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Exhibit 10.7
DATED MAY, 2000
EURO 480 MILLION MULTI-TRANCHE
SENIOR FACILITY AGREEMENT
between
FIRSTMARK COMMUNICATIONS DEUTSCHLAND HOLDINGS GMBH
as borrower
FIRSTMARK COMMUNICATIONS DEUTSCHLAND GMBH
as guarantor
DEUTSCHE BANK AG
as arranger and fronting bank
DEUTSCHE BANK LUXEMBOURG S.A.
as facility agent
DEUTSCHE BANK LUXEMBOURG S.A.
as security agent
and
EACH FINANCIAL INSTITUTION LISTED IN SCHEDULE 1
each as a Lender
Hengeler Mueller Slaughter and May
Bockenheimer Landstrasse 51
D-60325 Frankfurt am Main
Germany
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CONTENTS
Page
1. DEFINITIONS AND INTERPRETATION 1
2. GRANT OF THE FACILITIES 22
3. THE TRANCHE A FACILITIES 22
4. THE TRANCHE B FACILITY 23
5. THE TRANCHE C FACILITY 23
6. THE TRANCHE D FACILITY 25
7. AVAILABILITY OF THE FACILITIES 29
8. INTEREST PERIODS 33
9. PAYMENT AND CALCULATION OF INTEREST AND FRONTING
GUARANTEE FEES 33
10. ALTERNATIVE INTEREST RATES 34
11. REPAYMENT AND VOLUNTARY PREPAYMENT 36
12. MANDATORY PREPAYMENT 37
13. CANCELLATION OF COMMITMENTS 38
14. TAXES 40
15. TAX RECEIPTS AND TAX CREDITS 41
16. CHANGES IN CIRCUMSTANCES 42
17. MITIGATION 43
18. GUARANTEE AND INDEMNITY 45
19. REPRESENTATIONS 48
20. INFORMATION 55
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21. FINANCIAL COVENANTS 58
22. BORROWER'S COVENANTS 59
23. EVENTS OF DEFAULT 67
24. DEFAULT INTEREST AND INDEMNITY 73
25. CURRENCY OF ACCOUNT AND PAYMENT 75
26. PAYMENTS 75
27. SET-OFF 77
28. PROPORTIONATE SHARING 77
29. COMMITMENT COMMISSION AND FEES 79
30. COSTS AND EXPENSES 79
31. THE AGENT, THE SECURITY AGENT, THE ARRANGER AND
THE LENDERS 81
32. ASSIGNMENTS AND TRANSFERS 86
33. DISCLOSURE OF INFORMATION 87
34. CALCULATIONS AND EVIDENCE OF DEBT 89
35. REMEDIES AND WAIVERS, PARTIAL INVALIDITY 90
36. NOTICES 90
37. AMENDMENTS 91
38. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999 92
39. LAW AND LANGUAGE 93
40. JURISDICTION 93
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1
THIS AGREEMENT is made on May, 2000
BETWEEN
(1) FIRSTMARK COMMUNICATIONS DEUTSCHLAND HOLDINGS GMBH as borrower ("HOLDINGS"
or the "BORROWER"");
(2) FIRSTMARK COMMUNICATIONS DEUTSCHLAND GMBH as guarantor ("FIRSTMARK
DEUTSCHLAND");
(3) DEUTSCHE BANK AG as arranger and fronting bank (the "ARRANGER")
(4) DEUTSCHE BANK LUXEMBOURG S.A. as facility agent (the "AGENT");
(5) DEUTSCHE BANK LUXEMBOURG S.A. as security agent (the "SECURITY AGENT");
(6) EACH FINANCIAL INSTITUTION LISTED IN SCHEDULE 1 (each a "LENDER") as a
lender.
IT IS AGREED as follows:
PART 1
DEFINITIONS AND INTERPRETATION
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement the following definitions apply unless the context
requires otherwise.
"ADVANCE" means, except as otherwise provided in this Agreement, an advance
(as from time to time reduced by repayment pursuant to this Agreement)
(including, for the avoidance of doubt, any Fronting Advance) made or to be
made by the Lenders under this Agreement.
"AFFILIATE" means, with respect to any person, any other person which
controls, is under the control of, or is under common control with such
person. For the purposes of the foregoing, "CONTROL" of a person by another
means that that other (whether alone or with others and whether directly or
indirectly and whether by the ownership of share capital, the possession of
voting power, contract or otherwise) has the power to appoint and/or remove
all or the majority of the members of the board of directors or other
governing body of that person or of any other person which controls that
person or otherwise controls or has the power to control the affairs and
policies of that person or of any other person which controls that person.
"AGREED FORM" in relation to any contract not yet entered into on the date
of this Agreement means the form of that contract, in form and substance
satisfactory to, and containing such provisions as may be requested by, the
Agent and the Lenders (acting reasonably), which is entered into after the
date of this Agreement.
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"ANNUAL BUDGET" means the financial budget of the Borrower and each other
Relevant Company in the form delivered to the Agent from time to time
pursuant to the provisions of Clause 20.5.
"ANNUALISED EBITDA" means:
(i) as at any date prior to the Annualised EBITDA Change Date, the
aggregate amount of EBITDA in respect of the latest period of three
consecutive months shown by the Latest Financial Statements,
multiplied by 4; and
(ii) as at any date on or after the Annualised EBITDA Change Date, EBITDA
in respect of the latest period of six consecutive months shown by the
Latest Financial Statements, multiplied by 2.
"ANNUALISED EBITDA CHANGE DATE" means the last day of two consecutive
Quarters in respect of which the Borrower has delivered to the Agent
pursuant to Clause 20.2 two sets of quarterly statements which show that
the Borrower was in receipt of payments from one or more users of the
Network during both financial quarters to which the quarterly statements
relate.
"ANNUALISED REVENUE" means as at any date four times the aggregate
consolidated operating revenue of the Relevant Companies for the financial
quarter most recently ended, or as the case may be the immediately
preceding three months, as shown by the Latest Financial Statements.
"AUDITOR" means Arthur Andersen or another firm of internationally
recognised independent auditors.
"AUDITOR'S COMPLIANCE CERTIFICATE" means an auditor's certificate
(WIRTSCHAFTSPRUFERBESTATIGUNG) substantially in the form set out in Part 2
of Schedule 5.
"AVAILABLE COMMITMENT" of a Lender means, in respect of a Facility at any
time, the Lender's Commitment in respect of such Facility less the Lender's
participation at such time in the Loan in respect of such Facility.
"AVAILABLE FACILITY" means, in respect of a Facility at any time, the
aggregate amount of the Commitments in respect of such Facility less the
Loan in respect of such Facility at such time.
"AVAILABILITY PERIOD" means each of the Tranche A Availability Period, the
Tranche B Availability Period, the Tranche C Availability Period and the
Tranche D Availability Period.
"BASEL PAPER" means the paper entitled "International Convergence of
Capital Measurement and Capital Standards" dated July 1988 and prepared by
the Basel Committee on Lending Regulations and Supervision, as amended in
November 1991.
"BENEFICIARY" means each of the Agent, the Security Agent and each Lender.
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"BGB" means BURGERLICHES GESETZBUCH (German Civil Code)
"BORROWER" means Firstmark Communications Deutschland Holdings GmbH, the
first party to this Agreement.
"BUSINESS" means the delivery of broadband telecommunication services in
Germany through the construction of a wireless local loop network (based on
point-to-multipoint technology) and the construction or long-term leasing
of point-to-point radio links as well as capacity on metropolitan area
network and fibre-optic backbone systems, operated in conjunction with
other forms of complementary technology (such as digital subscriber lines)
deemed appropriate from time to time for reasons of financial or technical
advantages, including the provision of voice, data and internet services by
or on behalf of FirstMark Deutschland and the Borrower.
"BUSINESS DAY" means (a) in relation to any day other than a date for the
payment or purchase of, or rate fixing relating to, Euro, a day (other than
a Saturday or Sunday) on which banks are open for general business in
Luxembourg, London and Frankfurt am Main; and (b) in relation to any date
for payment or purchase of, or rate fixing relating to, Euro, a TARGET Day.
"BUSINESS PLAN" means the Original Business Plan as updated from time to
time pursuant to Clause 20.6.
"CAPITAL ADEQUACY REQUIREMENT" means a regulation relating to the
maintenance of capital, reserves or liquidity ratios or the making of any
special deposits, including one which makes any change to, or is based on
any alteration in, the interpretation of the Basel Paper or which increases
the amounts of capital, reserves, liquidity ratios or special deposits
required, other than a request or requirement made by way of implementation
of the Basel Paper in the manner in which it is being implemented at the
date of this Agreement.
"CAPITAL EXPENDITURE" means any expenditure accounted for as capital
expenditure according to generally accepted accounting principles.
"COMMITMENT" means, in relation to any Lender and in respect of any
Facility, the relevant amount set out opposite the Lender's name in
Schedule 1, as permanently reduced or cancelled under this Agreement.
"CONTRIBUTED EQUITY" means, at any time, the aggregate amount (but without
double counting) of:
(a) fully paid up ordinary issued share capital of the Relevant Companies,
valuing any payment in kind for such share capital in accordance with
applicable legal requirements and generally accepted accounting
principles, or in default of such requirements or principles, as
valued by the Auditor;
(b) Subordinated Debt outstanding between the Borrower and the Parent
Company; and
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(c) accumulated realised profits of the Relevant Companies which would
otherwise be available for distribution according to generally
accepted accounting principles,
in each case as shown as equity by the Latest Financial Statements.
"CONVERSION AMOUNT" has the meaning given to that term in Clause 5.4(B).
"CORE NETWORK CONTRACT" means the contract in Agreed Form to be entered
into between Nortel Networks plc and FirstMark Deutschland relating to the
supply of the equipment, software and services referred to therein to or
for FirstMark Deutschland.
"DEBT SERVICE" means, in respect of any period, total agency fees and
costs, commitment commission, interest payable on any debt outstanding and
other financial charges, and repayments of principal and payments of other
sums in respect of any Financial Indebtedness of the Borrower payable by
the Borrower in respect of such period (but not including any such payments
in respect of any Subordinated Debt).
"DERIVATIVE ASSETS" means in relation to any Investments all stocks,
shares, warrants or other securities, rights, dividends, moneys, interest
or other property whether of a capital or income nature accruing, offered,
issued or deriving at any time (whether by way of dividend, bonus,
redemption, exchange, purchase, substitution, conversion, consolidation,
subdivision, preference, option or otherwise) attributable to those
Investments or any Derivative Assets of those Investments.
"DERIVATIVE TRANSACTION" means a forward rate agreement, interest rate
swap, swaption, cap, floor or any transaction including any of these.
"DRAWDOWN DATE" means the date on which an Advance is to be drawn down or a
Fronting Guarantee issued under a Facility.
"EBITDA" means, in respect of any period, the consolidated pre-tax profit
of the Relevant Companies plus Interest Expense and accrued Interest
Expense, depreciation and amortisation expenses (including amortisation of
capitalised expenses) of the Relevant Companies as shown by the Latest
Financial Statements in respect of, or during which, such period falls.
"EMU LEGISLATION" means the legislative measures of the Council of the
European Union providing for the introduction of, changeover to, or
operation of, the Euro.
"ENVIRONMENTAL CLAIM" means any claim, notice of violation, prosecution,
demand, official action, official warning, abatement or other order
(conditional or otherwise), relating to Environmental Matters and any
official or formal notification or order requiring compliance with the
terms of any Environmental Licence or Environmental Law.
"ENVIRONMENTAL LAWS" means all or any laws, statutes, regulations,
treaties, codes of practice and judgments of any governmental authority or
agency or any regulatory body relating to Environmental Matters applicable
to or binding on any Relevant Company or any activities from time to time
carried on by any Relevant Company or the occupation
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or use of any property owned, leased or occupied by any Relevant Company
and "ENVIRONMENTAL LAW" means any of them.
"ENVIRONMENTAL LICENCE" means any permit, licence, authorisation, consent
or other approval required at any time by any Environmental Law in
connection with the Business or any other activities from time to time
carried on by any Relevant Company.
"ENVIRONMENTAL MATTERS" means:
(i) any generation, deposit, disposal, keeping, treatment, transportation,
transmission, handling or manufacture of any waste or any Relevant
Substance;
(ii) nuisance, noise, defective premises, electromagnetic interference and
electromagnetic fields, health and safety at work or elsewhere; and
(iii) the pollution, conservation or protection of the environment (both
natural and built) or of man or any living organisms supported by the
environment (both natural and built).
"EQUITY COMMITMENT UNDERTAKING" means the Agreement of even dateherewith
between the Parent Company, the Borrower and the Lenders as well as the
other parties thereto under which the Parent Company irrevocably agrees to
make Equity Contributions (as defined in the Equity Commitment Undertaking)
to the Borrower. "EURIBOR" means a rate per annum determined by the Agent
and promptly notified to the Borrower and the Lenders. This rate will be
applied to an outstanding amount for a particular period. It will be
determined as follows:
(A) "EURIBOR" will be the Screen Rate for deposits in Euro for that
period. This rate will be determined at or about 11.00 a.m.(Brussels
time) on the Rate Fixing Date relating to the first day of that
period.
(B) If there is no Screen Rate for Euro for the relevant period or the
Agent determines that no rate for a period of comparable duration to
the relevant period is provided by the Screen Rate, "EURIBOR" will be
based on the rate at which deposits in Euro are offered by the
Reference Banks for that period to prime banks in the European
inter-bank market. Each Reference Bank will notify the Agent of this
rate when requested by the Agent. The rate notified will be the rate
as at 11.00 a.m. Brussels time on the Rate Fixing Date relating to the
first day of that period. The Agent will calculate the arithmetic mean
of these rates, rounded upwards to five decimal places. This will be
"EURIBOR" for the period. If fewer than two Reference Banks provide
the Agent with notifications for a particular period, this method of
determining "EURIBOR" will not be used for that period and Clause 10
will apply instead.
"EVENT OF DEFAULT" means each of the events specified in Clause 23.1.
"EXCESS CASH FLOW" means, in respect of any period, an amount equal to the
consolidated pre-tax profit of the Relevant Companies during that period
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plus the aggregate consolidated amount of depreciation, amortisation and
other non-cash charges (including deferred interest) of the Relevant
Companies in respect of that period
plus the consolidated amount of the decrease in the Working Capital of the
Relevant Companies during that period, or as the case may be
minus the consolidated amount of the increase in the Working Capital of the
Relevant Companies during that period
minus the aggregate amount of Capital Expenditure incurred by the Relevant
Companies during that period (to the extent not taken into account in
calculating the pre-tax profit of the Relevant Companies)
minus all non-cash credits included in establishing the net consolidated
pre-tax profit of the Relevant Companies during that period
minus all amounts paid or prepaid during that period pursuant to Clause 11
of this Agreement
minus all amounts relating to tax actually paid or falling due for payment
by a Relevant Company during that period,
avoiding double-counting and to the extent possible all as specified in the
Latest Financial Statements in respect of such period.
"FACILITY" means each of the Tranche A1 Facility, the Tranche A2 Facility,
the Tranche A3 Facility, the Tranche B Facility, the Tranche C Facility and
the Tranche D Facility.
"FACILITY DOCUMENT" means each of:
(a) this Agreement;
(b) each Security Document;
(c) the Intercreditor Agreement;
(d) the Subordination Agreement;
(e) the Equity Commitment Undertaking; and
(f) any other agreement or document agreed by the Agent and the Borrower
to be a "FACILITY DOCUMENT" or which is entered into or provided
under, or for the purpose of amending or novating, any of the above.
"FACILITY OFFICE" means, in relation to any Beneficiary, the office
identified with its signature below (or, in the case of a Transferee, at
the end of the Transfer Certificate to which it is a party as Transferee)
or such other office as it may from time to time select.
"FINAL REPAYMENT DATE" means the day upon which the last repayment of the
Tranche B Loan and the last repayment of the Tranche C Loan is required
under this Agreement to be made.
"FINANCIAL INDEBTEDNESS" means any indebtedness (calculated without any
double counting) in respect of:
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(i) money borrowed;
(ii) amounts raised by acceptance under any acceptance credit facility;
(iii) amounts raised pursuant to any note purchase facility or the issue of
bonds, notes, debentures, loan stock or similar debt instruments;
(iv) accounts payable in the ordinary course of business which have been
outstanding for more than 90 days since the due date;
(v) the amount of any liability in respect of leases or hire purchase
contracts which would, in accordance with current accounting practice,
be treated as finance or capital leases;
(vi) the amount of any liability in respect of any purchase price for
assets or services the payment of which is deferred for a period in
excess of 90 days in order to raise finance or to finance the
acquisition of those assets or services;
(vii) the amount of any liability (whether actual or contingent, future or
present) in respect of any guarantee or indemnity in respect of the
above;
(viii) the net liability (if any) (calculated according to usual market
practice) in respect of any foreign exchange contract (other than a
spot foreign exchange transaction), currency swap, option or future
contract, any interest rate swap, floor cap, collar forward rate
agreement, interest rate futures contract and any similar arrangements
other than, for the avoidance of doubt, interest rate options, caps or
similar instruments for hedging purposes provided that no Borrower has
any indebtedness or financial obligation to any person as a result,
other than a transaction premium or fee payable on ordinary commercial
terms in the ordinary course of business; and
(ix) amounts raised under any other transaction (including any forward sale
or purchase agreement) having the commercial and accounting effect of
a borrowing (otherwise than by the issue of non-redeemable share
capital).
"FIRST ADVANCE DATE" means the date upon which the first Advance is made
under this Agreement.
"FIRSTMARK DEUTSCHLAND" means FirstMark Communications Deutschland GmbH,
the second party to this Agreement.
"FMC" means Firstmark Communications International L.L.C., a limited
liability company duly organised and existing under the laws of the U.S.
state of Delaware.
"FREQUENCY ALLOCATIONS" means each of (i) the allocations of frequency
specified in a letter from the Borrower to the Agent dated on or about the
date of this Agreement, and (ii) any other allocations of frequency granted
to any Relevant Company in connection with the operation of the Network.
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"FRONTING ADVANCE" means a Tranche D Utilisation made by way of Advance by
the Fronting Bank pursuant to Clause 6.4.
"FRONTING BANK" means Deutsche Bank AG, acting through such branch or
branches as may be agreed between the Borrower and Deutsche Bank AG or a
bank or other financial institution (which may be a Lender) agreed in
writing by the Borrower and the Lenders and which agrees at the Borrower's
request to issue a Fronting Guarantee or make a Fronting Advance.
"FRONTING GUARANTEE" means a Tranche D Utilisation made by way of issue of
a guarantee issued by the Fronting Bank pursuant to Clause 6.5 in favour of
a beneficiary nominated by the Borrower on such terms as are agreed between
the Borrower, that beneficiary and the Fronting Bank.
"FRONTING PROPORTION" in relation to any Lender at any time means the
proportion which its Commitment at that time in relation to Tranche D bears
to the total of the Commitments at that time in relation to Tranche D.
"GERMANY" means the Federal Republic of Germany, and "GERMAN" shall be
construed accordingly.
"GROUP" means the Relevant Companies and the Parent Company and each
Affiliate of each Relevant Company or the Parent Company.
"GUARANTEED OBLIGATIONS" means:
(A) all moneys, liabilities, obligations, undertakings and duties (whether
actual or contingent) which are now or may at any time hereafter be
due, owing, payable or required to be performed or undertaken, or
expressed to be due, owing, payable, or required to be performed or
undertaken, to or in favour of the Beneficiaries (or any one of them)
from or by any Relevant Company under or in connection with the Loan
(whether alone or with any other person, whether as principal or
surety, whether upon any banking account or otherwise, and whether or
not the Beneficiaries or any of them shall have been an original party
to the relevant transaction);
(B) all interest, costs, commissions, fees and other charges and expenses
which any Beneficiary may charge against the Borrower pursuant to, and
in accordance with, the terms of the Facility Documents; and
(C) all legal and other costs, charges and expenses which any Beneficiary
may reasonably incur in enforcing or obtaining, or attempting to
enforce or obtain, payment of any moneys, liabilities, charges and
expenses referred to in paragraphs (A) and (B) of this definition.
"GUARANTEE EXPIRY DATE" means in relation to a Fronting Guarantee, the date
on which the liability of the Fronting Bank thereunder is reduced to zero
in accordance with its terms.
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"HGB" means HANDELSGESETZBUCH (German commercial law).
"INDEMNITY" means the indemnity in Clause 6.7, or in such other form as may
be agreed by all the Lenders, in favour of the Fronting Bank in relation to
Fronting Guarantees and Fronting Advances.
"INDEMNITY ADVANCE" means an Advance made or to be made pursuant to a
Tranche D Notice of Drawdown deemed to have been issued in accordance with
Clause 6.7(E) or the principal amount outstanding for the time being of
that Advance.
"INDEMNITY AMOUNT" in relation to the Indemnity at any time means the
amount which the Borrower is able to demonstrate to the satisfaction of the
Agent is the maximum contingent liability for which the Lenders may be
liable in respect of the Indemnity at any time after that date.
"INFORMATION MEMORANDUM" means the Information Memorandum to be prepared
pursuant to the Syndication Letter.
"INSTRUCTING GROUP" means:
(i) before the First Advance Date, a Lender or group of Lenders whose
aggregate Available Commitments, in respect of all of the Facilities
in which each such Lender participates, amount in total to more than
66 2/3 per cent of the aggregate of the Available Facilities; and
(ii) after the First Advance Date, a Lender or group of Lenders to whom a
total principal amount, in respect of all of the Facilities in which
each such Lender participates, which is more than 66 2/3 per cent of
the aggregate principal amount of the Tranche A Loan, the Tranche B
Loan, the Tranche C Loan and the Tranche D Loan is (or, immediately
prior to its repayment, was then) owed.
"INTELLECTUAL PROPERTY RIGHTS" means any patent, trade mark, service mark,
registered design, trade name or copyright required to carry on the
Business.
"INTERCREDITOR AGREEMENT" means the Intercreditor Agreement in Agreed Form
to be entered into between the Security Agent, the Agent, the Lenders,
certain Suppliers and the Borrower.
"INTEREST EXPENSE" means, in respect of any period, the amount calculated
on the basis of the Latest Financial Statements for that period to be the
sum of:
(a) all interest and amounts in the nature of interest or of similar
effect to interest paid or payable by the Borrower during that period
including:
(i) rentals (but not including payments of a capital nature) in
respect of capitalised lease obligations;
(ii) the face amount of bills of exchange or other financial
instruments drawn, issued, endorsed or accepted by one or other
Borrower less
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their net proceeds after discount or issue and payment of any
acceptance, endorsement, underwriting or similar fee; and
(iii) all credit line, facility, letter of credit, guarantee and
similar fees and all fees and other amounts of a regular or
recurring nature payable in relation to Financial Indebtedness;
and
(b) any amounts paid or payable during that period by the Borrower under
any hedging arrangements,
less the sum of:
(c) all interest and amounts in the nature of interest which is received
or receivable during that period by the Borrower from any person other
than another Relevant Company including any interest on any credit
balance in any bank account; and
(d) any amounts received or receivable during that period by the Borrower
(from any person other than another Relevant Company) under any
interest rate hedging arrangements (if any).
"INTEREST PAYMENT DATE" means the last day of each Interest Period.
"INTEREST PERIOD" means, except as otherwise provided in this Agreement, an
interest period for an Advance determined pursuant to Clause 8.1.
"INVESTMENTS" means shares, stock and debentures (including debenture
stock, loan stock, bonds, notes and certificates of deposit), warrants,
options or other rights to subscribe for, purchase, call for delivery of or
otherwise acquire shares, stock or debentures, all rights relating to
shares, stock or debentures which are deposited with, or registered in the
name of, any depository, custodian, nominee, clearing house or system,
investment manager or other similar person whether or not on a fungible
basis (including rights against any such person) and any other securities
in, of or created by any person, in each case together with any Derivative
Assets thereof.
"INVOICE" means an invoice or demand for payment issued pursuant to, and in
accordance with, a Supply Contract.
"ISSUE DATE" means the date for the issue of an Indemnity as the same is
specified in the relevant Indemnity Request.
"LATEST FINANCIAL STATEMENTS" means, at any time, the most recent financial
statements delivered to the Agent under Clauses 20.1, 20.2 or (if any)
20.3.
"LENDER" means any financial institution named in Schedule 1 and each
Transferee, in each case if such person has not wholly transferred its
rights and obligations under this Agreement.
"LEVERAGE RATIO" means the ratio referred to in Clause 21.1.
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"LITIGATION" has the meaning given to that term in Clause 20.11.
"LICENCE" means each of (i) the Class 3 Licence No. 98030204 dated 3rd
February, 2000 granted to FirstMark Deutschland allowing it to operate
transmission lines for public telecommunications services, (ii) the Class 4
Licence No. 98040647 dated 3rd February, 2000 granted to FirstMark
Deutschland allowing it to provide voice telephony services based on
self-operated telecommunications networks, and (iii) any other
telecommunication licences issued at any time for the purpose of the
operation of the Network.
"LOAN" means each of the Tranche A1 Loan, the Tranche A2 Loan, the Tranche
A3 Loan, the Tranche B Loan, the Tranche C Loan and the Tranche D Loan.
"LOCAL GUARANTEE" has the meaning given to that term in Clause 22.3.
"MANDATORY COST" means the percentage rate per annum calculated by the
Agent in accordance with Schedule 12 (MANDATORY COST FORMULAE).
"MARGIN" means:
(A) in respect of an Advance under the Tranche A1 Facility, a rate of
2.87% per annum;
(B) in respect of an Advance under the Tranche A2 Facility, a rate of 5.4%
per annum;
(C) in respect of an Advance under the Tranche A3 Facility, a rate of
3.50%
(D) in respect of an Advance under the Tranche B Facility, the Tranche C
Facility or the Tranche D Facility:
(i) if:
(a) EBITDA is negative; or
(b) the Leverage Ratio on the last Ratio Calculation Date
preceding the proposed Drawdown Date in respect of such
Advance is more than or equal to 5:1, a rate of 3.50% per
annum;
(ii) if the Leverage Ratio on the last Ratio Calculation Date
preceding the proposed Drawdown Date in respect of such Advance
is less than 5:1 and more than or equal to 4:1, a rate of 2.75%
per annum;
(iii) if the Leverage Ratio on the last Ratio Calculation Date
preceding the proposed Drawdown Date in respect of such Advance
is less than 4:1 and more than or equal to 3:1, a rate of 2.00%
per annum;
(iv) if the Leverage Ratio on the last Ratio Calculation Date
preceding the proposed Drawdown Date in respect of such Advance
is less than 3:1 and more than or equal to 2:1, a rate of 1.50%
per annum; and
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(v) if the Leverage Ratio on the last Ratio Calculation Date
preceding he proposed Drawdown Date in respect of such Advance is
less than 2:1, a rate of 1.25% per annum.
"MATERIAL ADVERSE EFFECT" means:
(i) a material adverse effect on the ability of (a) any Relevant Company
to perform and comply with any of its material obligations under the
Transaction Documents to which it is a party or (b) the Parent Company
to perform and comply with any of its material obligations under the
Equity Commitment Undertaking;
(ii) a material adverse effect on the legality, binding nature, validity or
enforceability of any Transaction Document (but not including the
existence of a Reservation); or
(iii) a material adverse effect on the Business, or the operations, assets
or financial condition of the Relevant Companies (taken as a whole).
"NECESSARY AUTHORISATIONS" means all approvals, authorisations and licences
from, and all rights granted by and all filings, registrations and
agreements with, any person (including any government or other regulatory
authority) necessary for carrying on the Business from time to time.
"NETWORK" means a broadband wireless access network in Germany based on
point-to-multipoint technology, to be constructed and operated by FirstMark
Deutschland in accordance with the Licences and the Frequency Allocations.
"NOTICE OF DRAWDOWN" means a notice substantially in the form set out in
Schedule 4.
"OPTIONAL STATEMENTS" means financial statements (if any) delivered by the
Borrower to the Agent under Clause 20.3.
"ORIGINAL BUSINESS PLAN" means the business plan of the Relevant Companies
in force on the date of this Agreement.
"ORIGINAL FINANCIAL STATEMENTS" means the audited financial statements of
FirstMark Deutschland and the Parent Company for the financial year ended
31st December, 1999.
"PARENT COMPANY" means FirstMark Communications Europe S.A., a stock
corporation incorporated in Luxembourg with registration number 65610.
"PERMITTED DISTRIBUTION" means a dividend paid by the Borrower to the
Parent Company, or a payment of interest or repayment of principal on
Subordinated Debt of the Borrower paid by the Borrower to the lender
thereof, which:
(i) is paid after or at the same time as the first prepayment pursuant to
Clause 12(A), and thereafter no more frequently than at intervals of
six months;
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13
(ii) does not exceed an amount equal to 50% of the Excess Cash Flow for the
immediately preceding six month period, as specified in the financial
statements relating to that period as delivered to the Agent pursuant
to Clause 20.
"PERMITTED ENCUMBRANCE" means any encumbrance:
(i) created or permitted under the Facility Documents or the PMP Contract
as it exists on the date of this Agreement;
(ii) which arises by operation of law and in the normal course of trading,
including, without limitation, liens and rights of set off;
(iii) any retention of title arrangements provided for in any Supply
Contract which relate only to amounts payable under that Supply
Contract;
(iv) any other encumbrance provided that:
(a) the amount secured by such encumbrance does not exceed Euro
50,000; and
(b) the maximum aggregate amount secured by all such encumbrances
does not exceed Euro 500,000;
(v) created with the consent of an Instructing Group; or
(vi) any right of set-off, netting or combination of accounts agreed by any
Relevant Company with its bankers in the ordinary course of the cash
management arrangements of the Relevant Companies (but not including
any other member of the Group).
"PERMITTED INDEBTEDNESS" means Financial Indebtedness incurred or to be
incurred by the Borrower:
(i) under any Transaction Document provided that the amount of Financial
Indebtedness which may be incurred under any Project Document is not
increased at any time after the date of this Agreement;
(ii) which is Subordinated Debt;
(iii) with the written consent of the Lenders; or
(iv) any other Financial Indebtedness incurred in the normal course of
trading provided that the aggregate amount of such indebtedness does
not exceed the greater at any time of (i) Euro 500,000 or (ii) two per
cent. (2%) of the aggregate amount drawn and outstanding at that time
under the Facilities.
"PLEDGED ACCOUNT" means the account (numbered 6700134536) in the name of
the Borrower with Deutsche Bank AG and secured in favour of the
Beneficiaries and other third parties pursuant to the Security Documents,
and any other account of the Borrower
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14
which is with Deutsche Bank AG secured on substantively the same terms
together with the account (numbered 136801800) in the name of FirstMark
Deutschland with Deutsche Bank AG and secured in favour of the
Beneficiaries and other third parties pursuant to the Security Documents.
"PMP CONTRACT" means the contract dated on or about the date of this
Agreement between Siemens AG and FirstMark Deutschland relating to the
supply of the equipment, software and services referred to therein by
Siemens AG to or for FirstMark Deutschland.
"POTENTIAL EVENT OF DEFAULT" means any event which with the giving of any
notice, the lapse of time or both (in each case as prescribed thereby)
would become an Event of Default.
"PROCEEDINGS" has the meaning given in Clause 40.1.
"PROJECT ASSETS" means all or any part of any business, undertaking,
property, assets and revenues, present or future, wherever situate, which
are related to, or are owned, leased, licensed or otherwise acquired or
used by the Borrower for the purpose of the Business.
"PROJECT DOCUMENTS" means each of those documents set out in Schedule 8.
"PROPERTY" means, in respect of any Relevant Company, all right, title and
interest which such Relevant Company has in any real property.
"QUALIFYING BANK" means any bank in respect of which the Borrower will not
under German law at the date hereof (or, in the case of a Transferee, the
date of the Transfer Certificate) be obliged to make any withholding or
deduction on account of tax from payments of interest made to such bank.
"QUARTER" means each three month period expiring upon 31st March, 30th
June, 30th September and 31st December.
"RATE FIXING DATE" means the day two Business Days prior to (or in relation
to a Fronting Advance the date of) the commencement of the relevant period
but in relation to all Advances other than Fronting Advances, if two
Business Days prior to the commencement of the relevant period ceases to be
the date on which quotes for deposits in Euros for the relevant period are
customarily taken in the European inter-bank market for delivery on a
Drawdown Date, it will mean the day on which quotes for deposits in Euros
for the relevant period are customarily taken in the European inter-bank
market for delivery on a Drawdown Date.
"RATIO CALCULATION DATE" means each date included in the table in Schedule
9.
"REFERENCE BANKS" means Deutsche Bank Luxembourg S.A., and/or such other
bank or banks as may from time to time be agreed between the Borrower and
the Agent.
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15
"RELEVANT COMPANY" means the Borrower and each subsidiary (if any) of the
Borrower from time to time.
"RELEVANT SUBSTANCE" means any substance or any Property of any Relevant
Company (whether in solid or liquid form or in the form of a gas or vapour
and whether alone or in combination with any other substance) utilised or
present within any Property of any Relevant Company or on or affecting the
Project Assets which is capable of causing harm to man or any other living
organism supported by the environment (both natural and built), or damaging
the environment (both natural and built) or public health or welfare.
"RESERVATION" means a qualification or reservation stated in a legal
opinion delivered to the Agent pursuant to Clause 7.
"ROLLOVER ADVANCE" means a Fronting Advance:
(a) made or to be made on the same day that a maturing Fronting Advance is
due to be repaid;
(b) the aggregate amount of which is equal to or less than the maturing
Fronting Advance; and
(c) made or to be made to the Borrower for the purpose of refinancing a
maturing Fronting Advance.
"SERVICE LEVEL AGREEMENT" means the agreement in Agreed Form between the
Borrower and FirstMark Deutschland pursuant to which FirstMark Deutschland
shall make the Network available to the Borrower on the terms stated
therein.
"SCREEN RATE" means the rate shown on Reuters page EURIBOR, currently being
page EURIBOR01, or the rate shown on such alternative page or source of
screen rate as the Agent may nominate (applying customary market practice
(if any) at this time) if this page ceases to display averages of rates for
inter-bank Euro deposits in the European interbank market.
"SECURITY DOCUMENTS" means each of the documents listed in Schedule 7 and
any other agreement, deed or document from time to time executed in favour
of the Beneficiaries (or any of them) for the purpose of securing all or
any of the obligations of either or both of the Parent Company and the
Borrower under the Facility Documents as agreed by the Borrower.
"SUBORDINATED DEBT" means any Financial Indebtedness subordinated on the
terms of the Subordination Agreement, or otherwise permitted under the
Facility Documents and subordinated on terms satisfactory to the Lenders.
"SUBORDINATION AGREEMENT" means a subordination agreement in the Agreed
Form to be entered into between the Security Agent and the provider of any
Subordinated Debt as well as the other parties thereto.
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16
"SUBSCRIBER" means a customer of the Borrower in relation to the use of
part of the Network.
"SUPPLIER" means the counterparty to each Supply Contract.
"SUPPLY CONTRACTS" means each of (i) the PMP Contract; (ii) the Core
Network Contract; and (iii) any other contract entered into by FirstMark
Deutschland for the supply of equipment, software and services which are
material for the operation of the Business and "SUPPLY CONTRACT" shall be
construed accordingly.
"SYNDICATION" means the process of syndication by the Lenders (as at the
date of this Agreement) of their rights, interests and obligations under
the Facilities.
"SYNDICATION DATE" has the meaning given to that term in the Syndication
Letter.
"SYNDICATION LETTER" means the letter of even date herewith from the
Lenders and the Arranger to the Borrower, FirstMark Deutschland and the
Parent Company, relating to the primary syndication of the Facilities.
"TARGET DAY" means a day on which the Trans-European Automated Real time
Gross settlement Express Transfer system (TARGET) is open.
"TAX CREDIT" means a credit against, relief or remission for, or repayment
of any tax.
"TAX PAYMENT" means an increased payment made by the Borrower to a
Beneficiary under Clause 14.1 or a payment under Clause 14.2.
"TELECOMMUNICATION LAWS" means the German Telecommunications Act of July
1996 as amended and all other laws, statutes, regulations and judgements
relating to telecommunications applicable to any Relevant Company and/or
the business carried on by any Relevant Company.
"TOTAL FACILITY AMOUNT" means the aggregate Commitments of the Lenders,
being an amount equal to Euro 480,000,000, subject to any cancellation
pursuant to the terms of this Agreement.
"TOTAL INDEBTEDNESS" means, at any time, the total consolidated Financial
Indebtedness of the Borrower and the other Relevant Companies at that time
as shown by the Latest Financial Statements, less any Subordinated Debt
which would otherwise be included.
"TRADEMARK" means each trademark specified in Schedule 11.
"TRANCHE A AVAILABILITY PERIOD" means the period commencing on the Tranche
A Financial Completion Date and ending on (but not including) the date
falling 24 months after the date of this Agreement.
"TRANCHE A FINANCIAL COMPLETION DATE" means the date upon which the Agent
(acting reasonably) confirms in writing to the Borrower and the Lenders
that it has received or
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17
satisfied itself as to, or waived in writing, all of the documents,
evidence and other matters stated in Schedule 3 and that each is in form
and substance satisfactory to the Agent (acting reasonably).
"TRANCHE A FACILITY" means each of the Tranche A1 Facility, the Tranche A2
Facility and the Tranche A3 Facility.
"TRANCHE A1 FACILITY" means the loan facility provided under Clause 3.1.
"TRANCHE A2 FACILITY" means the loan facility provided under Clause 3.2.
"TRANCHE A3 FACILITY" means the loan facility provided under Clause 3.3.
"TRANCHE A1 LOAN" means, at any time, the principal amount borrowed and not
repaid or prepaid under the Tranche A1 Facility.
"TRANCHE A2 LOAN" means, at any time, the principal amount borrowed and not
repaid or prepaid under the Tranche A2 Facility.
"TRANCHE A3 LOAN" means, at any time, the principal amount borrowed and not
repaid or prepaid under the Tranche A3 Facility.
"TRANCHE A LOAN" means, at any time, the aggregate amount of the Tranche A1
Loan; the Tranche A2 Loan and the Tranche A3 Loan.
"TRANCHE B AVAILABILITY PERIOD" means the period commencing upon the
Tranche B Financial Completion Date and ending upon (but not including) the
earlier of (i) the date falling 24 months after the Tranche B Financial
Completion Date, and (ii) 48 months after the date of this Agreement.
"TRANCHE B FACILITY" means the loan facility provided under Clause 4.
"TRANCHE B FINANCIAL COMPLETION DATE" means the date upon which the Agent
(acting reasonably) confirms in writing to the Borrower and the Lenders
that each of the conditions specified in Clause 4.3(A) have been satisfied
or waived in writing in accordance with Clause 7.
"TRANCHE B LOAN" means, at any time, the principal amount borrowed and not
repaid or prepaid under the Tranche B Facility.
"TRANCHE C AVAILABILITY PERIOD" means the period commencing upon the
Tranche C & D Financial Completion Date and ending upon (but not including)
the earlier of (i) the date falling 18 months after the Tranche C & D
Financial Completion Date, and (ii) 60 months after date of this Agreement.
"TRANCHE C FACILITY" means the loan facility provided under Clause 5.
"TRANCHE C & D FINANCIAL COMPLETION DATE" means the date upon which the
Agent (acting reasonably) confirms in writing to the Borrower and the
Lenders that each of the
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18
conditions specified by Clause 5.3(A) have been satisfied or waived in
writing in accordance with Clause 7.
"TRANCHE C LOAN" means, at any time, the principal amount borrowed and not
repaid or prepaid under the Tranche C Facility.
"TRANCHE D AVAILABILITY PERIOD" means the period commencing upon the
Tranche C & D Financial Completion Date and ending upon the Business Day
preceding the Final Repayment Date.
"TRANCHE D FACILITY" means the loan facility provided under Clause 6.
"TRANCHE D LOAN" means at any time the aggregate (avoiding double-counting)
of (a) the principal amount borrowed and not repaid or prepaid under the
Tranche D Facility and (b) the Indemnity Amount at that time.
"TRANCHE D UTILISATION" means a utilisation of Tranche D by way of a
Fronting Advance or a Fronting Guarantee.
"TRANSACTION DOCUMENTS" means the Facility Documents and the Project
Documents, and "TRANSACTION DOCUMENT" shall mean any of them.
"TRANSFER CERTIFICATE" means a certificate substantially in the form set
out in Schedule 2 signed by a Lender and a Transferee whereby:
(i) the Lender transfers to the Transferee all or a part of the Lender's
rights, benefits and obligations under this Agreement as contemplated
in Clause 32.5; and
(ii) the Transferee undertakes to perform the obligations it will assume as
a result of delivery of the certificate to the Agent as contemplated
in Clause 32.5.
"TRANSFER DATE" means, in relation to any Transfer Certificate, the date
for the making of the transfer as specified in the schedule to the Transfer
Certificate.
"TRANSFEREE" means a person to whom a Lender transfers all or part of that
Lender's rights, benefits and obligations under this Agreement.
"WORKING CAPITAL" means current assets (UMLAUFVERMOGEN within the meaning
of Section 266 HGB and German GAAP) less current liabilities.
1.2 INTERPRETATION
Any reference in this Agreement to:
an "AGREED FORM" of a document means a form of the document initialled by
the Agent and the Borrower (or by their respective agents) for the purposes
of identification on or prior to the date of this Agreement;
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19
"CURRENT ACCOUNTING PRACTICE" and "GENERALLY ACCEPTED ACCOUNTING
PRINCIPLES" shall be construed to mean international accounting standards
and accounting principles and practices applied by German law or otherwise
generally accepted in Germany, consistently applied; "GERMAN GAAP" shall be
construed to mean generally accepted accounting principles in Germany,
consistently applied, and any reference to a German accounting term is to
those principles and practices;
an "ENCUMBRANCE" shall be construed as a reference to (a) a mortgage,
charge, pledge, lien or other encumbrance, arrangement or agreement
securing any obligation of any person, (b) any arrangement under which
money or claims to, or the benefit of, a bank or other account may be
applied, set-off or made subject to a combination of accounts so as to
effect payment of sums owed or payable to any person or (c) any other type
of preferential arrangement (including title transfer and retention
arrangements) having a similar effect (including SICHERUNGSUBEREIGNUNG,
SICHERUNGSABTRETUNG, EIGENTUMSVORBEHALT, PFANDRECHT, GRUNDPFANDRECHTE,
TREUHANDVEREINBARUNG, NIE BRAUCH);
the "EQUIVALENT" on any given date in one currency (the "FIRST CURRENCY")
of an amount denominated in another currency (the "SECOND CURRENCY") is a
reference to the amount of the first currency which could be purchased with
the amount of the second currency at the spot rate of exchange quoted on
the relevant Reuters page at or about 3.00 p.m. (London time) on the date
for the purchase of the first currency with the second currency;
the "AGENT", the "SECURITY AGENT" or "LENDER" shall be construed so as to
include their respective successors, Transferees and assigns in accordance
with their respective interests;
a "HOLDING COMPANY" of a company or corporation shall be construed as a
reference to any company or corporation of which the first-mentioned
company or corporation is a subsidiary;
anything after the words "INCLUDE", "INCLUDES" or "INCLUDING" does not
limit what else might be included;
"INDEBTEDNESS" shall be construed so as to include any obligation (whether
incurred as principal or as surety) for the payment or repayment of money,
whether present or future, actual or contingent;
a "MONTH" is a reference to a period starting on one day in a calendar
month and ending on the numerically corresponding day in the next
succeeding calendar month except that, where that period would otherwise
end on a day which is not a Business Day, it shall end on the next
succeeding Business Day, unless that day falls in the calendar month
succeeding the calendar month in which it would otherwise have ended, in
which case it shall end on the immediately preceding Business Day Provided
that, if a period starts on the last Business Day in a calendar month or if
there is no numerically corresponding day in the month in which that period
ends, that period shall end on the last Business Day in that later month
(and references to "MONTHS" shall be construed accordingly);
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20
"PARTICIPATING MEMBER STATES" shall be construed as those member states of
the European Union from time to time which adopt a single, shared currency
in the Third Stage, as defined and identified in the EMU Legislation;
a "PERSON" shall be construed as a reference to any individual, firm,
company, corporation, trust, government, state or agency of a state or any
association or partnership (whether or not having separate legal
personality) of two or more of them;
"REPAY" (or any derivative form thereof) shall, subject to any contrary
indication, be construed to include "PREPAY" (or, as the case may be, the
corresponding derivative form);
a "SUBSIDIARY" of a company or corporation shall be construed as a
reference to any company or corporation:
(A) which is under the control, directly or indirectly, of the
first-mentioned company or corporation;
(B) more than half the issued share capital of which is beneficially
owned, directly or indirectly, by the first-mentioned company or
corporation; or
(C) which is a subsidiary of another subsidiary of the first-mentioned
company or corporation,
and, for these purposes, a "CONTROL" shall have the same meaning as in the
definition of "Affiliate";
"TAX" shall be construed so as to include any tax, levy, impost, duty or
other charge of a similar nature (including any penalty or interest payable
in connection with any failure to pay or any delay in paying any of the
same);
"VAT" shall be construed as a reference to value added tax (UMSATZSTEUER)
including any similar tax which may be imposed in its place from time to
time;
a "WHOLLY-OWNED SUBSIDIARY" of a company or corporation shall be construed
as a reference to any company or corporation which has no other members
except that other company or corporation and/or that other company's or
corporation's wholly-owned subsidiaries or persons acting on behalf of that
other company or corporation or its wholly-owned subsidiaries; and
the "WINDING-UP", "DISSOLUTION" or "ADMINISTRATION" of a company or
corporation shall be construed so as to include any equivalent or analogous
proceedings under the law of the jurisdiction in which the company or
corporation is incorporated or any jurisdiction in which the company or
corporation carries on business including the seeking of liquidation,
winding up, reorganisation, dissolution, administration, arrangement,
adjustment, protection or relief of debtors.
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21
1.3 CURRENCY SYMBOLS
"EURO" means the single currency of the participating member states in the
third stage of the European economic and monetary union, "EURO UNIT" means
a unit of the Euro as defined in the EMU Legislation, and "NATIONAL
CURRENCY UNIT" or "NCU" means a unit of the Euro (other than the Euro unit)
as defined in EMU Legislation.
1.4 DOCUMENTS AND STATUTES
Any reference in this Agreement to:
(A) this Agreement, a Project Document, a Facility Document, a Licence,
any licence, consent or other agreement or document shall be construed
as a reference to them as they may have been, or may from time to time
be, amended, varied, reissued, replaced, novated or supplemented; and
(B) a statute shall be construed as a reference to such statute as the
same may have been, or may from time to time be, amended or
re-enacted.
1.5 HEADINGS
Clause, Part and Schedule headings are for ease of reference only.
1.6 RIGHTS AND OBLIGATIONS SEVERAL
The rights and obligations of each Lender under this Agreement are several.
The failure by a Lender to perform its obligations under this Agreement
shall not affect the obligations of the Borrower towards any other party to
this Agreement nor shall any other party be liable for the failure by any
Lender to perform its obligations under this Agreement.
1.7 MISCELLANEOUS
All defined terms shall apply to both the singular and plural forms of such
terms.
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22
PART 2
THE FACILITIES
2. GRANT OF THE FACILITIES
The Lenders grant to the Borrower, upon the terms and subject to the
conditions of this Agreement, a multi-tranche senior facility in the
Total Facility Amount, and comprising the Tranche A1 Facility, the
Tranche A2 Facility, the Tranche A3 Facility, the Tranche B Facility, the
Tranche C Facility and the Tranche D Facility.
3. THE TRANCHE A FACILITIES 3.1 GRANT OF THE TRANCHE A1 FACILITY
The Lenders grant to the Borrower, upon the terms and subject to the
conditions of this Agreement, a senior secured Euro term loan facility in
a total principal amount equal to Euro 75,000,000.
3.2 GRANT OF THE TRANCHE A2 FACILITY
The Lenders grant to the Borrower, upon the terms and subject to the
conditions of this Agreement, a senior secured Euro term loan facility in
a total principal amount equal to Euro 25,000,000.
3.3 GRANT OF THE TRANCHE A3 FACILITY
The Lenders grant to the Borrower, upon the terms and subject to the
conditions of this Agreement, a senior secured Euro term loan facility in
a total principal amount equal to Euro 35,000,000.
3.4 PURPOSE AND APPLICATION
(A) Subject to Clause 3.6, the Borrower may draw Advances under each
of the Tranche A1 Facility and the Tranche A2 Facility and shall
use the proceeds of such Advances solely for the purpose of paying
amounts payable (including VAT) in respect of Invoices issued
pursuant to the PMP Contract; and
(B) the Borrower may draw Advances under the Tranche A3 Facility and
shall use the proceeds of such Advances solely for the purpose of
paying amounts payable (including VAT) in respect of Invoices
issued pursuant to the Core Network Contract.
3.5 AVAILABILITY
(A) The obligation of each Lender under this Agreement and the right
of the Borrower to give any Tranche A Notice of Drawdown are
subject to the condition precedent that the Tranche A Financial
Completion Date has occurred.
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(B) Subject to Clauses 3.5(A), 3.6 and 7, the Borrower may draw
Advances under the Tranche A Facilities at any time during the
Tranche A Availability Period.
3.6 PRO RATA DRAWINGS
Any amount drawn down by the Borrower pursuant to the Tranche A1 Facility
and the Tranche A2 Facility must be drawn down pro rata between such
Facilities.
4. THE TRANCHE B FACILITY
4.1 GRANT OF THE FACILITY
The Lenders grant to the Borrower, upon the terms and subject to the
conditions of this Agreement, a senior secured Euro term loan facility in
a total principal amount equal to Euro 85,000,000.
4.2 PURPOSE AND APPLICATION
The Borrower may draw Advances under the Tranche B Facility and use the
proceeds of such Advances solely for the purpose of funding Capital
Expenditure of FirstMark Deutschland for the purposes of the installation
and operation of the Network.
4.3 AVAILABILITY
(A) The obligation of each Lender under this Agreement and the right
of the Borrower to give any Tranche B Notice of Drawdown are
subject to the conditions precedent that the Agent has confirmed
to the Borrower and the Lenders:
(i) that the Tranche A Financial Completion Date occurred; and
(ii) that it is satisfied (acting reasonably) that the
Annualised Revenue is no less than Euro 40,000,000.
(B) Subject to clause 4.1, the maximum amount of the Tranche B
Facility available for drawing on a Tranche B Notice of Drawdown
date shall be equal to 75 per cent. of the then Annualised
Revenue.
(C) Subject to Clauses 4.3(A), 4.3(B) and 7, the Borrower may draw
Advances under the Tranche B Facility at any time during the
Tranche B Availability Period.
5. THE TRANCHE C FACILITY
5.1 GRANT OF THE FACILITY
The Lenders grant to the Borrower, upon the terms and subject to the
conditions of this Agreement, a senior secured Euro term loan facility in
a total principal amount equal to Euro 195,000,000.
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24
5.2 PURPOSES AND APPLICATION
The Borrower may draw Advances under the Tranche C Facility and shall use
the proceeds of such Advances solely for the purposes of (i) converting
amounts outstanding under the Tranche A Facility pursuant to Clause 5.4,
and (ii) funding Capital Expenditure of FirstMark Deutschland for the
purposes of the installation and operation of the Network.
5.3 AVAILABILITY
(A) The obligation of each Lender under this Agreement and the right
of the Borrower to give any Tranche C Notice of Drawdown are
subject to the condition precedent that the Tranche A Financial
Completion Date has occurred.
(B) No amount may be drawn under the Tranche C Facility if the amount
remaining to be drawn under the Tranche C Facility after the
making of such Advance would be less than the amount of the
Tranche A Loan at such time (less an amount equal to the extent
that the Tranche A Loan is to be converted in accordance with
Clause 5.4 out of the proceeds of such Advance).
(C) Until the Tranche A Loan is converted in full in accordance with
Clause 5.4, no more than Euro 5 million may be drawn under the
Tranche C Facility during any calendar month in order to fund
Capital Expenditure.
(D) Any amount available to be drawn under the Tranche C Facility as
at the end of each calendar month shall to the extent that it is
not then drawn in order to fund Capital Expenditure be applied in
conversion of the Tranche A Loan pursuant to Clause 5.4.
(E) Subject to clause 5.1, the maximum aggregate amount of the Tranche
C Facility and Tranche D Facility available for drawing on a
Tranche C Notice of Drawdown date shall be equal to the amount by
which Annualised EBITDA (calculated always in accordance with
paragraph (i) of the definition of that term) on that date
multiplied by 5 exceeds Total Indebtedness after deducting the
Tranche A Loan.
(F) Subject to the rest of this Clause 5.3 and Clause 7, the Borrower
may draw Advances under the Tranche C Facility at any time during
the Tranche C Availability Period.
5.4 CONVERSION OF TRANCHE A
(A) On the date (each a "Conversion Date") which is the last day by
which Quarterly Statements are required to be delivered by the
Borrower to the Agent pursuant to Clause 20.2 and on which any of
the Tranche C Facility is available for drawing, the Borrower
shall subject to (B), be deemed to have submitted a Notice of
Drawdown in respect of Tranche C in the amount of the Conversion
Amount which shall be immediately applied in repayment of the
Tranche A Loan. Each such conversion of the Tranche A Loan into
the Tranche C Loan
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25
shall for the purposes of this Agreement take place on the
applicable Conversion Date.
(B) The amount of Tranche C Facility required to be applied in
repayment of the Tranche A Loan pursuant to (A) (the "Conversion
Amount") on a Conversion Date shall be the amount of the Tranche C
Facility available in accordance with Clause 5.3 on the Conversion
Date less any amount which is the subject of a valid Notice of
Drawdown in respect of Tranche C , in respect of which Notice of
Drawdown no Advance has been made.
(C) Unless otherwise agreed between the Borrower and the Lenders any
conversion of the Tranche A Loan pursuant to this Clause 5.4 shall
be applied first to convert each of the Tranche A1 Loan and the
Tranche A3 Loan pro rata, second to cancel the Commitments in
respect of each such Loan pro rata, third to convert the Tranche
A2 Loan, and fourth to cancel the Commitments in respect of the
Tranche A2 Loan, in each case rateably between the Lenders.
(D) Notwithstanding the deemed borrowing and repayment effected
pursuant to paragraph (A) above it is acknowledged that no
payments will on a conversion from Tranche A to Tranche C be made
by the Borrower or Lender pursuant to paragraph (A).
6. THE TRANCHE D FACILITY
6.1 GRANT OF THE FACILITY
The Lenders grant to the Borrower, upon the terms and subject to the
conditions of this Agreement, a senior secured Euro revolving loan
facility in a total principal amount equal to Euro 65,000,000.
6.2 PURPOSE AND APPLICATION
The Borrower may draw Fronting Advances and Fronting Guarantees under the
Tranche D Facility and shall use the proceeds of the Tranche D Facility
solely as working capital in connection with, and to support the ongoing
bank guarantee requirements, of the Business.
6.3 AVAILABILITY
(A) The obligation of each Lender under this agreement and the right
of the Borrower to give any Tranche D Notice of Drawdown are
subject to the conditions precedent that the Agent has confirmed
to the Borrower (i) that the Tranche A Financial Completion Date
has occurred and (ii) the Tranche A Loan has been converted in
full pursuant to Clause 5.4.
(B) Subject to the rest of this Clause 6.3 and Clause 7, the Borrower
may draw Tranche D Utilisations at any time during the Tranche D
Availability Period, and
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any Fronting Advance which is repaid or prepaid may be reborrowed
in accordance with the terms of this Agreement.
(C) Subject to clause 6.1, the maximum amount of the Tranche C
Facility and the Tranche D Facility available for drawing on a
Tranche D Notice of Drawdown date shall be equal to the amount by
which Annualised EBITDA (calculated always in accordance with
paragraph (i) of the definition of that term) on that date
multiplied by 5 exceeds the Total Indebtedness after deducting the
Tranche A Loan.
6.4 FRONTING ADVANCES
The Borrower may, subject to clause 6.3, require that a Tranche D
Utilisation be made by the Fronting Bank by way of a Fronting Advance.
Each request for such a Fronting Advance shall be made to the Fronting
Bank by way of the issue of a Tranche D Notice of Drawdown. A copy of
each such Tranche D Notice of Drawdown shall be sent to the Agent. All
conditions of this Agreement applicable to Advances shall apply to any
such Tranche D Notice of Drawdown and each Fronting Advance made pursuant
to it, save that:
(A) the Fronting Advance shall be made solely by the Fronting Bank;
and
(B) the voting rights of the Lenders in relation to the Fronting
Advance shall be exercised by the Lenders in their respective
Fronting Proportions from time to time; and
(C) the interest and fee provisions specified in Clauses 9.3 and 9.4
shall apply.
6.5 FRONTING GUARANTEES
The Borrower may, subject to clause 6.3, require the Fronting Bank to
issue a Fronting Guarantee. Each such request shall be made to the
Fronting Bank by way of the issue of a Tranche D Notice of Drawdown which
complies with clause 6.6. A copy of each such Tranche D Notice of
Drawdown shall be sent to the Agent. The maximum aggregate Indemnity
Amount in relation to all Fronting Guarantees outstanding at any time
shall not exceed Euro 25,000,000 (twenty five million Euro).
6.6 NOTICE OF DRAWDOWN - FRONTING GUARANTEE
Each Notice of Drawdown in respect of a Fronting Guarantee must specify:
(A) the Guarantee Expiry Date of the Fronting Guarantee (being a date
falling on a Business Day which is on or before the Final
Repayment Date);
(B) the name and address of the beneficiary;
(C) the beneficiary's receiving bank account;
(D) instructions for delivery of the Fronting Guarantee to the
beneficiary; and
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(E) details of the liabilities secured by the Fronting Guarantee,
and must attach an execution copy of the Fronting Guarantee to be issued.
6.7 INDEMNITY FROM THE BORROWER FOR FRONTING ADVANCES AND FRONTING GUARANTEES
(A) The Borrower unconditionally and irrevocably:
(i) undertakes to reimburse the Fronting Bank on demand the
amount required to satisfy any amount demanded under a
Fronting Guarantee in the currency of the Fronting
Guarantee, together with interest at the rate specified in
Clause 24.1 from the date such payment is made by the
Fronting Bank until the date of reimbursement in full by
the Borrower or the date the Fronting Bank receives the
proceeds of the relevant Indemnity Advance pursuant to
Clause 6.7 (E);
(ii) undertakes to indemnify the Fronting Bank and each Lender
on demand from and against any cost, loss, liability,
demand or claim which they may suffer or incur under or in
connection with a Guarantee or the Indemnity; and
(iii) agrees that this Clause 6.7(A) shall apply in respect of
amounts paid under any demand under a Fronting Guarantee
without regard to the sufficiency, accuracy or genuineness
of any demand (or related document), any incapacity or
limitation on the powers of any person signing or issuing
any demand or related document or any other condition.
(B) The indemnity of the Borrower in Clause 6.7 (A) shall be a
continuing security and will remain in full force and effect until
such time as all amounts to which it is expressed to relate have
been paid in full. The indemnity of the Borrower in Clause 6.7 (A)
is additional to and not instead of any security or other
guarantee or indemnity at any time existing in favour of any
person. Any settlement or discharge of any claim under this
indemnity shall be conditional upon no payment made under the
indemnity being avoided or set aside or ordered to be refunded by
virtue of any provision of any enactment relating to bankruptcy,
insolvency or liquidation.
(C) Neither the obligations arising under the indemnity of the
Borrower contained in Clause 6.7(A), nor the rights, powers and
remedies conferred on the Beneficiaries under this Agreement or by
law shall be impaired by any circumstances which but for this
provision would impair such obligations or rights, powers and
remedies including:
(i) any time or indulgence or waiver given to, or composition
made with the Borrower or any other person;
(ii) any amendment, variation or modification to, or replacement
of a Fronting Guarantee or any Facility Document;
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28
(iii) the taking, variation, compromise, renewal or release or
refusal or neglect to perfect or enforce any right,
remedies or securities against the Borrower or any other
person;
(iv) any other guarantee, indemnity, charge or other security or
right or remedy held by or available to the Fronting Bank,
the Agent or any Lender being or becoming wholly or in part
void, voidable or unenforceable on any ground whatsoever or
by the Fronting Bank from time to time dealing with,
exchanging, varying, realising, releasing or failing to
perfect or enforce any of the same;
(v) the winding-up, dissolution, administration or
re-organisation of a Beneficiary or any other person or any
change in its status, function, control or ownership; and
(vi) any other act, omission, circumstance, matter or thing
which but for this provision might operate to impair the
indemnity of the Borrower contained in Clause 6.7 (A) or
any of the rights, powers and remedies conferred on the
Beneficiaries under this Agreement or by law.
(D) The Borrower shall not by virtue of any payment made under its
indemnity contained in Clause 6.7 (A) claim any right or
subrogation contribution or indemnity against any person for so
long as any sum remains payable or capable of becoming payable
under this Agreement or any of the other Facility Documents.
(E) If the Borrower fails to make any payment demanded under Clause
6.7(A)(i), or to repay any Fronting Advance, in each case when
due, the Borrower shall automatically be deemed to have issued on
such due date a Tranche D Notice of Drawdown in an amount equal to
the amount due under clause 6.7(A)(i), or as the case may be in
repayment of the Fronting Advance. The Interest Period in respect
of any such Advance under the Tranche D Facility shall be one
month. The limitations specified in Clause 7.2 shall not apply to
any such Advance but the other provisions of this Agreement shall
apply as if such Tranche D Notice of Drawdown had been duly made
by the Borrower.
(F) The proceeds of any Indemnity Advance shall be applied towards
payment of the Borrower's obligation to the Fronting Bank under
Clause 6.7 (A)(i), or as the case may be to repay the Fronting
Advance.
6.8 INDEMNITY FROM THE LENDERS FOR FRONTING ADVANCES AND FRONTING GUARANTEES
Each Lender agrees, by way of continuing indemnity, to indemnify the
Fronting Bank from and against any cost, loss, liability, demand or claim
which the Fronting Bank may suffer or incur (including as a result of a
default by the Borrower under Clause 6.7(A)) as a result of the issue of
any Fronting Guarantee or the making of any Fronting Advance in that
Lender's then Fronting Proportion of any such cost, loss, liability,
demand or claim so incurred, save to the extent the Fronting Bank is
otherwise reimbursed pursuant to Clause 6.7(A) or Clause 6.7(E).
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7. AVAILABILITY OF THE FACILITIES
7.1 NOTICES AND DEEMED NOTICES OF DRAWDOWN
(A) Upon receipt of any Invoice FirstMark Deutschland shall notify the
Borrower. If such Invoice is in respect of an amount to be
financed under this Agreement the Borrower shall forward a Notice
of Drawdown to the Agent for an Advance in a principal amount
equal to the amount due under such Invoice (inclusive of VAT), and
shall attach a copy of such Invoice to such Notice of Drawdown. If
such Invoice is in dispute the Notice of Drawdown shall relate
only to such amount thereof (if any) as is not in dispute. Each
such Notice of Drawdown shall be forwarded to the Agent in
sufficient time to ensure (taking into consideration the timing of
the making of Advances) that payment of the relevant Invoice is
made pursuant to this Clause 7.1 (A) on or before the latest date
for payment thereof specified in the Supply Contract under which
the Invoice has been issued. Each such Notice of Drawdown shall be
countersigned on behalf of FirstMark Deutschland. Subject to
Clause 7.1(C), following receipt of any such Notice of Drawdown,
and upon the making of the relevant Advance, the Agent shall, on
behalf of FirstMark Deutschland directly pay such proceeds to the
relevant Supplier to the account specified in the Invoice, in
payment of the Invoice (inclusive of VAT) in respect of which the
Notice of Drawdown was made. The Agent shall request from the
Supplier a confirmation in writing of receipt of such proceeds by
the Supplier. If the Agent receives such a receipt it shall
promptly forward a copy of it to the Borrower. The Borrower and
FirstMark Deutschland by their execution of the relevant Notice of
Drawdown shall consent to the requested Advance being paid
directly to the relevant Supplier.
(B) The Agent shall in the absence of express notice to the contrary
be entitled to assume that any Invoice a copy of which is attached
to any Notice of Drawdown has been validly and properly issued in
accordance with the terms of the relevant Supply Contract. The
Agent will have no liability in the event that it is determined
that the Invoice was improperly issued and the Borrower's
obligations to pay interest on and to repay any Advance made in
respect of such Invoice will remain unaffected.
(C) Upon payment of an Invoice from the proceeds of an Advance
pursuant to (A), there shall be deemed to arise an amount of debt
due from FirstMark Deutschland to the Borrower of an amount equal
to the amount of such Invoice payment. Repayment of principal and
payment of interest in respect of such debt may only be made from
any future balance sheet profits (BILANZGEWINN) or liquidation
surplus of FirstMark Deutschland, calculated in accordance with
German GAAP
(D) The maximum number of Advances outstanding at any time under this
Agreement (unless consolidated in accordance with Clause 8.3) is
15 and the Lenders will not be obliged to make available any
further funds under the Facilities until the number of Advances
outstanding is less than 15.
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(E) Whenever the Borrower wishes to borrow under a Facility it will
deliver a Notice of Drawdown to the Agent or, in relation to the
Tranche D Facility, to the Fronting Bank as specified in Clause
6.4 and Clause 6.5.
(F) Any Drawdown Date specified in a Notice of Drawdown shall be no
more than fifteen nor (i) in respect of an Advance under any of
the Tranche A, B or C Facilities, less than three Business Days
after the date of the Notice of Drawdown and (ii) in respect of an
Advance under the Tranche D Facility, less than one Business Day
after the date of the Notice of Drawdown. For the purposes of this
Agreement any Notice of Drawdown received after 11.00 a.m.
(Luxembourg time) by the Agent (or in relation to a Tranche D
Notice of Drawdown after 11 a.m. (Luxembourg Time) by the Fronting
Bank) shall be deemed to have been received by the Agent on the
following Business Day.
7.2 CONDITIONS TO NOTICES OF DRAWDOWN
An Advance will only be made by the Lenders to the Borrower if the Agent
is satisfied (acting reasonably) that:
(A) the Agent or, in relation to the Tranche D Facility, the Fronting
Bank as specified in Clause 6.4 and Clause 6.5 has received a
Notice of Drawdown from the Borrower and such Notice of Drawdown
is given in accordance with the provisions of Clause 7.1;
(B) the proposed amount of the Advance is equal to (i) in the case of
an Advance which is to be used to pay an Invoice, a minimum of
Euro 1,000,000 (one million Euro), or in any other case (ii) a
minimum principal amount of Euro 5,000,000 (five million Euro) or
(iii) if less in any case, the Available Facility at that time;
(C) the interest rate applicable to the Advance during its first
Interest Period would not be required to be determined pursuant to
Clause 10;
(D) the representations and warranties by each Relevant Company and
the Parent Company in the Facility Documents to which it is a
party and which are required to be repeated in respect of each
Advance are true as at the date of the relevant Notice of Drawdown
and the proposed Drawdown Date as though they had been made on
those dates in respect of the facts and circumstances then
subsisting;
(E) no Event of Default or (in respect of all Advances other than a
Rollover Advance) Potential Event of Default is subsisting at the
date of the relevant Notice of Drawdown or the relevant Drawdown
Date or will result from the provision of the Advance;
(F) if the Advance is to be drawn down under:
(i) a Tranche A Facility, the proceeds of the Advance will be
applied in accordance with Clause 3.4;
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(ii) the Tranche B Facility, the proceeds of the Advance will be
applied in accordance with Clause 4.2;
(iii) the Tranche C Facility, the proceeds of the Advance will be
applied in accordance with Clause 5.2; and
(iv) the Tranche D Facility, the proceeds of the Advance will be
applied in accordance with Clause 6.2; and
(G) following the provision of the proposed Advance the relevant Loan
will not exceed the relevant Available Facility.
7.3 NOTICE TO LENDERS
The Agent agrees to provide details of each requested Advance to each
Lender. These details will be provided promptly following receipt by the
Agent of the relevant Notice of Drawdown and include the amount of the
Lender's participation in the Advance. In relation to Tranche D
Utilisations these details will be provided in accordance with the
procedure set out in Clause 9.5.
7.4 EACH LENDER'S PARTICIPATION
Each Lender will participate through its Facility Office in each Advance
made pursuant to Clause 7.2 in respect of any Facility in the proportion
borne by its Available Commitment in respect of such Facility to the
Available Facility in respect of such Facility immediately prior to the
making of that Advance. In relation to Tranche D Utilisations such
participation will be through the operation of Clause 6.6 and Clause 6.7.
No Lender will be required to participate in an Advance if as a result
the Lender's participation in the relevant Loan will exceed its Available
Commitment in the relevant Facility.
7.5 ISSUE OF FRONTING GUARANTEES/MAKING OF FRONTING ADVANCES
(a) If the conditions thereto which are set out in this Agreement are
satisfied, the Fronting Bank shall make any Fronting Advance
requested under Clause 6.4 in accordance with the other terms of
this Agreement or issue any Fronting Guarantee requested under
Clause 6.5 by delivery of such Fronting Guarantee to (or to the
order of) the relevant beneficiary of such Fronting Guarantee, in
each case on the relevant Drawdown Date.
(b) The Fronting Bank shall not make any Fronting Advance nor issue
any Fronting Guarantee at any time after receipt of notice from
the Agent that an Event of Default has occurred, unless the
Fronting Bank shall subsequently be notified by the Agent that
such Event of Default has been waived or cured in accordance with
the terms of this Agreement. Neither the Expiry Date nor the
principal amount of any Fronting Guarantee nor the principal
amount of any Fronting Advance may be amended without the prior
consent of all Lenders.
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7.6 DEMANDS UNDER FRONTING GUARANTEES
(a) If the beneficiary of a Fronting Guarantee makes a demand under a
Fronting Guarantee in accordance with its terms, the Fronting Bank
shall promptly notify the Agent and the Borrower (and the Agent
shall promptly notify each Lender) of the date by which the demand
must be met, the amount of the demand and the details of the
Fronting Bank's account to which payments under Clause 6 are to be
made.
(b) The Borrower and the Lenders unconditionally and irrevocably:
(i) authorise the Fronting Bank to pay any demand under and in
accordance with a Fronting Guarantee on first request or
demand being made without investigation by it or
confirmation by the Borrower or any other person that the
amounts so demanded are or were due, notwithstanding that
the Borrower may dispute the validity of such request,
demand or payment;
(ii) agree that the Fronting Bank shall not be concerned with
the legality of the claim or any underlying transactions or
set-off, counterclaim or defence as between the Borrower
and any other person; and
(iii) agree that provided the demand on its face appears to be in
accordance with the relevant Fronting Guarantee as between
the Borrower, the Lenders and the Fronting Bank, the demand
itself will be conclusive evidence that the demand has been
properly made.
7.7 REDUCTION OF AVAILABLE COMMITMENT
If a Lender's Available Commitment in respect of any Facility is reduced
under this Agreement after the Agent has received the Notice of Drawdown
for an Advance under such Facility, then the amount of that Advance shall
be reduced accordingly.
7.8 NOTICE OF DRAWDOWN IRREVOCABLE
Each Notice of Drawdown and the terms and conditions stated in it shall,
on and from its receipt by the Agent, be irrevocable and binding on the
Borrower.
7.9 CURRENCY OF ADVANCES
Each Advance will be made in Euros.
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PART 3
INTEREST
8. INTEREST PERIODS
8.1 INTEREST PERIODS
The period for which an Advance other than a Fronting Advance is
outstanding shall be divided into successive periods each of which (other
than the first) shall start on the last day of the preceding period. Each
Fronting Advance will have one Interest Period only and shall be repaid
at the end of that Interest Period.
8.2 DURATION OF INTEREST PERIODS
(A) The duration of each Interest Period shall, except as otherwise
provided in this Agreement, be a period of 1, 2, 3 or 6 months (as
specified by the Borrower in the relevant Notice of Drawdown) or
any other period not exceeding 12 months which the Agent (after
consultation with the Lenders) and the Borrower may agree in
writing except in respect of all Advances made prior to the
Syndication Date, where each Interest Period will be one month.
(B) No Interest Period in respect of an Advance shall end on a day
after the relevant final repayment date for the Loan in respect of
the Facility under which such Advance was made.
8.3 CONSOLIDATION OF ADVANCES
If Interest Periods in respect of two or more Advances drawn under any of
the Tranche A Facility, the Tranche B Facility, the Tranche C Facility
and the Tranche D Facility end at the same time, the Borrower may, by
notice to the Agent, consolidate such Advances into a single Advance
under such Facility. Any such notice shall take effect immediately upon
receipt.
9. PAYMENT AND CALCULATION OF INTEREST AND FRONTING GUARANTEE FEES
9.1 PAYMENT OF INTEREST
On each Interest Payment Date the Borrower shall pay accrued interest on
each Advance made to the Borrower for the Interest Periods which end on
that Interest Payment Date. Where an Interest Period is longer than six
months the Borrower agrees to pay interest on the day six months after
the first day of that Interest Period. Clauses 9.3 and 9.4 apply in
relation to Fronting Advances.
9.2 CALCULATION OF INTEREST
The rate of interest applicable to an Advance from time to time during an
Interest Period relating to that Advance shall be the rate per annum
which is the sum of (i) EURIBOR on the Rate Fixing Date for that Interest
Period; and (ii) the Margin in respect of that Advance; and (iii) the
Mandatory Cost, if any.
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9.3 FRONTING GUARANTEE FEE PAYMENTS TO FRONTING BANK AND THE LENDERS
In respect of each Fronting Guarantee issued hereunder the Borrower shall
pay:
(A) to the Fronting Bank for its own account a fee in euros computed
at a rate equal to 0.30 per cent. per annum on the maximum
liability of the Fronting Bank under that Fronting Guarantee; and
(B) to the Agent for the account of the Lenders (in their respective
Fronting Proportions) a fee in euros computed at a rate per annum
equal to the Margin then applicable to the Tranche D Facility,
less 0.30 per cent., on the maximum liability of the Fronting Bank
under that Fronting Guarantee.
Such fees shall be payable from the Drawdown Date for the Fronting
Guarantee until its Guarantee Expiry Date or any earlier cancellation,
repayment or prepayment thereof and shall be paid in arrear on the last
Business Day during each Quarter prior to the Guarantee Expiry Date, and
on the Guarantee Expiry Date, for that Fronting Guarantee.
9.4 FRONTING ADVANCE INTEREST PAYMENTS TO FRONTING BANK AND THE LENDERS
On the date of repayment of each Fronting Advance the Borrower shall pay:
(A) to the Fronting Bank the interest accrued on that Fronting Advance
at the rate specified in Clause 9.2, provided that in calculating
the interest so accrued the Margin applicable to each Fronting
Advance shall be deemed to be 0.30 per cent. per annum; and
(B) to the Agent for the account of the Lenders (in their respective
Fronting Proportions) a fee in euros computed in relation to that
Fronting Advance at a rate per annum on the principal amount of
that Fronting Advance equal to the Margin then applicable to
Tranche D, less 0.30 per cent.
10. ALTERNATIVE INTEREST RATES
10.1 MARKET DISRUPTION
This Clause 10.1 applies if the Agent determines that:
(X) EURIBOR is to be calculated in accordance with paragraph (B) of
the definition of "EURIBOR" and at or about 11.00 a.m. (Brussels
time) on the Rate Fixing Date for an Interest Period in respect of
an Advance, none or only one of the Reference Banks was offering
to prime banks in the European inter-bank market deposits in Euros
for the proposed duration of the Interest Period; or
(Y) before the close of business in Luxembourg on the Rate Fixing Day
for such Interest Period the Agent has been notified in writing by
two or more Lenders to whom in aggregate fifty per cent. or more
of the Loan is (or, if such Advance were then made, would be) owed
that EURIBOR as determined by the Agent does not reflect its cost
of obtaining such deposits.
If this Clause 10.1 applies then, despite the provisions of Clause 8 and
Clause 9:
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(A) the Agent shall notify the Borrower and the Lenders of that event;
(B) if the Agent or the Borrower so requires, within five days of the
notification the Agent and the Borrower shall enter into
negotiations with a view to agreeing a substitute basis:
(i) for determining the rates of interest from time to time
applicable to the Advances; or
(ii) upon which the Advances may be maintained thereafter and
any substitute basis that is agreed shall take effect in
accordance with its terms and be binding on each party to
this Agreement provided that the Agent may not agree any
substitute basis without the prior consent of each Lender;
and
(C) the duration of the Interest Period in respect of the relevant
Advance shall be one month or, if less, such that it shall end on
the final repayment date for the Loan in respect of the Facility
under which such Advance was drawn.
10.2 SUBSTITUTE BASIS
If no substitute basis is agreed pursuant to Clause 10.1(B), the rate of
interest applicable to the relevant Advance from time to time during the
Interest Period shall be the rate per annum which is the sum of (i) the
relevant Margin at that time; and (ii) the rate per annum determined by
the Agent to be the arithmetic mean (rounded upwards, if not already a
multiple) to the nearest whole multiple of one-sixteenth of one per cent)
of the rates notified by each Lender to the Agent before the last day of
the relevant Interest Period to be those which express, as a percentage
rate per annum, the cost to each Lender of funding the relevant Advance;
and (iii) the Mandatory Cost, if any, applicable to each Lender's
participation in the relevant Advance.
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PART 4
REPAYMENT, PREPAYMENT AND CANCELLATION
11. REPAYMENT AND VOLUNTARY PREPAYMENT
11.1 REPAYMENT
(A) If not prepaid earlier in accordance with this Agreement, the
Borrower shall repay the Tranche A Loan in full on the fourth
anniversary of the date of this Agreement.
(B) The Borrower shall repay the principal amount of each of the
Tranche B Loan and the Tranche C Loan in ten equal six monthly
instalments. The first instalment of each of the Tranche B Loan
and of the Tranche C Loan shall be paid on the last day of the
third Quarter which ends after the last day of the Tranche C
Availability Period, and the remaining instalments of each of the
Tranche B Loan and the Tranche C Loan shall be paid on the day
falling six months after the day upon which the last repayment of
such Loan was made.
(C) Each Fronting Advance shall be repaid in full at the end of its
Interest Period. Each Fronting Advance shall be available for
reborrowing to the extent of the Tranche D Available Facility. The
Borrower shall repay any amounts outstanding under the Tranche D
Facility on the Final Repayment Date.
11.2 VOLUNTARY PREPAYMENT
The Borrower may prepay the whole of any Loan or any part of any Loan
provided that the Borrower gives to the Agent not less than five Business
Days' prior written notice to that effect and provided that any such
prepayment shall be in a minimum principal amount of Euro 5,000,000 (five
million Euro) and shall be a multiple of Euro 1,000,000 (one million
Euro) and subject always to the provisions of Clauses 24.2 (Broken
Periods) and 24.3 (Borrower's Indemnity). Any such prepayment shall be
applied:
FIRSTLY to the payment of all fees, costs and expenses payable by any
Relevant Company under the Facility Documents,
SECONDLY to the payment of all accrued and unpaid interest under the
Facility Documents, and
THIRDLY to the prepayment of all outstanding principal advanced pursuant
to this Agreement.
Unless otherwise agreed between the Borrower and the Lenders, any
prepayment pursuant to this Clause 11.2 shall be applied (unless as a
result of the Borrower receiving indemnification claims under Clause 14.2
or 16.1 in which case any prepayment shall be applied against the
participations in Loans and Commitments of the Lender making the
indemnification claim) to reduce each Loan and the Commitments in respect
of each Facility pro rata in reverse chronological order for scheduled
repayment and rateably between the Lenders, provided that the Borrower
may in a notice to the Agent pursuant to this Clause 11.2 require that
all or part of the relevant prepayment be applied first in total or
partial prepayment of any outstanding Advance under the Tranche D
Facility.
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11.3 NOTICE OF PREPAYMENT
Any notice of prepayment given by the Borrower pursuant to Clause 11.2
shall be irrevocable, shall specify the date upon which the prepayment is
to be made and the amount of the prepayment and shall oblige the Borrower
to make the prepayment on that date and on that date the Lenders'
Commitments in respect of each Facility shall be cancelled pro rata to
the extent of the prepayment as provided in Clause 11.2.
11.4 REPAYMENT OF A LENDER'S SHARE OF A LOAN
If any Lender or the Agent on its behalf claims indemnification from the
Borrower under Clause 14.2 or Clause 16.1 and within thirty days
thereafter the Agent receives from the Borrower at least five days' prior
written notice (which shall be irrevocable) of the Borrower's intention
to repay the Lender's share of all of the Loans, the Borrower shall repay
that Lender's share of the Loans.
11.5 NO FURTHER ADVANCES
A Lender for whose account a repayment is to be made under Clause 11.4
shall not be obliged to participate in the making of Advances on or after
the date on which the Agent receives notice of the Borrower's intention
to repay that Lender's share of the Loans, and on that date the Lender's
Commitments in respect of all of the Loans shall be reduced to zero.
11.6 NO OTHER REPAYMENTS AND NO REBORROWING
The Borrower may not repay all or any part of any Tranche A Loan, the
Tranche B Loan, the Tranche C Loan or the Tranche D Loan, except at the
times and in the manner expressly provided for in this Agreement and
shall not be entitled to reborrow any amount repaid under the Tranche A
Loan, the Tranche B Loan or the Tranche C Loan.
12. MANDATORY PREPAYMENT
12.1 GENERAL
The Borrower shall procure that the following amounts shall be applied in
prepayment of the Loans and all other amounts owing by the Borrower to
the Beneficiaries under the Facility Documents:
(A) on the next following Interest Payment Date after the day which is
50 days after each date on which a repayment falls to be made
pursuant to Clause 11.1(B), an amount equal to 50% of the Excess
Cash Flow for the two immediately preceding Quarters;
(B) immediately all proceeds received by the Borrower from insurance
policies relating to a Project Asset which proceeds have not been
utilised for the repair or replacement of such Project Asset
within three months of receipt;
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(C) net proceeds from the sale or other disposal of any material asset
relating to the Network to the extent not reinvested within 180
days of receipt; and
(D) immediately, any amount by which the Loan made under any Facility
exceeds the Available Facility in respect of such Facility at that
time.
Subject as stated in Clause 12.2, any prepayment by the Borrower pursuant
to the provisions of this Clause 12 on a day other than an Interest
Payment Date shall be subject to the provisions of Clauses 24.2 and 24.3
and shall be applied
FIRSTLY to the payment of all fees, costs and expenses payable by the
Borrower under the Facility Documents,
SECONDLY to the payment of all accrued and unpaid interest under the
Facility Documents, and
THIRDLY to the prepayment of all outstanding principal advanced pursuant
to this Agreement,
and (in all cases other than a prepayment pursuant to paragraph (D)
above, which shall be applied entirely to reduce the Loan under the
Facility in question) shall be applied to reduce each Loan and the
Commitments in respect of each Facility pro rata in reverse chronological
order and rateably between the Lenders.
12.2 VAT PREPAYMENTS
This clause 12.2 applies in relation to each Advance (each a "VAT
Advance") which (a) is made to a Supplier pursuant to Clause 7.1(A) in
discharge of an Invoice issued pursuant to the PMP Contract or the Core
Network Contract and (b) part of which (the "VAT Amount" in relation to
that VAT Advance) funds a payment of VAT specified in that Invoice. In
relation to each VAT Advance the Borrower shall, on the next following
Interest Payment Date (in respect of the relevant VAT Advance) which
occurs after the date which is one month and five Business Days after the
end of the Quarter during which the VAT Advance is made, prepay an amount
equal to the VAT Amount of that VAT Advance. Each such prepayment shall
be applied to reduce each Loan in respect of the Facility pursuant to
which each VAT Advance was made, by an amount equal to the VATAmount of
that VAT Advance.
13. CANCELLATION OF COMMITMENTS
13.1 CANCELLATION BY THE BORROWER
The Borrower may, provided that it has given to the Agent not less than
five Business Days' prior written notice to that effect, cancel the whole
or any part (being in a minimum principal amount of Euro 5,000,000 (five
million Euro)) and a multiple of Euro 1,000,000 (one million Euro) of the
Commitments provided that the Lenders are satisfied (acting reasonably)
that:
(A) FirstMark Deutschland is able to pay, in accordance with the
provisions of the Supply Contracts, all outstanding Invoices and
any future Invoices; and
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(B) the Relevant Companies, together, will be able to carry on the
Business.
13.2 NOTICE OF CANCELLATION
Any notice of cancellation given by the Borrower pursuant to Clause 13.1
shall be irrevocable, shall specify the date on which the cancellation is
to be made and the amount of the cancellation.
13.3 CANCELLATION PRIOR TO FIRST DRAW DOWN
If the Tranche A Financial Completion Date has not occurred by the date
falling three months after the date of this Agreement:
(A) the Commitments in respect of each Facility will be cancelled
automatically; and
(B) all accrued amounts owing by the Borrower under this Agreement
(including all amounts payable pursuant to Clauses 29 and 30)
shall be paid in full by the Borrower within 15 Business Days of
the date falling three months after the date of this Agreement.
13.4 CANCELLATION ON REPAYMENT DATE
Unless the Commitments in respect of a Facility have already been
otherwise cancelled pursuant to this Clause 13, such Commitments shall be
cancelled automatically upon the expiry of the Availability Period in
respect of such Facility.
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40
PART 5
RISK ALLOCATION
14. TAXES
14.1 TAX GROSS-UP
All payments to be made by the Borrower to any Beneficiary under this
Agreement shall be made free and clear of and without deduction for or on
account of tax imposed by Germany or any other jurisdiction through which
or from which payments under this Agreement are made unless the Borrower is
required to make the payment subject to the deduction or withholding of
tax, in which case the sum payable by the Borrower in respect of which such
deduction or withholding is required to be made shall (subject as stated in
Clause 14.4) be increased to the extent necessary to ensure that, after the
making of the required deduction or withholding, the Agent or relevant
Lender, as the case may be, receives and retains (free from any liability
in respect of any deduction or withholding) a net sum equal to the sum
which it would have received and retained had no deduction or withholding
been made or required to be made. The Borrower will not be obliged to
increase any payment made under this Clause 14.1 to any Lender to the
extent that payment is required to be made by reason of a Lender not being
a Qualifying Bank at the date of this Agreement or ceasing to be a
Qualifying Bank unless (i) the requirement to deduct or withhold would have
applied had such Lender been or continued to be a Qualifying Bank (in which
case the amount payable will not exceed the amount which would have been
payable to a Qualifying Bank) or (ii) such Lender is not or ceases to be a
Qualifying Bank as a result of a change of law or application of a double
taxation treaty or generally applied practice of the tax authorities after
the date hereof in the jurisdiction of the obligor required to make such
deduction or withholding.
14.2 TAX INDEMNITY FOR LENDERS
Without prejudice to the provisions of Clause 14.1, if any Beneficiary is
required to make any payment on account of tax (not being a tax imposed on
and calculated by reference to the net income paid to and received by its
Facility Office by the jurisdiction in which it is incorporated or in which
its Facility Office is located) or otherwise on or in relation to any sum
received or receivable hereunder by such Beneficiary (including any sum
received or receivable under this Clause 14.2) or any liability in respect
of such payment is asserted, imposed, levied or assessed against such
Beneficiary, the Borrower shall, upon demand by the Beneficiary to the
Borrower, promptly indemnify such person against that payment or liability,
together with any interest, penalties, costs and expenses payable or
incurred in connection with the payment or liability.
14.3 CLAIMS BY LENDERS OR THE AGENT
A Lender intending to make a claim pursuant to Clause 14.2 shall notify the
Agent of the event by reason of which it is entitled to do so (giving
reasonable details in respect of the amount in question), provided that
this Clause 14.3 shall not require any Lender to disclose any confidential
information relating to the organisation of its affairs.
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41
14.4 WITHHOLDINGS AND TRANSFEREES
This clause applies where (a) the Borrower is required to make a payment to
a Lender subject to the deduction or withholding of tax; and (b) such
Lender has become a Lender pursuant to a transfer effected after
Syndication pursuant to Clause 32.5; and (c) no such deduction would have
had to be made in respect of the same payment to the Lender by which such
transfer was effected. If this Clause applies the Borrower shall not be
obliged to make a gross-up payment to the transferee Lender pursuant to
Clause 14.1.
15. TAX RECEIPTS AND TAX CREDITS
15.1 NOTIFICATION OF REQUIREMENT TO DEDUCT TAX
If, at any time, the Borrower is required by law to make any deduction or
withholding from any sum payable by it under this Agreement to a
Beneficiary (or if thereafter there is any change in the rates at which or
the manner in which those deductions or withholdings are calculated), the
Borrower shall promptly notify the Agent.
15.2 EVIDENCE OF PAYMENT OF TAX
If the Borrower makes any payment to a Beneficiary under this Agreement in
respect of which it is required to make any deduction or withholding, it
shall pay the full amount required to be deducted or withheld to the
relevant taxation or other authority within the time allowed for the
payment under applicable law and shall deliver to the Beneficiary, within
thirty days after it has made the payment to the applicable authority, an
original receipt (or a certified copy) issued by the authority evidencing
the payment to the authority of all amounts required to be deducted or
withheld in respect of that Lender's share of the payment.
15.3 MITIGATION OF TAX
If, and to the extent that, the effect of Clause 14.1 or 14.2 can be
mitigated by virtue of the provisions of any applicable double tax
convention entered into by any Beneficiary's jurisdiction of residence and
the jurisdictions in which the Borrower is resident or deemed under tax
legislation or such double tax convention to be resident (whether by a
claim to repayment of any tax referred to in Clauses 14.1 or 14.2 or
otherwise) each Beneficiary agrees to co-operate with the Borrower with a
view to submitting any forms required for the purpose of ensuring the
application of the relevant double tax convention. The Beneficiary shall
not be required pursuant to this Clause 15.3 to disclose any confidential
information relating to the organisation of its affairs or to incur any
expense (unless reimbursed by the Borrower) for the purpose of claiming
exemption or relief pursuant to any such double taxation convention.
15.4 TAX CREDIT
If the Borrower makes a Tax Payment and the relevant Beneficiary determines
that:
(A) a Tax Credit is attributable to that Tax Payment; and
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(B) that Beneficiary has obtained, utilised and retained that Tax Credit,
that Beneficiary shall pay an amount to the Borrower which that Beneficiary
determines will leave it (after that payment) in the same after-tax
position as it would have been in had the Tax Payment not been made by the
Borrower.
15.5 TAX ON NET INCOME EXCLUDED
Clause 14.1 shall not apply with respect to any tax imposed on or
calculated by reference to the net income received or receivable by a
Beneficiary in the jurisdiction in which that Beneficiary is incorporated
or (if different) the jurisdiction in which that Beneficiary is treated as
resident for tax purposes.
16. CHANGES IN CIRCUMSTANCES
16.1 INCREASED COSTS
If, by reason of (i) any change in law or in its interpretation or
administration occurring after the date of this Agreement or (ii)
compliance with any Capital Adequacy Requirement or any other request from
or requirement of any central bank or other fiscal, monetary or other
authority introduced after the date of this Agreement:
(A) a Lender or any holding company of a Lender is unable to obtain the
rate of return on its capital which it would have been able to obtain
but for the Lender assuming or maintaining a commitment or performing
its obligations (including its obligation to participate in the making
of Advances) under this Agreement;
(B) a Lender or any holding company of a Lender incurs a cost as a result
of the Lender assuming or maintaining a commitment or performing its
obligations (including its obligation to participate in the making of
Advances) under this Agreement;
(C) there is any increase in the cost to a Lender or any holding company
of the Lender of funding or maintaining all or any of the loans
comprised in a class of loans formed by or including the Lender's
share of the Advances; or
(D) a Lender or any holding company of a Lender becomes liable to make any
payment on account of tax or otherwise (not being a tax imposed on and
calculated by reference to the overall net income paid to and received
by the Lender's Facility Office by the jurisdiction in which it is
incorporated or in which its Facility Office is located) on or
calculated by reference to the amount of the Lender's share of the
Advances or to any sum received or receivable by it under this
Agreement,
then the Borrower shall, from time to time on demand of the Agent for and
on behalf of a Lender to the Borrower, promptly pay to the Agent for the
account of that Lender amounts sufficient to hold harmless and indemnify
that Lender or Lender's holding company from and against, as the case may
be:
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43
(1) the reduction in the rate of return of capital;
(2) the cost;
(3) the increased cost (or a proportion of the increased cost that is, in
the opinion of that Lender, attributable to its participating in the
funding or maintaining of Advances); or
(4) the liability,
Provided that no Lender may make any claim for indemnity in respect of any
reduction, cost, increased cost or liability to the extent that any such
amount is compensated for by the Mandatory Cost or additional amounts are
payable under Clause 14 (Taxes) in respect of the reduction, cost,
increased cost or liability.
16.2 INCREASED COSTS CLAIMS
A Lender intending to make a claim pursuant to Clause 16.1 shall notify the
Agent of the event by reason of which it is entitled to do so (giving
reasonable details in respect of the amount in question), whereupon the
Agent shall notify the Borrower of the claim Provided that the Lender shall
not be required to disclose any confidential information relating to the
organisation of its affairs.
16.3 ILLEGALITY
If, at any time after the date of this Agreement, it becomes unlawful for a
Lender or any holding company of the Lender to make, fund or allow to
remain outstanding all or part of its share of the Advances that Lender
shall, promptly after becoming aware of the same, deliver to the Borrower
through the Agent a notice to that effect and:
(A) the Lender shall not be obliged to participate in the making of any
Advances and the amount of its Available Commitments shall be
immediately reduced to the extent necessary to ensure compliance with
the relevant law or regulation and to avoid the illegality; and
(B) if the Agent on behalf of the Lender so requires, the Borrower shall
on the date the Agent specifies (being no earlier than the first day
of any applicable grace period permitted by law) repay the Lender's
share of any outstanding Advances (to the extent necessary to ensure
compliance with the relevant law or regulation and to avoid the
illegality) together with interest accrued on the outstanding Advances
and all other amounts owing to the Lender under this Agreement.
17. MITIGATION
If, in respect of any Lender, circumstances arise which would or would upon
the giving of notice result in:
(A) the reduction of its Available Commitment to zero pursuant to Clause
16.3;
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(B) an increase in the amount of any payment to be made to it or for its
account pursuant to Clause 16.1; or
(C) a claim for indemnification pursuant to Clause 14.2 or 16.1 or the
Borrower becomes liable to pay an amount under Clause 14.1,
then, without in any way limiting, reducing or otherwise qualifying the
rights of the Lender or the obligations of the Borrower under any of the
Clauses referred to in paragraphs (A), (B) or (C) above, the Lender shall
notify the Agent of those circumstances and take such steps as the Lender
considers appropriate to mitigate the effects of those circumstances
including the transfer of its Facility Office to another jurisdiction or
the transfer of its rights and obligations under this Agreement to another
financial institution Provided that the Lender shall be under no obligation
to take any action if, in the opinion of the Lender, to do so might have
any adverse effect upon its business, operations, financial condition or
tax affairs.
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PART 6
GUARANTEE
18. GUARANTEE AND INDEMNITY
18.1 GUARANTEE AND INDEMNITY
FirstMark Deutschland irrevocably and unconditionally:
(A) guarantees to each Beneficiary punctual performance by each other
Relevant Company of the Guaranteed Obligations;
(B) undertakes with each Beneficiary that if a Relevant Company does not
pay any amount when due pursuant to or in connection with the
Guaranteed Obligations, FirstMark Deutschland shall immediately on
demand pay that amount as if it were the principal obligor; and
(C) indemnifies each Beneficiary immediately on demand against any cost,
loss or liability suffered by that Beneficiary if any Guaranteed
Obligation is or becomes unenforceable, invalid or illegal. The amount
of the cost, loss or liability shall be equal to the amount which that
Beneficiary would otherwise have been entitled to recover.
18.2 CONTINUING GUARANTEE
The guarantee contained in this Clause 18 is a continuing guarantee and
will extend to the ultimate balance of sums payable pursuant to the
Guaranteed Obligations and by the Borrower under the Facility Documents,
regardless of any intermediate payment or discharge in whole or in part.
18.3 REINSTATEMENT
If any payment by a Relevant Company or any discharge given by a
Beneficiary (whether in respect of the Guaranteed Obligations or the
obligations of the Borrower or any security for those obligations or
otherwise) is avoided or reduced as a result of insolvency or any similar
event:
(A) the liability of each Relevant Company shall continue as if the
payment, discharge, avoidance or reduction had not occurred; and
(B) each Beneficiary shall be entitled to recover the value or amount of
that security or payment from each Relevant Company, as if the
payment, discharge, avoidance or reduction had not occurred.
18.4 WAIVER OF DEFENCES
The obligations of FirstMark Deutschland under this Clause 18 will not be
affected by an act, omission, matter or thing which, but for this Clause,
would reduce, release or
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46
prejudice any of its obligations under this Clause 18 (without limitation
and whether or not known to it or any Beneficiary) including:
(A) any time, waiver or consent granted to, or composition with, any
Relevant Company or other person;
(B) the release of the Borrower or any other person under the terms of any
composition or arrangement with any creditor of any Relevant Company;
(C) the taking, variation, compromise, exchange, renewal or release of, or
refusal or neglect to perfect, take up or enforce, any rights against,
or security over the assets of, any Relevant Company or other person
or any non-presentation or non-observance of any formality or other
requirement in respect of any instrument or any failure to realise the
full value of any security;
(D) any incapacity or lack of power, authority or legal personality of or
dissolution or change in the members or status of a Relevant Company
or any other person;
(E) any amendment (however fundamental) or replacement of a Facility
Document or any other document or security;
(F) any unenforceability, illegality or invalidity of any obligation of
any person under any Facility Document or any other document or
security; or
(G) any insolvency or similar proceedings.
18.5 IMMEDIATE RECOURSE
FirstMark Deutschland waives any right it may have of first requiring any
Beneficiary (or any trustee or agent on its behalf) to take formal
proceedings against or enforce any other rights or security before claiming
from FirstMark Deutschland under this Clause 18. This waiver applies
irrespective of any law or any provision of a Finance Document to the
contrary.
18.6 APPROPRIATIONS
Until all amounts which may be or become payable pursuant to the Guaranteed
Obligations or by the Borrower under or in connection with the Finance
Documents have been irrevocably paid in full, each Beneficiary (or any
trustee or agent on its behalf) may:
(A) except to the extent expressly provided otherwise in the Intercreditor
Agreement, refrain from applying or enforcing any other moneys,
security or rights held or received by that Beneficiary (or any
trustee or agent on its behalf) in respect of those amounts, or apply
and enforce the same in such manner and order as it sees fit (whether
against those amounts or otherwise) and the Borrower shall be entitled
to the benefit of the same; and
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(B) hold in an interest-bearing suspense account any moneys received from
FirstMark Deutschland or on account of FirstMark Deutschland's
liability under this Clause 18.
18.7 DEFERRAL OF GUARANTOR'S RIGHTS
Until all amounts which may be or become payable pursuant to the Guaranteed
Obligations or by the Borrower under or in connection with the Facility
Documents have been irrevocably paid in full, FirstMark Deutschland will
not exercise any rights which it may have by reason of performance by it of
its obligations under this Clause 18:
(A) to be indemnified by any Relevant Company;
(B) to claim any contribution from any other guarantor of any Relevant
Company's obligations under the Facility Documents; and/or
(C) to take the benefit (in whole or in part and whether by way of
subrogation or otherwise) of any rights of the Beneficiaries under the
Facility Documents or of any other guarantee or security taken
pursuant to, or in connection with, the Facility Documents by any
Beneficiary.
18.8 ADDITIONAL SECURITY
The guarantee contained in this Clause 18 is in addition to and is not in
any way prejudiced by any other guarantee or security now or subsequently
held by any Beneficiary.
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PART 7
REPRESENTATIONS, COVENANTS AND EVENTS OF DEFAULT
19. REPRESENTATIONS
19.1 LEGAL REPRESENTATIONS
The Borrower represents and warrants in the terms set out in this Clause
19.1 and acknowledges that the Beneficiaries have entered into this
Agreement (and the other Transaction Documents to which each is
respectively a party) in reliance on these representations and warranties.
(A) STATUS AND DUE AUTHORISATION
The Parent Company is a body corporate duly organised and validly
existing under the laws of the Grand-Duchy of Luxembourg, each of the
Relevant Companies is a limited liability company (GESELLSCHAFT MIT
BESCHRANKTER HAFTUNG) duly organised and validly existing under the
laws of Germany, each of the Parent Company and each Relevant Company
is qualified to do business and in good standing in all jurisdictions
in which the nature of the business conducted by it makes such
qualification necessary, and each of the Relevant Companies and the
Parent Company is so organised with power to own its assets and carry
on its business as now proposed to be conducted, and execute and
deliver each of the Transaction Documents to which it is a party and
to exercise its rights and perform its obligations under them and all
corporate and other action required to authorise its execution and
delivery of each of the Transaction Documents to which it is a party
and its exercise of its rights and its performance of its obligations
under them has been duly taken.
(B) BINDING OBLIGATIONS
The obligations expressed to be assumed by each of the Relevant
Companies and the Parent Company in each of the Transaction Documents
to which it is a party are its legal, valid and binding obligations
enforceable, subject only to the Reservations, in accordance with
their terms.
(C) CLAIMS PARI PASSU
The claims of the Beneficiaries:
(i) except as expressly provided otherwise in the Intercreditor
Agreement, under the Facility Documents rank at least PARI PASSU
with the claims of all other creditors of the Relevant Companies;
and
(ii) against each of the Relevant Companies and the Parent Company
under the Transaction Documents to which they are respectively
parties rank at least PARI PASSU with the claims of all other
unsecured and unsubordinated creditors of the Relevant Companies
and the Parent Company respectively,
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49
save those whose claims are preferred solely by any bankruptcy,
insolvency, liquidation or other similar laws of general
application.
(D) GOVERNING LAW AND JUDGMENTS
In any proceedings taken in Germany in relation to any of the
Transaction Documents to which any of the Relevant Companies or the
Parent Company is a party, the choice of the governing law expressed
in them and any judgment obtained in Germany or Luxembourg in respect
of such Transaction Documents will be recognised and enforced.
(E) VALIDITY AND ADMISSIBILITY IN EVIDENCE
All acts, conditions and things required to be done, fulfilled and
performed in order:
(a) to enable each of the Relevant Companies and the Parent Company
lawfully to enter into, exercise its rights under and perform and
comply with the obligations expressed to be assumed by it in each
of the Transaction Documents to which it is a party;
(b) to ensure that the obligations expressed to be assumed by each of
the Relevant Companies and the Parent Company in each of the
Transaction Documents to which it is a party are legal, valid and
binding; and
(c) to make each of the Transaction Documents to which any of the
Relevant Companies and the Parent Company is a party admissible
in evidence in Germany and Luxembourg,
have been done, fulfilled and performed.
(F) NO FILING OR STAMP TAXES
Under the laws of Germany and Luxembourg in force at the date of this
Agreement, it is not necessary that any of the Transaction Documents
to which any of the Relevant Companies and the Parent Company is a
party be filed, recorded or enrolled with any court or other authority
in any of these jurisdictions or that any stamp, registration or
similar tax be paid on or in relation to any of the Transaction
Documents.
(G) NO DEDUCTIONS OR WITHHOLDINGS
Under the laws of Germany none of the Relevant Companies will be
required to make any deduction or withholding from any payment it may
make to any Beneficiary under any of the Facility Documents to which
it is a party.
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19.2 FACTUAL REPRESENTATIONS
The Borrower makes the representations and warranties set out in this
Clause 19.2 and acknowledges that the Beneficiaries have entered into this
Agreement (and each Transaction Document to which each is respectively a
party) in reliance on those representations and warranties.
(A) NO LITIGATION OR OTHER PROCEEDINGS
No litigation, arbitration or other action or administrative
proceedings of or before any court or agency, as at the date of this
Agreement, has been started or, to the knowledge of the Borrower,
threatened and, as at any date thereafter on which this representation
is repeated or deemed repeated, has been started or, to the knowledge
of the Borrower, threatened where it is reasonably likely to have a
Material Adverse Effect.
(B) ENVIRONMENTAL LAWS AND LICENCES
Each Relevant Company has:
(a) at all times complied with all Environmental Laws and
Environmental Licences in all material respects; and
(b) obtained and maintained in full force and effect all
Environmental Licences, and there are no facts or circumstances,
to the knowledge of the Borrower, entitling any such
Environmental Licences to be revoked, suspended, amended, varied,
withdrawn or not renewed,
in any circumstances which are reasonably likely to have a Material
Adverse Effect.
(C) ENVIRONMENTAL CLAIMS
No Environmental Claim is, to the knowledge of the Borrower,
threatened or has been made against any Relevant Company which is
reasonably likely to have a Material Adverse Effect and there are no
circumstances which exist which might form the basis of an
Environmental Claim is reasonably likely to have a Material Adverse
Effect.
(D) RELEVANT SUBSTANCES
No Relevant Substance has been deposited, disposed of, kept, treated,
imported, exported, transported, processed, manufactured, used,
collected, sorted or produced at anytime or is present in the
environment (whether or not on property owned, leased, occupied or
controlled by any Relevant Company) in circumstances which are likely
to result in any liability under Environmental Laws which is
reasonably likely to have a Material Adverse Effect.
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(E) NECESSARY AUTHORISATIONS
The Necessary Authorisations are in full force and effect, except to
the extent that it is unnecessary for them to have been obtained at
the time this representation is made or repeated, and each Relevant
Company and, to the knowledge of the Borrower, each other person party
to or bound by a Necessary Authorisation is in compliance with all
material provisions of those with which it is obliged to comply and
none of the Necessary Authorisations are the subject of any pending or
threatened proceedings or revocation in each case where failure to
maintain or comply with the Necessary Authorisation or the existence
of proceedings is reasonably likely to have a Material Adverse Effect.
(F) LAWS
Each Relevant Company has complied with all laws (including
Telecommunications Laws) binding upon it where breach is reasonably
likely to have a Material Adverse Effect.
(G) EMPLOYEE ENTITLEMENTS
(i) No Relevant Company or any of its employees is subject to any
collective bargaining agreement and there are no strikes,
slowdowns or work stoppages current or, to the knowledge of the
Borrower, threatened against any Relevant Company or any of its
employees,
(ii) Each Relevant Company has at all times paid to its employees all
amounts payable to them (on or before the dates on which those
amounts become payable) under any applicable law and under all
employment contracts, agreements and arrangements with its
employees in connection with their employment (including
salaries, social security obligations and entitlements,
performance bonuses and sick and annual leave entitlements).
(H) TAXES
All taxes, withholdings, duties, fees and charges imposed directly or
indirectly on any Relevant Company which are due and payable have been
paid in full and were paid on or before the due date for payment.
(I) FEES ETC.
All fees, taxes, costs and charges due and payable by any of the
Relevant Companies in connection with the Transaction Documents or the
Business have been paid in full and were paid on or before the due
date for payment.
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(J) OWNERSHIP OF ASSETS AND SECURITY
The Relevant Companies are the sole owners of or fully entitled to use
all of the Project Assets and are the owner (whether by freehold,
leasehold or otherwise) of the property subject to the Security
Documents and each Relevant Company is the sole owner of all assets
stated as owned by it in its respective Original Financial Statements,
in each case free of any other third party right or interest whatever,
other than a Permitted Encumbrance, and the security expressed to be
granted under each of the Security Documents is a legal and valid
first-ranking perfected security and ranking ahead of all (if any)
other encumbrances and third party rights on the assets expressed to
be secured by that Security Document.
(K) PROPERTY
(i) Each Relevant Company owns and has, or when acquired will own and
have full title to each Property which it purports to own (other
than leasehold or licensed properties) free and clear of all
encumbrances other than Permitted Encumbrances except where the
failure to have such title is reasonably likely to have a
Material Adverse Effect.
(ii) Each Relevant Company has, or when leases creating leasehold
properties are executed will have, in and to its leasehold
properties which it purports to lease free and clear of all
encumbrances other than Permitted Encumbrances good leasehold
title except where the failure to so possess such title is
reasonably likely to have a Material Adverse Effect.
(L) OWNERSHIP OF INTELLECTUAL PROPERTY
The Intellectual Property Rights owned by or licensed to each Relevant
Company are all the Intellectual Property Rights required by it in
order to carry out, maintain and operate its Business and the Relevant
Companies own or are licensed all Intellectual Property Rights
required to carry out the Business, and the Relevant Companies in
carrying on their respective businesses do not infringe any
Intellectual Property Rights of any third party.
(M) NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS
No Intellectual Property Rights owned by or licensed to any Relevant
Company are being infringed, nor is there any threatened infringement
of any such Intellectual Property Rights.
(N) ORIGINAL FINANCIAL STATEMENTS
Each of the Original Financial Statements and the financial statements
delivered under Clauses 20.1, 20.2 and (if any) 20.3 were (save as
disclosed in them) prepared in accordance with current accounting
practice and consistently applied and give (in conjunction with the
notes to them) a true and fair view of
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the financial condition of the Relevant Company in respect of which
they were prepared at the date as at which they were prepared and the
results of such Relevant Company's operations during the financial
year then ended.
(O) NO WINDING-UP
No Relevant Company has taken any corporate action nor have any other
steps been taken or legal proceedings been started or threatened
against any Relevant Company for its winding-up, dissolution,
administration or re-organisation or for the appointment of a
receiver, administrator, administrative receiver, trustee or similar
officer of it or of any or all of its assets or revenues nor has any
Relevant Company taken any proceedings leading to insolvency or
suspension of payments of such Relevant Company.
(P) PROJECT DOCUMENTS
The Project Documents are in full force and effect and no party is in
breach of the terms thereof, there are no disputes subsisting between
the parties thereto, no waivers have been granted pursuant to any term
of them and no amendments have been made to them in each case which is
reasonably likely to have a Material Adverse Effect.
(Q) NO MATERIAL DEFAULTS
No Relevant Company is in breach of or in default under any agreement
to which it is a party which is binding on it or any of its assets to
an extent or in a manner which is reasonably likely to have a Material
Adverse Effect.
(R) NO UNDISCLOSED LIABILITIES
No Relevant Company had, as at the date of its Original Financial
Statements, any material liabilities (contingent or otherwise) which
were not disclosed in such Original Financial Statements (or by the
notes to them) or reserved against them nor were there at that date
any material unrealised or anticipated losses of such Relevant Company
arising from commitments entered into by it which were not so
disclosed or reserved against. For this purpose, "MATERIAL
LIABILITIES" or "MATERIAL UNREALISED OR ANTICIPATED LOSSES" means any
liability or, as the case may be, loss, which is reasonably likely to
have a Material Adverse Effect.
(S) ENCUMBRANCES
Except for Permitted Encumbrances, no encumbrance exists over all or
any of the present or future revenues or assets of the Relevant
Companies.
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(T) EXECUTION AND DELIVERY OF TRANSACTION DOCUMENTS
Execution and delivery by each of the Relevant Companies and the
Parent Company of the Transaction Documents to which it is a party and
its exercise of its rights and performance of its obligations under
them do not and will not:
(i) conflict with any agreement, mortgage, bond or other instrument
or treaty to which it is a party or which is binding upon it or
any of its assets;
(ii) conflict with its constitutional documents, rules, regulations or
any shareholders agreement to which it is a party;
(iii) require any consent or approval of its board of Directors or
shareholders which consent or approval has not been obtained, and
each such consent and approval that has been obtained is adequate
for its intended purpose and is in full force and effect;
(iv) conflict with any applicable law, regulation or official or
judicial order; or
(v) result in or require the creation of any encumbrance over any of
its assets (other than a Permitted Encumbrance).
(U) CORPORATE STRUCTURE
As at the Tranche A Financial Completion Date the structure of the
Relevant Companies (and the type of shareholding of, and percentage
shareholding of each shareholder in each of the Relevant Companies and
Lambdanet Communications GmbH, and the jurisdiction of incorporation
of each of the Relevant Companies, Lambdanet Communications GmbH and
of the Parent Company) is as shown in Part 1 of Schedule 6.
(V) BANK ACCOUNTS
No Relevant Company operates nor has any interest in (whether alone,
together or with any other person) an account with a bank or any other
financial institution other than the Pledged Accounts.
(W) INFORMATION
The information provided in writing by or on behalf of each Relevant
Company to any Beneficiary in connection with the negotiation,
preparation or delivery of the Facility Documents, when taken as a
whole, do not contain any untrue statement of material fact or omit to
state any material fact necessary to make the statements therein not
misleading. In the case of any financial projections contained in such
information, such projections were prepared and made in good faith and
on the basis of information and assumptions believed to be accurate
and reasonable.
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55
(X) BUSINESS
No Relevant Company has conducted any activity other than activities
associated with or related to the Business.
19.3 REPETITION OF REPRESENTATIONS
The representations set out in Clauses 19.1 and 19.2 (except for those
contained in Clauses 19.1(A) (Status and Due Authorisation), 19.1(D)
(Governing Law and Judgments), 19.1(E) (Validity and Admissibility in
Evidence), 19.1(F) (No Filing or Stamp Taxes), 19.1(G) (No Deductions or
Withholdings), 19.2(G) (Employee Entitlements), 19.2(R) (No Undisclosed
Liabilities), 19.2(T) (Execution and Delivery of Transaction Documents),
19.2(U) (Corporate Structure) and 19.2(W) (Information)) shall be deemed to
be repeated on each date on which a Notice of Drawdown is given, on which
an Advance is made under this Agreement, on the Syndication Date and on
each Interest Payment Date, in each case by reference to the facts and
circumstances then existing. The representation in Clause 19.2(N) (Original
Financial Statements) will be deemed repeated on such date only with regard
to the Latest Financial Statements at that time.
20. INFORMATION
20.1 ANNUAL STATEMENTS
The Borrower shall, as soon as the same become available but in any event
within 90 days after the end of each of its respective financial years,
deliver to the Agent with sufficient copies for each of the Beneficiaries
the audited consolidated financial statements of the Borrower and FirstMark
Deutschland and the other Relevant Companies for that financial year and
the auditor's report in relation to such statements shall not contain any
qualifications.
20.2 QUARTERLY STATEMENTS
The Borrower shall, as the same become available but in any event within 45
days after the end of each of its respective financial quarters, deliver to
the Agent with sufficient copies for each of the Beneficiaries its
unaudited consolidated financial statements of the Borrower, FirstMark
Deutschland and the other Relevant Companies for that quarter.
20.3 OPTIONAL STATEMENTS
The Borrower may at any time deliver to the Agent with sufficient copies
for each of the Beneficiaries unaudited consolidated financial statements
of the Borrower and the other Relevant Companies in respect of the previous
three full months prior to that time.
20.4 COMPLIANCE CERTIFICATES
Each of the financial statements delivered by the Borrower under Clauses
20.1, 20.2 and (if any) 20.3 shall be accompanied by a Compliance
Certificate signed by two directors of the Borrower, certifying compliance
with each of the covenants contained in
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56
Clause 21 (the Compliance Certificate containing detailed calculations
reasonably acceptable to the Agent demonstrating compliance) and showing
amounts for Annualised Revenue and Annualised EBITDA for the period covered
by the relevant financial statement and a further certificate signed by two
directors of the Borrower that as of the date of the financial statements
no Event of Default or Potential Event of Default has occurred and is
continuing or, if it has occurred, a description of the Event of Default or
Potential Event of Default, and the action taken or proposed to be taken to
remedy it and, in the case of the annual financial statements in respect of
the Borrower delivered pursuant to Clause 20.1, by an Auditor's Compliance
Certificate from the Auditor demonstrating compliance with the covenants
contained in Clause 21.
20.5 ANNUAL BUDGET
No more than 30 days after the commencement of each financial year of the
Borrower, there shall be delivered to the Agent, with sufficient copies for
each of the Beneficiaries, the Annual Budget of the Relevant Companies for
such financial year.
20.6 BUSINESS PLAN
There shall whilst any Loan is outstanding be delivered to the Agent, in
both hard and electronic format and with sufficient copies for each of the
Beneficiaries, any revision of the Business Plan as updated and corrected
from time to time (following approval by the Board of the Borrower).
20.7 TAX AUDIT
Should during a tax audit of the Borrower the tax authorities claim that
Section 8A German Corporation Income Tax Act (KORPERSCHAFTSSTEUERGESETZ) is
applicable to the Facilities or the loans made by FirstMark Deutschland to
the Borrower, the Borrower will promptly inform the Lenders thereof.
20.8 INSURANCE REPORTS
Together with the annual statements delivered by the Borrower pursuant to
Clause 20.1 the Borrower shall deliver a certificate from Borrower
insurance broker confirming that the insurance policies of the Borrower
remain in full force and effect, to which shall be attached a copy of each
such policy and all documentation relating to the then most recent renewal
thereof.
20.9 OTHER INFORMATION
The Borrower shall, and shall procure that each other Relevant Company
shall, from time to time on the request of the Agent, furnish the Agent
with such information about its condition (financial or otherwise), the
Business and the Network as the Agent (or any Lender through the Agent) may
reasonably require.
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57
20.10 REQUIREMENTS AS TO FINANCIAL STATEMENTS
The Borrower shall, and shall procure that each other Relevant Company
shall ensure that:
(A) each set of its financial statements delivered pursuant to this Clause
20 is prepared on the same basis, including accounting policies,
practices, procedures, and reference periods, as was used in the
preparation of its Original Financial Statements and in accordance
with current accounting practice and consistently applied or where it
is not so prepared including (i) a description of any changes to the
basis of preparation (ii) a statement of the reasons why such change
has been implemented and (iii) a pro forma set of financial statements
prepared on the previous basis;
(B) each set of its quarterly financial statements delivered pursuant to
Clauses 20.2 and 20.3 shall include a narrative report for the
relevant quarterly period, a balance sheet, profit and loss account
and statement of use of funds as at the end of and for that quarterly
period and details of the reasons for any material variations from the
relevant Annual Budget;
(C) each set of its financial statements delivered pursuant to Clause 20.1
is certified by a duly authorised officer of it as giving a true and
fair view of its financial condition as at the end of the period to
which those financial statements relate and of the results of its
operations during the relevant period;
(D) each set of its financial statements delivered pursuant to Clause 20.2
or (if any) Clause 20.3 is certified by a duly authorised officer of
it as giving a reasonably fair view of its financial condition as at
the end of the period to which it relates and of the results of its
operations during the relevant period;
(E) each set of financial statements delivered by it pursuant to Clause
20.1 has been audited by the Auditor.
20.11 LITIGATION
The Borrower shall, and shall procure that each Relevant Company shall,
promptly notify the Agent of any litigation, arbitration, administration or
other legal or dispute resolution proceedings ("LITIGATION") which if found
against the Borrower or Relevant Company is reasonably likely to have a
Material Adverse Effect.
20.12 ACCESS TO RECORDS
The Borrower shall, and shall procure that each other Relevant Company
shall:
(A) provide to the Agent and its advisers access to its records and assets
as and when the Agent may reasonably require on reasonable notice and
during regular business hours; and
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(B) allow the Agent and its advisors to take records of the same and to
discuss the affairs of the Borrower and each other Relevant Company
with the officers, employees and auditors of the same on reasonable
notice and during regular business hours.
20.13 MAINTENANCE OF ADEQUATE ACCOUNTING RECORDS
The Borrower shall, and shall procure that each other Relevant Company
shall, install and maintain adequate accounting, management information and
cost control systems, which systems shall comply in all regards with
current accounting practice.
21. FINANCIAL COVENANTS
21.1 TOTAL INDEBTEDNESS TO ANNUALISED EBITDA
The Borrower shall ensure that on each Ratio Calculation Date the ratio of
(i) the Total Indebtedness on such Ratio Calculation Date, to (ii)
Annualised EBITDA in respect of such Ratio Calculation Date shall not
exceed the maximum ratios in respect of such Ratio Calculation Date, as
specified in Schedule 9 in the column headed "Total Indebtedness to
Annualised EBITDA".
21.2 EBITDA TO INTEREST EXPENSE
The Borrower shall ensure that on each Ratio Calculation Date the ratio of
(i) EBITDA in respect of the six month period expiring upon such Ratio
Calculation Date to (ii) Interest Expense in respect of the six month
period expiring upon such Ratio Calculation Date shall be more than or
equal to the minimum ratio in respect of such Ratio Calculation Date, as
specified in Schedule 9 in the column headed "EBITDA to Interest Expense".
21.3 EBITDA TO DEBT SERVICE
The Borrower shall ensure that upon each Ratio Calculation Date the ratio
of (i) EBITDA of the Borrower in respect of the six month period expiring
upon such Ratio Calculation Date to (ii) the amount of Debt Service in
respect of the six month period expiring upon such Ratio Calculation Date,
shall be more than or equal to the minimum ratio in respect of such Ratio
Calculation Date, as specified in Schedule 9 in the column headed "EBITDA
to Debt Service".
21.4 MINIMUM ANNUALISED REVENUE
The Borrower shall ensure that on each Ratio Calculation Date the
Annualised Revenue shall be no less than the minimum Annualised Revenue, as
specified in relation to that Ratio Calculation Date in Schedule 9 in the
column headed "Minimum Annualised Revenue".
21.5 MINIMUM ANNUALISED EBITDA
The Borrower shall ensure that on each Ratio Calculation Date the
Annualised EBITDA shall be no less than the minimum Annualised EBITDA, as
specified in relation to that
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Ratio Calculation Date in Schedule 9 in the column headed "Minimum
Annualised EBITDA".
21.6 TOTAL INDEBTEDNESS TO CONTRIBUTED EQUITY
The Borrower shall ensure that the ratio of Total Indebtedness to
Contributed Equity shall not at any time exceed 3:2.
22. BORROWER'S COVENANTS
22.1 BORROWER'S POSITIVE COVENANTS
The Borrower undertakes that it shall:
(A) MAINTENANCE OF EXISTENCE
maintain its existence as a body corporate duly formed and validly
existing under the laws of Germany and procure that each other
Relevant Company shall maintain its existence as a body corporate duly
formed and validly existing under the laws of Germany;
(B) COMPLY WITH LAWS AND REGULATIONS
promptly comply with, procure that each other Relevant Company
promptly complies with, and procure that each of its and each Relevant
Company's agents and employees complies with, the terms and conditions
of all applicable laws, regulations, agreements, licences and
concessions including:
(a) all Environmental Laws, all Environmental Licences, all
Telecommunications Laws, the Licences and the Frequency
Allocations; and
(b) all safety and health standards to the extent that a prudent and
experienced international operator of telecommunications networks
would so comply but, in any event, no lower than those standards
required under German law,
in each case to the extent that failure to comply is reasonably likely
to have a Material Adverse Effect, and provide, and procure that each
other Relevant Company provides, to the Agent as soon as practicable
after upon obtaining knowledge of any circumstance which might
reasonably be expected to form the basis of an Environmental Claim in
respect of any Relevant Company or its property, a notice describing
such circumstances in reasonable detail and a description of the
action which it or the Relevant Company proposes to take, and such
other information as the Agent may reasonably request.
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60
(C) PERFORMANCE OF DOCUMENTS
acquire and preserve all such property, rights and interest as are
necessary for the performance of its obligations under the Transaction
Documents to which it is a party and the conduct of its business as
contemplated in the Transaction Documents, and procure that each other
Relevant Company does so in respect of its obligations under the
Transaction Documents to which it is a party, and ensure that all
property and interests are free of any leases, restrictions,
covenants, or other rights or encumbrances, other than for Permitted
Encumbrances, as could reasonably be expected to hinder or delay the
performance of its obligations under the Transaction Documents to
which it is a party, and procure that each other Relevant Company does
so in respect of its material obligations under the Transaction
Documents to which it is a party and procure that each other Relevant
Company complies with the terms of each Transaction Document to which
it is a party;
(D) APPROVALS, LICENCES, CONSENTS, ETC.
promptly obtain as required, comply with the terms of and do all that
is necessary to maintain in full force and effect (and, to the extent
necessary or advisable, renew) all Necessary Authorisations (including
the Licences and the Frequency Allocations):
(i) required in or by the laws and regulations of its jurisdiction of
incorporation to enable it lawfully to enter into and perform its
obligations under the Transaction Documents to which it is a
party or to ensure the legality, validity, enforceability and
admissibility in evidence, in Germany (and, if different, the
jurisdiction of its incorporation) (as appropriate according to
the governing law and submission to jurisdiction of and in each
Transaction Document), of the Transaction Documents to which it
is a party; or
(ii) necessary for carrying on its Business;
and procure that each other Relevant Company does the same, in each
case where failure to do so is reasonably likely to have a Material
Adverse Effect.
(E) NOTICE OF DEFAULT
promptly inform the Agent of the occurrence of any Event of Default or
Potential Event of Default upon becoming aware of the same and, upon
receipt of a written request to that effect from the Agent, confirm to
the Agent that, except as previously notified to the Agent or as
notified in that confirmation, no Event of Default or Potential Event
of Default has occurred;
(F) INSURANCE
maintain, or procure the maintenance of, insurances (including all
insurance required to be entered into pursuant to the Licences and
Frequency Allocations)
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61
with reputable underwriters or insurance companies against such risks
and to such extent as would ordinarily be obtained by a person
carrying on a business substantially similar to the business carried
on by the Relevant Companies from time to time;
(G) FILING OF TAX RETURNS
file or cause to be filed all tax returns required to be filed in all
jurisdictions in which each other Relevant Company is situated or
carries on business or otherwise subject to tax and promptly pay all
taxes which are due and payable on returns or any assessment made
against it or procure the prompt payment by each other Relevant
Company of all taxes which are due and payable on returns or any
assessment made against such other Relevant Company;
(H) REPRESENTATIONS
after the delivery of any Notice of Drawdown and before the proposed
making of an Advance requested in a Notice of Drawdown, immediately
upon it or any Relevant Company becoming aware of the event, notify
the Agent of the occurrence of any event which results in or may be
expected to result in any of the representations contained in Clause
19 which are required to be repeated pursuant to Clause 19 being
untrue at or before the time of the making of the Advance;
(I) NETWORK
procure that the Network is designed, constructed, completed, tested,
commissioned, equipped, operated and maintained in all material
respects in accordance and consistently with:
(i) the Licences and Frequency Allocations;
(ii) all applicable laws and regulations; and
(iii) the Business Plan (as revised pursuant to the terms of this
Agreement);
(J) OPERATION OF PROJECT ASSETS
procure that the Project Assets are operated in an efficient and
businesslike manner and are kept in or restored to good and sufficient
operating condition and that, as far as practicable, defects,
imperfections and other faults are promptly remedied and made good and
that repairs, renewals, replacements, additions and improvements
required to that end are promptly made;
(K) SUBSCRIBERS
procure that all amounts paid by a Subscriber to any Relevant Company
under any agreement, arrangement or understanding are paid directly
into a Pledged
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Account and if such moneys are otherwise paid to the Relevant Company
in question, procure that those moneys are promptly paid into a
Pledged Account;
(L) ACCOUNTING REFERENCE DATE
maintain 31st December as the last day of its and each other Relevant
Company's financial year unless otherwise agreed by the Borrower and
the Lenders or otherwise required by the law of the jurisdiction of
its or the Relevant Company's incorporation;
(M) INFORMATION MEMORANDUM
(i) use best endeavours to assist the Arranger in the preparation of
the Information Memorandum and ensure that, save as otherwise
disclosed in the Information Memorandum, the factual information
contained in the Information Memorandum is true and accurate and
complete in all material respects on the date thereof (or, if
different, as of the date when it is stated) and that no Relevant
Company nor the Parent Company omits to make any non-disclosure
which would make the Information Memorandum misleading in any
material respect, and in the case of any financial projections or
expressions of opinion contained in the Information Memorandum,
procure that such projections and expressions are prepared or
made in good faith and on the basis of assumptions believed by
the Relevant Companies to be reasonable; and
(ii) ensure that, if in the opinion of the Arranger it is necessary
for the purpose of Syndication, the Information Memorandum is
updated immediately prior to Syndication;
(N) INTERCONNECTION
ensure that the Networks are compatible with and satisfactorily
interconnect with such networks as are required to enable the Business
to be carried on in accordance with the current Business Plan;
(O) ADDITIONAL SECURITY
ensure that promptly in response to any written request of the
Security Agent any assets which are acquired by any Relevant Company
in connection with the Business after the date of this Agreement are
secured in favour of, and to the satisfaction of, the Beneficiaries as
soon as they are acquired provided that no security shall be required
to be created over any asset in relation to which both of the
following requirements are satisfied: (a) it is legally necessary (in
order to ensure the validity or priority of such security) to create
the security by way of a document which specifically identifies the
asset rather than by way of a general description of assets of a
specified class or at a specified location; and (b) the asset has a
market value of less than Euro 1,000,000 (one million euro);
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(P) APPLICATION OF PROCEEDS
(i) promptly apply the proceeds of each Advance in the manner and for
the purpose contemplated by, and in accordance with, Clause 3.4,
4.2, 5.2 or 6.2, as the case may be;
(ii) ensure that all proceeds received by any Relevant Company from
any source are promptly deposited into a Pledged Account;
(Q) PAYMENTS FROM SUBSIDIARIES
ensure that all payments to any Relevant Company by such Relevant
Company's subsidiaries (if any) to enable it to pay amounts due under
the Facility Documents to which it is a party are lawfully made;
(R) SECURITY AND NEW SUBSIDIARIES
ensure that any subsidiary created or acquired by the Borrower after
the date of this Agreement shall grant security to the Lenders in form
and substance satisfactory to the Lenders;
(S) CASH SWEEP
procure that FirstMark Deutschland shall make a loan to the Borrower
(a) promptly and in any case within five Business Days after each
payment by the Borrower to FirstMark Deutschland pursuant to the
Service Level Agreement specified in paragraph 1 of Schedule 8; (b) of
an amount equal to the excess (if any) of such payment over the
aggregate amount reasonably believed by FirstMark Deutschland to be
required by it as working capital or otherwise for the purpose of its
business during the period of one week beginning on the date of such
payment pursuant to such Service Level Agreement; (c) maturing at the
time of the next payment by the Borrower pursuant to such Service
Level Agreement but repayable on demand of FirstMark Deutschland prior
to such time to meet ongoing cash needs of FirstMark Deutschland; and
(d) which is interest-free and on such other terms as may be agreed
between the Borrower and FirstMark Deutschland; and
(T) FURTHER ASSURANCES
shall procure that each Relevant Company party to a Facility Document
shall, execute any and all further documents, agreements and
instruments, and take all such further action (including the filing
and registration of any such documents, agreements and instruments
which may be required under any applicable law, or which the Agent may
reasonably request, to give effect to the transactions contemplated by
the Facility Documents.
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22.2 BORROWER'S NEGATIVE COVENANTS
The Borrower may not, and the Borrower shall procure that each other
Relevant Company shall not:
(A) NEGATIVE PLEDGE
create or permit to subsist any security over all or any of its
business or assets other than a Permitted Encumbrance or as permitted
under Clause 22.3;
(B) DISPOSALS
sell, lease, transfer or otherwise dispose of, by one or more
transactions or series of transactions (whether related or not), the
whole or any part of the Project Assets with an aggregate value in
excess of Euro 2,000,000 in any financial year other than:
(i) disposals of cash raised or borrowed for the purpose for which it
was raised or borrowed;
(ii) disposals of assets on an arm's length basis provided the prior
consent of an Instructing Group is obtained, such consent not to
be unreasonably withheld;
(iii) the sale of assets on an arm's length basis in order to fund the
purchase of replacement assets which are to be used for the same
purpose and which are of a comparable or superior type, value and
quality; and
(iv) disposals of assets which are redundant or obsolete or otherwise
no longer necessary for the operation of the Network or any other
part of the Business.
(C) PERMITTED INDEBTEDNESS
create, assume, incur or otherwise permit to be outstanding any
Financial Indebtedness other than Permitted Indebtedness or the
Borrower's counter-indemnification obligations in relation to any
Local Guarantee.
(D) FINANCIAL ACCOMMODATION
(i) advance money or make available financial accommodation
(including for the avoidance of doubt, participating debt) to or
for the benefit of;
(ii) give a guarantee, indemnity or other assurance for borrowed
money, or grant any encumbrance in or over its assets in
connection with an obligation or liability of;
(iii) perform any obligation or settle any liability of; or
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(iv) subscribe for, or otherwise acquire any Investments in,
any person other than:
(a) with the prior written consent of the Lenders (which is hereby
given in relation to the indemnity in Clause 6.7);
(b) unless the aggregate amount of all such monies advanced,
financial accommodation made available, amounts guaranteed and
amounts in respect of which an indemnity or other assurance for
borrowed money is given, and the amount of all such liabilities
and obligations does not exceed Euro 2,000,000; or
(c) employee loans up to a maximum aggregate amount of Euro 250,000
from time to time; or
(d) trade credit in the ordinary course of business for not longer
than 60 days; or
(e) pursuant to Clause 22.3;
(E) INTRA-GROUP TRANSACTIONS
allow any Financial Indebtedness to exist between itself and any other
member of the Group unless such Financial Indebtedness is subordinated
to amounts owed to the Beneficiaries under the Facility Documents, nor
(save as expressly provided for in the Project Documents) enter into
material transactions with other members of the Group other than on
arms' length terms;
(F) DIVIDENDS, DISTRIBUTIONS AND PAYMENTS UNDER PARENT COMPANY LOANS
pay, make or declare any dividend or other distribution to the Parent
Company, or any payment in respect of Subordinated Debt of the
Borrower, including any hidden profit distribution (VERDECKTE
GEWINNAUSSCHUTTUNG) except for any hidden profit distribution which is
assumed safely as a result of the application of Section 8A
KORPERSCHAFTSSTEUERGESETZ (German Corporation Income Tax Act) other
than:
(i) Permitted Distributions; or
(ii) with the prior written consent of the Lenders.
(G) AMENDMENT OF PROJECT DOCUMENTS
without the prior consent of an Instructing Group permit or agree to
any amendment, waiver, termination or assignment of any of the terms
and conditions of any Project Document where such amendment, waiver,
termination or assignment is reasonably likely to have a Material
Adverse Effect;
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(H) NEW SUBSIDIARIES
acquire any subsidiaries in any financial year for consideration greater
than Euro 25,000,000, except:
(i) with the prior written consent of the Lenders;
(ii) where the Agent has, not less than 15 Business Days prior to such
acquisition being contractually agreed to, been provided with evidence
reasonably satisfactory to the Agent that (a) such acquisition will
not result in a breach of any covenant stated in Clause 21 and (b)
such acquisition is not reasonably likely to cause a Material Adverse
Effect.
(I) SUBSIDIARIES OUTSIDE GERMANY
create or acquire any subsidiary whose place of incorporation and/or
principal place of business is outside Germany.
(J) SOLE BUSINESS
carry on any business other than the Business;
(K) TRANSACTIONS ON ARM'S LENGTH TERMS
enter into any transactions or series of transactions with any person
except on arm's length terms and conditions;
(L) WAIVE FINANCIAL INDEBTEDNESS
release or waive any Financial Indebtedness owed by any person to it other
than for valuable market consideration;
(M) CONSTITUTIONAL DOCUMENTS
amend its constitutional documents in any manner except as required under
the law of its jurisdiction of incorporation (in which case the Borrower
shall notify the Agent of such requirement immediately) or in a manner to
which the Agent has given its prior written consent where such amendment is
reasonably likely to have a Material Adverse Effect;
(N) PROFIT SHARING
without the prior written consent of the Agent (acting on the instructions
of all the Lenders) enter any joint venture, partnership or similar
arrangements whereby any income or profits (however described) are, or
would be, shared with any other party;
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(O) CHANGE TO STRUCTURE
without the prior written consent of the Agent (acting on the instructions
of an Instructing Group, acting reasonably) make any material change to the
relative roles, in relation to the Network, of the Borrower and FirstMark
Deutschland, as illustrated in Part 2 of Schedule 6; and
(P) BANK ACCOUNTS
on or from the Tranche A Financial Completion Date, open, operate or have
any interest (whether alone or with any other person) in any account with a
bank or other financial institution other than the Pledged Accounts.
22.3 CASH COLLATERALISED BANK GUARANTEES
Notwithstanding the other provisions of this Agreement, the Borrower may
establish a bank account (the "CASH COLLATERAL ACCOUNT"), with a branch of
Deutsche Bank AG to be agreed between the Borrower and Deutsche Bank AG,
which is not a Pledged Account. The Cash Collateral Account may be the
subject of security in favour of Deutsche Bank AG, securing the
counter-indemnification obligations of the Borrower in relation to one or
more guarantees (the "LOCAL GUARANTEES") issued by Deutsche Bank AG at the
request of the Borrower. No Local Guarantee shall be issued unless the
counter-indemnification obligations of the Borrower in relation to it shall
be fully cash-collateralised by amounts deposited in the Cash Collateral
Account. The counter-indemnification obligations of the Borrower in
relation to the Local Guarantees shall at no time exceed in aggregate Euro
10,000,000 (ten million euro). The amount standing to the credit of the
Cash Collateral Account shall at no time exceed the lesser of (a) the
aggregate contingent counter-indemnification obligations of the Borrower at
that time in relation to the Local Guarantees; and (b) Euro 10,000,000 (ten
million euro).
23. EVENTS OF DEFAULT
23.1 EVENTS OF DEFAULT
If:
(A) NON-PAYMENT
subject to Clause 23.3, any party to a Facility Document other than a
Beneficiary fails to pay:
(i) any sum due from it under or in connection with any Facility
Documents in respect of the payment of principal under any Loan,
upon such sum becoming due and payable, in the currency and in
the manner specified;
(ii) any sum due from it under or in connection with the Facility
Documents in respect of the payment of interest under any Loan,
within three
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Business Days of such sum becoming due and payable, in the currency
and in the manner specified; and
(iii) any other sum due from it under or in connection with the
Facility Documents within five Business Days of such sum becoming
due and payable, in the currency and in the manner specified.
(B) SECURITY DOCUMENTS
any party to a Security Document (other than a Beneficiary) is in
default of its material obligations thereunder, and such default
continues unremedied for five Business Days or more or any Security
Document ceases to be effective to create and maintain a first-ranking
security over the assets specified therein, and such failure is not
remedied within 15 Business Days of the Borrower becoming aware of the
same.
(C) BREACH OF FACILITY DOCUMENTS
other than in respect of a breach pursuant to Clause 23.1(A), any
party (other than a Beneficiary) fails duly to perform or comply with
any of the obligations expressed to be assumed by it in any Facility
Document to which it is a party and such failure or non-compliance, if
capable of remedy, is not remedied to the reasonable satisfaction of
the Agent within 30 days of such party or any Beneficiary becoming
aware of such breach;
(D) INVALIDITY OF FACILITY DOCUMENTS
any material obligation of any party to a Facility Document (other
than a Beneficiary) ceases to be legal, valid and binding in
accordance with its terms.
(E) BREACH OR REPUDIATION OF PROJECT DOCUMENTS
any Relevant Company fails duly to perform or comply with, or
repudiates or evidences an intention to repudiate, any of the material
obligations expressed to be assumed by it in any Project Document or
any other material contract, instrument, agreement, arrangement or
understanding to which it is a party and such breach is not cured
within any grace period permitted under the terms of such Project
Document, material contract, instrument, agreement, arrangement or
understanding and the occurrence of such failure is reasonably likely
to have a Material Adverse Effect.
(F) MISREPRESENTATIONS
any representation or statement made (i) pursuant to any Facility
Documents (other than by a Beneficiary) or (ii) in any notice or other
document, certificate or statement delivered pursuant to a Facility
Document (other than by a Beneficiary), is or proves to have been
incorrect or misleading in any material respect when made.
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(G) TERMINATION, ETC. OF TRANSACTION DOCUMENTS
(i) any Project Document is amended, modified, suspended, cancelled,
revoked, surrendered or terminated (whether in whole or in part)
and the same is reasonably likely to have a Material Adverse
Effect;
(ii) any consent, licence, approval, authorisation, registration or
permit required or obtained by any party to a Transaction
Document (other than a Beneficiary) for the execution, delivery
and performance of any Transaction Document or the undertaking of
the Business is suspended, cancelled, revoked, surrendered or
terminated, in whole or in part, or any part of the Business is
or is likely to be permanently suspended or abandoned and the
same is reasonably likely to have a Material Adverse Effect; or
(iii) any party is in breach of any Project Document and the same is
reasonably likely to have a Material Adverse Effect.
(H) CROSS DEFAULT
any Financial Indebtedness of any Relevant Company or the Parent
Company (in the case of the Parent Company being an aggregate amount
of more than Euro 10,000,000) is not paid when due (or within any
applicable grace period appearing in the relevant document), becomes
due and payable prior to its specified maturity or any creditor
becomes entitled to declare any indebtedness due and payable prior to
its specified maturity, in each case as a result of the occurrence of
a default (howsoever described).
(I) FAILURE TO PAY DEBTS
any Relevant Company or the Parent Company is unable to pay its debts
as they fall due, ceases to make payments or commences negotiations
with any one or more of its creditors with a view to the general
readjustment or rescheduling of its indebtedness or makes a general
assignment for the benefit of or a composition with its creditors, or
makes any good faith application for the opening of a court
composition (GERICHTLICHES VERGLEICHSVERFAHREN) without the prior
approval of the Agent acting on the instructions of all the Lenders.
(J) COMMENCEMENT OF INSOLVENCY PROCEEDINGS
any action or legal proceedings are started against any Relevant
Company or the Parent Company for its winding-up, dissolution,
administration, bankruptcy or any similar or analogous proceeding or
by any Relevant Company or the Parent Company in order for it to be
declared in suspension of payments and such action or proceedings are
not dismissed, stayed or terminated within 30 days of being commenced
other than for the purposes of a solvent reconstruction on terms and
conditions approved by the Agent acting on the instructions of all the
Lenders.
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(K) ENFORCEMENT OF ENCUMBRANCES
any execution, distress, attachment or legal process is levied, made
or taken against, or an encumbrancer takes possession of, the whole or
any material part of the Project Assets and is not discharged or
stayed within 30 days of being commenced.
(L) EXPROPRIATION OF ASSETS, PRIVATISATION
by or under the authority of any government any of the issued shares
of any Relevant Company or the whole or any material part of its
revenues or assets is seized, nationalised, expropriated, compulsorily
acquired or otherwise removed from the control or ownership of the
owner of such shares or of such Relevant Company and such action is
reasonably likely to have a Material Adverse Effect.
(M) ILLEGALITY
at any time it is or becomes unlawful for any of the Relevant
Companies and the Parent Company to perform or comply with any or all
of their respective material obligations under the Transaction
Documents or any of their respective material obligations are not or
cease to be (subject only to the Reservations) legal, valid and
binding.
(N) CESSATION OF BUSINESS
any Relevant Company ceases to carry on the Business.
(O) MATERIAL ADVERSE EFFECT
any event or series of events occurs which has or is reasonably likely
to have a Material Adverse Effect.
(P) MATERIAL ADVERSE CHANGE
a material adverse change in the business or condition (financial or
otherwise) of the Relevant Companies (taken as a whole) occurs since
31st December, 1999.
(Q) CHANGE OF CONTROL
(i) the Parent Company ceases for any reason to control (as such term
is defined in the definition of Affiliate) the Borrower;
(ii) FirstMark Deutschland or any other Relevant Company, (other than
the Borrower) ceases to be directly or indirectly, a wholly-owned
subsidiary of the Borrower.
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(R) EQUITY COMMITMENT UNDERTAKING
the Parent Company breaches any of its material obligations under the
Equity Commitment Undertaking.
(S) FAILURE TO COMPLY WITH FINAL JUDGEMENT
any Relevant Company fails to comply with or pay any sum due from it
under any final judgement for an amount in excess of Euro 500,000 or
final order for an amount in excess of Euro 500,000 made or given by
any court of competent jurisdiction, in each case where a stay of
execution of such final judgment or order is not procured within 30
days of entry thereof,
then the Agent shall, if so instructed by an Instructing Group, by written
notice to the Borrower:
(1) declare the Advances together with accrued interest and any other
sums then owed by the Borrower under this Agreement to be
immediately due and payable or declare the Advances to be due and
payable on demand from the Agent together with accrued interest
and any other sums then owed by the Borrower under this Agreement
or any of the other Facility Documents; and/or
(2) cancel the Facilities and the Available Commitments of each
Lender shall be reduced to zero.
23.2 ACCELERATION
If, pursuant to Clause 23.1, the Agent declares the Advances to be due and
payable on demand the Agent shall, if so instructed by an Instructing
Group, by written notice to the Borrower call for repayment of the Advances
together with accrued interest and any other sums then owed by the Borrower
under this Agreement or any other Facility Document on the date specified
in the notice or withdraw its declaration with effect from the date
specified in the notice.
23.3 TECHNICAL DEFAULT IN PAYMENT
Failure by any member of the Group to pay an amount due will not constitute
an Event of Default under Clause 23.1(A) if:
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(A) before the exercise of the Agent's powers under Clause 23.1 the
relevant party demonstrates to the satisfaction of the Agent that it
had sufficient available funds with its bankers and had given
appropriate instructions to those bankers to make that payment and
that the payment would have been made but for temporary technical or
administrative difficulties outside the control of such party; and
(B) payment is received in the manner required within six Business Days of
the due date.
The Agent need not wait for a demonstration under Clause 23.3(A) before
exercising its powers under this Clause 23.3.
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PART 8
DEFAULT INTEREST AND INDEMNITY
24. DEFAULT INTEREST AND INDEMNITY
24.1 ACCRUAL AND PAYMENT OF DEFAULT INTEREST
(A) Subject as stated in paragraph (B), interest shall accrue on each
unpaid amount which is due and payable by the Borrower under or in
respect of this Agreement:
(i) on a daily basis up to the date of actual payment from (and
including) the due date or, in the case of an amount payable by
way of reimbursement or indemnity, the date of demand;
(ii) both before and after judgment (as a separate and independent
obligation); and
(iii) at the rate equal to the sum of (a) 2% per annum plus (b)
EURIBOR for such successive periods as may be selected by the
Agent plus (c) the Margin (if any) applicable to the amount
immediately before the due date, plus (d) the Mandatory Cost, if
any.
(B) This Clause shall not apply to any interest payable under this
Agreement, including interest payable under this Clause.
(C) The Borrower shall pay interest accrued under this Clause on demand by
the Agent and on the last Business Day of each period specified by the
Agent. That interest is payable in the currency of the unpaid amount
upon which it accrues.
24.2 BROKEN PERIODS
If any Lender or the Agent on its behalf receives or recovers all or any
part of the Lender's share of an Advance (including, for the avoidance of
doubt, as a result of any prepayment in accordance with this Agreement)
otherwise than on the last day of an Interest Period relating to that
Advance, the Borrower shall pay to the Agent on demand for the account of
the Lender an amount equal to the amount (if any) by which (a) the
additional interest which would have been payable on the amount so received
or recovered had it been received or recovered on the last day of that
Interest Period exceeds (b) the amount of interest which in the opinion of
the Agent would have been payable to the Agent on the last day of that
Interest Period in respect of a Euro deposit equal to the amount so
received or recovered placed by it with a prime bank in the European
inter-bank market for a period starting on the Business Day following the
date of such receipt or recovery and ending on the last day of that
Interest Period.
24.3 BORROWER'S INDEMNITY
The Borrower indemnifies each Beneficiary against any loss, liability, cost
and expense that is incurred or sustained by the Beneficiary as a
consequence of:
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(A) the occurrence of any Event of Default or Potential Event of Default;
(B) any exercise or attempted exercise of any right, power or remedy under
any Facility Document or any failure to exercise any right, power or
remedy except where that failure is due to the wilful misconduct or
gross negligence of that Beneficiary;
(C) any Environmental Claim;
(D) an Advance requested in a Notice of Drawdown not being provided for
any reason (including failure to fulfil any condition precedent but
excluding any default by the Beneficiary which is claiming under this
Clause); or
(E) a Beneficiary receiving payments of principal in respect of any
Advance other than on the last day of an Interest Period relating to
the Advance or any period under Clause 24.1 for any reason, including
a prepayment in accordance with this Agreement which is not otherwise
compensated by operation of Clause 24.2.
Without limitation, the indemnity will cover any amount reasonably
determined by the relevant Beneficiary to be incurred by reason of the
liquidation or re-employment of deposits or other funds acquired or
contracted for by the relevant Beneficiary to fund or maintain any Advance
or amount (including loss of Margin) or by reason of the termination or
reversing in whole or part of any agreement or arrangement entered into by
the relevant Beneficiary to hedge, fix or limit its effective cost of
funding or maintaining any Advance or amount.
24.4 UNPAID SUMS AS ADVANCES
Any unpaid sum shall, for the purposes of this Clause 24 and Clause 16.1,
be treated as an Advance and accordingly in this Clause 24 and Clause 16.1
the term "ADVANCE" includes any unpaid sum and the term "INTEREST PERIOD",
in relation to an unpaid sum, includes each such period relating to an
unpaid sum as specified by the Agent under Clause 24.1.
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PART 9
PAYMENTS
25. CURRENCY OF ACCOUNT AND PAYMENT
25.1 CURRENCY OF ACCOUNT
The Euro is the currency of account and payment for each and every sum at
any time due from the Borrower under any Facility Document except that:
(A) each payment in respect of costs and expenses shall be made in the
currency in which they were incurred; and
(B) each payment under Clause 14.1, 14.2, 15.2 or Clause 16.1 shall be
made in the currency specified by the party claiming under the
relevant Clause.
25.2 CURRENCY INDEMNITY
If any sum due from the Borrower under this Agreement or any order or
judgment given or made in relation to any Facility Document has to be
converted from the currency (the "FIRST CURRENCY") in which it is payable
under any Facility Document or under the order or judgment into another
currency (the "SECOND CURRENCY") for the purpose of:
(A) making or filing a claim or proof against the Borrower;
(B) obtaining an order or judgment in any court or other tribunal; or
(C) enforcing any order or judgment;
the Borrower shall indemnify and hold harmless each of the persons to whom
the sum is due from and against any loss suffered or incurred as a result
of any discrepancy between (i) the rate of exchange used for that purpose
of converting the sum in question from the first currency into the second
currency and (ii) the rate or rates of exchange at which a person may in
the ordinary course of business purchase the first currency with the second
currency on receipt of a sum paid to it in satisfaction, in whole or in
part, of any order, judgment, claim or proof.
26. PAYMENTS
26.1 PAYMENTS TO THE AGENT
On each date on which this Agreement requires an amount denominated in
Euros to be paid by the Borrower or any Lender, the Borrower or, as the
case may be, the Lender shall make the amount available to the Agent by
payment in Euros and in same day funds (or in such other funds as may for
the time being be customary in the principal financial centre of any
participating member state for the settlement of international banking
transactions in Euros) to the Agent's account number 9380999 with Deutsche
Bank AG, Frankfurt (or such other account or bank as the Agent may have
specified for this purpose).
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26.2 ALTERNATIVE PAYMENT ARRANGEMENTS
If, at any time, it becomes impracticable (by reason of any action of any
governmental authority or any change in law, exchange control regulations
or any similar event) for the Borrower to make any payments in the manner
specified in Clause 26.1, then the Borrower may agree with each or any
Lender alternative arrangements for the payment direct to the Lender of
amounts due to the Lender Provided that, in the absence of any agreement
with the relevant Lender, the Borrower shall be obliged to make all
payments due to the relevant Lender in the manner specified in the Facility
Documents. On reaching agreement the Borrower and the relevant Lender shall
immediately notify the Agent and shall promptly notify the Agent of all
payments made direct to the relevant Lender.
26.3 PAYMENTS BY THE AGENT
Except as otherwise provided in this Agreement, each payment received by
the Agent for the account of another person pursuant to Clause 26.1 shall
be made available by the Agent to that other person (in the case of a
Lender, for the account of its Facility Office) for value the same day by
transfer to the account of the person with the bank in the principal
financial centre of any participating member state that person shall have
previously notified to the Agent.
26.4 NO SET-OFF
All payments required to be made by the Borrower under any Facility
Document shall be calculated without reference to any set-off or
counterclaim and shall be made free and clear of and without any deduction
for or on account of any set-off or counterclaim.
26.5 CLAWBACK BY AGENT
Where a sum is to be paid under any Facility Document to the Agent for
account of another person, the Agent shall not be obliged to make the sum
available to that other person until it has been able to establish to its
satisfaction that it has actually received the sum, but if it does so and
it proves to be the case that it had not actually received the sum, the
person to whom the sum was made available shall on request refund the sum
to the Agent together with an amount sufficient to indemnify the Agent
against any cost or loss it may have suffered or incurred by reason of it
having paid out the sum prior to it having received the sum.
26.6 DATE
If any payment would otherwise be due on a day which is not a Business Day,
it shall be due on the next succeeding Business Day unless the result of
such an extension would be that such payment would be due on a day in the
following calendar month in which event such payment shall be due on the
last preceding Business Day.
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27. SET-OFF
27.1 CONTRACTUAL SET-OFF
Following the occurrence of an Event of Default which is continuing
unremedied and unwaived, the Borrower authorises each Lender to apply any
credit balance to which the Borrower is entitled on any account of the
Borrower with that Lender in satisfaction of any sum due and payable from
the Borrower to the relevant Lender but unpaid. For this purpose, each
Lender is authorised to purchase with the moneys standing to the credit of
any such account any other currencies necessary to effect the application.
27.2 SET-OFF NOT MANDATORY
No Lender shall be obliged to exercise any right given to it under Clause
27.1.
28. PROPORTIONATE SHARING
28.1 SHARING
Whenever any Lender receives or recovers any money in respect of any sum
due from the Borrower under a Facility Document in any way (including by
set-off) except through distribution by the Agent under this Agreement:
(A) the Lender shall immediately notify the Agent;
(B) the Lender shall immediately pay that money to the Agent (unless the
Agent directs otherwise);
(C) the Agent shall treat the payment as if it were a payment by the
Lender on account of all sums then payable to the Beneficiaries; and
(D) (i) the payment or recovery will be taken to have been a payment for
the account of the Agent and not to the Lender for its own
account, and the liability of the Borrower to the Lender will not
be reduced by the recovery or payment, other than to the extent
of any distribution received by the Lender under paragraph (C);
and
(ii) (without limiting sub-paragraph (i)) immediately on the Lender
making or becoming liable to make a payment under paragraph (B),
the Borrower shall indemnify the Lender against the payment to
the extent that (despite sub-paragraph (i)) its liability has
been discharged by the recovery or payment.
If the Lender is required to disgorge or unwind all or part of the relevant
recovery or payment then the other Lenders shall repay to the Agent for the
account of the Lender the amount necessary to ensure that all the Lenders
share rateably in the amount of the recovery or payment retained.
Paragraphs (c) and (d) above apply only to the retained amount.
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28.2 REFUSAL TO JOIN IN ACTION
A Lender who does not accept an invitation to join an action against the
Borrower or does not share in the costs of the action (in each case having
been given a reasonable opportunity to do so) is not entitled to share in
any amount so recovered.
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PART 10
FEES, COSTS AND EXPENSES
29. COMMITMENT COMMISSION AND FEES
29.1 COMMITMENT COMMISSION
The rate of the commitment commission in relation to the Facilities shall
be 0.75% per annum. This commission will accrue on an amount equal to the
Available Commitment of each Lender in respect of each of the Tranche B
Facility, the Tranche C Facility and the Tranche D Facility. This
commission will accrue on a daily basis from (and including) the date of
this Agreement to (but excluding) the date upon which the aggregate of the
Available Commitments of the Lenders is reduced to zero. The commission is
payable to the Agent in arrear for the account of each Lender (i) at the
end of each Quarter, commencing on the date of the Facility Agreement; and
(ii) on repayment in full of the last to be repaid in full of the
Facilities. For the avoidance of doubt, in relation to the Tranche D
Facility the commission is payable to the Agent for the account of the
Lenders and not to the Fronting Bank.
29.2 UP-FRONT FEE
The Borrower shall pay to the Agent for the account of the Lenders the
up-front and commitment fees specified in the letter agreement relating to
this Agreement and dated on or about the date of this Agreement between the
Borrower and the Arranger.
29.3 AGENCY AND SECURITY AGENCY FEES
The Borrower shall pay to the Agent and the Security Agent the fees
specified in the letter agreement relating to this Agreement and dated on
or about the date of this Agreement between the Borrower, the Agent and the
Security Agent.
30. COSTS AND EXPENSES
30.1 TRANSACTION EXPENSES
The Borrower shall reimburse the Arranger, the Agent and the Security Agent
for all reasonable costs and expenses (including reasonable legal and
notarial fees) together with any VAT incurred by it in connection with:
(A) carrying out all due diligence enquiries and searches;
(B) the negotiation, preparation, execution and translation of each of the
Facility Documents and, if any such party is involved in the
negotiation of any Project Document, the relevant Project Document;
(C) the completion of the transactions contemplated in the Transaction
Documents;
(D) any Syndication (excluding any legal counsel's fees of any transferee
under the Syndication);
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(E) the conduct of any audits;
(F) the appointment of, and ongoing costs of engaging, consultants; and
(G) any amendment or waiver of any of the requirements under this
Agreement requested by the Borrower;
(H) any exercise or attempted exercise of any right, power or remedy under
any Facility Document or any failure to exercise any right, power or
remedy except where that failure is due to the wilful misconduct or
gross negligence of, as the case may be, the Agent or the Security
Agent,
in each case subject to the terms of any agreement then made by the
Borrower and the Agent relating to such costs and expenses.
30.2 PRESERVATION AND ENFORCEMENT OF RIGHTS
The Borrower shall, from time to time on demand from the Agent, the
Lenders, or the Security Agent reimburse the Agent, the Lenders and the
Security Agent respectively for all reasonable costs and expenses
(including legal and notarial fees), together with any VAT incurred, in or
in connection with the preservation or enforcement of any of the rights of
the Agent, the Security Agent or the Lenders under the Transaction
Documents.
30.3 STAMP TAXES
The Borrower shall pay all stamp, registration and other taxes to which any
Facility Document or any judgment given in connection with any Facility
Document is or at any time may be subject and the Borrower shall, from time
to time on demand from the Agent, indemnify the Agent and each Lender
against any liabilities, costs, claims and expenses resulting from any
failure to pay or any delay in paying any tax.
30.4 LENDERS' LIABILITIES FOR COSTS
If the Borrower fails to perform any of its obligations under this Clause
30, each Lender shall, in proportion to its aggregate participation in the
Loans (or, if no Advances have been made, the Available Facilities) for the
time being (or, if the Loans have been repaid in full, immediately prior to
the final repayment), indemnify the Agent (or as the case may be the
Security Agent) against any loss incurred by it as a result of the failure
and the Borrower shall immediately reimburse each Lender for any payment
made by it pursuant to this Clause 30.4.
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PART 11
AGENCY PROVISIONS
31. THE AGENT, THE SECURITY AGENT, THE ARRANGER AND THE LENDERS
31.1 APPOINTMENT OF THE AGENT
Each Lender appoints the Agent and the Security Agent to act as its agent
in connection with the Facility Documents and authorises the Agent and the
Security Agent to exercise all rights, powers, authorities and discretions
specifically delegated to the Agent, or as the case may be the Security
Agent, by the terms of the Facility Documents together with all incidental
rights, powers, authorities and discretions. Neither the Agent nor the
Security Agent shall start any legal action on behalf of any Lender without
such Lender's prior written consent.
31.2 AGENT'S AND SECURITY AGENT'S DISCRETIONS
Each of the Security Agent and the Agent may:
(A) assume, unless it has, in its capacity as agent for the Lenders,
received notice to the contrary from any other party to this
Agreement, that:
(i) any representation made by any of the Relevant Companies and the
Parent Company under any Facility Documents is true;
(ii) no Event of Default or Potential Event of Default has occurred;
(iii) none of the Relevant Companies or the Parent Company is in
breach of or default under its obligations under any Facility
Documents; and
(iv) any right, power, authority or discretion vested under any
Facility Document upon an Instructing Group, the Lenders or any
other person or group of persons has not been exercised;
(B) assume that the Facility Office of each Lender is that identified with
its signature below (or, in the case of a Transferee, at the end of
the Transfer Certificate to which it is a party as Transferee) until
it has received from the Lender a notice designating some other office
of the Lender to replace its Facility Office and act upon any notice
until it is superseded by a further notice;
(C) engage and pay for the advice or services of any lawyers, accountants,
surveyors or other technical or other experts whose advice, expert
opinion (SCHIEDSGUTACHTEN) or services may seem necessary, expedient
or desirable and rely upon any advice so obtained;
(D) rely as to any matters of fact which might reasonably be expected to
be within the knowledge of the Borrower on a certificate signed by or
on behalf of the Borrower;
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(E) rely on any communication or document (including any Invoice received
by it) believed by it to be genuine;
(F) refrain from exercising any right, power or discretion vested in it as
agent under the Facility Documents unless and until instructed by an
Instructing Group as to whether or not the right, power or discretion
is to be exercised and, if it is to be exercised, as to the manner in
which it should be exercised; and
(G) refrain from acting in accordance with any instructions of an
Instructing Group or all the Lenders to begin any legal action or
proceeding arising out of or in connection with any Facility Document
until it has received all the security it may require (whether by way
of payment in advance or otherwise) for all costs, claims, losses,
expenses (including legal fees) and liabilities together with any VAT
which it will or may expend or incur in complying with the
instructions.
31.3 AGENT'S OBLIGATIONS
The Agent shall:
(A) promptly inform each Lender and the Fronting Bank of the contents of
any notice or document received by it in its capacity as Agent from
any of the Relevant Companies and the Parent Company under any
Facility Document to which the same is a party;
(B) promptly notify each Lender and the Fronting Bank of the occurrence of
any Event of Default or any default by any of the Relevant Companies
and the Parent Company in the due performance of or compliance with
its obligations under any Facility Document of which the Agent has
notice from any other party to them;
(C) except as otherwise provided under the Facility Documents, act as
agent under the Facility Documents in accordance with any instructions
given to it by an Instructing Group, which instructions shall be
binding on the Lenders and the Fronting Bank; and
(D) if so instructed by an Instructing Group or all the Lenders, refrain
from exercising any right, power or discretion vested in it as agent
under the Facility Documents.
31.4 EXCLUDED OBLIGATIONS
Despite any other provisions of this Agreement, neither the Agent nor the
Security Agent shall:
(A) be bound to enquire as to:
(i) whether or not any representation made by any of the Relevant
Companies or the Parent Company in connection with any Facility
Document is true;
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(ii) the occurrence or otherwise of any Event of Default or Potential
Event of Default;
(iii) the performance by any of the Relevant Companies or the Parent
Company of its obligations under any Facility Document;
(iv) the accuracy of validity of any Invoice attached to a Notice of
Drawdown pursuant to Clause 7.1 (A); or
(v) any breach by any of the Relevant Companies or the Parent Company
of its obligations under any Facility Document.
(B) be bound to account to any Beneficiary for any sum or the profit
element of any sum received by it for its own account; or
(C) be bound to disclose to any other person any information relating to
any member of the Group if the disclosure would or might in its
opinion constitute a breach of any law or regulation or be otherwise
actionable at the suit of any person; or
(D) be under any obligations other than those for which express provision
is made under the Facility Documents.
31.5 INDEMNIFICATION
Each Lender shall, from time to time on demand by the Agent or the Security
Agent, indemnify the Agent, or as the case may be the Security Agent, in
proportion to its aggregate participation in the Loans (or, if no Advances
have been made, the Available Commitments) at the time of such demand (or,
if the Loans have then been repaid in full, immediately prior to the final
repayment), from and against any and all costs, obligations, damages,
penalties, actions, judgments, suits, claims, losses, expenses (including
legal fees), liabilities or disbursements of any kind or nature whatever
together with any VAT which the Agent (or as the case may be the Security
Agent) may incur, otherwise than by reason of its own gross negligence or
wilful misconduct, in any way relating to or arising out of the Facility
Documents or any action taken or omitted by the Agent (or as the case may
be the Security Agent) under the Facility Documents. Without limiting the
above each Lender agrees to reimburse the Agent and the Security Agent
promptly on demand for its rateable share of any out-of-pocket expenses
(including counsel fees) incurred by the Agent and the Security Agent
respectively in connection with the preparation, execution, delivery,
administration, modification, notarisation, translation, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise)
of, or legal advice in respect of rights or responsibilities under, the
Facility Documents, to the extent that the Agent (or as the case may be the
Security Agent) is not reimbursed for those expenses by the Borrower.
31.6 EXCLUSION OF LIABILITIES
None of the Agent, the Security Agent or the Arranger accepts any
responsibility for the accuracy or completeness of any information supplied
by any member of the Group in
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84
connection with the Facility Documents or for the legality, validity,
effectiveness, adequacy or enforceability of the Facility Documents. None
of the Agent, the Security Agent or the Arranger shall be under any
liability as a result of taking or omitting to take any action in relation
to the Facility Documents (including in relation to any confirmation as to
the satisfaction of conditions precedent to the availability of one or more
Facilities), except in the case of gross negligence or wilful misconduct.
31.7 NO ACTIONS
Each of the Lenders agrees that it will not assert or seek to assert
against any director, officer or employee of the Agent, the Security Agent
or the Arranger any claim it might have against any of them in respect of
the matters referred to in Clause 31.6.
31.8 BUSINESS WITH THE GROUP
The Agent, the Security Agent and the Arranger may accept deposits from,
lend money to and generally engage in any kind of banking or other business
with any member of the Group.
31.9 RESIGNATION AND REMOVAL
Either or both of the Agent and the Security Agent may resign its
appointment under this Agreement at any time by giving not less than thirty
days' prior written notice to that effect to each of the other parties to
this Agreement. Either or both of the Agent and the Security Agent may be
removed from its position under this Agreement by an Instructing Group
giving written notice to that effect to it. The Lenders will consider in
good faith any request for a change of Agent received by them from the
Borrower. Any such request shall state the reasons underlying it. No
resignation or removal shall be effective until a successor for the Agent
(or as the case may be the Security Agent) is appointed in accordance with
the following provisions of this Clause 31.
31.10 SUCCESSOR AGENT
If the Agent or the Security Agent gives notice of its resignation pursuant
to Clause 31.9, any reputable and experienced bank or other financial
institution may be appointed as a successor to the Agent (or as the case
may be the Security Agent) by an Instructing Group (with the Borrower's
agreement) during the period of the notice but, if no such successor is
appointed, the Agent (or as the case may be the Security Agent) may appoint
a successor itself.
31.11 RIGHTS AND OBLIGATIONS
If a successor to either or both of the Agent and the Security Agent is
appointed under the provisions of Clause 31.10:
(A) the retiring agent shall be discharged from any further obligation
under this Agreement but shall remain entitled to the benefit of the
provisions of this Clause 31.11, and
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85
(B) 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 the successor had been a party to this Agreement.
31.12 OWN RESPONSIBILITY
It is understood and agreed by each Lender that it has itself been, and
will continue to be, solely responsible for making its own independent
appraisal of and investigations into the financial condition,
creditworthiness, condition, affairs, status and nature of each member of
the Group and, accordingly, each Lender warrants to the Agent, the Security
Agent and the Arranger that it has not relied on and will not rely on the
Agent, the Security Agent or the Arranger:
(A) to check or enquire on its behalf into the adequacy, accuracy or
completeness of any information provided by any member of the Group in
connection with any Facility Document or the transactions contemplated
by the Facility Documents (whether or not that information has been or
is circulated to any Lender by the Agent, the Security Agent or the
Arranger); or
(B) to assess or keep under review on its behalf the financial condition,
creditworthiness, condition, affairs, status or nature of any member
of the Group.
31.13 AGENCY DIVISION SEPARATE
In acting as agent for the Lenders, the Agent and the Security Agent shall
be regarded as acting through its agency division which shall be treated as
a separate entity from any of its other divisions or departments and,
despite Clause 31.14, any information received by another division or
department of the Agent or the Security Agent may be treated as
confidential and shall not be regarded as having been given to the Agent's
(or as the case may be the Security Agent's) agency division.
31.14 CONFIDENTIAL INFORMATION
Despite any other provision of this Agreement and without prejudice to the
provisions of Clause 31.13, neither the Security Agent nor the Agent shall
as between itself and the Lenders be bound to disclose to any Lender or
other person any information which is supplied by any member of the Group
to the Agent (or as the case may be the Security Agent) in its capacity as
agent for the Lenders and which is identified by the member of the Group,
as the case may be, at the time it is supplied as being confidential
information except that the consent of the relevant member of the Group to
the disclosure shall not be required in relation to any information which
in the opinion of the Agent (or as the case may be the Security Agent)
relates to an Event of Default or Potential Event of Default or in respect
of which the Lenders have given a confidentiality undertaking in a form
satisfactory to the Agent (or as the case may be the Security Agent) and
the relevant member of the Group.
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86
PART 12
ASSIGNMENTS AND TRANSFERS
32. ASSIGNMENTS AND TRANSFERS
32.1 BINDING AGREEMENT
This Agreement shall be binding on and ensure to the benefit of each party
to it and its or any permitted successors, Transferees and assigns.
32.2 NO ASSIGNMENTS AND TRANSFERS BY THE BORROWER
The Borrower shall not be entitled to assign or transfer any of its rights,
benefits or obligations under this Agreement.
32.3 ASSIGNMENTS AND TRANSFERS BY LENDERS
(A) Subject to (B) below, any Lender may with the prior consent of the
Borrower (not to be unreasonably withheld), at any time, assign in
accordance with Clause 32.4 all or any of its rights and benefits
under the Facility Documents as a Lender or transfer in accordance
with Clause 32.5 all or any of its rights, benefits and obligations
under the Facility Documents as a Lender. A transfer or assignment
shall only be permitted if the transferee or assignee is a Qualifying
Bank and the Commitment or Loan which is transferred or assigned is
not less than Euro 5,000,000, and it relates to a pro rata Commitment
or Loan in relation to each of the Tranche A1 Facility, the Tranche A3
Facility, the Tranche B Facility, the Tranche C Facility and the
Tranche D Facility.
(B) Assignments or transfers permitted under the second sentence of
paragraph (A) above by any Lender to any of its Affiliates or which
take place upon or after the occurrence of an Event of Default which
is continuing unremedied and unwaived do not require the consent, at
any time, of the Borrower.
32.4 ASSIGNMENTS BY LENDERS
If any Lender assigns all or any of its rights and benefits under the
Facility Documents in accordance with this Clause 32, then, unless and
until the assignee has agreed with the Agent, the Security Agent and the
other Lenders that it shall be under the same obligations toward each of
them as it would have been under if it had been an original party to this
Agreement as a Lender (in which case the assignee shall become a party to
this Agreement as a "Lender"), the Agent, the Security Agent and the other
Lenders shall not be obliged to recognise the assignee as having the rights
against each of them which it would have had if it had been a party to this
Agreement.
32.5 TRANSFERS BY LENDERS
If any Lender wishes to transfer all or any of its rights, benefits or
obligations under the Facility Documents as a Lender as contemplated in
this Clause 32, the transfer may be effected by the delivery to the Agent
of a duly completed and duly executed Transfer
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87
Certificate in which event, on the Transfer Date specified in the Transfer
Certificate (or any other Business Day endorsed by the Agent on the
Transfer Certificate falling on or after) the date of delivery of the
Transfer Certificate to the Agent:
(A) to the extent that in the Transfer Certificate the Lender seeks to
transfer its rights, benefits and obligations under the Facility
Documents as a Lender, the Borrower and the Lender shall be released
from further obligations towards one another under the Facility
Documents and their respective rights against one another shall be
cancelled (those rights and obligations are referred to in this Clause
32 as "DISCHARGED RIGHTS AND OBLIGATIONS");
(B) the Borrower and the Transferee shall only assume obligations towards
one another or acquire rights against one another which differ from
discharged rights and obligations to the extent that they agree to do
so;
(C) the Agent, the Security Agent, the Transferee and the other Lenders
shall acquire the same rights and benefits and assume the same
obligations between themselves as they would have acquired and assumed
had the Transferee been an original party to this Agreement as a
Lender with the rights, benefits and obligations acquired or assumed
by it as a result of the transfer; and
(D) the Transferee shall become a party to this Agreement as a "Lender".
Any transfer after the Syndication Date shall be subject to a transfer fee
of Euro 3,000 (three thousand Euro) which shall be paid by the Transferee
to the Agent at the same time as the relative Transfer Certificate is
delivered to the Agent.
32.6 NO INCREASED PAYMENTS
If, at any time, any Lender assigns any of its rights and benefits
hereunder or transfers all or any part of its rights, benefits and
obligations hereunder at the time of such assignment or transfer there
arises an obligation on the part of the Borrower under Clause 14.1 or 16.1
to pay such Lender or its assignee or transferee any amount in excess of
the amount it would have then been obliged to pay but for such assignment
or transfer, then the Borrower will not be obliged to pay the amount of
such excess.
33. DISCLOSURE OF INFORMATION
Each of the Beneficiaries agrees to keep all information made available to
it (either before or after the date of this Agreement) by or on behalf of
the Borrower and any Affiliates, agents or legal or financial advisers of
it confidential and not to communicate or allow communication of that
information to any third party without the prior written consent of the
person, concerned, unless:
(A) the information is disclosed in connection with any Syndication or to
potential participants in the Facility Documents and the recipient of
the information agrees to keep the information confidential on the
same basis as this Clause 33;
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88
(B) disclosure is required by law or regulation or order of a competent
court or authority;
(C) the information concerned has otherwise entered the public domain
without default on the part of any Beneficiary; or
(D) the information is being passed to professional advisers and the
recipient of the information is bound by rules of professional conduct
to keep the information confidential on the same basis as this Clause
33.
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89
PART 13
MISCELLANEOUS
34. CALCULATIONS AND EVIDENCE OF DEBT
34.1 BASIS OF ACCRUAL
Interest and commitment fees shall accrue from day to day and shall be
calculated on the basis of a year of 360 days (or, in any case where market
practice differs, in accordance with market practice) and the actual number
of days elapsed.
34.2 QUOTATIONS
If on any occasion a Reference Bank or Lender fails to supply the Agent
with a quotation as required under the provisions of this Agreement, the
rate for which the quotation was required shall be determined from those
quotations which are supplied to the Agent.
34.3 EVIDENCE OF DEBT
Each Lender shall maintain in accordance with its usual practice accounts
evidencing the amounts from time to time lent by and owing to it under the
Facility Documents.
34.4 CONTROL ACCOUNTS
(A) The Agent shall maintain on its books a control account or accounts in
which shall be recorded:
(i) the amount of each Advance made or arising under this Agreement
and each Lender's share in it,
(ii) the amount of all principal, interest and other sums due or to
become due from the Borrower to any of the Lenders under the
Facility Documents and each Lender's share in those sums; and
(iii) the amount of any sum received or recovered by the Agent under
the Facility Documents and each Lender's share in those sums.
(B) The parties expressly agree that the amount due at any time by the
Borrower to any Lender will be the amount specified in a certificate
issued by the Agent as representative of any Lender or by any Lender
with respect to the amount owed to the Lender and reflecting the
balance of the control accounts referred to in paragraph (A) above.
34.5 PRIMA FACIE EVIDENCE
In any legal action or proceeding arising out of or in connection with this
Agreement, the entries made in the accounts maintained pursuant to Clause
34.4 shall be PRIMA FACIE evidence of the existence and amounts of the
specified obligations of the Borrower.
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90
34.6 CERTIFICATES OF LENDERS
A certificate of a Lender as to:
(a) the amount by which a sum payable to it under this Agreement is to be
increased under Clause 16.1; or
(b) the amount for the time being required to indemnify it against any
cost, payment or liability as mentioned in Clause 14.2 or Clause 16.1,
shall, in the absence of manifest error, be PRIMA FACIE evidence of the
existence and amounts of the specified obligations of the Borrower.
34.7 AGENT'S CERTIFICATES
A certificate of the Agent as to the amount at any time due from the
Borrower under this Agreement or the amount which, but for any of the
obligations of the Borrower under this Agreement being or becoming void,
voidable, unenforceable or ineffective, at any time would have been due
from the Borrower under this Agreement shall, in the absence of manifest
error, be conclusive for the purposes of Clause 23.
35. REMEDIES AND WAIVERS, PARTIAL INVALIDITY
35.1 REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of the
Agent, the Security Agent or the Lenders, any right or remedy under the
Facility Documents shall operate as a waiver, nor shall any single or
partial exercise of any right or remedy prevent any further or other
exercise of the right or remedy or the exercise of any other right or
remedy. The rights and remedies provided under the Facility Documents are
cumulative and not exclusive of any rights or remedies provided by law.
35.2 PARTIAL INVALIDITY
If, at any time, any provision of any Facility Document is or becomes
illegal, invalid or unenforceable in any respect under the law of any
jurisdiction, neither the legality, validity or enforceability of the
remaining provisions of the relevant Facility Document nor the legality,
validity or enforceability of the provision under the law of any other
jurisdiction shall in any way be affected or impaired as a result.
36. NOTICES
36.1 COMMUNICATIONS IN WRITING
Each communication to be made under a Facility Document shall be made in
writing and, unless otherwise stated, shall be made by fax, telex or
letter.
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91
36.2 DELIVERY
Any communication or document to be made or delivered by one person to
another pursuant to a Facility Document shall (unless that other person has
by 15 days' written notice to the Agent specified another address) be made
or delivered to that other person at the address identified with its
signature below (or, in the case of a Transferee, at the end of the
Transfer Certificate to which it is a party as Transferee) and shall be
deemed to have been made or delivered when despatched (in the case of any
communication made by fax or telex) or (in the case of any communication
made by letter) when left at that address or (as the case may be) 10 days
after being deposited in the post postage prepaid in an envelope addressed
to it at that address Provided that any communication or document to be
made or delivered to the Agent shall be effective only when received by the
Agent and then only if the same is expressly marked for the attention of
the department or officer identified with the Agent's signature below (or
any other department or officer the Agent shall from time to time specify
for this purpose).
36.3 ENGLISH LANGUAGE
Each communication and document made or delivered by one party to another
pursuant to this Agreement shall be in the English language or accompanied
by a translation into English certified (by an officer of the person making
or delivering the same) as being a true and accurate translation.
37. AMENDMENTS
(A) The Agent, if it has the prior written consent of an Instructing Group
and the Borrower, may from time to time agree in writing to amend this
Agreement or to waive, prospectively or retrospectively, any of the
requirements of this Agreement and any amendments or waivers so agreed
shall be binding on all the Lenders and the Borrower Provided that no
waiver or amendment shall subject any party to this Agreement to any
new or additional obligations without the consent of that party. The
Agent may not grant any waiver or agree any amendment affecting any of
the following unless authorised by all the Lenders:
(i) the amount of any Facility;
(ii) the amount or method of calculation of interest, commitment,
commission or any fee payable by the Borrower;
(iii) the manner, currency or timing of repayment of the Loan or of
the payment of any other amount;
(iv) the end of the period during which any Facility is available; (v)
the definition of "Instructing Group";
(vi) the obligations of the Lenders;
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92
(vii) any security (under the Security Documents or otherwise) for the
obligations of the Borrower under this Agreement; or
(viii) any requirement (including the one in this sub-clause) that all
the Lenders or a certain proportion of them consent to a matter
or deliver a notice.
(B) The Borrower undertakes to do all things necessary to ensure that all
amendments are duly notarised and the Lenders and the Security Agent
authorise the Agent to execute on their behalf any amendment documents
if the Agent is permitted to agree to the amendments reflected in the
relevant document under this Clause 37.
(C) Notwithstanding any other provisions of this Agreement, the Agent
shall not be obliged to agree to any amendment or waiver if it would:
(i) amend or waive any provision of this Clause 37 or Part 11 (Agency
Provisions); or
(ii) otherwise amend or waive any of the Agent's rights under this
Agreement or subject the Agent to any additional obligations
under this Agreement.
38. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
The parties to this Agreement do not intend that any term of this Agreement
should be enforceable, by virtue of the Contracts (Rights of Third Parties)
Act 1999, by any person who is not a party to this Agreement.
<PAGE>
93
PART 14
LAW AND JURISDICTION
39. LAW AND LANGUAGE
(A) This Agreement shall be governed by, and shall be construed in
accordance with, the law of England and Wales.
(B) The ruling and operative language of this Agreement will be the
English language.
40. JURISDICTION
40.1 ENGLISH COURTS
Each of the parties to this Agreement irrevocably agrees for the benefit of
each of the Agent, the Security Agent and the Lenders that the courts of
England shall have jurisdiction to hear and determine any suit, action or
proceedings, and to settle any disputes, which may arise out of or in
connection with this Agreement (respectively "PROCEEDINGS" and "DISPUTES")
and, for those purposes, irrevocably submits to the jurisdiction of the
courts of England.
40.2 APPROPRIATE FORUM
The Borrower irrevocably waives any objection which it might have at any
time to the courts referred to in Clause 40.1 being nominated as the forum
to hear and determine any Proceedings and to settle any Disputes and agrees
not to claim that any such court is not a convenient or appropriate forum.
40.3 SERVICE OF PROCESS
The Borrower agrees that the process by which any Proceedings are begun may
be served on it by being delivered in connection with any Proceedings in
England, to FirstMark Communications at 4th Floor, 1 James Street, London
W1M 5HY or other its registered office for the time being. If the
appointment in this Clause 40.3 ceases to be effective in respect of the
Borrower, the Borrower shall immediately appoint a further person in
England to accept service of process on its behalf in England and, failing
appointment within 15 Business Days, the Agent shall be entitled to appoint
any person for that purpose by notice to the Borrower. Nothing contained in
this Clause 36.3 shall affect the right to serve process in any other
manner permitted by law.
40.4 NON-EXCLUSIVE SUBMISSIONS
The submission to the jurisdiction of the courts referred to in Clause 40.1
shall not (and shall not be construed so as to) limit the right of the
Agent, the Security Agent or any Lender to take Proceedings against the
Borrower in any other court of competent jurisdiction nor shall the taking
of Proceedings in any one or more jurisdictions preclude the taking of
Proceedings in any other jurisdiction (whether concurrently or not) if and
to the extent permitted by applicable law.
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94
40.5 CONSENT TO ENFORCEMENT
The Borrower consents generally in respect of any Proceedings to the giving
of any relief or the issue of any process in connection with the
Proceedings including the making, enforcement or execution against any
property whatsoever (irrespective of its use or intended use) of any order
or judgment which may be made or given in the Proceedings.
40.6 WAIVER OF IMMUNITY
To the extent that the Borrower may in any jurisdiction claim for itself or
its assets immunity from suit, execution, attachment (whether in aid of
execution, before judgment or otherwise) or other legal process and to the
extent that in any jurisdiction immunity there may be attributed to itself
or its assets (whether or not claimed), the Borrower irrevocably agrees not
to claim and irrevocably waives the immunity to the full extent permitted
by the laws of the relevant jurisdiction.
IN WITNESS of which this document has been executed as an agreement on the date
which first appears on page 1 above.
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95
SCHEDULE 1:
LENDERS AND COMMITMENTS
<TABLE>
<CAPTION>
------------------------------------------------------------------------------------------------------
LENDERS COMMITMENTS FOR EACH FACILITY
A1 A2 A3 B C D
------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Deutsche Bank EURO 75,000,000 Euro Euro Euro 85,000,000 Euro Euro
Luxembourg S.A. 25,000,000 35,000,000 195,000,000 65,000,000
------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
96
SCHEDULE 2
FORM OF TRANSFER CERTIFICATE
To:
TRANSFER CERTIFICATE
relating to the Euro 480 million multi-tranche senior secured facility agreement
(as from time to time amended, varied, novated or supplemented, the "FACILITY
AGREEMENT") dated L May, 2000 between FIRSTMARK COMMUNICATIONS DEUTSCHLAND
HOLDINGS GmbH as borrower, FirstMark Communications Deutschland GmbH as
guarantor, Deutsche Bank AG as arranger and fronting bank, Deutsche Bank
Luxembourg S.A. as facility agent, Deutsche Bank Luxembourg S.A. as security
agent and the lenders named therein.
1. Terms defined in the Facility Agreement shall, subject to any contrary
indication, have the same meanings in this Transfer Certificate. The terms
Lender, Transferee, Lender's Participation and Amount Transferred are
defined in the schedule to this Transfer Certificate.
2. The Lender confirms that the Lender's Participation is an accurate summary
of its participation in each of the Facilities and requests the Transferee
to accept and procure the transfer to the Transferee of a percentage of the
Lender's Participation (equal to the percentage that the Amount Transferred
is of the aggregate of the component amounts (as set out in the schedule to
this Transfer Certificate) of the Lender's Participation) by
counter-signing and delivering this Transfer Certificate to the Agent at
its address for the service of notices specified in the Facility Agreement.
3. The Transferee requests the Agent to accept this Transfer Certificate as
being delivered to the Agent pursuant to and for the purposes of Clause 32
of the Facility Agreement so as to take effect in accordance with the terms
of the Facility Agreement on the Transfer Date or on any later date
determined in accordance with the terms of the Facility Agreement.
4. The Transferee confirms that it has received a copy of the Facility
Agreement together with all other information it has required in connection
with this transaction and that it has not relied and will not rely on the
Lender to check or enquire on its behalf into the legality, validity,
effectiveness, adequacy, accuracy or completeness of that information and
further agrees that it has not relied and will not rely on the Lender to
assess or keep under review on its behalf the financial condition,
creditworthiness, condition, affairs, status or nature of the Borrower. The
Transferee confirms that it is, on the date of this Transfer Certificate, a
Qualifying Bank.
5. The Transferee undertakes with the Lender and each of the other parties to
the Facility Agreement that it will perform in accordance with their terms
all those obligations which by the terms of the Facility Agreement will be
assumed by it after delivery of this Transfer Certificate to the Agent and
satisfaction of the conditions (if any) subject to which this Transfer
Certificate is expressed to take effect.
<PAGE>
97
6. The Lender makes no representation or warranty and assumes no
responsibility with respect to the legality, validity, effectiveness,
adequacy or enforceability of the Facility Agreement or any document
relating to the Facility Agreement and assumes no responsibility for the
financial condition of the Borrower or for the performance and observance
by the Borrower of any of its obligations under the Facility Agreement or
any document relating to the Facility Agreement and any and all conditions
and warranties, whether express or implied by law or otherwise, are
excluded.
7. The Lender gives notice that nothing in this Transfer Certificate or in the
Facility Agreement (or any document relating to the Facility Agreement)
shall oblige the Lender to:
(a) accept a re-transfer from the Transferee of the whole or any part of
its rights, benefits or obligations under the Facility Agreement
transferred pursuant to this Transfer Certificate; or
(b) support any losses directly or indirectly sustained or incurred by the
Transferee for any reason whatsoever including the non-performance by
the Borrower or any other party to the Facility Agreement (or any
document relating to the Facility Agreement) of its obligations under
the Facility Agreement. The Transferee acknowledges the absence of any
obligation referred to in such paragraph (a) or (b) above.
8. This Transfer Certificate and the rights, benefits and obligations of the
parties under it shall be governed by and construed in accordance with
English law.
THE SCHEDULE
1. Lender:
2. Transferee:
3. Transfer Date:
4. Lender's Participation:
Lender's Available Commitment Lender's Portion of the Loan
5. Amount Transferred: Advances
[Transferor Lender] [Transferee Lender]
By: By:
Date: Date:
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98
ADMINISTRATIVE DETAILS OF TRANSFEREE
Address:
Contact Name:
Account for Payments:
[Telex:]
Fax:
Telephone:
<PAGE>
99
SCHEDULE 3:
CONDITION PRECEDENT DOCUMENTS
1. A copy, certified a true copy by a duly authorised officer of each Relevant
Company and the Parent Company, of its by-laws or other constitutional
documents (together with any amendments to them), and evidence that the
same are in full force and effect.
2. A copy, certified a true copy by a duly authorised officer of each Relevant
Company and the Parent Company of a resolution of its Board of Directors:
(a) approving or ratifying the execution, delivery and performance of each
of the Facility Documents to which it is a party and their terms and
conditions; and
(b) authorising a named person or persons to sign each of the Facility
Documents to which it is a party and any communications, certificates
or other documents to be delivered by it pursuant to the Facility
Documents to which it is a party, and certifying that those
resolutions are in full force and effect.
3. A certificate from a duly authorised officer of the Borrower certifying
that each person that purported to sign any Project Document on behalf of
any Relevant Company or the Parent Company was duly authorised to sign the
relevant Project Document on its behalf.
4. Certified copies of each power of attorney under which any Transaction
Documents were signed on behalf of any party thereto.
5. A certificate of a duly authorised officer of each of the Relevant
Companies and the Parent Company setting out the names and signatures of
the persons authorised to sign, on its behalf, each Facility Document to
which it is a party and any communications, certificates or other documents
to be delivered by it pursuant to each Facility Document to which it is a
party.
6. Evidence that the constitutional documents of each Relevant Company have
been amended to the satisfaction of the Lenders.
7. The Original Business Plan in form and substance acceptable to the Agent.
8. Duly executed counterparts of each Transaction Document, save that the
provision of duly executed counterparts of the PMP Contract shall only be
required in respect of the availability of the Tranche A1 Facility and the
Tranche A2 Facility and the provision of duly executed counterparts of the
Core Network Contract shall only be required in respect of the availability
of the Tranche A3 Facility.
9. (A) Evidence that notice of each assignment of interests or rights under
the Security Documents that must be given in order to perfect the
relevant assignment has been given.
<PAGE>
100
(B) Certificates certifying that each pledge of shares granted under the
Security Documents has been duly registered in the books of each
Relevant Company as first ranking security free from prior
encumbrances and third party rights except for any Permitted
Encumbrances.
10. Payment of the fees set out in Clause 29 (to the extent they are payable on
or before the proposed drawing) and of all costs and expenses of the Agent
referred to in Clause 30.1 and notified to the Borrower by the Agent.
11. Delivery to the Agent of the letter envisaged by the definition of
"Frequency Allocations", in form and substance satisfactory to the Lenders,
together with evidence satisfactory to the Agent that the Licences and the
Frequency Allocations are in full force and effect and that there are no
unpaid amounts outstanding in respect of them.
13. A certificate from the Relevant Companies' insurance broker dated not more
than 5 days before the date of this Agreement confirming that the Borrower
is complying with the insurances covenant in Clause 21.1(F).
14. A legal opinion addressed to the Lenders in form and substance reasonably
satisfactory to the Agent from:
(A) Hengeler Mueller Weitzel Wirtz as to German law; and
(B) Slaughter and May as to English law.
15. A legal opinion addressed to the Lenders in form and substance reasonably
satisfactory to the Agent from Arendt & Medernach in respect of the Parent
Company and the legality, due execution and enforceability of its
obligations under the Facility Documents to which it is a party.
16. An opinion addressed to the Lenders in form and substance reasonably
satisfactory to the Agent from Arthur Andersen, tax and accounting adviser
to the Borrower, as to (a) the accounting and tax effects of borrowings
under this Agreement by the Borrower and (b) the accounting and tax
effected of the structure and respective roles of the Relevant Companies as
specified in Part 2 of Schedule 6.
17. The Original Financial Statements.
18. Satisfactory reports from the following independent experts in relation to
the following aspects of the Business:
(A) Analysis as to the market-related aspects of the Business Plan; and
(B) Booz Allen as to the financial aspects of the Business Plan.
19. Evidence that each Trademark has been registered in the relevant
territories referred to in respect of such Trademark in Schedule 12.
<PAGE>
101
20. Repayment of the existing loan from the Parent Company to FirstMark
Deutschland, together with the simultaneous application of the repayment
proceeds in Contributed Equity of an equal amount.
21. Evidence of termination of the Managing Director Agreement dated 12th March
1999 between the Borrower and Ernst Folgmann.
22. Evidence of irrevocable release of all security in favour of ABN Amro over
the shares in FirstMark Deutschland.
23. Confirmation from the Lenders (acting reasonably) that the Project
Documents specified in paragraphs 3,5,6 and 7 of Schedule 8 are in form and
substance satisfactory to them.
<PAGE>
102
SCHEDULE 4:
NOTICE OF DRAWDOWN
From: Firstmark Communications Deutschland Holdings GmbH
To: [Agent] [OR, IN RELATION TO TRANCHE D UTILISATION, THE FRONTING BANK]
Dated:
Dear Sirs,
1. We refer to the Euro 480 million multi-tranche senior secured facility
agreement (as from time to time amended, varied, novated or supplemented,
the "FACILITY AGREEMENT") dated May, 2000 between FIRSTMARK
COMMUNICATIONS DEUTSCHLAND HOLDINGS GmbH as borrower, FirstMark
Communications Deutschland GmbH as guarantor, Deutsche Bank AG as arranger
and fronting bank, Deutsche Bank Luxembourg S.A. as facility agent,
Deutsche Bank Luxembourg S.A. as security agent, and the lenders named
therein. Terms defined in the Facility Agreement shall have the same
meaning in this notice.
2. We give you notice that, pursuant to the Facility Agreement and on [DATE OF
PROPOSED ADVANCE], we wish to borrow an Advance as follows:
- Amount: Euro
- Tranche:
- Purpose: [SPECIFY PURPOSE OF ADVANCE]
- Interest Period: [one/two/three/six] months.
3. We confirm that, at the date of this notice, the representations set out in
Clause 19 of the Facility Agreement are true and correct and no Event of
Default or Potential Event of Default has occurred.
4. [We attach a copy of an Invoice issued by [SPECIFY SUPPLIER]. Please pay
the proceeds of such Advance on the Drawdown Date to [SUPPLIER] in payment
of that invoice 1 /Please pay the above Advance on the Drawdown Date to
account number [ ] (which we confirm is a Pledged Account) with [ ] bank in
favour of ourselves].
5. [We wish the Advance to be made by way of a Fronting [Advance/Guarantee](2)
6. Annualised Revenue as shown in the latest financial statements is [ ](3).
----------
(1) In case of Tranche A advances, and any other Advance made to fund payments
under a Supply Contract, the Advance must be paid in accordance with the
Invoice pursuant to Clause 7.1(A).
(2) Fronting Advance or Fronting Guarantee only.
(3) Tranche B Advance only.
<PAGE>
103
7. Annualised EBITDA as shown in the latest financial statements is [ ](4).
8. Total Indebtedness less the Tranche A Loan on the date of this Notice of
Drawdown is [ ](5).
9. [IN RELATION TO FRONTING GUARANTEES: PROVIDE INFORMATION SPECIFIED IN
CLAUSE 6.6.]
Yours faithfully
__________________________________________
for and on behalf of
FIRSTMARK COMMUNICATIONS
DEUTSCHLAND HOLDINGS GmbH
----------
(4) Tranche C Advance only.
(5) Tranche C Advance only.
<PAGE>
104
SCHEDULE 5:
PART 1
FORM OF COMPLIANCE CERTIFICATE
To: Deutsche Bank Luxembourg S.A. as Agent
From: FIRSTMARK COMMUNICATIONS DEUTSCHLAND HOLDINGS GmbH
Dated:
Dear Sirs
Euro 480 MULTI-TRANCHE FACILITY AGREEMENT
DATED MAY, 2000 (THE "FACILITY AGREEMENT")
1. We refer to the Facility Agreement. This is a Compliance Certificate.
2. We confirm that: [INSERT DETAILS OF COVENANTS TO BE CERTIFIED]
3. [We confirm that no Default is continuing unremedied or unwaived.]*
Signed: ______________________ ________________________
Director Director
of of
FIRSTMARK COMMUNICATIONS FIRSTMARK COMMUNICATIONS
DEUTSCHLAND HOLDINGS GmbH DEUTSCHLAND HOLDINGS GmbH
----------
* If this statement cannot be made, the certificate should identify any
Default that is continuing and the steps, if any, being taken to remedy it.
<PAGE>
105
PART 2
FORM OF AUDITOR'S COMPLIANCE CERTIFICATE
FIRSTMARK COMMUNICATIONS DEUTSCHLAND HOLDINGS GmbH
EURO 480 MILLION MULTI-TRANCHE SENIOR FACILITY AGREEMENT
DATED [ ], 2000 (THE "AGREEMENT")
To: [AGENT] OF [ADDRESS]
Date [ ], 2000
Dear Sirs,
This certificate is delivered to you for the purposes of Clause 20.4 of the
Agreement.
1. Expressions used in this certificate and defined in the Agreement shall
have the meanings given to them in the Agreement.
2. We hereby confirm that, on the Ratio Calculation Date falling on the last
day of the Borrower's financial year ending [ ] (the "Relevant Ratio
Calculation Date"):
(A) Total Indebtedness on the Relevant Ratio Calculation Date was [ ];
(B) Annualised EBITDA in respect of the six month period expiring on the
Relevant Ratio Calculation Date was [ ];
(C) The Ratio of (A) to (B) was [ ];
(D) EBITDA in respect of the six month period expiring upon the Relevant
Ratio Calculation Date was [ ];
(E) The Interest Expense in respect of the six month period expiring upon
the Relevant Ratio Calculation Date was [ ];
(F) The ratio of (D) to (E) was [ ];
(G) EBITDA of the Borrower in respect of the six month period expiring
upon the Relevant Ratio Calculation Date was [ ];
(H) Debt Service in respect of the six month period expiring upon the
Relevant Ratio Calculation Date was [ ];
(I) The ratio of (G) to (H) was [ ];
(J) Annualised Revenue on the Relevant Ratio Calculation Date was [ ];
<PAGE>
106
(K) Annualised EBITDA on the Relevant Ratio Calculation Date was [ ];
(L) Contributed Equity on the Relevant Ratio Calculation Date was [ ];
(M) The ratio of (A) to (L) was [ ].
Yours faithfully,
..............................
[Auditor]
<PAGE>
107
SCHEDULE 6:
CORPORATE STRUCTURE CHART
PART 1
------------------------
FirstMark Communications
Europe S.A.
------------------------
|
|
|
------------------- | 100% shareholding
| |
100% | |
shareholding | |
| -------------------------
| FirstMark Communications
------------------- Deutschland Holdings GmbH
Lambdanet -------------------------
Communications GmbH |
------------------- |
| 100% shareholding
|
|
------------------------
FirstMark Communications
Deutschland GmbH
------------------------
<PAGE>
108
<TABLE>
<CAPTION>
--------------------------------------------------------------------------------
Group Member Percentage of Type of Share Jurisdiction of
shareholder voting incorporation
rights
--------------------------------------------------------------------------------
<S> <C> <C> <C>
FirstMark (1) 83.325% of Common shares Luxembourg
Communications shareholder voting
Europe S.A. rights in Lambdanet
Communications
GmbH
(2) 100% of Common shares
shareholder voting
rights in FirstMark
Communications
Deutschland Holdings
GmbH
--------------------------------------------------------------------------------
FirstMark 100% of shareholder Common shares Germany
Communications voting rights in
Deutschland FirstMark
Holdings GmbH Communications
Deutschland GmbH
--------------------------------------------------------------------------------
FirstMark N/A N/A Germany
Communications
Deutschland GmbH
--------------------------------------------------------------------------------
Lambdanet N/A N/A Germany
Communications
GmbH
--------------------------------------------------------------------------------
</TABLE>
<PAGE>
109
PART 2
[graphic]
<PAGE>
110
SCHEDULE 7:
SECURITY DOCUMENTS
1. Charge in Agreed Form over all shares in the Borrower.
2. Charge in Agreed Form over all shares in FirstMark Deutschland.
3. Assignment in Agreed Form of rights of FirstMark Deutschland under
specified contracts and in relation to receivables, including a charge over
bank accounts of FirstMark Deutschland.
4. Assignment in Agreed Form of rights of the Borrower under specified
contracts and in relation to receivables, including a charge over bank
accounts of the Borrower.
5. Intercreditor Agreement in Agreed Form.
<PAGE>
111
SCHEDULE 8:
PROJECT DOCUMENTS
1. Service Level Agreement in Agreed Form between FirstMark Communications
Deutschland Holdings GmbH and FirstMark Deutschland GmbH
2. Service Level Agreement in Agreed Form between FirstMark Deutschland GmbH
and Lambdanet GmbH
3. PMP Contract
4. Core Network Contract
5. Interconnection Agreement dated on or around 30th March, 2000 between
FirstMark Deutschland and Deutsche Telekom AG or any replacement for such
Agreement with a counterparty and on terms which are no worse financially
and commercially than the terms of such Agreement
6. Agreement dated on or around 17th April, 2000 between FirstMark Deutschland
and Deutsche Telekom AG stating the terms on which FirstMark Deutschland is
able to lease managed bandwidth from Deutsche Telekom AG
7. Interconnection Agreement dated on or around 17th March, 2000 between
FirstMark Deutschland GmbH and MCI Worldcom relating to the internet in
Germany, or any replacement for such Agreement with a counterparty and on
terms which are no worse financially and commercially than the terms of
such Agreement
8. The Licences
9. The Frequency Allocations
<PAGE>
112
SCHEDULE 9:
RATIOS
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------
RATIO MINIMUM MINIMUM TOTAL EBITDA TO EBITDA TO
CALCULATION ANNUALISED ANNUALISED INDEBTEDNESS DEBT INTEREST
DATE (END OF REVENUE EBITDA TO ANNUALISED SERVICE EXPENSE
QUARTER IN EBITDA
EACH CASE)
---------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Q1 2000 - - n/a n/a n/a
Q2 2000 - - n/a n/a n/a
Q3 2000 - - n/a n/a n/a
Q4 2000 - - n/a n/a n/a
Q1 2001 7,102,739 (60,919,164) n/a n/a n/a
Q2 2001 9,680,146 (63,115,579) n/a n/a n/a
Q3 2001 14,014,207 (56,510,265) n/a n/a n/a
Q4 2001 20,209,500 (56,412,644) n/a n/a n/a
Q1 2002 30,588,965 (52,733,775) n/a n/a n/a
Q2 2002 39,074,426 (52,729,254) n/a n/a n/a
Q3 2002 50,024,050 (47,053,002) n/a n/a n/a
Q4 2002 63,691,520 (35,442,126) n/a n/a n/a
Q1 2003 90,635,081 (18,294,276) n/a n/a n/a
Q2 2003 99,475,516 (4,856,568) n/a n/a n/a
Q3 2003 109,450,182 5,445,030 n/a n/a n/a
Q4 2003 120,479,822 15,123,480 12.32 n/a 0.93
Q1 2004 155,382,440 31,371,785 6.16 n/a 1.86
Q2 2004 160,550,670 42,999,911 4.64 n/a 2.70
Q3 2004 165,886,659 46,253,388 4.53 n/a 3.07
Q4 2004 171,396,858 53,325,386 4.11 n/a 3.39
Q1 2005 189,614,185 65,006,707 3.53 n/a 4.00
Q2 2005 190,734,588 71,056,681 3.32 1.06 4.00
Q3 2005 191,868,996 71,820,010 3.00 1.15 4.00
Q4 2005 193,010,406 76,919,751 3.00 1.25 4.00
Q1 2006 212,041,228 84,627,025 3.00 1.39 4.00
Q2 2006 213,613,147 87,462,558 3.00 1.46 4.00
Q3 2006 214,574,612 88,489,584 3.00 1.49 4.00
Q4 2006 215,551,339 94,350,837 3.00 1.50 4.00
Q1 2007 235,937,690 102,562,356 3.00 1.50 4.00
Q2 2007 237,333,623 104,881,406 3.00 1.50 4.00
Q3 2007 238,746,175 105,799,017 3.00 1.50 4.00
Q4 2007 240,167,036 112,675,099 3.00 1.50 4.00
Q1 2008 258,730,117 119,933,692 3.00 1.50 4.00
Q2 2008 260,665,643 120,560,027 3.00 1.50 4.00
Q3 2008 261,846,492 121,707,150 3.00 1.50 4.00
Q4 2008 263,027,340 129,409,024 3.00 1.50 4.00
Q1 2009 263,622,204 129,845,770 3.00 1.50 4.00
Q2 2009 263,622,204 122,246,839 3.00 1.50 4.00
Q3 2009 263,622,204 122,229,431 3.00 1.50 4.00
<PAGE>
113
Q4 2009 263,622,204 129,902,899 3.00 1.50 4.00
Q1 2010 263,622,204 129,885,491 3.00 1.50 4.00
Q2 2010 263,622,204 121,694,455 3.00 1.50 4.00
Q3 2010 263,622,204 121,677,047 3.00 1.50 4.00
Q4 2010 263,622,204 129,833,266 3.00 1.50 4.00
---------------------------------------------------------------------------------------
</TABLE>
<PAGE>
114
SCHEDULE 11
TRADEMARKS
<TABLE>
<CAPTION>
--------------------------------------------------------------------------------
TRADEMARK OWNER CLASS OF REGISTRATION TERRITORIES
--------------------------------------------------------------------------------
<S> <C> <C> <C>
FirstMark The Parent Company 9, 38, 42 (note: currently in Germany
opposition until 31st June,
2000)
--------------------------------------------------------------------------------
</TABLE>
<PAGE>
115
SCHEDULE 12
MANDATORY COST FORMULA
The Mandatory Cost is an addition to the interest rate to compensate Lenders for
the cost of compliance with (a) the requirements of the Bank of England and/or
the Financial Services Authority (or, in either case, any other authority which
replaces all or any of its functions) or (b) the requirements of the European
Central Bank.
On the first day of each Interest Period (or as soon as possible thereafter) the
Agent shall calculate, as a percentage rate, a rate (the "Additional Cost Rate")
for each Lender, in accordance with the paragraphs set out below. The Mandatory
Cost will be calculated by the Agent as a weighted average of the Lenders'
Additional Cost Rates (weighted in proportion to the percentage participation of
each Lender in the relevant Loan) and will be expressed as a percentage rate per
annum.
The Additional Cost Rate for any Lender lending from a Facility Office in a
Participating Member State will be the percentage notified by that Lender to the
Agent as the cost of complying with the minimum reserve requirements of the
European Central Bank.
The Additional Cost Rate for any Lender lending from a Facility Office in the
United Kingdom will be calculated by the Agent as follows:
E X 0.01
-------- per cent. per annum
300
Where E is the rate of charge payable by that Lender to the Financial
Services Authority pursuant to the Fees Regulations (but, for this purpose,
ignoring any minimum fee required pursuant to the Fees Regulations) and
expressed in pounds per (pound)1,000,000 of the Fee Base of that Lender.
For the purposes of this Schedule:
"Fees Regulations" means the Banking Supervision (Fees) Regulations 2000 or such
other law or regulation as may be in force from time to time in respect of the
payment of fees for banking supervision; and
"Fee Base" has the meaning given to it, and will be calculated in accordance
with, the Fees Regulations.
Each Lender shall supply any information required by the Agent for the purpose
of calculating its Additional Cost Rate. In particular, but without limitation,
each Lender shall supply the following information in writing on or prior to the
date on which it becomes a Lender:
its jurisdiction of incorporation and the jurisdiction of its Facility Office;
and
any other information that the Agent may reasonably require for such purpose.
Each Lender shall promptly notify the Agent in writing of any change to the
information provided by it pursuant to this paragraph.
<PAGE>
116
The percentages or rates of charge of each Lender for the purpose of E above
shall be determined by the Agent based upon the information supplied to it
pursuant to the preceding paragraph and on the assumption that, unless a Lender
notifies the Agent to the contrary, each Lender's obligations in relation to the
Fees Regulations are the same as those of a typical bank from its jurisdiction
of incorporation with a Facility Office in the same jurisdiction as its Facility
Office.
The Agent shall have no liability to any person if such determination results in
an Additional Cost Rate which over or under compensates any Lender and shall be
entitled to assume that the information provided by any Lender pursuant to the
above paragraphs is true and correct in all respects.
The Agent shall distribute the additional amounts received as a result of the
Mandatory Cost to the Lenders on the basis of the Additional Cost Rate for each
Lender based on the information provided by each Lender pursuant to the above
paragraphs.
Any determination by the Agent pursuant to this Schedule in relation to a
formula, the Mandatory Cost, an Additional Cost Rate or any amount payable to a
Lender shall, in the absence of manifest error, be conclusive and binding on all
Parties.
The Agent may from time to time, after consultation with the Borrower and the
Lenders, determine and notify to all Parties any amendments which are required
to be made to this Schedule in order to comply with any change in law,
regulation or any requirements from time to time imposed by the Bank of England,
the Financial Services Authority or the European Central Bank (or, in any case,
any other authority which replaces all or any of its functions) and any such
determination shall, in the absence of manifest error, be conclusive and binding
on all Parties.
<PAGE>
117
BORROWER
FIRSTMARK COMMUNICATIONS DEUTSCHLAND HOLDINGS GMBH
BY:
Gunther-Wagner-Allee 13
D-30177 Hanover
Telephone: (+49) 511 8797 7150
Facsimile: (+49) 511 8797 7509
Attention: Peter Schlichter
GUARANTOR
FIRSTMARK COMMUNICATIONS DEUTSCHLAND GMBH
BY:
Gunther-Wagner-Allee 13
D-30177 Hanover
Telephone: (+49) 511 8797 7150
Facsimile: (+49) 511 8797 7509
Attention: Peter Schlichter
ARRANGER AND FRONTING BANK
DEUTSCHE BANK AG
BY:
Bockenheimer Landstrasse 42
60323 Frankfurt am Main
Telephone: (+49) 69 910 35727
Facsimile: (+49) 69 910 32617
Attention: Frank Beckers
<PAGE>
118
AGENT
DEUTSCHE BANK LUXEMBOURG S.A.
BY:
2, Boulevard Konrad Adenauer
L-1115 Luxembourg
Telephone: (+352) 42122 296
Facsimile: (+352) 42122 287
Attention: Gerd Meyer
SECURITY AGENT
DEUTSCHE BANK LUXEMBOURG S.A.
BY:
2, Boulevard Konrad Adenauer
L-1115 Luxembourg
Telephone: (+352) 42122 296
Facsimile: (+352) 42122 287
Attention: Gerd Meyer
THE LENDERS
DEUTSCHE BANK LUXEMBOURG S.A.
BY:
2, Boulevard Konrad Adenauer
L-1115 Luxembourg
Telephone: (+352) 42122 296
Facsimile: (+352) 42122 287
Attention: Gerd Meyer
<PAGE>
SUPPLEMENTAL AGREEMENT
between
SIEMENS AG
as guarantor
FIRSTMARK COMMUNICATIONS DEUTSCHLAND HOLDINGS GmbH
as borrower
FIRSTMARK COMMUNICATIONS DEUTSCHLAND GmbH
as guarantor
DEUTSCHE BANK AG
as arranger and fronting bank
DEUTSCHE BANK LUXEMBOURG S.A.
as facility agent
DEUTSCHE BANK LUXEMBOURG S.A.
as security agent
and
EACH FINANCIAL INSTITUTION LISTED IN SCHEDULE 1
as a Lender
Hengeler Mueller, Slaughter and May
Bockenheimer Landstrasse 51
D-60325 Frankfurt au Main
Germany
<PAGE>
CONTENTS
PAGE
1. Definitions and Interpretations 2
2. Request for Guarantee/Indemnification 2
3. Undertakings from the Borrower 2
4. Undertaking from the Agent to Siemens 3
5. Consent and voting rights of Siemens 3
6. Assignments and Transfers 4
7. Remedies and Waivers, Partial Invalidity 5
8. Notices 5
9. Amendment 6
10. Law and Language 6
11. Jurisdiction 7
<PAGE>
THIS SUPPLEMENTAL AGREEMENT is made on May, 2000
BETWEEN
(1) SIEMENS AG as guarantor ("SIEMENS");
(2) FIRSTMARK COMMUNICATIONS DEUTSCHLAND HOLDINGS GMBH as borrower ("HOLDINGS"
or the "BORROWER");
(3) FIRSTMARK COMMUNICATIONS DEUTSCHLAND GMBH as guarantor ("FIRSTMARK
DEUTSCHLAND");
(4) DEUTSCHE BANK AG as arranger and fronting bank (the "ARRANGER");
(5) DEUTSCHE BANK LUXEMBOURG S.A. as facility agent (the "AGENT");
(6) DEUTSCHE BANK LUXEMBOURG S.A. as security agent (the "SECURITY AGENT"); and
(7) EACH FINANCIAL INSTITUTION LISTED IN SCHEDULE 1 (each a "LENDER").
WHEREAS:
(A) Pursuant to a contract to be dated on or around the date of this Agreement
between Siemens and FirstMark Deutschland (the "PMP CONTRACT") Siemens has
agreed to supply to FirstMark Deutschland the equipment, software and
services referred to therein.
(B) Pursuant to a Euro 480 million multi-tranche senior facility agreement of
even date herewith between the Borrower, FirstMark Deutschland, the
Arranger, the Agent, the Security Agent and the Lenders (the "FACILITY
AGREEMENT") the Lenders have agreed to make available to the Borrower a
Euro 480 million facility to enable FirstMark Deutschland to construct a
broadband wireless access network in Germany connected by wireless local
loop based on point-to-multipoint technology and for working capital
purposes. In particular, clause 3.4(A) of the Facility Agreement provides
that Advances drawn by the Borrower under the Tranche A1 Facility and the
Tranche A2 Facility may be used solely for the purpose of paying amounts
payable (including VAT) in respect of Invoices issued pursuant to the PMP
Contract.
(C) Pursuant to a guarantee agreement to be dated on or around the date of this
Agreement between the Security Agent, the Agent, the Lenders and Siemens
(the "SIEMENS GUARANTEE"), Siemens has agreed, inter alia, to guarantee to
the Security Agent, the Agent, and the Lenders, the payments mentioned
therein to be made by the Borrower under or in connection with the Tranche
A1 Loan.
(D) The parties wish to enter into this Agreement in order to regulate their
legal relationships in connection with the Siemens Guarantee.
<PAGE>
2
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATIONS
1.1 Capitalised words and expressions used in this Agreement but not otherwise
defined herein shall have the same meanings as specified in the Facility
Agreement (as amended and supplemented by a Supplemental Agreement of even
date herewith between the parties to this Agreement).
1.2 In this Agreement the "GUARANTEE TERMINATION DATE" shall mean the date on
which the Siemens Guarantee terminates in accordance with its terms.
2. REQUEST FOR GUARANTEE/INDEMNIFICATION
2.1 The Borrower and FirstMark Deutschland hereby confirm that (a) Siemens is
to enter into the Siemens Guarantee at their request and (b) they have
taken notice of the contents of the Siemens Guarantee and consent thereto.
2.2 The Borrower and FirstMark Deutschland shall unconditionally indemnify,
hold harmless and reimburse Siemens with regard to any payments made by
Siemens to the Lenders under the Siemens Guarantee and any other claim,
loss, penalty of any nature whatsoever which may be imposed on, incurred by
or asserted against Siemens, and any costs or expenses or other amounts
reasonably incurred by Siemens, in connection with the Siemens Guarantee.
Such claim for indemnification of Siemens shall fall due on the date on
which Siemens has received a request for payment by the Security Agent.
2.3 To the extent Siemens makes payments under the Siemens Guarantee and as a
result of this the Lenders' claims against the Borrower and FirstMark
Deutschland under the Facility Agreement are transferred to Siemens as set
forth in the Siemens Guarantee, the Borrower and FirstMark Deutschland
already, as of today, waive any objections they may have against such
claims. Such waiver shall also apply to any objections the Borrower and
FirstMark Deutschland may have with regard to claims of Siemens under this
Agreement.
3. UNDERTAKINGS FROM THE BORROWER
3.1 The Borrower shall, and shall procure that each other Relevant Company
shall at all times prior to the Guarantee Termination Date:
<PAGE>
3
(A) provide to Siemens and its advisers access to its records and assets
as and when Siemens may reasonably require on reasonable notice and
during regular business hours; and
(B) allow Siemens and its advisors to take records of the same and to
discuss the affairs of the Borrower and each other Relevant Company
with the officers, employees and auditors of the same on reasonable
notice and during regular business hours.
3.2 The Borrower shall, and shall procure that each other Relevant Company
shall, from time to time on the request of Siemens at any time prior to the
Guarantee Termination Date, furnish Siemens with such information about its
condition (financial or otherwise), the Business and the Network as Siemens
may reasonably require.
4. UNDERTAKING FROM THE AGENT TO SIEMENS
4.1 The Agent undertakes to Siemens that at all times prior to the Guarantee
Termination Date it will provide to Siemens a copy of each item of
information provided to the Lenders pursuant to Clause 31.3 of the Facility
Agreement or otherwise pursuant to the Facility Documents, in each case at
the same time as the information is provided to the Lenders.
4.2 The Agent shall notify Siemens when it believes that, if it receives an
executed copy of the Siemens Guarantee, it would be in a position to give
the confirmation envisaged by the definition in the Facility Agreement of
"Tranche A Financial Completion Date". Upon receipt of such notification
Siemens shall promptly release to the Agent the Siemens Guarantee, duly
executed by Siemens.
4.3 The Agent shall not be under any liability to Siemens or any other person
as a result of its notification given pursuant to Clause 4.2, except in the
case of gross negligence or wilful misconduct.
5. CONSENT AND VOTING RIGHTS OF SIEMENS
5.1 Each party to this Agreement hereby agrees that in relation to any
consents, decisions, approvals, permissions, authorisations, agreements or
instructions to be made or given under or in connection with the Facility
Documents, Siemens shall be involved in the decision-making process in
accordance with and to the extent stated in this Clause 5.
5.2 The prior written consent of Siemens (such consent not to be unreasonably
withheld) shall prior to the Guarantee Termination Date be required for
any:
(A) decision which requires the consent of, or an agreement or instruction
by, all the Lenders under the Facility Agreement or any of the
Transaction Documents;
(B) any change to the pricing, terms or structure of the Facility
Agreement pursuant to the Syndication Letter;
<PAGE>
4
(C) any change to the provisions of Clause 5.2, Clause 5.4, Clause 11 or
Clause 12 of the Facility Agreement; or
(D) any other decision, agreement, instruction, or other such action
pursuant to the Facility Documents by the Agent, the Security Agent or
the Lenders which could have a material adverse effect on the
contingent liability of Siemens under the Siemens Guarantee. A consent
right of Siemens under this sub-paragraph (E) shall exist only if
Siemens shall have notified the Security Agent in good faith that in
Siemens' opinion the decision, agreement, instruction, or other action
in question does or will have such a material adverse effect.
6. ASSIGNMENTS AND TRANSFERS
6.1 BINDING AGREEMENT
This Agreement shall be binding on and enure to the benefit of each party
to it and its or any subsequent successors, Transferees and assigns.
6.2 NO ASSIGNMENTS AND TRANSFERS BY THE BORROWER OR SIEMENS
Neither the Borrower nor Siemens shall be entitled to assign or transfer
any of its rights, benefits or obligations under this Agreement unless
otherwise agreed amongst the parties to this Agreement.
6.3 ASSIGNMENTS AND TRANSFERS BY LENDERS
Any Lender may, at any time, in accordance with the procedure stated in
Clause 32 of the Facility Agreement (as supplemented by this Agreement),
assign all or any of its rights and benefits under this Agreement as a
Lender or transfer all or any of its rights, benefits and obligations under
this Agreement as a Lender.
6.4 ASSIGNMENTS BY LENDERS
If any Lender assigns all or any of its rights and benefits under the
Facility Documents in accordance with Clause 32 of the Facility Agreement,
then, unless and until the assignee has agreed with the Agent, the Security
Agent and the other Lenders that it shall be under the same obligations
toward each of them as it would have been under if it had been an original
party to this Agreement as a Lender (in which case the assignee shall
become a party to this Agreement as a "Lender"), the Agent, the Security
Agent and the other Lenders shall not be obliged to recognise the assignee
as having the rights against each of them which it would have had if it had
been a party to this Agreement.
6.5 TRANSFERS BY LENDERS
If any Lender wishes to transfer all or any of its rights, benefits or
obligations under the Facility Documents as a Lender as contemplated in
Clause 32 of the Facility Agreement, and the transfer is effected by the
delivery to the Agent of a Transfer
<PAGE>
5
Certificate, on the Transfer Date specified in the Transfer Certificate (or
any other Business Day endorsed by the Agent on the Transfer Certificate
falling on or after) the date of delivery of the Transfer Certificate to
the Agent:
(A) the Agent, the Security Agent, the Transferee and the other Lenders
shall acquire the same rights and benefits and assume the same
obligations between themselves as they would have acquired and assumed
had the Transferee been an original party to this Agreement as a
Lender with the rights, benefits and obligations acquired or assumed
by it as a result of the transfer; and
(B) the Transferee shall become a party to this Agreement as a "Lender".
7. REMEDIES AND WAIVERS, PARTIAL INVALIDITY
7.1 REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of the
Agent, the Security Agent or the Lenders, any right or remedy under this
Agreement shall operate as a waiver, nor shall any single or partial
exercise of any right or remedy prevent any further or other exercise of
the right or remedy or the exercise of any other right or remedy. The
rights and remedies provided under this Agreement are cumulative and not
exclusive of any rights or remedies provided by law.
7.2 PARTIAL INVALIDITY
If, at any time, any provision of this Agreement is or becomes illegal,
invalid or unenforceable in any respect under the law of any jurisdiction,
neither the legality, validity or enforceability of the remaining
provisions of this Agreement nor the legality, validity or enforceability
of the provision under the law of any other jurisdiction shall in any way
be affected or impaired as a result.
8. NOTICES
8.1 COMMUNICATIONS IN WRITING
Each communication to be made under this Agreement shall be made in writing
and, unless otherwise stated, shall be made by fax, telex or letter.
8.2 DELIVERY
Any communication or document to be made or delivered by one person to
another pursuant to this Agreement shall (unless that other person has by
15 days' written notice to the Agent specified another address) be made or
delivered to that other person at the address identified with its signature
below (or, in the case of a Transferee, at the end of the Transfer
Certificate to which it is a party as Transferee).
8.3 ENGLISH LANGUAGE
<PAGE>
6
Each communication and document made or delivered by one party to another
pursuant to this Agreement shall be in the English language or accompanied
by a translation into English certified (by an officer of the person making
or delivering the same) as being a true and accurate translation.
9. AMENDMENT
(A) The Agent, if it has the prior written consent of an Instructing
Group, may from time to time agree in writing with the other parties
to this Agreement to amend this Agreement or to waive, prospectively
or retrospectively, any of the requirements of this Agreement and any
amendments or waivers so agreed shall be binding on all the Lenders
and the other parties to this Agreement. The Agent may not grant any
waiver or agree any amendment affecting any of the following unless
authorised by all the Lenders:
(i) the obligations of the Lenders; or
(ii) any requirement (including the one in this sub-clause) that all
the Lenders or a certain proportion of them consent to a matter
or deliver a notice.
(B) The Borrower undertakes to do all things necessary to ensure that all
amendments are duly notarised and the Lenders and the Security Agent
authorise the Agent to execute on their behalf any amendment documents
if the Agent is permitted to agree to the amendments reflected in the
relevant document under this Clause 9.
(C) Notwithstanding any other provisions of this Agreement or the Facility
Agreement, the Agent shall not be obliged to agree to any amendment or
waiver if it would:
(i) amend or waive any provision of this Clause 9; or
(ii) otherwise amend or waive any of the Agent's rights under this
Agreement or subject the Agent to any additional obligations
under this Agreement.
10. LAW AND LANGUAGE
(A) This Agreement shall be governed by, and shall be construed in
accordance with, the law of Germany.
(B) The ruling and operative language of this Agreement will be the
English language.
<PAGE>
7
11. JURISDICTION
11.1 GERMAN COURTS
Each of the parties to this Agreement irrevocably agrees for the benefit of
each of the Agent, the Security Agent and the Lenders that the courts of
Frankfurt am Main, Germany shall have jurisdiction to hear and determine
any suit, action or proceedings, and to settle any disputes, which may
arise out of or in connection with this Agreement (respectively
"PROCEEDINGS" and "DISPUTES") and, for those purposes, irrevocably submits
to the jurisdiction of such courts.
11.2 APPROPRIATE FORUM
Each of the parties to this Agreement irrevocably waives any objection
which it might have at any time to the courts referred to in Clause 11.1
being nominated as the forum to hear and determine any Proceedings and to
settle any Disputes and agrees not to claim that any such court is not a
convenient or appropriate forum.
11.3 SERVICE OF PROCESS
The Security Agent and the Agent each agrees that the process by which any
Proceedings are begun may be served on it by being delivered in connection
with any Proceedings in Germany, to Deutsche Bank A.G. at Bockenheimer
Landstrasse 42, 60323 Frankfurt am Main. If the appointment in this Clause
8.3 ceases to be effective in respect of the Security Agent or the Agent
each shall immediately appoint a further person in Germany to accept
service of process on its behalf in Germany and, failing appointment within
15 days, Siemens shall be entitled to appoint any person for that purpose
by notice to the Security Agent or the Agent respectively. Nothing
contained in this Clause 8.3 shall affect the right to serve process in any
other manner permitted by law.
11.4 NON-EXCLUSIVE SUBMISSIONS
The submission to the jurisdiction of the courts referred to in Clause 11.1
shall not (and shall not be construed so as to) limit the right of any
party to this Agreement to take Proceedings against any other party to this
Agreement in any other court of competent jurisdiction nor shall the taking
of Proceedings in any one or more jurisdictions preclude the taking of
Proceedings in any other jurisdiction (whether concurrently or not) if and
to the extent permitted by applicable law.
IN WITNESS of which this document has been executed as an agreement on the date
which first appears on page 1 above.
<PAGE>
8
GUARANTOR
SIEMENS AG
BY:
Siemens AG SFS PEF 1 CRM
Hofmannstr. 51
D-81359 Munchen
Telephone: (+49) 89 722 44 939
Facsimile: (+49) 89 722 41 225
Attention: Mr. Martinus Hartman
BORROWER
FIRSTMARK COMMUNICATIONS DEUTSCHLAND HOLDINGS GmbH
BY:
Gunther-Wagner-Allee 13
D-30177 Hanover
Telephone: (+49) 511 8797 7150
Facsimile: (+49) 511 8797 7509
Attention: Peter Schlichter
FIRSTMARK DEUTSCHLAND
FIRSTMARK COMMUNICATIONS DEUTSCHLAND GmbH
BY:
Gunther-Wagner-Allee 13
D-30177 Hanover
Telephone: (+49) 511 8797 7150
Facsimile: (+49) 511 8797 7509
Attention: Peter Schlichter
<PAGE>
9
FACILITY AGENT
DEUTSCHE BANK, LUXEMBOURG S.A.
BY:
2, Boulevard Konrad Adenauer
L-1115 Luxembourg
Telephone: (+352) 42122 296
Facsimile: (+352) 42122 287
Attention: Gerd Meyer
ARRANGER AND FRONTING BANK
DEUTSCHE BANK AG
BY:
Bockenheimer Landstrasse 42
60323 Frankfurt am Main
Telephone: (+49) 69 910 35727
Facsimile: (+49) 69 910 32617
Attention: Frank Beckers
SECURITY AGENT
DEUTSCHE BANK, LUXEMBOURG S.A.
BY:
<PAGE>
10
2, Boulevard Konrad Adenauer
L-1115 Luxembourg
Telephone: (+352) 42122 296
Facsimile: (+352) 42122 287
Attention: Gerd Meyer
<PAGE>
AMENDMENT AGREEMENT
SUPPLEMENTAL TO
EURO 480 MILLION MULTI-TRANCHE
SENIOR FACILITY AGREEMENT
between
SIEMENS AG
as guarantor
FIRSTMARK COMMUNICATIONS DEUTSCHLAND HOLDINGS GMBH
as borrower
FIRSTMARK COMMUNICATIONS DEUTSCHLAND GMBH
as guarantor
DEUTSCHE BANK AG
as arranger and fronting bank
DEUTSCHE BANK LUXEMBOURG S.A.
as facility agent
DEUTSCHE BANK LUXEMBOURG S.A.
as security agent
and
EACH FINANCIAL INSTITUTION LISTED IN SCHEDULE 1
as a Lender
Hengeler Mueller, Slaughter and May
Bockenheimer Landstrasse 51
D-60325 Frankfurt au Main
Germany
<PAGE>
CONTENTS
PAGE
1. Definitions and Interpretations 2
2. Amendments to the Facility Agreement 2
3. Assignments and Transfers 5
4. Remedies and Waivers, Partial Invalidity 6
5. Notices 6
6. Amendment 7
7. Law and Language 8
8. Jurisdiction 8
9. Contracts (Rights of Third Parties) Act 1999 9
<PAGE>
THIS AMENDMENT AGREEMENT is made on May, 2000
BETWEEN
(1) FIRSTMARK COMMUNICATIONS DEUTSCHLAND HOLDINGS GMBH as borrower ("HOLDINGS"
or the "BORROWER");
(2) FIRSTMARK COMMUNICATIONS DEUTSCHLAND GMBH as guarantor ("FIRSTMARK
DEUTSCHLAND");
(3) DEUTSCHE BANK AG as arranger and fronting bank (the "ARRANGER"); and
(4) DEUTSCHE BANK LUXEMBOURG S.A. as facility agent (the "AGENT").
WHEREAS:
(A) Pursuant to a Euro 480 million multi-tranche senior facility agreement of
even date herewith between the Borrower, FirstMark Deutschland, the
Arranger, the Agent and the Security Agent and the Lenders named therein
(the "FACILITY AGREEMENT") the Lenders have agreed to make available to the
Borrower a Euro 480 million facility to enable FirstMark Deutschland to
construct a broadband wireless access network in Germany connected by
wireless local loop based on point-to-multipoint technology and for working
capital purposes.
(B) The Facility Agreement provides that the availability of the Facilities
shall be subject to confirmation by the Agent of the satisfaction of
certain conditions precedent specified in the Facility Agreement.
(C) The parties wish to enter into this Agreement in order to supplement the
provisions of the Facility Agreement relating to the availability of the
Facilities on the terms and conditions set out herein.
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATIONS
1.1 Capitalised words and expressions used in this Agreement but not otherwise
defined herein shall have the same meanings as specified in the Facility
Agreement (as amended and supplemented by this Agreement and by an
Amendment and Supplemental Agreement of even date herewith relating to the
Facility Agreement).
1.2 The provisions of clauses 1.2 to 1.6 of the Facility Agreement shall apply
to this Agreement MUTATIS MUTANDIS as if any reference therein to the
Facility Agreement were a reference to this Agreement.
2. ADDITIONAL CONDITION PRECEDENT TO THE AVAILABILITY OF THE FACILITIES
It shall be a condition precedent to the availability of the Facilities
that an Option Agreement shall have been entered into between Deutsche Bank
AG and Siemens AG
<PAGE>
2
relating to shares in the Parent Company, and such Option Agreement shall
be in form and substance satisfactory to the Agent. The Agent shall
therefore not be obliged to confirm that the Tranche A Financial Completion
Date has occurred unless it has received a duly executed original of such
Option Agreement.
3. NOTICES
3.1 COMMUNICATIONS IN WRITING
Each communication to be made under this Agreement shall be made in writing
and, unless otherwise stated, shall be made by fax, telex or letter.
3.2 DELIVERY
Any communication or document to be made or delivered by one person to
another pursuant to this Agreement shall (unless that other person has by
15 days' written notice to the Agent specified another address) be made or
delivered to that other person at the address identified with its signature
below.
3.3 ENGLISH LANGUAGE
Each communication and document made or delivered by one party to another
pursuant to this Agreement shall be in the English language or accompanied
by a translation into English certified (by an officer of the person making
or delivering the same) as being a true and accurate translation.
4. LAW AND LANGUAGE
(A) This Agreement shall be governed by, and shall be construed in
accordance with, the law of England and Wales.
(B) The ruling and operative language of this Agreement will be the
English language.
5. JURISDICTION
5.1 ENGLISH
Each of the parties to this Agreement irrevocably agrees for the benefit of
the Agent that the courts of England and Wales shall have jurisdiction to
hear and determine any suit, action or proceedings, and to settle any
disputes, which may arise out of or in connection with this Agreement
(respectively "PROCEEDINGS" and "DISPUTES") and, for those purposes,
irrevocably submits to the jurisdiction of the courts of England and Wales.
<PAGE>
3
5.2 APPROPRIATE FORUM
The Borrower irrevocably waives any objection which it might have at any
time to the courts referred to in Clause 5.1 being nominated as the forum
to hear and determine any Proceedings and to settle any Disputes and agrees
not to claim that any such court is not a convenient or appropriate forum.
5.3 SERVICE OF PROCESS
The Borrower agrees that the process by which any Proceedings are begun may
be served on it by being delivered in connection with any Proceedings in
England, to FirstMark Communications Europe S.A. at 1 James Street, London
W1M 5HY. If the appointment in this Clause 5.3 ceases to be effective in
respect of the Borrower, the Borrower shall immediately appoint a further
person in England to accept service of process on its behalf in England
and, failing appointment within 15 days, the Agent shall be entitled to
appoint any person for that purpose by notice to the Borrower. Nothing
contained in this Clause 5.3 shall affect the right to serve process in any
other manner permitted by law.
5.4 NON-EXCLUSIVE SUBMISSIONS
The submission to the jurisdiction of the courts referred to in Clause 5.1
shall not (and shall not be construed so as to) limit the right of any
party to this Agreement to take Proceedings against any other party to this
Agreement in any other court of competent jurisdiction nor shall the taking
of Proceedings in any one or more jurisdictions preclude the taking of
Proceedings in any other jurisdiction (whether concurrently or not) if and
to the extent permitted by applicable law.
6. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
The parties to this Agreement do not intend that any term of this Agreement
should be enforceable, by virtue of the Contracts (Rights of Third Parties)
Act 1999, by any person who is not a party to this Agreement.
IN WITNESS of which this document has been executed as an agreement on the date
which first appears on page 1 above.
<PAGE>
4
BORROWER
FIRSTMARK COMMUNICATIONS DEUTSCHLAND HOLDINGS GMBH
BY:
Gunther-Wagner-Allee 13
D-30177 Hanover
Telephone: (+49) 511 8797 7150
Facsimile: (+49) 511 8797 7509
Attention: Peter Schlichter
FIRSTMARK DEUTSCHLAND
FIRSTMARK COMMUNICATIONS DEUTSCHLAND GMBH
BY:
Gunther-Wagner-Allee 13
D-30177 Hanover
Telephone: (+49) 511 8797 7150
Facsimile: (+49) 511 8797 7509
Attention: Peter Schlichter
FACILITY AGENT
DEUTSCHE BANK, LUXEMBOURG S.A.
BY:
2, Boulevard Konrad Adenauer
L-1115 Luxembourg
Telephone: (+352) 42122 296
Facsimile: (+352) 42122 287
Attention: Gerd Meyer
ARRANGER AND FRONTING BANK
DEUTSCHE BANK AG
<PAGE>
5
BY:
Bockenheimer Landstrasse 42
60323 Frankfurt am Main
Telephone: (+49) 69 910 35727
Facsimile: (+49) 69 910 32617
Attention: Frank Beckers
<PAGE>
AGREEMENT
SUPPLEMENTAL TO
EURO 480 MILLION MULTI-TRANCHE
SENIOR FACILITY AGREEMENT
between
FIRSTMARK COMMUNICATIONS DEUTSCHLAND HOLDINGS GMBH
as borrower
FIRSTMARK COMMUNICATIONS DEUTSCHLAND GMBH
as guarantor
DEUTSCHE BANK AG
as arranger and fronting bank
DEUTSCHE BANK LUXEMBOURG S.A.
as facility agent
Hengeler Mueller, Slaughter and May
Bockenheimer Landstrasse 51
D-60325 Frankfurt au Main
Germany
<PAGE>
CONTENTS
PAGE
1. Definitions and Interpretations 1
2. Additional condition precedent to the availability of the Facilities 1
3. Notices 2
4. Law and Language 2
5. Jurisdiction 2
6. Contracts (Rights of Third Parties) Act 1999 3
<PAGE>
THIS AMENDMENT AGREEMENT is made on May, 2000
BETWEEN
(1) SIEMENS AG as guarantor ("SIEMENS");
(2) FIRSTMARK COMMUNICATIONS DEUTSCHLAND HOLDINGS GMBH as borrower ("HOLDINGS"
or the "BORROWER");
(3) FIRSTMARK COMMUNICATIONS DEUTSCHLAND GMBH as guarantor ("FIRSTMARK
DEUTSCHLAND");
(4) DEUTSCHE BANK AG as arranger and fronting bank (the "ARRANGER");
(5) DEUTSCHE BANK LUXEMBOURG S.A. as facility agent (the "AGENT");
(6) DEUTSCHE BANK LUXEMBOURG S.A. as security agent (the "SECURITY AGENT"); and
(7) EACH FINANCIAL INSTITUTION LISTED IN SCHEDULE 1 (each a "LENDER").
WHEREAS:
(A) Pursuant to a contract to be dated on or around the date of this Agreement
between Siemens and FirstMark Deutschland (the "PMP CONTRACT") Siemens has
agreed to supply to FirstMark Deutschland the equipment, software and
services referred to therein.
(B) Pursuant to a Euro 480 million multi-tranche senior facility agreement of
even date herewith between the Borrower, FirstMark Deutschland, the
Arranger, the Agent, the Security Agent and the Lenders (the "FACILITY
AGREEMENT") the Lenders have agreed to make available to the Borrower a
Euro 480 million facility to enable FirstMark Deutschland to construct a
broadband wireless access network in Germany connected by wireless local
loop based on point-to-multipoint technology and for working capital
purposes. In particular, clause 3.4(A) of the Facility Agreement provides
that Advances drawn by the Borrower under the Tranche A1 Facility and the
Tranche A2 Facility may be used solely for the purpose of paying amounts
payable (including VAT) in respect of Invoices issued pursuant to the PMP
Contract.
(C) Pursuant to a guarantee agreement to be dated on or around the date of this
Agreement between the Security Agent, the Agent, the Lenders and Siemens
(the "SIEMENS GUARANTEE"), Siemens has agreed, inter alia, to guarantee to
the Security Agent, the Agent, and the Lenders, the payments mentioned
therein to be made by the Borrower under or in connection with the Tranche
A1 Loan.
(D) The parties wish to enter into this Agreement in order to amend and
supplement the provisions of the Facility Agreement on the terms and
conditions set out herein.
<PAGE>
2
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATIONS
1.1 Capitalised words and expressions used in this Agreement but not otherwise
defined herein shall have the same meanings as specified in the Facility
Agreement (as amended and supplemented by this Agreement).
1.2 In this Agreement the "GUARANTEE TERMINATION DATE" shall mean the date on
which the Siemens Guarantee terminates in accordance with its terms.
1.3 The provisions of clauses 1.2 to 1.6 of the Facility Agreement shall apply
to this Agreement MUTATIS MUTANDIS as if any reference therein to the
Facility Agreement were a reference to this Agreement.
2. AMENDMENTS TO THE FACILITY AGREEMENT
2.1 The following new definitions of "Siemens Guarantee" and "Guarantee
Supplement" shall be inserted in clause 1.1 of the Facility Agreement:
""SIEMENS GUARANTEE" means the guarantee agreement relating to the Tranche
A 1 Loan between the Security Agent, the Lenders, the Agent and Siemens."
"GUARANTEE SUPPLEMENT" means the Agreement supplemental to the Siemens
Guarantee between the parties to the Supplemental Agreement.
2.2 The following new definition of "Siemens" shall be inserted in clause 1.1
of the Facility Agreement:
""SIEMENS" means Siemens AG Aktiengesellschaft, Berlin and Munchen, a stock
corporation duly organised and existing under the laws of the Federal
Republic of Germany".
2.3 The following new definition of "Supplemental Agreement" shall be inserted
in clause 1.1 of the Facility Agreement:
""SUPPLEMENTAL AGREEMENT" means the Supplemental Agreement, supplemental to
this Agreement, of even date herewith between Siemens, the Borrower,
FirstMark Deutschland, the Arranger, the Agent, the Security Agent and the
Lenders.".
2.4 The definition of "Facility Document" in clause 1.1 of the Facility
Agreement shall be amended so that it reads as follows:
""FACILITY DOCUMENT" means each of:
(A) this Agreement;
(B) each Security Document;
<PAGE>
3
(C) the Subordination Agreement;
(D) the Intercreditor Agreement;
(E) the Equity Commitment Undertaking;
(F) the Siemens Guarantee;
(G) the Guarantee Supplement;
(H) the Supplemental Agreement; and
(I) any other agreement, document or deed agreed by the Agent and the
Borrower to be a "FACILITY DOCUMENT" or which is entered into or
provided under, or for the purpose of amending or novating, any of the
above.".
2.5 Paragraph (i) of the definition of "Material Adverse Effect" in clause 1.1
of the Facility Agreement shall be amended so that it reads as follows:
"(i) a material adverse effect on the ability of (a) any Relevant Company
to perform and comply with any of its material obligations under the
Transaction Documents to which it is a party or (b) the Parent Company
to perform and comply with any of its material obligations under the
Equity Commitment Undertaking or (c) Siemens to perform and comply
with any of its material obligations under the Siemens Guarantee;".
2.6 Paragraph (O) of Clause 22.1 of the Facility Agreement shall be amended so
that it reads as follows:
"(O) ADDITIONAL SECURITY
ensure that promptly in response to any written request of the Security
Agent any assets which are acquired by any Relevant Company in connection
with the Business after the date of this Agreement are secured in favour
of, and to the satisfaction of, the Beneficiaries and Siemens as soon as
they are acquired provided that no security shall be required to be created
over any asset in relation to which both of the following requirements are
satisfied: (a) it is legally necessary (in order to ensure the validity or
priority of such security) to create the security by way of a document
which specifically identifies the asset rather than by way of a general
description of assets of a specified class or at a specified location; and
(b) the asset has a market value of less than Euro 1,000,000 (one million
euro);"
2.7 Paragraph (I) of clause 23.1 of the Facility Agreement shall be amended so
that it reads as follows:
<PAGE>
4
"(I) FAILURE TO PAY DEBTS
any Relevant Company, Siemens or the Parent Company is unable to pay
its debts as they fall due, ceases to make payments or commences
negotiations with any one or more of its creditors with a view to the
general readjustment or rescheduling of its indebtedness or makes a
general assignment for the benefit of or a composition with its
creditors, or makes any good faith application for the opening of a
court composition (GERICHTLICHES VERGLEICHSVERFAHREN) without the
prior approval of the Agent acting on the instructions of all the
Lenders.".
2.8 Paragraph (J) of clause 23.1 of the Facility Agreement shall be amended so
that it reads as follows:
"(J) COMMENCEMENT OF INSOLVENCY PROCEEDINGS
any action or legal proceedings are started against any Relevant
Company, Siemens or the Parent Company for its winding-up,
dissolution, administration, bankruptcy or any similar or analogous
proceeding or by any Relevant Company, Siemens or the Parent Company
in order for it to be declared in suspension of payments and such
action or proceedings are not dismissed, stayed or terminated within
30 days of being commenced, other than for the purposes of a solvent
reconstruction on terms and conditions approved by the Agent acting on
the instructions of all the Lenders.".
2.9 Paragraph (M) of clause 23.1 of the Facility Agreement shall be amended so
that it reads as follows:
"(M) ILLEGALITY
at any time it is or becomes unlawful for any of the Relevant
Companies, Siemens or the Parent Company to perform or comply with any
or all of their respective material obligations under the Transaction
Documents or any of their respective material obligations are not or
cease to be (subject only to the Reservations) legal, valid and
binding.".
2.10 It shall be a condition precedent to the availability of the Tranche A 3
Facility that an irrevocable guarantee of Nortel Corporation plc shall have
been provided in relation to the obligations of the Borrower in relation to
the Tranche A3 Loan, and such guarantee shall be in form and substance
satisfactory to the Agent.
2.11 Notwithstanding the requirement in paragraph 8 of Schedule 3 to the
Facility Agreement that an executed copy of each Transaction Document be
provided as a condition precedent to the availability of Tranche A, it is
agreed that it shall be a condition precedent only to the availability of
Tranche A1 and Tranche A2 that an executed copy of the Siemens Guarantee be
provided.
2.12 The Borrower shall forward to Siemens a copy of each request for consent
received by the Borrower pursuant to Clause 32.3 of the Facility Agreement.
<PAGE>
5
2.13 This sub-clause applies where any Relevant Company has received a payment
(the "RELEVANT AMOUNT") from a Supplier by way of refund of or adjustment
to any amount (the "FUNDED AMOUNT") paid to that Supplier pursuant to
Clause 7.1(A) of the Facility Agreement. Where this sub-clause applies the
Borrower undertakes to Siemens and to each Beneficiary that it will apply
the Relevant Amount in payment of amounts payable, then or in the future,
to the relevant Supplier under the Supply Contract to which that Supplier
is a party. If an order under such Supply Contract, payment for which will
result in such application, has not been placed within three months of the
date of receipt of the Relevant Amount the Borrower undertakes to prepay
under the Facility Agreement an amount equal to the Relevant Amount. Each
such prepayment shall be applied in prepayment of the Loan in respect of
the Facility pursuant to which the Funded Amount was paid to the relevant
Supplier.
2.14 The parties hereby agree that at all times prior to the Guarantee
Termination Date any reference to the Facility Agreement (other than in
this Clause 2) in any Facility Document shall be a reference to the
Facility Agreement as amended and supplemented by this Agreement. The
additional condition precedent to the availability of the Tranche A3
Facility, stated in this Clause 2, shall continue to apply after the
Guarantee Termination Date.
3. ASSIGNMENTS AND TRANSFERS
3.1 BINDING AGREEMENT
This Agreement shall be binding on and enure to the benefit of each party
to it and its or any subsequent successors, Transferees and assigns.
3.2 NO ASSIGNMENTS AND TRANSFERS BY THE BORROWER OR SIEMENS
Neither the Borrower nor Siemens shall be entitled to assign or transfer
any of its rights, benefits or obligations under this Agreement unless
otherwise agreed amongst the parties to this Agreement.
3.3 ASSIGNMENTS AND TRANSFERS BY LENDERS
Any Lender may, at any time, in accordance with the procedure stated in
Clause 32 of the Facility Agreement (as supplemented by this Agreement),
assign all or any of its rights and benefits under this Agreement as a
Lender or transfer all or any of its rights, benefits and obligations under
this Agreement as a Lender.
3.4 ASSIGNMENTS BY LENDERS
If any Lender assigns all or any of its rights and benefits under the
Facility Documents in accordance with Clause 32 of the Facility Agreement,
then, unless and until the assignee has agreed with the Agent, the Security
Agent and the other Lenders that it shall be under the same obligations
toward each of them as it would have been under if it had been an original
party to this Agreement as a Lender (in which case the assignee shall
become a party to this Agreement as a "Lender"), the Agent, the Security
Agent
<PAGE>
6
and the other Lenders shall not be obliged to recognise the assignee as
having the rights against each of them which it would have had if it had
been a party to this Agreement.
3.5 TRANSFERS BY LENDERS
If any Lender wishes to transfer all or any of its rights, benefits or
obligations under the Facility Documents as a Lender as contemplated in
Clause 32 of the Facility Agreement, and the transfer is effected by the
delivery to the Agent of a Transfer Certificate, on the Transfer Date
specified in the Transfer Certificate (or any other Business Day endorsed
by the Agent on the Transfer Certificate falling on or after) the date of
delivery of the Transfer Certificate to the Agent:
(A) the Agent, the Security Agent, the Transferee and the other Lenders
shall acquire the same rights and benefits and assume the same
obligations between themselves as they would have acquired and assumed
had the Transferee been an original party to this Agreement as a
Lender with the rights, benefits and obligations acquired or assumed
by it as a result of the transfer; and
(B) the Transferee shall become a party to this Agreement as a "Lender".
4. REMEDIES AND WAIVERS, PARTIAL INVALIDITY
4.1 REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of the
Agent, the Security Agent or the Lenders, any right or remedy under this
Agreement shall operate as a waiver, nor shall any single or partial
exercise of any right or remedy prevent any further or other exercise of
the right or remedy or the exercise of any other right or remedy. The
rights and remedies provided under this Agreement are cumulative and not
exclusive of any rights or remedies provided by law.
4.2 PARTIAL INVALIDITY
If, at any time, any provision of this Agreement is or becomes illegal,
invalid or unenforceable in any respect under the law of any jurisdiction,
neither the legality, validity or enforceability of the remaining
provisions of this Agreement nor the legality, validity or enforceability
of the provision under the law of any other jurisdiction shall in any way
be affected or impaired as a result.
5. NOTICES
5.1 COMMUNICATIONS IN WRITING
Each communication to be made under this Agreement shall be made in writing
and, unless otherwise stated, shall be made by fax, telex or letter.
<PAGE>
7
5.2 DELIVERY
Any communication or document to be made or delivered by one person to
another pursuant to this Agreement shall (unless that other person has by
15 days' written notice to the Agent specified another address) be made or
delivered to that other person at the address identified with its signature
below (or, in the case of a Transferee, at the end of the Transfer
Certificate to which it is a party as Transferee).
5.3 ENGLISH LANGUAGE
Each communication and document made or delivered by one party to another
pursuant to this Agreement shall be in the English language or accompanied
by a translation into English certified (by an officer of the person making
or delivering the same) as being a true and accurate translation.
6. AMENDMENT
(A) The Agent, if it has the prior written consent of an Instructing
Group, may from time to time agree in writing with the other parties
to this Agreement to amend this Agreement or to waive, prospectively
or retrospectively, any of the requirements of this Agreement and any
amendments or waivers so agreed shall be binding on all the Lenders
and the other parties to this Agreement. The Agent may not grant any
waiver or agree any amendment affecting any of the following unless
authorised by all the Lenders:
(i) the obligations of the Lenders;
(ii) the Siemens Guarantee or the Guarantee Supplement; or
(iii) any requirement (including the one in this sub-clause) that all
the Lenders or a certain proportion of them consent to a matter
or deliver a notice.
(B) The Borrower undertakes to do all things necessary to ensure that all
amendments are duly notarised and the Lenders and the Security Agent
authorise the Agent to execute on their behalf any amendment documents
if the Agent is permitted to agree to the amendments reflected in the
relevant document under this Clause 6.
(C) Notwithstanding any other provisions of this Agreement or the Facility
Agreement, the Agent shall not be obliged to agree to any amendment or
waiver if it would:
(i) amend or waive any provision of this Clause 6; or
(ii) otherwise amend or waive any of the Agent's rights under this
Agreement or subject the Agent to any additional obligations
under this Agreement.
<PAGE>
8
7. LAW AND LANGUAGE
(A) This Agreement shall be governed by, and shall be construed in
accordance with, the law of England and Wales.
(B) The ruling and operative language of this Agreement will be the
English language.
8. JURISDICTION
8.1 ENGLISH
Each of the parties to this Agreement irrevocably agrees for the benefit of
each of the Agent, the Security Agent and the Lenders that the courts of
England and Wales shall have jurisdiction to hear and determine any suit,
action or proceedings, and to settle any disputes, which may arise out of
or in connection with this Agreement (respectively "PROCEEDINGS" and
"DISPUTES") and, for those purposes, irrevocably submits to the
jurisdiction of the courts of England and Wales.
8.2 APPROPRIATE FORUM
The Borrower and Siemens irrevocably waives any objection which it might
have at any time to the courts referred to in Clause 8.1 being nominated as
the forum to hear and determine any Proceedings and to settle any Disputes
and agrees not to claim that any such court is not a convenient or
appropriate forum.
8.3 SERVICE OF PROCESS
The Borrower agrees that the process by which any Proceedings are begun may
be served on it by being delivered in connection with any Proceedings in
England, to FirstMark Communications Europe S.A. at 1 James Street, London
W1M 5HY Siemens agrees that the process by which any Proceedings are begun
may be served on it by being delivered in connection with any Proceedings
in England, to the Siemens Shared Services Ltd. at Siemens House, Oldbury,
Bracknell Berkshire RG12 8FZ, United Kingdom (marked for the attention of
the Head of the Legal Department). If the appointment in this Clause 8.3
ceases to be effective in respect of the Borrower or Siemens, the Borrower
or Siemens respectively shall immediately appoint a further person in
England to accept service of process on its behalf in England and, failing
appointment within 15 days, the Agent shall be entitled to appoint any
person for that purpose by notice to the Borrower or Siemens respectively.
Nothing contained in this Clause 8.3 shall affect the right to serve
process in any other manner permitted by law.
8.4 NON-EXCLUSIVE SUBMISSIONS
The submission to the jurisdiction of the courts referred to in Clause 8.1
shall not (and shall not be construed so as to) limit the right of any
party to this Agreement to take Proceedings against any other party to this
Agreement in any other court of competent jurisdiction nor shall the taking
of Proceedings in any one or more jurisdictions preclude
<PAGE>
9
the taking of Proceedings in any other jurisdiction (whether concurrently
or not) if and to the extent permitted by applicable law.
9. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
The parties to this Agreement do not intend that any term of this Agreement
should be enforceable, by virtue of the Contracts (Rights of Third Parties)
Act 1999, by any person who is not a party to this Agreement.
IN WITNESS of which this document has been executed as an agreement on the date
which first appears on page 1 above.
<PAGE>
10
GUARANTOR
SIEMENS AG
BY:
Siemens AG SFS PEF 1 CRM
Hofmannstr. 51
D-81359 Munchen
Telephone: (+49) 89 722 44 939
Facsimile: (+49) 89 722 41 225
Attention: Mr. Martinus Hartman
BORROWER
FIRSTMARK COMMUNICATIONS DEUTSCHLAND HOLDINGS GMBH
BY:
Gunther-Wagner-Allee 13
D-30177 Hanover
Telephone: (+49) 511 8797 7150
Facsimile: (+49) 511 8797 7509
Attention: Peter Schlichter
FIRSTMARK DEUTSCHLAND
FIRSTMARK COMMUNICATIONS DEUTSCHLAND GMBH
BY:
Gunther-Wagner-Allee 13
D-30177 Hanover
Telephone: (+49) 511 8797 7150
Facsimile: (+49) 511 8797 7509
<PAGE>
11
Attention: Peter Schlichter
FACILITY AGENT
DEUTSCHE BANK, LUXEMBOURG S.A.
BY:
2, Boulevard Konrad Adenauer
L-1115 Luxembourg
Telephone: (+352) 42122 296
Facsimile: (+352) 42122 287
Attention: Gerd Meyer
ARRANGER AND FRONTING BANK
DEUTSCHE BANK AG
BY:
Bockenheimer Landstrasse 42
60323 Frankfurt am Main
Telephone: (+49) 69 910 35727
Facsimile: (+49) 69 910 32617
Attention: Frank Beckers
SECURITY AGENT
DEUTSCHE BANK, LUXEMBOURG S.A.
BY:
2, Boulevard Konrad Adenauer
L-1115 Luxembourg
Telephone: (+352) 42122 296
Facsimile: (+352) 42122 287
Attention: Gerd Meyer
<PAGE>
EQUITY COMMITMENT UNDERTAKING
between
FIRSTMARK COMMUNICATIONS DEUTSCHLAND HOLDINGS GmbH
as borrower
FIRSTMARK COMMUNICATIONS EUROPE S.A.
as parent company
DEUTSCHE BANK LUXEMBOURG S.A.
as facility agent
DEUTSCHE BANK LUXEMBOURG S.A.
as security agent
and
SIEMENS AG
as guarantor
Hengeler Mueller Slaughter and May
Bockenheimer Landstrasse 51
D-60325 Frankfurt am Main
Germany
<PAGE>
THIS AGREEMENT is made on May, 2000
BETWEEN
(1) FIRSTMARK COMMUNICATIONS DEUTSCHLAND HOLDINGS GMBH ("HOLDINGS" or the
"COMPANY");
(2) FIRSTMARK COMMUNICATIONS EUROPE S.A. as Parent Company (the "PARENT
COMPANY");
(3) DEUTSCHE BANK LUXEMBOURG S.A. as facility agent (the "AGENT");
(4) DEUTSCHE BANK LUXEMBOURG S.A. as security agent for and on behalf of each
Lender (the "SECURITY AGENT"); and
(5) SIEMENS AG ("SIEMENS").
WHEREAS:
(A) The parties to this Agreement, other than the Parent Company and Siemens,
are party to the Euro 480 million Multi-Tranche Senior Facility Agreement
of even date with this Agreement between the Company as a borrower,
FirstMark Communications Deutschland GmbH, a wholly-owned subsidiary of the
Company, as guarantor, Deutsche Bank AG as arranger, Deutsche Bank
Luxembourg S.A. as facility agent, Deutsche Bank Luxembourg S.A. as
security agent and each financial institution listed in the schedule
thereto as a lender (the "FACILITY AGREEMENT").
(B) The Company is proposing to borrow monies pursuant to the Facility
Agreement in order to finance the construction of a broadband wireless
access network in Germany connected by wireless local loop based on
point-to-multipoint technology and for working capital purposes. The
Company is a wholly-owned subsidiary of the Parent Company. It is a
condition precedent to the obligations of the Lenders to make Advances
under the Facility Agreement that the Parent Company, the Company, the
Agent and the Security Agent enter into this Agreement in order to set out,
INTER ALIA, the terms upon which Contributed Equity shall be provided by
the Parent Company to the Company.
(C) The Security Agent acts as security agent for the Lenders under the
Security Documents. The Agent acts as facility agent for the Lenders under
the Facility Agreement.
In consideration of the Lenders, the Agent and the Security Agent
entering into the Facility Agreement IT IS AGREED as follows:
<PAGE>
3
PART 1
DEFINITIONS AND INTERPRETATION
1. DEFINITIONS AND INTERPRETATION
1.1 FACILITY AGREEMENT DEFINITIONS
Capitalised terms used in this Agreement but not otherwise defined herein
shall have the same meanings as specified in the Facility Agreement.
1.2 DEFINITIONS
In this Agreement the following definitions apply:
"ACCELERATION" means an acceleration by the Agent pursuant to Clause 23.2
of the Facility Agreement of repayment in whole or in part of any Advances
following the occurrence of an Event of Default.
"EQUITY CONTRIBUTION" means Contributed Equity made available to the
Company.
"PAYMENT DEFAULT" means an Event of Default under Clause 23.1 (A)
of the Facility Agreement provided that the unpaid sum in respect of which
the Event of Default has occurred is greater than Euro 1,000,000.
"TAX PAYMENT" means an increased payment made by the Parent Company under
Clause 9.3.
"TOTAL EQUITY" means Euro 200,000,000 (two hundred million euros).
1.3 INTERPRETATION
Any reference in this Agreement to any party to this Agreement shall be
construed so as to include their respective successors, Transferees and
assigns in accordance with their respective interests
2. CASH FUNDING CONTRIBUTION OBLIGATIONS
2.1 MAINTENANCE OF DEBT TO EQUITY RATIO
The Parent Company hereby irrevocably and unconditionally undertakes to
each other party to this Agreement that it shall, in accordance with the
provisions of this Agreement make Equity Contributions or procure that
Equity Contributions are made from time to time in amounts sufficient to
ensure that the ratio of Total Indebtedness to Contributed Equity shall not
at any time exceed 3:2.
<PAGE>
4
2.2 TIMING OF EQUITY CONTRIBUTIONS
(A) The Agent shall, if instructed to do so by (a) an Instructing
Group; or (b) Siemens; or (c) each Lender under the Tranche A2
Facility, at any time following the occurrence of a Payment
Default, notify the Parent Company requiring it to pay an amount
sufficient to enable the Borrower to remedy such Payment Default.
(B) The Agent shall if instructed to do so by an Instructing Group at
any time following the occurrence of an Acceleration, notify the
Parent Company requiring it to pay an amount equal to the amount
(if any) (the "BALANCE OF TOTAL EQUITY") by which Total Equity
exceeds the aggregate amount of Equity Contributions made by the
Parent on or before the date of such notice.
(C) The Parent Company undertakes for the benefit of the
Beneficiaries, Siemens and the Company that it shall, within 10
Business Days of receipt of a notice pursuant to paragraph (A) or
(B), make or procure the making of an Equity Contribution to the
Borrower of an amount equal to the amount required to be paid to
enable the Borrower to remedy the relevant Payment Default or, as
the case may be, the Balance of Total Equity. Nothing in this
Clause 2.2 shall require the Parent to make aggregate Equity
Contributions in excess of the Total Equity.
2.3 IMPLEMENTATION OF CONTRIBUTED EQUITY
The Parent Company undertakes to each other party to this Agreement
to enter into or to procure the entering into of whatever
agreements, execute or procure the execution of whatever
documents, apply for or procure the application for any
authorisations and carry out or procure the carrying out of whatever
actions (including, without limitation, exercising any right to vote
to pass any resolutions necessary to increase the share capital of the
Company) which are necessary for the Company to receive from the
Parent Company such Equity Contributions as are required to be made
pursuant to this Agreement. In particular, the Parent Company
undertakes, in respect of Equity Contributions, (i) to exercise its
voting rights in shareholder's resolutions of the Company to effect
capital increases in nominal amounts determined by the Parent Company
and with contribution amounts in accordance with Clauses 2.1 and 2.2,
(ii) to subscribe for the new shares, (iii) to make the relevant
contributions to the Company and (iv) to procure that the Company
immediately takes all actions necessary to have each such capital
increase registered in the commercial register.
2.4 SHARE PLEDGE
In connection with Equity Contributions by way of subscription
of share capital the Parent Company shall ensure that the
new shares are not pledged, assigned or encumbered for the benefit of
any other party in order to allow the creation of a first ranking
pledge for the benefit of the Beneficiaries and Siemens.
<PAGE>
5
2.5 THE COMPANY TO REMAIN A WHOLLY-OWNED SUBSIDIARY
The Parent Company undertakes to each other party to this Agreement to hold
(or procure that Affiliates of the Parent hold or any combination of them
hold) at all times, until all obligations of the Company under the Facility
Documents have been satisfied, 100 % of all shares (of whatever class and
including securities convertible into shares) in the capital of the
Company.
2.6 NOTIFICATIONS TO THE PARENT COMPANY
(A) Without prejudice to the obligations of the Parent Company under this
Agreement if the Company does not receive Equity Contributions from
the Parent Company at the time and in the amount and manner required
under this Agreement, it shall immediately give written notice of that
fact to the Parent Company and simultaneously provide a copy of that
notice to the Security Agent.
(B) Any failure by the Company to comply with the provisions of this
Agreement shall not release or in any way prejudice the obligations of
the Parent Company under this Agreement.
3. SUBORDINATION OF SUBORDINATED DEBT AND THIN CAPITALISATION
(A) The Parent Company acknowledges and agrees to the restrictions
stated in the Facility Agreement on the making of distributions
by the Company, or payment by the Company of dividends or of
interest or principal in relation to the Subordinated Debt.
(B) The Parent Company shall make Equity Contributions (or procure
that they are made) in such proportions of invested equity and
advanced Subordinated Debt, as shall comply with the requirements
of German law relating to thin capitalisation and minimum equity
amounts.
4. SIEMENS' RIGHTS
Siemens shall have no rights under this Agreement at any time after the
termination of the Siemens Guarantee in accordance with its terms.
5. REPRESENTATIONS AND WARRANTIES
5.1 LEGAL REPRESENTATIONS
The Parent Company represents and warrants to the Agent and the Security
Agent in the terms set out in this Clause 5.1 and acknowledges that the
Agent and the Security Agent and the Lenders have entered into the Facility
Agreement in reliance on these representations and warranties.
<PAGE>
6
(A) STATUS AND DUE AUTHORISATION
The Parent Company is a body corporate duly organised and
validly existing under the laws of the Grand-Duchy of Luxembourg,
is qualified to do business and in good standing in all
jurisdictions in which the nature of the business conducted by it
makes such qualification necessary, and is so organised with power to
own its assets and carry on its business as now proposed to be
conducted, and execute and deliver this Agreement and to exercise its
rights and perform its obligations under this Agreement, and all
corporate and other action required to authorise its execution and
delivery of this Agreement and its exercise of its rights and its
performance of its obligations under this Agreement has been duly
taken.
(B) BINDING OBLIGATIONS
The obligations expressed to be assumed by the Parent Company in this
Agreement are its legal, valid and binding obligations enforceable,
subject only to the Reservations, in accordance with their terms.
(C) CLAIMS PARI PASSU
The claims of the Company, the Agent, the Security Agent and the
Lenders against the Parent Company under this Agreement rank at least
PARI PASSU with the claims of all other unsecured and unsubordinated
creditors of the Parent Company, save those whose claims are preferred
solely by any bankruptcy, insolvency, liquidation or other similar
laws of general application.
(D) GOVERNING LAW AND JUDGMENTS
In any proceedings taken in the Federal Republic of Germany or The
Grand-Duchy of Luxembourg in relation to this Agreement, the choice of
the governing law expressed herein and any judgement obtained in the
Federal Republic of Germany or the Grand-Duchy of Luxembourg in
respect of this Agreement will be recognised and enforced.
(E) VALIDITY AND ADMISSIBILITY IN EVIDENCE
All acts, conditions and things required to be done, fulfilled and
performed in order:
(a) to enable the Parent Company lawfully to enter into, exercise its
rights under and perform and comply with the obligations
expressed to be assumed by it in this Agreement;
(b) to ensure that the obligations expressed to be assumed by the
Parent Company in this Agreement are legal, valid and binding;
and
<PAGE>
7
(c) to make this Agreement admissible in evidence in the Federal
Republic of Germany and the Grand-Duchy of Luxembourg,
have been done, fulfilled and performed.
(F) NO FILING OR STAMP TAXES
Under the laws of the Federal Republic of Germany and the Grand-Duchy
of Luxembourg in force at the date of this Agreement, it is not
necessary that this Agreement be filed, recorded or enrolled with any
court or other authority in any of these jurisdictions or that any
stamp, registration or similar tax be paid on or in relation to this
Agreement.
(G) AUTHORISED AND ISSUED SHARE CAPITAL
The issued share capital of the Parent Company is as set out in part 1
of the Schedule.
(H) BOARD OF DIRECTORS
The names of the current members of the board of directors of the
Parent Company are set out in part 2 of the Schedule.
5.2 FACTUAL REPRESENTATIONS
The Parent Company makes the representations and warranties set out in this
Clause 5.2 and acknowledges that the Agent, the Security Agent and the
Lenders have entered into this Agreement and the Facility Agreement in
reliance on those representations and warranties.
(A) NO LITIGATION OR OTHER PROCEEDINGS
No litigation, arbitration or other action or administrative
proceedings of or before any court or agency and involving the Parent
Company, as at the date of this Agreement, has been started or
threatened and, as at any date thereafter on which this representation
is repeated, has been started or threatened where it is reasonably
likely to have a Material Adverse Effect.
(B) ORIGINAL FINANCIAL STATEMENTS
Each of the Original Financial Statements of the Parent Company and
the financial statements delivered under Clauses 6.1 and 6.2 of this
Agreement were (save as disclosed in them) prepared in accordance with
current accounting practice consistently applied and give (in
conjunction with the notes to them) a true and fair view of the
financial condition of the Parent Company at the date as at which they
were prepared and the results of the Parent Company's operations
during the financial year then ended.
<PAGE>
8
(C) NO MATERIAL ADVERSE CHANGE
Since publication of the Original Financial Statements of the Parent
Company there has been no material adverse change in the business or
condition (financial or otherwise) of the Parent Company.
(D) NO WINDING-UP
The Parent Company has not taken any corporate action nor have any
other steps been taken or legal proceedings been started or threatened
against the Parent Company for its winding-up, dissolution,
administration or re-organisation or for the appointment of a
receiver, administrator, administrative receiver, trustee or similar
officer of it or of any or all of its assets or revenues nor has the
Parent Company taken any proceedings leading to insolvency or
suspension of payments of the Parent Company.
(E) NO MATERIAL DEFAULTS
The Parent Company is not in breach of or in default under any
agreement to which it is a party which is binding on it or any of its
assets to an extent or in a manner which is reasonably likely to have
a Material Adverse Effect.
(F) NO UNDISCLOSED LIABILITIES
The Parent Company did not have, as at the date of its Original
Financial Statements, any material liabilities (contingent or
otherwise) which were not disclosed in such Original Financial
Statements (or by the notes to them) or reserved against them nor were
there at that date any material unrealised or anticipated losses of
the Parent Company arising from commitments entered into by it which
were not so disclosed or reserved against. For this purpose, "MATERIAL
LIABILITIES" or "MATERIAL UNREALISED OR ANTICIPATED LOSSES" means any
liability or, as the case may be, loss, which is reasonably likely to
have a Material Adverse Effect.
(G) EXECUTION AND DELIVERY OF THIS AGREEMENT
Execution by the Parent Company of this Agreement and its exercise of
its rights and performance of its obligations under them do not and
will not:
(i) conflict with any agreement, mortgage, bond or other instrument
or treaty to which it is a party or which is binding upon it or
any of its assets;
(ii) conflict with its constitutional documents, rules, regulations or
any shareholders agreement to which it is a party;
(iii)require any consent or approval of its board of directors or
shareholders which consent or approval has not been obtained, and
each such
<PAGE>
9
consent and approval that has been obtained is adequate for its
intended purpose and is in full force and effect;
(iv) conflict with any applicable law, regulation or official or
judicial order; or
(v) result in or require the creation of any encumbrance over any of
its assets.
5.3 REPETITION OF REPRESENTATIONS
The representations set out in Clauses 5.1(B) (Binding Obligations), 5.1(C)
(Claims Pari Passu), 5.2(A) (No Litigation or Other Proceedings), 5.2(B)
(Original Financial Statements) (but only in respect of the Latest
Financial Statements at that time), 5.2(C) (No Material Adverse Change),
5.2(D) (No Winding-up) and 5.2(E) (No Material Defaults) shall be repeated
on each date on which a Notice of Drawdown is given, on which an Advance is
made under the Facility Agreement, on the Syndication Date and each
Interest Payment Date under the Facility Agreement, in each case by
reference to the facts and circumstances then existing.
6. INFORMATION
6.1 ANNUAL STATEMENTS
The Parent Company shall, as soon as the same become available but in any
event within 90 days after the end of each of its respective financial
years, deliver to the Agent with sufficient copies for each of the
Beneficiaries its audited financial statements for the relevant financial
year, and the auditor's report in relation to such statements shall not
contain any qualifications.
6.2 QUARTERLY STATEMENTS
The Parent Company shall, as the same become available but in any event
within 45 days after the end of each of its respective financial quarters,
deliver to the Agent with sufficient copies for each of the Beneficiaries
its unaudited financial statements for such relevant quarter.
6.3 REQUIREMENTS AS TO FINANCIAL STATEMENTS
The Parent Company shall ensure that:
(A) each set of its financial statements delivered pursuant to Clauses 6.1
and 6.2 is prepared on the same basis, including accounting policies,
practices, procedures, and reference periods, as was used in the
preparation of its Original Financial Statements and in accordance
with current accounting practice and consistently applied or where it
is not so prepared including (i) a description of any changes to the
basis of preparation (ii) a statement of the reasons why such change
has been implemented and (iii) a pro forma set of financial statements
prepared on the previous basis;
<PAGE>
10
(B) each set of its quarterly financial statements delivered pursuant to
Clause 6.2 shall include a narrative report for the relevant quarterly
period, a balance sheet, profit and loss account and statement of use
of funds as at the end of and for that quarterly period and a
comparison of the balance sheet and profit and loss account;
(C) each set of its financial statements delivered pursuant to Clauses 6.1
and 6.2 is certified by a duly authorised officer of it as giving a
true and fair view of its financial condition as at the end of the
period to which those financial statements relate and of the results
of its operations during the relevant period;
(D) each set of financial statements delivered by it pursuant to Clause
6.1 has been audited by the Auditor.
6.4 LITIGATION
The Parent Company shall promptly notify the Agent of any litigation,
arbitration, administration or other legal or dispute resolution
proceedings involving the Parent Company which if found against the Parent
Company is reasonably likely to have a Material Adverse Effect.
6.5 UPDATE OF SHAREHOLDER SCHEDULE
The Parent Company is currently finalising the terms of subscription of a
number of additional shareholders. Promptly following the completion of
such subscriptions, and in any case no later than 30th June, 2000, the
Parent Company shall provide to the Security Agent, with a copy to Siemens,
an updated form of the Schedule, reflecting all intervening changes in the
members of the Parent Company and their respective shareholdings.
7. NO DISCHARGE OF THE PARENT COMPANY
7.1 The Parent Company's obligations under this Agreement are absolute,
irrevocable and unconditional, and the Parent Company shall not be released
or discharged from any of its obligations under this Agreement, nor shall
any of such obligations be in any way prejudiced or affected by:
(A) any invalidity, unenforceability, illegality or voidability of any
obligation under any Transaction Document; or
(B) any variation or amendment of, or waiver or release granted under or
in connection with, any Transaction Document or other document; or
(C) time being given, or any other indulgence or concession being granted,
by the Company, the Agent, the Security Agent, any Lender or any other
person under any Transaction Document; or
<PAGE>
11
(D) the taking, holding, failure to take or hold, varying, realisation,
non-enforcement, non-perfection or release by the Agent, the Security
Agent, any Lender or any other person of any other guarantee and/or
indemnity or any security for any of the obligations under the
Facility Documents; or
(E) the bankruptcy, insolvency, liquidation, amalgamation, reconstruction,
reorganisation, administration, administrative or other receivership
or dissolution of the Company, any Relevant Company or any other
person, or any equivalent or analogous proceeding by whatever name
known and in whatever jurisdiction; or
(F) any change in the constitution of the Company, FirstMark Deutschland
or any other person; or
(G) any amalgamation, merger or reconstruction that may be effected by any
Beneficiary or by the Company or FirstMark Deutschland with any other
person or any sale or transfer of the whole or any part of the
undertaking and assets of any Beneficiary or by the Company or
FirstMark Deutschland to any other person; or
(H) the existence of any claim, set-off or other rights which the Parent
Company may have at any time against any Beneficiary or against the
Company or FirstMark Deutschland or any other person, or which the
Company or FirstMark Deutschland may have at any time against any
Beneficiary, whether in connection with a Transaction Document or
otherwise; or
(I) the granting by a Beneficiary to the Company or FirstMark Deutschland
of any other financial accommodation or the withdrawal or restriction
by a Beneficiary of any financial accommodation, or the absence of any
notice to the Parent Company of any such granting, withdrawal or
restriction; or
(J) any arrangement or compromise entered into by a Beneficiary with the
Company or FirstMark Deutschland or any other person; or
(K) any other thing done or omitted or neglected to be done by any
Beneficiary or any other person or any other dealing, fact, matter or
thing (including, but without limitation, any circumstances whatsoever
affecting or preventing recovery of amounts under any Transaction
Document) which, but for this provision, might operate to exonerate or
discharge the Parent Company from, or otherwise prejudice or affect,
any of the Parent Company's obligations under this Agreements,
in each case, unless and until the Company's obligations under the Facility
Documents have been satisfied in full.
<PAGE>
12
8. PAYMENTS
8.1 CURRENCY OF ACCOUNT
The Euro is the currency of account and payment for each and every sum at
any time due from the Parent Company under this Agreement to the Company.
8.2 CURRENCY INDEMNITY
If any sum due from the Parent Company under this Agreement or any order or
judgement given or made in relation to this Agreement has to be converted
from the currency (the "FIRST CURRENCY") in which it is payable under this
Agreement or under the order or judgement into another currency (the
"SECOND CURRENCY") for the purpose of:
(A) making or filing a claim or proof against the Parent Company;
(B) obtaining an order or judgement in any court or other tribunal; or
(C) enforcing any order or judgement,
the Parent Company shall indemnify and hold harmless each of the persons to
whom the sum is due from and against any loss suffered or incurred as a
result of any discrepancy between (i) the rate of exchange used for the
purpose of converting the sum in question from the first currency into the
second currency, and (ii) the rate or rates of exchange at which a person
may in the ordinary course of business purchase the first currency with the
second currency on receipt of a sum paid to it in satisfaction, in whole or
in part, of any order, judgment, claim or proof.
8.3 PAYMENTS TO THE COMPANY
The Parent Company shall make any amounts payable tothe Company under or in
connection with this Agreement TO SUCH ACCOUNT AS MAY BE SPECIFIED BY THE
COMPANY.
8.4 NO SET-OFF
All payments required to be made by the Parent Company under this Agreement
to the Company shall be calculated without reference to any set-off or
counterclaim and shall be made free and clear of and without any deduction
for or on account of any set-off or counterclaim.
9. MISCELLANEOUS
9.1 ADDRESSES OF OBLIGATIONS; PAYMENTS TO SECURITY AGENT
Unless stated otherwise, all obligations, agreements, representations and
warranties made by the Parent Company and the Company in this Agreement are
made to the
<PAGE>
13
Security Agent for and on behalf of the Lenders. Notices by the Parent
Company and the Company to the Lenders in connection with this Agreement
shall be addressed to the Security Agent.
9.2 RELEASES
The Company shall not enter into any release, settlement, discharge or
arrangement with the Parent Company related to the Parent Company's
obligations under this Agreement except as directed and approved by the
Security Agent. Any release, settlement, discharge or arrangement between
the Security Agent and the Parent Company and any other party to this
Agreement (a "RELEASE") shall be subject to the condition that if any
payment or satisfaction made or guarantee given in relation to the Parent
Company's obligations under this Agreement by the Parent Company or any
other person (a "RELEVANT TRANSACTION") shall be avoided, reduced or
invalidated by virtue of any applicable law or for any other reason
whatsoever, then such Release shall be void and of no effect, and each
other party to the Release may recover immediately the value or amount, or
(as the case may be) the reduction in value or amount, thereof from the
Parent Company as if such Release had not occurred.
9.3 TAX GROSS-UP
The Parent Company shall procure that all payments (including, for the
avoidance of doubt, cash equity contributions) to be made by it under or
pursuant to this Agreement shall be made free and clear of and without
deduction for or on account of tax imposed by the Grand-Duchy of Luxembourg
or any other jurisdiction through which payments under this Agreement are
to be made unless the Parent Company is required to make the payment
subject to the deduction or withholding of tax, in which case the sum
payable by the Parent Company in respect of which such deduction or
withholding is required to be made shall be increased to the extent
necessary to ensure that, after the making of the required deduction or
withholding, the Company receives and retains (free from any liability in
respect of any deduction or withholding) a net sum equal to the sum which
it would have received and retained had no deduction or withholding been
made or required to be made.
9.7. NOTICES
(A) Communications in Writing
Each communication to be made under this Agreement shall be
made in writing and, unless otherwise stated, shall be made by fax,
telex or letter.
(B) Delivery
Any communication or document to be made or delivered by one
person to another pursuant to this Agreement shall (unless that other
person has by 15
<PAGE>
14
days' written notice to the Security Agent specified another address)
be made or delivered to that other person at the address identified
with its signature below.
(C) English Language
Each communication and document made or delivered by one party to
another pursuant to this Agreement shall be in the English language or
accompanied by a translation into English certified (by an officer of
the person making or delivering the same) as being a true and accurate
translation.
9.4 FURTHER ASSURANCE
The Parent Company agrees to do or cause to be done all such further acts,
documents and assurances which the Company or the Security Agent may
reasonably require in order to give effect to the intent and purposes of
this Agreement.
9.5 COUNTERPARTS
This agreement may be executed in any number of counterparts but shall not
be effective until each party hereto has executed at least one counterpart.
Such counterpart shall constitute an original of this Agreement but all the
counterparts shall together contribute but one and the same instrument.
9.6 REMEDIES AND WAIVERS AND PARTIAL INVALIDITY
(A) No failure to exercise, nor any delay in exercising, on the part of
the Company or any Beneficiary, any right or remedy under this
Agreement shall operate as a waiver, nor shall any single or partial
exercise of any right or remedy prevent any further or other exercise
of the right or remedy or the exercise of any other right or remedy.
The rights and remedies provided under this Agreement are cumulative
and not exclusive of any rights or remedies provided by law.
(B) If, at any time, any provision of this Agreement becomes illegal,
invalid or unenforceable in any respect under the law of any
jurisdiction, neither the legality, validity or enforceability of the
remaining provisions of this Agreement nor the legality, validity or
enforceability of the provisions under the law of any other
jurisdiction shall in any way be affected or impaired as a result.
9.7 ASSIGNMENTS
(A) This agreement shall be binding on, and enure to the benefit of, each
party to it and its or any subsequent successors, transferees and
assigns.
(B) Neither the Parent Company nor the Company shall be entitled to assign
or transfer any of its rights, benefits or obligations under this
Agreement without the prior written consent of the Security Agent.
<PAGE>
15
(C) The Parent Company consents to the assignment of the Company's rights
under this Agreement to the Security Agent.
9.8 LAW AND LANGUAGE
(A) The agreement shall be governed by, and shall be construed in
accordance with, English law.
(B) The ruling and operative language of the agreement will be the English
language. In the case of any inconsistency between the English
language version of this Agreement and any German translation of this
Agreement, the English language shall prevail.
10. JURISDICTION
10.1 ENGLISH COURTS
Each of the parties to the agreement irrevocably agrees for the benefit of
the Security Agent and the Lenders that the courts of England shall have
jurisdiction to hear and determine any suit, action or proceedings, and to
settle any disputes, which may arise out of or in connection with this
Agreement (respectively "PROCEEDINGS" and "DISPUTES") and, for those
purposes, irrevocably submits to the jurisdiction of the courts of England.
10.2 APPROPRIATE FORUM
The Parent Company irrevocably waives any objection which it might have at
any time to the courts referred to in Clause 10.1 being nominated as the
forum to hear and determine any Proceedings and to settle any Disputes and
agrees not to claim that any such court is not a convenient or appropriate
forum.
10.3 SERVICE OF PROCESS
The Parent Company agrees that the process by which any Proceedings are
begun may be served on it by being delivered in connection with any
Proceedings in England, to FirstMark Communications Europe S.A. at 4th
Floor, 1 James Street, London W1M 5HY. If the appointment in this Clause
10.3 ceases to be effective in respect of the Parent Company, the Parent
Company shall immediately appoint a further person in England to accept
service of process on its behalf in England and, failing appointment within
15 days, the Security Agent shall be entitled to appoint any person for
that purpose by notice to the Parent Company. Nothing contained in this
Clause 10 shall affect the right to serve process in any other manner
permitted by law.
10.4 NON-EXCLUSIVE SUBMISSIONS
The submission to the jurisdiction of the courts referred to in Clause 10.1
shall not (and shall not be construed so as to) limit the right of any
party to take Proceedings against any other party in any other court of
competent jurisdiction nor shall the taking of
<PAGE>
16
Proceedings in any one or more jurisdictions preclude the taking of
Proceedings in any other jurisdiction (whether concurrently or not) if and
to the extent permitted by applicable law.
10.5 WAIVER OF IMMUNITY
To the extent that the Parent Company may in any jurisdiction claim for
itself or its assets immunity from suit, execution, attachment (whether in
aid of execution, before judgment or otherwise) or other legal process and
to the extent that in any jurisdiction immunity there may be attributed to
itself or its assets (whether or not claimed), the Parent Company
irrevocably agrees not to claim and irrevocably waives the immunity to the
full extent permitted by the laws of the relevant jurisdiction.
11. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
The parties to this Agreement do not intend that any term of this Agreement
should be enforceable, by virtue of the Contracts (Rights of Third Parties)
Act 1999, by any person who is not a party to this Agreement.
IN WITNESS of which this document has been executed as an agreement on the date
which first appears on page 1 above.
THE COMPANY
FIRSTMARK COMMUNICATIONS DEUTSCHLAND HOLDINGS GmbH
BY:
Gunther-Wagner-Allee 13,
D-30177, Hanover
Telephone: (+49) 511 8797 7150
Facsimile: (+49) 511 8797 7509
Attention: Peter Schlichter
<PAGE>
17
THE PARENT COMPANY
FIRSTMARK COMMUNICATIONS EUROPE S.A.
BY:
1, James Street,
London W1M 5HY
Telephone: (+44) 20 7529 5024
Facsimile: (+44) 20 7529 5022
Attention: Alison Dolan
AGENT
DEUTSCHE BANK LUXEMBOURG S.A.
BY:
2, Boulevard Konrad Adenauer
L-1115 Luxembourg
Telephone: (+352) 42122 296
Facsimile: (+352) 42122 287
Attention: Gerd Meyer
SECURITY AGENT
DEUTSCHE BANK LUXEMBOURG S.A.
BY:
2, Boulevard Konrad Adenauer
L-1115 Luxembourg
Telephone: (+352) 42122 296
Facsimile: (+352) 42122 287
Attention: Gerd Meyer
<PAGE>
18
SIEMENS
SIEMENS AG
BY:
Siemens AG SFS PEF 1 CRM
Hofmannstr. 51
D-81359 Munchen
Telephone: (+49) 89 722 44 939
Facsimile: (+49) 89 722 41 225
Attention: Mr. Martinus Hartman
<PAGE>
19
SCHEDULE
PART 1: AUTHORISED AND ISSUED SHARE CAPITAL OF THE PARENT COMPANY
All shares in the Parent Company have a nominal value of $1.50.
The table below shows the names of the shareholders of the Parent Company and of
certain individuals each of whom has subscription rights in the Parent Company,
together in each case with a note of the shares in the Parent Company (a) held
by them; and (b) in relation to which each such person has subscription rights.
<TABLE>
<CAPTION>
-----------------------------------------------------------------------------------------------
MEMBERS SHARES HELD BY MEMBER SHARES IN RELATION TO WHICH
THE MEMBER HAS
SUBSCRIPTION RIGHTS
-----------------------------------------------------------------------------------------------
<S> <C> <C>
FirstMark Communications 90,466 shares of Common None
International LLC Stock
-----------------------------------------------------------------------------------------------
FirstMark Communications 1 share of Common Stock None
International II LLC
-----------------------------------------------------------------------------------------------
FirstMark Fiber Holdings LLC 9,937 shares of Series C None
Convertible Preferred
-----------------------------------------------------------------------------------------------
World Online 10,015 shares of Series A None
Convertible Preferred; 253
shares of Series B Convertible
Preferred; 1,106 shares of
Series C Convertible Preferred
-----------------------------------------------------------------------------------------------
Merchant Capital 2,272 shares of Series B None
Convertible Preferred
-----------------------------------------------------------------------------------------------
ABN AMRO Ventures BV 1,581 shares of Series E None
Convertible Preferred
-----------------------------------------------------------------------------------------------
Current Private Round 120,000 shares of Series F None
Investors including Siemens Convertible Preferred and
Series F2 Convertible
Preferred
-----------------------------------------------------------------------------------------------
Beneficiaries of Stock Option 1,136 shares of common stock 17,567 options to purchase
Plan of the Parent Company common stock
-----------------------------------------------------------------------------------------------
</TABLE>
NB: The Management of LambdaNet GmbH currently holds 13.350% of LambdaNet
equity. It is agreed that this share holding will convert into 4,805 shares of
FirstMark Communications in October 2000. This transaction is pending final
documentation.
<PAGE>
20
PART 2: NAMES OF THE CURRENT MEMBERS OF THE BOARD OF DIRECTORS OF THE PARENT
COMPANY
The following persons will comprise the Board of Directors of FirstMark
Communications Europe S.A. as of the Initial Closing Date of the current Series
F preferred equity round:
1. Victor Bischoff
2. Juan-Luis Cebrian
3. Lynn Forester
4. Edward A. Gilhuly
5. Alan Goldberg
6. Francois Jaclot
7. David C. Lee
8. Hughes Lepic
9. Michael J. Price
10. Sir Evelyn de Rothschild
11. Timothy A. Samples
12. Lawrence B. Sorrel
13. Helmut Werner
