EXHIBIT 10.8B
AMENDMENT NO. 2 dated August 28, 1998 (this "Amendment"), to the Bank Facility
Agreement between Kabeltelevisie Amsterdam B.V. and ABN AMRO BANK N.V. dated as
of January 31, 1996, as amended by Amendment No. 1 dated as of July 1, 1997.
The undersigned,
Kabeltelevisie Amsterdam B.V. (the "Borrower"), a private company with limited
liability under the law of The Netherlands, with corporate seat in Amsterdam;
and
ABN AMRO BANK N.V. ("ABN AMRO"), a public company with limited liability
incorporated under the law of The Netherlands, with corporate seat in Amsterdam,
The Netherlands, acting for itself in various capacities as referred to herein
(including its capacity as a Bank) and, as the case may be, in accordance with
article 25 of the Facility, as agent (the "Agent") for the Banks as defined
hereafter (if any, as may be the case in accordance with article 25 of the
Facility);
CONSIDERING THE FOLLOWING:
(A) The Borrower and ABN AMRO are parties to that certain Bank Facility
Agreement dated as of January 31, 1996, as amended by the letter agreement
dated as of February 15, 1996 and amendment number one dated July 1, 1997
(collectively the "Original Facility");
(B) Under the Original Facility ABN AMRO has agreed to make funds available to
the Borrower on a revolving basis in order to finance certain needs of the
Borrower for working capital by making available to the Borrower a working
capital facility (the "Working Capital Facility") in the principal amount
of up to NLG 50,000,000 subject to the terms and conditions as provided in
the Original Facility;
(C) The Borrower has purchased certain real property located at ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇-▇▇ (the "New Building") and has requested ABN AMRO to permit
the Borrower to apply credit designated for the Working Capital Facility up
to a maximum amount of NLG 25,000,000 towards capital expenditures to be
incurred in connection with the renovation of the New Building;
(D) ABN AMRO has agreed to amend the Original Facility so as to create a
building loan facility in the amount of up to NLG 25,000,000 and to reduce
the Working Capital Facility from NLG 50,000,000 to NLG 25,000,000, subject
to the terms and conditions set forth herein;
(E) The Borrower and ABN AMRO now wish to record their agreement regarding this
modification referred to in recital (D), as follows:
HAVE AGREED AS FOLLOWS:
Article 1 Definitions
----------------------
Unless otherwise provided herein all capitalized expressions and terms used in
this Amendment shall have the meanings set forth in Exhibit 1 to the Original
Facility, unless the context expressly requires otherwise.
The following defined terms as used in Exhibit 1 to the Original Facility shall
be amended to read as follows:
"Bank Facility" The Term Loan Facility, the Construction Loan Facility,
the Working Capital Facility and the Building Loan Facility;
"Facility" the Original Bank Facility as amended by this Amendment
no. 2.
The following capitalized expressions and terms used in this Amendment shall
have the meanings set forth below:
"Approved Building Approved Building Plan as described in Article 2 of this
Plan" Amendment;
"Building Loan an Advance made under the Building Loan Facility;
Advance"
"Building Loan the date on which the first Building Loan Advance is made;
Advance Date"
"Building Loan Building Loan Facility as defined in article 2 of this Amendment
Facility" no. 2
"Building Loan Building Loan Availability Period as defined in article 2 of this
Availability Period" Amendment;
"Deed of Mortgage a notarial deed of mortgage with the Borrower as mortgagor and
ABN AMRO as mortgagee, substantially in the form of Exhibit
A-1 to this Amendment;
"Deed of Pledge of Deed of Pledge of Rentals in the Form of Exhibit B-1 to
Rentals" Amendment no. 2;
"Rental Agreements" (i) the agreement between the Borrower and Technical
Bureau Nohos B.V., (ii) the agreement between the Borrower and Stork
Installatietechniek Amsterdam B.V., in the forms delivered to ABN AMRO
Bank N.V. as the same may be amended from time to time.
Article 2 Amendment Bank Facility
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2.1 In addition to the credit facilities described in article 2.1 of the
Original Facility ABN AMRO shall make available to the Borrower a building
loan facility (the "Building Loan Facility") as described in this article
2.
2.2 In connection with the introduction of the Building Loan Facility the
aggregate amount of the Available Working Capital Commitment referred to in
article 2.4.1 of the Original Bank Facility shall be changed from NLG
50,000,000 to NLG 25,000,000.
2.3 Article 2 of the Original Facility is amended by adding the following
articles:
"2.5.1 Under the Building Loan Facility ABN AMRO is required to make one
or more advances (the "Building Loan Advances") to the Borrower,
subject to the terms and conditions of this Agreement up to the
aggregate principal amount of NLG 25,000,000 (such maximum amount
to be referred to as the "Available Building Loan Commitment"). The
Available Building Loan Commitment shall be available from the date
hereof until December 31, 1998 (the "Building Loan Availability
Period").
2.5.2 The first Building Loan Advance will be made by ABN AMRO to the
Borrower if:
(a) the following documents in form and substance satisfactory to ABN
AMRO will have been received by ABN AMRO:
(i) An itemized statement of capital expenditures incurred by
the Borrower to date in connection with the acquisition and
renovation of the New Building;
(ii) a projection of the costs of construction and renovation to
be incurred in connection with the completion of the
renovation, (as confirmed by the building contractor
responsible for the construction and renovation) of the New
Building in form and substance acceptable to ABN AMRO;
(iii) a copy of the approved renovation plans (the "Approved
Building Plan") in form and substance acceptable to ABN
AMRO;
(iv) a duly executed Deed of Mortgage (New Building);
(v) a duly executed deed of pledge of Rental Agreements agreed
between the parties;
(vi) a certificate of insurance naming ABN AMRO as loss payee;
(vii) a "clean ground statement" ("schone grond verklaring") in
respect of the New Building of a nationally recognized
environmental consulting firm acceptable to ABN AMRO;
(viii) an appraisal of the New Building from a nationally
recognized appraiser in form and substance acceptable to ABN
AMRO;
(b) the following Security Rights contemplated to be created by article
21 of this Agreement shall have been created and are validly
existing as per the relevant first Building Loan Advance Date:
(i) a Deed of Pledge of Shares in the form of Exhibit C-1;
(ii) a Deed of Mortgage, substantially in the form of Exhibit 16;
(c) no event has occurred and is continuing and no circumstance exists
which would constitute an Event of Default;
(d) no event has occurred and is continuing and no circumstance exists
which solely with the giving notice and/or the lapse of time would
constitute an Event of Default;
(e) all licenses, permits and approvals necessary for the renovation of
the New Building in accordance with the Approved Building Plan shall
have been obtained;
(f) the principal repayment schedule attached as Exhibit 9 hereto shall
have been revised and agreed upon between the Borrower and the
Agent;
(g) the Consortium Members are jointly the holders, directly or
indirectly, of Control over the Borrower, subject to the priority
share in the Borrower issued MAA;
(h) the Agent shall have received an opinion from ▇▇▇▇▇▇▇▇ Chance and De
Brauw Blackstone Westbroek in form and substance satisfactory to the
Agent.
2.5.3 Building Loan Advances made subsequent to the first Building Loan
Advance are subject to the fulfilment of the conditions as set forth
in article 2.5.2 above under (c), (d), (e) and (f).
2.5.4 The following provisions of this Article 2.5 and the other
provisions of this Agreement to the extent they apply to
Construction Loan Advances shall apply to Building Loan Advances
unless otherwise specifically agreed upon by ABN AMRO and the
Borrower in a separate agreement. References to conditions included
in article 7.1 and 7.2 hereof shall be deemed to include - with
respect to the Building Loan Advances -references to the foregoing
sections 2.5.2 and 2.5.3.
2.5.5 The minimum amount of a Building Loan Advance shall be NLG 1,000,000
and any Building Loan Advance shall be a multiple of NLG 500,000.
2.5.6 The Agent shall cause any Building Loan Advance to be transferred to
the Revenue Account of the Borrower, unless otherwise agreed by the
Borrower and the Agent.
2.5.7 The provisions regarding prepayment set forth in article 13 hereof
applicable to Construction Loan Advances shall apply mutatis
mutandis to the Building Loan Advances.
Article 3 Interest and Fees Payable by the Borrower as the Building Loan
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Advances
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3.1 The Borrower shall pay interest (including the applicable Margin) on the
Building Loan Advances in accordance with the provisions of article 12.1
and 12.2 of the Original Facility.
3.2 Any Building Loan Advance shall be drawn at such Advance Rate or shall be
rolled over at such Roll Over Moment with such Fixed Rate Interest periods
or Variable Interest Periods, that the number of different Interest Payment
Dates for the Term Loan Advance, the Construction Loan Advances and the
Building Loan Advances shall not exceed ten.
3.3 The Borrower shall pay a commitment fee to the Agent equal to 0.30% per
annum, calculated on the basis of a year of 360 days and actual days
elapsed over the portion of the Building Loan Facility which shall not have
been drawn down and shall have remained available for draw down under the
Applicable Building Loan Commitment for the period commencing on the date
of this Amendment up to and including December 31, 1998. This fee shall be
payable in arrears and in quarterly installments.
Article 4 Repayment and Prepayment
-----------------------------------
4.1 The Borrower shall repay the Building Loan Advance in accordance with the
revised Principal Repayment Schedule attached to this Amendment as Exhibit
F-1, which schedule shall reflect that any outstanding Building Loan
Advance is included in the amortization table and shall be repaid in full
at July 1, 2005 without prejudice to the provisions of article 13 and 23 of
the Original Facility.
4.2 The Borrower shall not have the right to redraw any prepaid Building Loan
Advance or any parts thereof.
Article 5 Representations and Warranties
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The representations and warranties to be made by the Borrower as of each Advance
Date set forth in article 18 of the Original Facility shall be supplemented by
adding the following representations:
(m) "the Borrower has full legal title to the New Building free and clear of
any rights or interests of third parties other than (i) the rights of the
tenants under the Rental Agreements and (ii) the rights of ABN AMRO under
the Deed of Mortgage (New Building);
(n) the Rental Agreements constitute legal, valid and binding obligations of
the respective tenants thereunder enforceable in accordance with their
respective terms and no debtor under the Rental Agreements is in default in
respect of its obligations thereunder and no prepayments have been made by
any debtor under any of the Rental Agreements."
(o) the Borrower and A2000 has obtained all required consents in connection
with the execution and delivery of the Deed of Pledge of Shares, the Deed
of Mortgage in the form of Exhibit 16 hereof and the Deed of Pledge of
Rentals."
Article 6 Covenants in respect of New Building
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6.1 The Borrower shall maintain the New Building in accordance with the
covenants included in the Deed of Mortgage and shall maintain insurance in
respect of the New Building in accordance with prudent insurance practice
in The Netherlands. The Borrower shall provide the Agent on the first day
of January of each year with a certificate of insurance naming the Agent as
loss payee; such insurance covered by such certificate shall in form and
substance be satisfactory to the Agent.
6.2 The Borrower shall grant to the Agent a valid first right of pledge
("pandrecht eerate in rang") over its rights under the Rental Agreements in
respect of the New Building in the form of Exhibit B-1 hereto and shall
enter into additional deeds of pledge, substantially in the form of Exhibit
B-1 hereto, with respect to any rental agreements relating to the New
Building entered into after the date hereof.
6.3 Notwithstanding the provisions set forth in the Mortgage, the Borrower
shall not make any modifications to the New Building without the prior
written consent of the Agent.
Article 7 Addition Covenants
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7.1 The Borrower shall use its best efforts to ensure that the remaining
conditions set forth in art. 20.23.1 of the Facility shall be satisfied as
soon as is reasonably possible.
7.2 If any of these conditions shall not have been accomplished by October 31,
1998 the Borrower shall notify the Agent thereof without delay and the
Borrower and the Agent shall enter into consultations with a view to
adequately deal with the then existing situation, without prejudice to
Article 21 of the Original Facility.
Article 8 Events of Default
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Article 23.1 shall be amended by adding the following clause:
"S. The occurrence of an Event of Default as defined in the Facility
Agreement entered into between A2000 Nilversum B.V. and the Agent
dated as of October 16, 1996."
Article 9 Effect of Amendment
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Except as expressly modified by this Amendment no. 2, all other provisions of
the Original Facility shall remain in full force and effect and shall apply to
Advances (including the Building Loan Advances) as set forth therein.
Dated as of ▇▇▇▇▇▇ ▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ AMRO Bank N.V.,
B.V., acting in all capacities referred to in
the Original Facility
By /s/ By /s/
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Name : B. Meenderman Name : F.J.M. Putker
Title : Managing Director Title : Procuratiehouder K
Date : August 28, 1998 and attorney-in-fact
Place : Amsterdam Date : August 28, 1998
Place : Amsterdam
The undersigned have been informed of the foregoing amendment and confirm and
agree that for purposes of (i) the A2000 Facility Agreement between A2000
Holding N.V. and ABN AMRO Bank N.V. dated as of January 31, 1996; and (ii) the
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Facility Agreement between A2000 Hilversum B.V. and ABN AMRO
Bank N.V. dated as of October 16, 1996, all references to "KTA Facility" shall
be references to the Original Facility as amended by this Amendment no. 2 and as
the same may be amended from time to time.
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇ Hilversum B.V.
By /s/ By /s/
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Name : B. Meenderman Name : B. Meenderman
Title : Managing Director Title : Managing Director
and attorney-in-fact and attorney-in-fact
Date : August 28, 1998 Date : August 28, 1998
Place : Amsterdam Place : Amsterdam