EXHIBIT 10.40
EXECUTION COPY
DATED 28 AUGUST 2003
WESTERN WIRELESS INTERNATIONAL CORPORATION
WESTERN WIRELESS INTERNATIONAL SLOVENIA CORPORATION
WESTERN WIRELESS INTERNATIONAL SLOVENIA II CORPORATION
WESTERN WIRELESS INTERNATIONAL D.O.O.
and
IKB DEUTSCHE INDUSTRIEBANK AG
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SECOND AMENDMENT AND RESTATEMENT OF THE
SPONSORS' AND SHAREHOLDERS' UNDERTAKING AND
COMPLETION GUARANTEE
DATED 30 APRIL 2002
RELATING TO THE FINANCING OF THE XXXX GSM TELECOMMUNICATIONS
NETWORK IN SLOVENIA
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TABLE OF CONTENTS
CONTENTS
CLAUSE PAGE
1. Definitions and Interpretation......................................................... 2
2. Guarantee.............................................................................. 9
3. Undertakings........................................................................... 12
4. Representations and Warranties......................................................... 19
5. Undertakings in relation to Subordinated Debt.......................................... 22
6. Permitted Payments..................................................................... 24
7. Subordination on Insolvency............................................................ 25
8. Enforcement by the Sponsors............................................................ 27
9. Voting................................................................................. 27
10. Funding of Sponsor Contributions and Nature of Obligations............................. 28
11. No Subrogation......................................................................... 32
12. Waiver................................................................................. 32
13. Consents............................................................................... 33
14. Conflict............................................................................... 33
15. Preservation of Subordinated Debt...................................................... 34
16. Taxes.................................................................................. 34
17. Indemnities............................................................................ 35
18. Successors, Assignments and Transfers.................................................. 35
19. Power of Attorney...................................................................... 36
20. Remedies and Waivers, Cumulative Rights, Partial Invalidity............................ 36
21. Rights of the Borrower................................................................. 37
22. Other information...................................................................... 37
23. UMTS Rebate............................................................................ 37
24. Overseas ranking....................................................................... 37
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TABLE OF CONTENTS
(CONTINUED)
PAGE
25. Notices................................................................................ 37
26. Counterparts........................................................................... 40
27. Amendments............................................................................. 40
28. Governing law.......................................................................... 40
29. Jurisdiction; Consent to Service of Process; Waiver of Jury Trial...................... 40
30. Service of process..................................................................... 41
31. Waiver of Immunity..................................................................... 41
32. Expenses............................................................................... 42
33. Entire Agreement....................................................................... 42
SCHEDULE 1 Process Agents................................................................... 58
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THIS AGREEMENT is dated 2003 and made between:
(1) WESTERN WIRELESS INTERNATIONAL CORPORATION ("WWIC"), WESTERN WIRELESS
INTERNATIONAL SLOVENIA CORPORATION ("WWI SLOVENIA I"), and WESTERN
WIRELESS INTERNATIONAL SLOVENIA II CORPORATION ("WWI SLOVENIA II")
(together the "SPONSORS");
(2) WESTERN WIRELESS INTERNATIONAL D.O.O., a company with limited liability
organised and existing under the laws of the Republic of Slovenia (the
"BORROWER"); and
(3) IKB DEUTSCHE INDUSTRIEBANK AG, a banking corporation duly organised and
existing under the laws of the Federal Republic of Germany as off shore
security or facility agent for and on behalf of the Senior Creditors
(the "OFF SHORE SECURITY AGENT" or the "OFF SHORE FACILITY AGENT" as
the case may be).
WHEREAS
(A) The Borrower is a special purpose project company created as a limited
liability company on 20 September 2000 to undertake the Project.
(B) WWIC, WWI Slovenia I, and WWI Slovenia II are the sponsors of the
Project and are direct and indirect shareholders of the Borrower.
(C) The Borrower has entered into the Facility Agreement pursuant to which
each of the Banks has agreed to make available certain project finance
facilities to the Borrower and the Lucent Loan Agreement pursuant to
which Lucent Technologies Inc. has agreed to make a loan to the
Borrower, in each case, for the purpose of, amongst other things, the
design, construction, engineering, financing, commissioning, operation
and maintenance of the Project.
(D) The Borrower has entered into the Hedging Agreements pursuant to which
the Hedging Counterparties will provide certain interest rate hedging
arrangements to the Borrower.
(E) The parties hereto have entered into the Original Sponsors' and
Shareholders' Undertaking and Completion Guarantee pursuant to which
the Sponsors agreed to provide a completion guarantee and certain
undertakings to the Senior Creditors which were a condition precedent
to the obligations of the Banks under the Facility Agreement.
(F) The parties hereto wish to amend and restate the Original Sponsors' and
Shareholders' Undertaking and Completion Guarantee as provided in this
Agreement (which, for the avoidance of doubt, is intended by the
parties hereto to be an amendment and restatement only and not a
novation).
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IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
Terms used but not otherwise defined herein shall have the meanings
ascribed to them in the Facility Agreement. The following terms shall
have the following meanings when used herein:
"AFFILIATE" means, in relation to any person, a Subsidiary of that
person or a Holding Company of that person or any other Subsidiary of
that Holding Company.
"AGREEMENT" means this agreement and includes the schedules hereto.
"ARRANGER" has the meaning given to it in the Facility Agreement.
"AUTHORISATION" means an authorisation, consent, approval, resolution,
licence, exemption, filing, notarisation or registration.
"BANK" has the meaning given to it in the Facility Agreement.
"BORROWER" means Western Wireless International, d.o.o..
"BORROWER'S OBLIGATIONS" means all debts and monetary liabilities of
the Borrower to the Senior Creditors of any nature, now existing or
hereafter arising, whether or not evidenced by any note, agreement or
other instrument under or in relation to the Finance Documents
including, without limitation and in each such case, all interest,
premium fees, make-whole amounts, swap termination payments, charges,
losses, costs, expenses, Break Costs and any other sum payable by the
Borrower thereunder.
"BREAK COSTS" has the meaning given to it in the Facility Agreement.
"CASH SHORTFALL" has the meaning given to it in the Facility Agreement.
"CONCESSION AGREEMENT" means the concession agreement between the
Government and the Borrower dated January 03, 2001 based on the
Government's decision no. 347-16/99-6 dated 16 November 2000.
"DEBT SERVICE RESERVE ACCOUNT" means the account established under
Clause 23.9 (Debt Service Reserve Account) of the Facility Agreement.
"DELIVERY CONTRACT" means the delivery contract between Lucent
Technologies Network Systems GmbH, Nurnberg, Germany and the Borrower
dated 15 March 2001 and signed on 21 March 2001 and 30 April 2001 as
amended from time to time.
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"DISCHARGE DATE" means the date on which the Borrower's Obligations
have been fully and irrevocably paid or discharged to the reasonable
satisfaction of the Off Shore Facility Agent, whether or not as a
result of enforcement.
"DSRA-REQUIRED BALANCE" has the meaning set out in Clause 23.9.2 (Debt
Service Reserve Account) of the Facility Agreement.
"ECA" means Euler Hermes Kreditversicherungs- AG, Hamburg.
"ECA FACILITY" has the meaning given to it in the Facility Agreement.
"EQUITY CONTRIBUTION" means a cash contribution in the Share Capital or
subsequent payments in cash or in kind towards the capital (Naknadna
vplacila).
"ETSI" means the European Telecommunications Standards Institute.
"EVENT OF DEFAULT" means any event or circumstance specified as such in
Clause 25 (Events of Default) of the Facility Agreement.
"FACILITY" has the meaning given to it in the Facility Agreement.
"FACILITY AGREEMENT" means the facility agreement dated 30 April 2002
between the Banks and the Borrower and as amended by the First
Amendment Agreement relating to the Facility Agreement dated 28 October
2002 and the Second Amendment Agreement relating to the Facility
Agreement dated [-] August 2003.
"FINANCE PARTY" means any of the Off Shore Facility Agent, the On Shore
Facility Agent, the Security Agents, the Issuing Bank, the Arrangers or
the Banks.
"GOVERNMENT" means the Government of the Republic of Slovenia.
"3GPP" means the 3G Partnership Project.
"HEDGING AGREEMENT" means any hedging agreement between the Borrower
and any Hedging Counterparty designated as a Hedging Agreement by the
Borrower and the Hedging Counterparty and notified to the Off Shore
Facility Agent in each case, in accordance with the terms of the
Intercreditor Agreement.
"HEDGING COUNTERPARTY" means the Original Hedging Counterparty and any
bank or financial institution which accedes to the terms of the
Intercreditor Agreement in accordance with the requirements thereof.
"HOLDING COMPANY" means, in relation to a company or corporation, any
other company or corporation in respect of which it is a Subsidiary.
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"INDEPENDENT TECHNICAL CONSULTANT" means Xx. Xxxx Xxx of
Teleconsultants and Associates Limited, who shall assist the Banks in
connection with the Project or any replacement consulting firm
nominated by the Majority Banks after consultation with the Borrower.
"INFORMATION MEMORANDUM" means the document dated September 2001
prepared by the Off Shore Facility Agent and approved by the Borrower
in relation to the Project, distributed to the Banks and the ECA prior
to the date hereof.
"INITIAL BUSINESS PLAN" means a statement of the technical, economic
and tax assumptions in the form of the financial model agreed between
the parties to the Facility Agreement and referred to as the excel
spreadsheet named "Base Case 12 July 01.xls".
"INSOLVENCY EVENTS" has the meaning given to it in Clause 7.1
(Insolvency Events).
"ISSUING BANK" means Nova Ljubljanska banka d.d., Ljubljana or such
other financial institution or bank from time to time which issues a
SIT Facility Guarantee or LC.
"ITU" means the International Telecommunications Union.
"LICENCE" means the GSM-1800 licence issued by the Government to the
Borrower (including the Concession Agreement) and any renewal,
extension or replacement thereof.
"LONG TERM INDEBTEDNESS" shall mean indebtedness for borrowed money
which, as of the applicable determination date, would be included in
the Group's consolidated financial statements prepared in accordance
with US GAAP under the line items set forth therein entitled "Long Term
Debt" and "Current Portion of Long Term Debt".
"MAJORITY BANKS" has the meaning given to it in the Facility Agreement.
"MANAGEMENT AGREEMENT" means the management agreement to be entered
into between the Borrower and Western Wireless International
Corporation.
"MATERIAL ADVERSE EFFECT" means any event, occurrence or condition
which has or could reasonably be expected to have a material adverse
effect on:
(a) the business, operation, property (taken as a whole) and/or
financial condition of the Borrower and/or a Sponsor;
(b) the ability of the Borrower and/or the Sponsors to perform a
payment obligation or other material obligation under a
Transaction Document to which it is a party;
(c) except as permitted under the Facility Agreement the validity
or enforceability of a Material Contract; or
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(d) the validity or enforceability of any of the Security
purported to be granted under the Security Documents (as and
when such Security is required to be valid and enforceable).
"MATERIAL CONTRACTS" has the meaning given to it in the Facility
Agreement.
"NETWORK" means the Borrower's telecommunication network including,
without limitation, all associated hardware, software, infrastructure,
civil works, towers, masts and antenna systems, links and
interconnection in Slovenia using the GSM ETSI standards and any
evolution of these standards to 3GPP standards, or otherwise, and any
equipment conforming to ITU standards and shall include all hardware,
licensed software and documentation, services and support procured
under the Delivery Contract.
"OFF SHORE FACILITY AGENT" means IKB Deutsche Industriebank AG.
"OFF SHORE SECURITY AGENT" means IKB Deutsche Industriebank AG.
"ON SHORE FACILITY AGENT" means Nova Ljubljanska banka d.d.
"ON SHORE SECURITY AGENT" means Nova Ljubljanska banka d.d.
"ORIGINAL HEDGING COUNTERPARTY" means IKB International S.A.,
Luxembourg.
"ORIGINAL SPONSORS' AND SHAREHOLDERS' UNDERTAKING AND COMPLETION
GUARANTEE" means the Sponsors' and Shareholders' Undertaking and
Completion Guarantee, dated 30 April 2002, as amended by the First
Amendment Agreement relating to the Sponsors' and Shareholders'
Undertaking and Completion Guarantee, dated 28 October 2002.
"PARENT" means Western Wireless Corporation.
"PARTY" means a party to this Agreement.
"PERMITTED GROUP ENCUMBRANCES" means:
(a) Permitted Encumbrances of the Borrower;
(b) Security created over the assets of any member of the Group in
respect of indebtedness permitted under Clause 3.1.5
(Indebtedness);
(c) any Security arising by operation of law in the ordinary
course of a Group member's business PROVIDED THAT if at any
time such Security is or becomes enforceable such Security is
being contested in good faith or appropriate reserves have
been made in respect of the indebtedness to which it relates;
(d) rights of set off arising in the ordinary course of a Group
member's business PROVIDED THAT if at any time such Security
is or becomes enforceable such Security is being
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contested in good faith or appropriate reserves have been made
in respect of the indebtedness to which it relates;
(e) Security on property existing prior to the acquisition thereof
PROVIDED THAT such Security was not created to avoid the terms
of this Agreement;
(f) Security existing and disclosed in writing to the Off Shore
Security Agent prior to the Second Amendment Agreement
Effective Date; and
(g) Security created with the consent of the Senior Creditors.
"POTENTIAL EVENT OF DEFAULT" has the meaning given to it in the
Facility Agreement.
"PROCEEDS AND REVENUE ACCOUNT" has the meaning given to it in the
Facility Agreement.
"PROCESS AGENT" has the meaning given to it in Clause 30.1 (Service of
process).
"PROJECT" means the design, construction, testing, completion and
operation of the Network.
"QUARTER" means each period of three months in a financial year of the
Borrower, the first such period of any financial year commencing on the
first day of such financial year.
"REPAYMENT DATE" means in relation to a Facility the dates specified
for repayment in schedule 2 (Repayment Dates) of the Facility
Agreement.
"REPORTING DATE" has the meaning given to it in Clause 3.3 (Contingent
Equity).
"SECURITY" means a mortgage, charge, pledge, xxxx, xxxx of exchange,
security deposit or other security interest securing any obligation of
any person or any other agreement or arrangement having a similar
effect.
"SECURITY AGENT" means the Off Shore Security Agent and/or the On Shore
Security Agent.
"SECURITY DOCUMENTS" has the meaning given to it in the Facility
Agreement.
"SENIOR CREDITORS" means the Finance Parties and the Hedging
Counterparties and Lucent Technologies Inc (until the irrevocable
repayment in full of all amounts outstanding under the Lucent Loan
Agreement).
"SHARE" means an ordinary fully paid up share in the Share Capital.
"SHARE CAPITAL" means the share capital of the Borrower as increased
from time to time in accordance with this Agreement.
"SHAREHOLDERS" means WWI Slovenia I and WWI Slovenia II and any
permitted transferee in accordance with and pursuant to the terms and
conditions of this Agreement.
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"SHAREHOLDERS PLEDGE AGREEMENT" means the shareholder pledge agreement
to be entered into by WWIC for the purposes of pledging its interests
in the Shareholders to the Off Shore Security Agent acting on behalf of
the Senior Creditors.
"SIT" means the lawful monetary unit of the Republic of Slovenia from
time to time.
"SIT FACILITY GUARANTEE OR LC" means any guarantee issued or to be
issued or letter of credit opened or to be opened by the Issuing Bank
upon request of the Borrower.
"SPONSOR CONTRIBUTIONS" means contributions made to the Borrower by way
of Equity Contributions and/or Subordinated Loans.
"SPONSORS" means WWIC, WWI Slovenia I and WWI Slovenia II.
"SPONSORS' AND SHAREHOLDERS' OBLIGATIONS" means the obligations of the
Sponsors and Shareholders under this Agreement.
"SUBORDINATED DEBT" means all present and future obligations and
liabilities (whether actual or contingent, whether owed jointly,
severally or in any other capacity whatsoever and whether originally
incurred by the Borrower or by some other person) of the Borrower to
the Sponsors or the Shareholders (or any of them) including, without
limitation, any amounts paid by the Sponsors pursuant to Clause 2
(Guarantee), any Subordinated Loan and any amount received by the
Borrower from the Sponsors or the Shareholders as additional paid in
capital which is not evidenced by the issuance of new Shares and
amounts owing under the Sponsors Unsecured Loan Agreement and/or the
Management Agreement (in each case including any such obligations or
liabilities outstanding prior to the date of any amendment to this
Agreement) PROVIDED THAT Subordinated Debt shall not, prior to the
occurrence of an Event of Default, include amounts in respect of direct
costs payable under the Management Agreement which are provided for in
the Initial Business Plan and permitted to be paid in accordance with
clause 23.3(d)(ii) (Application of moneys on the Proceeds and Revenue
Accounts) of the Facility Agreement or Existing WWIC Loans that are
permitted to be repaid to WWIC in accordance with clause 23.8.2 (Loan
Proceeds Account) of the Facility Agreement.
"SUBORDINATED DEBT DOCUMENT" has the meaning given to it in the
Intercreditor Agreement.
"SUBORDINATED LOAN" means a subordinated loan (other than a Sponsors
Unsecured Loan) made to the Borrower in accordance with the terms of
this Agreement.
"SUBSIDIARY" means, in relation to any company or corporation, any
company, corporation or partnership:
(a) which is controlled, directly or indirectly, by the
first-mentioned company or corporation and, for these
purposes, a company, corporation or partnership shall be
treated as being controlled by a company or corporation if
that other company or corporation is able to
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direct its affairs and/or to control the composition of its
board of directors or equivalent body;
(b) more than half the issued share capital or partnership
interest 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.
"TRANSACTION DOCUMENTS" has the meaning given to it in the Facility
Agreement.
"TRANSFER CONDITIONS" means, in relation to any disposal of Shares,
that:
(a) the Transferee satisfies the Transferee Criteria;
(b) the person intending to dispose of its Shares has provided the
Off Shore Facility Agent with at least 60 days' notice of the
identity of the Transferee together with all necessary
information of the Transferee in order to be able to assess
the creditworthiness of the Transferee accurately, details of
the number of Shares that are to be transferred to and the
amount of Subordinated Loans that are to be assumed by the
Transferee;
(c) the Transferee has become bound by the terms of this Agreement
by execution of such documents as the Off Shore Facility Agent
may reasonably require specifying and has delivered a legal
opinion in form and substance satisfactory to the Off Shore
Facility Agent addressing the representations set out in
Clause 4.1 (Individual Sponsor and Shareholder representations
and warranties); and
(d) the Shares which are the subject of the disposal remain
subject to the Security.
"TRANSFEREE" means a person to whom a Shareholder or Sponsor intends,
in conformity with the provisions hereof and the constitutive documents
of the Borrower, to dispose of all or part of its Shares or
Subordinated Debt.
"TRANSFEREE CRITERIA" means in relation to any Transferee, that:
(a) such person, its assets or its country of residence or
incorporation, is not then subject to any economic or
political sanctions issued by an OECD member country or issued
by an organisation to which an OECD member country is subject
and is reasonably satisfactory to the Majority Banks; and
(b) such person (or its parent, if such person's obligations are
unconditionally guaranteed by its parent) has delivered to the
Off Shore Facility Agent its most recent two consecutive years
of audited financial statements demonstrating to the
reasonable satisfaction of the Off Shore Facility Agent
(acting on the instructions of the Majority Banks) that such
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person could reasonably be expected to fulfil its future
obligations under the Finance Documents.
"US GAAP" means generally accepted accounting principles, standards and
practices in the United States of America consistently applied.
"VAT" means value added tax as provided for in the Law on Value Added
Tax published in the Official Gazettes of the Republic of Slovenia, no.
89/98, 17/2000 - decision of Constitution Court, 30/2001 and any other
tax of a similar nature.
"WWI SLOVENIA I" means Western Wireless International Slovenia
Corporation.
"WWI SLOVENIA II" means Western Wireless International Slovenia II
Corporation.
"WWIC" means Western Wireless International Corporation.
1.2 INTERPRETATION
In this Agreement a reference to:
1.2.1 this Agreement means this agreement as from time to time supplemented
or amended by one or more agreements entered into pursuant to the
applicable provisions hereof;
1.2.2 a document is a reference to that document as modified or replaced from
time to time;
1.2.3 a person includes reference to a government, state, state agency,
corporation, body corporate, association or partnership;
1.2.4 a person includes a reference to that person's legal personal
representatives, successors and assigns;
1.2.5 the singular includes the plural and vice versa;
1.2.6 a time of day is a reference to the time in Dusseldorf, unless a
contrary indication appears; and
1.2.7 a Clause or Schedule is a reference to a clause of or schedule to this
Agreement.
1.3 An Event of Default can be assumed to be continuing unless the Borrower
has satisfied the Agents or Security Agents (in each case acting on the
instructions of the Majority Banks acting reasonably) that such Event
of Default has been cured or waived.
1.4 If any enforcement action as directed by the Senior Creditors in
accordance with the Intercreditor Agreement, permitted to be taken upon
an Event of Default, has been commenced, the Borrower may not
subsequently cure such Event of Default without the prior written
consent of the Agents or Security Agents (in each case acting on the
instructions of the Majority Banks).
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1.5 Clause headings and the table of contents in this Agreement are for
convenience of reference only, are not part of this Agreement and shall
not affect the construction of, or be taken into consideration in,
interpreting this Agreement.
1.6 In respect of any obligations of the Sponsors, Shareholders and the
Borrower hereunder, whether for payment of money or otherwise, the Off
Shore Security Agent shall be authorised and entitled to demand payment
or performance in accordance with the terms of such obligations as set
out herein.
2. GUARANTEE
2.1 GUARANTEE
The Sponsors on a joint and several basis irrevocably, absolutely and
unconditionally, as principal obligors and not merely as surety,
guarantee to the Senior Creditors the punctual payment when due,
whether at stated maturity, by acceleration or otherwise, and the
punctual performance, of all of the present and future Borrower's
Obligations under the Finance Documents and undertake for the benefit
of the Senior Creditors to pay to the Off Shore Security Agent an
amount equal to the Borrower's Obligations in the same manner as the
Borrower's Obligations are required to be paid by the Borrower under
the Finance Documents (the "GUARANTEE").
2.2 NATURE OF GUARANTEE
2.2.1 This Guarantee is one of payment and performance, not collection, and
the obligations of the Sponsors under this Guarantee are independent of
the Borrower's Obligations, and a separate action or actions may be
brought and prosecuted against any one or all of the Sponsors to
enforce this Guarantee, irrespective of whether any action is brought
against the Borrower or whether the Borrower is joined in any such
action or actions.
2.2.2 The Off Shore Security Agent may at any time and from time to time
(whether or not after revocation or termination of this Guarantee)
with-out the consent of, or notice (except as shall be required by
applicable statute and cannot be waived) to, the Sponsors, and without
incurring responsibility to the Sponsors or impairing or releasing the
obligations of the Sponsors hereunder, apply any sums by whomsoever
paid or howsoever realised to any of the Borrower's Obligations
regardless of what Borrower's Obligations remain unpaid.
2.3 REMEDIES UPON DEFAULT; RIGHT OF SET-OFF
(a) Upon the occurrence and during the continuance of any Event of
Default or, after expiry of the notice period in clause 14.2
(Change of Control, Withdrawal of Licence and Abandonment of
the Project) of the Facility Agreement, a mandatory prepayment
event provided for in clause 14.2 (Change of Control,
Withdrawal of Licence and Abandonment of the Project)of the
Facility Agreement, the Off Shore Security Agent may, without
notice to or demand upon the Borrower or the Sponsors, declare
any of the Borrower's
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Obligations immediately due and payable, and shall be entitled
to enforce the obligations of the Sponsors hereunder. The
obligations of the Sponsors may be enforced hereunder at one
time or on separate occasions.
(b) Upon such declaration by the Off Shore Security Agent, the Off
Shore Security Agent pursuant to Clause 2.3(a) and any Senior
Creditor is hereby authorized at any time and from time to
time, to the fullest extent permitted by law, to set-off and
apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other
indebtedness at any time owing by the Off Shore Security Agent
or any Senior Creditor to or for the credit or the account of
the Sponsors against any and all of the obligations of the
Sponsors now or hereafter existing under this Guarantee,
whether or not the Off Shore Security Agent or such Senior
Creditor shall have made any demand under this Guarantee and
although such obligations may be contingent and unmatured. The
Off Shore Security Agent agrees promptly to notify the
Sponsors after any such set-off and application, PROVIDED that
the failure to give such notice shall not affect the validity
of such set-off and application. The rights of the Off Shore
Security Agent and Senior Creditors under this Clause 2.3 are
in addition to other rights and remedies (including other
rights of set-off) which the Off Shore Security Agent and
Senior Creditors may have.
2.4 STATUTE OF LIMITATIONS
Any acknowledgement or new promise, whether by payment of principal or
interest or otherwise and whether by the Borrower or others (including
the Sponsors), with respect to any of the Borrower's Obligations shall,
if the statute of limitations in favor of the Sponsors against the Off
Shore Security Agent or Senior Creditors shall have commenced to run,
toll the running of such statute of limitations and, if the period of
such statute of limitations shall have expired, prevent the operation
of such statute of limitations.
2.5 INTEREST
Failure to pay when due all amounts payable from time to time by the
Sponsors hereunder shall bear interest at the interest rate per annum
specified in clause 9.5 (Default interest) of the Facility Agreement
from the date such payment was due until the date of receipt in full by
the Banks of such payment. Any interest payable under this Clause shall
be paid by the Sponsors upon demand of the Off Shore Security Agent.
2.6 RIGHTS AND REMEDIES NOT WAIVED
No act, omission or delay by the Off Shore Security Agent shall
constitute a waiver of its or the Secured Creditors' rights and
remedies hereunder or otherwise. No single or partial waiver by the Off
Shore Security Agent of any default hereunder or right or remedy which
it may have shall operate as a waiver of any other default, right or
remedy or of the same default, right or remedy on a future occasion.
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2.7 ADMISSIBILITY OF GUARANTEE
The Sponsors agree that any copy of this Agreement signed by the
Sponsors and transmitted by telecopier for delivery to the Off Shore
Security Agent shall be admissible in evidence as the original itself
in any judicial or administrative proceeding, whether or not the
original is in existence.
2.8 WINDING-UP AND INSOLVENCY
If on or before the Discharge Date:
2.8.1 any general meeting of any of the Sponsors is convened for the purposes
of passing a resolution for its winding-up, bankruptcy or dissolution
under any applicable law;
2.8.2 any legal proceedings are started (or renewed after stay) under any
applicable law for the winding-up, bankruptcy or dissolution of any of
the Sponsors; or
2.8.3 an order is made by a competent court or a resolution is passed for
winding-up, bankruptcy or dissolution of any of the Sponsors or any
receiver, manager, receiver-manager or similar officers are appointed
in relation to any of the Sponsors, under any applicable law;
then, if any such meeting, proceedings, order or appointment is not
dismissed or discharged (if capable of being dismissed or discharged)
in each case within 20 days of the institution or presentation thereof,
in addition to any other rights of the Senior Creditors hereunder, the
Sponsors shall, pay in accordance with Clause 2.1 (Guarantee) an amount
equal to the Borrower's Obligations then outstanding without the need
for any request, demand, notice or other action on the part of any
Senior Creditor or the Off Shore Facility Agent.
3. UNDERTAKINGS
3.1 UNDERTAKINGS OF WESTERN WIRELESS INTERNATIONAL CORPORATION
WWIC undertakes to the Senior Creditors that up to and including the
Discharge Date it will:
3.1.1 Ownership: not reduce its direct or indirect ownership of the Share
Capital to less than 80% without the prior written consent of the
Senior Creditors.
3.1.2 Reports and Information: provide the Off Shore Facility Agent, in
sufficient copies for each of the Banks, with the following reports,
prepared in compliance with all relevant legal and professional
requirements and according to generally accepted accounting principles
consistently applied:
(a) as soon as available, but in any event no later than one
hundred and twenty (120) days after the end of each financial
year, its audited (for 2001 only unaudited) annual report and
the audited annual report of Western Wireless International
Holding Corporation and, commencing with the 2002 financial
year, the unaudited annual financial statements of WWI
Slovenia I and WWI Slovenia II provided that in respect of the
2001 financial year,
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WWIC shall provide the unaudited annual financial statements
of WWI Slovenia I and WWI Slovenia II as soon as such
financial statements are available;
(b) as soon as available, but in any event no later than one
hundred and twenty (120) days after the end of each financial
year, the audited annual report of the Parent and such other
information or reporting as the Off Shore Facility Agent may
from time to time reasonably request; and
(c) all such information relating to the Group required to be
supplied by the Borrower or by WWIC in accordance with clause
21 (Reporting Requirements) and clause 22.3 (Stage II
covenants) of the Facility Agreement in accordance with the
requirements thereof.
All such financial information shall be in English and with respect to
the information in Clause 3.1.2(a) and (b) shall be submitted to the
Off Shore Facility Agent together with a certificate signed by the
chief financial officer of WWIC confirming that such information is
true and accurate or, with respect to any such financial information,
if required by the Facility Agreement submitted with a Covenant
Compliance Certificate in accordance with the requirements thereof. In
respect of three year business plan to be provided in relation to the
Group, WWIC shall meet with the Off Shore Facility Agent in accordance
with the requirements of clause 21.6.2 (Business Plan Review) of the
Facility Agreement.
3.1.3 Licence: promptly notify the Off Shore Facility Agent if it or any of
its Affiliates acquires any telecommunications business or any new
licence (excluding any renewal of or addition to any existing
telecommunications licence), in particular any UMTS licence.
3.1.4 Disposals and reorganisation: not, without the prior written consent of
the Majority Banks:
(a) dispose of any of its legal or economic interests in any
company or agree to permit any Subsidiary to dispose of any
part of its business or the whole or any part of its business;
or
(b) undertake any reconstruction or reorganisation of its business
or investments (other than investments that do not relate to
the business of WWIC);
PROVIDED THAT it or its Subsidiaries may without the prior written
consent of the Majority Banks:
(i) dispose of companies in which it holds less than a 50% legal
or economic ownership interest PROVIDED THAT such disposal is
on an arms length basis on commercial terms; and/or
(ii) dispose of its immaterial physical assets, on an arms length
basis, in the ordinary course of business.
3.1.5 Indebtedness: not, without the prior consent of the Majority Banks,
incur or permit any Subsidiary to incur any Long Term Indebtedness to
any person (other than Western Wireless
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International Holding Corporation or any other Group member)
(contingent or otherwise) which at any time exceeds an amount, on a
consolidated basis, of Euro 400,000,000.00.
For purposes of determining compliance with this Clause, indebtedness
denominated in any currency other than Euros shall be converted:
(i) first, into US Dollars on the same basis such amounts are
converted into US Dollars for the purposes of preparing the
Group's most recent consolidated audited financial statements;
and
(ii) thereafter, from US Dollars into Euros using the reciprocal
exchange rate applicable in paragraph (i) above.
Notwithstanding anything contained herein to the contrary, the maximum
amount of indebtedness pursuant to this Clause that may be incurred
shall not be deemed to be exceeded due solely to the result of
fluctuations in the exchange rates of currencies on dates which are not
dates on which Long Term Indebtedness is incurred.
3.1.6 Negative pledge: other than those arrangements disclosed in writing to
the Off Shore Facility Agent prior to the Second Amendment Agreement
Effective Date and any Permitted Group Encumbrances, not, without the
prior written consent of the Majority Banks, and shall not permit any
Subsidiary to:
(a) create or permit to subsist any Security over any of its or
the Group's assets;
(b) sell, transfer or otherwise dispose of any of its or the
Group's assets on terms whereby they are or may be leased to
or re-acquired by the Borrower;
(c) sell, transfer or otherwise dispose of any of its or the
Group's receivables on recourse terms; or
(d) enter into any other preferential arrangement having a similar
effect to the arrangements set out in paragraphs (b) to (c)
above,
in circumstances where the arrangement or transaction is
entered into primarily as a method of raising Financial
Indebtedness or of financing the acquisition of an asset.
3.1.7 Loans and guarantees: not, without the prior written consent of the
Majority Banks, and shall not permit any Subsidiary to make any loans,
grant any credit or give any guarantee or indemnity (except as required
under any of the Finance Documents) to or for the benefit of any person
or otherwise voluntarily assume any liability, whether actual or
contingent, in respect of any obligation of any other person (other
than in respect of the making of loans, granting of credit or giving of
guarantees or indemnities to WWIC or any Subsidiary permitted under
Clause 3.1.5 (Indebtedness) or Clause 3.1.6 (Negative pledge)), other
than:
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(a) loans to, guarantees or indemnities in respect of employees
not to exceed Euro 2,500,000.00 or its equivalent, on a
consolidated basis, at any given time; and
(b) trade credit to unrelated parties in the ordinary course of
business.
3.2 UNDERTAKINGS OF THE SPONSORS
Notwithstanding the Sponsors' obligations under Clause 2 (Guarantee)
and as a separate and independent obligation, each of the Sponsors, on
a joint and several basis, undertakes to the Senior Creditors that up
to and including the Discharge Date it shall:
3.2.1 Sponsor Contributions: make Sponsor Contributions to ensure that as of
the first Utilisation Date the aggregate amount of Share Capital of the
Borrower and Subordinated Loans made to the Borrower shall be not less
than Euro 78,500,000.
3.2.2 Additional Sponsor Contributions: make Sponsor Contributions to ensure
that the aggregate amount of Share Capital of the Borrower and
Subordinated Loans (excluding for the avoidance of doubt any amounts in
respect of fees payable under the Management Agreement subordinated
pursuant to clause 23.3(d)(vii) or 23.3(e) of the Facility Agreement)
made to the Borrower (i) as of 21 October 2002 shall be not less than
Euro 81,500,000, and (ii) as of 8 January 2003 shall be not less than
Euro 86,060,000.
3.2.3 Subordinated Management Fees: convert the Subordinated Management Fees
provided for under clause 23.3(e)(ii)(1) (Application of moneys on the
Proceeds and Revenue Accounts) of the Facility Agreement into
Subordinated Loans.
3.2.4 Technical and managerial capacity and assistance: provide to the
Borrower such technical and managerial assistance consistent with
prudent industry practice to enable the Borrower to undertake technical
design of the Network, implement and operate the Network and provide
trained seconded staff in accordance with the assumptions in the
Initial Business Plan (without amendment) at the times and in the
numbers as set out therein.
3.2.5 Change in ownership: provide the Off Shore Facility Agent, as soon as
available, with information of any change in its ownership or the
ownership of the Borrower.
3.2.6 Funding: promptly inform the Off Shore Facility Agent if the Parent
ceases or indicates its intention to cease to provide financial
assistance to the Sponsors to enable the Sponsors to comply with their
financial obligations under the Finance Documents.
3.2.7 Additional information: provide such information as the Off Shore
Facility Agent may reasonably request from time to time.
3.3 ADDITIONAL FUNDING OBLIGATIONS
Notwithstanding any other provision of this Agreement and without
prejudice to the Secured Creditors rights hereunder:
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(a) If at any time there is a Cash Shortfall the Sponsors shall
forthwith, on a joint and several basis, make Equity
Contributions to cure such Cash Shortfall.
(b) If the balance standing to the credit of the Debt Service
Reserve Account is less than the DSRA-Required Balance, each
of the Sponsors, on a joint and several basis, shall forthwith
make Sponsor Contributions to the Debt Service Reserve Account
to ensure that the balance standing to the credit of the Debt
Service Reserve Account is at least equal to the DSRA-Required
Balance provided that from (and including) the Second
Amendment Effective Date such contributions shall only be made
by way of Equity Contributions.
(c) If, at anytime, Debt Service Payments then due and payable
cannot be made in full by the Borrower in accordance with the
Facility Agreement, the Sponsors shall forthwith, on a joint
and several basis, make Equity Contributions to enable such
payments to be made by the Borrower.
3.4 UNDERTAKINGS OF THE SPONSORS AND THE SHAREHOLDERS
Each of the Sponsors and the Shareholders, on a joint and several
basis, undertakes to the Senior Creditors that up to and including the
Discharge Date, it shall:
3.4.1 Transfers: not dispose of any of its Shares unless it has first
satisfied the Transfer Conditions;
3.4.2 Shareholding of Borrower: not hold, in aggregate, less than 80% of the
Shares, directly or indirectly without the prior written consent of the
Off Shore Facility Agent (acting on the instructions of the Majority
Banks);
3.4.3 Shareholding in competitors: not hold, in aggregate, more than 20% of
the shares and/or not more than 20% of the controlling rights in any
other Slovenian GSM telecommunications operator operating in the
digital cellular 1800 network directly or indirectly;
3.4.4 Distributions: not permit any distribution by way of declared or
constructive dividend payments or other payment from the Borrower, if
such payment would constitute a breach by the Borrower of any of its
obligations under the Facility Agreement;
3.4.5 Authorisations: assist the Borrower in obtaining the necessary
Authorisations required to perform the Project;
3.4.6 Winding-Up of Borrower: not xxx or commence proceedings against the
Borrower or seek a resolution or order for the voluntary winding-up or
dissolution of the Borrower and in any dissolution or winding up of the
Borrower it shall not claim or xxx for any payment in respect of its
Shares, Sponsors Unsecured Loans or Subordinated Loans unless all
amounts payable under the Finance Documents have been indefeasibly paid
in full;
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3.4.7 Reduction of Share Capital: not approve the reduction or redemption of
or permit the Borrower to reduce or redeem its Share Capital;
3.4.8 Performance of obligations: perform its obligations under the
Management Agreement and, in all material respects, any other Material
Contract to which it is a party and shall not:
(a) assign or transfer any of its rights or obligations
thereunder;
(b) except as permitted by the terms of the Facility Agreement,
make or agree to any material amendment, modification or
variation to, or make or agree to any suspension, early
termination or cancellation of, any of the Management
Agreement and any other Material Contract to which it is a
party or make or agree to any material amendment, modification
or variation to the organisational documents of the Borrower
in any manner which is inconsistent with the provisions of any
of the Finance Documents; or
(c) waive or grant any indulgence with respect to any material
right under any of the Material Contracts to which it is a
party;
3.4.9 Voting rights: not exercise its voting rights in a manner that would
permit the Borrower to violate its obligations under the Finance
Documents;
3.4.10 No encumbrances or disposals: not dispose of any of its rights under
any Transaction Document to which it is a party and shall not grant any
option with respect to, or create, incur, assume or suffer to exist any
encumbrance over, any of its Shares or Subordinated Loans in the
Borrower or any Transaction Document to which it is a party other than
in each case encumbrances created under the Security Documents or
encumbrances arising by operation of law which are being contested in
good faith or for which appropriate reserves therefor have been made;
3.4.11 Abandonment: in its capacity as a Shareholder, not exercise its voting
rights in the Borrower to cause or allow the Project to be abandoned or
discontinued;
3.4.12 Repayment of Borrower payments: promptly repay to the Borrower any sum
received by it (including by way of set-off) from the Borrower (in its
respective capacity as Shareholder or as lender of the Sponsors'
Unsecured Loans and Subordinated Loans), where the payment of such sum
by the Borrower breaches its undertakings under the Facility Agreement
or, in the case of a payment under the Sponsors Unsecured Loans or
Subordinated Loans, if such payment was not due;
3.4.13 Amendments to documents: not agree to any amendment, variation or
waiver of or in relation to the Sponsors Unsecured Loan Agreement or
any other Finance Document to which it is a party which in the case of
such other Finance Documents would materially adversely affect the
rights of the Banks under such Finance Document;
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3.4.14 Maintain existence: preserve and maintain its corporate existence and
corporate rights and obtain and maintain in full force and effect all
necessary authorisations applicable to it in connection with any
Material Contracts to which it is a party as and when such necessary
authorisations are required to be obtained in accordance with
applicable law;
3.4.15 Notification of Off Shore Facility Agent: promptly inform the Off Shore
Facility Agent of any notice of termination, suspension or force
majeure or any other material notice served or received by it in
respect of any Transaction Document to which it is a party;
3.4.16 Mergers: shall not permit the Borrower to merge or consolidate with any
other person, enter into any demerger transaction, or participate in
any other type of corporate reconstruction;
3.4.17 Competition: shall not participate in any way whether in conjunction
with any third party or any Affiliate in any telecommunication system
(other than through the Borrower's exploitation of the Network) which
provides services in Slovenia except as provided and in accordance with
the terms and conditions set out in clause 24.33 (UMTS and other
licences) of the Facility Agreement;
3.4.18 General assistance: when requested by the Off Shore Security Agent,
execute, acknowledge or deliver or cause to be executed, acknowledged
or delivered such documents that are necessary in order to maintain in
full force and effect the Sponsors' and Shareholders' Obligations;
3.4.19 Transfer of Subordinated Debt: not (save as expressly permitted in the
Finance Documents):
(a) assign, transfer or dispose of, or create or permit to subsist
any Security over, any of the Subordinated Debt owing to it or
its proceeds or any interest in that Subordinated Debt or its
proceeds, or any security therefor, to or in favour of any
person;
(b) subordinate any of the Subordinated Debt owing to it or its
proceeds to any sums owing by the Borrower to any person other
than the Senior Creditors; or
(c) transfer by novation or otherwise any of its rights or
obligations under any Subordinated Debt Document to any
person,
unless:
(i) that person agrees with the parties hereto that it is
bound by all the provisions of this Agreement and (if
applicable) the relevant Subordinated Debt Document
as a Sponsor or as a Shareholder (as applicable) in a
manner satisfactory to the Off Shore Facility Agent;
(ii) in the case of Subordinated Debt that person creates
a new Security over such Subordinated Debt and/or has
taken the assignment, transfer or disposal subject to
any existing security over such Subordinated Debt
created pursuant to the
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Security Documents (in either case) in form and
substance satisfactory to the Majority Banks;
(iii) the Off Shore Facility Agent has received any
relevant legal opinions in form and substance
satisfactory to it; and
(iv) that person satisfies the Transferee Criteria; and
3.4.20 Confirmation of contributions: upon payment of any Subordinated Debt or
Equity Contributions by a Shareholder or a Sponsor, promptly provide to
the Off Shore Facility Agent a certificate duly executed by a director
of the Borrower and a director of the Shareholder and/or Sponsor (as
the case may be) confirming that the Subordinated Debt or Equity
Contribution has been paid and received by the Borrower together with a
true copy of bank statements of the Borrower evidencing such payment
and any documents required by law to be given or issued in respect of
such payment.
4. REPRESENTATIONS AND WARRANTIES
4.1 INDIVIDUAL SPONSOR AND SHAREHOLDER REPRESENTATIONS AND WARRANTIES
Each Sponsor and Shareholder, for itself, makes the following
representations and warranties on the date of this Agreement which
(other than those in Clause 4.1.8 (Information), Clause 4.1.13 (Share
Capital) and Clause 4.1.16 (Information Memorandum, Initial Business
Plan and Legal Due Diligence Report)) shall be repeated on each
Utilisation Date and Repayment Date under the Facility Agreement and
each payment date hereunder:
4.1.1 Corporate existence and due authorisation: it is a company duly
incorporated and validly existing under the laws of its jurisdiction of
incorporation and it has the power to enter into and perform, and has
taken all necessary action to authorise its entry into, performance and
delivery of, the Material Contracts to which it is a party and the
transactions contemplated thereby, and each Material Contract to which
it is a party constitutes (or will once executed) its legal, valid and
binding obligation enforceable in accordance with its terms;
4.1.2 Authorisations: all necessary Authorisations required in connection
with the entry into, performance, validity and enforceability of the
Transaction Documents to which it is a party and the transactions
contemplated thereby have been obtained or effected and are in full
force and effect except Authorisations the failure of which to obtain
would not have a Material Adverse Effect and Authorisations which are
not required to be obtained by it until a future date and it is not
aware of any reason why such necessary Authorisations required after
the date hereof shall not be obtained and maintained. It is also in
compliance in all material respects with the terms of the
Authorisations referred to in this Clause 4.1.2;
4.1.3 Tax: under the applicable laws in force at the date hereof in the
jurisdiction of its incorporation and the laws in force in the
jurisdiction from which any amount is payable by it all amounts payable
by it under this Agreement can be made free and clear of and without
deduction or
-19-
withholding for or on account of any tax, and no stamp or registration
duty or similar taxes or charges are payable in its jurisdiction of
incorporation in respect thereof;
4.1.4 Legality: it has undertaken all acts, conditions and things required to
be done, fulfilled and performed in order:
(a) to enable it lawfully to enter into and perform and comply
with its obligations under this Agreement; and
(b) to make this Agreement admissible in a court of law;
4.1.5 No conflict: the entry into and performance by it of, and the
transactions contemplated by, the Finance Documents to which it is a
party do not and will not:
(a) conflict with any applicable law or regulation or judicial or
official order;
(b) conflict with its constitutive documents; or
(c) to the best of its knowledge having made reasonable enquiry,
conflict with any document which is binding upon it or upon
any of its assets;
4.1.6 Pari passu: under the applicable laws of its jurisdiction, any claim of
the Senior Creditors under the Finance Documents against it will rank
at least pari passu with the claims of all its other unsecured and
unsubordinated creditors, save for those claims which are preferred by
any bankruptcy, insolvency, liquidation, tax or other similar laws of
general application;
4.1.7 Applicable law: it is in compliance in all material respects with:
(a) all applicable laws; and
(b) its obligations under each Material Contract to which it is a
party;
4.1.8 Information: all of the information it supplied to the Senior Creditors
and to the Independent Technical Consultant is true, complete and
accurate in all material respects as at the date such information was
supplied and it has not knowingly failed to disclose to the Senior
Creditors or to the Independent Technical Consultant any facts or
circumstances the omission of which would render any such information
misleading in any material aspects;
4.1.9 Litigation: no litigation, arbitration, administrative proceeding or
claim relating to it before any court, tribunal, arbitrator or other
relevant authority is presently in progress, pending or, to the best of
its knowledge, threatened against it and which, if resolved adversely
to it could reasonably be expected to have a Material Adverse Effect;
4.1.10 Winding-up: it has not taken any corporate action nor have (to the best
of its knowledge) any other steps been taken or legal proceedings been
started against it for its winding-up, dissolution,
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arrangement or reorganisation or for the appointment of a receiver,
manager, receiver-manager, trustee or similar officer of it or any or
all of its assets or revenues;
4.1.11 Financial statements: its most recent audited financial statements:
(a) were prepared in accordance with US GAAP consistently applied
(unless expressly disclosed to the Off Shore Facility Agent in
writing to the contrary before the date of this Agreement);
(b) disclose all material liabilities (contingent or otherwise)
and all unrealised or anticipated losses required to be
disclosed by US GAAP as at the end of and during the relevant
financial period (unless expressly disclosed to the Off Shore
Facility Agent in writing to the contrary before the date of
this Agreement); and
(c) give a true and fair view of its financial condition and
operations as at the end of and during the relevant financial
period.
Its financial year end and the financial year end of the Shareholder is
31 December;
4.1.12 No material adverse change: since the date as at which the latest
audited consolidated financial statements were stated to be prepared
there has been no material adverse change in its business or financial
condition;
4.1.13 Share Capital: as of the date hereof WWIC is the direct or indirect
owner of 100 per cent of the registered Share Capital and no other
Shares are currently in issue or proposed to be issued;
4.1.14 Encumbrances: there is no encumbrance and there is no agreement,
arrangement or obligation to create or give an encumbrance, in relation
to any of the issued or unissued Shares other than encumbrances
constituted by the Security Documents or encumbrances arising by
operation of law that are being contested in good faith or for which
appropriate reserves therefor have been made;
4.1.15 Additional arrangements: there is no agreement, arrangement or
obligation requiring the creation, allotment, issue, transfer,
redemption or repayment of, or the grant to a person of the right
(condition or not) to require the issue, transfer, redemption or
repayment of a Share (including, without limitation, an option or right
of pre-emption or conversion); and
4.1.16 Information Memorandum, Initial Business Plan and Legal Due Diligence
Report: as at 30 April 2002 the information contained in the
Information Memorandum, the Initial Business Plan and the Legal Due
Diligence Report does not contain any information, data, assumption,
statement of fact or circumstance which is untrue, or in the case of
any assumption not considered reasonable, in a material respect or omit
to state any information, data, assumption, fact or circumstance the
omission of which could reasonably be expected to have a Material
Adverse Effect.
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4.2 RELIANCE
The Sponsors and Shareholders acknowledge that they make the
representations in Clause 4.1 (Individual Sponsor and Shareholder
representations and warranties) with the intention of inducing the
Senior Creditors to enter into this Agreement and the Facility
Agreement or, as the case may be, the Hedging Agreements and that the
Senior Creditors enter into this Agreement and the Facility Agreement,
the Lucent Loan Agreement or, as the case may be, the Hedging
Agreements on the basis of, and in full reliance on, each of such
representations.
4.3 NO PREJUDICE
Each Senior Creditor's rights and remedies in relation to any
misrepresentation or breach of warranty on the part of any of the
Sponsors and/or Shareholders are not prejudiced:
4.3.1 by any investigation by or on behalf of any Senior Creditor into the
affairs of any of the Sponsors and/or Shareholders;
4.3.2 by the execution or the performance of this Agreement; or
4.3.3 by any other act or thing which may be done by or on behalf of any
Senior Creditor in connection with this Agreement and which might,
apart from this Clause 4.3, prejudice such rights or remedies.
5. UNDERTAKINGS IN RELATION TO SUBORDINATED DEBT
5.1 UNDERTAKINGS BY THE SHAREHOLDERS AND SPONSORS
Until the Discharge Date, except:
(a) as the Majority Banks have previously consented in writing; or
(b) in the case of paragraph (i) below only, to the extent that
the amount concerned is permitted to be paid pursuant to
Clause 6.1 (Permitted payments),
no Sponsor or Shareholder shall:
(i) demand or receive payment, prepayment or repayment
of, or any distribution in respect of or on account
of, any Subordinated Debt in cash or in kind or apply
any money or property in discharge of any
Subordinated Debt and acknowledges that, until the
Discharge Date, no such Subordinated Debt is or shall
become due and payable;
(ii) sell, transfer or otherwise dispose of any
Subordinated Debt other than in accordance with
Clause 18.2 (Assignments and transfers by the
Sponsors and Shareholders);
(iii) discharge or seek to discharge any Subordinated Debt
by set-off or any right of combination of accounts;
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(iv) claim or rank as a creditor in the insolvency,
winding up, bankruptcy or liquidation of the Borrower
other than in accordance with the provisions of
Clause 7 (Subordination on insolvency);
(v) permit to subsist or receive any Security or any
guarantee or other assurance against financial loss
for, or in respect of, any Subordinated Debt;
(vi) amend, vary, waive or release any Subordinated Debt
or the Subordinated Debt Documents; or
(vii) take or omit any action whereby the ranking and/or
subordination arrangements provided for herein may be
impaired and if any such action is taken or omitted
to be taken then the Sponsors shall remedy the same
within ten (10) days.
5.2 UNDERTAKINGS BY THE BORROWER
Until the Discharge Date, except:
(a) as permitted by Majority Banks; or
(b) in the case of paragraphs (i) and (ii) below, to the extent
that the amount concerned is permitted to be paid by Clause
6.1 (Permitted payments),
the Borrower shall not:
(i) pay, prepay or repay, or make any distribution in
respect of or on account of, or purchase or acquire,
any Subordinated Debt in cash or in kind and
acknowledges that, until the Discharge Date, no such
Subordinated Debt is or shall become due and payable;
(ii) give or permit to subsist any financial or other
support (including, without limitation, the taking of
any participation, the giving of any guarantee or
indemnity or the making of any deposit) to any person
in connection with any Subordinated Debt or to enable
any person to do any of the things referred to in
paragraph (i) above;
(iii) discharge any Subordinated Debt by set-off or any
right of combination of accounts;
(iv) create or permit to subsist any Security over any of
its assets for any Subordinated Debt;
(v) amend, vary, waive, release or supplement any term of
any Subordinated Debt Document; or
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(vi) take or omit any action whereby the ranking and/or
subordination arrangements provided for herein may be
impaired and if any such action is taken or omitted
to be taken then the Sponsors shall remedy the same
within ten (10) days.
6. PERMITTED PAYMENTS
6.1 PERMITTED PAYMENTS
Subject to Clause 6.2 (Suspension of permitted payments) and Clause 6.3
(Turnover), the Borrower may pay or repay in cash, and any Sponsor or
Shareholder may receive and retain payment or repayment in cash of,
principal and/or interest on the Subordinated Debt where (but only to
the extent (if at all) that) such payment or repayment is expressly
permitted, subject to the terms of this Agreement, by the Facility
Agreement.
6.2 SUSPENSION OF PERMITTED PAYMENTS
Subject to Clause 7 (Subordination on Insolvency) and without prejudice
to any prohibition on payment arising out of any other provision of the
Finance Documents, until the Discharge Date, except as previously
consented to by the Majority Banks in writing, the Borrower may not
make any payment which would be prohibited by Clause 5.1 (Undertakings
by the Shareholders and Sponsors) and/or 5.2 (Undertakings by the
Borrower) but for the provisions of Clause 6.1 (Permitted Payments) if
and so long as there is either a Potential Event of Default, an Event
of Default or any default under any material provision of a Hedging
Agreement.
6.3 TURNOVER
If at any time prior to the Discharge Date:
(a) any Sponsor or Shareholder receives or recovers a payment or
distribution in cash or in kind of, or on account of, any of
the Subordinated Debt or the Borrower makes any payment or
distribution in cash or in kind on account of the purchase or
other acquisition of any of the Subordinated Debt which (in
any case) is prohibited by Clause 5.1 (Undertakings by the
Shareholders and Sponsors) and/or Clause 5.2 (Undertakings by
the Borrower) and not permitted by Clause 6.1 (Permitted
payments);
(b) any of the Subordinated Debt is discharged by set-off,
combination of accounts or otherwise; or
(c) a Shareholder or Sponsor receives any other amount in respect
of monies which have been paid or which have become payable by
a Shareholder or a Sponsor under this Agreement,
the receiving Sponsor or Shareholder will forthwith pay to the Off
Shore Facility Agent for application towards the Borrower's Obligations
and shall hold the same on trust for such Agent pending such payment an
amount equal to the lesser of:
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(1) the outstanding aggregate unrecovered
balance of the Borrower's Obligations; and
(2) the amount of such payment, distribution,
benefits of the set-off or combination or
other recovery.
7. SUBORDINATION ON INSOLVENCY
7.1 INSOLVENCY EVENTS
If:
(a) any resolution is passed or order made for the winding up,
liquidation, dissolution, administration, reorganisation or
moratorium of the Borrower;
(b) the Borrower becomes subject to any insolvency, bankruptcy,
reorganisation, receivership (whether relating to all or part
of its assets and whether or not resulting from the
enforcement of any of the Security Documents), liquidation,
dissolution or moratorium or other similar proceeding,
voluntary or involuntary (and whether or not involving
insolvency);
(c) the Borrower assigns its assets for the benefit of its
creditors or enters into any arrangement with its creditors
generally or any arrangement whereby its affairs and/or assets
are submitted to the control of or protected from its
creditors is ordered or declared;
(d) the Borrower becomes subject to any distribution of its
assets, or has a liquidator, trustee in bankruptcy, judicial
custodian, compulsory manager, receiver, administrative
receiver, administrator or the like appointed with respect to
any of its assets (whether or not resulting from the
enforcement of any of the Security Documents); or
(e) anything analogous to any of the foregoing shall occur in
relation to the Borrower in any country or territory in which
it is incorporated or carries on any business,
(together the "INSOLVENCY EVENTS") the provisions of Clauses 7.2
(Subordination), 7.3 (Filing of claims), 7.4 (Distributions) and 9
(Voting) shall apply.
7.2 SUBORDINATION
In any of the circumstances mentioned in Clause 7.1 (Insolvency events)
the Subordinated Debt will be subordinate in right of payment to the
Borrower's Obligations.
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7.3 FILING OF CLAIMS
In any of the circumstances mentioned in Clause 7.1 (Insolvency
events), until the Discharge Date:
(a) the Off Shore Facility Agent (or, if not the Off Shore
Facility Agent, each Senior Creditor) may, and is irrevocably
authorised on behalf of each Sponsor and each Shareholder to:
(i) claim, enforce and prove for any Subordinated Debt
owed by the Borrower;
(ii) file claims and proofs, give receipts and take all
such proceedings and do all such things as the Off
Shore Facility Agent or the Senior Creditors may
reasonably consider appropriate to recover such
Subordinated Debt; and
(iii) receive all distributions on such Subordinated Debt
for application in accordance with the Intercreditor
Agreement; and
(b) if and to the extent that the Off Shore Facility Agent or a
Senior Creditor is not entitled to claim, enforce, prove, file
claims or proofs, or take proceedings for the recovery of any
Subordinated Debt owed by the Borrower or elects not to do so,
the Sponsors and Shareholders will do so in good time as
requested by the Off Shore Facility Agent acting in accordance
with the instructions of the Majority Banks (acting
reasonably).
7.4 DISTRIBUTIONS
In any of the circumstances mentioned in Clause 7.1 (Insolvency
events), until the Discharge Date:
(a) each Sponsor and each Shareholder, upon demand, shall pay an
amount equal to all distributions in cash or in kind received
by or by any agent for such Sponsor or Shareholder in respect
of the Subordinated Debt in consequence of such circumstances
to the Off Shore Facility Agent for application in accordance
with the Intercreditor Agreement; and
(b) the trustee in bankruptcy, liquidator, assignee or other
person distributing the assets of the Borrower or their
proceeds shall be directed to pay distributions on the
Subordinated Debt concerned direct to the Off Shore Facility
Agent on behalf of the Senior Creditors for application in
accordance with the Intercreditor Agreement.
Each Sponsor and each Shareholder will give all such notices and do all
such things as the Off Shore Facility Agent may reasonably request to
give effect to the provisions of this Clause 7 (Subordination on
insolvency).
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8. ENFORCEMENT BY THE SPONSORS
Until the Discharge Date, unless the Majority Banks have previously
consented in writing, no Sponsor or Shareholder shall:
(a) accelerate any of the Subordinated Debt or otherwise declare
any of the Subordinated Debt prematurely payable;
(b) enforce the Subordinated Debt by litigation, attachment,
set-off, execution or otherwise; or
(c) petition for (or vote in favour of any resolution for) or
initiate or support or take any steps with a view to any
insolvency, liquidation, reorganisation, administration or
dissolution proceedings or any voluntary arrangement or
assignment for the benefit of creditors or any similar
proceedings involving the Borrower, whether by petition,
convening a meeting, voting for a resolution or otherwise.
9. VOTING
In any of the circumstances mentioned in Clause 7.1 (Insolvency
events), until the Discharge Date:
(a) the Off Shore Facility Agent acting on the instructions of the
Majority Banks may (and is hereby irrevocably authorised to)
exercise all powers of convening meetings, voting and
representation in respect of the Subordinated Debt and each
Sponsor and each Shareholder will provide all forms of proxy
and of representation requested by the Off Shore Facility
Agent for that purpose; and
(b) if and to the extent that the Off Shore Facility Agent is not
entitled to or does not wish itself to exercise a power
conferred by paragraph (a) above, each Sponsor and each
Shareholder shall:
(i) exercise such power as the Off Shore Facility Agent
acting in accordance with the instructions of the
Majority Banks directs; and
(ii) not exercise any power so as to impair the
subordination effected by this Agreement.
10. FUNDING OF SPONSOR CONTRIBUTIONS AND NATURE OF OBLIGATIONS
10.1 SPONSOR CONTRIBUTIONS
All Sponsor Contributions shall be made as Equity Contributions at all
times after the Second Amendment Agreement Effective Date and prior to
such date may also be made as Subordinated Loans. Unless otherwise set
out herein, the proceeds of all Sponsor Contributions shall be credited
to a Proceeds and Revenue Account. The proceeds of any Sponsor
Unsecured Loans
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shall be paid into the Loan Proceeds Account and applied in accordance
with the Facility Agreement. Prior to making such Sponsor
Contributions, each Sponsor shall inform the Off Shore Facility Agent
in writing as to whether such payment is an Equity Contribution or a
Subordinated Loan.
10.2 CONTINUING OBLIGATIONS
The obligations of each Sponsor and Shareholder under this Agreement:
10.2.1 shall be in addition to and independent of every assurance, guarantee
or security which any Senior Creditor may at any time hold for any of
the obligations of the Borrower under the Finance Documents and such
collateral or other security held by such Senior Creditor, the Off
Shore Security Agent or the On Shore Security Agent or the liability of
any person for all or any part of the Borrower's Obligations shall not
be in any manner prejudiced or affected by this Agreement;
10.2.2 shall remain in full force and effect as a continuing security until
the indefeasible payment in full of all amounts payable under the
Finance Documents;
10.2.3 shall inure to the benefit of, and be enforced by, the Off Shore
Security Agent and its successors, transferees and assigns;
10.2.4 shall be binding on each Sponsor and its successors and assigns; and
10.2.5 shall survive termination of any Transaction Document until the
Discharge Date.
10.3 NO DEMAND
Except as provided herein to the contrary the Sponsors' and
Shareholders' Obligations are not subject to any prior notice to,
demand upon or action against the Borrower or to any prior notice to
the Sponsors and/or Shareholders with regard to any default by the
Borrower.
10.4 PAYMENTS
10.4.1 All payments which the Sponsors and/or Shareholders are required to
make under this Agreement shall be without any set-off, counterclaim or
condition.
10.4.2 A certificate of any Senior Creditor or the Off Shore Security Agent
stating:
(a) the amount of the Borrower's Obligations due and payable;
(b) any amount due and payable by the Sponsors and/or Shareholders
under this Agreement; or
(c) the amount of the Borrower's Obligations, whether currently
due and payable or not,
shall be conclusive in the absence of manifest error.
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10.4.3 If for any reason, a trust in favour of, or a holding of property for,
the Senior Creditors by a Shareholder or Sponsor under or pursuant to
this Agreement is invalid or unenforceable, the Shareholder or Sponsor
in question will, on the Off Shore Security Agent's demand, pay and
deliver to the Off Shore Security Agent an amount equal to the payment,
receipt or recovery in cash (or its value, if in kind) which it would
otherwise have been bound to hold on trust for, or as property of, the
Senior Creditors.
10.5 APPROPRIATION
10.5.1 Subject to the terms of the Finance Documents, each Senior Creditor may
apply any amounts received by it hereunder in such manner as it
determines in its absolute discretion.
10.5.2 If the Sponsors and/or Shareholders at any time pay to any Senior
Creditor (or the Off Shore Security Agent) an amount less than the full
amount then due and payable to such Senior Creditor by the Borrower
under the relevant Finance Document, such Senior Creditor may allocate
and apply such payment in any way or manner and for such purpose or
purposes as such Senior Creditor or the Off Shore Security Agent in its
sole discretion determines, notwithstanding any instruction that the
Sponsors and/or Shareholders might give to the contrary.
10.5.3 Without prejudice to any part of this Clause 10.5, until the Discharge
Date, each Senior Creditor (or any trustee, agent or other person
acting on its behalf) may:
(a) refrain from applying or enforcing any other monies, security
or rights held or received by such Senior Creditor (or such
trustee, agent or other person) in respect of the Borrower's
Obligations, or apply and enforce the same in such manner and
order as it sees fit (whether against the Borrower's
Obligations or otherwise) and the Sponsors and/or Shareholders
shall not be entitled to the benefit of the same; and
(b) hold and keep for such time as it thinks prudent any monies
received, recovered or realised under this Agreement, to the
credit either of the Sponsors and/or Shareholders or such
other person or persons as it thinks fit or in a suspense
account for distribution in accordance with the Finance
Documents.
10.6 SURVIVAL OF OBLIGATIONS AND WAIVER OF DEFENCES
Except as expressly provided herein, the Sponsors' and Shareholders'
Obligations are irrevocable and unconditional irrespective of, and
shall not be discharged, affected or impaired by any act, omission,
circumstance (other than the occurrence of the Discharge Date), matter
or thing which, but for this provision, would reduce, release or
prejudice any of its obligations under this Agreement or which might
otherwise constitute discharge or defence of a surety or a guarantor,
including (whether or not known to the Borrower, Sponsors, Shareholders
or any Senior Creditor):
10.6.1 the legality, validity or enforceability of the Borrower's Obligations,
the Finance Documents or of any security under the Finance Documents,
or any other document or security;
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10.6.2 the waiver of or consent by any of the Senior Creditors of any
provision contained in this Agreement or the other Finance Documents;
10.6.3 the obtaining by any of the Senior Creditors of any judgement against
the Borrower or any action to enforce such judgement or any other
circumstance which might constitute a discharge or defence of the
Sponsors and/or Shareholders;
10.6.4 the avoidability or unenforceability of this Agreement as regards any
other Sponsor or Shareholder;
10.6.5 any assertion of, or failure to assert, or delay in asserting, any
right, power or remedy against the Borrower or any other person, or in
respect of any security for the Borrower's Obligations;
10.6.6 any amendment, variation, change, acceleration, renewal, modification,
waiver, surrender, compromise, settlement, release, termination or
replacement of the provisions of any Finance Document or of any other
agreement or security between any Senior Creditor and the Borrower or
between any Senior Creditor and any other party in relation to the
Borrower's Obligations;
10.6.7 any extension of time, forbearance or concession given to the Borrower
or any other party, or any increase, decrease, change in the manner,
time or place of payment or calculation or other alteration of the
Borrower's Obligations or any part thereof;
10.6.8 any taking, holding, reviewing, exchanging, varying, releasing, waiving
or omitting to take, perfect or enforce any rights, remedies or
securities against or granted by the Borrower or any other person or
any non-presentment or non-observance of any formality or other
requirement in respect of any instruments or any failure to realise the
full value of any security;
10.6.9 any failure of the Borrower, the Sponsors or the Shareholders to comply
with any requirement of any law, regulation or order;
10.6.10 the dissolution, liquidation, winding-up, amalgamation, merger,
reorganisation or other alteration of the legal status or structure of
the Borrower, any of the Sponsors or Shareholders or any other person
the filing of any petition for the foregoing or the making of an
assignment for the benefit of creditors or the appointment of a
receiver or trustee to all or any significant part of the Borrower's, a
Sponsor's or a Shareholder's assets;
10.6.11 any purported or actual assignment of all or part of the Borrower's
Obligations by any Senior Creditor to any other party;
10.6.12 any sale, exchange, release, surrender, realization upon any property
by whomsoever at any time pledged or mortgaged to secure, or howsoever
securing, all or any of the Borrower's Obligations, and/or any offset
thereagainst, or failure to perfect, or continue the perfection of, any
Security in any such property, or delay in the perfection of any such
Security, or any amendment or waiver of or consent to departure from
any other guaranty for all or any of the Borrower's Obligations;
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10.6.13 any exercise or failure to exercise any rights against the Borrower or
others (including the Sponsors and the Shareholders);
10.6.14 any settlement or compromise of any of the Borrower's Obligations, any
security therefor or any liability (including any of those hereunder)
incurred directly or indirectly in respect thereof or hereof, and any
subordination of the payment of all or any part thereof to the payment
of any of the Borrower's Obligations (whether due or not) of the
Borrower to creditors of the Borrower other than the Sponsors and the
Shareholders;
10.6.15 any manner of application of collateral, or proceeds thereof, to all or
any of the Borrower's Obligations, or any manner of sale or other
disposition of any collateral for all or any of the Borrower's
Obligations or any other assets of the Borrower or any of its
subsidiaries; or
10.6.16 any other circumstance howsoever caused or arising and whether or not
similar to any of the foregoing (other than payment in full of the
Borrower's Obligations by the Borrower or the Sponsors in accordance
with the relevant Finance Documents or this Agreement, as the case may
be) which might otherwise constitute a discharge or defence of a surety
or a guarantor in whole or in part.
10.7 RIGHTS OF THE SENIOR CREDITORS
The Senior Creditors may in accordance with the terms of the relevant
Finance Document:
10.7.1 change, alter, renew, continue, extend and/or accelerate the time of
payment of, all or any amounts outstanding under the relevant Finance
Documents, or any part or parts thereof or renewal or renewals thereof;
10.7.2 amend, waive or replace any part of any Finance Document; and
10.7.3 settle or compromise any or all of the indebtedness owed by the
Borrower under the Finance Documents or subordinate the payment of such
indebtedness or any part thereof to the payment of any other debts or
claims which may at any time be due or owing by the Borrower to the
Senior Creditors;
all in such manner and upon such terms as the Senior Creditors may see
fit or be directed in writing and without notice to or consent from any
of the Sponsors and/or Shareholders, who hereby agree to be and remain
bound by this Agreement, irrespective of the effect upon the existence
or status of the Borrower's Obligations.
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10.8 REINSTATEMENT
If any payment by the Borrower, a Shareholder or a Sponsor or any
discharge given by a Senior Creditor (whether in respect of the
obligations of the Borrower, a Shareholder or a Sponsor or any security
for any of those obligations or otherwise) is avoided or reduced as a
result of insolvency or any similar event:
(a) the liability of the Borrower, that Shareholder or Sponsor
shall continue as if the payment, discharge, avoidance or
reduction had not occurred; and
(b) each Senior Creditor shall be entitled to recover the value or
amount of that security or payment from the Borrower, that
Shareholder or Sponsor, as the case may be, as if the payment,
discharge, avoidance or reduction had not occurred.
11. NO SUBROGATION
11.1 If any amounts have become payable or have been paid by a Shareholder
or a Sponsor under this Agreement or if the Borrower's Obligations are
wholly or partially paid out of any proceeds received in respect of or
on account of any Subordinated Debt owing to any Sponsor or
Shareholder, no Sponsor or Shareholder shall, in respect of such
monies, seek to enforce repayment, obtain the benefit of any security
or exercise any other rights or legal remedies of any kind (including,
without limitation, voting or exercising remedies as a lender) which
may accrue to the Sponsor or Shareholder against the Borrower by virtue
of this Agreement, whether by way of subrogation, offset, counterclaim
or otherwise, in respect of the amount so payable or so paid, except
after satisfaction in full of all of the Borrower's Obligations and the
expiration of any and all applicable preference periods during which
the payments credited to the satisfaction of the Borrower's Obligations
may be required to be returned to the payor thereof or such person's
trustee, receiver or other representative.
11.2 The subordination provisions in this Agreement constitute a continuing
subordination and benefit to the ultimate balance of the Borrower's
Obligations regardless of any partial payment or discharge of the
Borrower's Obligations or Subordinated Debt.
12. WAIVER
12.1 The Sponsors and Shareholders waive:
12.1.1 notice of any rescheduling of the Borrower's Obligations and of any
change in the rate at which any of the Borrower's Obligations are
accruing interest or fees;
12.1.2 promptness, diligence, nature of acceptance or any other notice with
respect to this Agreement;
12.1.3 diligence, presentment and demand for payment of any of the Borrower's
Obligations;
12.1.4 protest, notice of protest, notice of dishonour and notice of
non-payment or default to the Shareholders and/or Sponsors or to any
other person with respect to the Borrower's Obligations;
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12.1.5 filings of claims or proof of claims with a court in the event of any
bankruptcy or insolvency proceedings as to which the Borrower is
subject;
12.1.6 any right to require a proceeding or judgement first against the
Borrower or any other persons or to require any Senior Creditor, the On
Shore Security Agent or the Off Shore Security Agent to proceed against
or enforce any other rights or security or claim payment from any
person before claiming from the Sponsors or Shareholders under this
Agreement;
12.1.7 any defences available to a surety under law; and
12.1.8 all other legally waivable notices, defences and benefits (other than
payment in full of the Borrower's Obligations by the Borrower or the
Sponsors in accordance with the relevant Finance Documents or this
Agreement, as the case may be) to which the Sponsors or Shareholders
might otherwise be entitled.
13. CONSENTS
13.1 NEW TRANSACTIONS
No Sponsor or Shareholder shall have any remedy against the Borrower or
any of the Senior Creditors by reason of any transaction entered into
between the Senior Creditors (or any of them) or the Agents or the
Security Agents on their behalf and the Borrower relating to the
Borrower's Obligations or otherwise which violates or is a default
under any Subordinated Debt Document. No Sponsor or Shareholder may
object to any such transaction by reason of any provisions of any
Subordinated Debt Document.
13.2 OVERRIDE
Any waiver or consent granted by an Agent, Security Agent or the
Majority Banks under the Finance Documents will also be deemed to have
been given by each Sponsor and Shareholder (each in its capacity as
such) if and to the extent that any transaction or circumstances would,
in the absence of such waiver or consent by any Sponsor or Shareholder,
violate the terms of any Subordinated Loan or the terms of any
Subordinated Debt Document or constitute a default thereunder.
14. CONFLICT
Notwithstanding any other provision of any other Transaction Document,
the Shareholders and Sponsors agree that the terms of this Agreement
shall, without prejudice to the rights of the Senior Creditors under
this or any other Transaction Document, prevail over the rights of the
Shareholders and Sponsors under any other Transaction Document
(excluding the Shareholders Pledge Agreement, the provisions of which
shall prevail in case of any conflicts between the Shareholders Pledge
Agreement and this Agreement).
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15. PRESERVATION OF SUBORDINATED DEBT
Notwithstanding any term of this Agreement postponing, subordinating or
preventing the payment of any of the Subordinated Debt, the
Subordinated Debt concerned shall solely as between the Borrower and
the Sponsor be treated as remaining due in accordance with the terms of
the relevant Subordinated Debt Document for the purpose of accruing
interest thereon (if applicable) pursuant to the relevant Subordinated
Debt Document. No delay in exercising rights and remedies under any
relevant Subordinated Debt Document by reason of any term of this
Agreement postponing, restricting or preventing such exercise shall
operate as a waiver of any of those rights and remedies.
16. TAXES
16.1 PAYMENT AND GROSS UP
All payments by a Sponsor or Shareholder under this Agreement shall be
made without any deduction or withholding on account of any taxes
unless that Sponsor or Shareholder is required by law to make such
deduction or withholding, in which case the Sponsor or Shareholder
shall:
16.1.1 ensure that the deduction or withholding does not exceed the minimum
amount legally required; and
16.1.2 forthwith pay such additional amounts so as to ensure that the amount
received by the recipient will equal the full amount which would have
been made.
16.2 RECEIPTS
If Clause 16.1 (Payment and gross up) applies and the relevant
recipient so requires, the Sponsor or Shareholder shall deliver to such
recipient official tax receipts evidencing payment (or certified copies
of thereof) within thirty (30) days of the date of payment or receipt
of such tax receipts (whichever is later).
16.3 STAMP DUTIES ETC
The Sponsors shall pay all stamp, recording or similar taxes payable in
respect of the execution, delivery and enforcement of this Agreement
promptly when due.
16.4 TAX INDEMNITY
If any Senior Creditor is obliged to make any payment on account of
taxes referred to in Clause 16.1 (Payment and gross up) or if any other
additional tax burdens occur in connection with this Agreement the
Sponsors on a joint and several basis shall indemnify such Senior
Creditor from any payment on account of such taxes.
17. INDEMNITIES
17.1 CURRENCY INDEMNITY
If any sum due from a Sponsor or a Shareholder under this Agreement or
under any order or judgement given or made in relation hereto has to be
converted from the currency (the "FIRST
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CURRENCY") in which the same is payable under this Agreement or under
such order or judgement into another currency (the "SECOND CURRENCY")
for the purpose of:
17.1.1 making or filing a claim or proof against such Sponsor or Shareholder;
or
17.1.2 obtaining an order of judgement given or made in relation hereto,
the Sponsor or Shareholder shall on demand of the Off Shore Facility
Agent pay to the Off Shore Facility Agent (or such person as the Off
Shore Facility Agent may nominate) for account of each of the persons
to whom such sum is owed an amount sufficient to indemnify such person
from and against any loss suffered as a result of any discrepancy
between:
(a) the rate of exchange used for such purpose to convert the sum
in question from the first currency into the second currency;
and
(b) the rate of exchange at which such person may in the ordinary
course of business purchase the first currency with the second
currency upon receipt of a sum paid to it in satisfaction, in
whole or in part, of any such order, judgement, claim or
proof.
The obligations of each Sponsor and Shareholder under this Clause 17.1
are separate from its other obligations under this Agreement and shall
survive the giving or making of any judgement or order in relation to
all or any of such other obligations.
17.2 PRESERVATION AND ENFORCEMENT RIGHTS
The Sponsors and Shareholders shall from time to time on demand of the
Off Shore Facility Agent reimburse the Senior Creditors for all
reasonable out of pocket costs and expenses (including legal fees) on a
full indemnity basis together with any VAT thereon incurred by them in
connection with the preservation and/or enforcement of any of the
rights of the Senior Creditors under this Agreement.
18. SUCCESSORS, ASSIGNMENTS AND TRANSFERS
18.1 SUCCESSORS AND ASSIGNS
This Agreement binds and benefits the respective successors and assigns
of its parties.
18.2 ASSIGNMENTS AND TRANSFERS BY THE SPONSORS AND SHAREHOLDERS
The Sponsors and Shareholders shall not without prior written approval
by the Majority Banks assign or transfer all or any of their rights,
benefits and obligations under this Agreement other than in accordance
with the terms hereof.
18.3 ASSIGNMENTS AND TRANSFERS BY THE SENIOR CREDITORS
Each of the Senior Creditors may at any time assign all its rights and
benefits under this Agreement or transfer its rights and obligations
under this Agreement in whole or in part to any other bank or financial
institution in accordance with the Facility Agreement.
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19. POWER OF ATTORNEY
19.1 By way of security for the obligations of each Sponsor and Shareholder
under this Agreement, each Sponsor and Shareholder irrevocably appoints
each Senior Creditor as its attorney to do anything which that Sponsor
or Shareholder (a) has authorised that Senior Creditor to do under this
Agreement and (b) is required and legally able to do by this Agreement
but has failed to do for a period of ten (10) Business Days after
receiving notice from the Senior Creditor requiring it to do so. Each
Senior Creditor may delegate this power.
19.2 Each Sponsor and Shareholder further agrees to execute or procure the
execution of and deliver to the Off Shore Security Agent such other
powers of attorney, assignments or other instruments as may be
requested by the Off Shore Security Agent in order to enable it to
enforce any and all claims of the Secured Creditors upon or with
respect to the Subordinated Debt or any part thereof and to collect and
receive any and all payments or distributions which may be payable or
deliverable to the Off Shore Security Agent at any time upon or with
respect to the Subordinated Debt or any part thereof.
20. REMEDIES AND WAIVERS, CUMULATIVE RIGHTS, PARTIAL INVALIDITY
20.1 REMEDIES AND WAIVER
No failure to exercise, nor any delay in exercising, on the part of the
Senior Creditors, any right or remedy under any Transaction Document
shall operate as a waiver thereof, nor shall any single or partial
exercise of any right or remedy prevent any further or other exercise
thereof or the exercise of any other right or remedy.
20.2 OBLIGATIONS
Notwithstanding anything to the contrary in this Agreement, in no event
shall the obligations of the Sponsors and Shareholders under other
Transaction Documents be deemed to limit the obligations of the
Sponsors and Shareholders under this Agreement.
20.3 CUMULATIVE RIGHTS
The rights and remedies provided in this Agreement are cumulative and
not exclusive of any other rights and remedies provided in the Finance
Documents or by law.
20.4 PARTIAL INVALIDITY
Should any provision of this Agreement be invalid or unenforceable, in
whole or in part, or should any provision later become invalid or
unenforceable, this shall not affect the validity of the remaining
provisions of this Agreement. In lieu of the invalid or unenforceable
provision another reasonable provision shall apply, which as far as
legally possible comes as close as possible to the intention of the
contracting parties, or to what would have been their intention, in
correspondence with the spirit and the purpose of this Agreement, had
the Parties upon entering into this Agreement taken into consideration
the invalidity or unenforceability of the respective provision.
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21. RIGHTS OF THE BORROWER
(a) The Borrower shall not have any rights hereunder and none of
the undertakings herein contained on the part of the Senior
Creditors or the Sponsors are given (or shall be deemed to
have been given) to, or for the benefit of, the Borrower.
(b) The Borrower joins in this Agreement for the purpose of
acknowledging the priorities, rights and obligations recorded
in this Agreement and undertakes with each of the other
parties hereto to observe the provisions of this Agreement at
all times and not in any way to prejudice or affect the
enforcement of such provisions or do or suffer anything which
would be inconsistent with the terms of this Agreement.
22. OTHER INFORMATION
The Borrower authorises the Sponsors and Shareholders, and the Sponsors
and the Shareholders authorise each of the Agents, the Security Agents
and the Senior Creditors to disclose to and amongst themselves all
information relating to the Borrower and all other information coming
into the possession of any of them in connection with any of the
Finance Documents and the Subordinated Debt Documents.
23. UMTS REBATE
Notwithstanding any provision of this Agreement, if, in accordance with
Clause 24.33(b)(iv) (UMTS and other licences) of the Facility
Agreement, the UMTS Subsidiary sells its UMTS license on a commercial
arm's length terms basis then, unless an Event of Default has occurred
and is continuing, the Borrower shall be entitled to remit to the
Shareholders the proceeds of sale thereof.
24. OVERSEAS RANKING
All of the parties hereto undertake to take all action which can
reasonably be taken by them in order that the intentions of the parties
(solely as expressed in this Agreement) as to the relative ranking of
priorities as between the Borrower's Obligations and the Subordinated
Debt shall be given effect to in all relevant jurisdictions.
25. NOTICES
25.1 COMMUNICATIONS IN WRITING
Any communication, demand or notice to be made under or in connection
with this Agreement shall be made in writing and, unless otherwise
stated, may be made by fax or letter.
25.2 ADDRESSES
The address and fax number (and the department or officer, if any, for
whose attention the communication is to be made) of each Party for any
communication or document to be made or delivered under or in
connection with this Agreement is:
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(a) in the case of the Borrower:
WESTERN WIRELESS INTERNATIONAL D.O.O.
Address: Xxxxxxxxx xxxxx 00
0000 Xxxxxxxxx
Xxxxxxxx
Telephone: x000 0 0000 000
Fax: x000 0 0000 000
Attention of: Xxxxxx Fast
Copy to: Western Wireless International Corporation
(b) in the case of the Borrower's process agent:
CORPORATION SERVICE COMPANY
Address: 1177 Avenue of the Americas
00xx Xxxxx
Xxx Xxxx, XX 00000-0000
XXX
Telephone: x0 000 000 0000
Fax: x0 000 000 0000
(c) in the case of the Off Shore Facility Agent and the Banks:
IKB DEUTSCHE INDUSTRIEBANK AG
Address: Xxxxxxx-Xxxxxxx-Xxxx(xx)x 0
00000 Xxxxxxxxxx
Xxxxxxx
Telephone: x00 000 0000 0000 or x00 000 0000 0000
Fax: x00 000 0000 0000 or x00 000 0000 0000
Attention of: Xxxxxxx Xxxxxxx or Dr. Peer Gunzel, Structured
Finance Department
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(d) in the case of the Sponsors and the Shareholders:
WESTERN WIRELESS INTERNATIONAL CORPORATION
Address: 0000 000xx Xxxxxx, X.X, Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
XXX
Telephone: x0 000 000 0000
Fax: x0 000 000 0000
Attention of: Xxxxx Xxxxxxxx
or any substitute address, fax number or department or officer as the
relevant party may notify to the Off Shore Facility Agent (or the Off
Shore Facility Agent may notify to the other Parties, if a change is
made by the Off Shore Facility Agent) by not less than five (5)
Business Days' notice.
25.3 DELIVERY
(a) Any communication or document made or delivered by one person
to another under or in connection with this Agreement will
only be effective:
(i) if by way of fax, when received in legible form; or
(ii) if by way of letter, when it has been left at the
relevant address or three (3) Business Days after
being deposited with a reputable overnight courier
service,
and if a particular department or officer is specified as part
of its address details provided under Clause 25.2 (Addresses),
if addressed to that department or officer.
(b) Any communication or document to be made or delivered to the
Off Shore Facility Agent will be effective only when actually
received by the Off Shore Facility Agent and then only if it
is expressly marked for the attention of the department or
officer identified with the Off Shore Facility Agent's
signature below (or any substitute department or officer as
the Off Shore Facility Agent shall specify for this purpose).
(c) All notices from or to the Borrower shall be sent through the
Off Shore Facility Agent.
25.4 NOTIFICATION OF ADDRESS AND FAX NUMBER
Promptly upon receipt of notification of an address or fax number or
change of address or fax number pursuant to Clause 25.2 (Addresses) or
changing its own address or fax number, the Off Shore Facility Agent
shall notify the other Parties.
25.5 ENGLISH LANGUAGE
Any notice given under or in connection with this Agreement shall be in
English.
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26. COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together constitute one and the same instrument.
27. AMENDMENTS
Any amendment of any provision of this Agreement shall be in writing
and signed by the Borrower, each of the Sponsors and Shareholders, and
the Off Shore Security Agent (on behalf of the Majority Banks).
28. GOVERNING LAW
This Agreement shall be construed in accordance with and governed by
the law of the State of New York, without reference to principles of
choice of law thereof (other than sections 5-1401 and 5-1402 of the
General Obligations Law of the State of New York).
29. JURISDICTION; CONSENT TO SERVICE OF PROCESS; WAIVER OF JURY TRIAL
29.1 Each Shareholder, Sponsor and the Borrower irrevocably and
unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of the Supreme Court of the State of New York
sitting in New York County and of the United States District Court of
the Southern District of New York, and any relevant appellate court, in
any action or proceeding arising out of or relating to any Finance
Document, or for recognition or enforcement of any judgement, and each
Party irrevocably and unconditionally agrees that all claims in respect
of any such action or proceeding may be heard and determined in such
New York State court or, to the extent permitted by law, in such
Federal court. Each Party agrees that a final judgement in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgement or in any other manner provided
by law. Nothing in any Finance Document shall affect any right that any
Senior Creditor may otherwise have to bring any action or proceeding
relating to any Finance Document against any party thereto or its
properties in the courts of any jurisdiction.
29.2 Each Shareholder, Sponsor and the Borrower irrevocably and
unconditionally waives, to the fullest extent it may legally and
effectively do so, any objection that it may now or hereafter have to
the laying of venue of any suit, action or proceeding arising out of or
relating to any Finance Document in any court referred to in Clause
29.1 (Jurisdiction; consent to service of process; waiver of jury
trial). Each Party irrevocably waives, to the fullest extent permitted
by law, the defense of an inconvenient forum to the maintenance of any
such suit, action or proceeding in any such court.
29.3 EACH PARTY HERETO WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO ANY FINANCE
DOCUMENT OR ANY TRANSACTION CONTEMPLATED THEREBY (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY
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HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER
PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES
HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS CLAUSE 29.3.
30. SERVICE OF PROCESS
30.1 Each Sponsor, Shareholder and the Borrower irrevocably appoints the
parties (each such party, a "PROCESS AGENT") listed by its name in
Schedule 4 (Process Agents) as its authorized agent on which any and
all legal process may be served in any such action, suit or proceeding
brought in the Supreme Court of the State of New York sitting in New
York County and of the United States District Court of the Southern
District of New York, and any relevant appellate court.
30.2 Each Sponsor, Shareholder and the Borrower agrees that service of
process in respect of it upon its Process Agent, together with written
notice of such service given to it in the manner provided in Clause 25
(Notices), shall be deemed to be effective service of process upon it
in any such action, suit or proceeding. Each Sponsor, Shareholder and
the Borrower agrees that the failure of its Process Agent to give
notice to it of any such service shall not impair or affect the
validity of such service or any judgement rendered in any such action,
suit or proceeding based thereon. If for any reason a Process Agent
shall cease to be available to act as such, the relevant Sponsor,
Shareholder or the Borrower, as the case may be, agrees to irrevocably
appoint another such agent in New York City, as its authorized agent
for service of process, on the terms and for the purposes of this
Clause 30. Nothing herein shall in any way be deemed to limit the
ability of any Senior Creditor to serve any such legal process in any
other manner permitted by applicable law or to obtain jurisdiction over
any Sponsor, Shareholder or the Borrower or bring actions, suits or
proceedings against such party in such other jurisdiction, and in such
manner, as may be permitted by applicable law.
31. WAIVER OF IMMUNITY
Each Shareholder, Sponsor and the Borrower waives generally any
immunity it or its assets or revenues may otherwise have in any
jurisdiction, including immunity in respect of:
31.1.1 the giving of any relief by way of injunction or order for specific
performance or for the recovery of assets or revenues; and
31.1.2 the issue of any process against its assets or revenues for the
enforcement of a judgement or, in an action in rem, for the arrest,
detention or sale of any of its assets and revenues,
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and agrees that in any Proceeding in the County of New York this waiver
shall have the fullest scope permitted by the United States Xxxxxxxxx
Xxxxxxxxxx Xxx 0000 and that this waiver is intended to be irrevocable
for the purposes of such Act.
32. EXPENSES
32.1 The Sponsors shall on a joint and several basis, pay or reimburse each
Senior Creditor (to the extent reimbursement has not already been made
by the Borrower upon receipt of notice thereof) for all out of pocket
expenses, including fees and expenses of its legal counsel and any
value added Tax or similar Tax, incurred by the Senior Creditors in
connection with the performance, enforcement or protection or attempted
enforcement or protection of its rights under this Agreement.
33. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the Parties and
replaces and supersedes all prior agreements, memoranda,
correspondence, communications, negotiations and representations,
whether oral or written, express or implied, statutory or otherwise
between the Parties.
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SCHEDULE 1
PROCESS AGENTS
(A) The Borrower appoints as its Process Agent for Germany
FIDEUROP TREUHANDGESELLSCHAFT FUR DEN GEMEINSAMEN MARKT MBH
Address: Xxxxx-Xxxxx Xxxx(xx)x 00
00000 Xxxxxxxxx xx Xxxx, Xxxxxxx
Telephone: x00 00 00 000
Fax: x00 00 00 00 0000
Attention of: Xx. Xxxxx Xxxxxxxxx
(B) The Borrower appoints as its Process Agent for the United States of
America
CORPORATION SERVICE COMPANY
Address: 1177 Avenue of the Americas
00xx Xxxxx, Xxx Xxxx, X.X.
00000-0000, X.X.X.
Telephone: x0 000 000 0000
Fax: x0 000 000 0000
(C) The Borrower appoints as its Process Agent for England and Wales
LAW DEBENTURE CORPORATE SERVICES LIMITED
Address: Fifth floor
000 Xxxx Xxxxxx
Xxxxxx, XX0X 0XX
Xxxxxxx
Telephone: x00 00 0000 0000
Fax: x00 00 0000 0000
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SIGNATURE PAGE OF THE SECOND AMENDMENT AND RESTATEMENT OF THE
SPONSORS' AND SHAREHOLDERS' UNDERTAKING AND COMPLETION GUARANTEE
THE BORROWER
WESTERN WIRELESS INTERNATIONAL D.O.O.
By: By:
Name: Name:
Title: Title:
Address: Xxxxxxxxx xxxxx 00, 0000 Xxxxxxxxx, Xxxxxxxx
Telephone: x000 0 0000 000
Fax: x000 0 0000 000
Attention of: Xxxxxx Fast
OFF SHORE SECURITY AGENT AND OFF SHORE FACILITY AGENT
IKB DEUTSCHE INDUSTRIEBANK AG
By: By:
Name: Name:
Title: Title:
Address: Xxxxxxx-Xxxxxxx-Xxxx(xx)x 0, 00000 Xxxxxxxxxx, Xxxxxxx
Telephone: x00 000 0000 0000 or x00 000 0000 0000
Fax: x00 000 0000 0000 or x00 000 0000 0000
Attention of: Xxxxxxx Xxxxxxx or Dr. Peer Gunzel, Structured Finance Department
SIGNATURE PAGE OF THE SECOND AMENDMENT AND RESTATEMENT OF THE
SPONSORS' AND SHAREHOLDERS' UNDERTAKING AND COMPLETION GUARANTEE
THE SPONSORS
WESTERN WIRELESS INTERNATIONAL CORPORATION
By: By:
Name: Name:
Title: Title:
Address: 0000 000xx Xxxxxx, X.X., Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx 00000,
XXX
Telephone: x0 000 000 0000
Fax: x0 000 000 0000
Attention of: Xxxxx Xxxxxxxx
WESTERN WIRELESS INTERNATIONAL SLOVENIA CORPORATION
By: By:
Name: Name:
Title: Title:
Address: 0000 000xx Xxxxxx, X.X., Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx 00000,
XXX
Telephone: x0 000 000 0000
Fax: x0 000 000 0000
Attention of: Xxxxx Xxxxxxxx
SIGNATURE PAGE OF THE SECOND AMENDMENT AND RESTATEMENT OF THE
SPONSORS' AND SHAREHOLDERS' UNDERTAKING AND COMPLETION GUARANTEE
WESTERN WIRELESS INTERNATIONAL SLOVENIA II CORPORATION
By: By:
Name: Name:
Title: Title:
Address: 0000 000xx Xxxxxx, X.X., Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx 00000,
XXX
Telephone: x0 000 000 0000
Fax: x0 000 000 0000
Attention of: Xxxxx Xxxxxxxx
