Exhibit 10.16
SUBORDINATED LOAN AGREEMENT
DATED June 27, 2003
BETWEEN
CLEARWAVE N.V.
as Lender
and
MOBIFON HOLDINGS B.V.
as Borrower
▇▇▇▇▇▇ P.C.
THIS LOAN AGREEMENT is entered into on June 27, 2003 by and between:
THE UNDERSIGNED
1. CLEARWAVE N.V., a public limited liability company (naamloze
vennootschap) incorporated under the laws of the Netherlands and having
its registered office at ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, hereinafter also referred to as the "LENDER"; and
2. MOBIFON HOLDINGS B.V., a private limited company incorporated under the
laws of the Netherlands and having its registered office at
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, hereinafter
also referred to as the "BORROWER".
WHEREAS:
(A) Immediately prior to the execution of this subordinated loan agreement
(the "LOAN AGREEMENT"), the Borrower had an outstanding loan to the
Lender amounting to the principal amount of USD 616,771,791, which loan
is payable no later than March 27, 2007 and bears interest at 7 % per
annum (the "EXISTING LOAN").
(B) In connection with the issuance of 12.50% senior notes due July 31,
2010 (the "Senior Notes") in an aggregate amount of USD 225,000,000 by
the Borrower pursuant to an indenture dated June 27, 2003, the Lender
and the Borrower have agreed to amend and restate the terms and
conditions of the Existing Loan.
(C) The Lender and the Borrower hereby covenant and agree to amend and
restate the terms and conditions of the Existing Loan as follows (such
amended and restated Existing Loan: the "LOAN").
NOW IT IS HEREBY AGREED AS FOLLOWS:
Section 1 - Definitions and Interpretation
1.1 In this Loan Agreement the following words and expressions shall have
the following meanings:
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"BUSINESS DAY" means a day (other than a Saturday
or Sunday) on which banks are
generally open for business in
Amsterdam, the Netherlands.
"ENCUMBRANCE" means any mortgage, charge, pledge,
lien or other security interest or
encumbrance securing any obligation
of any person or any other type of
preferential arrangement (including,
without limitation, title retention
arrangements) or any other agreement
or arrangement having a similar
effect.
"FINAL MATURITY DATE" means July 31, 2030.
"LOAN" shall have the meaning ascribed
thereto in Section 2 hereof.
"SENIOR DEBT" means all present and future sums,
liabilities and obligations
whatsoever (whether actual or
contingent) which are now or may at
any time hereafter be due and owing
(under any agreement, arrangement or
otherwise) from the Borrower to the
holders of the Senior Notes on any
ground whatsoever, other than the
Loan.
"SUBSIDIARY" means a subsidiary, as defined in
article 24a of Book 2 of the Dutch
Civil Code.
1.2 Unless the text indicates otherwise, references to the singular include
a reference to the plural and vice versa and references to the
masculine include a reference to the feminine and neuter and vice
versa.
1.3 In this Loan Agreement, unless otherwise indicated, references to
Recitals and Sections are references to Recitals and Sections of this
Loan Agreement.
Section 2 - The Principal
As of the date hereof, the principal amount of the Loan amounts to USD
616,771,791.
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Section 3 - Interest
3.1 The principal amount of the Loan from time to time outstanding will
bear interest at 14% per annum in respect of the period from the date
hereof up to (but not including) the date on which the Loan is repaid
in full. The interest will be compounded and computed on the basis of a
360 day calendar year.
3.2 The interest accrued in accordance with Section 3.1 of this Loan
Agreement will be added to the principal amount of the Loan, and as
such, be first payable on the Final Maturity Date.
Section 4 - Repayment
The Loan shall be repaid in full, together with all interest accrued in
accordance with Section 3.2 of this Loan Agreement on the Final Maturity Date.
Section 5 - Voluntary Prepayment
The Borrower may prepay the Loan in whole or in part (together with interest
accrued thereon) at any time, provided it does so in compliance with the terms
of its Senior Debt.
Section 6 - Payments
6.1 All payments to be made hereunder shall be made in United States
Dollars to the account and at the time specified by the Lender to the
Borrower, in immediately available, freely transferable funds and in
each case on the due date for the respective payment.
6.2 If a date on which any amount under this Loan Agreement is due and
payable is not a Business Day, the date for payment of such amount
shall be deferred to the next succeeding Business Day.
6.3 With the exception of the circumstances described in section 9 hereof,
all sums payable to the Lender hereunder shall be paid in full without
set-off or counterclaim and free and clear and without any deduction on
account of any present or future taxes, levies, imposts, duties,
charges or withholdings of any nature.
Section 7 - Subordination
Except as permitted by Section 5 hereof, from the date hereof until the date on
which all Senior Debt shall have been irrevocably and unconditionally paid or
discharged in full, the Lender shall
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not directly apply for, or ask, demand, ▇▇▇ or prove for, take or receive from
the Borrower, by cash receipt, set-off or in any other manner whatsoever, the
whole or any part of the Loan, nor assign, charge or deal with the same or take
any security from the Borrower or any other party therefor.
Section 8 - Tax Benefits and Liabilities resulting from Consolidated Tax Return
8.1 The Borrower and the Lender covenant and agree that the Borrower will
charge the Lender for any tax benefits that the Lender receives from
the use of Borrower's interest expenses in connection with the filing
of a consolidated tax return for Dutch corporate tax purposes by the
Borrower and the Lender, which charge will be offset against the amount
of the Loan.
8.2 The Borrower and the Lender covenant and agree that the principal
amount of the Loan will be decreased to the extent and in the amount of
any taxes for which the Borrower is held liable as a result of the
filing of a consolidated tax return for Dutch corporate tax purposes by
the Borrower and the Lender.
Section 9 - Undertakings
With effect from the date hereof and so long as any of the Senior Debt shall
remain outstanding, the Borrower:
(a) shall not secure all or any part of the Loan;
(b) shall not pay, prepay, redeem, purchase or otherwise acquire
or discharge any of the Loan, other than in compliance with
the terms of its Senior Debt; and
(c) shall not vary the terms of the Loan in whole or in part.
Section 10 - Assignment
10.1 The Borrower may not assign or transfer this Loan Agreement or its
rights, benefits, obligations or interest in the Loan, this Loan
Agreement or any other document establishing or otherwise relating to
the Loan to any person without the prior written consent of the Lender.
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10.2 The Lender may not:
(a) dispose of, deal with or part with possession of any interest
in the Loan or its rights, benefits, obligations or interest
under any document or other agreement relating to or otherwise
establishing the Loan, other than to any person of which the
Borrower is a Subsidiary; or
(b) create or allow to come into existence any Encumbrance which
affects its estate or interest in the Loan or any agreement or
other document relating to or otherwise establishing the Loan.
Section 11 - Notices
All notices, advice's, statements, requests, demands and other communications
under this Loan Agreement shall be made in the English language and shall be
given or made (unless provided otherwise in this Loan Agreement) in writing or -
but then, except for routine notices, to be confirmed in writing - by facsimile
or cable and shall be addressed as follows:
To the Lender: ClearWave N.V.
World Trade Center
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▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Fax ▇▇▇ ▇▇ ▇▇▇▇▇▇▇
To the Borrower: MobiFon Holdings B.V.
World Trade Center
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▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Fax ▇▇▇ ▇▇ ▇▇▇▇▇▇▇
or to such other address as may from time to time be notified by the relevant
party to the other party in accordance with this provision.
Section 12 - Partial Invalidity
If, at any time, any provision of this Loan Agreement is or becomes illegal,
invalid or unenforceable in any respect under any law of any jurisdiction,
neither the legality, validity or enforceability of the remaining provisions nor
the legality, validity or enforceability of such provision under the law of any
other jurisdiction will in any way be affected or impaired.
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Section 13 - Remedies and Waivers
No failure to exercise, nor any delay in exercising, on the part of the Lender,
any right or remedy under this Loan Agreement shall operate as a waiver, nor
shall any single or partial exercise of any right or remedy prevent any further
or other exercise or the exercise of any other right or remedy. The rights and
remedies provided in this Loan Agreement are cumulative and not exclusive of any
rights or remedies provided by law.
Section 14 - Counterparts
This Loan Agreement may be executed in any number of counterparts, and this has
the same effect as if the signatures on the counterparts were on one single copy
of the Loan Agreement.
Section 15 - Governing Law
15.1 This Loan Agreement and all matters relating thereto shall be governed
by and construed in accordance with the laws of the Netherlands other
than its rules of conflicts of laws to the extent that the application
of another jurisdiction would be required thereby.
15.2 All disputes arising out of or in connection with this Loan Agreement
shall exclusively be submitted to the competent courts of Amsterdam,
the Netherlands.
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IN WITNESS OF WHICH THE LENDER AND THE BORROWER HAVE EXECUTED THIS LOAN
AGREEMENT ON JUNE 27, 2003.
CLEARWAVE N.V.
______________________
By:
Title:
MOBIFON HOLDINGS B.V.
______________________
By:
Title:
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