EXHIBIT 10.8
B A N K F A C I L I T Y A G R E E M E N T
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BETWEEN
KABELTELEVISIE AMSTERDAM B.V.
AND
ABN AMRO BANK N.V.
IN THE PRINCIPAL AMOUNT OF
UP TO NLG 375,000,000
As of January 31, 1996
TABLE OF CONTENTS
to be added
EXHIBITS
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Exhibit 1 -- Definitions
Exhibit 2 -- Guaranteed Bridge Facility Agreement
Exhibit 3.1 -- US West Guaranty
Exhibit 3.2 -- Philips Guaranty
Exhibit 4 -- Notice of Drawdown (Fixed Rate)
Exhibit 5 -- Notice of Drawdown (Variable Rate)
Exhibit 6 -- Base Case Projections Proforma
Exhibit 7.1 -- Balance Sheet
Exhibit 7.2 -- Flow of Funds Sheet
Exhibit 8 -- MAA Letter Agreement
Exhibit 9 -- Principal Repayment Schedule
Exhibit 10 -- Undertaking
Exhibit 11.1 -- Articles of Association Borrower
Exhibit 11.2 -- Articles of Association Subsidiary
Exhibit 12 -- Form of Budget
Exhibit 13 -- Master Agreement (without exhibits)
Exhibit 14 -- CAI Agreements (without exhibits or other
attachments)
Exhibit 15 -- Municipality Letter Agreements
Exhibit 16 -- Deed of Mortgage
Exhibit 17 -- Deed of Pledge of Accounts
Exhibit 18 -- Deed of Pledge of Movable Assets
Exhibit 19 -- Deed of Pledge of Shares and Related Rights
Exhibit 20 -- Shareholders Agreement
Exhibit 21 -- A2000 Bank Facility Agreement (with Exhibit
1 thereto, but without the other Exhibits)
Exhibit 22 -- A2000 Deed of Pledge
Exhibit 23 -- Debt Equity Ratio Basis Reduction Scheme
Exhibit 24 -- Joint Venture Agreement
(ii)
The undersigned,
Kabeltelevisie Amsterdam B.V. (the "Borrower"), a private company with limited
liability under the law of The Netherlands, with corporate seat in Amsterdam;
and
ABN AMRO Bank N.V. ("ABN AMRO"), acting for itself in various capacities as
referred to herein (including its capacity as a Bank) and, as the case may be,
in accordance with article 25, as agent (the "Agent") for the Banks (if any, as
may be the case in accordance with article 25) as defined hereafter, a public
company with limited liability incorporated under the law of The Netherlands,
with corporate seat in Amsterdam, The Netherlands;
CONSIDERING THE FOLLOWING:
(A) The objects of the Borrower are to build, maintain and operate a
telecommunications infrastructure (including without limitation, cable
networks originally designed for the distribution of radio and television
programmes ("draadomroepinrichtingen")) and to provide telecommunication
services via such infrastructure, including without limitation the
distribution of radio and television programmes to subscribers, interactive
broadcasting services, multimedia services, data transmission, fax and
voice services;
(B) The following transactions have taken place:
- the sale and transfer by the Municipality of Amsterdam ("MAA") of all
outstanding shares in the Borrower to US West International B.V. ("USW
B.V.") and Philips Media Networks B.V. ("PMN B.V.");
- the contribution by USW B.V. and PMN B.V. of the shares in the Borrower
acquired by each of them into X0000 Xxxxxxx X.X. ("X0000"); and
- various other transactions related to the foregoing, as referred to in
the Master Agreement (as defined in Exhibit 1);
(C) In connection with the sale and transfer of the shares in the Borrower by
MAA to USW B.V. and PMN B.V. and the other transactions relating thereto as
referred to in recital (B), ABN AMRO has provided a bridge loan facility
pursuant to a guaranteed bridge facility agreement (the "Guaranteed Bridge
Facility Agreement"), dated July 5th, 1995, a photocopy of which is
attached hereto as Exhibit 2, in the principal amount of up to NLG
700,000,000, of which an amount of NLG 679,478,988 has been drawn by USW
B.V. and PMN B.V. on July 6, 1995;
(D) The repayment to ABN AMRO of the principal amount drawn down under the
Guaranteed Bridge Facility Agreement, together with accrued interest and
certain other amounts is guaranteed by US West, Inc. and Philips
Electronics N.V. pursuant to guarantees photocopies of which are attached
hereto as Exhibit 3.1 (the "US West Guaranty") and 3.2 (the "Philips
Guaranty");
(E) It is intended that the principal amount outstanding under the Guaranteed
Bridge Facility Agreement be repaid, together with accrued interest and
other amounts due thereunder, to ABN AMRO and in connection therewith ABN
AMRO has offered a term loan facility
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in the principal amount of NLG 250,000,000 to be made available hereunder,
subject to the terms and conditions as provided herein;
(F) KTA intends to design, procure, build, install and commission certain
components of its telecommunications infrastructure, defined as the System
in Exhibit 1 (including its cable-telephony network) in Amsterdam and
certain surrounding areas;
(G) the intended activity as referred to in recital (F) requires an estimated
outside capital investment of up to NLG 75,000,000;
(H) ABN AMRO has offered to finance the amount of NLG 75,000,000 referred to in
recital (G) under a construction loan facility in the principal amount of
up to NLG 75,000,000 to be made available hereunder, subject to the terms
and conditions as provided herein;
(I) The Borrower intends to operate and maintain the System, and to provide
telecommunications services via the System, in a commercially viable manner
and as contemplated in the Project Agreements (as defined in Exhibit 1) and
will need working capital from time to time;
(J) ABN AMRO has offered to finance such need for working capital under a
working capital facility in the principal amount of up to NLG 50,000,000,
to be made available hereunder, subject to the terms and conditions as
provided herein;
(K) the intended activity of the Borrower as referred to in recital (F) is
hereafter referred to as the construction and maintenance of the "Project";
(L) The Borrower and ABN AMRO now wish to record their agreement regarding the
financing by ABN AMRO as referred to in recital (E), recital (H) and
recital (J) as follows;
HAVE AGREED AS FOLLOWS:
Article 1 - Definitions and Expressions
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1.1 Capitalized expressions and terms as used in this Agreement shall have the
meanings as set forth in Exhibit 1, unless the context expressly requires
otherwise.
1.2 Agreements mentioned or referred to in Exhibit 1 include agreements,
exhibits, schedules, attachments and other documents which are a part of
the agreement mentioned or referred to, and any reference to such
agreements, exhibits, schedules, attachments and documents herein shall be
construed as a reference to such agreements, exhibits, schedules,
attachments and documents, as these may be amended from time to time.
1.3 The expression to credit an account shall mean to deposit monies in such
account and the expression to debit an account shall mean to withdraw
monies from such account.
Article 2 - Bank Facility
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2.1 ABN AMRO makes available to the Borrower, subject to the terms and
conditions of this Agreement, the loan facility as described in article
2.2.1 (the "Term Loan Facility"), the construction loan facility as
described in article 2.3.1 (the "Construction Loan Facility") and the
working capital facility, as described in article 2.4.1 (the "Working
Capital Facility").
2.2.1 Under the Term Loan Facility, the Banks are required to make one advance
(the "Term Loan Advance") to the Borrower, subject to the terms and
conditions of this Agreement (including but not limited to article 7), up
to the aggregate maximum principal amount of NLG 250,000,000 (such maximum
to be referred to as the "Available Term Loan Commitment").
2.2.2 The Term Loan Facility is available from the date of this Agreement until
June 1, 1996 (the "Term Loan Facility Availability Period") and any
obligation of the Banks to make the Term Loan Advance under the Term Loan
Facility shall cease upon expiry of such period. The Borrower shall have
the right to terminate the Available Term Loan Commitment, or part
thereof, at any time prior to June 1, 1996, upon which termination the
Available Term Loan Commitment, or such part thereof, shall have
definitively been terminated.
2.3.1 Under the Construction Loan Facility, the Banks are required to make one
or more advances (the "Construction Loan Advance(s)") to the Borrower,
subject to the terms and conditions of this Agreement (including but not
limited to article 7), up to the aggregate principal amount of NLG
75,000,000, (such maximum to be referred to as the "Available Construction
Loan Commitment"), provided that, subject to article 2.3.2, in each of the
following years the aggregate amount outstanding under the Construction
Loan Facility shall not exceed the maximum indicated below with respect to
the relevant year:
Aggregate maximum
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Annual increase amount available
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1996 NLG 30,000,000 NLG 30,000,000
1997 NLG 40,000,000 NLG 70,000,000
1998 NLG 5,000,000 NLG 75,000,000
1999 NLG 0 NLG 75,000,000
2.3.2 If the Borrower requires a Construction Loan Advance in any of the years
referred to in article 2.3.1 in excess of the applicable maximum (i) such
Construction Loan Advance can be drawn down, subject to the terms and
conditions of this Agreement (including but not limited to article 7) and
(ii) article 12.4.2 shall apply.
2.3.3 The Construction Loan Facility is available, subject to article 2.3.1 and
2.3.2, from the date of this Agreement until December 31, 1999 (the
"Construction Loan Facility Availability Period") and any obligation of
the Banks to provide a Construction Loan Advance under the Construction
Loan Facility shall cease upon expiry of such period. The Borrower shall
have the right to terminate the Available Construction Loan Commitment, or
part thereof, at any time prior to December 31, 1999, upon which
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termination the Available Construction Loan Commitment, or such part
thereof, shall have been definitively terminated.
2.4.1 Under the Working Capital Facility, ABN AMRO is required to make funds
available to the Borrower, either by allowing overdrafts (the
"Overdrafts") on the Revenue Account (as defined below) or as an advance
("Working Capital Advance"; Working Capital Advances and Overdrafts
collectively referred to herein as "Working Capital Funds") on a revolving
basis, subject to the terms and conditions of this Agreement (including
but not limited to article 7), up to the aggregate maximum principal
amount of NLG 50,000,000 (such maximum to be referred to as the "Available
Working Capital Commitment").
2.4.2 The Working Capital Facility is available from the date of this Agreement
until the Final Maturity Date (the "Working Capital Facility Availability
Period"), with due observance of article 13.6, and any obligation of ABN
AMRO to provide Working Capital Funds to the Borrower under the Working
Capital Facility shall cease upon the Final Maturity Date. The Borrower
shall have the right to terminate the Working Capital Facility Commitment,
or part thereof, at any time prior to the Final Maturity Date, upon which
termination the Working Capital Facility Commitment, or such part thereof,
shall have been definitively terminated.
Article 3 - Term Loan Advance
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3.1 With respect to the Term Loan Advance, the following provisions of this
Article 3 and the other provisions of this Agreement, excluding articles 4
and 5, shall apply.
3.2 The Term Loan Advance shall be drawn down by the Borrower, subject to the
conditions as set forth in article 7.1, in the amount of NLG 250,000,000,
as an Advance to which a variable rate of interest applies as from the
relevant Advance Date, ("Variable Rate Advance") or, at the option of the
Borrower, as an Advance to which a fixed rate of interest applies as from
the relevant Advance Date, ("Fixed Rate Advance"), by submission by the
Borrower, not earlier than the 10th Business Day preceding, and not later
than 10.00 a.m. on the 5th Business Day preceding, the intended Advance
Date, of a Notice of Drawdown substantially in the form of Exhibit 4,
specifying:
- that the Advance is a Variable Rate Advance or a Fixed Rate Advance;
- the amount of the Advance to be drawn down, being NLG 250,000,000, or
to remain outstanding (as the case may be as referred to in article
3.3);
- the Variable Rate Interest Period applicable, in the case of a
Variable Rate Advance, or the Fixed Rate Interest Period, in the case
of a Fixed Rate Advance.
3.3 Subject to the provisions of articles 13 and 23, any Variable Rate Advance
is not repayable at the end of the applicable Variable Rate Interest
Period (the end of any such period to be referred to as "Roll Over
Moment"), and any Fixed Rate Advance is not repayable at the end of the
applicable Fixed Rate Interest Period (the end of any such period to be
referred to as "Roll Over Moment"), but remains outstanding:
- as a Variable Rate Advance if the Borrower has notified the Agent in
accordance with the notification procedure described in article 3.2
that the relevant Advance
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shall remain outstanding as a Variable Rate Advance,
specifying the applicable Variable Rate Interest Period;
- as a Fixed Rate Advance, if the Borrower has notified the Agent in
accordance with the notification procedure described in article 3.2
that the relevant Advance shall remain outstanding as a Fixed Rate
Advance, specifying the applicable Fixed Rate Interest Period.
3.4 Any Variable Rate Interest Period shall be one, three or six months - or
nine or twelve months if matching funding is available in the market for
Variable Rate Loans for nine or twelve months, respectively -, provided
that article 12.3 shall always be observed.
3.5 In the absence of a notification as referred to in article 3.3, a Variable
Rate Advance, or a Fixed Rate Advance, shall remain outstanding as a
Variable Rate Advance after the relevant Variable Rate Interest Period, or
relevant Fixed Rate Interest Period, with a Variable Rate Interest Period
of one month.
3.6.1 The Fixed Rate Interest Period applicable to the Advance shall not be less
than seven years, except if article 3.6.2 applies.
3.6.2 In the event that the period starting on the Roll Over Moment up to and
including July 1, 2005 is less than seven years, the Advance can be a
Fixed Rate Advance with a Fixed Rate Interest Period equal to such period.
3.7 The Agent shall cause any Advance to be transferred to the Revenue Account
of the Borrower, unless otherwise agreed by the Borrower and the Agent.
Article 4 - Construction Loan Advances
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4.1 With respect to the Construction Loan Advances, the following provisions
of this Article 4 and the other provisions of this Agreement, excluding
articles 3 and 5, shall apply.
4.2 A Construction Loan Advance shall be drawn down by the Borrower, subject
to the applicable conditions as set forth in article 7.1 and 7.2 as an
Advance to which a variable rate of interest applies as from the relevant
Advance Date ("Variable Rate Advance") or, at the option of the Borrower,
as an Advance to which a fixed rate of interest applies as from the
relevant Advance Date, ("Fixed Rate Advance"), by submission by the
Borrower, not earlier than the 10th Business Day preceding, and not later
than 10.00 a.m. on the 5th Business Day preceding, the intended Advance
Date, of a Notice of Drawdown substantially in the form of Exhibit 5,
specifying:
- that the Advance is a Variable Rate Advance or a Fixed Rate Advance,
under the Construction Loan Facility;
- the amount of the Advance to be drawn down, or to remain outstanding
(as the case may be as referred to in article 4.3);
- the Variable Rate Interest Period applicable, in the case of a
Variable Rate Advance, or the Fixed Rate Interest Period, in the case
of a Fixed Rate Advance.
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4.3 Subject to the provisions of articles 13 and 23, any Variable Rate Advance
is not repayable at the end of the applicable Variable Rate Interest
Period (the end of any such period to be referred to as "Roll Over
Moment"), and any Fixed Rate Advance is not repayable at the end of the
applicable Fixed Rate Interest Period (the end of any such period to be
referred to as "Roll Over Moment"), but remains outstanding:
- as a Variable Rate Advance if the Borrower has notified the Agent in
accordance with the notification procedure described in article 4.2
that the relevant Advance shall remain outstanding as a Variable Rate
Advance, specifying the applicable Variable Rate Interest Period;
- as a Fixed Rate Advance, if the Borrower has notified the Agent in
accordance with the notification procedure described in article 4.2
that the relevant Advance shall remain outstanding as a Fixed Rate
Advance, specifying the applicable Fixed Rate Interest Period.
4.4 Any Variable Rate Interest Period shall be one, three or six months - or
nine or twelve months if matching funding is available in the market for
Variable Rate Loans for nine or twelve months, respectively -, provided
that article 12.3 shall always be observed.
4.5 In the absence of a notification as referred to in article 4.3, a Variable
Rate Advance, or a Fixed Rate Advance, shall remain outstanding as a
Variable Rate Advance after the relevant Variable Rate Interest Period, or
relevant Fixed Rate Interest Period, with a Variable Rate Interest Period
of one month.
4.6.1 The Fixed Rate Interest Period applicable to an Advance shall not be less
than two years, except if article 4.6.2 applies.
6.4.2 In the event that the period starting on the Roll Over Moment up to and
including July 1, 2005 is less than two years, an Advance can be a Fixed
Rate Advance with a Fixed Rate Interest Period equal to such period.
4.7 Any Advance to be drawn under the Construction Loan Facility shall be
drawn down solely for the purpose of financing the Capital Expenditures.
4.8 The minimum amount of an Advance shall be NLG 6,000,000 and any Advance
shall be a multiple of NLG 2,000,000.
4.9 The Agent shall cause any Advance to be transferred to the Revenue Account
of the Borrower, unless otherwise agreed by the Borrower and the Agent.
Article 5 - Working Capital Facility
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5.1 With respect to the Working Capital Advances and Overdrafts, the following
provisions of this article 5 and the other provisions of this Agreement,
excluding articles 3 and 4, shall apply.
5.2 Working Capital Funds will be made available by ABN AMRO under the Working
Capital Facility as an Overdraft or as a Working Capital Advance, subject
to article 7 and the other provisions of this Agreement (excluding
articles 3 and 4).
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5.3 A Working Capital Advance shall be drawn down by the Borrower, subject to
the conditions as set forth in article 7.1 and 7.2, as an Advance to which
a variable rate of interest applies as from the relevant Advance Date
("Variable Rate Advance"), by submission by the Borrower, not earlier than
the [10th] Business Day preceding, and not later than 10:00 a.m. on the
[5th] Business Day preceding, the intended Advance Date, a Notice of
Drawdown substantially in the form of Exhibit 5, specifying:
- that the Advance is a Variable Rate Advance under the Working Capital
Facility;
- the amount of the Advance to be drawn down, or to be remaining
outstanding (as the case may be as referred to in article 5.4);
- the Variable Rate Interest Period applicable.
5.4 Subject to the provisions of articles 13 and 23, any Variable Rate Advance
is repayable at the end of the applicable Variable Rate Interest Period
(the end of any such period to be referred to as "Roll Over Moment"), but
remains outstanding as a Variable Rate Advance if the Borrower has
notified the Agent in accordance with the notification procedure described
in article 5.3 that the relevant Advance shall remain outstanding as a
Variable Rate Advance, specifying the applicable Variable Rate Interest
Period.
5.5 Any Variable Rate Interest Period shall be one, three or six months - or
nine or twelve months if (i) so requested by the Borrower and (ii)
matching funding is available in the market for variable rate loans for
nine or twelve months, respectively, provided that article 12.3 shall
always be observed.
5.6 In the absence of a notification as referred to in article 5.4, a Variable
Rate Advance is repayable at the end of the applicable Variable Rate
Interest Period.
5.7 Any Advance to be drawn and any Overdraft to be made under the Working
Capital Facility shall be drawn down and made, respectively, solely for
the purpose of paying Operating Costs and Finance Costs (excluding
principal).
5.8 The minimum amount of an Advance shall be NLG 2,500,000 and any Advance
shall be a multiple of NLG 500,000.
5.9 The Agent shall cause any Advance to be transferred to the Revenue Account
of the Borrower, unless otherwise agreed between the Borrower and the
Agent.
5.10 Working Capital Funds through Overdrafts shall be provided by ABN AMRO by
allowing - and ABN AMRO shall allow - the Borrower, subject to the
conditions as set forth in article 7.1 and 7.2, to create a negative
balance on the Borrower's Revenue Account through debiting such Revenue
Account, provided that as a result of such debiting the sum of (i) the
total principal amount of outstanding Overdrafts and (ii) the total
principal amount of outstanding Working Capital Advances, shall not exceed
NLG 50,000.000.
Article 6 - Base Case Projections
---------------------------------
6.1 Upon signing of this Agreement, the Borrower and ABN AMRO shall agree upon
the Base Case Projections, substantially in the form of the Base Case
Projections Proforma
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attached as Exhibit 6. The Borrower shall periodically, but not less than
annually (subject to article 6.2) and with due observance of article 19,
revise the Base Case Projections after consultation with the Agent so as
to reflect changes in projected costs and expenses to be incurred in
connection with the construction and maintenance of the Project and
projected costs, expenses and revenues in connection with the maintenance,
operation and exploitation of the System and the providing of
telecommunications services over the System. Such revised and agreed Base
Case Projections shall replace and supersede the Base Case Projections
Proforma and be attached to this Agreement as a revised Exhibit 6.
6.2 If the semi-annual unaudited financial statements of the Borrower deviate
from the Base Case Projections (updated and revised in accordance with
article 6.1) Base Case Projections shall be revised by the Borrower after
consultation with the Agent semi-annually.
Article 7 - Conditions to Drawdown of First Advance(s) and to Making of First
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Overdraft
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7.1 The Borrower shall be permitted to draw the Term Loan Advance under the
Term Loan Facility and the Borrower shall be permitted to draw a first
Advance under the Construction Loan Facility and the Working Capital
Facility, or be allowed a first Overdraft under the Working Capital
Facility, and the Banks shall make such Advance(s) and allow such
Overdraft, in accordance with articles 3, 4 and 5 (to the extent
applicable), if and provided that, as per the contemplated Advance Date as
specified in the relevant Notice of Drawdown, or as per the intended date
of Overdraft, each of the following conditions shall have been fulfilled:
(a) the Project Agreements have been duly executed and delivered by the
respective parties thereto and the Finance Documents are to the
satisfaction of the Agent and have been duly executed and delivered
by the respective parties thereto and the Agent has received
photocopies of the original executed and delivered Project
Agreements and the Finance Documents, certified by the Borrower to
be photocopies of such originals;
(b) the Security Rights contemplated to be created pursuant to article
21 have been validly created and are validly in existence as per the
relevant Advance Date;
(c) no event has occurred and no circumstance exists which would
constitute an Event of Default;
(d) no event has occurred and no circumstance exists which, solely with
the giving of notice and/or the lapse of time, would constitute an
Event of Default;
(e) all licenses, permits, approvals, registrations and exemptions, and
the exclusive contractual rights to use the licenses and permits
held by the respective Municipalities, necessary as from January 1,
1996 for the construction and maintenance of the Project and the
System, the continued operation of the System and the providing of
telecommunications services via the System in accordance with and as
contemplated in article 20.4, to the extent currently required by
and available under law, have been obtained or made or are held by
the Borrower, it being understood that the Borrower does not have
infrastructure licenses (the "Infrastructure Licenses") as provided
to be granted in the draft Act on the Fixed Telecommunications
Installations ("Vergunningenwet kabelgebonden telecommunicatie-
infrastructuur");
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(f) the Consortium Members are jointly the holders, directly or
indirectly, of Control over the Borrower, subject to the priority
share in the Borrower issued to MAA;
(g) the Borrower and the Agent shall have agreed on the manner in which
the amounts due under the Guaranteed Bridge Facility Agreement will
be paid to ABN AMRO, as such agreement will be substantially
reflected in Exhibit 7.2;
(h) the Borrower shall have submitted to the Agent an interim balance
sheet pro forma, reflecting the financial position of A2000 and of
the Borrower, respectively, substantially in the form of Exhibit 7.1
and certified to be true and correct by Mr. Xxxx Xxxxxx Xxxxxx, a
managing director of the Borrower, drawn up in accordance with
accounting principles generally accepted in The Netherlands
consistently applied to fairly present, in all material respects,
the financial position of A2000 and of the Borrower, consolidated
and not consolidated, respectively, as per the Advance Date or the
date of the Overdraft immediately after drawdown of the relevant
Advance(s) or the making of the Overdraft;
(i) the Borrower shall have submitted to the Agent a flow of funds sheet
("Flow of Fund Sheet"), and certified to be true and correct by Mr.
Xxxx Xxxxxx Xxxxxx, a managing director of the Borrower, reflecting
the application of funds to be drawn by it on the intended Advance
Date or made available to it as Overdraft on the intended date of
Overdraft and the flow of these funds at its level, the A2000 level
and the level of the shareholders in A2000, up to and including the
repayment of the amount of NLG 679,478,988 as referred to in
recitals (C) and (E), substantially in the form of Exhibit 7.2 and
duly declared in writing to be correct by the Borrower;
(j) the Borrower shall have opened the Designated Bank Accounts with ABN
AMRO as contemplated in article 9.1;
(k) MAA has duly executed and delivered to the Borrower and the Agent
the MAA Letter Agreement substantially in the form as attached as
Exhibit 8;
(l) the submission to the Agent of (i) (photo)copies of the articles of
association and shareholders registers of the Borrower, its
Subsidiaries and of A2000, certified by a managing director of the
Borrower to be true (photo)copies of the originals, (ii) recent
extracts from the trade register regarding the Borrower, A2000 and
the Subsidiaries and (iii) photocopies of the corporate resolutions
required for the valid execution and delivery by the Borrower and
the Subsidiaries of this Agreement and the performance of their
respective obligations thereunder and required for the valid
creation of any of the Security Rights;
(m) a principal repayment schedule shall have been agreed with and
submitted to the Agent, to be attached as Exhibit 9, with respect to
the repayment of principal of the relevant Advance, and any
outstanding Advances, (the last of such repayment schedules,
replacing and superseding any earlier repayment schedule, hereafter
to be referred to as the "Principal Repayment Schedule" and to be
attached as definitive Exhibit 9);
(n) all conditions of drawdown as set forth in article 4.1 of the A2000
Bank Facility Agreement shall have been fulfilled; and
(o) the Agent shall have received an opinion from Xxxxxxxx Chance and an
opinion from De Brauw Blackstone Westbroek in form and substance
reasonably satisfactory to the Agent.
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7.2 A second and following drawdown(s) of a Construction Loan Advance and/or a
Working Capital Facility Advance and a second and following Overdrafts are
subject to the fulfilment of the conditions as set forth in article 7.1
under (b), (c), (d), (e) and (f).
7.3 The agent may waive any of the conditions as set forth in article 7.1 or
as referred to in article 7.2 with the written consent of the Majority of
Banks, subject to any reasonable conditions to be fulfilled.
Article 8 - Netherlands Guilders; Priority of payments of Finance Costs;
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Business Days
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8.1 Any and all amounts and financial rights and obligations mentioned or
referred to in this Agreement are amounts, rights and obligations in
Netherlands Guilders.
8.2 Any payments to the Agent, ABN AMRO, the Banks, or any of them, pursuant
to this agreement, shall be applied in the following order and priority:
- damages, if any;
- penalty interest;
- breakage costs;
- fees and expenses as referred to in article 14;
- fees as referred to in article 12;
- taxes and increased costs, if any, as referred to in article 15;
- interest as referred to in article 12;
- principal, in order of maturity as determined by the Agent.
8.3 If any payment of Finance Costs due and payable to ABN AMRO, the Agent,
the Banks or any of them under this Agreement is due and payable pursuant
to the other provisions of this Agreement on a day which is not a Business
Day, such payment is due and payable on the immediately succeeding
Business Day, together with the interest accrued up to and including such
Business Day.
Article 9 - Designated Bank Accounts
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9.1.1 The Borrower shall open and maintain an account with ABN AMRO (the
"Revenue Account") in its name and shall require from, and shall cause,
each third party which has an obligation to pay any amount to the
Borrower, to transfer such amount, when due and payable to the Borrower,
to the Revenue Account, except as otherwise provided in this Agreement or
permitted with the prior written consent of the Agent, which shall not be
unreasonably withheld.
9.1.2 Except as otherwise provided in this Agreement, any Advance and any other
payment under this Agreement by the Agent, the Banks, or any of them, to
the Borrower shall be credited to the Revenue Account. Any payments made
by the Borrower to the Agent, the Banks, or any of them, or any third
party, shall be debited against the Revenue Account, except as otherwise
provided in this Agreement, or permitted with the prior written consent of
the Agent which shall not be unreasonably withheld.
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9.2 The Borrower shall not open, and shall cause any of its Subsidiaries not
to open, any bank account with any bank or financial institution other
than ABN AMRO, except as otherwise provided in this Agreement or permitted
with the prior written consent of the Agent, which shall not be
unreasonably withheld (but which may, at the option of ABN AMRO, be
subject to the condition that such bank accounts with such or banks or
financial institutions be pledged to the Agent and the Banks,
substantially in accordance with article 21). It is understood that the
Borrower, or a Subsidiary, is allowed to invest cash balances with other
banks, if such other banks would be prepared to provide the Borrower, or
such Subsidiary, with a higher yield on such Authorized Investments than
ABN AMRO.
9.3 Any bank account with ABN AMRO (including the Revenue Account) opened by
the Borrower, or any of its Subsidiaries, shall be a Designated Bank
Account, unless notified in writing to the Borrower to the contrary by ABN
AMRO.
9.4 The Borrower shall not have the right to withdraw, and shall cause any of
its Subsidiaries not to withdraw, any amount from any of the Designated
Bank Accounts, except (i) in the ordinary course of business, (ii) as
otherwise provided in this Agreement or (iii) as permitted with the prior
written consent of the Agent, which shall not be unreasonably withheld.
9.5.1 ABN AMRO shall apply interest off setting as follows: to each of the
Designated Accounts interest will be credited or debited as if no set off
would take place, in accordance with this Agreement or as otherwise agreed
between ABN AMRO and the Borrower or, if the account holder is a
Subsidiary, the Subsidiary. Once per quarter ABN AMRO shall credit to the
Revenue Account of the Borrower an amount equal to the difference of (i)
the net balance of the interest over the immediately preceding quarter
credited and debited to each of the Designated Accounts separately and
(ii) the net balance of the interest which would have been due and payable
to ABN AMRO if there would have been one bank account with ABN AMRO.
9.5.2 For the avoidance of doubt, it is confirmed that the interest set off
provisions of article 9.5.1 do only apply to any Overdrafts and do not
apply to interest to be paid on or with respect to any Advances.
Article 10 - Interest Payable to the Borrower and Authorized Investments
------------------------------------------------------------------------
10.1 ABN AMRO shall pay interest to the Borrower on any cash balance of any
such Borrower's Designated Bank Accounts not invested in Authorized
Investments equal to the interest rate which ABN AMRO applies to
comparable accounts of comparable customers. The interest shall be paid
quarterly and in arrears and credited to the Revenue Account.
10.2 The Borrower shall be allowed to use any cash balance of the Designated
Bank Accounts to make Authorized Investments. Interest received from
Authorized Investments shall be credited to the Revenue Account upon
receipt.
-11-
10.3 All Authorized Investments will be made for the account of the Borrower.
All documents of title or other documentary evidence of ownership with
respect to Authorized Investments made out of any relevant Designated Bank
Account will be held in the custody of ABN AMRO and, if any such document
or other evidence comes into the possession or control of the Borrower, it
shall cause the same to be delivered forthwith to ABN AMRO. The Borrower
shall, immediately upon request, deliver to the Agent a copy of every
circular, notice, report, set of accounts or other documents received by
it in connection with any investment held for its account in accordance
with this article 10.3.
10.4 The proceeds of realisation or liquidation of any Authorized Investment
shall be credited directly to the relevant Designated Bank Account from
which the investment was made or, upon timely instruction by the Borrower,
invested in another Authorized Investment.
10.5 If any Authorized Investment ceases to be an Authorized Investment, the
Borrower shall as soon as reasonably practicable after becoming aware
thereof (and in no event more than 10 Business Days thereafter) cause such
investment to be replaced by an Authorized Investment or by cash.
10.6 The foregoing provisions of this Article 10 shall apply mutatis mutandis
in respect of any Designated Bank Accounts and Authorized Investments in
the name of any Subsidiary.
Article 11 - Payments out of the Revenue Account and related matters
--------------------------------------------------------------------
11.1 Any Advance to be drawn by the Borrower as contemplated in this Agreement,
shall be transferred to the Revenue Account and the Borrower shall have
the obligation to apply these funds as contemplated in recital (E), 4.7
and 5.7, respectively.
11.2 Except as otherwise provided in this Agreement or agreed in writing
between the Borrower and the Agent, and provided that no Event of Default
has occurred and is continuing, the following payments are paid by the
Borrower out of the Revenue Account in accordance with the following
provisions of this article 11 and in the following order and priority, to
the extent monies are available in the Revenue Account (which includes any
amount which may be drawn by the Borrower under the Working Capital
Facility in accordance with article 5):
(a) the payment of the Operating Costs and Capital Costs and
Capital Expenditures, to the extent included in the Budget;
(b) provided that all payments required to be made in accordance
with paragraph (a) have been duly made or provided for, the
payment of Finance Costs in accordance with this Agreement;
(c) provided that all payments required to be made in accordance
with paragraphs (a) and (b) have been duly made or provided
for, prepayment of any amount as provided in article 13.3;
(d) provided that all payments required to be made in accordance
with paragraphs (a) up to and including (c) have been duly
made or provided
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for and subject to article 20.18, the payment of any
principal of and interest on Subordinated Debt, if any;
(e) provided that all payments required to be made in accordance
with paragraphs (a) up to and including (d) have been duly
made or provided for and subject to article 20.18, payments
of Equity Distributions.
11.3 Upon the occurrence of an Event of Default, any payments by the Borrower
as permitted under article 11.2 prior to the occurrence of an Event of
Default, and any other payment by the Borrower or Subsidiary out of any of
the Designated Bank Accounts, shall only be made by the Borrower and the
Subsidiary subject to the prior written consent of the Agent, in such
order and priority as reasonably determined by the Agent.
Article 12 - Interest and Fees Payable by the Borrower
------------------------------------------------------
12.1 The Borrower shall with respect to an Advance drawn by the Borrower or
with respect to an Overdraft created by the Borrower pay interest at the
rates set forth below:
(a) to the Banks, with respect to and calculated over any unpaid
balance of any Variable Rate Advance: the interest rate
equal to AIBOR, applicable on the Advance Date on which the
relevant Advance was drawn, for the relevant Variable Rate
Interest Period increased by the Margin;
(b) to the Banks, with respect to and calculated over any unpaid
balance of any Fixed Rate Advance: the interest rate per
annum, as agreed between the Borrower and the Agent prior to
the relevant Advance Date with respect to such Advance as per
the Fixing Date specified in the relevant Notice of Drawdown
increased by the Margin;
(c) to ABN AMRO with respect to an Overdraft the interest rate
equal to the "fictief promesse disconto" as published from
time to time in "Het Financieele Dagblad", increased by one
per cent. (1%).
12.2 Any amounts of interest as referred to above in article 12.1 under (a),
(b) and (c) shall be calculated on the basis of a year of 360 days and
actual days elapsed. Any amount of unpaid interest accrued:
- on any Fixed Rate Advance shall be due and payable semi-annually in
arrears on the date which is six months, twelve months, etc. from
the relevant Advance Date;
- on any Variable Rate Advance shall be due and payable (i) at the end
of the relevant Variable Rate Interest Period, if such period is six
months or less, and (ii) after (a) six months and (b) at the end of
the relevant Variable Rate Interest Period, if such period exceeds
six months; and
- on any Overdraft shall be due and payable quarterly in arrears;
with due observance of article 12.3.
12.3 The Term Loan Advance and any Construction Loan Advance shall be drawn on
such Advance Dates, or be rolled over on such Roll Over Moments, with such
Fixed Rate Interest Periods or Variable Rate Interest Periods, that the
number of different Interest Payment Dates at any time applicable to such
Advances shall not exceed five.
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12.4.1 The Borrower shall pay a commitment fee to the Banks, equal to 0.30% per
annum, calculated on the basis of a year of 360 days and actual days
elapsed, over such portion of the Bank Facility which shall not have
been drawn down under the Bank Facility and shall have remained
available for drawdown under the Available Loan Commitment, i.e. for the
following periods:
- Available Term Loan Commitment: from the date of this Agreement
(such date included) up to June 1, 1996;
- Available Construction Loan Commitment: from the date of this
Agreement (such date included) up to and including December 31,
1999, with due observance of the maximum amounts available for
drawdown in the years referred to in article 2.3.1; and
- Available Working Capital Commitment: from the date of this
Agreement (such date included) up to the Final Maturity Date.
12.4.2 In the event of a drawdown as referred to in article 2.3.2, the excess
portion shall be deemed to have been available under the Available
Construction Loan Commitment as from January 1 of the year of such
drawdown and the commitment fee as referred to in article 12.4.1 shall
be increased accordingly.
12.4.3 The fee referred to above in article 12.4.1, increased as the case may
be in accordance with article 12.4.2, shall be due and payable in
arrears and in quarterly installments.
12.5 The Borrower shall, in establishing and conducting its interest rate
management, exercise prudent care. Upon written request by the Agent,
the Borrower and the Agent shall discuss the possibility and
desirability of converting a Variable Rate Advance or Variable Rate
Advances into a Fixed Rate Advance or Fixed Rate Advances, with a view
to limit or exclude variable rate exposure.
Article 13 - Repayment and Prepayment
-------------------------------------
13.1 The Borrower shall repay the principal amount of any Advance drawn down
by it to the Banks in accordance with the Principal Repayment Schedule
on the relevant Payment Dates as stated therein, which shall reflect
that any outstanding Term Loan Advance and any outstanding Construction
Loan Advance shall in any and all events be repaid on July 1, 2005,
without prejudice to the other provisions of this article 13 and without
prejudice to article 23.
13.2 Without prejudice to the other provisions of this article 13, the
Borrower shall have the right to prepay to the Banks on any Payment
Date, wholly or partially, any outstanding Advance(s) (without the right
to redraw any prepaid Term Loan Advance or Construction Loan Advance or
a portion thereof), subject to the obligation to simultaneously pay
accrued interest and the amount of actual breakage costs as provided in
article 13.5, if any, provided that (i) the Agent shall have received
written notice of the Borrower that the Borrower shall exercise the
right as referred to above at least 20 Business Days prior to the date
of intended prepayment as specified in such notice, and (ii) the amount
of such prepayment shall be at least NLG 5,000,000 or a multiple
thereof.
13.3 The Borrower shall have the obligation to prepay to the Banks:
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- upon the occurrence of an Event of Loss and subsequent payment to
the Borrower of insurance proceeds and/or other proceeds to
compensate the Borrower for the loss or damage to any of its
assets (such insurance proceeds, if any, and such other proceeds,
if any, hereafter collectively referred to as "Loss Proceeds"), an
amount equal to the difference of (i) the amount of Loss Proceeds,
and (ii) the Repair Amount, to the extent that the former exceeds
the latter;
- upon the occurrence of an Event of Default, or event or
circumstance which, solely with the giving of notice and/or the
lapse of time, would constitute an Event of Default, and
subsequent payment to the Borrower of Loss Proceeds, an amount
equal to such Loss Proceeds;
- at the reasonable discretion of the Agent upon payment of Loss
Proceeds exceeding the amount of NLG 75,000,000, the amount of
such Loss Proceeds;
- an amount or amounts, equal to the amount or amounts paid by any
of the Municipalities under any of the Purchase Agreements
pursuant to article 2.4 thereof.
13.4 Each amount of principal prepaid in accordance with this article 13
shall be applied in order of maturity as determined by the Agent.
13.5 If any of the following events occurs, the Borrower shall pay to each
Bank an amount equal to the actual documented losses (excluding the loss
of Margin) suffered by such Bank, incurred in liquidating or re-
employing funds as result of:
(i) any prepayment pursuant to article 13.2 or article 23.2 of the
principal amount of any Variable Rate Advance on a date other than
the last date of the Variable Rate Interest Period applicable to
such Advance;
(ii) any prepayment pursuant to article 13.2 or article 23.2 of the
principal amount of any Fixed Rate Advance;
(iii) failure by the Borrower to draw an Advance in accordance with this
Agreement as specified in the relevant Notice of Drawdown
submitted by the Borrower to the Agent;
(iv) failure by the Borrower to prepay the principal amount specified
to be prepaid in a notice as referred to in article 13.2.
13.6 Any Working Capital Advance and any principal amount of Overdraft has to
be definitively repaid before or on the Final Maturity Date,
notwithstanding any other provision of this Agreement.
Article 14 - Agent and Independent Consultants Expenses
-------------------------------------------------------
The Borrower shall (i) upon the occurrence of an Event of Default, reimburse the
Agent from time to time on demand of the Agent for all reasonable out of pocket
expenses of the Agent actually incurred in connection with, and for all
reasonable fees and disbursements of Independent Consultants or other external
counsel charged in connection with, the preservation and/or enforcement of the
rights of ABN AMRO, the Agent and/or the Banks and/or any of them under this
Agreement or under any of the Finance Documents and the Project Agreements, and
(ii) reimburse the Agent from time to time on demand of the Agent for all
reasonable fees and disbursements of an outside insurance consultant approved by
the Borrower for its services to be rendered to the Agent as contemplated in
article 20.3 including services in connection with
-15-
a change of the Insurance. The Agent shall give notice to the Borrower prior to
appointment or consultation of any such Independent Consultant or such other
external counsel.
Article 15 - Taxes; Increased Costs
-----------------------------------
15.1 All payments to be made by the Borrower under this Agreement to or for the
account of the Agent, the Banks or any of them, shall be made without any
set-off or counterclaim (except to the extent provided in article 9.5) and
shall be made without and free and clear of any deduction or withholding
for or on account of any Taxes, unless the Borrower is required by law or
any competent court or authority to make any such deduction or withholding
for or on account of Taxes.
15.2 If as a consequence of a Change in Law or Change in Interpretation:
- any deduction or withholding for or on account of Taxes by any
fiscal authorities of The Netherlands is (or, on the making of the
next succeeding payment to be made under this Agreement, would be)
required to be made from or in respect of any payment to be made by
the Borrower under this Agreement to or for the account of the
Agent, the Banks, or any of them; or
- ABN AMRO, the Agent, the Banks, or any of them, are required to
maintain reserves, special deposit, cash ratio, liquidity, solvency
or capital adequacy requirements of De Nederlandsche Bank N.V. (the
Dutch Central Bank) in relation to Advances made or to be made to
the Borrower under this Agreement or otherwise, or such requirement
is changed; or
- any other obligation in connection with this Agreement is imposed on
ABN AMRO, the Agent, the Banks, or any of them;
and as a result thereof ABN AMRO, the Agent, the Banks, or any of them,
incur(s) a cost or an additional cost with respect to the Advances made or
created, or to be made and created, under this Agreement, then, in each
such case:
- the Agent shall, upon becoming aware of the same, promptly notify
the Borrower and shall consult with the Borrower if and to which
extent the adverse consequences of any such Change can be limited;
and
- the Borrower shall indemnify ABN AMRO, the Agent, the Banks, or the
relevant Bank, for any such costs or additional costs (which means,
for the avoidance of doubt, that the Agent, the Banks or the
relevant Bank would, in the event of any deduction or withholding
for or on account of Taxes as referred to, receive a net sum equal
to the aggregate of the sums it/they would have received, and been
entitled to retain under this Agreement, had no such deduction or
withholding been made or required to be made).
Article 16 - Evidence of Accounts
---------------------------------
16.1 The entries made in the accounts maintained by ABN AMRO, the agent and any
of the Banks in accordance with usual practice of each of them shall be
conclusive evidence between ABN AMRO, the Agent and any of the Banks, on
the one hand, the Borrower, on the other hand, in relation to the
obligations of the Borrower under this Agreement, in the absence of
manifest error. In the event of a dispute with respect to any sum payable
according to the accounts of ABN AMRO, the Agent, or any of the Banks by
the Borrower under this Agreement, the Borrower shall not be entitled to
refuse or
-16-
suspend payment of such sum to the Agent, the Banks or the relevant Bank,
without prejudice to its right to dispute the obligation to pay such sum
in accordance with the provisions of this Agreement.
16.2 ABN AMRO shall maintain a written survey, reflecting any amounts of
principal, interest and fee owing to ABN AMRO, the Agent, the Banks and
any of them, per any Interest Payment Date. Upon request by the Borrower
ABN AMRO shall submit a photocopy thereof to the Borrower. Any
incorrectness thereof shall not be invoked against ABN AMRO in any way.
Article 17 - No waiver; exercise of rights
------------------------------------------
No failure or delay on the part of the Agent, the Banks, or any of them, in
exercising any right under this Agreement shall operate as a waiver thereof.
The rights and remedies under this Agreement are cumulative and not exclusive of
any rights or remedy which the Agent, the Banks or any of them, would otherwise
have.
Article 18 - Representations and Warranties
-------------------------------------------
18.1 The Borrower represents and warrants that the following statements are
true and correct as of the date hereof and as of each of the Advance
Dates:
(a) the Borrower is and each of the Subsidiaries is a private company
with limited liability ("besloten vennootschap met beperkte
aansprakelijkheid") validly incorporated and existing under the law
of The Netherlands with the articles of association as set forth in
Exhibit 11, except to the extent that such articles of association
have been expanded or amended with the prior written consent of the
Agent in accordance with article 20.9;
(b) the Borrower, A2000, and any of the shareholders of A2000 and the
companies of the group to which these respective shareholders belong
(such shareholders and companies hereafter referred to as the "Other
Parties") have the corporate power to enter into this Agreement, the
other Finance Agreements and the Project Agreements (to the extent
it is a party thereto) and to perform their respective obligations
thereunder;
(c) all licenses, permits, approvals, registrations and exemptions, and
the exclusive contractual rights to use the licenses and permits
held by the respective Municipalities, necessary as from January 1,
1996 for the construction and maintenance of the Project and the
System, the continued operation of the System and the providing of
telecommunications services via the System in accordance with and as
contemplated in article 20.4, to the extent currently required by
and available under law, have been obtained or made or are held by
the Borrower, it being understood the Borrower does not have the
Infrastructure Licenses;
(d) the Borrower has obtained licenses or the exclusive right to usea
such licenses under article 21 and/or article 23 of the Act of
Telecommunications ("Wet op de Telecommunicatievoorzieningen") for
all significant portions of each of the Municipalities which are of
material importance to the Borrower to enable it to operate the
System and to provide telecommunication services in the
Municipalities and to the best knowledge of the Borrower, after due
inquiry, the application under article 21 of the Act on the
Telecommunications by third parties
-17-
other than Sites B.V. relating to areas of any of the Municipalities
do not relate to any areas which are of material importance to the
Borrower and its ability to duly and punctually perform its
obligations under this Agreement;
(e) notwithstanding the text of article 4 paragraph 2 of the CAI
Agreements, the Borrower has permission from the relevant
Municipalities to extend and expand the existing telecommunications
infrastructure;
(f) the execution and delivery by the Borrower of this Agreement and the
execution and delivery by the Borrower, A2000 and the Other Parties
- to the extent it is party thereto - of the other Finance Documents
and the Project Agreements do not materially violate, or result in a
material violation of, or materially conflict with, any agreement to
which the Borrower, A2000 or any of the Other Parties is a party, or
any obligation of the Borrower, A2000 or any of the Other Parties
vis-a-vis any supranational, national, provincial, regional or local
governmental authority;
(g) no litigation or restriction, against or involving, the Borrower or
any Subsidiary is pending or, to the best of the Borrower's
knowledge, threatened which has or may have the result that the
performance (i) by the Borrower of any of its obligations under this
Agreement, the other Finance Documents or the Project Agreements or
(ii) by any of its Subsidiaries of its obligations under article 27,
the other Finance Documents or the Project Agreements, is adversely
affected;
(h) the factual information that has been provided by Philips
Electronics N.V., United International Holdings, Inc., US West, Inc.
and others to the Agent and as set forth in the Information
Documents was true and accurate in any and all material respects as
per the respective dates of such Information Documents and the Agent
has been provided with any material information deviating from, or
updating, the information provided in the Information Documents;
(i) the Consortium Members are the holders, directly or indirectly, of
Control over the Borrower, subject to the priority shares in the
Borrower issued to MAA;
(j) the Borrower is the direct holder of 100% of the outstanding shares
in TV a la Carte B.V.;
(k) the Borrower and the Subsidiaries do not have any pension
obligations vis-a-vis any of its employees, unless fully funded or
fully provided for;
(l) the Borrower has no financial obligations to any of the
Municipalities by virtue of any loan or facility agreement or
arrangement with any of the Municipalities and no such loan or
facility agreement or arrangement with any of the Municipalities
exists.
18.2 Each breach of any representation and warranty shall be considered to be a
breach ("toerekenbare tekortkoming van") by the Borrower under this
Agreement.
Article 19 - Financial and Technical Information; Inspection
------------------------------------------------------------
19.1 The Borrower agrees and shall ensure that:
(i) prior to each December 1 of any year during the term of this
Agreement an annual budget is prepared by the Borrower substantially
in the form of Exhibit 12, including (revised) Base Case Projections
substantially in the form of Exhibit 6 and, without limitation, all
projected income and expenses (including, in
-18-
particular and specified as such, the Capital Expenditures)
forecast to be received or incurred in the immediately succeeding
financial year of the Borrower;
(ii) such annual budget is delivered to the Agent by January 1 (save
that the annual budget corresponding to the financial year during
which this Agreement is entered into shall be the Base Case
Projections Proforma attached hereto as Exhibit 6);
(iii) the Borrower and the Agent shall discuss such annual budget prior
to the succeeding January 31;
(iv) the annual budget shall then be determined by the Borrower before
February 15 of the next following year and a copy thereof shall be
sent to the Agent before the following March 1. The budget so
submitted to the Agent shall be the Budget as such term is used in
this Agreement.
19.2.1 The Borrower shall furnish the Agent with (i) the consolidated audited
annual accounts, audited by a recognized firm of independent auditors,
of each of A2000 the Borrower and (non-consolidated) each of tis
Subsidiaries within 120 days following the expiry of the financial year
of each of such entities, respectively, (ii) semi-annual unaudited
financial statements of each of such entities with 60 days following the
expiry of the second financial quarter of each of such entities,
respectively, (iii) to the extent not otherwise required under other
provisions of this Agreement and only upon request by the Agent not more
than once per six months, all written information, documents, plans and
reports which the Borrower shall furnish or shall have furnished to its
supervisory board and its general meeting of shareholders as
contemplated under clause 8 of the Shareholders Agreement and (iv) not
more than once per year, but at any time upon the occurrence of an Event
of Default, such other operational, financial and technical information
as the Agent may reasonably require (which may include a certification
by the Borrower that it has duly observed all obligations of this
Agreement).
19.2.2 The Borrower shall ensure that each set of annual accounts/financial
statements of the Borrower and each of its Subsidiaries delivered
pursuant to Article 19.2.1 shall consist of a balance sheet, profit and
loss account and a cash flow statement and such other accounts and
information as the Agent may reasonably require, shall be prepared in
accordance with accounting principles generally accepted in The
Netherlands and (except as disclosed in the notes thereto) consistently
applied.
19.2.3 The Borrower shall ensure that each set of annual accounts/financial
statements relating to the Borrower and its Subsidiaries as referred to
above in this article 19 shall be certified by a managing director of
the Borrower as having been prepared in good faith and with reasonable
care in giving an accurate reflection of the relevant company's
financial condition as at the end of the period to which those financial
statements relate and to the results of its operation during such
period.
19.3 The Borrower shall provide the Agent with all information, oral or
written, provided to MAA, (a) in its capacity of shareholder of the
Borrower and (b) pursuant to the MAA CAI Agreement.
19.4 The Borrower shall, following the occurrence of an Event of Default,
permit the representatives of the Agent and the Banks, at the expense of
the Agent or the Banks,
-19-
as the case may be, to visit and inspect the premises and offices of the
Borrower, the Project and the System and to make photocopies and
extracts of all books of account, records, reports and other papers of
the Borrower and to discuss its affairs, finances and accounts with
managing directors and employees of the Borrower and its independent
public accountants, all at reasonable times and as often as may be
reasonably requested.
19.5 The Borrower agrees with the Agent that (i) as per each January 1
(starting 1997) and July 1 (starting 1997), the Debt Equity Ratio as per
such date, and (ii) as per each January 1 (starting 2000) and July 1
(starting 2000) the Debt Service Coverage Ratio for the twelve months
immediately preceding such date, will be determined, in consultation
with the Agent, as soon as possible after the relevant July 1 and
January 1 and in any case within 60 days from the relevant January 1 and
July 1, respectively.
Article 20 - Further obligations of the Borrower
------------------------------------------------
20.1 The Borrower shall have, as long as any sum is due under this Agreement
by the Borrower to the Agent, the Banks or any of them, the obligations
as set forth in the following paragraphs of this article 20, without
prejudice to any of the other provisions of this Agreement.
20.2 The Borrower shall obtain the prior written approval of the Agent (which
shall not be unreasonably withheld), in any given year, before incurring
any Capital Expenditures, or assuming or entering into obligations to
incur Capital Expenditures, to the extent this would result in an excess
of NLG 15,000,000 or more of the amount of Capital Expenditures as set
forth in the Budget for the relevant year.
20.3.1 The Borrower shall at all times maintain adequate insurance to the
satisfaction of Agent (which shall include but not be limited to
property damage, business interruption and third party liability
insurances with respect to its business, assets and personnel (the
"Insurances")) and will not do anything or omit to take any action which
could render the Insurances void or voidable.
20.3.2 The Borrower shall cause the insurers under the Insurances to send to
the Agent photocopies of all relevant notices to be sent to the Borrower
thereunder and the Borrower shall cause the Agent to be the first loss
payee under the Insurances, provided that any insurance proceeds
received by the Agent shall be paid and directed to the Revenue Account.
20.3.3 The Borrower shall provide the Agent at all times with information
reasonably necessary to enable the Agent to ascertain whether the
Insurances are adequately maintained and whether the Project is
adequately and appropriately insured with first class insurance
companies.
20.3.4 If the Borrower is in default with respect to the payment of any premium
to be paid under the Insurances, the Banks have the right, subject to
prior notification to the Borrower, to pay such premiums for the account
of the Borrower and the Borrower shall, upon written notification
thereof, promptly reimburse the Banks for such premium amounts paid by
them.
-20-
20.3.5 If at any time the Insurances are not maintained as contemplated in
article 20.3.1 of this Agreement, then the Banks have the right, subject
to prior notification to the Borrower, to obtain such Insurances for the
account of the Borrower and article 20.3.4 shall similarly apply.
20.4 The Borrower shall construct and maintain the Project and the System and
exploit the System (including the providing of telecommunications
services via the System) in accordance with the respective terms of
Project Agreements and in particular as contemplated in and in
accordance with article 2 of the CAI Agreements (subject to the
conditions contained in such agreements), with a view to conduct a
commercially viable business.
20.5 The Borrower (i) shall ensure that all rights vis-a-vis MAA and any of
the other Municipalities, licenses, permits, approvals and exemptions
necessary for the construction and maintenance of the Project and the
System and the exploitation of the System (including the providing of
telecommunications services over the System) in accordance with and as
contemplated in article 20.4 are maintained in full force and effect in
all material respects, and (ii) shall further comply, and shall cause
each of its Subsidiaries to comply, in all material respects with any
provision of law, and any rules and regulations thereunder, applicable
to or relating to the Project and the System.
20.6 To the extent that any of the rights vis-a-vis MAA or any of the
Municipalities, and any licenses, permits, approvals and exemptions as
referred to in article 7.1 under (f), article 18.1 under (c) and article
20.5, or any of the conditions and obligations thereunder, need to be
amended, extended or renewed, or if new rights, licenses, permits,
approvals or exemptions have to be applied for, necessary for the
construction and maintenance of the Project and the System, and the
exploitation of the System (including the providing of
telecommunications services over the System), in accordance with and as
contemplated in this Agreement, the other Finance Documents and the
Project Agreements, the Borrower shall use its reasonable efforts and
not omit to do anything reasonably necessary, to obtain such new rights,
licenses, permits, approvals and exemptions, it being understood that
the Borrower shall in any case apply for Infrastructure Licenses
available for the Borrower as soon as possible.
20.7 The Borrower shall maintain, and shall cause each of the Subsidiaries to
maintain, its books and records in accordance with the law of The
Netherlands and its annual accounts shall be in accordance with
generally accepted accounting principles of The Netherlands consistently
applied.
20.8 The Borrower shall not, and shall cause any of the Subsidiaries not to,
enter into or guarantee any obligation, or assume any liability, other
than obligations or liabilities under this Agreement, the Finance
Documents and the Project Agreements, and other than in the normal
course of business, except with the prior written consent of the Agent.
This consent shall not be unreasonably withheld and shall be granted if
the entering into of the obligations or the assumption of the
liabilities by the Borrower or the Subsidiary does not have or is not
likely to have, in the reasonable opinion of the Agent, the result that
the performance (i) by the Borrower of any of its obligations under this
Agreement or under any of the Finance Documents and the Project
-21-
Agreements, or (ii) by any of its Subsidiaries of its obligations under
article 27, the other Finance Documents or the Project Agreements, is
materially adversely affected.
20.9 The Borrower shall maintain, and cause each Subsidiary to maintain, all
Project Agreements in full force and effect, and shall not, and shall
cause each Subsidiary not to, amend, waive, suspend, or terminate any of
(its rights and obligations under), the Project Agreements to which it is
a party, without the prior written consent of the Agent. This consent
shall not be unreasonably withheld and shall be granted by the Agent if
the amendment, the waiver, the suspension, or the termination does not
have or is not likely to have, in the reasonable opinion of the Agent, the
result that the performance (i) by the Borrower of its obligations under
this Agreement or any of the Finance Documents and Project Agreements, or
(ii) by any of its Subsidiaries of its obligations under article 27, the
other Finance Documents or the Project Agreements, is materially adversely
affected.
20.10 The Borrower shall not transfer, and shall cause any of its Subsidiaries
not to transfer, any of its rights under this Agreement, and/or any of its
rights under the Finance Documents and the Project Agreements to which it
is a party, to a third party, without the prior written consent of the
Agent. To such extent the rights of the Borrower under this Agreement,
the Finance Documents and the Project Agreements, are not transferable,
unless the prior written consent referred to has been granted by the
Agent.
20.11 Other than in the ordinary course of business consistent with the business
plan(s) submitted to the Agent from time to time hereunder, the Borrower
shall not sell or transfer, and shall cause each of its Subsidiaries not
to sell or transfer, (i) any single asset ("goed") with a value in excess
of NLG 500,000 or (ii) assets with an aggregate value in excess of NLG
5,000,000, to any third party, without the prior written consent of the
Agent, which consent shall not be unreasonably withheld, except as
otherwise permitted by the Project Agreements.
20.12 The Borrower shall not engage, and shall cause any of its Subsidiaries not
to engage, in any other business than the construction and maintenance of
the Project and the System, and the operation of the System (including the
providing of telecommunications services via the System), except with the
prior written consent of the Agent which shall not be unreasonably
withheld.
20.13 The Borrower shall notify the Agent promptly in writing of:
(i) the occurrence of any Event of Default or any Event of Loss and of
any event of which the Borrower is aware and which would cause an
Event of Default or an Event of Loss but for the passage of time or
the giving of notice;
(ii) the commencement of any litigation or any governmental action,
relating to or involving the Borrower and/or a Subsidiary and
pursuant to which an amount or amounts are claimed or threatened to
be claimed in excess of NLG 5,000,000 in the aggregate;
(iii) any casualty, damage to or loss of or in relation to the Project
and the System, whether insured or not insured, in excess of NLG
5,000,000 in the aggregate;
(iv) the suspension, cancellation or termination of any of the
Insurances;
(v) the initiation of any condemnation proceedings involving the System.
-22-
20.14 The Borrower shall give prior written notice to the Agent of any filing by
it for moratorium of payments ("surseance van betaling") or for
bankruptcy.
20.15 The Borrower shall not change, and shall cause any of its Subsidiaries not
to change, its legal form (which would include, for the avoidance of
doubt, the change into a limited or general partnership agreement with the
Borrower or such Subsidiary, acting as a partner), except with the consent
of the Agent which shall not be unreasonably withheld.
20.16 the Borrower shall pay, and shall cause any of its Subsidiaries to pay,
when due and payable all applicable taxes, assessments, levies and (other)
governmental charges of any kind that may be levied or assessed against
the Borrower and the Subsidiaries or with respect to the Project and the
System, in accordance with law, except to the extent such taxes,
assessments, levies and (other) governmental charges are contested in good
faith and the nonpayment of which will not have the result, in the
reasonable opinion of the Agent, or is not likely to have the result that
the Borrower or any of the Subsidiaries cannot duly and punctually perform
its obligations under this Agreement.
20.17 Without any prejudice to the other provisions of this Agreement, the
Borrower has the obligation to ensure, to the fullest extent possible,
that at any time during the term of this Agreement:
- the Borrower, and each of the Subsidiaries, is a private company with
limited liability validly existing under the law of The Netherlands;
- the Consortium Members are the holders, directly or indirectly, of
Control over the Borrower, subject to the priority share in the
Borrower issued to MAA;
- any claim or right for borrowed money (including finance costs similar
to Finance Costs) against the Borrower or any of its Subsidiaries, of
A2000 or of any of the Other Parties shall be subordinated to any claim
or right for Finance Costs under this Agreement, except that the
foregoing shall not apply to claims or rights pledged or to be pledged
by A2000 to ABN AMRO, the Agent, the Banks, or any of them.
20.18 The Borrower shall not make, and shall cause any of its Subsidiaries not
to make, any Restricted Payments if (i) the Debt Equity Ratio is greater
than 1.75:1 at the Borrower level (with the understanding that Equity, for
the purpose of this article 20.18 only, shall include Subordinated Debt)
or (ii) the Debt Service Coverage Ratio is less than 1.5.
20.19 In the period ending December 31, 1999, the Borrower shall not make, and
shall cause any of its Subsidiaries not to make, any Restricted Payment
without the prior written consent of the Agent, which shall not be
unreasonably withheld.
20.20 The Borrower shall not take any action or omit to take any action, and
shall cause any of its Subsidiaries not to take action or omit to take
action, which is reasonably likely to have a material and adverse effect
or is likely to have the result of a material and adverse effect (upon the
lapse of time or the filing of notice or otherwise) on the Borrower's or
any of the Subsidiaries' ability to duly and punctually perform its
obligations under this Agreement.
-23-
20.21 The Borrower shall not enter, and shall cause any of its Subsidiaries
not to enter, into any agreements regarding the acquisition of another
cable television network without the prior consent of the Agent, which
shall not be unreasonably withheld.
20.22 The Borrower shall not enter into any agreements or transactions or
obligations with or towards A2000 or any Consortium Member or any
group company of any of them or any of the Other Parties, which are
not at arm's length terms or which are unduly adverse to the Borrower.
None of A2000, the Consortium Members and their group companies or any
of the Other Parties will have any exclusive or preferred rights with
respect to the provision of hardware to the Borrower or any exclusive
rights with respect to the provision of programming or other
audiovisual services to the cable networks' subscribers. The Borrower
will not enter into any preferred supplier arrangements regarding
programming or other audiovisual services, unless such arrangements
provide that preference will be granted only if the product or service
offered by the other party is at least equal to the corresponding
offering from the competition, with respect to quality and price.
20.23.1 The Borrower shall use its best efforts to ensure that the following
shall have been accomplished as soon as reasonably possible, without
prejudice to article 21:
(a) the creation by notarial deed of a "building right" ("recht van
opstal") or "qualitative right" ("kwalitatieve verplichting") by
Stichting Montessori Onderwijs Amsterdam in favour of the
Borrower in accordance with article 6.3 of the Amsterdam Share
Purchase Agreement;
(b) the transfer of intercommunal connections and the trunk network
("koppelnet") regarding Amsterdam by PTT Telecom B.V. to the
Borrower and the application for corresponding Article 23
Telecommunications Act licence(s) in accordance with Clause 6.4
of the Amsterdam Share Purchase Agreement;
(c) the creation of a long lease and building right by EZW in favour
of the Borrower regarding the building located at the Xxxxxxx van
Goghweg in Zaandam and the signal-receiving equipment and cables
located therein in accordance with Clause 6.2 of the Zaanstad
Share Purchase Agreement;
(d) the transfer of intercommunal connections and the trunk network
("koppelnet") regarding Zaanstad by PTT Telecom B.V. to the
Borrower and the application for corresponding Article 23
Telecommunications Act licence(s) in accordance with Clause 7.3
of the Zaanstad Share Purchase Agreement;
(e) the transfer of intercommunal connections regarding Landsmeer by
PTT Telecom B.V. to the Borrower and the application for
corresponding Article 23 Telecommunications Act licence(s) in
accordance with Clause 7.2 of the Landsmeer Share Purchase
Agreement;
(f) the transfer of intercommunal connections regarding Purmerend by
PTT Telecom B.V. through Purmerend to the Borrower and the
application for corresponding Article 23 Telecommunications Act
licence(s) in accordance with Clause 8.4 of the Purmerend Asset
Purchase Agreement;
(g) the transfer of signal transfer equipment ("signaalovergavepunt")
located near the Tamarindestraat in Duivendrecht and
intercommunal connections regarding Ouder-Amstel by PTT Telecom
B.V. through Ouder-Amstel to the Borrower and
-24-
the application for Article 23 Telecommunications Act licence(s)
in accordance with Clauses 8.4 and 8.5 of the Ouder-Amstel Asset
Purchase Agreement;
(h) the execution of a notarial deed to create a building right
("opstalrecht") in favour of the Borrower for the constructions
and signal-receiving equipment on top of the sports hall at
Zwanenbloem 12 in Purmerend and to create a long lease
("erfpachtrecht") in favour of the Borrower for the building
containing the signal-receiving equipment and the land on which
it is built next to the above mentioned sports hall and a
building right ("opstalrecht") in favour of the Borrower with
regard to the equipment in said building in accordance with
Clauses 5.2(iii) (d) and (e) and (f) of the Purmerend Asset
Purchase Agreement;
(i) obtaining the agreement of the counterparties to the assignment
of the Assigned Contracts and the permits of
(a) Purmerend; and
(b) Ouder-Amstel
in accordance with Clauses 8.2 and 8.3 of both
Asset Purchase Agreements; and
(j) obtaining the consents and approvals of each of the
Municipalities, to the extent necessary, for (i) the pledge by
A2000 of its shares in the Borrower together with the
(conditional) transfer of voting rights substantially in the form
of Exhibit 19, (ii) the pledge and mortgage by the Borrower of
the CAI (as defined in the CAI Agreements) and (iii) the pledge
by A2000 of its rights under the Purchase Agreements.
20.23.2 If any of the foregoing as set forth under (a) up to and including (i)
shall not have been accomplished on January 1, 1997, or if any of the
foregoing as set forth under (j) shall not have been accomplished on
May 1, 1996, (i) the Borrower shall notify the Agent thereof without
delay and (ii) the Borrower and the Agent shall enter into
consultations with a view to adequately deal with the then existing
situation, without prejudice to article 21.
20.24 The Borrower shall cause each of its Subsidiaries to become jointly
and severally liable for any and all obligations and liabilities of
the Borrower as referred to in article 27 by causing such Subsidiary
to co-sign this Agreement as contemplated at the end hereof.
20.25 The Borrower shall not acquire or cancel, or agree to acquire or
cancel, the priority share in its share capital held by MAA, except
with the prior written consent of the Agent.
Article 21 - Security Rights
----------------------------
21.1 The Borrower is obliged for the purpose of securing any and all
financial obligation(s), whether actual or contingent, whether present
or future, whether conditional or unconditional, which the Borrower
has or may have to the Agent, the Banks or any of them, under and in
connection with this Agreement, to create, and where applicable to
cause to create, the following security rights to the satisfaction of
the Agent, to the extent legally possible:
(a) a first ranking mortgage in favour of ABN AMRO, the Agent and
the Banks, substantially in the form of the Deed of Mortgage;
-25-
(b) a first ranking pledge in favour of ABN AMRO, the Agent and the
Banks as pledgee on all present and future rights and claims of the
Borrower and any of its Subsidiaries (including all present and
future rights of the Borrower under the Insurances) substantially in
the form of the Deeds of Pledge of Accounts;
(c) a first ranking pledge in favour of the Banks as pledgee on all
issued and outstanding shares in the Borrower (except for the
priority share held by MAA) and in any Subsidiary substantially in
the form of the Deeds of Pledge of Shares and Related Rights;
(d) a first ranking pledge in favour of the Banks as pledgee on movable
property ("roerende zaken") of the Borrower and any of its
Subsidiaries substantially in the form of the Deeds of Pledge of
Movable Assets;
(e) first ranking pledges or mortgages, substantially in the form of the
pledges and mortgages referred to above, on any good ("goed") with
respect to which the Borrower, or any of its Subsidiaries, nor or in
the future, has the right to dispose thereof ("beschikkingsbevoegd
is") and on which no security right has been created as contemplated
above under (a) up to and including (d) of this article 21, to the
extent that such good, or goods, has, or have in the aggregate, an
economic value exceeding NLG 500,000.
21.2 The Borrower shall notify the Agent of the acquisition by it or by any of
its Subsidiaries of any "good" or "goods" which have to be pledged or
mortgaged in accordance with article 21.1.
21.3 To the extent the creation of a security right as referred to above in
article 21.1 would not be possible under the law of The Netherlands or
other applicable law, if any, the Borrower shall use its reasonable
efforts to make the creation of such security right possible.
Article 22 - Negative Pledge
----------------------------
The Borrower shall not create, and shall cause each of its Subsidiaries not to
create, without the prior written consent of the Agent, which consent shall not
be unreasonably withheld, and except as otherwise provided in and contemplated
under this Agreement, any security right on or security interest in any assets
("goederen") with respect to which the Borrower or any such Subsidiary has the
right to dispose ("beschikkingsbevoegd is"), with the exception of (i) liens by
operation of law, (ii) retention of title by a seller of goods in the ordinary
course of business, and (iii) except as provided in article 19 of the CAI
Agreements.
Article 23 - Events of Default
------------------------------
23.1 The occurrence of any of the following events and/or the existence of any
of the following circumstances shall constitute an Event of Default for
the purpose of this Agreement:
a. the Borrower fails to make payment of any principal or any interest
or any fee within ten Business Days after the same shall become due
and payable under this Agreement;
b. the Borrower shall breach any of the covenants set forth above in
article 20.9 and article 20.18;
-26-
c. the Borrower fails to perform any of its other material obligations
under this Agreement and such failure, if capable of being remedied
in the reasonable opinion of the Agent, shall not have been remedied
to the reasonable satisfaction of the Agent within 30 Business Days
after notification in writing of such opinion by the Agent to the
Borrower;
d. the Borrower breaches any material obligation vis-a-vis any third
party which has not been remedied within 30 Business Days which has
the result or is likely to have the result that the performance by
the Borrower, or of any of its Subsidiaries, of any of its
obligations under this Agreement or under any of the Project
Agreements, is in the reasonable opinion of the Agent materially
adversely affected;
e. any of the Finance Documents or the Project Agreements has been
amended, waived, suspended, or terminated in violation of the
provisions of this Agreement with the result that the performance by
the Borrower, or of any of its Subsidiaries, of any of its
obligations under this Agreement or under any of the Project
Agreements, is in the reasonable opinion of the Agent materially
adversely affected;
f. any of the representations and warranties was incorrect or
incomplete when made or at any Advance Date in any material respect;
g. (i) a default with respect to payment of any amount due and payable
under any Indebtedness (other than under this Agreement) in the
aggregate of NLG 2,500,000 (which has not been waived or cured), or
(ii) a default which entitles parties to accelerate the maturity of
such Indebtedness has occurred and is continuing, unless, in each
case, contested in good faith by appropriate legal action;
h. the Borrower or any of the Subsidiaries has filed for a "moratorium
of payments" ("surseance van betaling"), has ceased to pay its debts
generally as they become due, has filed for bankruptcy or has been
declared bankrupt, or has filed for, or is subject to, any
proceedings comparable with "moratorium of payments" or bankruptcy;
i. a petition for bankruptcy shall have been filed by a thirty party
against the Borrower or a Subsidiary and such petition has not been
lifted within 30 Business Days;
j. any of the assets of the Borrower or any Subsidiary has been
attached by a "conservatoir beslag" or an "executoriaal beslag" or
similar attachment and such attachment has not been lifted within 30
Business Days;
k. a change in law which materially adversely affects or is likely to
materially adversely affect the performance of the Borrower of its
obligations under this Agreement or the development of the Project
or with respect to the System and the resulting situation shall not
have been remedied to the reasonable satisfaction of the Agent
within 120 days after such change in law;
l. the Debt Service Coverage Ratio as per any of the dates referred to
in article 19.5 under (ii) shall be less than 1.3:1;
m. the Debt Equity Ratio as per any of the dates referred to in article
19.5 under (i) shall be 3:1 or higher;
n. the Consortium Members jointly are not the holders of Control in the
Borrower;
o. the loss, withdrawal, termination, cancellation, revocation,
invalidation, expansion or change of any right, licence, permit,
approval or exemption, as
-27-
referred to in article 7.1 under (e), article 18.1 under (c),
article 20.5 and article 20.6, or any change or expansion of any of
the conditions of any them, or the failure of the Borrower to apply
as soon as possible for, or obtain, any material license, permit,
approval or exemption (which shall in any case include any of the
Infrastructure Licenses), which has or is likely to have, in the
reasonable opinion of the Agent, a material adverse effect on the
Project, the System or on the Borrower or any of the Subsidiaries,
or which has or is likely to have, in the reasonable opinion of the
Agent, the result that the Borrower is unable to perform when due
its obligations under this Agreement and if such loss, withdrawal,
termination, cancellation, revocation, invalidation, expansion,
change or failure, if capable of being remedied, shall not have been
remedied to the reasonable satisfaction of the Agent within 30
Business Days after the occurrence of such an event;
p. an event, occurrence or condition which has the result or is likely
to have the result, in the reasonable opinion of the Agent of a
material adverse effect (solely upon the lapse of time, the filing
of notice or otherwise) on the ability of the Borrower to perform
its obligation under this Agreement or under the Project Agreements,
to the extent that such event, occurrence or condition shall, upon
reasonable consultation with the Agent, not have been remedied to
the reasonable satisfaction of the Agent within 120 days after such
event, which period may upon request by the Borrower be extended,
subject to prior written consent of ABN AMRO which shall not be
unreasonably withheld;
q. litigation is pending against or involving the Borrower or any of
the Subsidiaries which has the result, or is likely to have the
result, in the reasonable opinion of the Agent, that the performance
by the Borrower of any of its obligations under this Agreement or
the Project Agreements or under any of the Finance Documents or its
ability to accomplish the Project is materially adversely affected;
r. the occurrence of an Event of Default as defined in the A2000 Bank
Facility Agreement.
23.2 If an event of Default has occurred, the Agent has the right to send a
notice (the "Notice of Acceleration") to the Borrower, declaring any
unpaid principal of any Advances, any unpaid accrued interest and fees and
any other amount payable by the Borrower under this Agreement immediately
due and payable and thereupon (i) any unpaid principal of any Advance, any
unpaid accrued interest and fees and any other amount due and payable by
the Borrower under this Agreement, shall become immediately due and
payable and (ii) any Available Commitment shall be immediately terminated,
all the foregoing by operation of law ("van rechtswege") and with the
intention and agreement that article 83 paragraph a of Book 6 of the Civil
Code of The Netherlands shall be applicable.
Article 24 - Penalty Interest
-----------------------------
24.1 If (i) the Borrower fails to duly and punctually pay any amount due and
payable under this Agreement, whether principal, interest, fee or another
amount, to ABN AMRO, the Agent, the Banks or any of them or (ii) an Event
of Default has occurred, the Borrower shall become obliged - without any
obligation of the Agent, the Banks or any of them
-28-
to request payment of the amount due and payable ("zonder
ingebrekestelling") and with the intention and agreement that article 83
paragraph a of Book 6 of the Civil Code of The Netherlands shall be
applicable - to pay interest over any amount then due and payable, and
over any balance then owing to ABN AMRO, the Agent, the Banks or any of
them, equal to the applicable interest rate plus a penalty of 1.5% (one
and one half per cent.) per annum or, if an interest rate is not
applicable, equal to 6 months AIBOR plus Margin plus a penalty of 1.5%
(one and one half per cent.) per annum, calculated as from the date that
such amount has become due and payable (such date included) up to and
including the date of actual payment of such amount.
24.2 Article 92 of Book 6 of the Civil Code of The Netherlands shall not be
applicable.
Article 25 - Syndication and Agent
----------------------------------
25.1 As long as, other than the Borrower, ABN AMRO is the sole other party to
this Agreement, any reference to the Agent, the Banks, the other Banks, or
any of them, shall be a reference to ABN AMRO and this Agreement shall be
construed accordingly.
25.2 ABN AMRO shall have the right to request other lenders to become a lending
party to this Agreement with the effect that each such other lender shall
participate for a certain percentage in the Term Loan Facility and/or the
Construction Loan Facility and the Advances (to be) made thereunder,
provided that:
(i) each such other lender shall be approved by the Borrower, such
approval not to be unreasonably withheld;
(ii) ABN AMRO shall remain as Bank a participant in the principal amount
outstanding of each Advance or Overdraft made or to be made under
(a) this Agreement under the Bank Facility and (b) under the A2000
Bank Facility Agreement, for at least 30% of the aggregate of such
Advances and Overdrafts.
25.3 Such other lender shall become a party to this Agreement by execution and
delivery by such party and the Banks of an assignment agreement
("contractsoverneming" or otherwise) specifying the percentage for which
such lender shall participate in the Advances made or to be made under
this Agreement, and written notification thereof to the Borrower,
whereupon such lender shall be a party to this Agreement, with rights and
obligations vis-a-vis the other parties of this Agreement as set forth in
such assignment agreement and, with respect to any Bank as referred to in
this Agreement, in this Agreement where applicable and relevant in
proportion to the percentage of its participation.
25.4 Each of the banks shall participate in each Advance (to be) made under
this Agreement under the Term Loan Facility and the Construction Loan
Facility in the proportion of its percentage of participation and each
(re) payment by any Borrower of principal, interest, fee and of any other
amount due by such Borrower to the Banks under this Agreement shall be in
satisfaction to the obligations of Banks in proportion to such
participations, unless clearly stated otherwise and without prejudice to
article 8.3.
-29-
25.5 Upon any such lender having become a Bank party to this Agreement, any
reference to the Agent, the Banks, and any of them, shall be a reference
to the Agent, the Banks, and any of them.
25.6 If a future lender or future sub-participant of ABN AMRO requests that
non-material changes be made to this Agreement or to any of the other
Finance Documents, as a condition to be fulfilled upon becoming a Bank-
party to this Agreement (and to another Finance Document, if applicable),
or becoming a sub-participant of ABN AMRO, the Borrower shall, at no
expense to the Borrower except as otherwise agreed, fully cooperate in
causing such changes to be made, with a view to facilitate syndication
and/or subparticipations.
25.7 By becoming a Bank party to this Agreement, each of such Banks irrevocably
appoints the Agent to act as its agent under and in connection with this
Agreement and the Finance Documents and authorizes and directs the agent
to take such action as agent in the name of each of the Banks as specified
in this Agreement, together with all such actions and powers as are
reasonably incidental thereto.
25.8 The Agent shall without delay forward any notice received from the
Borrower under this Agreement in its capacity as Agent to each of the
other Banks and the Agent shall act as directed by and in accordance with
the resolutions adopted by the Majority of Banks.
25.9 As between the Agent and the Banks, the Agent may consult with any of the
Independent Consultants and/or other experts or counsel selected by it and
shall not be liable for any action taken or omitted to be taken by it in
good faith in accordance with the advice of such Independent Expert, or
other expert or counsel, or otherwise taken in good faith in a manner not
inconsistent with such advice.
25.10 As between the Agent and the Banks, the Agent excludes any liability for
any action taken or not taken by the Agent under or in connection with
this Agreement (i) with the consent or at the request of the Majority of
Banks or (ii) in the absence of gross negligence of wilfulness conduct of
the Agent. The Banks shall, ratably in accordance with their respective
participations, indemnify the Agent against any costs, expense (including
counsel fees and disbursements), claim, demand, action, loss or liability
(except such as a result from the Agent's gross negligence or wilful
misconduct) that the Agent may suffer or incur under or in connection with
this Agreement or any action taken or omitted by the Agent thereunder.
25.11 The Agent may resign at any time by given written notice thereof to the
other Banks and to the Borrower. Upon any such resignation, the Majority
of Banks with the consent of the Borrower, which shall not be unreasonably
withheld (i) shall appoint a successor Agent within 30 days of such
resignation and (ii) for so long as such successor Agent has not accepted
its appointment, act as Agent for the purpose of this Agreement. The
resigning Agent or the Majority of Banks, as the case may be, shall cause
such successor Agent to succeed to and become vested with all the rights
and obligations of the resigning Agent and the Banks shall consent to such
successor Agent to so succeed to and become vested with all the rights and
obligations of the resigning
-30-
Agent. Upon such succession, the resigning Agent shall have no rights and
obligations as Agent hereunder.
Article 26 - No joint liability of Banks; Damages
-------------------------------------------------
26.1 The rights and obligations of each of the Banks under this Agreement are
several and not jointly and, accordingly, no Bank shall be responsible for
the obligations and liabilities under this Agreement of any other Bank.
26.2 The Borrower undertakes to pay each of the Agent and the Banks any damages
under the law of The Netherlands, together with any VAT thereon, which any
of them may sustain, suffer or incur as a consequence of the occurrence of
any Event of Default or any failure by the Borrower to perform any of its
obligations under this Agreement.
Article 27 - Joint and Several Liabilities of the Borrower and each of its
--------------------------------------------------------------------------
Subsidiaries
------------
The Borrower and each of the Subsidiaries are jointly and severally liable
("hoofdelijk aansprakelijk") for any and all obligations and liabilities which
the Borrower has or may have against the Agent or any of the Banks under or in
connection with this Agreement or any other Finance Document.
Article 28 - No recourse
------------------------
The rights and obligations of this Agreement are rights and obligations between
the parties thereto only and ABN AMRO, the Agent, the Banks or any of them shall
under this Agreement have recourse only to the Borrower and, by virtue of
article 27, each of the Subsidiaries, in accordance with the law of The
Netherlands, and not to any other natural or legal person, including but not
limited to any shareholder, director or employee of the Borrower, subject to and
without prejudice to the Deed of Pledge of Shares.
Article 29 - Irrevocable Power of Attorney
------------------------------------------
The Borrower grants irrevocable power of attorney to the Agent to perform the
Borrower's payment obligations to the Agent, the Banks, or any of them, under
this Agreement and in accordance with this Agreement, subject to the occurrence
of an Event of Default, which power of attorney shall include but not be limited
to the authority to make any payment to the Agent, the Banks or any of them by
debiting any of the Designated Bank Accounts in fulfilling any of such payment
obligations.
Article 30 - General Conditions
-------------------------------
The General Conditions of ABN AMRO as filed on December 22, 1995 with the court
register ("xxxxxxx") of the district court of Amsterdam shall not be applicable
to the relation between each of ABN AMRO, the Agent and the Banks, on the one
hand, and the Borrower, on the other hand.
Article 31 - Confidentiality
----------------------------
-31-
The Borrower, the Agent and the Banks shall treat the contents of this
Agreement, of the Finance Documents and the Project Agreements with the
strictest confidentiality, unless otherwise required by the due and punctual
performance of each such party of its respective obligations under this
Agreement, the Finance Documents and the Project Agreements.
Article 32 - Notices
--------------------
Unless otherwise specified herein, all notices, requests and other
communications to any party hereunder shall be in writing (including bankwire,
telex, telefax or similar writing), and shall be given to:
in the case of Borrower
-----------------------
Kabeltelevisie Amsterdam B.V.
Xxxxxx xx Xxxxxxxxxxx 000
0000 XX XXXXXXXXX
telefax: 020 - 6814953
attention: Chief Financial Officer
in the case of the Agent
------------------------
ABN AMRO Bank N.V.
Grootbedrijf Regio Amsterdam (AF 2511)
Herengracht 595
Xxxxxxx 00
0000 XX XXXXXXXXX
telefax: 020 - 6286100
Article 33 - Applicable Law and Jurisdiction
--------------------------------------------
33.1 This Agreement shall be governed by and construed in accordance with the
law of The Netherlands.
33.2 All disputes arising in connection with this Agreement, shall be submitted
to the exclusive jurisdiction of the court (district and appellate) in
Amsterdam and, as the case may be, The Hague (Supreme Court).
Dated: as of January 31, 1996
Signed:
Kabeltelevisie Amsterdam B.V., ABN AMRO Bank N.V., acting
represented by its managing in all capacities as referred
director to in this Agreement
----------------------------
(managing director)
-32-
For agreement with articles 11.3 and 27 only:
TV a la Carte B.V.,
represented by its managing director Kabeltelevisie Amsterdam B.V., represented
by its managing director
(managing director)
-33-
Exhibit 1
-34-
EXHIBIT 1
---------
(Article 1.1)
ABN AMRO -- ABN AMRO Bank N.V.;
Advance -- any amount which may be made available
by the banks under the Bank Facility
Agreement other than as Overdraft;
Advance Date -- the date specified in the relevant Notice of
Drawdown to be the date on which the
Advance should become available;
Agent -- ABN AMRO, or such other legal entity as may
have been substituted for ABN AMRO to act as
agent for the Banks in accordance with
article 25;
Agreement -- this Bank Facility Agreement;
AIBOR -- in relation to any Variable Rate Advance,
means:
(i) the Amsterdam Interbank Offered Rate as
fixed daily by De Nederlandsche Bank N.V.
and as appearing on the relevant page of the
Reuters screen on any Business Day or as
published the immediately following day in
Het Financieele Dagblad for the relevant
Variable Rate Interest Period, or
-35-
(ii) if the relevant rates do not appear on the
Reuters screen for the purposes of paragraph
(i) above, the rate (rounded upwards to at
most the nearest 0.01%) per the relevant
Variable Rate Interest Period determined by
the Agent to be equal to the arithmetic mean
of the rates at which each of the relevant
reference banks are offering deposits to
prime banks in the Netherlands interbank
market;
Articles of Association
of the Borrower -- the text of the articles of association of
the Borrower as most recently amended, a
photocopy of which is attached as Exhibit
11.1;
A2000 -- A2000 Holding N.V.;
A2000 Bank Facility
Agreement -- the bank facility agreement in the principal
amount of NLG 90,000,000 between A2000 as
borrower and ABN AMRO as lender,
substantially in the form (without exhibits)
of Exhibit 21;
A2000 Deed of Pledge -- a notarial deed of pledge with A2000 as
pledgor and ABN AMRO as pledgee,
substantially in the form of Exhibit 22;
Authorized Investments --- any Dutch Guilder denominated investments
within The Netherlands consisting of (i)
debt obligations of a credit institution
("krediet -
-36-
instelling") which credit institution has
(a) a minimum short term rating of A-1 or
better by Standard & Poors Corporation, P-1
or better by Xxxxx'x Investors Service,
Inc., or equivalent rating acceptable to the
Agent and (b) a long term rating of A+ or
better by Standard & Poors Corporation, A1
or better by Xxxxx'x Investors Service,
Inc., or equivalent rating acceptable to the
Agent, (ii) direct and unconditional
obligations of the State of The Netherlands
or direct and unconditional obligations
guaranteed by the State of The Netherlands,
or (iii) any other investment as agreed upon
beforehand between the Borrower and the
Agent, each such investment as referred to
under (i), (ii) and (iii) having a maturity
which is sufficiently short to allow the
making by or for the account of the Borrower
of payments and disbursements as and when
required or permitted by this Agreement, or
as agreed beforehand by the Borrower and the
Agent;
Available Cash Flow -- the available cash flow of the Borrower in
respect of any period means the net income
before taxation and depreciation and any
non-cash expenses and interest and other
financial charges minus tax paid and Capital
Costs and all non-cash income plus/minus
changes to working capital for the relevant
period;
-37-
Available Loan Commitment -- the commitment consisting of the Available
Term Loan Commitment, the Available
Construction Loan Commitment and the
Available Working Capital Commitment;
Available Construction
Loan Commitment - -- Available Construction Loan Commitment
defined as such in article 2.3.1;
Available Term Loan
Commitment -- Available Term Loan Commitment defined
as such in article 2.2.1;
Available Working
Capital Commitment -- Available Working Capital Commitment
defined as such in article 2.4.1;
Bank Facility -- the Term Loan Facility, the Construction
Loan Facility and the Working Capital
Facility;
Banks -- ABN AMRO and any other lender which may
become a party to this Agreement in
accordance with article 25;
Base Case Projections
Proforma -- the financial projections set forth in and
presented in Exhibit 5;
Billing Agreements -- any and all agreements with any party
(including but not limited to ENW Amsterdam
N.V.) regarding the amounts to be paid by
subscribers (as referred to in the
definition of Customer Agreements) for the
-38-
telecommunication connection and services
provided by the Borrower, or any of its
Subsidiaries, to such party and the on-
payment of such subscription amounts to
the Borrower, or the relevant Subsidiary;
Borrower - Kabeltelevisie Amsterdam B.V.;
Budget - the Budget of the Borrower referred to as
such in article 19;
Business Day - any day on which banks are open for
business in Amsterdam;
CAI Agreements - the agreements photocopies of which are
attached (without exhibits or other
attachments) attached as Exhibit 14
(14.1 up to and including 14.5);
Capital Costs - in respect of any period means all actual
costs of the Borrower of a capital
expenditure nature incurred in order to
maintain the Borrower's assets and
operations, but not of an operating
nature, paid by the Borrower and allowed
under the Agreement;
Capital Expenditures - means with respect to any period the
aggregate of all expenditures (whether
paid in cash or accrued as a liability) of
the Borrower excluding capitalized
interest expense during that period which
according
-39-
to applicable generally accepted
accounting principles consistently
applied, are or should be included in
"additions to property, plant and
equipment" (including Capital Leases),
minus the net value of property, plant or
equipment as to which the Borrower
receives a trade-in allowance or sell for
salvage in such period;
Capital Lease - any lease of any property (whether
immovable or movable) by the Borrower or
A2000 as lessee which in accordance with
generally accepted accounting principles
consistently applied is or should be
accounted for as a capital lease on the
balance sheet of the Borrower or A2000;
Change in Interpretation - any change in, or any new, further,
increased or different, interpretation or
application, of any law, treaty, order,
regulation, by any court, central bank, or
any tax, fiscal, or other competent
authority (whether or not having the force
of law but, if not having the force of
law, in respect of which compliance by
banks or other financial institutions of
similar nature or being engaged in a
similar business to the relevant party is
customary);
Change in Law - any change of any law, treaty, order,
regulation, directive, concession,
guideline, request or requirement (whether
or not having the force of law but, if not
having the
-40-
force of law, in respect of which
compliance by banks or other financial
institutions of a similar nature or being
engaged in a similar business to the
relevant party is customary) existing and
in force at the date hereof;
Consortium Members - US West International Holdings Inc.,
United Holdings Inc. and Philips Media
B.V.;
Construction Loan Advance(s) - Construction Loan Advance(s) defined as
such in article 2.3.1;
Construction Loan Facility - Construction Loan Facility defined as such
in article 2.1;
Construction Loan Facility
Availability Period - Construction Loan Facility Availability
Period defined as such in article 2.3.3;
Control - the power and authority which are
conferred by fulfilment of the cumulative
criteria as set forth in article 24a
paragraph 1 of Book 2 of the Dutch Civil
Code;
Customer Agreements - any and all agreements (including
applicable general conditions ("algemene
voorwaarden")) between the Borrower, or
any of its Subsidiaries, on the one hand,
and any subscriber to the
telecommunications connections and
services in the broadest sense of the
Borrower, or the relevant Subsidiary, on
the other hand;
-41-
Debt Equity Ratio - the ratio of outstanding Indebtedness
(other than Subordinated Debt) of A2000,
the Borrower and its Subsidiaries on a
consolidated basis to the sum of (i) total
consolidated stockholders' equity as it
would appear on the consolidated balance
sheet of A2000 prepared as of the date of
determination in accordance with
applicable generally accepted accounting
principles consistently applied, (ii) the
outstanding Subordinated Debt and (iii)
NLG 350,000,000, as reduced in accordance
with the Debt Equity Ratio Basis Reduction
Scheme, all based on the assumption (for
the purpose of calculation of the Debt
Equity Ratio on a consolidated A2000-KTA
basis only) that A2000 does not perform
any other activity than holding shares in
the Borrower and providing management
services to the Borrower in accordance
with the Management Agreement;
Debt Equity Ratio Basis
Reduction Scheme - the schedule set forth in Exhibit 23;
Debt Service - the aggregate of all (re)payments of
Finance Costs, and any interests and fees
accrued, in respect of the Term Loan
Facility, the Construction Loan Facility
and the Working Capital Facility under
this Agreement and in respect of the Term
Loan Facility as defined in the A2000 Bank
Facility Agreement, all
-42-
(re)payments by the Borrower and A2000 of
principal and other amounts (including
fees) in respect of all other
Indebtedness, and any interests and fees
accrued, all based on the assumption (for
the purpose of calculation of Debt Service
on a consolidated A2000-KTA basis only)
that A2000 does not perform any other
activity than holding shares in the
Borrower and providing management services
to the Borrower in accordance with the
Management Agreement;
Debt Service Coverage Ratio - the ratio of Available Cash Flow during
the twelve month period immediately
preceding the relevant date of
determination to Debt Service during the
same twelve month period;
Deed of Mortgage - a notarial deed of mortgage, with the
Borrower as mortgagor and ABN AMRO as
mortgagee, substantially in the form of
Exhibit 16;
Deed of Pledge of Accounts - a notarial agreement and deed of pledge,
with the Borrower as pledgor and ABN AMRO
as pledgee, substantially in the form of
Exhibit 17;
Deed of Pledge of Movable Assets a notarial agreement and deed of pledge,
with the Borrower as pledgor, and ABN AMRO
as pledgee, providing for pledges on
movable property and the cable network as
-43-
referred to therein, substantially in the
form of Exhibit 18;
Deed of Pledge of Shares and
Related Rights - a notarial agreement and deed of pledge,
with A2000 as pledgor and ABN AMRO as
pledgee, substantially in the form of
Exhibit 19;
Designated Bank Accounts - Revenue Account and any other account of
the Borrower and any Subsidiary with ABN
AMRO, unless notified to the contrary in
accordance with article 9.3;
Equity Distributions - (i) any distribution, dividend or other
direct or indirect payment on account of
shares of any class of stock of, or other
equity interest in, the Borrower or any
Subsidiary now or hereafter outstanding,
(ii) any redemption or other acquisition
or re-acquisition by the Borrower or a
Subsidiary thereof of any class of stock
of, or other equity interest in, the
Borrower or a Subsidiary now or hereafter
outstanding;
Event of Loss - an event as a result of which the System
is destroyed, condemned or in the opinion
of the Agent shall irreparably damaged, or
if the System is requisitioned for use by
a governmental entity for an indefinite
period or a stated period longer than one
year;
-44-
Event of Default - an Event of Default defined as such in
article 23;
Final Maturity Date - July 1, 2005;
Finance Costs - in respect of any period means the
aggregate of all payments falling due
during such period (including for the
avoidance of doubt, upon acceleration)
under the Finance Documents by the
Borrower including without limitation
payments of principal, interest, fees,
damages, penalty interest, costs
(including breakage costs) and expenses;
Finance Documents - Bank Facility Agreement, Deed of Mortgage,
Deed of Pledge of Accounts, Deed of Pledge
of Shares and Related Rights, Deed of
Pledge of Movable Assets, any (other)
document pursuant to which a security
right is created pursuant to article 21,
A2000 Bank Facility Agreement, A2000 Deed
of Pledge and any (other) document
pursuant to which a security right is
created pursuant to article 18 of the
A2000 Bank Facility Agreement;
Fixed Rate Advance - means the Fixed Rate Advance defined as
such in article 3.2;
Fixed Rate Interest
-45-
Period - a Fixed Rate Interest Period defined as
such in article 3.3;
Fixing Date - the date as per which the interest of an
Advance or Advances is fixed as specified
in a Notice of Drawdown;
Flow of Funds Sheet - the Flow of Funds Sheet as referred to in
article 7.1(i), attached as Exhibit 7.2;
Guaranteed Bridge
Facility Agreement - the guaranteed bridge facility agreement
defined as such in recital (C) of the
Agreement;
Indebtedness - (i) all indebtedness for borrowed monies
or the deferred purchase price of property
or services purchased whether or not
payable currently; (ii) all obligations
under Capital Leases; (iii) indebtedness
of the types referred to under clauses (i)
and (ii) of other persons which the person
in question has directly or indirectly
guaranteed or secured by a lien on the
assets of such person, whether or not such
person has assumed such Indebtedness;
Independent Consultants - the Insurance Consultant and the Legal
Counsel;
Information Documents - all written information that has been
provided to ABN AMRO under the
-46-
confidentiality agreement between ABN
AMRO and A2000, dated July 19, 1995;
Infrastructure Licenses - the Infrastructure Licenses defined as
such in article 7.1 under (f);
Insurance Consultant - an affiliate of ABN AMRO;
Insurances - shall mean the insurances defined as such
in article 20.3.1;
Interest Payment Date - any date on which interest is due by the
Borrower pursuant to this Agreement, or,
if not a Business Day, the immediately
succeeding Business Day pursuant to
article 12;
Joint Venture Agreement - the joint venture agreement substantially
in the form of Exhibit 24;
KTA Share Purchase
Agreement - the share purchase agreement dated June
23, 1995 among MAA, USW B.V., PMN B.V. and
A2000, as amended;
Legal Counsel - De Brauw Blackstone Westbroek, or such
other legal counsel as designated by the
Agent and notified in writing to the
Borrower by the Agent in lieu of De Brauw
Blackstone Westbroek;
-47-
Loss Proceeds - the loss proceeds defined as such in
article 13.3;
MAA - the Municipality of Amsterdam;
MAA CAI Agreement - the agreement a photocopy of which is
attached as Exhibit 14.1;
MAA Letter Agreement - the letter agreement the form of which is
attached as Exhibit 8;
Majority of Xxxxx - Xxxxx participating for at least 51% in
the Bank Facility Agreement;
Margin - 0.75%;
Management Agreement - the management agreement between A2000
and the Borrower to be dated as of January
1, 1996, known to the parties hereof;
Master Agreement - the agreement a photocopy of which is
attached (without exhibits or other
attachments) as Exhibit 13;
Municipalities - Amsterdam, Zaanstad, Landsmeer,
Purmerend, Ouder-Amstel, Weesp, Loenen,
Oostzaan, Diemen and Abcoude;
Municipality Letter
Agreements - the letter agreements photocopies of the
form of which are attached hereto as
Exhibit 15;
-48-
NLG - Dutch Guilders;
Notice of Acceleration - the notice of acceleration defined as such
in article 23.2;
Notice of Drawdown - the Notice of Drawdown defined as such in
articles 3, 4 and 5;
Operating Costs - in respect of any period means an amount
equal to the actual costs and expenses of
an operating nature which the Borrower
incurs in carrying out its business in
accordance with and as contemplated in
this Agreement, including, without
limitation:
(i) property taxes;
(ii) insurance premiums;
(iii) utility expenses;
(iv) landowner payments and royalties;
(v) operation and maintenance expenses;
(vi) management fees;
(vii) such other actual costs and
miscellaneous expenses, or which
the Agent shall reasonably agree to
be Operating Costs;
Opstalrechten - the building rights of the Borrower with
respect to the land on which certain
components of the System are located;
Other Parties - the Other Parties defined as such in
article 18.1 under (b);
-49-
Overdrafts - means the Overdrafts defined as such in
article 2.4.1;
Payment Dates - January 1, 2000, July 1, 2000, and so
forth, the last Payment Date being July 1,
2005, or, in each case, if not a Business
Day, the immediately succeeding Business
Day;
Payment Period - the period between two successive Payment
Dates;
Philips Guaranty - the guaranty of Philips Electronics N.V. a
photocopy of which is attached to the
agreement as Exhibit 3.2;
PMN B.V. - means Philips Media Networks B.V.;
Principal Repayment
Schedule - the Principal Repayment Schedule defined
as such in article 7.1 under (m) and (to
be) attached hereto as Exhibit 9;
Priority Share - the priority share issued to the MAA in
accordance with the Articles of
Association of the Borrower;
Project - the Project defined as such by reference
in recital (K);
Project
Agreements - Articles of Association of the Borrower,
A2000 and of the Subsidiaries,
Shareholders
-50-
Agreement, Purchase Agreements, Billing
Agreements, Undertaking, CAI Agreements,
Joint Venture Agreement, Management
Agreement and Customer Agreements;
Purchase Agreements - (i) Share Purchase Agreement between
MAA, USW and PMN and A2000, dated
June 23, 1995 as thereafter
amended together with all related
documentation;
(ii) Share Purchase Agreement between
the Municipality of Zaanstad and
A2000, dated June 23, 1995 as
thereafter amended;
(iii) Share Purchase Agreement
between the Municipality of
Landsmeer and A2000, dated June
23, 1995 as thereafter amended;
(iv) Asset Purchase Agreement between
the Municipality of Purmerend as
seller and A2000 as purchaser as
thereafter amended;
(v) Asset Purchase Agreement between
the Municipality of Ouder-Amstel
and A2000 as thereafter amended;
Repair Amount - the amount applied or committed in a
fiscal year of the Borrower to the repair
or replacement of loss or damage to any of
the assets of the Borrower;
-51-
Restricted
Payment - (i) any distribution, dividend or other
direct or indirect payment on account of
shares of any class of stock of, or other
equity interest in, the Borrower or any
Subsidiary now or hereafter outstanding,
(ii) any redemption or other acquisition
or re-acquisition by the Borrower or a
Subsidiary thereof of any class of stock
of, or other equity interest in, the
Borrower or a Subsidiary now or hereafter
outstanding and (iii) any payment of
principal of, premium, if any, or interest
on, or any retirement or other payment
with respect to, any Subordinated Debt;
Revenue Account - the Revenue Account defined as such in
article 9.1.1;
Roll Over Moment - with respect to a Variable Rate Interest
Period or a Fixed Rate Interest Period
such point in time as defined in articles
3 and 4;
Security Rights - the Security Rights defined and referred
to as such in article 21;
Shareholders Agreement - the agreement among MAA, A2000 and the
Borrower dated July 6, 1995, a photocopy
of which is attached (without exhibits or
other attachments) hereto as Exhibit 20;
Subordinated Debt - all claims and rights against the Borrower
which are subordinated to the unsecured
and
-52-
non preferred claims and rights against
the Borrower in form and substance
satisfactory to the Agent, excluding any
claims and rights of A2000 against the
Borrower;
Subsidiaries - TV a la Carte B.V. and any company which
may become a "dochtermaatschappij" of the
Borrower in the sense of article 24a
paragraph 1 of Book 2 of the Dutch Civil
Code;
System - the system of earth stations, microwave
transmitters, headends, antennas, cables,
wires, lines, amplifiers, towers,
waveguides, conductors, converters,
studios, equipment and facilities for the
purpose of producing, receiving,
transmitting, amplifying and distributing
audio, video and other forms of
electronic, optical or electrical signals
to and among subscribers located in the
Municipalities and any other
municipalities in The Netherlands for
which the Borrowers may obtain the rights
to extend their services after the
execution and delivery of this Agreement
by the respective parties thereto;
Taxes - any present or future tax, levy, import,
duty, charge, fee, deduction or
withholding of any nature and whatever
called, whenever imposed, levied,
collected, withheld or assessed and by
whichever supranational, national, state,
province, regional, local,
-53-
municipal or other governmental or semi-
governmental authority;
Term Loan Advance - the advance defined as a Term Loan
Advance in article 2.2.1;
Term Loan Facility - the Term Loan Facility defined as such in
article 2.1;
Term Loan Facility
Availability Period - means the Term Loan Facility Availability
Period defined as such in article 2.2.2;
Undertaking - the undertaking in the form attached
hereto as Exhibit 10;
UPC - United and Philips Communications B.V.;
USW B.V. - means US West International B.V.;
US West Guaranty - the Guaranty of US West, Inc. a photocopy
of which is attached hereto as Exhibit
3.1;
Variable Rate Advance - any Variable Rate Advance defined as such
in article 3;
Variable Rate
Interest Period - a Variable Rate Interest Period as
referred to in article 3;
Working Capital Advance - means the Working Capital Advance defined
as such in article 2.4.1;
-54-
Working Capital Facility - the Working Capital Facility defined as
such in article 2.1;
Working Capital Facility
Availability Period - Working Capital Facility Availability
Period defined as such in article 2.4.2;
Working Capital Funds - Working Capital Funds defined as such in
article 2.4.1;
-55-
