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Exhibit 4.(a)(xvi)
XXXXX.WEB LIMITED (IN ADMINISTRATION)
WEXHAM SPRINGS, XXXXXXXXX XXXX
XXXXXX, XXXXXX
XXXXXXXXX XX0 0XX
Xxxxx Networks N.V.
Transpolis Schipol Airport
Xxxxxxx Xxxxxx 00
0000 Xxxxxxxxx
Xxx Xxxxxxxxxxx
27th April, 2001
Dear Sirs
XXXXX.WEB LIMITED (IN ADMINISTRATION) ("THE COMPANY")
In this letter I am writing to record the agreement we have reached for the
purpose of maintaining the operation and availability of the Company's
telecommunications networks and services in the UK, Europe and Asia Pacific
(together, "THE NETWORK(S)"). As you appreciate, the Company cannot continue to
trade in administration without having available to it an amount which has been
estimated by the Company's administrators (the "ADMINISTRATORS") to be US$6
million (the "TOTAL FUNDING REQUIREMENT"). It is estimated that this sum should
enable the Company's network operations and services to be continued for a
period of up to four weeks in administration. You have agreed to make the Total
Funding Requirement (less such amounts as are in the Company's bank accounts as
at the Effective Date, and are freely available, or will, when cleared, become
freely available, to it (such net amount being the "XXXXX FUNDING")) available
to the Company on the terms set out below, at any time after we receive a letter
countersigned by you confirming your agreement with the terms of this letter
(the "EFFECTIVE DATE"). Furthermore, by contersigning a copy of this letter, you
hereby confirm that you currently have sufficient funds at your disposal to make
the Xxxxx Funding available.
1. (a) The Xxxxx Funding (which shall not exceed the Total Funding
Requirement) will be made available by you by way of a committed
interest-bearing loan (the "LOAN"), which may be drawn in any number of
separate tranches. Provided that a request is received by you prior to 10
a.m. (London time) on any day, the requested amount shall be paid by 2
p.m. (London time) on that same day, provided that the amount requested,
when aggregated with all other amounts (i) provided by you under the terms
of this letter agreement which remain outstanding at that date, and (ii)
the drawdown of which have been requested hereunder but which have not yet
been drawn, does not exceed the Xxxxx Funding. If a request is received
by you after 10 a.m. (London time) on any day, the requested amount shall
be paid by 12 noon (London time) on the following day upon which you are
open for general business. Amounts drawn under this letter agreement
shall be credited in cleared funds to an account as instructed by the
Administrators. Amounts may be drawn in accordance with the terms of this
letter agreement at any time. The initial amount of US$3.5 million (less
such amounts as are in the Company's bank accounts as at the Effective
Date, and are freely available, or will, when cleared, become freely
available, to it) will be provided to us automatically (without the need
for any further request) on the Effective Date. It is our current
expectation that the remaining portion of the Xxxxx Funding will be drawn
approximately two weeks after the Effective Date.
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(b) Interest on each amount advanced pursuant to the terms of this letter
agreement (an "ADVANCE") shall be charged at the rate of seven per. cent
per annum above the average British Bankers Association Interest
Settlement Rate, which is displayed on the appropriate page of Telerate at
or about 11.00 a.m. on the date upon which the Advance is paid into our
account in accordance with sub-paragraph (a) above, for the offering of
deposits in US Dollars for the period for which it is anticipated that
such Advance is to be outstanding ("LIBOR"). All interest in relation to
each Advance (the "INTEREST") shall accrue whilst that Advance is
outstanding, and shall be added to the aggregate amount which is due to
you, and which will be paid or repaid in accordance with paragraph 2 below
following a disposal. Interest shall cease to accrue upon the earlier to
occur of (i) in relation to Interest accruing on any amount, repayment of
that amount in accordance with the terms of this letter agreement, (ii)
the discharge of the administration order, or (iii) a liquidation of the
Company.
2. (a) The Loan and all accrued Interest shall be repayable and, as the
case may be, payable if and to the extent that realisations after
(i) payment of the costs of realisation from the sale or other
disposal of all or some of the Company's assets, (ii) discharge of
all liabilities which fall to be discharged under Section 19(4), (5)
and (6) of the Insolvency Xxx 0000 and (iii) discharge of all
amounts due to preferential creditors as at the date of the
administration order, (but subject to paragraph 2(b) of this
letter), exceed US$2 million (such excess, the "EXCESS") and, in any
event, pro rata with the repayment of any supplier of goods and/or
services in respect of the period after the Administrators'
appointment to the Company who agrees to waive payment from the
Company in respect of the provision of those goods and/or services
on terms that the amount(s) so waived shall constitute a loan to the
Company to be treated in the same way as Advances made under the
terms of this letter agreement. The Loan and all Interest shall only
be repayable (or, as appropriate, payable) out of the Excess and
shall not be repayable (or payable) in any other circumstances other
than by way of dividend paid pro rata to the Company's
non-preferential unsecured creditors ranking pari passu inter se.
(b) Furthermore, you acknowledge that (i) the agreement constituted by
this letter as accepted by you is a contract entered into by the
Administrators in the course of carrying out their functions, and
(ii) the liability of the Company to repay the Loan and pay all
accrued Interest in accordance with the terms of this letter shall
constitute a liability incurred under Section 19(5) of the
Insolvency Act 1986 but that the liability to repay the Loan and pay
the Interest shall be discharged strictly in accordance with the
terms of this letter and the terms of this letter shall constitute a
variation to the manner and priority otherwise afforded to the
liability to repay the Loan and pay the Interest under Section 19(5)
of the Insolvency Xxx 0000.
(c) Notwithstanding the provisions of sub-paragraphs (a) and (b) above,
we reserve the right (in our sole discretion) to repay any amount
advanced in accordance with the provisions of this letter agreement,
or pay any Interest, at any time earlier than is otherwise provided
for in this letter agreement. We shall use reasonable endeavours to
make any such reserves as we (in our sole discretion) deem
appropriate in the circumstances to the intent that the balance not
so reserved can be repaid to you in accordance with the provisions
of this letter agreement as soon as we (in our sole discretion)
consider practicable.
3. The Administrators undertake that they will not draw on funds advanced to
the Company by way of the Loan except to the extent required for the
purpose of achieving one or more of the purposes set out in the
administration order and/or in bringing the administration to a close.
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4. You acknowledge that the cash requirement forecasts set out in the
Schedule are estimated forecasts only, the Administrators in their
preparation having used their reasonable efforts on the basis of the
information then actually known to them, and the Company's cash and
funding requirements may be lesser or greater than set out in the
forecasts. You agree that the funding requirement is subject to certain
key assumptions as to the way the stakeholders in the business will react.
In practice, the stakeholders may react in ways different to those
anticipated and accordingly the funding requirement may be different to
those estimated. The provision of the funding does not guarantee continued
network operations. The Administrators shall deliver to you weekly updates
to the cash requirement forecasts.
5. The Administrators shall, if you so request, provide you not more than
once weekly with a summary setting out how the Loan has been utilised by
the Company and, following the disposal of the Network(s) or the
Network(s) ceasing to operate or upon the Administrators' discharge
(whichever is the sooner), produce an account of how the monies advanced
by way of Loan have been applied by the Administrators. Furthermore, the
Administrators shall consult and communicate with you to the extent that
is reasonable in order to keep you informed of the progress of the
administration towards achieving the purposes for which the administration
order was made.
6. We may on future occasions request you to provide further funds by way of
loan in respect of continuing the Company's business should the estimate
of the Total Funding Requirements prove insufficient, but acknowledge and
accept that you will be under no obligation to agree to any such funding
request beyond the Xxxxx Funding.
7. Subject to you making prompt payment of each amount requested by us on the
due date and subject to our calculation of the Total Funding Requirement
proving to be sufficient for its purpose, we agree that we shall (subject
to any order of the Court to the contrary) use our reasonable endeavours,
whilst the sale of the Company as a going concern continues to be pursued,
to cause the Company to continue to operate the Network(s) until such time
as we cease to be in control of the Company or its assets or a material
part of them or the operation of the Network(s), whether through a sale of
the Company's business or the Network(s) or otherwise.
8. For the avoidance of doubt, should you fail to advance to the Company any
part of the Loan requested by the Company on the due date in accordance
with the terms of this letter agreement, or should our calculation of the
Total Funding Requirement prove that the resultant funds available in the
administration (taking into account the Xxxxx Funding and any and all
other realisations, recoveries and/or payments received by the Company
from whatever source) will be insufficient, the Company, acting by its
Administrators, may, and shall be entitled to, cease operating the
Network(s) immediately upon the expiry of not less than 24 hours' notice
(not including weekends) by fax to you.
10. You confirm that you shall not at any time now or in the future make or
exercise any set-off, counterclaim, retention, deduction or withholding or
assert any claim in respect of, or seek in any way to recoup, the Loan or
any shortfall in repayment by the Company of the Loan against the Company,
other than as provided for in this letter.
11. It is agreed that the Administrators act at all times as agents of the
Company and without personal liability under this letter and in relation
to causing the Company to continue to operate the Network(s) and its
business generally.
12. Save as specifically recorded in this letter, it is agreed that all the
pre-existing terms and conditions on which the Company operates the
Network(s) and otherwise conducts its
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business shall continue to apply and be in full force and effect (subject
only to the express terms thereof) and nothing in this letter will effect
any further variation of such terms express or implied.
13. This letter shall be governed by and construed in accordance with English
law and it is agreed that the Courts of England and Wales shall have
non-exclusive jurisdiction in relation to any matters arising under this
letter.
Please confirm your agreement to the above terms and conditions by signing and
returning the attached duplicate of this letter where indicated.
Yours faithfully,
/s/ Xxxxxxx Xxxx
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Xxxxxxx Xxxx
Joint Administrator for and on behalf of Xxxxx.web Limited (in administration)
We hereby confirm our agreement to the terms of your letter dated 27th
April, 2001
/s/ Xxxxxxxxxxx Xxxxxxx
---------------------------
Name: Xxxxxxxxxxx Xxxxxxx
Title: Secretary and CFO
Authorised signatory for and on behalf of Xxxxx Networks N.V.
Date: 27 April 2001
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SCHEDULE
CASH REQUIREMENT FORECAST
[insert details]
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