET S.A.R.L.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
Address: Double Mixte
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Fax: ▇▇ ▇▇ ▇ ▇▇ ▇▇ ▇▇ 99
COMPLETEL UK LIMITED
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
Address: c/o Holme ▇▇▇▇▇▇▇ & ▇▇▇▇
▇▇▇▇▇▇▇▇▇ House
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Fax: ▇▇▇ (▇)▇▇▇ ▇▇▇ ▇▇▇▇
iPCENTA LIMITED
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
Address: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Fax: ▇▇▇ (▇)▇▇▇ ▇▇▇ ▇▇▇▇
COMPLETEL SPC
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
Address: c/o Holme ▇▇▇▇▇▇▇ & ▇▇▇▇
▇▇▇▇▇▇▇▇▇ House
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Fax: ▇▇▇(▇) ▇▇▇ ▇▇▇ ▇▇▇▇
COMPLETEL SPC II
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
Address: c/o Holme ▇▇▇▇▇▇▇ & ▇▇▇▇
▇▇▇▇▇▇▇▇▇ House
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Fax: ▇▇▇(▇) ▇▇▇ ▇▇▇ ▇▇▇▇
The Lead Arrangers
▇▇▇▇▇▇▇ SACHS INTERNATIONAL
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
Address: ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Fax: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
PARIBAS
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Address: ▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ Cedex 01
Fax: + ▇▇ ▇ ▇▇ ▇▇ ▇▇▇▇
The Facility Agent
PARIBAS
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
The Security Agent
PARIBAS
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
The Banks
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
PARIBAS
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
BARCLAYS BANK PLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
CITIBANK INTERNATIONAL PLC
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
COMPTOIR DES ENTREPRENEURS
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇▇
CREDIT LYONNAIS
By: /s/ ▇▇▇▇-▇▇▇▇▇ DE ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL MARKETS BANK LIMITED
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇ /s/ ▇▇▇▇▇ ▇'▇▇▇▇▇
SCOTIABANK EUROPE PLC
By: /s/ ▇. ▇▇▇▇▇▇▇
AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED
ACTING THROUGH ITS PARIS BRANCH
By: /s/ PHILIPPE CASSIERS
BANCA NAZIONALE DEL LAVORO S.p.A. - Paris Branch
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
CREDIT AGRICOLE INDOSUEZ
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IBM FRANCE FINANCEMENT S.A.
By: /s/ LAURENT DU FAYET
The Risk Participant
EUROPEAN INVESTMENT FUND
By: /s/ GERBRAND G. HOP