<PAGE>
Exhibit 10.9
COMMERCIAL CONTRACT DE COUNTERGUARANTEE AND DISCLOSURE OF SURETY BOND
In [Madrid], on [7th ] of [April] of two thousand.
BETWEEN
OF THE FIRST PART AS GUARANTOR ENTITIES:
CAJA DE AHORROS PROVINCIAL SAN FERNANDO DE SEVILLA Y JEREZ (CAJA SAN FERNANDO)
of Spanish nacionality, having its place business in Sevilla, Plaza de San
Francisco, 1, with Spanish National Company Tax Number G-41000167.
MONTE DE PIEDAD Y CAJA DE AHORROS DE HUELVA Y SEVILLA (EL MONTE), of Spanish
nacionality, having its place business in Sevilla, Plaza de Villais, 2, with
Spanish National Company Tax Number G-41/402819
CAJA DE AHORROS DE SALAMANCA Y SORIA (CAJA DUERO), having its place business in
Salamanca, Plaza de los Bandos, numbers 15-17, with Spanish National Company Tax
Number G-37244191
CAJA DE AHORROS Y MONTE DE PIEDAD DE ZARAGOZA ARAGON Y RIOJA (IBERCAJA) of
Spanish nationality, having its place of business in Zaragoza at Plaza Basilio
Paraiso, 2 with Spanish National Company Tax Number G-50-000.652
SOCIEDAD ESPANOLA DE BANCA DE NEGOCIOS, S.A., (EBN BANK) of Spanish nationality,
having its place of business in Madrid, calle de Almagro, 46, with Spanish
National Company Tax Number A-28763043
CAJA DE AHORROS DEL MEDITERRANEO (CAM), having its place business in Alicante,
calle San Fernando, 40, with Spanish National Company Tax Number G-03046562
CAJA DE AHORROS Y MONTE DE PIEDAD DE BALEARES, (SA NOSTRA) with Spanish National
Company Tax Number G-07-013154, having its place business in Palma de Mallorca,
Calle Ramon Llull, numero 2.
MONTES DE PIEDAD. Y CAJA DE AHORROS DE RONDA, CADIZ, ALMERIA, MALAGA Y ANTEQUERA
(UNICAJA), with Spanish National Company Tax Number G-29498086 and having its
place business in Malaga, Avenida de Andalucia, numero 10-12.
duly represented in this act, (hereinafter known as THE GUARANTOR ENTITIES )
OF THE SECOND PART AS THE GUARANTEED PARTY:
COMUNICATIONS SPAIN, S.L. (PRIVATE LIMITED COMPANY), having its place of
business in Barcelona, at Avenida Diagonal, 654-B, with Spanish National Company
Tax Number B 6192069, duly represented in this act (hereinafter known as THE
GUARANTEED PARTY).
AND OF THE THIRD PART AS WARRANTORS OF THE GUARANTEED PARTY:
FIRSTMARK COMUNICATIONS EUROPE of Luxembourg nacionality, having its place of
business in Louxemburg, Rue de Jean Piret, 3, with Identification Code B-65.610
<PAGE>
INMOBILIARIA AZTLAN SOCIEDAD ANONIMA DE CAPITAL VARIABLE, of Mexican
nationality, having its place of business in FD Mexico, at Parque Via Avenida,
198, Colonia Cauthtemoc
PROMOTORA DE INFORMACIONES, S.A., Spanish company, having its place of business
in Madrid, at Gran Via 32, with Spanish National Company Tax Number A28/297059
INFORMATICA DEL CORTE INGLES, S.A., of Spanish nacionality, having its place of
business in Madrid, Hermosilla, 112, with Spanish National Company Tax Number
A-28855260
OMEGA CAPITAL, S.L., of Spanish nacionality, having its place of business in
Madrid, Paseo de la Castellana 31, with Spanish National Company Tax Number
B-80932445
CAJA DE AHORROS DE SALAMANCA Y SORIA (CAJA DUERO), having its place of business
in Salamanca, Plaza de los Bandos, numbers 15-17, with Spanish National Company
Tax Number G-37244191
CAJA DE AHORROS Y MONTE DE PIEDAD DE ZARAGOZA ARAGON Y RIOJA (IBERCAJA), of
Spanish nationality, having its place of business in Zaragoza, Plaza Basilio
Paraiso, 2, with Spanish National Company Tax Number G-50-000.652.
CAJA DE AHORROS PROVINCIAL SAN FERNANDO DE SEVILLA Y JEREZ (CAJA SAN FERNANDO)
of Spanish nationality, having its place of business in Seville, Plaza de San
Francisco, 1, with Spanish National Company Tax Number G-41000167
MONTE DE PIEDAD Y CAJA DE AHORROS DE HUELVA Y SEVILLA (EL MONTE), of Spanish
nationality, having its place of business in Seville, at Plaza de Villais, 2,
with Spanish National Company Tax Number G-41/402819
DIARIO DE BURGOS, S.A. Spanish company, having its place of business in Burgos,
at calle de San Pedro de Cardena,34, with Spanish National Company Tax Number
A-09002387.
duly represented in this act,(hereinafter known as THE WARRANTORS OR THE
WARRANTING ENTITIES)
AND OF THE FOURTH PART
FONSAGRADA. S.L. appearing for the sole purposes which shall be stated, of
Spanish nacionality, having its place of business in Madrid, Paseo de la
Castellana, 31, with Spanish National Company Tax Number B-79314191.
All such entities represented by the persons signing at the end of this
contract, hold that they have sufficient powers and faculties to bind their
representatives to the terms of this contract.
DECLARE
I.- That the GUARANTEED PARTY has been awarded one of the licences which were
referred to in the public auction held following two state Orders of the 7th of
October 1999 (BOE - Spanish Official State Gazette number 242, of 9). This
concerned the awarding of three licences of the C2 class for the establishment
and use of fixed public networks of radio access in the waveband 3.4 to 3.6 Ghz.
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That the awarding of said individual licence is governed by the document of
particular administrative clauses and technical provisions approved by the
aforesaid Orders of the Spanish Ministry of Public Works.
II.- That, by virtue of the terms of the 9th (final) Administrative Clause of
the Document of Particular Administrative Clauses and Technical Prescriptions of
Public Invitations to Tender FIRSTMARK COMUNICACIONES ESPANA, S.L. has tendered
the constitution of FIFTY ONE (51) endorsements (hereinafter known as the
ENDORSEMENTS) to correspond to the obligations that are contained in the tender
that were submitted in the invitation to tender alluded to in the previous
Expositive.
III. - That the GUARANTEED PARTY has requested from the GUARANTOR ENTITIES the
concession of FIFTY ONE (51) endorsements, for their delivery and deposit in the
Caja General de Depositos of the Spanish Ministry of Public Works, for up to the
time, limit and other conditions that shall be stated, by which the GUARANTOR
ENTITIES secure the GUARANTEED PARTY before the Spanish Ministry of Public
Works, (hereinafter known as the BENEFICIARY) to the total sum of THIRTY
THOUSAND,SIX HUNDRED AND TWENTY ONE MILLION FIVE HUNDRED THOUSAND PESETAS
(30,621,500,000.-ptas), equivalent to184,038,921.54 euros, for the purpose of
corresponding to the obligations that are set out in each one of the
ENDORSEMENTS that are the object of this contract, and a copy of which is
incorporated as an appendix hereto.
IV.- That the GUARANTOR ENTITIES have agreed with the GUARANTEED PARTY to the
provision of the guarantees requested, along with the formalization of the
counterguarantee and disclosure of a surety bond in order to regulate the
relationships deriving from the provision of the ENDORSEMENTS. This is in
addition to the relationships that arise from the granting of said ENDORSEMENTS
and to guarantee the risks deriving from the provision thereof to the GUARANTOR
ENTITIES.
V.- That the GUARANTOR ENTITIES, with the aim of normalizing the relationship
that derives between them as endorsing parties of the GUARANTEED PARTY with
respect to BENEFICIARY, have agreed to the establishing of a guarantor syndicate
which has been appointed as the AGENT ENTITY to EBN BANCO (hereinafter known as
the AGENT ENTITY), and that for this reason it appears in this contract in its
double capacity as both GUARANTOR ENTITY and as AGENT ENTITY of the the
guarantor syndicate.
VI.- That, with the intention that the obligations of the GUARANTEED PARTY with
respect to GUARANTOR ENTITIES, deriving from the provision by the latter of the
ENDORSEMENTS referred to in favour of the BENEFICIARY, be sufficiently
guaranteed, the GUARANTEED PARTY has offered the GUARANTOR ENTITIES, and the
latter have accepted, the provision of surety bonds by the WARRANTORS, in the
terms that are set out under this contract.
VII.- These being the facts, and desiring that the parties represented herein
set the terms, conditions and guarantees of the transaction, it has been agreed
to formalize this COMMERCIAL CONTRACT OF COUNTERGUARANTEE AND DISCLOSURE OF
SURETY BOND, in accordance with the following
CLAUSES
FIRST.- FORMATION OF THE GUARANTOR SYNDICATE.
CAJA DE AHORROS PROVINCIAL SAN FERNANDO DE SEVILLA Y JEREZ (CAJA SAN FERNANDO);
MONTE DE PIEDAD Y CAJA DE AHORROS DE HUELVA Y SEVILLA (EL MONTE); CAJA DE
AHORROS DE SALAMANCA Y SORIA (CAJA DUERO); CAJA DE AHORROS Y MONTE DE PIEDAD DE
ZARAGOZA, ARAGON Y RIOJA (IBERCAJA); CAJA DE AHORROS DEL MEDITERRANEO (CAM);
CAJA DE AHORROS Y MONTE DE PIEDAD DE BALEARES (SA NOSTRA); MONTES DE PIEDAD Y
CAJA DE AHORROS DE RONDA, CADIZ, ALMERIA, MALAGA Y ANTEQUERA (UNICAJA) AND
SOCIEDAD ESPANOLA DE BANCA DE NEGOCIOS, S.A. (EBN BANCO) constitute a guarantor
syndicate with the aim of covering the surety requested by the GUARANTEED PARTY,
for the sum of THIRTY THOUSAND SIX HUNDRED AND TWENTY ONE MILLION FIVE HUNDRED
THOUSAND PESETAS
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(30.621.500.000.-ptas.), equivalent to [184,038,921.54].-euros, in order to meet
the commitments and obligations that are referred to in Expositives II and III
of this contract.
The individual participation of each one of the GUARANTOR ENTITIES in the total
sum of the ENDORSEMENTS are set at the amount which is detailed below.
<TABLE>
<CAPTION>
GUARANTOR ENTITY PARTICIPACION %
<S> <C> <C>
CAJA DUERO 6.000.000.000.-ptas. 19,594%
CAJA SAN FERNANDO 6.000.000.000.-ptas. 19,594%
EL MONTE 4.000.000.000.-ptas. 13,063%
IBERCAJA 4.000.000.000.-ptas. 13,063%
EBN BANCO 3.621.500.000.-ptas. 11,827%
CAM 3.000.000.000.-ptas. 9,797%
SA NOSTRA 2.000.000.000.-ptas. 6,531%
UNICAJA 2.000.000.000.-ptas 6,531%
</TABLE>
The rights and obligations which each GUARANTOR ENTITY takes on are of a several
nature, the rights and obligations that derive from the formalization of this
contract being wholly independent of each other, except where the contrary is
expressly stated.
The surety bonds which are the object of this contract are implemented by means
of the issuing, in a several form, on the part of the GUARANTOR ENTITIES of the
51 syndicated ENDORSEMENTS to which reference has been made in the expositive
part herein.
The participation of each GUARANTOR ENTITY in each one of the ENDORSEMENTS will
be adjusted to its participation in the Guarantor Syndicate.
In the event that any of the GUARANTOR ENTITIES, in spite of the commitments
that are contracted under this contract, have the necessity of having a warranty
for breach of the obligations of the GUARANTEED PARTY, and not placing at the
disposition of the AGENT ENTITY the funds promised in accordance with this
contract, this shall not affect the other GUARANTOR ENTITIES. The latter shall
only be bound to place at the disposal of the AGENT ENTITIES the funds that are
within the limits of their liability, that correspond to them according to their
participation in the ENDORSEMENTS, without, as a result, they are bound to
assume the part corresponding to the GUARANTOR ENTITY that breaches the contract
and even though said part may fall within the maximum liability of the other
GUARANTOR ENTITIES. The foregoing shall be understood to be without prejudice to
the claims arising against the breaching party that may be encumbered upon the
GUARANTEED PARTY.
Any of the GUARANTOR ENTITIES shall be entitled to undertake actions of an
extrajudicial nature which may be conducive to the maintenance of their own
rights and those of the other GUARANTOR ENTITIES. Notwithstanding this, a
GUARANTOR ENTITY shall only be entitled to exercise its own rights judicially,
subject to the terms of this contract.
SECOND.- AGENCY.
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1. The AGENT ENTITY in this syndicate, by agreement with the GUARANTOR ENTITIES,
shall be EBN BANCO. Without detracting in any way from the independent nature of
the obligations of the GUARANTOR ENTITIES under this contract, it is expressly
stipulated that, as regards the development and operation thereof, the AGENT
ENTITY acts, not only for itself, but also as a special agent of an irrevocable
nature of the GUARANTOR ENTITIES. The payments of any nature deriving under this
contract shall be specifically made by the GUARANTEED PARTY to the AGENT ENTITY.
These shall take full and free effect on the GUARANTEED PARTY and/or its
WARRANTORS, as if they had been received in the corresponding ratio by the
GUARANTOR ENTITIES. In accordance with the terms of the second paragraph of
section 1170 of the Spanish Civil Code; in the event of a cheque forwarded in
payment to the AGENT ENTITY not being capable of being met, then said act shall
not have the effect of payment. Nor, consequently, shall it free those parties
from their obligation, nor give the AGENT ENTITY, when it makes the payments in
favour of the GUARANTOR ENTITIES, the corresponding right of action against
them.
In the same manner, and while it is not expressly stated to the contrary,
whatever notification made or received by the AGENT ENTITY, shall have the same
effect as if it had been drawn up or made by all of the GUARANTOR ENTITIES.
2. All the payments whether they be of principal, interest, commissions and
other concepts made by the GUARANTEED PARTY and/or its WARRANTORS, deriving
under this contract, shall be distributed by the AGENT ENTITY among the
GUARANTOR ENTITIES in such a manner that, at all times, they shall all be paid
in proportions which are identical to their participation in the ENDORSEMENTS.
The possible rights of the GUARANTOR ENTITIES to obtain payments from the
GUARANTEED PARTY and/or its WARRANTORS based on causes and obligations that are
different from those contained in this contract, shall not be affected by the
terms herein.
3. The powers of representation that the GUARANTOR ENTITIES grant to the AGENT
ENTITY, shall be understood to be limited to those actions and steps that, as
specifically foreseen under this contract, shall be necessary for the
performance and effectiveness of the same.
Under no circumstances shall the AGENT ENTITY hold a fiduciary capacity with
respect to the GUARANTOR ENTITIES, of the GUARANTEED PARTY or any other persons,
its duties and obligations being limited to those expressly set forth in this
contract, in accordance with these principles, and in a declarative manner:
a) The AGENT ENTITY shall not be liable to the GUARANTOR
ENTITIES, by reason of providing the ENDORSEMENTS, for the
performance, validation or exiguity of this contract or
whatever other complementary document, or the veracity or
certainty of the declarations contained herein or in the
communications that it receives, nor as regards the
feasibility of compliance with its obligations by the
GUARANTEED PARTY or its WARRANTORS.
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<PAGE>
b) The duty to provide information by the AGENT ENTITY shall be
understood to be limited to those communications as shall be
necessary for the normal compliance with, and undertaking of,
the contract, or its exiguity in the event of breach.
The AGENT ENTITY shall not be bound to verify the veracity of,
or compliance with, the commitments assumed by the GUARANTEED
PARTY and its WARRANTORS. Neither shall it be bound to
investigate the existence of the possible causes of breach or
the weakening of the condition of solvency of the GUARANTEED
PARTY or its WARRANTORS.
c) In performing its representative powers, the AGENT ENTITY
shall not contract any liability should the instructions that
are received be adjusted. In the absence of such instructions
and in an emergency case, it shall act at its own prudent
discretion, in accordance with banking norms, without any
prejudice to that which is expressly set out under this
contract.
d) In complying with its other tasks and duties set forth in this
contract, the AGENT ENTITY shall have no liability of a
serious nature, other than that which may derive thereunder,
without prejudice to the liability for any agreement that may
have been concluded between the GUARANTEED PARTY and the AGENT
ENTITY.
e) The employees and representatives of the AGENT ENTITY,
whatever their status and capacity may be, shall not incur any
personal liability with respect to the other GUARANTOR
ENTITIES as a result of its professional performance as it
relates to this transaction.
f) Each one of the GUARANTOR ENTITIES declares to the AGENT
ENTITY that, as regards this contract, it has made its own
independent investigation and evaluation of the financial
situation and the business of the GUARANTEED PARTY and of the
WARRANTORS.
4. The GUARANTOR ENTITIES undertake to repay the AGENT ENTITY, in proportion to
their participation in the ENDORSEMENTS, all the ordinary and extraordinary
expenses caused to the AGENT ENTITY and justified by the latter in the
performance of its work and always provided that the same are not paid by the
GUARANTEED PARTY.
5. Regardless of this contract, the AGENT ENTITY shall be entitled to accept
deposits, lend money and, in general, in the same manner as the other GUARANTOR
ENTITIES, carry out all classes of banking transactions with the GUARANTEED
PARTY.
6. The AGENT ENTITY shall be entitled to waive said post by means of written
notification to the other GUARANTOR ENTITIES and the GUARANTEED PARTY. In such a
case, they shall have the right to appoint, from among themselves, a new AGENT
ENTITY, by means of majority agreement, taking into consideration the effect on
the participation of each of them in the ENDORSEMENTS, without prejudice to
whatever agreement that may have been reached between the GUARANTEED PARTY and
the AGENT ENTITY.
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In the event of no replacement having been appointed by the GUARANTOR ENTITIES
within two months of the notification, or the designated party not having
accepted the appointment, the AGENT ENTITY shall be entitled to make the
appointment itself, from among the GUARANTOR ENTITIES.
The waiver of the foregoing and a new appointment shall take effect from the
date of acceptance of the new AGENT ENTITY, and shall be notified to the
GUARANTEED PARTY.
The new AGENT ENTITY shall be vested with the same rights, powers, obligations
and duties as the outgoing AGENT ENTITY, in accordance with the terms of this
contract, including the obligations that may be contained in an agreement
reached between the GUARANTEED PARTY and the AGENT ENTITY.
Under no circumstances shall the waiver by the AGENT ENTITY nor the appointment
of a new one imply the assumption of new obligations, nor increased costs for
the GUARANTEED PARTY, that are not expressly assumed by virtue of this contract
or an agreement reached between the latter and the outgoing AGENT ENTITY.
The replacement of EBN BANCO as AGENT ENTITY, except in the event that it takes
place at the request of said Entity, shall only take effect from the time at
which, the previous requirements having been met, the ENDORSEMENTS made by the
latter are substituted for others made by the Entity that replaces it, or in the
case of it being accepted by the BENEFICIARY, severally made by the GUARANTOR
ENTITIES.
THIRD.- PURPOSE AND CONDITIONS OF THE ENDORSEMENTS TO BE MADE.-
CAJA DE AHORROS PROVINCIAL SAN FERNANDO DE SEVILLA Y JEREZ (CAJA SAN FERNANDO);
MONTE DE PIEDAD Y CAJA DE AHORROS DE HUELVA Y SEVILLA (EL MONTE); CAJA DE
AHORROS DE SALAMANCA Y SORIA (CAJA DUERO); CAJA DE AHORROS Y MONTE DE PIEDAD DE
ZARAGOZA, ARAGON Y RIOJA (IBERCAJA); CAJA DE AHORROS DEL MEDITERRANEO (CAM);
CAJA DE AHORROS Y MONTE DE PIEDAD DE BALEARES (SA NOSTRA); MONTES DE PIEDAD Y
CAJA DE AHORROS DE RONDA, CADIZ, ALMERIA, MALAGA Y ANTEQUERA (UNICAJA) AND
SOCIEDAD ESPANOLA DE BANCA DE NEGOCIOS, S.A. (EBN BANCO) expressly agree with
the GUARANTEED PARTY, in the same act, to the formalization of a line of
syndicated endorsements up to an overall limit established under this Clause,
under the protection provided by the GUARANTOR ENTITIES, and to the ENDORSEMENTS
in favour of the GUARANTEED PARTY before the Spanish Public Works Ministry, a
copy of which is included in this contract, without prejudice to the fact that
they still may not have been deposited in the Caja General de Depositos.
The GUARANTEED PARTY and the WARRANTORS state their agreement with the terms of
the ENDORSEMENTS .
The ENDORSEMENTS made have been recorded in the Special Registry of ENDORSEMENTS
of the AGENT ENTITY in the numbers that are indicated that run consecutively
from 2,100,883 to 2,100,933 inclusive.
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<PAGE>
The ENDORSEMENTS are granted to an overall maximum of THIRTY THOUSAND SIX
HUNDRED AND TWENTY ONE MILLION FIVE HUNDRED THOUSAND PESETAS
(30.621.500.000.-ptas.), equivalent to 184,038,921.54.-euros. Each one is for an
individual amount, of temporary validity, and for the purpose and the other
conditions that are established in the respective ENDORSEMENT documents. These
shall be cancelled, following a request from the AGENT ENTITY, by a resolution
issued for such purposes by the BENEFICIARY.
The overall maximum limit that the GUARANTOR ENTITIES grant to the GUARANTEED
PARTY, set out in the previous paragraph, are of a non rotative nature, that is
to say, that they will be reduced in accordance with the cancellation of the
ENDORSEMENTS granted, and shall be considered to be fully terminated once the
cancellation of all of them has taken place.
The GUARANTEED PARTY shall be entitled to fully or partially cancel the
transaction at any time, provided that it delivers the vouchers of full or
partial cancellation of the ENDORSEMENTS issued by the Caja General de Depositos
to the AGENT ENTITY, with the verification that the said ENDORSEMENTS have been
fully or partially cancelled.
FOURTH.- GUARANTEE AND LIABILITY OF THE WARRANTORS.-
The WARRANTORS and for the purposes and under the conditions that shall be
stated, the company FONSAGRADA S.L jointly guarantee to CAJA DE AHORROS
PROVINCIAL SAN FERNANDO DE SEVILLA Y JEREZ (CAJA SAN FERNANDO); MONTE DE PIEDAD
Y CAJA DE AHORROS DE HUELVA Y SEVILLA (EL MONTE); CAJA DE AHORROS DE SALAMANCA Y
SORIA (CAJA DUERO); CAJA DE AHORROS Y MONTE DE PIEDAD DE ZARAGOZA, ARAGON Y
RIOJA (IBERCAJA); CAJA DE AHORROS DEL MEDITERRANEO (CAM); CAJA DE AHORROS Y
MONTE DE PIEDAD DE BALEARES (SA NOSTRA); MONTES DE PIEDAD Y CAJA DE AHORROS DE
RONDA, CADIZ, ALMERIA, MALAGA Y ANTEQUERA (UNICAJA) AND SOCIEDAD ESPANOLA DE
BANCA DE NEGOCIOS, S.A. (EBN BANCO), and severally among themselves to the
GUARANTEED PARTY, in an unconditional and irrevocable manner , all the
obligations contained under this contract under the same terms and conditions
and time periods agreed therein, even when its liability does not appear to be
expressly stated in any of the provisions of this document. The WARRANTORS
expressly waive the benefits of exclusion, before the GUARANTOR ENTITIES, and by
the order regulated in section 1830 and subsequent ones of the Spanish Civil
Code, they also waive the right to oppose that goes contrary to the interests of
GUARANTEED PARTY by virtue of this contract.
By virtue of said guarantee, without prejudice to what is established hereafter,
each one of the WARRANTORS shall be jointly responsible to the GUARANTOR
ENTITIES for the breach of the GUARANTEED PARTY in the percentage, and for the
maximum amount that is set out below:
<TABLE>
<CAPTION>
WARRANTORS PERCENTAGE AMOUNT
<S> <C> <C>
FIRSTMARK COMUNICATIONS EUROPE 35.00% 10,717,525,000 pta
INMOBILARIA AZTLAN SOCIEDAD DE
CAPITAL VARIABLE (AZTLAN) 17.50% 5,358,762,500 pta
PROMOTORA DE INFORMACIONES, S.A. 17.50% 5,358,762,500 pta
</TABLE>
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<TABLE>
<S> <C> <C>
INFORMATICA DEL CORTE INGLES, S.A. 12.02% 3,680,704,300 pta
OMEGA CAPITAL, S.L. AND FONSAGRADA S.L. (1) 5.00% 1,531,075,000 pta
CAJA DUERO 3.99% 1,221,797,850 pta
IBERCAJA 2.50% 765,537,500 pta
CAJA SAN FERNANDO 2.50% 765,537,500 pta
EL MONTE 2.50% 765,537,500 pta
DIARIO DE BURGOS, S.A. 1.49% 456,260,350 pta
TOTAL: 100.00% 30,621,500,000 pta
</TABLE>
(1) in the terms described hereafter
Notwithstanding the foregoing, the WARRANTOR: FIRSTMARK COMUNICATIONS EUROPE,
implements its guarantee by means of the banking endorsement, a copy of which is
included as an appendix to this contract. This is delivered up in this act to
the AGENT ENTITY, that receives it in satisfaction of all the GUARANTOR
ENTITIES,. Their liability to the GUARANTOR ENTITIES is limited to the authority
and validity of said endorsement, but not to the solvency of the banking entity
that issues the same. Consequently, the GUARANTOR ENTITIES, in the event of
breach by GUARANTEED PARTY, shall only be able, in relation to the
aforementioned WARRANTOR, to undertake the performance of that endorsement
contributed by them, without this giving rise to any claim against their estate.
For its part, the WARRANTOR AZTLAN, implements its guarantee by means of the
constitution of a pledge guarantee, which is constituted along with this act, in
favour of the GUARANTOR ENTITIES which accept it, concerning the credit rights
inherent in the current account number 0211.0001.72.00840-73, opened in the name
of the AGENT ENTITY up to an amount of 5,358,762,500.- PESETAS.
Consequently, AZTLAN expressly authorises the AGENT ENTITY to hold the balance
of said account, a balance which AZTLAN declares itself to be the legitimate
title holder of, having free disposition over the same, stating that it is not
encumbered by any other guarantee, charge, retention or any other similar
limitation. Neither is there any litigation or claim of any kind in process over
it. The transaction proceeds on the understanding that until the complete
cancellation of the obligations under this guaranteed pledge, AZTLAN shall not
be able to have
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at its disposal the funds from said account if the balance of the same is left
at a level below the amount that is pledged, nor demand its return. If during
the course of this pledge there is a breach on the part of the GUARANTEED PARTY,
the GUARANTOR PARTIES shall be entitled to substantiate the liability of AZTLAN
solely for the performance of said pledge, without in any circumstances being
able to address themselves to the rest of its estate.
The pledge constituted under this provision shall remain in force as such until
the obligations of the GUARANTEED PARTY are completely fulfilled, or said pledge
is replaced by a bank aval that covers the liabilities of AZTLAN to the
satisfaction of the AGENT ENTITY, in which case, said pledge being terminated.
In the event that said pledge is replaced by a bank aval, in the aforesaid
terms, the GUARANTOR ENTITIES, in the event of breach by the GUARANTEED PARTY,
shall only be entitled, as regards AZTLAN, to continue with the performance of
the bank aval supported by it, without under any circumstances being able to
address themselves against the estate.
The GUARANTOR PARTY shall make their rights effective over the pledge fully or
partially constituted herein, and on one or more occasions applying its amount
to the payment of the liabilities of the GUARANTEED PARTY, guaranteed in this
provision. This shall be the case as soon as any breach occurs on the part of
the latter of its obligations relating to the guaranteed transactions, including
when any of the causes of disclosure of the surety bond established in this
contract concur.
The GUARANTOR ENTITIES, in order to set the balance of the pledged debt to be
performed, shall verify it exclusively by means of a certificate issued by the
AGENT ENTITY and declared in an official public document that, making reference
to the accounting therein, shall state the net balance under which the pledge is
exercised.
As regards the FONSAGRADA, S.L. company; it appears for the purposes of being
constituted in the WARRANTY of the GUARANTEED PARTY, jointly with the OMEGA
CAPITAL, S.L. company, under the same terms and conditions as the latter. Notice
is taken of the fact that OMEGA CAPITAL, S.L. has been represented in this
contract by means of a verbal proxy, and as a result, its consent has not been
perfectly established. Therefore, the security bond made by the FONSAGRADA, S.L.
company and the pledge that is implemented under this shall be fully terminated
under law at the same time as this contract is purely and simply ratified, in
all its content, terms and conditions by the WARRANTOR OMEGA CAPITAL, S.L.,
without prejudice to the substantiating of the liability of the latter.
For the purposes of OMEGA CAPITAL, S.L. being able to proceed to said
ratification, it shall deliver up the authentic copy of this contract that
corresponds to it, within 96 hours from the signing of the same, to FONSAGRADA,
S.L. so that the parties can irrevocably instruct the public official who
appears.
The surety bond made by FONSAGRADA, S.L. is implemented by means of the
constitution of a pledged guarantee, in favour of the GUARANTOR ENTITIES which
accept it, on the inherent credit rights of the current account number
0211.0001.7600401-25, opened in its name in the AGENT ENTITY, up to the amount
of 1.531.075.000 PESETAS.
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Thereby, FONSAGRADA, S.L. expressly authorises the AGENT ENTITY so that during
the course of this deposit, it shall hold the balance of said account, up to
said amount, a balance that FONSAGRADA, S.L. holds legitimate title to, having
free disposition over the same, and holds that it does not have any encumbrance
in the form of another guarantee,retention, charge or similar. Nor is their
litigation or claims of any class in process over it. The transaction proceeds
on the understanding that until the complete cancellation of the obligations
under this guaranteed pledge, FONSAGRADA, S.L. shall not be able to have at its
disposal the funds from said account if the balance of the same is left at a
level below the amount that is pledged, nor demand its return. If during the
course of this pledge there is a breach on the part of the GUARANTEED PARTY, the
GUARANTOR PARTIES shall be entitled to substantiate the liability of FONSAGRADA,
S.L. solely for the performance of said pledge, without in any circumstances
being able to address themselves to the rest of the estate of OMEGA CAPITAL,
S.L.
The pledge constituted under this provision, and the pledge which is thereby
implemented shall remain in force as such until the obligations of the
GUARANTEED PARTY are completely fulfilled, or is terminated in full with notice
by the ratification of this contract by OMEGA CAPITAL, S.L. in accordance with
the terms set out beforehand.
The GUARANTOR ENTITIES shall make their rights effective over the pledge fully
or partially constituted herein, and on one or more occasions applying its
amount to the payment of the liabilities of the GUARANTEED PARTY, guaranteed in
this provision. This shall be the case as soon as any breach occurs on the part
of the latter of its obligations relating to the guaranteed transactions,
including when any of the causes of disclosure of the surety bond established in
this contract concur.
The GUARANTOR ENTITIES, in order to set the balance of the pledged debt to be
performed, shall verify it exclusively by means of a certificate issued by the
AGENT ENTITY and declared in an official public document that, making reference
to the accounting therein, shall state the net balance under which the pledge is
exercised.
The GUARANTOR ENTITIES are entitled to hold the WARRANTORS, to these guarantees,
subject to certain percentage and quantitive limits, as previously established
in this clause and the several character of the obligations of the WARRANTORS
among themselves, although this shall be in a joint manner with the GUARANTEED
PARTY.
Given the joint nature of the obligations of the WARRANTORS, under no
circumstances shall it be possible to demand, from any of them, at any time, a
percentage of the outstanding amount, by virtue of each one of the ENDORSEMENTS
issued, that is greater than the percentages expressed beforehand that apply to
the same, without any claim arising by the WARRANTOR for the part of the debt
that corresponds to any other of them.
The WARRANTORS are bound to pay, within the previously mentioned limits, any
amount claimed by the GUARANTOR ENTITIES upon presentation of a simple written
notification, accompanied by the verification that the payment has been made to
the BENEFICIARY under an endorsement, made by the AGENT ENTITY, and
communicating the breach that has been made, without any excuse being admissible
as any as regards the payment of said amounts.
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This shall be done in the maximum period of five working days from the receipt
of the notification, the interest rates applicable to the balance on the special
account being applicable to the amounts claimed during said period, in
accordance with what is agreed in the eighth clause . For the purposes of said
notification, the GUARANTOR ENTITIES do not have to verify the cause of the
breach of the terms of this contract by the GUARANTEED PARTY.
The rights of the GUARANTOR ENTITIES under this guarantee shall not be affected
in any way by any other obligation or guarantee on the part of the GUARANTOR
ENTITIES in favour of the GUARANTEED PARTY or the WARRANTORS, without for such
reasons giving rise to compensation from the GUARANTOR ENTITIES, who are
expressly and irrevocably empowered to previously perform other guarantees which
they may be the beneficiaries of.
Without prejudice to the foregoing, the AGENT ENTITY and the GUARANTOR ENTITIES
are expressly and irrevocably empowered by each one of the WARRANTORS to
compensate any of the amounts claimed under this guarantee against the amounts
that may exist in favour of the same, whether they be current, savings or any
other types of accounts, that have been opened with the GUARANTOR ENTITIES, or
any other sums or credits that the latter shall have to meet, that the
WARRANTORS will have established in any office, headquarters or branch office of
the GUARANTOR ENTITIES, and, as a result, make the payments, charges and
conversions that arise from said compensatory effects.
This guarantee shall remain in force and be of full effect while the
ENDORSEMENTS are in force and the repayment to the GUARANTOR ENTITIES of the
whole of the amounts that correspond to them in concept of the principal,
interests, commissions and other expenses under this contract remains due.
The cession by any of the GUARANTOR ENTITIES of their position in this contract
shall imply the subrogation of the transferee in the position of the transferor
in this guarantee, which the WARRANTORS. expressly assent to from hereon, always
provided that the cession does not detract from the validity of the endorsement
for the BENEFICIARY.
FIFTH.- PAYMENT OBLIGATIONS OF THE GUARANTEED PARTY AND DISCLOSURE OF SURETY
BOND.-
The GUARANTEED PARTY is bound to make the following payments:
1. In terms of commissions, the amounts that accrue according to the
thirteenth clause of this contract, and within the agreed time period.
2. In terms of interest, the amounts that accrue, the debt on the special
account, which are referred to in the seventh and eighth clauses.
3. In terms of repayment of the principal, all those amounts that the
GUARANTOR ENTITIES have made effective in performance of the
ENDORSEMENTS granted by the same, in accordance with the conditions
established in this contract, in favour of the BENEFICIARY, in the
period of two working days counting from the requirement made for such
purposes by the AGENT ENTITY.
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Nevertheless, given the conditions under which the ENDORSEMENTS are made, the
GUARANTOR ENTITIES shall be entitled to demand that the GUARANTEED PARTY
disclose to them all or any of the ENDORSEMENTS made, provided that some of the
following circumstances concur:
a) The breach of any of the obligations assumed by the GUARANTEED PARTY or
its WARRANTORS in this contract.
b) The termination, suspension, expiry, expropriation, voiding or
resolution of the award of the individual C2 licence for the
establishment and use of fixed public networks of access radio in the
waveband of 3.4 to 3.6 Ghz, granted to the GUARANTEED PARTY according
to the Order of Spanish Ministry of Public Works of the 8th of March,
2000 (BOE - Spanish Official State Gazette number 60 of 10th of March)
c) The falsification of any information or document provided by the
GUARANTEED PARTY or its WARRANTORS that has been used as the basis for
the concession of the ENDORSEMENTS.
d) The request for the declaration of the suspension of payments, removal
or waiting or bankruptcy of the GUARANTEED PARTY or any of the
WARRANTORS and, in the event of the bankruptcy having been requested by
a third party, when the Judge has issued a writ of bankruptcy
declaration.
e) Should any of the circumstances take place that are foreseen in section
1843 of the Spanish Civil Code.
Should any of the aforementioned circumstances occur, the GUARANTEED PARTY shall
be bound to disclose the surety bond made to the GUARANTOR ENTITIES, within the
period of fifteen working days, counting from the notification of the due
requirement that for such purposes is practiced by the AGENT ENTITY.
In the case of GUARANTEED PARTY, at the request of the AGENT ENTITY as set out
in the previous paragraph, not disclosing the surety bond made to the GUARANTOR
ENTITIES , it shall make a cash deposit or the same in shares the covers the
amount of the whole of the uncancelled ENDORSEMENTS, It shall furthermore make a
pledge in a public document, in favour of the GUARANTOR ENTITIES and in
guarantee of the obligations deriving from the ENDORSEMENTS made, said deposit
and the credit right deriving under the same.
In the event that the GUARANTEED PARTY, as required under the agreement, does
not disclose the surety bond made to the GUARANTOR ENTITIES or does not make the
deposit referred to in the foregoing paragraph, the WARRANTORS shall be
immediately bound to make a deposit on the same conditions that will cover the
amount of the ENDORSEMENTS, . It shall also make a ledge in a public document,
in favour of the GUARANTOR ENTITIES in guarantee of the obligations deriving
from the ENDORSEMENTS, the amount of said deposit and the subsequent credit
right arising under the same.
SIXTH.- PAYMENT BY THE GUARANTOR ENTITIES.-
The GUARANTEED PARTY and the WARRANTORS expressly and irrevocably authorise the
GUARANTOR ENTITIES to make effective the amounts that, in performance of the
ENDORSEMENTS made, and in accordance with what is agreed under the contract, for
which a claim may arise against them by the BENEFICIARY. This shall be up to the
total amount of each one of the ENDORSEMENTS, on the first notification that
they receive, without the need for prior agreement from the GUARANTEED PARTY nor
the WARRANTORS, nor from the requirement of the same, and without the need to
consider the origin or otherwise of the claim.
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In the case in which the GUARANTOR ENTITIES shall have to meet the surety bonds
made, by reason of the requirement made by the BENEFICIARY, the AGENT ENTITY
shall inform the rest of the GUARANTOR ENTITIES, as soon as it may be required,
of the total amount claimed and the part that corresponds to each GUARANTOR
ENTITY in accordance with their participation in the ENDORSEMENTS.
Each GUARANTOR ENTITY shall place at the disposal of the AGENT ENTITY, before
10:00 a.m. on the date of deadline of the payment, the amount that corresponds
to its participation in the ENDORSEMENTS to be assumed, by means of payment
under the OMF system (Order of Movement of Funds), Bank of Spain Code 0211.
If the AGENT ENTITY, in the belief that the GUARANTOR ENTITIES have made the
delivery of the proportional part that they are bound to pay to the BENEFICIARY
of the full amount that is claimed, and it transpires that any GUARANTOR ENTITY
has not made its contribution, it shall be entitled to demand said amount from
the latter on the date of the payment to the BENEFICIARY.
From the same time at which the GUARANTOR ENTITIES, directly or by means of the
AGENT ENTITY, makes the payment of any of the surety bonds, they shall be
entitled to demand from the GUARANTEED PARTY and the latter shall be bound to
pay them, the total amount due including the interest and expenses that, as
appropriate, may have accrued, and this shall be the case even in the case of
such payment has been made without the knowledge or the opposition of the same.
SEVENTH- SPECIAL ACCOUNT.-
For the purposes of this contract, at the time of its formalization, the AGENT
ENTITY shall open a special register account with the GUARANTEED PARTY in which
such arrangements as derive from the granting of the ENDORSEMENTS shall be
noted. In the "Owing" part of said account , the amounts that the GUARANTEED
PARTY has to meet for expenses, commissions, interests and, as appropriate,
performance, shall appear, along with the nominal amount made for the
ENDORSEMENTS. In the "Done" part of said account will be all those amounts that
the GUARANTEED PARTY delivers to the AGENT ENTITY in payment of the previous
items.
At any time, the amount in said special register account shall indicate the
exact sum owed by the GUARANTEED PARTY to the GUARANTOR ENTITIES by reason of
the granting of the ENDORSEMENTS.
In addition to the special account that the AGENT ENTITY shall hold, each one of
the GUARANTOR ENTITIES shall open and maintain in its books a special register
account in the name of the GUARANTEED PARTY in which the same payments and
charges as made and indicated in the previous paragraph shall be entered, to the
account that the AGENT ENTITY holds, but referring exclusively to the
participation of each GUARANTOR ENTITY in the ENDORSEMENTS.
For the purposes of the terms of section 1435 of the Spanish Civil Procedure
Act, or any guidelines that replaces it, the liquidation to determine the debt
that can be legally reclaimed will be processed by the AGENT ENTITY, or by the
GUARANTOR ENTITY that it is dealing with, by way of the appropriate
certification that verifies that GUARANTEED PARTY in the AGENT ENTITY are
present, on the day of closure, in the special register account, governed in
this clause, of in that of GUARANTOR ENTITY that feature herein.. For these
purposes, it will be sufficient to initiate legal proceedings to present this
policy and to have the provision of an official public document that the
certificate incorporates, issued by the AGENT ENTITY or the GUARANTOR ENTITY
that feature herein, showing the amount that is the responsibility of the
GUARANTEED PARTY, verifying that the settlement of the debt has been made in the
agreed form by the parties to this contract and that said amount coincides with
that which appears in the account or accounts of the GUARANTEED PARTY. The
expenses that originate from the use of the official public document shall be
the responsibility of the GUARANTEED PARTY.
The amount in the account that is thus set shall be duly notified to the
GUARANTEED PARTY at least five days before, the undertaking of this action.
EIGHTH.- REGULARIZATION OF THE AMOUNT OUTSTANDING AND ACCRUAL OF INTEREST. -
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1.- The amount outstanding that features in the special account described in the
previous clause, shall be immediately regularized by the GUARANTEED PARTY, the
GUARANTOR ENTITIES thus being able to make a claim on it at any time.
2.- Interest rate.
The amount outstanding that features in the aforementioned account shall accrue
interest to the benefit of the GUARANTOR ENTITIES, until they are completely
satisfied, at an annual nominal rate that shall be variable for each one of the
successive periods of three months that follow the date on which the special
register account first presents an amount due. The rate at which said debt shall
accrue interest shall be determined by the addition of the following factors:
a) A variable sum which shall be the EURIBOR rate reflected in the
"EURIBOR" page of the "REUTERS SCREEN" or any other that may replace it
in the future, at 11:00 h. on the morning of the working day
immediately prior to the date on which the a period of interest
commences, for deposits in pesetas of an amount similar to that of the
outstanding balance and for a period of interest of three months or the
closest possible to three months. In the case of the EURIBOR rate not
being obtainable at said time, then the interest rate that shall be
applied as a point of reference shall be the EURIBOR that has been set
at the moment which is immediately prior to that one.
b) Another annual fixed sum of TWO POINT FIVE PER CENT (2.50 %).
The interest rate thus set shall be increased in addition, in light of the
following:
1. The ordinary costs of obtaining such funds from the Interbanking
Market, including the intermediary brokerage fees.
2. Any taxes, rates, state charges or otherwise that shall be currently
levied or may be levied in the future, relating to the obtaining of
funds in the Interbanking Market, or the brokerage fees of
intermediaries. The result that is attained shall be rounded up, should
that be necessary, to the nearest 1/20 of a percentage point.
3.- Substitutive interest rate.
a. When it is not possible to determine the EURIBOR interest rate in accordance
with the previous paragraph, then it shall be calculated in accordance with the
terms that are set out in this section using the rate set by the AGENT ENTITY,
on the working day immediately prior to the commencement of a period of interest
for deposits made in pesetas of a sum similar to the outstanding balance and for
a three month interest period or the closest period to three months, as set by
the following financial and credit entities (the "Reference Entities"):
Citibank Espana, S.A.
Banco de Bilbao-Vizcaya, S.A.
BNP Espana, S.A.
b. The AGENT ENTITY shall find the arithmetical average of the rates quoted by
the Reference Entities that are applicable to an interest period indicated in
the previous subsection, adding an annual fixed sum of TWO POINT FIVE PER CENT
(2.50 %), along
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with the increases indicated at the end of section 2 - of this clause, rounded
up to achieve a result, if necessary, to a multiple which is closest to 1/20 of
a percentage point.
If for any circumstance one or two or the Entities of Reference not be able to
quote their interest rates, then the substitutive interest rate shall be set
from the arithmetical average of the interest rates quoted by the other Entities
of Reference, or as appropriate, the Entity of Reference under consideration.
c. In the event of merger of any Entity of Reference, then the Entity that
results from such merger shall be automatically understood to take on the
character of an Entity of Reference. In the case of a spin-off of any of the
Entities of Reference, the AGENT ENTITY shall indicate which of the resulting
Entities shall be considered to act as the Entity of Reference.
d. Apart from the cases of merger or spin-off, the replacement of an Entity of
Reference shall be taken into account by means of a new nomination agreed by the
AGENT ENTITY and with the approval of the GUARANTEED PARTY. The latter shall
only refuse this by providing a justified cause. The approval of the latter of a
new Entity of Reference shall be tacitly understood to be granted should there
not be any reasoned opposition within five working days counting from the
notification of the nomination that is made by the AGENT ENTITY.
4.- Communication of the interest rate.
The interest rate that, set in accordance with the terms that are set out in the
previous paragraphs, comes from the application of each one of the periods of
interest rate This will be communicated by AGENT ENTITY to the GUARANTEED PARTY
and the GUARANTOR ENTITIES:
a) That corresponding to the first period of interest on the working day
immediately following the date of its commencement.
b) That corresponding to each one of the successive periods of interest
that follow the first before 14:00 hours on the working day immediately
prior to the commencement of the corresponding period of interest.
5.- Accrual and liquidation of interest.
The interests shall accrue daily, based on a year of 360 days, on amounts owed
in the aforementioned special account and shall be liquidated by the due
quarterly period.
The interest shall be liquidated by applying the following formula: Capital
multiplied by revenue and by time, divided by thirty six thousand. In this
formula, it shall be considered that the nominal interest is the amount of gross
interest, the capital, the balance of capital; the revenue, the nominal annual
rate and the time; the number of days, expressed in calendar days.
Regardless of the foregoing, at any time the interest accrued can be liquidated
if the GUARANTEED PARTY regularizes the amount in the account, or the AGENT
ENTITY does so, or, as appropriate, and in agreement with the terms of this
contract, the GUARANTOR ENTITIES shall so decide to pursue such a course of
action.
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The GUARANTOR ENTITIES shall receive, in terms of interests, the effective net
yield that results from applying the annual nominal interest rate in the form of
liquidation of payments that is indicated. In order to facilitate the
liquidations that are made, a document will be drawn up in which the precedents
necessary for the verification of the liquidation made will be stated along with
the equivalent in terms of the sum of interests, commissions and recoverable
expenses.
Even in the case in which the GUARANTEED PARTY fully repays all the amounts that
are due in the special account and the interest - which will accrue up to the
date on which the payment is made- said account cannot be cancelled while the
surety described in the third clause has not been fully and definitively
cancelled, given the specific purpose for which this was opened.
NINTH.- PAYMENT THROUGH STANDING BANK ORDER.-
Any payment that the GUARANTEED PARTY is bound to make as a result of this
contract shall be understood to be received by AGENT ENTITY when the amount is
really at the disposal of the latter according to Spanish banking practices for
the calculation of the valuation of the instruments of payment received.
The GUARANTEED PARTY should make the payments without the need of prior
notification, by means of a debt held by the AGENT ENTITY in the account number
0211.0001.76.00401.263-32 that the GUARANTEED PARTY keeps open in the Main
Office of EBN BANCO located in Madrid, in calle de Almagro, 46, which it
irrevocably consents to, being bound to maintain in the same a balance
sufficient to deal with the payments that it is bound to meet.
If any GUARANTOR ENTITY receives, because of this contract, a payment that is
direct or in compensation, and is proportionally great than the payments
received by one or other GUARANTOR ENTITIES, then it shall be obliged to deliver
up to the AGENT ENTITY the surplus of funds received so that this can be
redistributed, on the same date as its reception, among the other GUARANTOR
ENTITIES in such a manner that at any moment the amounts that each GUARANTOR
ENTITY has received are proportional to its participation in the ENDORSEMENTS.
This shall apply except in the case of the performance of the demand for
disclosure of the surety bond at the request of any of the GUARANTOR ENTITIES,
as set out in section 2 - of the fifth clause.
Each payment made by the GUARANTEED PARTY to the AGENT ENTITY, in accordance
with the contract, shall be applied to the following items in the order that is
set out below:
1) Taxes owed.
2) Costs and expenses attributable to the GUARANTEED PARTY.
3) Commissions owed.
4) Interest accrued by the balance on the special account.
5) Reduction of the balance of the principal in the special account.
In the same way, an attribution shall be made in the event of a payment being
made, regardless of it having been agreed in this contract, and due to
extraordinary circumstances overtaking any of the GUARANTOR ENTITIES, or as
appropriate any of the WARRANTORS, to any of the GUARANTOR ENTITIES, without
prejudice to the pro-rata distribution that arises in accordance with the
agreement in the foregoing paragraph.
All the amounts that the GUARANTEED PARTY shall meet by reason of this contract,
and under whatever concept, shall be met without any deduction or retention, the
taxes that may be levied on such payments in accordance with the legislation in
force falling to the account of the same. This shall exclude the Spanish
Companies Tax that is levied on the results obtained by the GUARANTOR ENTITIES,
in such a manner that the latter shall receive an amount equal to that which
would have corresponded to it without having made said deductions or retentions.
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TENTH.- COMPENSATION.-
The GUARANTEED PARTY expressly and irrevocably empowers the GUARANTOR ENTITIES
to hold the balance of any current account, savings book, partial tax payment,
certificate of deposit or any other kind of deposit in cash or shares that
figures in any of its offices in the name of the same. It may even sell shares
or goods that have been deposited, and apply the proceeds to the payment of :
- The amounts that, up to the limit of the ENDORSEMENTS, the GUARANTOR ENTITIES
would have had to have in order to satisfy the beneficiary or the Spanish
General Deposits Bank as a result of the sureties made.
- The commissions agreed and owed under this contract.
- Each and every one of the the expenses that, being the responsibility of the
GUARANTEED PARTY, have been met by the GUARANTOR ENTITIES and having their
origin in the endorsement made or in this document.
- The debit balance shown in the special account.
ELEVENTH.- COSTS AND TAXES.-
Regardless of the payment obligations contracted by the GUARANTEED PARTY, the
latter assumes the obligation to pay any other commissions, expenses, taxes,
charges, levies, fees and other items, currently or in the future that originate
from or accrue as a result of the formalization, signature and/or the
performance of this contract or of the granting of the ENDORSEMENTS, and the
following, being of a merely declarative nature:
a) The fees, brokerage charges and charges for official public documents
that appear at the formalization, modification, performance and/or
termination of this contract or its guarantees, notifications,
requirements or processes as may be necessary for its compliance,
including those which take place so as to document in a public
instrument the pledges that are referred to in the fifth clause.
b) The taxes, rates, charges, levies whether or not they are state
imposed, excluding in all events the Spanish Companies Tax of the
GUARANTOR ENTITIES, which are levied now or in the future, while this
contract remains in force, or due to its modification, performance
and/or termination, or on the commission owed in accordance with this
contract.
c) The legal costs and expenses, including those fees of Lawyers and
Solicitors that may accrue as a result of the performance of this
contract or its guarantees.
d) And, in general, any other expenses that are originated by the
GUARANTOR ENTITIES and/or the AGENT ENTITY as a result of this contract
and that, having been approved by the guaranteed party, can be
justified in the form of a document.
Any of the previous items that the GUARANTEED PARTY has to pay shall be notified
to it by the AGENT ENTITY and will be paid by the former in the period of three
working days from the receipt of the notification.
TWELFTH.- PERSONAL OBLIGATIONS.-
The GUARANTEED PARTY is bound to the GUARANTOR ENTITIES, while any of the
obligations that are contracted under this contract remain in force, to:
a) Forward the annual audited accounts completed by an independent
auditing company that is recognised as being prestigious, within six
months following the closure of its financial year.
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The obligation to deliver the annual accounts shall be understood to be
assumed for the successive financial years, as long as there are any of
the obligations deriving from the ENDORSEMENTS and this contract still
in existence.
b) Notify it immediately of any circumstance that, in accordance with the
terms of the sixth clause herein, may be the cause of a demand for
disclosure of the surety bond.
c) Not transfer or in any other form dispose of a significant part of the
integral fixed assets that it holds without receiving a benefit from
the market or in goods of an equal nature in return.
THIRTEENTH.- COMMISSIONS.-
For the use of the ENDORSEMENTS referred to in the third clause, the GUARANTOR
ENTITIES shall receive the following commission:
a) An opening commission of ZERO POINT TWO FIVE PER CENT (0.25%) of the limit
set under the third Clause, of this document, which shall accrue on only one
occasion and shall be liquidated and be paid upon the commencement of the
transaction, in the time period that runs from the date of the signing of
this contract to the 30th of April 2000.
b) A quarterly risk commission of ZERO POINT ONE TWO FIVE PER CENT (0.125%),
that shall accrue day by day, commencing on the day of the issuing of the
ENDORSEMENTS, on the total amount that is secured. The settlement and
payment of this commission shall be made prior to the 30th of April 2000 and
for the following quarters on the first working day of each quarter,
calculated from date to date from the signature of this contract, being
applicable to the full risk that GUARANTOR ENTITIES have taken on at any
time, and for each one of the ENDORSEMENTS made. In any event, it shall be
the responsibility of the GUARANTEED PARTY to duly demonstrate that the risk
to the GUARANTOR ENTITIES has lessened and to what extent this is so.
c) A management Commission of ZERO POINT ONE FIVE PER CENT (0.15%) of the limit
established in the third Clause of this document, that accrues once only and
will be liquidated and paid at the commencement of the transaction, in the
time period that runs from the signing of this contract up to the 30th of
April 2000.
d) An Agency Commission that the GUARANTEED PARTY shall pay to the AGENT ENTITY
and, in its favour, of ONE MILLIN PESETAS (1.000.000.-ptas.) for each year,
or part thereof, while the ENDORSEMENTS are in force, This commission shall
be liquidated and paid at the commencement of the operation, in the term
that runs from the date of signing of this contract and the 30th of April
2000 and on each one of the subsequent anniversaries, while the ENDORSEMENTS
are in force.
In the event of the full or partial cancellation or termination of the
ENDORSEMENTS taking place, on the date in which said cancellation or
termination occurs, a liquidation of the risk commission corresponding to the
remaining days up to the end of the period in force, with respect to the
ENDORSEMENTS cancelled or terminated, will be effected. The GUARANTOR ENTITIES
will, as appropriate, repay the GUARANTEED PARTY the surplus amounts that are
settled beforehand.
FOURTEENTH.- ASSIGNMENTS.-
1.- The GUARANTEED PARTY shall not be entitled to assign, transfer, replace or
subrogate in any way the rights and obligations contracted herein.
2.- Any GUARANTOR ENTITY shall be able, at any time, and while its participation
in the ENDORSEMENTS made in accordance with this contract remains in force, to
assign, transfer and negotiate, wholly or partially, its participation in the
same and in this contract, provided that the following conditions are met:
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a) That the assignment does not entail an increase in costs for the
GUARANTEED PARTY.
b) That the assignment is made to a Bank or Building Society.
c) That the assignor has communicated in writing to the AGENT ENTITY its
intention to assign, wholly or partially, its participation with at
least fifteen working days advance notice from the effective date of
the assignment.
d) That if the assignment is formalized before the endorsement has been
undertaken by the beneficiary, then the prior authorization of the
latter will be obtained.
e) That the assignment has been previously authorised by the AGENT ENTITY,
unless the same is effective after the payment of the corresponding
amount that the assignor would make to that party, in the event of
performance, of up to the total sum of the ENDORSEMENTS.
The assignment shall be communicated to the AGENT ENTITY, which in turn shall
communicate this to the GUARANTEED PARTY and to the WARRANTORS.
FIFTEENTH- PERFORMANCE OF GUARANTEES; REGIMEN AND OPERATION OF THE SYNDICATE.
1.- BREACH OF THE OBLIGATIONS OF PAYMENT BY THE GUARANTEED PARTY.
In the event of breach on the part of the GUARANTEED PARTY of any of the payment
obligations deriving from the granting of the ENDORSEMENTS, the GUARANTOR
ENTITIES shall be entitled to continue with the performance of the personal
payment guarantee of the WARRANTORS stated in the fourth clause of this
contract, following the agreement of the majority of the GUARANTOR ENTITIES,
according to the agreement set out under section 4. - of this clause. That
decision which is adopted, in the event of being favourable to the performance
of the guarantee, shall be binding upon all the GUARANTOR ENTITIES, including
those who are not in agreement, and shall be carried out by the AGENT ENTITY on
behalf of and representing all of them. If the decision of the majority of the
GUARANTOR ENTITIES has not been favourable to the performance of the guarantee,
then any GUARANTOR ENTITY shall be entitled to partially perform said guarantee,
due to its participation in the obligation of the breached payment.
2.- OBLIGATIONS OF DISCLOSURE OF THE SURETY BOND AND CONSTITUTION OF THE
DEPOSIT.
The decision concerning the demand for disclosure of the surety bond by the
GUARANTOR ENTITIES, and the contingent exiguity of the constitution and pledging
of the deposit that is referred to in the fifth clause , by virtue of the causes
indicated therein, shall require the prior agreement of the majority of the
GUARANTOR ENTITIES adopted in accordance with the procedure set forth in section
4 of this clause. The decision that is adopted shall be binding upon all of the
GUARANTOR ENTITIES, including those which are not in agreement.
As an exception to the foregoing, if the reason for which the disclosure of the
surety bond could be demanded is that which is indicated in subsection d) of the
fifth clause, and the decision of the majority of the GUARANTOR ENTITIES has
been that of not demanding the disclosure of the surety bond, then any GUARANTOR
ENTITY shall be individually entitled to demand it on the basis of its
participation in the ENDORSEMENTS, thereby meeting the requirement that
corresponds to it.
The same regime shall be followed for the performance of the guarantee of
constitution of the deposit that is pledged on the part of the WARRANTORS. For
this reason, the AGENT ENTITY shall comply with that which has been agreed
between the majority of the GUARANTOR ENTITIES. The latter, in this action,
shall expressly empower the AGENT ENTITY in a manner that is as wide as may be
necessary in law to undertake such pertinent action in this respect, on behalf
of and in representation of all of them.
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3.- Performance of the pledge of the deposit.
In the event of breach by the GUARANTEED PARTY of any of its payment obligations
deriving from the granting of the ENDORSEMENTS, the GUARANTOR ENTITIES shall be
entitled to the performance of the pledge of the deposit constituted by the
GUARANTEED PARTY or, as appropriate, by the WARRANTORS, following agreement of
the majority of the GUARANTOR ENTITIES in accordance with the procedure laid
down in section 4 of this clause. The decision adopted, whether it be favourable
or not to the performance of the pledge, shall be binding upon all of the
GUARANTOR ENTITIES, including those who are not in agreement.
The AGENT ENTITY shall comply with the agreement of the majority of the
GUARANTOR ENTITIES. In this action, the latter shall expressly empower the AGENT
ENTITY as widely as may be necessary in law, so that it may carry out all such
pertinent acts in this respect, on behalf of and representing all of them.
4.- DECISION MAKING PROCEDURE BY THE GUARANTOR ENTITIES.
a) It shall be understood that the "majority" of the GUARANTOR ENTITIES shall
consist of the whole of the GUARANTOR ENTITIES whose participation in the
ENDORSEMENTS represents more than 50% of the total amount thereof at all times.
b) In performing all of the powers conferred to the AGENT ENTITY in accordance
with the foregoing sections and for purely internal purposes of the syndicate,
the AGENT ENTITY, when acting as the representative of the GUARANTOR ENTITIES,
shall attend to the instructions of said GUARANTOR ENTITIES.
c) In order to obtain the instructions of the GUARANTOR ENTITIES that take part
in this syndicate, for the adoption of decisions in accordance with the
foregoing sections, the AGENT ENTITY shall send a telex, fax or similar
communication to each one of the GUARANTOR ENTITIES, to the place of business
indicated herein. Each one of them, as appropriate, shall be bound to answer by
the same procedure within the fifth working day following such act. All the
telexes or other communications that are received by the AGENT ENTITY shall be
valid for the purposes of drawing up the agreement, without any pre-requisite
having to be met. It will be sufficient that they have seemed to have been sent
from a terminal installed in the office of the issuing entity. For such
purposes, the name of the physical person who features as the apparent signatory
of the message and the powers of representation that are held shall not be of
importance.
For these purposes, it shall be understood that the GUARANTOR ENTITY that does
not reply to the AGENT ENTITY in the manner of the abovementioned procedure,
shall be assumed to have tacitly approved of and vote in favour of the proposal
of the AGENT ENTITY.
d) Once the period of time indicated has passed, the AGENT ENTITY shall verify,
based on the replies it has received, the decision adopted by the "majority" of
the GUARANTOR ENTITIES under the terms of what has been established in the
foregoing sections.
e) Without prejudice to what has been set out in the foregoing paragraph, nor to
the full effectiveness of the agreements reached in accordance with the method
described, the GUARANTOR ENTITIES undertake to confirm the instructions given to
the AGENT ENTITY with all possible speed by means of the execution of such
public or private documents as the AGENT ENTITY may require of them.
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f) The AGENT ENTITY shall convey to the GUARANTOR ENTITIES all the information
that it receives from the GUARANTEED PARTY relating to the contract. Apart from
the previous obligation, the AGENT ENTITY shall only be bound to communicate to
the GUARANTOR ENTITIES the existence of a circumstance of a demand for
disclosure of the surety bond, when the existence of such a circumstance is made
aware to the AGENT ENTITY in a due or reliable manner. The AGENT ENTITY shall
not be bound to indicate any option of its own nor to pass judgement on the
information conveyed.
The GUARANTOR ENTITIES undertake to communicate to the AGENT ENTITY, as soon as
they become aware of any circumstance or fact that may entail a cause of demand
of disclosure of the surety bond made in accordance with the terms of this
contract.
SIXTEENTH.- COMMUNICATIONS BETWEEN THE PARTIES.-
1.- All the requests, notifications, warnings and communications relating to
this contract that do not require a special formality shall be understood to
have been duly undertaken when they are done by fax or telegram addressed to the
place of business indicated in the following paragraph. This shall be without
prejudice to them being subsequently confirmed in a letter signed by the
empowered person., as regards the communications that are made or the
acknowledgement in the same form as they are received. The receipt of the
transmission of the telegram or of the original fax in which this is made shall
be deemed to be due proof of the communication.
2.- The communications that are made in accordance with this contract shall be
addressed to the places of business of the parties that feature at the
commencement of this contract and the persons signing the same.
3.- Any modification of the places of business or numbers of telephone, fax or
telex shall be communicated in writing to the AGENT ENTITY.
SEVENTEENTH.- REGIMEN OF THE CONTRACT AND ACCESS TO LEGAL ACTION.-
This contract shall have legal force in accordance with the terms of number 6(0)
of section 1429 of the Spanish Civil Procedure Act, or guideline that replaces
it, and other concordant legislation.
The GUARANTEED PARTY and WARRANTORS consent that in this contract, and as
appropriate, in the public document that incorporates it, as many copies as may
be requested by the AGENT ENTITY may be issued (first copies in the case of a
public instrument), all of these having the value of legal title effective for
the performance thereunder in accordance with section 1429 of the Spanish Civil
Procedure Act, or guideline that replaces it.
EIGHTEENTH.- A.E.R.-
For informative purposes, it is made known that the Annual Equivalent Rate
(A.E.R.) applicable to the special account will be calculated in accordance with
formula set forth in number 1 of appendix V of the 8/1990 Circular of the 7th of
September by the Bank of Spain.
NINETEENTH.- APPLICABLE LEGISLATION AND WAIVER OF JURISDICTION.-
This contract shall be interpreted and complied with on its own terms and
governed by Spanish legislation.
Madrid is designated as the place of compliance with the obligations deriving
under this contract, for the purposes laid down in section 1439 of the Spanish
Civil Procedure Act, or guideline that replaces it.
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In accordance with what has been set out in the foregoing paragraph, the
GUARANTEED PARTY and the GUARANTOR ENTITIES, expressly waive any other
jurisdiction that may correspond to them and subject themselves to the
jurisdiction of the Courts and Tribunals of the city of Madrid, in order to
resolve any disagreement that may derive from this contract or the granting of
ENDORSEMENTS.
TWENTIETH.- INTRODUCTION OF THE SINGLE CURRENCY.-
1. Given that the contractual currency of this transaction is the currency of a
State that has been integrated into the European Monetary Union, the parties
declare their knowledge relating to the terms set out under section 3 of the
(E.C.) Regulation n(0) 1103/97, of the 17th of June, concerning certain
provisions relating to the introduction of the euro. Said introduction is not
the cause of termination nor re-negotiation of the contracts, and thereby no
modification for any such reason in the agreed conditions shall be experienced.
2. Without prejudice to the foregoing, the introduction of the single currency
has been the object of legal regulation, and a series of consequences applicable
to this contract have been derived from the same.
In particular, and not being of an exhaustive nature, it is stated for
informative purposes that with regard to the introduction of the single
currency:
A) CONVERSION: During the transitory period, being understood to be that defined
in the (C.E.) Regulation n(0) 974/98 concerning the Introduction of the EURO,
that charges and payments shall be indistinctly made in pesetas and euros. The
currency shall be recorded in the credit account, applying the fixed and
irrevocable conversion rate between the EURO and the peseta set by the Council
of the European Union, in accordance with the terms of article 109.4 of the
Constitutive Treaty of the European Union and section 4 of the C.E. n(0) 1103/97
of the Council of the European Union, concerning certain provisions relating to
the introduction of the EURO, being rounded up in accordance with the terms of
section 5 of the C.E.Regulation 1103/97 of the 17th of June, if in the period in
which the euro does not exist in a physical manner, the currency of the amounts
that will be paid in cash will be the peseta.
B) PAYMENTS: During the transitory period, there shall be free range to make
payments both in euros and pesetas.
C) COMPENSATION: In accordance with the terms of section 8.6 of the C.E.
Regulation 974/98 concerning the Introduction of the EURO, in the event of this
compensation being appropriate and there being a difference between the debit
and credit balances with one being denominated in euros and the other in pesetas
during the transitory period, payment shall be effected by applying the fixed
and irrevocable conversion rate alluded to in the section a) above. The amount
shall be rounded up in accordance with the terms of section 5 of the C.E.
Regulation 1103/97 of the 17th of June.
D) REDENOMINATION: In the event of the length of this contract in force being
longer than the end of the transitory period, then at the time at which the
latter comes to an end, it is established under C.E.Regulation 974/98 concerning
the introduction of the EURO, under section 14, that the amounts expressed in
pesetas in the contract for whatever item shall be replaced automatically by the
equivalent amount in the single currency. These shall be
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calculated on the fixed and irrevocable conversion rate between the EURO and the
peseta as set by the Council of the European Union and alluded to in paragraph
a) above, being rounded up in accordance with the terms of section 5 of the C.E.
Regulation 103/97 of the 17th of June.
The parties appearing in this contract declare their agreement and approval of
the content of the same as it has been drafted, they execute and sign it with my
assistance in [....] equally original and for the delivery of the same, one copy
remaining in my files.
And I the Agent of the Commerce Collegiate, SWEAR to the identity, capacity
and legitimacy of the signatures of the contracting parties and, to the
execution of this contract, issued in [.....] pages.
THE GUARANTEED PARTY
FIRSTMARK COMUNICATIONS SPAIN, S.L. (PRIVATE LIMITED COMPANY) (P.P.)
D. Jose Fernandez Lizaran (DNI482549-D)
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<TABLE>
THE GUARANTOR ENTITIES
<S> <C>
CAJA DE AHORROS Y MONTE DE PIEDAD DE BALEARES, (SA CAJA DE AHORROS DEL MEDITERRANEO (CAM) (P.P.)
NOSTRA) (P.P.)
D. Miguel Francisco Oliver Roca (DNI 41.388.111) D. Juan Bautista Legorburo Escobar (DNI 51.383.908-E)
MONTE DE PIEDAD Y CAJA DE AHORROS DE HUELVA Y CAJA DE AHORROS Y MONTE DE PIEDAD DE ZARAGOZA
SEVILLA (EL MONTE) (P.P.) ARAGON Y RIOJA (IBERCAJA) (P.P.)
D. Jose Antonio Martin Navarro(DNI 28.504.470-H)
D. Manuel Trujillo Comesana (DNI 28.395.694-D) D. Manuel Galindo Oliva (DNI51.871.164)
CAJA DE AHORROS DE SALAMANCA Y SORIA (CAJA CAJA DE AHORROS PROVINCIAL SAN FERNANDO DE SEVILLA
DUERO)(P.P.) Y JEREZ (CAJA SAN FERNANDO) (P.P.)
Dna. Anunciacion Rodriguez Sanz (DNI 11.703.138-W) D. Enrique Garcia Ledesma (DNI 6.894.303-F)
D. Angel Luis Blasco Vinue (DNI.18.402.453)
SOCIEDAD ESPANOLA DE BANCA DE NEGOCIOS, S.A. (P.P.) MONTES DE PIEDAD. Y CAJA DE AHORROS DE RONDA,
CADIZ, ALMERIA, MALAGA Y ANTEQUERA (UNICAJA)
1. D. TEOFILO JIMENEZ FUENTES (6.535.916-J)
Mariano J. Dorado Siles 25.576.667-H
D. Joaquin Asiain Sastre (51.955.828-R
Diego Pilares Naranjo 25.546.960-D
THE WARRANTORS
FIRSTMARK COMUNICATIONS EUROPE INMOBILIARIA AZTLAN SOCIEDAD ANINIMA DE CAPITAL
VARIABLE (P.P.)
(MV.)
D. Eduardo Diez-Hochleitner Rodriguez (DNI 50.412.632-J)
D. Michel John Taylor (Pasap. R.U. 019211701)
</TABLE>
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<TABLE>
<S> <C>
PROMOTORA DE INFORMACIONES, S.A. (P.P.) INFORMATICA EL CORTE INGLES, S.A. (P.P.)
D. Eduardo Diez-Hochleitner Rodriguez (DNI D. Florencio Lasaga Munarriz (DNI 15.820.025-G)
50.412.632-J)
OMEGA CAPITAL, S.L. (M.V.) CAJA DE AHORROS DE SALAMANCA Y SORIA (CAJA
DUERO)(P.P.)
D. Mario Fernandez-Pena Garcia(DNI105.525)
CAJA DE AHORROS Y MONTE DE PIEDAD DE ZARAGOZA ARAGON CAJA DE AHORROS PROVINCIAL SAN FERNANDO DE SEVILLA
Y RIOJA (IBERCAJA) (P.P.) Y JEREZ (CAJA SAN FERNANDO) (P.P.)
D. Manuel Galindo Oliva (DNI 51.871-164) D. Enrique Garcia Ledesma (DNI6.894.303-F)
MONTE DE PIEDAD Y CAJA DE AHORROS DE HUELVA Y DIARIO DE BURGOS, S.A. (P.P.)
SEVILLA (EL MONTE) (P.P.)
D. Jose Antonio Martin Navarro(DNI 28.504.470-H) D. Gregorio Mendez Ordonez (DNI 13.144.084-K)
D. Maunel Trujillo Comesana (DNI 28.395.694-D)
FONSAGRADA, S.L. (P.P.)
D. Jose Leoncio Areal Lopez (DNI 34524649-Q)
</TABLE>
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