EXHIBIT 10.39
[CLIFFORD CHANCE PUNDER LETTERHEAD] EXECUTION COPY
DATED 28 AUGUST 2003
WESTERN WIRELESS INTERNATIONAL D.O.O.
IKB DEUTSCHE INDUSTRIEBANK AG
KREDITANSTALT FUR WIEDERAUFBAU
RAIFFEISENLANDESBANK OBEROSTERREICH REG. GEN. M.B.H.
NOVA LJUBLJANSKA BANKA D.D., LJUBLJANA
HSH NORDBANK AG
HYPO ALPE-ADRIA-BANK AG
HYPO ALPE-ADRIA-BANK D.D.
DEG - DEUTSCHE INVESTITIONS - UND ENTWICKLUNGSGESELLSCHAFT MBH
and
AKA AUSFUHRKREDIT-GESELLSCHAFT M.B.H.
in the presence of
WESTERN WIRELESS INTERNATIONAL CORPORATION
WESTERN WIRELESS INTERNATIONAL SLOVENIA CORPORATION
WESTERN WIRELESS INTERNATIONAL SLOVENIA II CORPORATION
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SECOND AMENDMENT AGREEMENT
RELATING TO THE
FACILITY AGREEMENT DATED 30 APRIL 2002
RELATING TO THE FINANCING OF THE
VEGA GSM TELECOMMUNICATIONS NETWORK IN SLOVENIA
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CONTENTS
CLAUSE PAGE
1. Definitions and Interpretation............................................................... 2
2. Amendment of the Original Facility Agreement................................................. 3
3. Representations.............................................................................. 3
4. Continuity and Further Assurance............................................................. 4
5. Fees, Costs and Expenses..................................................................... 4
6. Miscellaneous................................................................................ 4
SCHEDULE 1 Conditions Precedent....................................................................... 6
SCHEDULE 2 Conditions................................................................................. 9
SCHEDULE 3 Amendments to Original Facility Agreement.................................................. 11
THIS AGREEMENT is dated 2003 and made between:
(1) WESTERN WIRELESS INTERNATIONAL D.O.O., LJUBLJANA as borrower (the
"BORROWER");
(2) IKB DEUTSCHE INDUSTRIEBANK AG AND KREDITANSTALT FUR WIEDERAUFBAU, as
lead arrangers (the "LEAD ARRANGERS");
(3) RAIFFEISENLANDESBANK OBEROSTERREICH REG. GEN. M.B.H. and NOVA
LJUBLJANSKA BANKA D.D., LJUBLJANA as senior co-arrangers (the "SENIOR
CO-ARRANGERS");
(4) HSH NORDBANK AG and HYPO ALPE-ADRIA-BANK AG as co-arrangers (the
"CO-ARRANGERS");
(5) IKB DEUTSCHE INDUSTRIEBANK AG, KREDITANSTALT FUR WIEDERAUFBAU,
RAIFFEISENLANDESBANK OBEROSTERREICH REG. GEN. M.B.H., HSH NORDBANK AG
and HYPO ALPE-ADRIA-BANK AG as original lenders with regard to the Euro
Facility (the "ORIGINAL EURO FACILITY BANKS");
(6) IKB DEUTSCHE INDUSTRIEBANK AG, as facility agent with regard to the
Euro Facility and the SIT Facility (the "OFF SHORE FACILITY AGENT");
(7) IKB DEUTSCHE INDUSTRIEBANK AG, as security agent with regard to the Off
Shore Security (the "OFF SHORE SECURITY AGENT");
(8) NOVA LJUBLJANSKA BANKA D.D., LJUBLJANA as an original lender and
issuing bank with regard to the SIT Facility and HYPO ALPE-ADRIA-BANK
D.D. as original lender with regard to the SIT Facility (the "ORIGINAL
SIT FACILITY BANKS");
(9) NOVA LJUBLJANSKA BANKA D.D., LJUBLJANA as local facility agent with
regard to the SIT Facility (the "ON SHORE FACILITY AGENT");
(10) NOVA LJUBLJANSKA BANKA D.D., LJUBLJANA as security agent with regard to
the On Shore Security (the "ON SHORE SECURITY AGENT"); and
(11) DEG - DEUTSCHE INVESTITIONS - UND ENTWICKLUNGSGESELLSCHAFT MBH and AKA
AUSFUHRKREDIT-GESELLSCHAFT M.B.H. as lenders in relation to the Euro
Facility (the "EURO FACILITY BANKS").
in the presence of
(12) WESTERN WIRELESS INTERNATIONAL CORPORATION, WESTERN WIRELESS
INTERNATIONAL SLOVENIA CORPORATION, and WESTERN WIRELESS INTERNATIONAL
SLOVENIA II CORPORATION (together the "SPONSORS").
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WHEREAS
(A) On 30 April 2002 the Borrower and the Finance Parties have entered into
a facility agreement (as amended on 28 October 2002) for the financing
of the construction and operation of a wireless communication network
in Slovenia.
(B) The Parties have agreed to make certain amendments to the Finance
Documents.
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
"AGREEMENT" means this agreement including all of its Schedules.
"FACILITY AGREEMENT" means the Original Facility Agreement, as amended
by this Agreement.
"ORIGINAL SPONSORS' AND SHAREHOLDERS' UNDERTAKING AND COMPLETION
GUARANTEE" has the meaning set out in the Second Amendment and
Restatement of the Sponsors' and Shareholders' Undertaking and
Completion Guarantee.
"SECOND AMENDMENT AGREEMENT EFFECTIVE DATE" means the date on which the
Off Shore Facility Agent confirms that the conditions precedent listed
in Schedule 1 (Conditions Precedent) have been satisfied or waived, in
a form and substance satisfactory to the Off Shore Facility Agent.
"SECOND AMENDMENT AGREEMENT CONDITIONS SATISFACTION DATE" means the
date on which the Off Shore Facility Agent confirms that the conditions
listed in Schedule 2 (Conditions) have been satisfied or waived, in a
form and substance satisfactory to the Off Shore Facility Agent.
"SECOND AMENDMENT AND RESTATEMENT OF THE SPONSORS' AND SHAREHOLDERS'
UNDERTAKING AND COMPLETION GUARANTEE" means the second amendment and
restatement of the sponsors' and shareholders' undertaking and
completion guarantee dated 30 April 2002 as amended and restated on [-]
2003.
"ORIGINAL FACILITY AGREEMENT" means the Facility Agreement dated 30
April 2002 (as amended on 28 October 2002) between the Borrower, the
Off Shore Facility Agent, and others.
1.2 INCORPORATION OF DEFINED TERMS
Terms defined in the Facility Agreement shall, unless otherwise defined
herein, have the same meaning herein and the principles of construction
set out in the Facility Agreement shall have effect as if set out in
this Agreement.
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1.3 CLAUSES
In this Agreement any reference to a "Clause" or "Schedule" is, unless
the context otherwise requires, a reference to a Clause or Schedule
hereof. Clause headings are for ease of reference only.
2. AMENDMENT OF THE ORIGINAL FACILITY AGREEMENT
2.1 With effect from the Second Amendment Agreement Effective Date, the
Original Facility Agreement shall be amended as set out in Schedule 3
(Amendments to the Original Facility Agreement).
2.2 Without prejudice to any rights of the Banks under the Finance
Documents on the date of this Agreement, the Borrower agrees that if
the Second Amendment Agreement Conditions Satisfaction Date has not
occurred on or before the date falling 10 (ten) Business Days after the
date of this Agreement such failure shall constitute an Event of
Default entitling the Banks to exercise their rights in accordance
clause 25 (Events of Default) of the Facility Agreement and the other
terms of the Finance Documents.
2.3 Upon the satisfaction of the conditions set forth in Schedule 2
(Conditions), the Off Shore Security Agent shall release the security
interests created by the Sponsors' Cash Collateral Account Pledge
Agreement and the Sponsors' Cash Collateral Account #2 Pledge Agreement
and close the Sponsors' Cash Collateral Account and the Sponsors' Cash
Collateral Account #2.
2.4 By a Waiver Letter dated 7 August 2003 and entered into by the Banks
and the Borrower, the Banks waived the requirement for the Borrower to
comply with the Stage 1 covenants as set out in Clauses 22.2(a)(iv),
22.2(b)(v), 22.2(c)(ii), 22.2(d) and 22.2(e)(ii) (Stage 1 covenants) of
the Original Facility Agreement.
2.5 With effect from the Second Amendment Agreement Effective Date until
the date upon which the Asset and Licence Pledge and Leases Contracts
Assignment Agreement is amended, the provisions of the Facility
Agreement shall prevail in the event of any conflict between the
provisions of the Facility Agreement and the provisions of articles 2.2
(Grant of Pledge, Pledge II, Substitution Pledge and Additional
Pledge), 10.1 (Assignment of Leases, Substitution Leases and Additional
Leases), 10.2 (Assignment of Leases, Substitution Leases and Additional
Leases), 10.3 (Assignment of Leases, Substitution Leases and Additional
Leases), 11.2 (Consent of the Landlords) and 11.3 (Consent of the
Landlords) of the Asset and Licence Pledge and Lease Contracts
Assignment Agreement.
3. REPRESENTATIONS
3.1 The Borrower expressly repeats the Repeated Representations in the
Facility Agreement as at the date of signing this Agreement (on the
assumption that the amendments to the Original Facility Agreement
contained herein are in effect at such date), upon the Second Amendment
Agreement Effective Date and the Second Amendment Agreement Conditions
Satisfaction Date.
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4. CONTINUITY AND FURTHER ASSURANCE
4.1 CONTINUING OBLIGATIONS
The provisions of the Original Facility Agreement shall, save as
amended hereby, continue in full force and effect.
4.2 FURTHER ASSURANCE
The Borrower shall, at the request of the Off Shore Facility Agent and
at its own expense, do all such acts and things necessary or desirable
to give effect to the amendments effected or to be effected pursuant to
this Agreement.
5. FEES, COSTS AND EXPENSES
5.1 TRANSACTION EXPENSES
The Borrower shall, from time to time on demand of the Off Shore
Facility Agent, reimburse the Senior Creditors for all costs and
expenses (including legal fees) together with any VAT thereon
reasonably incurred by it in connection with the negotiation,
preparation and execution of this Agreement, any other document
referred to in this Agreement any other Finance Document and the
completion of the transactions herein contemplated.
5.2 PRESERVATION AND ENFORCEMENT OF RIGHTS
The Borrower shall, from time to time on demand of the Off Shore
Facility Agent, reimburse the Senior Creditors for all costs and
expenses (including legal fees) on a full indemnity basis together with
any VAT thereon incurred in or in connection with the preservation,
performance and/or enforcement or protection and/or attempted
enforcement or protection of any of the rights of the Senior Creditors
under this Agreement, any other document referred to in this Agreement
and any other Finance Document.
5.3 STAMP TAXES
The Borrower shall pay all stamp, registration and other taxes to which
this Agreement, any other document referred to in this Agreement any
other Finance Document or any judgment given in connection herewith is
or at any time may be subject and shall, from time to time on demand of
the Off Shore Facility Agent, indemnify the Senior Creditors against
any liabilities, costs, claims and expenses resulting from any failure
to pay or any delay in paying any such tax.
6. MISCELLANEOUS
6.1 INCORPORATION OF TERMS
The provisions of clause 32 (Notices), clause 34 (Partial Invalidity),
clause 35 (Remedies and Waiver), clause 38 (Governing Law), clause 39
(Arbitration) and clause 40 (Jurisdiction) of the Original Facility
Agreement shall be incorporated into this Agreement as if set out in
full herein and as if references therein to "this Agreement" or the
Finance Documents are references to this Agreement.
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6.2 COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one and the same instrument.
6.3 FINANCE DOCUMENT
This Agreement is intended to be a "Finance Document" within the
meaning of the Facility Agreement.
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SCHEDULE 1
CONDITIONS PRECEDENT
1. In relation to the Borrower:
(a) a confirmation, given by an authorised signatory of the
Borrower, certifying that, as at the date hereof, there has
been no change to the constitutional documents delivered by
the Borrower pursuant to the Original Facility Agreement;
(b) a copy, certified as at the date of this Agreement a true and
up-to-date copy by an authorised signatory of the Borrower, of
a resolution of the board of directors of the Borrower
approving the execution, delivery and performance of this
Agreement and the terms and conditions hereof and authorising
a named person or persons to sign this Agreement and any
documents to be delivered by the Borrower pursuant hereto; and
(c) a certificate of an authorised signatory of the Borrower
setting out the names and signatures of the persons authorised
to sign, on behalf of the Borrower, this Agreement and any
documents to be delivered by the Borrower pursuant hereto.
2. In relation to each of the Sponsors:
(a) a confirmation, given by an authorised signatory of the
Sponsors, certifying that, as at the date hereof, there has
been no change to the constitutional documents delivered by
the Sponsors pursuant to the Original Sponsors' and
Shareholders' Undertaking and Completion Guarantee;
(b) a copy, certified as at the date of this Agreement a true and
up to date copy by an authorised signatory of the Sponsors, of
a resolution of the board of directors of each of the Sponsors
approving the execution, delivery and performance of this
Agreement and the Second Amendment and Restatement of the
Sponsors' and Shareholders' Undertaking and Completion
Guarantee and the terms and conditions hereof and thereof and
authorising a named person or persons to sign such agreement
and any documents to be delivered by the Sponsors pursuant
thereto; and
(c) a certificate of an authorised signatory of the Sponsors
setting out the names and signatures of the persons authorised
to sign, on behalf of the Sponsors, this Agreement the Second
Amendment and Restatement of the Sponsors' and Shareholders'
Undertaking and Completion Guarantee and any documents to be
delivered by the Sponsors pursuant thereto.
3. A copy, certified a true copy by or on behalf of the Borrower, of each
such law, decree, consent, licence, approval, registration or
declaration as is, in the opinion of counsel to the Finance Parties,
necessary to render this Agreement or the Second Amendment and
Restatement of the Sponsors' and Shareholders' Undertaking and
Completion Guarantee legal, valid, binding and enforceable, to make
this Agreement and the Second Amendment and Restatement of the
Sponsors' and Shareholders' Undertaking and
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Completion Guarantee admissible in evidence in the Borrower's and any
Finance Party's jurisdiction of incorporation and to enable the
Borrower to perform its obligations thereunder.
4. In respect of each Sponsor, a copy, certified a true copy by or on
behalf of the respective Sponsor, of each such law, decree, consent,
licence, approval, registration or declaration as is, in the opinion of
counsel to the Finance Parties, necessary to render this Agreement or
the amended and restated Sponsors' and Shareholders Undertaking and
Completion Guarantee legal, valid, binding and enforceable, to make
this Agreement and the Second Amendment and Restatement of the
Sponsors' and Shareholders' Undertaking and Completion Guarantee
admissible in evidence in the respective Sponsor's jurisdiction of
incorporation and to enable the respective Sponsor to perform its
obligations thereunder.
5. The fees set out in the Second Amendment Agreement Fee Letter addressed
by the Borrower to the Off Shore Facility Agent, dated on or about the
date of this Agreement, have been paid to the Finance Parties.
6. A confirmation from the ECA that the cover provided in the ECA Cover
Documents will not be prejudiced as a consequence of the amendments
contemplated by this Agreement and that the ECA Cover Documents remain
in full force and effect.
7. A confirmation from the Equipment Vendor, issued to the Off Shore
Facility Agent and countersigned by the Borrower:
(a) that there are no amounts outstanding under the Delivery
Contract;
(b) of the amount of any refund due to the Borrower in respect of
prepayments made under the Delivery Contract, which shall be
applied in prepayment of the loans under the Lucent Loan
Agreement in full and subsequently, to the extent any such
refund is available, applied to pay outstanding amounts under
the Delivery Contract; and
(c) that the Delivery Contract has been terminated other than as
provided in the Termination Agreement dated [-] between the
Borrower, Lucent Technologies Inc., Lucent Technologies
Slovenia d.o.o. and the Equipment Vendor.
8. An original, duly executed, copy of each of this Agreement and the
Second Amendment and Restatement of the Sponsors' and Shareholders'
Undertaking and Completion Guarantee.
9. A confirmation from the Borrower that, as at the Second Amendment
Agreement Effective Date:
(a) any invoices issued since 31 December 2002 which have become
payable to the Equipment Vendor have been paid by the Borrower
using its own funds or those made available to it by way of
Equity Contributions by the Sponsors or refund under the
Delivery Contract;
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(b) all amounts due and payable by the Borrower under the Facility
Agreement in respect of interest has been paid in full by the
Borrower from its own funds or those made available to it by
way of Equity Contributions by the Sponsors; and
(c) the Loans outstanding under the Facility Agreement will not
exceed Euro 75,317,033.82.(1)
--------------------------
(1) In relation to outstandings under the SIT Facility, the applied
exchange rate is the applicable exchange rate as at the date of each
drawdown of the SIT Facility.
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SCHEDULE 2
CONDITIONS
1. A legal opinion of Selih, Selih, Janezic and Jarcovic, Ljubljana, the
local legal advisers to the Banks, substantially in the form agreed
with the Off Shore Facility Agent.
2. Prepayment by the Borrower of the following amounts utilising funds
from the deposit, held by the On Shore Facility Agent, Sponsors' Cash
Collateral Account and the Sponsor's Cash Collateral Account #2 or if
such amounts are insufficient from funds made available to the Borrower
by way of Equity Contributions by the Sponsors:
PREPAYMENT I
(SPONSORS' CASH COLLATERAL PREPAYMENT II
ACCOUNT AND SPONSORS' CASH (DEPOSIT HELD BY THE ON
FACILITY COLLATERAL ACCOUNT #2) SHORE FACILITY AGENT)(2)
----------------------------------------------------------------------------------------------------
ECA Facility Tranche 1 Euro 7,341,887.56 USD 297,002.97
----------------------------------------------------------------------------------------------------
ECA Facility Tranche 2 None None
----------------------------------------------------------------------------------------------------
ECA Facility Tranche 3 None None
----------------------------------------------------------------------------------------------------
Commercial Facility Euro 7,972,934.67 USD 322,530.85
----------------------------------------------------------------------------------------------------
SIT Facility Euro 2,125,177.77 USD 686,471.55
----------------------------------------------------------------------------------------------------
TOTAL EURO 17,440,000.00 USD 1,306,005.37
----------------------------------------------------------------------------------------------------
Any amounts prepaid in USD shall be converted to the Euro equivalent
thereof in accordance with Clause 1.2.1(d) (Construction) of the
Facility Agreement and any amounts to be prepaid in SIT shall be
converted from Euro to SIT at the rate of exchange quoted by the On
Shore Facility Agent to the Off Shore Facility Agent on or prior to the
relevant conversion date.
3. Repayment by the Borrower in full of all amounts outstanding under the
Lucent Loan Agreement and confirmation thereof from Lucent Technologies
Inc.
4. Payment of all costs and fees, costs and expenses referred to in Clause
5 and any outstanding fees and expenses payable under the Facility
Agreement from the Borrower's funds or if the Borrower does not have
sufficient resources to make such payments from funds made available to
the Borrower by way of Equity Contributions by the Sponsors.
-----------------------------
(2) The amounts of the deposit held by the On Shore Facility Agent includes
accrued interest up to 23 July 2003. The USD amounts are indicative and
for reference purposes only.
- 9 -
5. A letter of comfort from Western Wireless Corporation substantially in
the form agreed with the Off Shore Facility Agent.
6. A legal opinion of Friedman Kaplan Seiler & Adelman LLP, legal advisers
to the Sponsors, substantially in the form agreed with the Off Shore
Facility Agent.
7. Evidence that the DSRA-Required Balance, as of the Second Amendment
Agreement Conditions Satisfaction Date, is standing to its credit of
the Debt Service Reserve Account.
8. Notification of the execution of this Agreement to Banka Slovenije.
9. Confirmation of the amounts outstanding after prepayment by the Off
Shore Facility Agent in respect of the Euro Facilities and by the On
Shore Facility Agent in respect of the SIT Facilities.
10. Legal opinions of Clifford Chance, legal advisors to the Banks, as to
matters of German, Luxembourg and New York law, substantially in the
form agreed with the Off Shore Facility Agent.
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SCHEDULE 3
AMENDMENTS TO ORIGINAL FACILITY AGREEMENT
1. The cover page of the Original Facility Agreement is amended by
deleting the words "Landesbank Schleswig-Holstein Girozentrale" and
replacing it with the words "HSH NORDBANK AG".
2. The cover page of the Original Facility Agreement is amended by
deleting the words "Raiffeisenlandesbank Oberosterreich reg. Gen.
m.b.H." and replacing them with the words "RAIFFEISENLANDESBANK
OBEROSTERREICH REG. GEN. M.B.H."
3. The cover page of the Original Facility Agreement is amended by adding
the following parties after the party named "Hypo Alpe-Adria-Bank
d.d.":
"DEG - DEUTSCHE INVESTITIONS - UND
ENTWICKLUNGSGESELLCHAFT MBH
as Euro Facility Bank
AKA AUSFUHRKREDIT-GESELLSCHAFT M.B.H.
as Euro Facility Bank"
4. The cover page of the Original Facility Agreement is amended by
deleting the title in its entirety and replacing it with the following:
"FACILITY AGREEMENT
(AS AMENDED ON 28 OCTOBER 2002 AND 2003)
RELATING TO THE FINANCING OF THE
VEGA GSM TELECOMMUNICATIONS NETWORK IN SLOVENIA"
5. Paragraph (4) in the Parties Clause of the Original Facility Agreement
is amended by deleting the words "Landesbank Schleswig-Holstein
Girozentrale" in the first line of such clause and replacing them with
the words "HSH NORDBANK AG".
6. Paragraph (5) in the Parties Clause of the Original Facility Agreement
is amended by deleting the words "Landesbank Schleswig-Holstein
Girozentrale" in the third line of such clause and replacing them with
the words "HSH NORDBANK AG".
7. Paragraph (9) in the Parties Clause of the Original Facility Agreement
is amended by deleting the words "and" at the end of such clause.
8. Paragraph (10) in the Parties Clause of the Original Facility Agreement
is amended by adding the word "and" to the end of such clause.
9. The Parties Clause of the Original Facility Agreement is amended by
adding the following parties after Paragraph (10) of such clause:
"(11) DEG - DEUTSCHE INVESTITIONS - UND ENTWICKLUNGSGESELLSCHAFT MBH
and AKA
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AUSFUHRKREDIT-GESELLSCHAFT M.B.H. as lenders in relation to
the Euro Facility (the "EURO FACILITY BANKS")."
10. Recital C of the Original Facility Agreement is amended by deleting
such recital in its entirety and replacing it with the following
recital:
"(C) For the financing of the construction and operation of such
network the Original Euro Facility Banks agreed to grant two
term loan facilities in the amount of Euro 96,443,308.50 and
the Original SIT Facility Banks agreed to grant a revolving
loan, guarantee and letter of credit facility in the amount of
SIT 4,400,000,000 in each case, upon the terms and conditions
set out in the Agreement (as amended by the First Amendment
Agreement). On the date of the Second Amendment Agreement, the
Loans outstanding to the Banks under this Agreement equal, in
aggregate, approximately Euro 75,317,033.82* as more
particularly set out in Schedule 1 Part III.
* In relation to outstandings under the SIT Facility,
the applied exchange rate is the applicable exchange
rate as at the date of each drawdown of the SIT
Facility."
11. The Recitals of the Original Facility Agreement are amended by adding
the following recital after the end of Recital C:
"(D) The Borrower and the Banks have further amended the Agreement
(pursuant to the Second Amendment Agreement) on the terms and
conditions set out herein."
12. Paragraph (a) of the definition of "Abandonment of the Project" in
Clause 1.1 (Definitions) of the Original Facility Agreement is amended
by deleting the words "clause 3.2.2" in the first line of such
paragraph and replacing them with the words "clause 3.2.4".
13. The definition of "Availability Period" in Clause 1.1 of the Original
Facility Agreement is amended by deleting such definition in its
entirety and replacing it with the following definition:
""AVAILABILITY PERIOD" means:
(a) in relation to the ECA Facility, the period from the date upon
which the conditions precedent in Schedule 6 (Conditions
Precedent) have been satisfied up to and including the Second
Amendment Agreement Effective Date;
(b) in relation to the Commercial Facility, the period from the
date upon which the conditions precedent in Schedule 6
(Conditions Precedent) have been satisfied up to and including
the Second Amendment Agreement Effective Date; and
(c) in relation to the SIT Facility, subject to Clause 6.4
(Conversion of revolving SIT Facility Loans into term loans),
the period from the date upon which the conditions precedent
in Schedule 6 (Conditions Precedent) have been satisfied up to
and including the Second Amendment Agreement Effective Date."
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14. The definition of "Available Commitment" in Clause 1.1 (Definitions) of
the Original Facility Agreement is amended by adding the following
words after the words "SIT Facility only" in the ninth line of such
definition:
"and subject to Clause 6.4 (Conversion of revolving SIT Facility Loans
into term loans)"
15. The definition of "Business Plan" in Clause 1.1 (Definitions) of the
Original Facility Agreement is amended by deleting such definition in
its entirety and replacing it with the following definition:
""BUSINESS PLAN" means, prior to the delivery of the 2002 Revised
Business Plan, the Initial Business Plan, thereafter but prior to the
delivery of the first Updated Business Plan, the 2002 Revised Business
Plan and thereafter, the Vega Status Quo Business Plan as most recently
updated or amended from time to time."
16. Clause 1.1 (Definitions) of the Original Facility Agreement is amended
by including the following definitions after the definition of
"Confidentiality Undertaking" and before the definition of "Contiguous
Road Coverage":
""CONSOLIDATED ANNUALISED EBITDA" means twice the aggregate
Consolidated EBITDA in respect of the last two (2) Quarters immediately
preceding the relevant calculation date.
"CONSOLIDATED EBITDA" means EBITDA in respect of the Group.
"CONSOLIDATED FINANCIAL STATEMENTS" means the most recent financial
statements of the Group.
"CONSOLIDATED TANGIBLE NET WORTH" means at any time the aggregate of
the amounts paid up or credited as paid up on the issued share capital
of Western Wireless International Corporation (other than any
redeemable shares) and the aggregate amount of the reserves of the
Group plus:
(a) any amounts set out in the most recent Consolidated Financial
Statements for any financial year as payable to Western
Wireless International Holding Corporation; and
(b) any retained earnings,
but deducting:
(i) any deficit in the retained earnings; and
(ii) any dividend or distribution declared, recommended or
made by any member of the Group to the extent payable
to a person who is not a member of the Group and such
distribution is not provided for in the most recent
financial statements,
and so that no amount shall be included or excluded more than once.
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Any calculation of Consolidated Tangible Net Worth will ignore a
negative or positive balance set out under "Accumulated Other
Comprehensive Loss or Gain" in the Consolidated Financial Statements."
17. The definition of "ECA" in Clause 1.1 (Definitions) of the Original
Facility Agreement is amended by adding the word "Euler" after the word
"means" at the beginning of such definition.
18. Paragraph (a)(ii) of the definition of "Excess Cash Flow" in Clause 1.1
(Definitions) of the Original Facility Agreement is amended by deleting
the words "(Contingent Equity)" in the first line of such paragraph and
replacing them with the words "(Additional Funding Obligations)".
19. The definition of "Fee Letter" in Clause 1.1 (Definitions) of the
Original Facility Agreement is amended by adding the words "(including
the Second Amendment Agreement Fee Letter)" after the words " as set
out therein" in the second line of such definition.
20. Paragraph (g) of the definition of "Finance Documents" in Clause 1.1
(Definitions) of the Original Facility Agreement is amended by deleting
such paragraph in its entirety and replacing it with the following
paragraph:
"(g) until the Second Amendment Agreement Conditions Satisfaction
Date, the Lucent Loan Agreement;"
21. The definition of "First Facility Agreement" in Clause 1.1
(Definitions) of the Original Facility Agreement is amended by deleting
such definition in its entirety and replacing it with the following
definition:
""FIRST AMENDMENT AGREEMENT" means the first amendment agreement
relating to this Agreement between the Borrower and the Banks, dated 28
October 2002."
22. Clause 1.1 (Definitions) of the Original Facility Agreement is amended
by adding the following definition after the definition of "Government"
and before the definition of "GSM":
""GROUP" means Western Wireless International Corporation and its
Subsidiaries."
23. The definition of "Insurance" in Clause 1.1 (Definitions) of the
Original Facility Agreement is amended by deleting such definition in
its entirety and replacing it with the following definition:
""INSURANCE" means any of the contracts of insurance which the Borrower
is required from time to time to procure and maintain pursuant to
Schedule 11 (Insurance), as the same may be amended, from time to time,
in accordance with this Agreement."
24. Paragraph (a) of the definition of "Material Adverse Effect" of the
Original Facility Agreement is amended by deleting the words "the
Shareholders" in the second line of such paragraph and replacing them
with the words "a Sponsor".
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25. Paragraph (c) of the definition of "Material Contracts" in Clause 1.1
(Definitions) of the Original Facility Agreement is amended by deleting
such paragraph in its entirety and replacing it with the following
paragraph:
"(c) the Delivery Contract (and after the Second Amendment
Agreement Effective Date, that contract to the extent that the
terms and conditions thereof remain in force after that
date);"
26. Paragraph (i) of the definition of "Material Contracts" in Clause 1.1
(Definitions) of the Original Facility Agreement is amended by adding
the words "for the Network" after the word "infrastructure" in the
first line of such paragraph.
27. The definition of "Permitted Accounts" in Clause 1.1 (Definitions) of
the Original Facility Agreement is amended by adding the words "with
the Original SIT Facility Banks" after the words "such other accounts"
in the third line of such definition.
28. The definition of "Project Status and Progress Report" in Clause 1.1
(Definitions) of the Original Facility Agreement is amended by deleting
the words "Clause 21.1(c)(iii)" of such definition and replacing them
with the words "Clause 21.1(e)(iv)".
29. The definition of "Quarter" in Clause 1.1 (Definitions) of the Original
Facility Agreement is amended by adding the words "or, as the case may
be, the Group" after the word "Borrower" in the first line of such
definition.
30. The definition of "Rollover SIT Facility Loan" in Clause 1.1
(Definitions) of the Original Facility Agreement is amended by adding
the following words after the word "means" in the first line of such
definition:
", subject to Clause 6.4 (Conversion of revolving SIT Facility Loans
into term loans),"
31. Clause 1.1 (Definitions) of the Original Facility Agreement is amended
by adding the following definitions after the definition of "Screen
Rate" and before the definition of "Security":
""SECOND AMENDMENT AGREEMENT" means the second amendment agreement
relating to the Facility Agreement between the Borrower and the Banks,
dated [-] 2003.
"SECOND AMENDMENT AGREEMENT CONDITIONS SATISFACTION DATE" means the
date upon which Off Shore Facility Agent (acting reasonably) confirms
that the conditions listed in Schedule 2 of the Second Amendment
Agreement have been satisfied or waived, in form and substance
satisfactory to the Off Shore Facility Agent.
"SECOND AMENDMENT AGREEMENT EFFECTIVE DATE" means the date upon which
Off Shore Facility Agent (acting reasonably) confirms that the
conditions precedent listed in Schedule 1 of the Second Amendment
Agreement have been satisfied or waived, in form and substance
satisfactory to the Off Shore Facility Agent.
- 15 -
"SECOND AMENDMENT AGREEMENT FEE LETTER" means the fee letter dated on
or about the date of the Second Amendment Agreement between the Off
Shore Facility Agent and the Borrower."
32. Paragraph (d) of the definition of "Security Documents" in Clause 1.1
(Definitions) of the Original Facility Agreement is amended by adding
the words "until the Second Amendment Agreement Conditions Satisfaction
Date," at the beginning of such paragraph.
33. The definition of "Senior Creditors" in Clause 1.1 (Definitions) of the
Original Facility Agreement is amended by adding the following words
after the words "Technologies Inc." in the second line of such
definition:
" (until the irrevocable repayment in full of all amounts outstanding
under the Lucent Loan Agreement)."
34. The definition of "SIT Facility" in Clause 1.1 (Definitions) of the
Original Facility Agreement is amended by adding the following words
after the word "means" in the first line of such definition:
", subject to Clause 6.4 (Conversion of revolving SIT Facility Loans
into term loans),"
35. The definition of "Sponsors' and Shareholders' Undertaking and
Completion Guarantee" in Clause 1.1 (Definitions) of the Original
Facility Agreement is amended by adding the words "(as amended on 28
October 2002 and [-] 2003)" after the word "Agreement" in the third
line of such definition.
36. The definition of "Sponsors' Cash Collateral Account" in Clause 1.1
(Definitions) of the Original Facility Agreement is amended by adding
the words "(as amended on 28 October 2002)" after the word "Guarantee"
in the second line of such definition.
37. The definition of "Sponsors' Cash Collateral Account #2" in Clause 1.1
(Definitions) of the Original Facility Agreement is amended by adding
the words "(as amended on 28 October 2002)" after the word "Guarantee"
in the second line of such definition.
38. The definition of "TOM" in Clause 1.1 (Definitions) of the Original
Facility Agreement is amended by adding the words "as amended from time
to time" after the words "and 81/1997)" at the end of such definition.
39. The definition of "Total Commercial Facility Commitments" in Clause 1.1
(Definitions) of the Original Facility Agreement is amended by adding
the following words after the word "Agreement" in the second line of
such definition:
"which, for the avoidance of doubt, shall on the Second Amendment
Agreement Effective Date, be reduced to zero"
40. The definition of "Total ECA Facility Commitments" in Clause 1.1
(Definitions) of the Original Facility Agreement is amended by adding
the following words after the word "Agreement" in the second line of
such definition:
- 16 -
"which, for the avoidance of doubt, shall on the Second Amendment
Agreement Effective Date, be reduced to zero"
41. The definition of "Total SIT Facility Commitments" in Clause 1.1
(Definitions) of the Original Facility Agreement is amended by deleting
the words "as reduced in accordance with the terms hereof" in the third
and fourth lines of such definition and replacing them with the
following words:
"which, for the avoidance of doubt, shall on the Second Amendment
Agreement Effective Date, be reduced to zero"
42. The definition of "Updated Business Plan" in Clause 1.1 (Definitions)
of the Original Facility Agreement is amended by deleting such
definition in its entirety and replacing it with the following
definition:
""UPDATED BUSINESS PLAN" means an update of the Business Plan in a
manner consistent with the most recent financial statements of the
Borrower delivered and reviewed in accordance with Clause 21 (Reporting
requirements) as most recently updated or amended from time to time."
43. Clause 1.1 (Definitions) of the Original Facility Agreement is amended
by inserting the following definition after the definition of "VAT" and
before the definition of "Withdrawal of the Licence":
""VEGA STATUS QUO BUSINESS PLAN" means the business plan of the
Borrower accommodating the changed technical, economic and tax
assumptions, agreed between the Parties and referred to as the excel
spreadsheet named "Vega Status Quo 040803.xls" (as attached hereto as
Exhibit 1), as most recently updated or amended from time to time."
44. Clause 2.1(a) (The Facilities) of the Original Facility Agreement is
amended by adding the following words after the word "Borrower" in the
first line of such clause:
"until the Second Amendment Agreement Effective Date"
45. Clause 2.1(b) (The Facilities) of the Original Facility Agreement is
amended by adding the following words after the word "Borrower" in the
first line of such clause:
", subject to Clause 6.4 (Conversion of revolving SIT Facility Loans
into term loans),"
46. Clause 4.2.1 (Further conditions precedent to all Utilisations) of the
Original Facility Agreement is amended by deleting the words "Subject
to Clause 4.2.2" at the beginning of such clause and replacing it with
the words "Subject to Clauses 4.2.2 and 6.4 (Conversion of revolving
SIT Facility Loans into term loans)".
47. Clause 4.2.1(a)(iv) (Further conditions precedent to all Utilisations)
of the Original Facility Agreement is amended by deleting the word
"and" from the end of such clause.
- 17 -
48. Clause 4.2.1(a)(v) (Further conditions precedent to all Utilisations)
of the Original Facility Agreement is amended by adding the word "and"
after the word "utilised;" at the end of such clause.
49. Clause 4.2.1(a) (Further conditions precedent to all Utilisations) of
the Original Facility Agreement is amended by adding the following
words after the end of Clause 4.2.1(a)(v) and before Clause 4.2.1(b):
"(vi) the proposed Utilisation Date is a date on or before the
Second Amendment Agreement Effective Date;"
50. Clause 4.2.2 (Further conditions precedent to all Utilisations) of the
Original Facility Agreement is amended by deleting such clause in its
entirety and replacing it with the following clause:
"4.2.2 Subject to Clause 6.4 (Conversion of revolving SIT Facility
Loans into term loans) the Banks will only be obliged to
comply with Clause 6 (Loans) in relation to a Rollover SIT
Facility Loan if on the Utilisation Date:
(a) no Event of Default is continuing or would result
from the Rollover SIT Facility Loan;
(b) the aggregate SIT Facility Loans and reimbursement
obligations under the SIT Facility Guarantees or LCs
will not exceed the lesser of:
(i) an equivalent amount of Euro 20,000,000
until the Second Amendment Agreement
Effective Date and thereafter Euro 7,500,000
at the exchange rate (middle rate) of Banka
Slovenije on the proposed Utilisation Date;
and
(ii) the amount to which the SIT Facility
Commitment is to be reduced in accordance
with Clause 13.3 (Reduction of the SIT
Facility Commitment) on or before the
proposed Utilisation Date."
51. Clause 5.2(a)(ii) (Completion of a Utilisation Request) of the Original
Facility Agreement is amended by renumbering such clause as
5.2(a)(i)(4).
52. Clause 5.2(a)(iii) (Completion of a Utilisation Request) of the
Original Facility Agreement is amended by renumbering such clause as
5.2(a)(ii).
53. Clause 5.2(a)(iv) (Completion of a Utilisation Request) of the Original
Facility Agreement is amended by renumbering such clause as
5.2(a)(iii).
54. Clause 6 (Loans) of the Original Facility Agreement is amended by
adding the following clause after the end of Clause 6.3 (Revaluation of
SIT Facility Loans):
"6.4 CONVERSION OF REVOLVING SIT FACILITY LOANS INTO TERM LOANS
- 18 -
Notwithstanding any other provision of this Agreement, on the
Second Amendment Agreement Effective Date, the SIT Facility
Commitments shall be reduced to zero. All SIT Facility Loans
outstanding on the Second Amendment Agreement Effective Date
shall be repayable as a term loan on the dates and in the
amounts set out in Clause 13 (Repayment) and Schedule 2
(Repayment Dates). For the avoidance of doubt, from the Second
Amendment Agreement Effective Date:
(a) no amounts repaid may be reborrowed;
(b) no Rollover SIT Facility Loans may be utilised; and
(c) except as expressly provided in this Clause 6.4, the
rights and obligations of the Parties under this
Agreement continue in full force and effect."
55. Clause 9.1(b) (Calculation of floating rate interest under the ECA
Facility) of the Original Facility Agreement is amended by adding the
following words to the beginning of such clause:
"Up to but excluding the Second Amendment Agreement Effective Date,"
56. Clause 9.1(b)(i)(2) (Calculation of floating rate interest under the
ECA Facility) of the Original Facility Agreement is amended by deleting
the word "(c)" in the fifth line of such clause and replacing it with
the word "21.1(e)".
57. Clause 9.1(b)(ii) (Calculation of floating rate interest under the ECA
Facility) of the Original Facility Agreement is amended by deleting the
word "(c)" in the third line of such clause and replacing it with the
word "(e)".
58. Clause 9.1 (Calculation of floating rate interest under the ECA
Facility) of the Original Facility Agreement is amended by adding the
following clause after the end of Clause 9.1(b)(iii):
"(c) From and including the Second Amendment Agreement Effective
Date, the ECA Facility Applicable Margin shall be an amount
of, initially, 1.50% per annum and thereafter the rate per
annum set out in the column headed "Margin (% p.a.)" subject
to the achievement by the Borrower, as at the end of the most
recently ended Quarter, of the relevant financial performance
tests set out in the same line in the column headed "Financial
Performance" in the table below:
MARGIN
FINANCIAL PERFORMANCE (% P.A.)
---------------------------------------------------------------------------------
EBITDA for the preceding two (2) Quarters is positive 1.25
---------------------------------------------------------------------------------
EBITDA for the preceding two (2) Quarters is positive and the Total 1.15
Leverage Ratio is greater that 6 but less than 10
---------------------------------------------------------------------------------
- 19 -
---------------------------------------------------------------------------------
EBITDA for the preceding two (2) Quarters is positive and the Total 1.05
Leverage Ratio is less than or equal to 6 but greater than 5
---------------------------------------------------------------------------------
EBITDA for the preceding two (2) Quarters is positive and the Total 0.95
Leverage Ratio is less than or equal to 5 but greater than 4
---------------------------------------------------------------------------------
EBITDA for the preceding two (2) Quarters is positive and the Total 0.85
Leverage Ratio is less than or equal to 4 but greater than 3
---------------------------------------------------------------------------------
EBITDA for the preceding two (2) Quarters is positive and the Total 0.75
Leverage Ratio is less than or equal to 3 but greater than 2
---------------------------------------------------------------------------------
EBITDA for the preceding two (2) Quarters is positive and the Total 0.65
Leverage Ratio is less than or equal to 2 but greater than 1
---------------------------------------------------------------------------------
PROVIDED THAT:
(i) any change to the ECA Facility Applicable Margin
shall take place from the immediately following ECA
Facility Applicable Margin Adjustment Date (subject
to Clause 9.1(c)(ii)) if:
(1) the Borrower has requested a reduction in
the Applicable Margin in the Covenant
Compliance Certificate at least 15 Business
Days prior to such Euro Facility Interest
Payment Date or the Off Shore Facility Agent
has notified the Borrower, based on the
information referred to in (2) below, that
there will be an increase in the Applicable
Margin in accordance with the above
provisions of this paragraph (c);
(2) the Off Shore Facility Agent has confirmed
the satisfaction of the above conditions
relating to financial performance of the
Borrower on the basis of the most recent
information for the Borrower required to be
provided by the Borrower pursuant to Clauses
21.1(a) and (e) (Financial statements and
other information) and Clause 21.3 (Covenant
Compliance Certificate);
(3) no Event of Default or Potential Event of
Default is continuing;
(ii) if the Off Shore Facility Agent has not received the
information for the Borrower required to be provided
by the Borrower pursuant to Clauses 21.1(a) and (e)
(Financial statements and other information) and
Clause 21.3 (Covenant Compliance Certificate) in
respect of the relevant period by its due date for
delivery pursuant to this Agreement, the Applicable
Margin will be 1.50% per annum from that date until
such time as the Borrower satisfies the conditions
set out in this paragraph (c) and the Borrower is in
compliance with its obligations under Clause 21
(Reporting requirements)."
- 20 -
59. Clause 9.2(b) (Calculation of floating rate interest under the
Commercial Facility) of the Original Facility Agreement is amended by
adding the following words to the beginning of such clause:
"Up to but excluding the Second Amendment Agreement Effective Date,"
60. Clause 9.2(b)(i)(2) (Calculation of floating rate interest under the
Commercial Facility) of the Original Facility Agreement is amended by
deleting such clause in its entirety and replacing it with the
following:
"(2) the Off Shore Facility Agent has confirmed the satisfaction of
the above conditions relating to financial performance of the
Borrower on the basis of the most recent information for the
Borrower required to be provided by the Borrower pursuant to
Clauses 21.1(a) and (e) (Financial statements and other
information) and Clause 21.3 (Covenant Compliance
Certificate);"
61. Clause 9.2(b)(ii) (Calculation of floating rate interest under the
Commercial Facility) of the Original Facility Agreement is amended by
deleting such clause in its entirety and replacing it with the
following clause:
"(ii) if the Off Shore Facility Agent has not received the
information for the Borrower required to be provided by the
Borrower pursuant to Clauses 21.1(a) and (e) (Financial
statements and other information) and Clause 21.3 (Covenant
Compliance Certificate) in respect of the relevant period by
its due date for delivery pursuant to this Agreement, the
Applicable Margin will be 3.25% per annum from that date until
such time as the Borrower satisfies the conditions set out in
this paragraph (b) and is in compliance with its obligations
under Clause 21 (Reporting requirements);"
62. Clause 9.2 (Calculation of floating rate interest under the Commercial
Facility) of the Original Facility Agreement is amended by adding the
following clause after the end of Clause 9.2(b)(iii):
"(c) From and including the Second Amendment Agreement Effective
Date, the Commercial Facility Applicable Margin shall be an
amount of, initially, 3.50% per annum and thereafter the rate
per annum set out in the column headed "Margin (% p.a.)"
subject to the achievement by the Borrower, as at the end of
the most recently ended Quarter, of the relevant financial
performance tests set out in the same line in the column
headed "Financial Performance" in the table:
FINANCIAL PERFORMANCE MARGIN (% P.A.)
-----------------------------------------------------------------------------
EBITDA for the preceding two (2) Quarters is positive 2.75
-----------------------------------------------------------------------------
EBITDA for the preceding two (2) Quarters is positive 2.50
and the Total Leverage Ratio is greater that 6 but
less than 10
-----------------------------------------------------------------------------
- 21 -
-----------------------------------------------------------------------------
EBITDA for the preceding two (2) Quarters is positive 2.25
and the Total Leverage Ratio is less than or equal to
6 but greater than 5
-----------------------------------------------------------------------------
EBITDA for the preceding two (2) Quarters is positive 2.00
and the Total Leverage Ratio is less than or equal to
5 but greater than 4
-----------------------------------------------------------------------------
EBITDA for the preceding two (2) Quarters is positive 1.75
and the Total Leverage Ratio is less than or equal to
4 but greater than 3
-----------------------------------------------------------------------------
EBITDA for the preceding two (2) Quarters is positive 1.50
and the Total Leverage Ratio is less than or equal to
3 but greater than 2
-----------------------------------------------------------------------------
EBITDA for the preceding two (2) Quarters is positive 1.25
and the Total Leverage Ratio is less than or equal to
2 but greater than 1
-----------------------------------------------------------------------------
PROVIDED THAT:
(i) any change to the Commercial Facility Applicable
Margin shall take place from the immediately
following Commercial Facility Applicable Margin
Adjustment Date (subject to Clause 9.2(c)(ii)) if:
(1) the Borrower has requested a reduction in
the Applicable Margin in the Covenant
Compliance Certificate at least 15 Business
Days prior to such Euro Facility Interest
Payment Date or the Off Shore Facility Agent
has notified the Borrower, based on the
information referred to in (2) below, that
there will be an increase in the Applicable
Margin in accordance with the above
provisions of this paragraph (c);
(2) the Off Shore Facility Agent has confirmed
the satisfaction of the above conditions
relating to financial performance of the
Borrower on the basis of the most recent
information for the Borrower required to be
provided by the Borrower pursuant to Clauses
21.1(a) and (e) (Financial statements and
other information) and Clause 21.3 (Covenant
Compliance Certificate);
(3) no Event of Default or Potential Event of
Default is continuing;
(ii) if the Off Shore Facility Agent has not received the
information for the Borrower required to be provided
by the Borrower pursuant to Clauses 21.1(a) and (e)
(Financial statements and other information) and
Clause 21.3 (Covenant Compliance Certificate) in
respect of the
- 22 -
relevant period by its due date for delivery pursuant
to this Agreement, the Applicable Margin will be
3.50% per annum from that date until such time as the
Borrower satisfies the conditions set out in this
paragraph (c) and the Borrower is in compliance with
its obligations under Clause 21 (Reporting
requirements)."
63. Clause 9.3.1(a) (Calculation of floating rate interest under the SIT
Facility) of the Original Facility Agreement is amended by deleting the
word "and" at the end of such clause.
64. Clause 9.3.1(b) (Calculation of floating rate interest under the SIT
Facility) of the Original Facility Agreement is amended by adding the
following words to the beginning of such clause:
"Up to but excluding the Second Amendment Agreement Effective Date,"
65. Clause 9.3.1(b)(i)(2) (Calculation of floating rate interest under the
SIT Facility) of the Original Facility Agreement is amended by deleting
the word "(c)" in the fifth line of such clause and replacing it with
the word "(e)".
66. Clause 9.3.1(b)(ii) (Calculation of floating rate interest under the
SIT Facility) of the Original Facility Agreement is amended by deleting
such clause in its entirety and replacing it with the following clause:
"(ii) if the On Shore Facility Agent has not received the
information for the Borrower required to be provided by the
Borrower pursuant to Clauses 21.1(a) and (e) (Financial
statements and other information) and Clause 21.3 (Covenant
Compliance Certificate) in respect of the relevant period by
its due date for delivery pursuant to this Agreement, the
Applicable Margin will be 1.50% per annum from that date until
such time as the Borrower satisfies the conditions set out in
this paragraph (b) and is in compliance with its obligations
under Clause 21 (Reporting requirements)."
67. Clause 9.3.1 (Calculation of floating rate interest under the SIT
Facility) of the Original Facility Agreement is amended by adding the
following clause after the end of Clause 9.3.1(b)(ii):
"(c) From and including the Second Amendment Agreement Effective
Date, the SIT Facility Applicable Margin shall be an amount
of, initially, 1.75% per annum and thereafter the rate per
annum set out in the column headed "Margin (% p.a.)" subject
to the achievement by the Borrower, as at the end of the most
recently ended Quarter, of the relevant financial performance
tests set out in the same line in the column headed "Financial
Performance" in the table below:
FINANCIAL PERFORMANCE MARGIN (% P.A.)
-----------------------------------------------------------------------------
EBITDA for the preceding two (2) Quarters is positive 1.50
and the Total Leverage Ratio greater than 2 but less
than or equal to 4
-----------------------------------------------------------------------------
- 23 -
-----------------------------------------------------------------------------
EBITDA for the preceding two (2) Quarters is positive 1.25
and the Total Leverage Ratio less than or equal to
2.00
-----------------------------------------------------------------------------
PROVIDED THAT:
(i) any change to the SIT Facility Applicable Margin
shall take place from the first day of the
immediately following Interest Period if:
(1) the Borrower has requested a reduction in
the Applicable Margin in the Covenant
Compliance Certificate at least 15 Business
Days prior to such Interest Period or the
Off Shore Facility Agent has notified the
Borrower, based on the information referred
to in (2) below, that there will be an
increase in the Applicable Margin in
accordance with the above provisions of this
paragraph (c);
(2) the On Shore Facility Agent has confirmed
the satisfaction of the above conditions
relating to financial performance of the
Borrower on the basis of the most recent
information for the Borrower required to be
provided by the Borrower pursuant to Clauses
21.1(a) and (e) (Financial statements and
other information) and Clause 21.3 (Covenant
Compliance Certificate); and
(3) no Event of Default or Potential Event of
Default is continuing;
(ii) if the On Shore Facility Agent has not received the
information for the Borrower required to be provided
by the Borrower pursuant to Clauses 21.1(a) and (e)
(Financial statements and other information) and
Clause 21.3 (Covenant Compliance Certificate) in
respect of the relevant period by its due date for
delivery pursuant to this Agreement, the Applicable
Margin will be 1.75% per annum from that date until
such time as the Borrower satisfies the conditions
set out in this paragraph (c) and the Borrower is in
compliance with its obligations under Clause 21
(Reporting requirements).
- 24 -
68. Clause 12.1 (Commitment fees) of the Original Facility Agreement is
amended by deleting such clause in its entirety and replacing it with
the following clause:
"12.1 COMMITMENT FEES
(a) The Borrower shall pay to the Off Shore Facility Agent (for
the account of each Euro Facility Bank) a fee computed at the
rate of:
(i) 0.75% per annum on each Bank's Available Commitment
under the Euro Facility until the date which is the
earlier of (A) 75% of the ECA Facility Commitment and
the Commercial Facility Commitment has been disbursed
or (B) on 20 February 2003 or such other date as
agreed between the Borrower and the Banks; and
(ii) thereafter 0.50% per annum on that Bank's Available
Commitment under the Euro Facility for the
Availability Period applicable to the Euro Facility
up to 20 February 2003 or such other date as agreed
between the Borrower and the Banks.
(b) The Borrower shall pay to the On Shore Facility Agent (for the
account of each SIT Facility Bank) a fee computed at the rate
of 0.10% per annum on the Available Commitment under the SIT
Facility up to 20 February 2003 or such other date as agreed
between the Borrower and the Banks.
(c) The fees under paragraphs (a) and (b) above shall be payable
quarterly in arrears from the date of execution of this
Agreement."
69. Clause 12.7 (Off Shore Facility Agent fee) of the Original Facility
Agreement is amended by deleting the word "Offshore" in the first line
of such clause and replacing it with the words "Off Shore".
70. Clause 13.2 (Repayment of the SIT Facility Loans) of the Original
Facility Agreement is amended by deleting the word "Each" at the
beginning of such clause and replacing it with the following words:
"Subject to Clause 13.4 (Repayment of the SIT Facility Loans after the
Second Amendment Agreement Effective Date), each"
71. Clause 13.3 (Reduction of the SIT Facility Commitment) of the Original
Facility Agreement is amended by deleting such clause in its entirety
and replacing it with the following clause:
"13.3 REDUCTION OF THE SIT FACILITY COMMITMENT
Up to and including the Second Amendment Agreement Effective
Date, the SIT Facility Commitment shall be reduced on the
dates and in the amounts which correspond to the percentage
rates set out in Schedule 2 (Repayment Dates)."
- 25 -
72. Clause 13 (Repayment) of the Original Facility Agreement is amended by
adding the following clause after the end of Clause 13.3 (Reduction of
the SIT Facility Commitment):
"13.4 REPAYMENT OF THE SIT FACILITY LOANS AFTER THE SECOND AMENDMENT
AGREEMENT EFFECTIVE DATE
From the Second Amendment Agreement Effective Date, each SIT
Facility Loan shall be repaid on the dates and in the amounts
which correspond to the percentage rates set out in Schedule 2
(Repayment Dates)."
73. Clause 14.4 (Voluntary prepayment of Euro Facility Loans) of the
Original Facility Agreement is amended by deleting such clause in its
entirety and replacing it with the following clause:
"14.4 VOLUNTARY PREPAYMENTS
14.4.1 In addition to the Borrower's rights set forth in Clause 14.6
(Right of repayment and cancellation in relation to a single
Bank) the Borrower may, after the end of the Availability
Period and if it gives the Off Shore Facility Agent not less
than five (5) Business Days' (or such shorter period as the
Majority Banks may agree) prior notice, prepay any part of any
ECA Facility Loan and any Commercial Facility Loan in minimum
amounts of Euro 1,000,000.
14.4.2 In addition to the Borrower's rights set forth in Clause 14.6
(Right of repayment and cancellation in relation to a single
Bank) the Borrower may, after the end of the Availability
Period and if it gives the On Shore Facility Agent not less
than five (5) Business Days' (or such shorter period as the
Majority Banks may agree) prior written notice, prepay any
part of any SIT Facility Loan in minimum amounts of an
equivalent amount of Euro 1,000,000."
74. Clause 14.5 (Mandatory prepayments) of the Original Facility Agreement
is amended by adding the following clauses after the end of Clause
14.5.2:
"14.5.3 Notwithstanding the provisions of Clause 14.5.1 above, the
Borrower shall, on or prior to the Second Amendment Agreement
Conditions Satisfaction Date, prepay the Loans and the loans
made under the Lucent Loan Agreement in accordance with the
requirements of Schedule 2 of the Second Amendment Agreement,
such prepayments to be applied in accordance with the
requirements thereof.
14.5.4 Any amounts (if any) in respect of the ECA Premium reimbursed
by the ECA shall (i) be applied by the Off Shore Facility
Agent on the immediately following Interest Payment Date after
receipt of such reimbursement, to prepay Loans made under ECA
Facility Tranche 2 or the other Loans made under the ECA
Facility to the extent such tranche has been repaid in full
and (ii) be paid to the Borrower if all Loans have been
irrevocably repaid in full."
- 26 -
75. Clause 14.7.7 (Restrictions) of the Original Facility Agreement is
amended by deleting the words "(Voluntary prepayment of Euro Facility
Loans)" in the first and second lines of such clause and replacing it
with the words "(Voluntary prepayments)".
76. Clause 19.2 (Amendment costs) of the Original Facility Agreement is
amended by deleting such clause in its entirety and replacing it with
the following clause:
"19.2 AMENDMENT COSTS
If (a) the Borrower requests an amendment, waiver or consent
(which, for the avoidance of doubt, includes the preparation
and implementation of the requirements of the First Amendment
Agreement and the Second Amendment Agreement) or (b) an
amendment is required pursuant to Clause 30.9 (Change of
currency), the Borrower shall, within three (3) Business Days
of demand, reimburse each Agent for the amount of all costs
and expenses (including legal fees) reasonably incurred by it
in responding to, evaluating, negotiating or complying with
that request or requirement and preparing and implementing
such amendment, waiver or consent."
77. Clause 20.1.1 (Status) of the Original Facility Agreement is amended by
deleting such clause in its entirety and replacing it with the
following clause:
"20.1.1 STATUS
The Borrower is a corporation duly incorporated and validly
existing under the laws of Slovenia and has the power and,
except as expressly disclosed to the Off Shore Facility Agent
prior to the Second Amendment Agreement Effective Date, all
necessary governmental and other material Authorisations under
any applicable jurisdiction to own its property and assets and
to carry on its business as currently conducted."
78. Clause 20.1.6(a) (Authorisations) of the Original Facility Agreement is
amended by deleting the word "All" at the beginning of such clause and
replacing it with the words:
"Except as expressly disclosed to the Off Shore Facility Agent prior to
the Second Amendment Agreement Effective Date, all"
79. Clause 20.1.12(d) (Financial statements) of the Original Facility
Agreement is amended by deleting the word "There" at the beginning of
such clause and replacing it with the words:
"As at and prior to the Second Amendment Agreement Effective Date,
except as expressly disclosed to the Off Shore Facility Agent and
distributed to the Banks, there"
80. Clause 20.1.26 (Amendments to Material Contracts) of the Original
Facility Agreement is amended by deleting the word "(Amendments)" in
the second line of such clause and replacing it with the word
"(Amendments))".
81. Clause 21 (Reporting Requirements) of the Original Facility Agreement
is amended by deleting the first paragraph of such clause in its
entirety and replacing it with the following paragraph:
- 27 -
"The undertakings in this Clause 21 remain in force from the date of
this Agreement for so long as any amount is outstanding under the
Finance Documents (other than the Sponsors Unsecured Loan Agreement, to
the extent that amounts remain outstanding thereunder after all amounts
outstanding under the other Finance Documents have been repaid in full)
or any Commitment is in force."
82. Clause 21.1 (Financial statements and other information) of the
Original Facility Agreement is amended by deleting such clause in its
entirety and replacing it with the following clause:
"21.1 FINANCIAL STATEMENTS AND OTHER INFORMATION
The Borrower shall supply to the Off Shore Facility Agent in
sufficient copies for all of the Banks:
(a) as soon as the same become available, but in any
event not later than 120 days after the end of each
financial year one set of its audited annual
financial statements for that financial year prepared
in accordance with US GAAP and one set of its audited
annual financial statements for that financial year
prepared in accordance with Slovenian Accounting
Standards;
(b) from the Second Amendment Agreement Effective Date,
as soon as the same become available, but in any
event not later than 120 days after the end of each
financial year one set of the consolidated audited
annual financial statements of the Group for that
financial year prepared in accordance with US GAAP;
(c) as soon as the same becomes available, but in any
event not later than six weeks after the commencement
of a new financial year of the Borrower, the Updated
Business Plan in respect of the following financial
year which shall, without limitation:
(i) be in the same format and comprise the same
items as the most recent Business Plan and
otherwise include a description of any
changes and sufficient information, in form
and substance as may be reasonably required
by the Off Shore Facility Agent, to enable
the Banks to make an accurate comparison
between the most recent Business Plan and
such Updated Business Plan;
(ii) demonstrate that the Borrower is in
compliance with the requirements of Clause
22 (Financial covenants and network
milestones) (to the extent such requirements
are applicable to the Borrower) and such
Updated Business Plan is consistent with
Clause 24 (General undertakings); and
(iii) include a profit and loss statement, balance
sheet, cash flow statement and details of
investments in fixed assets, capital
- 28 -
and operation expenditures updated to
reflect the circumstances then existing and
anticipated for the forthcoming financial
year and any information relevant at such
time that was not included in the Initial
Business Plan; and
(iv) include an outline of major future business
plans;
PROVIDED THAT if at any time the then current
Business Plan is updated or amended by the Borrower,
it shall forthwith supply to the Off Shore Facility
Agent such updates or amendments and a description
and explanation thereof;
(d) from the Second Amendment Agreement Effective Date,
as soon as the same becomes available, but in any
event not later than six weeks after the commencement
of a new financial year of Western Wireless
International Corporation, a three year business plan
for the Group in respect of the following three
financial years which shall, without limitation:
(i) be in the same format and comprise the same
items as the most recent business plan for
the Group as set out in Exhibit 2 and
otherwise include a description of any
changes and sufficient information, in form
and substance as may be reasonably required
by the Off Shore Facility Agent, to enable
the Banks to make an accurate comparison
between the most recent three year business
plan and such updated business plan;
(ii) demonstrate that the Group is in compliance
with the requirements of Clause 22
(Financial covenants and network
milestones); and
(iii) include a profit and loss statement, cash
flow statement and details of investments
in, capital and expenditures in each case on
a consolidated basis in respect of the Group
in the same format as the most recent
business plan for the Group and updated to
reflect the circumstances then existing and
anticipated for the forthcoming three
financial years and any information relevant
at such time that was not included in the
previous business plan; and
(iv) include an outline of major business
developments;
PROVIDED THAT if at any time the then current
business plan for the Group is updated or amended the
Borrower shall forthwith supply to the Off Shore
Facility Agent such updates or amendments and a
description and explanation thereof;
- 29 -
(e) as soon as the same becomes available but in any
event not later than 45 days after the end of each
Quarter and starting as at 31 December 2001, a
management report for that Quarter, signed by the
CFO, which shall include, without limitation:
(i) a profit and loss statement, balance sheet,
cash flow statement, details of investments
in fixed assets, debt profile (including
aggregate lease obligations) short term and
long term for the Borrower and in addition,
from the Second Amendment Agreement
Effective Date, on a consolidated basis for
the Group;
(ii) from the Second Amendment Agreement
Effective Date, details of any funding that
has been provided by Western Wireless
International Corporation in the preceding
Quarter to ensure that at all times the
balance standing to the credit of the
Proceeds and Revenues Account is equal to or
greater than Euro 1;
(iii) a list of all existing accounts of the
Borrower identifying the financial
institution with which those are held and
the balances thereon; and
(iv) a Project Status and Progress Report setting
out in detail information addressing the
matters referred to in Schedule 15 (Project
Status and Progress Report) (signed by the
CFO and the chief technical officer of the
Borrower); and
(f) until the Second Amendment Agreement Effective Date,
every week bank statements (in the form agreed
between the Off Shore Facility Agent, the On Shore
Facility Agent and Hypo Alpe-Adria-Bank d.d.) in
respect of the Permitted Accounts and the Proceeds
and Revenue Accounts and the Borrower authorises and
instructs the On Shore Facility Agent and Hypo
Alpe-Adria-Bank d.d. to provide such bank statements
in respect of the Proceeds and Revenue Accounts to
the Off Shore Facility Agent at such times."
83. Clause 21.2(a) (Requirements as to financial statements) of the
Original Facility Agreement is amended by deleting such clause in its
entirety and replacing it with the following clause:
"(a) Each set of financial statements delivered by the Borrower
pursuant to Clause 21.1 (Financial statements and other
information) shall be certified by the CFO (or if in respect
of the Group the chief financial officer of Western Wireless
International Corporation) as fairly representing its (or in
the case of the Group, the Group's) financial condition as at
the end of and for the period up to the date as at which those
financial statements were drawn up."
- 30 -
84. Clause 21.3 (Covenant Compliance Certificate) of the Original Facility
Agreement is amended by deleting such clause in its entirety and
replacing it with the following clause:
"21.3 COVENANT COMPLIANCE CERTIFICATE
(a) The Borrower shall supply the Off Shore Facility
Agent, with each set of financial statements prepared
in accordance with US GAAP delivered pursuant to
Clauses 21.1(a), 21.1(b) and 21.1(e)(i) (Financial
statements and other information), a Covenant
Compliance Certificate setting out (in reasonable
detail) computations as to compliance with Clause 22
(Financial covenants and network milestones) as at
the date as at which those financial statements were
drawn up and confirming compliance with the
requirements of Clause 23.3 (Application of moneys on
the Proceeds and Revenue Accounts).
(b) Each Covenant Compliance Certificate shall be signed
by the CFO (or if the financial statements are in
respect of the Group the chief financial officer of
Western Wireless International Corporation) and, if
required to be delivered with the financial
statements delivered pursuant to Clause 21.1(a)
(Financial statements and other information), shall
be reported on by the Borrower's or the Group's
auditors, as the case may be."
85. Clause 21.4 (Information: miscellaneous) of the Original Facility
Agreement is amended by deleting such clause in its entirety and
replacing it by the following clause:
"21.4 INFORMATION: MISCELLANEOUS
The Borrower shall supply the Off Shore Facility Agent (in
sufficient copies for all the Banks, if the Off Shore Facility
Agent so requests) with:
(a) all documents dispatched by the Borrower or a member
of the Group to its creditors generally at the same
time as they are dispatched;
(b) promptly upon becoming aware of them, the details of
any litigation, arbitration or administrative
proceedings against the Borrower or a member of the
Group (which are not considered to be frivolous or
vexatious) which are current, threatened or pending,
and which might, if adversely determined, have a
Material Adverse Effect;
(c) promptly, such further information regarding its or
the Group's financial condition, business and
operations as any Finance Party (through the Agent)
may reasonably request; and
(d) any other information that from time to time may be
reasonably asked for by the Off Shore Facility Agent
and the Independent Technical Consultant."
- 31 -
86. Clause 21.6 (Business Plan Review) of the Original Facility Agreement
is amended by deleting such clause in its entirety and replacing it
with the following clause:
"21.6 BUSINESS PLAN REVIEW
21.6.1 Within the earlier of:
(a) 14 days from the receipt by the Off Shore Facility
Agent of an Updated Business Plan; and
(b) eight weeks from the commencement of a financial year
of the Borrower,
the Borrower and the Off Shore Facility Agent shall meet and
review the Updated Business Plan delivered in accordance with
Clause 21.1(c) (Financial statements and other information)."
"21.6.2 In addition to the requirements of Clause 21.6.1, from the
Second Amendment Agreement Effective Date, the Borrower shall
use its best endeavours to procure Western Wireless
International Corporation to meet, within the same period set
out in Clause 21.6.1, the Off Shore Facility Agent to review
the three year business plan delivered in accordance with
Clause 21.1(d) (Financial statements and other information).
21.6.3 The Borrower shall (with respect to its Business Plan), and
shall use its best endeavours to procure Western Wireless
International Corporation to (with respect to any Group
business plan), meet the Off Shore Facility Agent and review
any updates or amendments provided pursuant to Clause 21.1(c)
or Clause 21.1(d) respectively (Financial statements and other
information) within 14 days from the receipt by the Off Shore
Facility Agent of such updates or amendments."
87. Clause 21.7 (Building Permit Reports) of the Original Facility
Agreement is amended by deleting such clause in its entirety and
replacing it with the following clause:
"21.7 BUILDING PERMIT REPORTS
21.7.1 The Borrower shall use its best efforts to obtain all
outstanding building permits as soon as possible.
21.7.2 The Borrower shall provide to the Off Shore Facility Agent
within 10 Business Days of the last day of each Month from the
date of the First Amendment Agreement until the Second
Amendment Agreement Conditions Satisfaction Date and
thereafter within 10 Business Days of the last day of each
Quarter until the date on which all building permits are
obtained, a report indicating:
(a) the number of sites for which building permits have
been achieved;
(b) the number of sites for which building permits remain
outstanding; and
- 32 -
(c) an explanation as to the status of applications for
all outstanding permits including details of any
problems encountered in relation to the obtaining of
those permits and the steps taken by the Borrower to
remedy such problems."
88. Clause 22 (Financial Covenants and Network Milestones) of the Original
Facility Agreement is amended by deleting such clause in its entirety
and replacing it with the following clause:
"22. FINANCIAL COVENANTS AND NETWORK MILESTONES
The calculation of ratios and other amounts under this Clause
22 shall be made by reference to the most recent financial
statements, Covenant Compliance Certificate and Project Status
and Progress Report for the period or periods in relation to
which the calculation or determination falls to be made.
22.1 SPONSOR CONTRIBUTIONS
22.1.1 The Borrower shall request the Sponsors make their funding
contributions in accordance with the Sponsors' and
Shareholders' Undertaking and Completion Guarantee.
22.1.2 Until the Second Amendment Agreement Effective Date, the
Borrower shall ensure that, at all times, the Contributed
Capital Ratio is at least 0.4.
22.2 STAGE I COVENANTS
From the first Utilisation until the Second Amendment
Agreement Effective Date, the Borrower shall ensure that the
financial and performance parameters set out in Clauses
22.2(a) to (d) are achieved, as confirmed by the Independent
Technical Consultant in respect of the performance parameters
set out in paragraphs (a) and (b) below and in accordance with
Clause 22.4 (Confirmation by Independent Technical
Consultant), to the satisfaction of the Off Shore Facility
Agent (acting reasonably) by the dates set out therein:
(a) MINIMUM SUBSCRIBERS
The number of Subscribers shall be:
(i) as at 31 March 2002, at least 8,000;
(ii) as at 30 June 2002, at least 40,000; and
(iii) as at 31 December 2002, at least 80,000;
(b) POPULATION COVERAGE
The Population Coverage shall be:
(i) as at 28 February 2002, at least 60%;
(ii) as at 31 March 2002, at least 65%;
- 33 -
(iii) as at 30 June 2002, at least 65% or 70% if
no national roaming agreement is in place;
and
(iv) as at 31 December 2002, at least 80%;
(c) QUARTERLY REVENUE TEST
At the end of each Quarter commencing from 31 March
2002 until the Second Amendment Agreement Effective
Date, the Service Revenues in Euro shall be at least:
(i) in respect of the period from 1 January 2002
to 30 June 2002, 80% of the Service Revenues
forecast in the table below; and
(ii) thereafter, 85% of the Service Revenues
forecast in the table below.
Q I 2002 Q II 2002 Q III 2002 Q IV 2002
--------------------------------------------------------------------------
Forecast
Service
Revenues 487,046 3,132,584 2,037,802 3,556,654
--------------------------------------------------------------------------
Applicable
Percentage
of Service
Revenues 389,637 2,506,067 1,732,132 3,023,156
--------------------------------------------------------------------------
Q I 2003 Q II 2003
----------------------------------------------------------------
Forecast Service
Revenues 6,162,659 8,282,223
----------------------------------------------------------------
Applicable Percentage
of Service Revenues 5,238,260 7,039,890
----------------------------------------------------------------
(d) QUARTERLY EBITDA TEST
At the end of each Quarter commencing from 31
December 2001 until the Second Amendment Agreement
Effective Date the aggregate EBITDA in Euro of the
immediately preceding two Quarters shall not
negatively deviate more than 15% from the level set
out in column headed "Aggregate EBITDA Base Case" in
the table below.
- 34 -
MAXIMUM
NEGATIVE
AGGREGATE AGGREGATE
EBITDA BASE EBITDA BASE EBITDA
CASE CASE (-15%)
-------------------------------------------------------------------------
Quarter IV 2001 - 4,271,528 - 7,397,292 - 8,876,751
-------------------------------------------------------------------------
Quarter I 2002 - 5,912,729 - 10,184,257 - 12,669,263
-------------------------------------------------------------------------
Quarter II 2002 - 7,818,181 - 13,730,910 - 16,388,161
-------------------------------------------------------------------------
Quarter III 2002 - 6,536,862 - 14,355,043 - 16,888,286
-------------------------------------------------------------------------
Quarter IV 2002 - 8,598,335 - 15,135,197 - 17,806,115
-------------------------------------------------------------------------
Quarter I 2003 - 4,764,173 - 13,362,508 - 15,720,598
-------------------------------------------------------------------------
Quarter II 2003 - 4,425,510 - 9,189,683 - 10,811,392
-------------------------------------------------------------------------
22.3 STAGE II COVENANTS
(a) MINIMUM CONSOLIDATED TANGIBLE NET WORTH
As at 31 December of each financial year, commencing
from the Second Amendment Agreement Effective Date,
the Consolidated Tangible Net Worth of the Group
shall be greater than zero.
(b) MINIMUM CONSOLIDATED EBITDA
As at 31 December of each financial year set out
below, commencing from the Second Amendment Agreement
Effective Date, the Consolidated EBITDA of the Group
in Euro for such financial year shall not be less
than the product of (i) the principal amount of Loans
outstanding on 31 December of such financial year,
multiplied by (ii) the number set out below the
relevant year in the table below:
GROUP
FINANCIAL
YEAR 2003 2004 2005 2006
---------------------------------------------------------------------
MULTIPLE 0.2 1.0 2.0 3.2
(c) For the purpose of determining compliance with this
Clause, amounts denominated in any currency other
than Euros shall be converted:
- 35 -
(i) first, into US Dollars on the same basis
such amounts are converted into US Dollars
for the purposes of preparing the Group's
consolidated audited financial statements;
and
(ii) thereafter, from US Dollars into Euros using
the reciprocal exchange rate applicable in
paragraph (i) above.
22.4 CONFIRMATION BY INDEPENDENT TECHNICAL CONSULTANT
The figures in Clauses 22.2(a) and (b) (Stage I covenants)
shall be confirmed by the Independent Technical Consultant
annually commencing on 31 December 2002 and ending on the
Second Amendment Agreement Effective Date."
89. Clause 23.3(d) (Application of moneys on the Proceeds and Revenue
Accounts) of the Original Facility Agreement is amended by deleting
such clause in it entirety and replacing it with the following clause:
"(d) subject to Clause 23.9 (Debt Service Reserve Account) and
Clause 23.6.2 (Debt Service Account) all Proceeds and Revenues
(other than those expressly referred to in paragraphs (a) to
(c) above) shall be applied for the following purposes and
exclusively in the following order:
(i) first, in and towards payment of any Tax payment due
and payable;
(ii) second, in or towards payment of all due and payable
operating costs as shown in the 2002 Revised Business
Plan and from the Second Amendment Agreement
Conditions Satisfaction Date, the Vega Status Quo
Business Plan as set out in Exhibit 1 and thereafter
any Updated Business Plan (including amounts in
respect of direct costs payable under the Management
Agreement which are provided for in the Initial
Business Plan but excluding any amounts payable under
the Lucent Loan Agreement);
(iii) third, in or towards payment of all due and payable
on-going capital costs in relation to the build-out
of the Network as shown in the 2002 Revised Business
Plan and from the Second Amendment Agreement
Conditions Satisfaction Date, the Vega Status Quo
Business Plan as set out in Exhibit 1 and thereafter
any Updated Business Plan and necessary to perform
its business but excluding any amounts payable under
the Lucent Loan Agreement;
(iv) fourth, in and towards Debt Service Payments due and
payable and payments to be made to the Debt Service
Account in accordance with Clause 23.6 (Debt Service
Account) which shall be applied:
(1) towards payment of any unpaid costs and
expenses of the Banks, the Agents, the
Security Agents, with the exception of the
payments mentioned under paragraphs (2) to
(4) and (viii) below;
- 36 -
(2) in or towards payment of any amount due and
payable under the Hedging Agreements;
(3) in or towards payment of any accrued
interest and fees due and payable to the
Banks hereunder and to the Sponsors under
the Sponsors Unsecured Loan Agreement and
Lucent Technologies Inc. under the Lucent
Loan Agreement;
(4) in or towards payment of any principal due
and payable to the Banks under this
Agreement and to the Sponsors under the
Sponsors Unsecured Loan Agreement and Lucent
Technologies Inc. under the Lucent Loan
Agreement;
(v) fifth, in or towards any payment of any amount due
and payable into the Debt Service Reserve Account in
accordance with Clause 23.9 (Debt Service Reserve
Account);
(vi) sixth, in and towards payment of all due and payable
operating costs and expenses that have not been paid
pursuant to Clause 23.3(d)(ii);
(vii) seventh, in or towards payment of capital costs in
the amounts and at the times set out in the Business
Plan (which, prior to the Second Amendment Agreement
Conditions Satisfaction Date, shall be the Initial
Business Plan and the 2002 Revised Business Plan) and
subject to Clause 23.3(e)(ii) amounts in respect of
any margin payable under the Management Agreement in
an amount not exceeding (A) US Dollars 700,000 or its
equivalent in the financial year ending 31 December
2002 and (B) in each financial year thereafter the
lesser of (Y) 50% of any direct costs payable under
the Management Agreement and (Z) US Dollars 700,000
or its equivalent;
(viii) eighth, in payment, prior to the Second Amendment
Agreement Conditions Satisfaction Date, of any
amounts planned to be paid by the Borrower in the
immediately following 12 month period in respect of
capital expenditure to the Capital Expenditure
Reserve Account PROVIDED THAT any amounts standing to
the credit of such account on the Second Amendment
Agreement Conditions Satisfaction Date shall be paid
into the Proceeds and Revenues Accounts;
(ix) ninth, in prepayment of the Facilities in accordance
with Clause 14.5 (Mandatory prepayments); and
(x) tenth, in or towards any payment due and payable to
the Shareholders (including any interest payable on
any Subordinated Loans or other amounts payable under
the Management Agreement that have not been paid
pursuant to Clauses 23.3(d)(ii) or (vii) or any
prepayment pursuant to the Sponsor Subordinated Loan
Agreement #2) in an amount not to exceed 50% of the
Excess Cash Flow."
- 37 -
90. Clause 23.3(e)(ii)(1) (Application of moneys on the Proceeds and
Revenue Accounts) of the Original Facility Agreement is amended by
deleting such clause in its entirety and replacing it with the
following clause:
"(1) from the date of the First Amendment Agreement until 1 January
2005 such fees (the "SUBORDINATED MANAGEMENT FEES") may only
be paid, subject to Clause 23.3(e)(iii), in accordance with
paragraph (x) above and the obligations of the Borrower to pay
the Subordinated Management Fees outstanding between the date
of the First Amendment Agreement and 1 January 2005 shall be
converted into and treated as Subordinated Loans;"
91. Clause 23.3(f) (Application of moneys on the Proceeds and Revenue
Accounts) of the Original Facility Agreement is amended by deleting
such clause in its entirety and replacing it with the following clause:
"(f) Payments by the Borrower from the Proceeds and Revenue
Accounts to the Shareholders pursuant to paragraph (d)(x)
above are permitted only:
(i) from the expiry of the Availability Period of the
Euro Facility;
(ii) subject to the absence of an Event of Default or
Potential Event of Default;
(iii) upon provision of the most recent financial
statements required in accordance with Clause 21
(Reporting requirements) covering the relevant period
and showing a net profit before payments are made to
the Shareholders;
(iv) upon the provision of a Covenant Compliance
Certificate confirming that the Borrower complies
with the financial covenants and other requirements
set out in the Covenant Compliance Certificate; and
(v) within a period of ten (10) Business Days following a
Repayment Date of a Euro Facility Loan."
92. Clause 23.7.1 (Capital Expenditure Reserve Account) of the Original
Facility Agreement is amended by the adding the following words after
the words " Utilisation Date" in the third line of such clause:
"which shall remain open until the Second Amendment Agreement
Conditions Satisfaction Date"
93. Clause 23.8.2 (Loan Proceeds Account) of the Original Facility
Agreement is amended by deleting such clause in its entirety and
replacing it with the following clause:
"23.8.2 The Borrower may withdraw amounts standing to the credit of
the Loan Proceeds Account PROVIDED THAT funds so withdrawn are
used:
- 38 -
(a) to make payment in respect of Project Costs but in
the case of the proceeds of any Loans, excluding any
amounts payable to the Debt Service Reserve Account;
and
(b) after giving effect to the conversion of Euro
18,500,000 of Existing WWIC Loans into Sponsors
Contributions and Euro 1,561,318.60 of Existing WWIC
Loans into Sponsors Unsecured Loans, to repay any
remaining Existing WWIC Loans which are outstanding
in respect of agreed Project Costs PROVIDED THAT:
(i) such repayment is made from the proceeds of
a Utilisation of the Commercial Facility;
(ii) no Event of Default or Potential Event of
Default will be caused by such repayment;
(iii) no Cash Shortfall will be caused by such
repayment;
(iv) no breach of the financial covenants set out
in Clause 22 (Financial covenants and
network milestones) will be caused by such
repayment;
(v) interest shall be payable thereon at the
rate set out in the Existing WWIC Loan
Agreement; and
(vi) the Borrower has obtained the prior written
approval of the Off Shore Facility Agent,
which will not be withheld if the Off Shore
Facility Agent is satisfied that conditions
set out in this paragraph (b) are met and
the Off Shore Facility Agent has received:
(1) a certificate, in form and substance
reasonably satisfactory to the Off
Shore Facility Agent, signed by a
director of the Borrower stating
that the Existing WWIC Loans to be
repaid were in respect of payments
made for Project Costs; and
(2) evidence of payment of the Existing
WWIC Loans to the Borrower and
payment by the Borrower of the
respective Project Costs; and
(c) from the Second Amendment Agreement Effective Date,
in accordance with Clause 23.3(d)(i) to (vii)
(Application of moneys on the Proceeds and Revenue
Accounts) to fund amounts payable by the Borrower,
strictly in accordance with the terms of that
Clause."
- 39 -
94. Clause 23.9.3(d) (Debt Service Reserve Account) of the Original
Facility Agreement is amended by deleting such clause in its entirety
and replacing it with the following clause:
"(d) Each Agent may assume:
(i) for the purposes of calculating the Debt Service
Payments (other than in respect of principal
repayments) under the Facilities, the Hedging
Agreements and the Lucent Loan Agreement that:
(1) interest will accrue for the following six
(6) Month period under the relevant Facility
and the Lucent Loan Agreement on principal
outstanding at the rate of interest which
applies on the relevant date of calculation
(including the Applicable Margin thereunder
at such time);
(2) the principal outstanding under the
Facilities and the Lucent Loan Agreement
during the following six (6) Month period is
the principal amount outstanding on the
relevant date of calculation taking into
account any repayments that are required to
be made in such period pursuant to Clause 13
(Repayment); and
(3) until the Second Amendment Agreement
Effective Date, any outstanding SIT Facility
Loans on the relevant date of calculation
will be refinanced with SIT Facility
Rollover Loans;
(ii) for the purposes of calculating the Debt Service
Payments under the Facilities, the Hedging Agreements
and the Lucent Loan Agreement in respect of principal
repayments that fall due over the following six (6)
Month period:
(1) only those repayments and, in the case of
the SIT Facility, reductions of the SIT
Facility Commitment, required to be made
under Clause 13 (Repayment) will be made;
and
(2) until the Second Amendment Agreement
Effective Date, any outstanding SIT Facility
Loans on the relevant date of calculation
will be refinanced with SIT Facility
Rollover Loans."
95. Clause 23.9.4 (Debt Service Reserve Account) of the Original Facility
Agreement is amended by deleting the words "(Contingent Equity)" in the
fifth and sixth lines of such clause and replacing them with the words
"(Additional Funding Obligations)".
96. Clause 24.1(b) (Maintenance of legal validity) of the Original Facility
Agreement is amended by adding the following words after the words
"promptly apply for and" at the beginning of such clause:
- 40 -
", subject to Clause 21.7.1 (Building Permit Reports) and Clause
24.18(b) and (c) (Real estate site leases and other contracts relating
to the use of land),"
97. Clause 24.2(a) (Authorisations to conduct business) of the Original
Facility Agreement is amended by adding the following words after the
words "Licence and" at the end of the second line of such clause:
",subject to Clause 21.7.1 (Building Permit Reports) and Clause 24.18
(b) and (c) (Real estate site leases and other contracts relating to
the use of land),"
98. Clause 24.5 (Network) of the Original Facility Agreement is amended by
deleting the words "in accordance with prudent industry practice" from
the third and fourth lines of such clause and replacing them with the
following words:
"if a failure to do so might reasonably be expected to breach the terms
of the Licence or impair or prejudice the Senior Creditors' rights
under the Security Documents"
99. Clause 24.6 (Insurance) of the Original Facility Agreement is amended
by deleting such clause in its entirety and replacing it with the
following clause:
"24.6 INSURANCE
The Borrower shall give effect to the insurance requirements
set out in Schedule 11 (Insurance), as the same may be amended
from time to time with the consent of the Majority Banks."
100. Clause 24.18 (Real estate site leases and other contracts relating to
the use of land) of the Original Facility Agreement is amended by
deleting such clause in its entirety and replacing it with the
following clause:
"24.18 REAL ESTATE SITE LEASES AND OTHER CONTRACTS RELATING TO THE
USE OF LAND
(a) The Borrower shall exercise all of its rights and/or
options to extend the term of, and shall not exercise
any options to terminate, any of the real estate site
leases or other contracts relating to the use of land
unless it would not:
(i) cause an interruption to the operation of
the Network; or
(ii) be necessary to the operation of the
Project; and
(iii) affect the Security created under the
Security Documents.
(b) The Borrower shall validly register at the competent
Slovenian land registry its rights of use and/or of
entry against the respective owner obtained according
to any real estate site lease upon which Material
Assets subject to the Asset and Licence Pledge and
Lease Contracts Assignment Agreement are situated
(except for the 13 real estate site leases entered
into with Electro Slovenia and its affiliates, RTV
and its
- 41 -
affiliates) within twenty (20) Months from the date
of the Second Amendment Agreement.
(c) The Borrower shall use its best efforts to obtain the
consent of each of the owners of the land the subject
of the lease agreements which are the subject of the
Lease Agreement Assignments as soon as possible."
101. Clause 24.22 (Bank accounts) of the Original Facility Agreement is
amended by deleting such clause in its entirety and replacing it with
the following clause:
"24.22 BANK ACCOUNTS
Prior to the Second Amendment Agreement Effective Date, the
Borrower shall not open any bank accounts except:
(a) as provided in this Agreement;
(b) Permitted Accounts; or
(c) with the prior written consent of the Off Shore
Facility Agent and subject to the Borrower's
compliance with any conditions attached thereto,
and thereafter, may open and use additional bank accounts
(after giving notice to the Off Shore Facility Agent of the
details thereof) PROVIDED THAT in each case such accounts are
held with an Original SIT Facility Bank and secured to the
satisfaction of the Off Shore Facility Agent and in the case
of accounts opened after the Second Amendment Agreement
Effective Date such accounts must be secured within 30 days
after opening by the Borrower."
102. Clause 24.27(a)(i) (Amendments) of the Original Facility Agreement is
amended by deleting such clause in its entirety and replacing it with
the following clause:
"(i) such modification, substitution or amendment relates to the
same subject matter (and in the case of substitution such
Material Contract is substituted by another contract) and:
(1) does not result in and is not reasonably expected to
have an adverse effect on the Borrower's obligations
under the Licence or cause a breach thereof;
(2) does not and is not reasonably expected to impair or
prejudice the Senior Creditors' rights under the
Security Documents; and
(3) does not and is not reasonably expected to have a
Material Adverse Effect."
103. Clause 24.33 (UMTS and other licences) of the Original Facility
Agreement is amended by deleting the final paragraph of such clause and
replacing it with the following paragraph:
- 42 -
"(c) The Borrower shall promptly notify the Off Shore Facility
Agent if it or any of its Affiliates acquires any
telecommunications business or any new licence (excluding any
renewal of or addition to any existing telecommunications
licence), in particular any UMTS licence."
104. Clause 24.39 (Roaming) of the Original Facility Agreement is amended by
adding the words "(as amended on 11 November 2002)" after the words "9
November 2001" in the second line of such clause.
105. Clause 25.1.1 (Non-payment) of the Original Facility Agreement is
amended by adding the words "or a Sponsor on behalf of the Borrower"
after the words "The Borrower" at the beginning of such clause.
106. Clause 25.1.2(b) (Financial covenants and network milestones) of the
Original Facility Agreement is amended by deleting such clause in its
entirety and replacing it with the following clause:
"(b) No Event of Default under paragraph (a) above will occur if
failure to satisfy such requirement, if capable of remedy, is
remedied within 30 Business Days PROVIDED THAT in the event
that any of the requirements of Clause 22 (Financial covenants
and network milestones) (other than Clauses 22.2(a) and (b))
is not satisfied, then, in addition to any other actions that
may be taken to correct such failures, within five (5)
Business Days of delivery of the Covenant Compliance
Certificate, the Shareholders may, in addition to the
Sponsors' rights and obligations under the Sponsors' and
Shareholders' Undertaking and Completion Guarantee, cure such
failure to satisfy any such requirement by:
(i) making Subordinated Loans and/or Equity Contributions
to the Borrower (PROVIDED THAT after the date of the
Second Amendment Agreement such contributions must be
Equity Contributions) which Subordinated Loans and/or
Equity Contributions shall be treated as having been
contributed on the last day of the relevant Quarter
and additional capital or revenues of the Borrower;
(ii) after the Second Amendment Agreement Effective Date,
making equity contributions to any member of the
Group or Western Wireless International Corporation
receiving from Western Wireless International Holding
Corporation contributions or funding which shall be
treated (for the purposes of determining Consolidated
Tangible Net Worth) as having been made as at 31
December of the relevant Financial year; or
(iii) making Equity Contributions and procure the
pre-repayment of Loans, in whole or part, and the
prepayment shall be considered to have been made as
at 31 December of the relevant financial year."
- 43 -
107. Clauses 25.1.9(a), (b) and (c) (Insolvency proceedings) of the Original
Facility Agreement are amended by deleting the words "the Borrower" in
each such clause and replacing them with the words "a Debtor" in each
such clause.
108. Clause 25.1.10 (Litigation) of the Original Facility Agreement is
amended by deleting the words "the Borrower" in the second and third
lines of such clause and replacing them with the words "a Debtor".
109. Clause 25.1.12 (Illegality) of the Original Facility Agreement is
amended by deleting such clause in its entirety and replacing it with
the following clause:
"25.1.12 ILLEGALITY
At any time it is or becomes unlawful for a Debtor to perform
or comply with any of its material obligations under the
Finance Documents or any of the material obligations of that
Debtor hereunder (in the case of the Borrower) or thereunder
(in the case of a Debtor) are not or cease to be legal, valid
and binding."
110. Clause 25.1.13 (Sponsors' and Shareholders' Undertaking and Completion
Guarantee) of the Original Facility Agreement is amended by deleting
the words "clauses 2 (Completion guarantee)" in the first and second
lines of such clause and replacing them with the words "clauses 2
(Guarantee)".
111. Clause 27 (Role of the Agent and the Arranger) of the Original Facility
Agreement is amended by adding the following clause after the end of
Clause 27.16 (Deduction from amounts payable by the Agents) of such
clause:
"27.17 CALCULATION OF EURO EQUIVALENTS AMONG THE FINANCE PARTIES
For such time that there are Euro Facility Loans outstanding,
for the determination of any matter or the calculation of any
amounts vis-a-vis the Finance Parties any amount denominated
in any currency other than Euro shall be converted to the Euro
equivalent thereof at the spot rate of exchange quoted to the
Off Shore Facility Agent at or about 11:00 a.m. (Dusseldorf
time) as of such date which is reasonably determined by the
Off Shore Facility Agent."
112. Clause 32.2(a) (Addresses) of the Original Facility Agreement is
amended by deleting the fax details "+386 1 5801 109" in the "Fax" line
of such clause and replacing it with the following fax details: "+386 1
5801 011".
113. Clause 32.2(c) (Addresses) of the Original Facility Agreement is
amended by deleting the words "Andreas Nestel" in the 'Attention of'
line of such clause and replacing them with the words "Dr. Peer
Gunzel".
114. Clause 32.2(d) (Addresses) of the Original Facility Agreement is
amended by adding the contact details "or +386 1 476 5108" after the
contact number "+386 1 520 7273" in the "Telephone" line of such
clause.
- 44 -
115. Clause 32.2(d) (Addresses) of the Original Facility Agreement is
amended by deleting the words "or Mr. Bostjan Kovae" from the
'Attention of' line of such clause and replacing it with the words "or
Ms. Ida Menard".
116. Schedule 1 (Commitments) of the Original Facility Agreement is amended
by deleting such Schedule in its entirety and replacing it with the
following schedule:
"SCHEDULE 1
COMMITMENTS
PART I
EURO FACILITY
ECA FACILITY
COMMITMENT
--------------------------------------------------------------
ECA FACILITY ECA FACILITY ECA FACILITY COMMERCIAL
TRANCHE 1 TRANCHE 2 TRANCHE 3 FACILITY
FINANCIAL INSTITUTION COMMITMENT COMMITMENT COMMITMENT COMMITMENT
------------------------------------------------------------------------------------------------------------------------
IKB Deutsche Industriebank AG Euro 13,038,702.76 Euro 586,864.81 Euro 1,204,405.24 Euro 11,180,000.00
------------------------------------------------------------------------------------------------------------------------
Kreditanstalt fur Wiederaufbau Euro 14,311,045.58 Euro 644,132.26 Euro 1,321,933.52 Euro 11,180,000.00
------------------------------------------------------------------------------------------------------------------------
Raiffeisenlandesbank
Oberosterreich reg.Gen.m.b.H. Euro 8,026,974.26 Euro 361,289.68 Euro 741,464.09 Euro 6,880,000.00
------------------------------------------------------------------------------------------------------------------------
HSH Nordbank AG Euro 7,074,582.98 Euro 318,423.08 Euro 653,490.23 Euro 6,420,000.00
------------------------------------------------------------------------------------------------------------------------
Hypo Alpe-Adria-Bank AG Euro 2,198,032.14 Euro 98,932.21 Euro 203,035.65 None
------------------------------------------------------------------------------------------------------------------------
DEG - Deutsche Investitions -
und Entwicklungsgesellschaft
mbH None None None Euro 5,000,000
------------------------------------------------------------------------------------------------------------------------
AKA Ausfuhrkredit-
Gesellschaft m.b.H. Euro 2,514,548.77 Euro 113,178.45 Euro 232,272.78 Euro 2,140,000.00
------------------------------------------------------------------------------------------------------------------------
- 45 -
PART II
SIT FACILITY
FINANCIAL INSTITUTION SIT FACILITY COMMITMENT
-----------------------------------------------------------------------------
Nova Ljubljanska Banka d.d., Ljubljana SIT 3,400,000,000.00
-----------------------------------------------------------------------------
Hypo Alpe-Adria-Bank d.d. SIT 1,000,000,000.00
-----------------------------------------------------------------------------
SCHEDULE 1
PART III
LOANS OUTSTANDING ON THE DATE OF THE SECOND AMENDMENT AGREEMENT AND PREPAYMENTS
TO BE MADE ON OR PRIOR TO THE SECOND AMENDMENT AGREEMENT CONDITIONS SATISFACTION
DATE*
COMMERCIAL
ECA FACILITY FACILITY SIT FACILITY TOTAL
----------------------------------------------------------------------------------------------------------------------------
IKB Amount outstanding 8,765,551.71 8,994,208.84 17,759,760.55
before prepayments (EUR)
prepayment I (EUR) -2,029,703.16 -2,082,649.76 -4,112,352.92
prepayment II (USD) -82,108.01 -84,249.88 -166,357.89
----------------------------------------------------------------------------------------------------------------------------
KfW Amount outstanding 9,620,911.86 8,994,208.84 18,615,120.70
before prepayments (EUR)
prepayment I (EUR) -2,227,765.68 -2,082,649.76 -4,310,415.44
prepayment II (USD) -90,120.29 -84,249.88 -174,370.17
----------------------------------------------------------------------------------------------------------------------------
RLB Amount outstanding 5,396,308.15 5,534,897.75 10,931,205.90
before prepayments (EUR)
prepayment I (EUR) -1,249,539.57 -1,281,630.62 -2,531,170.19
prepayment II (USD) -50,547.90 -51,846.07 -102,393.97
----------------------------------------------------------------------------------------------------------------------------
HSH Nordbank Amount outstanding 4,756,042.38 5,164,831.91 9,920,874.29
before prepayments (EUR)
prepayment I (EUR) -1,101,283.13 -1,195,940.20 -2,297,223.33
prepayment II (USD) -44.550,45 -48,379.63 -92,930.08
----------------------------------------------------------------------------------------------------------------------------
AKA Amount outstanding 1,690,460.13 1,721,610.64 3,412,070.77
before prepayments (EUR)
prepayment I (EUR) -391,433.70 -398,646.73 -790,080.43
prepayment II (USD) -15,834.75 -16,126.54 -31,961.29
----------------------------------------------------------------------------------------------------------------------------
DEG Amount outstanding 4,022,454.75 4,022,454.75
before prepayments (EUR)
prepayment I (EUR) -931,417.60 -931,417.60
prepayment II (USD) -37,678.85 -37,678.85
----------------------------------------------------------------------------------------------------------
Hypo-Alpe Wien Amount outstanding 1,477,674.94 1,477,674.94
before prepayments (EUR)
prepayment I (EUR) -342,162.32 -342,162.32
prepayment II (USD) -13,841.57 -13,841.57
----------------------------------------------------------------------------------------------------------------------------
NLB Amount outstanding 1,622,670,000.00 7,091,741.63
before
----------------------------------------------------------------------------------------------------------------------------
- 46 -
COMMERCIAL
ECA FACILITY FACILITY SIT FACILITY TOTAL
----------------------------------------------------------------------------------------------------------------------------
prepayments (SIT)
prepayment I (EUR) -1,642,124.86 -1,642,124.86
prepayment II (USD) -666,930.51 -666,930.51
----------------------------------------------------------------------------------------------------------------------------
Hypo-Alpe Amount outstanding 477,330,000.00 2,086,130.29
Slov, before prepayments (SIT)
prepayment I (EUR) -483,052.91 -483,052.91
prepayment II (USD) -19,541.04 -19,541.04
----------------------------------------------------------------------------------------------------------------------------
Total Amount outstanding EUR EUR SIT EUR 75,317,033.82**
before prepayments 31,706,949.17 34,432,212.73 2,100,000,000.00
prepayment I (EUR) -7,341,887.56 -7,972,934.67 -2,125,177.77 -17,440,000.00
prepayment II (USD) -297,002.97 -322,530.85 -686,471.55 -1,306,005.37
----------------------------------------------------------------------------------------------------------------------------
* All amounts are indicative and for reference purposes only. Any amounts
prepaid in USD shall be converted to the Euro equivalent thereof in
accordance with Clause 1.2.1(d) (Construction) and any amounts to be
prepaid in SIT shall be converted from Euro to SIT at the rate of
exchange quoted by the On Shore Facility Agent to the Off Shore
Facility Agent on or prior to the relevant conversion date.
** In relation to outstandings under the SIT Facility, the applied
exchange rate is the applicable exchange rate as at the date of each
drawdown of the SIT Facility."
117. Schedule 2 (Repayment Dates) of the Original Facility Agreement is
amended by deleting such Schedule in its entirety and replacing it with
the following schedule:
SCHEDULE 2
REPAYMENT DATES
Up to but excluding the Second Amendment Agreement Conditions Satisfaction Date
the Repayment Dates shall be:
REPAYMENT DATE /
REDUCTION DATE ECA FACILITY COMMERCIAL FACILITY SIT FACILITY
---------------------------------------------------------------------------------------
30.05.2004 1.25% 0.00%
---------------------------------------------------------------------------------------
30.11.2004 1.25% 0.00%
---------------------------------------------------------------------------------------
30.05.2005 5.75% 5.75%
---------------------------------------------------------------------------------------
30.11.2005 5.75% 5.75% 5.00%
---------------------------------------------------------------------------------------
30.05.2006 8.00% 8.00%
---------------------------------------------------------------------------------------
30.11.2006 8.00% 8.00% 5.00%
---------------------------------------------------------------------------------------
30.05.2007 10.00% 12.50%
---------------------------------------------------------------------------------------
30.11.2007 10.00% 12.50% 10.00%
---------------------------------------------------------------------------------------
30.05.2008 12.00% 12.50%
---------------------------------------------------------------------------------------
30.11.2008 12.00% 12.50% 20.00%
---------------------------------------------------------------------------------------
- 47 -
REPAYMENT DATE /
REDUCTION DATE ECA FACILITY COMMERCIAL FACILITY SIT FACILITY
---------------------------------------------------------------------------------------
30.05.2009 13.00% 14.00% 20.00%
---------------------------------------------------------------------------------------
30.11.2009 13.00% 8.50% 40.00%
---------------------------------------------------------------------------------------
TOTAL 100.00% 100.00% 100.00%
---------------------------------------------------------------------------------------
From and including the Second Amendment Agreement Conditions Satisfaction Date
the Repayment Dates shall be:
REPAYMENT DATE /
REDUCTION DATE ECA FACILITY COMMERCIAL FACILITY SIT FACILITY
---------------------------------------------------------------------------------------
30 May 2004 1.64% 0.00%
---------------------------------------------------------------------------------------
30 November 2004 1.64% 0.00%
---------------------------------------------------------------------------------------
30 May 2005 7.55% 7.55%
---------------------------------------------------------------------------------------
30 November 2005 7.55% 7.55% 7.09%
---------------------------------------------------------------------------------------
30 May 2006 10.50% 10.50%
---------------------------------------------------------------------------------------
30 November 2006 10.50% 10.50% 7.09%
---------------------------------------------------------------------------------------
30 May 2007 13.13% 16.41%
---------------------------------------------------------------------------------------
30 November 2007 13.13% 16.41% 14.17%
---------------------------------------------------------------------------------------
30 May 2008 15.76% 16.41%
---------------------------------------------------------------------------------------
30 November 2008 15.76% 14.67% 28.35%
---------------------------------------------------------------------------------------
30 May 2009 2.84% 0.00% 28.35%
---------------------------------------------------------------------------------------
30 November 2009 0.00% 0.00% 14.95%
---------------------------------------------------------------------------------------
TOTAL 100.00% 100.00% 100.00%
---------------------------------------------------------------------------------------
118. Schedule 8 (Form of letter of confirmation) of the Original Facility
Agreement is amended by deleting the words "FORM OF LETTER OF
CONFIRMATION" from the heading of such Schedule and replacing them with
the words "FORM OF LETTER OF CONFIRMATION".
119. Schedule 9 (Security Documents - Conditions Precedent and Conditions
Subsequent) of the Original Facility Agreement is amended by deleting
the section headed 'On Shore Security Documents' in its entirety and
replacing it with the following section:
- 48 -
ON SHORE SECURITY DOCUMENTS
STEPS FOR PERFECTION
------------------------------------------------------------------------------------------------------------------------------
DOCUMENT SECURED ASSETS CONDITION PRECEDENT TO DRAWDOWN CONDITION SUBSEQUENT
------------------------------------------------------------------------------------------------------------------------------
ASSET AND Pledged Equipment - Execution of Asset Pledge,
LICENCE PLEDGE Licence Transfer, Licence
AND LEASE Pledge and Lease Contracts
CONTRACTS Assignment Agreement
ASSIGNMENT
AGREEMENT
------------------------------------------------------------------------------------------------------------------------------
- Execution of notarial deed in
respect of Pledged Equipment
------------------------------------------------------------------------------------------------------------------------------
- Provide Schedule 1, 2 & 3 to - Competent court officer must
the Asset and Licence Pledge take record of the pledged
and Lease Contracts assets, make lists of pledged
Assignment Agreement - assets per site and mark the
provide missing addresses of pledged assets by putting
sites and relevant court stickers on them (Court officer
districts, as well as modify when visiting sites to be
designation (description) of accompanied by WWI technical
certain items (confirmed by staff) Borrower shall have
Sami Ali and N. Selih) achieved 50% after 6 months
following the date of signing
of the Facility Agreement
------------------------------------------------------------------------------------------------------------------------------
- Within 9 months of signing of
the Facility Agreement, On Shore
Security Agent to check
conformity of Schedule 1 with
the lists issued by the court;
Nina Selih to give notice of
receipt of the list
------------------------------------------------------------------------------------------------------------------------------
- Application by Selih for
registration of the Asset Pledge
in respect of the Pledged
Equipment with the competent
court (depending on where each
asset is located)
------------------------------------------------------------------------------------------------------------------------------
- Pay notary fees and
application fees for
registration, Nina Selih to
advise Steven Fast of bank
account for fee to be paid
into, Steven Fast to provide
proof of payment (e.g. bank
statement)
------------------------------------------------------------------------------------------------------------------------------
- Copies of the building
permits for sites on which
Pledged Equipment is situated
------------------------------------------------------------------------------------------------------------------------------
Pledged Equipment - 1 month after first drawdown,
II and under the Commercial Facility,
Substitution confirm to On Shore Security
Equipment Agent that title in respect of
Pledged Equipment II has passed
------------------------------------------------------------------------------------------------------------------------------
- 49 -
DOCUMENT SECURED ASSETS STEPS FOR PERFECTION
------------------------------------------------------------------------------------------------------------------------------------
CONDITION PRECEDENT TO DRAWDOWN CONDITION SUBSEQUENT
- So long as any building permits are
outstanding, provide to the On Shore
Security Agent (i) prior to the Second
Amendment Agreement Conditions
Satisfaction Date, 10 Business Days after
the end of each Month, and (ii)
thereafter, 10 Business Days after the
last day of each Quarter a list with those
of the 41 sites for which a building
permit has been issued.
- Within 2 months from the date of issue of
the last building permit in respect of the
41 sites, execution of notarial deed in
respect of Pledged Equipment II and any
Substitution Equipment, if applicable
- Within 1 month from the date of the
notarial deed referred to above, filing of
application of Pledged Equipment II and
any Substitution Equipment, if applicable
- Pay notary fees and application fees for
registration, Nina Selih to advise Steven
Fast of bank account for fee to be paid
into, Steven Fast to provide proof of
payment (e.g. bank statement)
- Within 4 months of the filing of the
application, competent court officer must
take record of the Pledged Equipment II,
make a list of pledged assets per site and
mark the pledged assets by putting
stickers on them
- Within 4 months of the filing of the
application, On Shore Security Agent to
check conformity of Schedule 2 with the
lists issued by the court; Nina Selih to
give notice of receipt of the list
Licence - Copy of concession - Within 5 business days of issue of
licence, inform On Shore and Off Shore
Security Agent and send copy
- Copy of application / bid - Within 2 months after issue of licence,
enter into the contractual pledge (as
attached as a Schedule to Asset Pledge)
- Certificate that as of the - Borrower to sign Power of Attorney as set
date of signing of the out in Schedule 10 (once licence granted)
Facility Agreement no
change/amendment of/to the
Concession Agreement has
been made
- 50 -
DOCUMENT SECURED ASSETS STEPS FOR PERFECTION
------------------------------------------------------------------------------------------------------------------------------------
CONDITION PRECEDENT TO DRAWDOWN CONDITION SUBSEQUENT
Leases - Evidence of filing of the - Borrower to use best efforts to provide
applications for the originals of consent letter from Landlords
registration of the 40 lease I, II and Substitution Landlords
site agreements (except for confirming the consent to the conditional
the 13 leases entered with assignment
Elektro Slovenia and its
affiliates and RTV and its
affiliates) with the
competent courts in
accordance with Clauses
11.4(f) and 12.4(b) of the
Asset and Licence Pledge and
Lease Contracts Assignment;
Agreement
- Copies of Leases I and II and
Substitution Lease (as
applicable)
- File for registration of Substitution
Leases (applicable only in case of
substitution pledge) and, where
applicable, provide the consent of the
relevant Substitution Landlords to the
Substitution Assignment within 2 Months
from the date of receipt of the last
building permit in respect of the 41 sites
- Inform the On Shore Security Agent
immediately of rejection of filed
applications for registration of the
relevant leases in respect of the 41 site
leases (except for the 13 site leases
entered with Elektro Slovenia and its
affiliates and RTV and its affiliates) (eg
where building permit missing) after
becoming aware of such rejection and of
refilling of the application
- Within 20 Months from the date of signing
of the Second Amendment Agreement,
register the relevant leases in respect of
the 41 site leases (with the exception of
the 13 site leases entered with Elektro
Slovenia and its affiliates and RTV and
its affiliates) with the Land Registers
BORROWER'S Shares - Execution of agreement - Within 2 Months from the date of the
SHARE PLEDGE signing of the Facility Agreement,
AGREEMENT register the share pledge with the
Register of Commercial Companies (there
must be an obligation for the Borrower in
the Facility Agreement to provide
evidence for such registration)
- 51 -
DOCUMENT SECURED ASSETS STEPS FOR PERFECTION
------------------------------------------------------------------------------------------------------------------------------------
CONDITION PRECEDENT TO DRAWDOWN CONDITION SUBSEQUENT
- Execution of notarial deed in - Provide evidence of registration within 9
respect of pledged equipment Months from the date of signing of the
Facility Agreement
- Submission to the competent
court in Ljubljana of the
application for the
registration of the share
pledge with the Register of
Commercial Companies
- Pay notary fees and
application fees for
registration of the pledge,
Nina Selih to advise Steven
Fast of bank account for fee
to be paid into, Steven Fast
to provide proof of payment
(e.g. bank statement) and the
escrow agreement relating to
the holding of such envelope
TRADEMARK Trademarks - Execution of agreement - Within 9 months from signing of the
PLEDGE Facility Agreement, provide evidence of
AGREEMENT registration of the TM Pledge by the
PATENT Office
- Withdraw 2 outstanding
applications for registration
of the trademarks "EHO" and
"VIVA" and provide to the On
Shore Security Agent evidence
of such withdrawal at the
latest 10 Business Days before
it makes the first Utilisation
Request under the Facility
Agreement
- Borrower's consent to
registration of the pledge
(Schedule 5)
- Submission to the Patent
Office of application to
register the TM Pledge
- Pay notary fees and
application fees for
registration, Nina Selih to
advise Steven Fast of bank
account for fee to be paid
into, Steven Fast to provide
proof of payment (e.g. bank
statement)
SOFTWARE Oracle Software - Execution of agreement
LICENSE License Agreement
ASSIGNMENT
AGREEMENT
- Schedule 2 - Copy of Deed of
Consent and Waiver
- Schedule 1 (Oracle License
Agreement)
- 52 -
DOCUMENT SECURED ASSETS STEPS FOR PERFECTION
------------------------------------------------------------------------------------------------------------------------------------
CONDITION PRECEDENT TO DRAWDOWN CONDITION SUBSEQUENT
ASSIGNMENT OF Receivables - Signing of agreement
RECEIVABLES AS
SECURITY AND
ASSIGNMENT OF
INSURANCE
POLICIES
AGREEMENT
- Borrower to provide Schedule 1
complete information
- Sealed Envelope (containing
details of all subscribers
(natural persons) must be
submitted to the notary,
identified in the Assignment
of Receivables as Security and
Assignment of Insurance
Policies Agreement
Insurance - Copies of the insurance
policies as required under
the Facility Agreement
- Original vinculation
certificates
- Borrower to provide Schedule 2
(list of insurances, amounts,
claims)
CLAIMS Claims - Signing of agreement
ASSIGNMENT AND
BILLS of
EXCHANGE
AGREEMENT
- Notarised copies of account
agreements (NLB + Hypo
Alpe-Adria Bank) must be
submitted to the Off Shore
Facility Agent
- Acknowledgement by NLB and
Hypo Alpe-Adria Bank
- Schedule 1 (account details)
Bills of Exchange - Provide set of 10 bills of
exchange duly signed and
filled in only with the date
of issuance (Schedule 5)
- Confirmation by holders of
bills of exchange that they
will inform NLB at the latest
5 Business Days before
presenting any bills of
exchange to NLB
120. Schedule 9 (Security Documents - Conditions Precedent and Conditions
Subsequent) of the Original Facility Agreement is amended by deleting
the section headed 'Substitution
- 53 -
Conditions Subsequent For On Shore Security Documents' and replacing it
with the following section:
SUBSTITUTION CONDITIONS SUBSEQUENT FOR ON SHORE SECURITY
DOCUMENTS
In case under Slovenian law moveable assets may validly be pledged by
registering the respective assets with an official register the
following conditions subsequent shall, at the request of the Off Shore
Security Agent, replace the conditions subsequent for the secured
Assets "Pledged Equipment II and Substitution Equipment" under the
Asset and Licence Pledge and Lease Contracts Assignment Agreement set
out above in the table "On Shore Security Documents" in the column
"Conditions Subsequent" and for such purpose the Borrower shall enter
into all necessary documentation to give effect hereto.
DOCUMENT SECURED ASSETS STEPS FOR PERFECTION
------------------------------------------------------------------------------------------------------------------------------------
CONDITION PRECEDENT TO DRAWDOWN CONDITION SUBSEQUENT
ASSET AND Pledged Equipment - 1 month after first drawdown, under the
LICENCE PLEDGE II and Commercial Facility, confirm to On Shore
AND LEASE Substitution Security Agent that title in respect of
CONTRACTS Equipment Pledged Equipment II has passed
ASSIGNMENT
AGREEMENT
- So long as any building permits are
outstanding, provide to the On Shore
Security Agent (i) prior to the Second
Amendment Agreement Conditions
Satisfaction Date, 10 Business Days after
the end of each Month, and (ii)
thereafter, 10 Business Days after the
last day of each Quarter a list with those
of the 41 sites for which a building
permit has been issued.
- Within 10 months after the Second
Amendment Agreement Conditions
Satisfaction Date execution of notarial
deed in respect of Pledged Equipment II
and any Substitution Equipment, if
applicable
- Within 7 months after establishment of the
Slovenian Official Register of the Pledged
Moveables and Pledges (Uradni Registar
Zarubljenih Premicnin in Zastavnih Pravic)
filing of application for registration of
Pledged Equipment II and any Substitution
Equipment, if applicable and provision of
evidence of such filing to Nina Selih
- Pay notary fees, Nina Selih to advise
Steven Fast of bank account for fee to be
paid into, Steven Fast to provide proof of
payment (e.g. bank statement)
- 54 -
121. Paragraph 2(a) of Schedule 10 (Form of Transfer Certificates) of the
Original Facility Agreement is amended by deleting such paragraph in
its entirety and replacing it with the following paragraph:
"(a) The Existing Bank and the New Bank agree to the Existing Bank
transferring to the New Bank [all or part] of the Existing
Bank's Commitment, referred to in the Schedule hereto together
with all corresponding rights and obligations under or in
connection with the Finance Documents in accordance with
Clause 26.5 (Procedure for transfer)."
122. Paragraph 5 of Schedule 10 (Form of Transfer Certificates) of the
Original Facility Agreement is amended by deleting such paragraph in
its entirety and replacing it with the following paragraph:
"5. In respect of:
(a) the transfer of the Existing Bank's Commitment
pursuant to paragraph 2 hereof the Existing Bank
herby transfers in favour of the New Bank an interest
in the Relevant Security Documents set out below, the
exact percentage of which is equal to the proportion
of the claims (from time to time) of the New Bank
against the Borrower under the Facility Agreement to
the aggregate amount of all claims (from time to
time) of the Senior Creditors against the Borrower
under the Facility Agreement, Lucent Loan Agreement
and the Hedging Agreement (as summarised in the
Summarised Hedging Agreement attached as Schedule to
each Relevant Security Document), the amounts of such
claims to be determined in an enforcement situation):
(i) the Borrower's Share Pledge Agreement;
(ii) the Asset and Licence Pledge and Lease
Contracts Assignment Agreement;
(iii) the Claims Assignment and Bills of Exchange
Agreement;
(iv) the Assignment of Receivables as Security
and Assignment of Insurance Policies
Agreement;
(v) the Licence Pledge Agreement;
(vi) the Trademark Pledge Agreement; and
(vii) the Oracle Software Assignment Agreement
(together the "RELEVANT SECURITY DOCUMENTS");
[UPDATE WHERE APPROPRIATE]
- 55 -
(b) the transfer relating to the interest in:
(i) the movable assets specified in notarial
deed no.: SV1314/02
(ii) and the shares specified in notarial deed
no.: SV1315/02
both made on June 11, 2002 by the Notary Miro Kosak,
Ljubljana, the Existing Bank hereby assents to and
permits the registration of such transfer in favour
of the New Bank in relevant court register(s) in
Slovenia. The New Bank may apply to the competent
court registrar for the registration of the transfer
from the Existing Bank to the New Bank in accordance
with this Transfer Certificate.
[UPDATE WHERE APPROPRIATE]"
123. Schedule 11(Insurance) of the Original Facility Agreement is amended by
deleting such Schedule in its entirety and replacing it with the
following schedule:
"SCHEDULE 11
INSURANCE
The Borrower shall comply with the insurance policies in force at the
date of this Agreement and shall enter into, perform and execute the
following insurance requirements as such requirements may be amended
from time to time with the consent of the Majority Banks. Each bank may
prior to consenting to any amendment of the insurance requirements
(Schedule), request always through the Offshore Facility Agent, an
opinion of an independent insurance advisor.
INSURANCE REQUIREMENTS
page
A. ERECTION PHASE INSURANCES
1. Erection All Risk 3
2. Marine Cargo 6
3. Third Party Liability Insurance 9
B. OPERATING PHASE INSURANCES
1. Property All Risks 11
2. Business Interruption 12
3. Third Party Liability 14
4. Marine 15
5. Directors & Officers Liability 16
- 56 -
C. OTHER INSURANCES
1. Automobile Third Party Liability and Own Damage Liability 17
2. Personal Accident & Travel 17
3. Fidelity Guarantee/Crime 17
A. ERECTION PHASE INSURANCES
THE INTENT OF AN ERECTION PHASE INSURANCE IS TO INSURE EVERYTHING THAT IS
DESTINED TO BE PART OF THE FINISHED PROJECT. COVERAGE IS GRANTED DURING THE
PERIOD OF ERECTION AND TESTING. THE INSURANCE COVER SHOULD START WHEN THE
PROPERTY BECOMES AT THE RISK OF THE INSURED (USUALLY UNLOADING AT THE SITE OF
ERECTION) AND SHOULD BASICALLY CONTINUE UNTIL THE PROJECT IS COMPLETED AND
ACCEPTED BY THE OWNER. THE ERECTION PHASE INSURANCE IS THEN TO BE REPLACED BY AN
OPERATING PHASE INSURANCE.
1. ERECTION ALL RISKS
INSURED: (a) The Borrower;
CO-INSURED INTERESTS: (b) the Consortium, Construction Manager, and/or
associated/affiliated companies and/or
sub-contractors and/or co-contractors;
(c) Engineering consultants and/or vendors
and/or suppliers and/or other parties to the
extent required by contract but only in
respect of Project site activities;
(d) the Senior Creditors
DESCRIPTION OF PROJECT: The design, development, financing, engineering,
procurement and construction/ erection, installation,
testing, commissioning, ownership, completion,
operation and maintenance of a mobile network and
connected facilities.
LOCATION OF PROJECT: The Project site and all related buildings and
equipment and all related ancillary and temporary
works whether on or off site and inland transit and
storage.
DESCRIPTION OF COVER: Physical loss, destruction or damage to the erection
works to be undertaken in terms of the
- 57 -
project (being all works in connection with the
design, development, engineering, procurement,
construction, testing, commissioning and defects
liability period of the mobile network including all
preliminary works (including enabling and associated
works and site mobilisation and establishment) and
interconnection work, permanent and temporary works
erected or in the course of erection and all
materials and other things for incorporation therein,
including property of every kind and description
belonging to or in the care, custody or control of
the Insured or held by them in trust or on commission
or for which they are responsible, including but not
limited to machinery, apparatus, materials,
equipment, temporary structures and supplies (but not
including employees construction plant, tools and
equipment and personal effects, Project site
accommodation unless forming part of the permanent
works and contents), including free issue items used
in connection with the Project or intended for
incorporation therein and the spares inventory and
fuel in storage to be included in the Project and
ancillary works.)
PERIOD: From the commencement date until the inception date
of provisional acceptance plus 24 months visit
maintenance of each project.
CONDITIONS: Policy to include inter alia:
(a) interim settlements;
(b) professional fees;
(c) removal to place of safety;
(d) reinstatement of sum insured - no additional
premium;
(e) expediting expenses;
(f) removal of debris 3 % of sums insured,
minimum US$ 250.000,- any one occurrence;
(g) offsite storage & inland transit;
- 58 -
(h) documents and data;
(i) escalation clause - 115% of the total sum
insured;
(j) consecutive events (deductible) - 72 hours
clause;
(k) testing and commissioning, start-up and
operational reliability running;
(l) 50/50 clause;
(m) sue and labour;
(n) public authorities clause for sites with
building permits;
(o) defective design clause incl. damage due to
faulty design, faulty material and faulty
workmanship;
(p) strikes, riots and civil commotion;
(q) hazard risks;
(r) customs duties
(s) non-contribution from other insurance;
(t) existing and neighbouring objects
(u) banks clauses
DEDUCTIBLES: Not to exceed US$ 5,000 each and every loss
SUM INSURED: Full contract value of each project incl. all
shipments. Current sums insured of US$ 15,000,000 as
to be increased from time to time should construction
costs or owner works in aggregate exceed the amount
which would be provided by operation of the
escalation clause or such other amounts as would be
required for full reinstatement of the Project.
2. MARINE CARGO
A MARINE COVER CAN BE PROVIDED BY THE HAULIER/CONSTRUCTION COMPANY OR
BY AN OWN INSURANCE POLICY. HOWEVER THE FOLLOWING ISSUES SHOULD BE
GRANTED.
- 59 -
INSURED: As per Insured for Paragraph 1 of this Part A.
CO-INSURED INTERESTS: As per co-Insured for Paragraph 1 of this Part A.
DESCRIPTION OF COVER: Coverage will extend to all risks of direct physical
loss or damage to materials, supplies, equipment,
machinery, spares and goods required for the Project.
Coverage to be arranged on an open cover basis, for
all risks covering all transport requirements for the
period from the suppliers' premises to arrival at the
Project site and return transits to supplier's
premises and/or easements and includes, for the
avoidance of doubt, unloading and reloading at
temporary locations and transhipment to the Project
site and/or easements.
SUM INSURED: Being the expected maximum value of the largest
single consignment/shipment plus 10% for CIF at least
US$ 2,500,000.
PERIOD: From the date of the despatch of the first
consignment until completion of unloading of the last
consignment at the Project site and/or easements and
any return transit incl. maintenance.
DEDUCTIBLES: Not exceeding US$ 5,000 each and every loss or series
of losses consequent upon one event.
PRINCIPAL EXTENSIONS: (a) all forms of air, sea and land conveyances
to be covered; and
(b) automatic cover, subject to declaration of
values for premium purposes.
PRINCIPAL CONDITIONS: (a) all risks of physical loss or damage as per
institute clauses or equivalent;
(b) institute war clauses (cargo, air cargo) or
equivalent;
(c) institute strikes clause (cargo, air cargo)
or equivalent;
(d) institute classification clause, replacement
clause;
(e) debris removal clause;
- 60 -
(f) 50/50 clause;
(g) offsite storage, intermediate storage;
(h) non contribution from other insurance;
(i) subrogation waiver; and
(j) bank clauses (loss payee clause, assignment
clause).
PRINCIPAL EXCLUSIONS: (a) excluding rust, oxidation, discoloration and
costs of chipping, scratching and
repainting/coating except where
plant/machinery is packed/shipped using
approved specifications; and
(b) excluding electrical and mechanical
derangement unless caused by an insured
peril.
3. THIRD PARTY LIABILITY INSURANCE
INSURED: As per Insured for Paragraph 1 of this Part A
together within each case, each of such party's
servants, agents, officers, employees, secondees and
assigns.
CO-INSURED INTERESTS: As per co-Insured for Paragraph 1 of this Part A
together within each case, each of such party's
servants, agents, officers, employees, seconds and
assigns.
LIMIT OF INDEMNITY: At least US$ 2,500,000 per occurrence or series of
occurrences, during the period of insurance (same
limit as per the general liability insurance).
DESCRIPTION OF COVER: Indemnity in respect of all sums which the Insured
shall become legally liable to pay to third parties
arising out of the project in respect of:
(a) accidental death of, or accidental bodily
injury to, illness or disease contracted by,
any person (the term "bodily injury" shall
be deemed to include mental injury,
defamation, libel and slander); and
- 61 -
(b) accidental loss or damage to property
including but not limited to loss of use,
interference with any easement, right of
air, light or water, stoppage of traffic,
nuisance, trespass, loss of amenities,
destruction, obstruction or any like cause.
GEOGRAPHICAL SCOPE: Slovenia / Worldwide for business travel
PERIOD: From the Commencement Date until the Commercial
Operations Date, plus maintenance period.
DEDUCTIBLES: US$ 1,000 (or local currency equivalent) per
occurrence
PRINCIPAL EXCLUSIONS: (a) liability arising in circumstances requiring
insurances under applicable road traffic
legislation other than constructional plant
as a tool of trade;
(b) liability arising under penalty or
liquidated damages clauses;
(c) liability for loss or damage to the contract
works prior to the Commercial Operations
Date; and
(d) liability arising from aircraft or
watercraft.
PRINCIPAL EXTENSIONS: (a) employers liability;
(b) cross liabilities clause (thereby ensuring
each Insured is considered as a separate
legal entity);
(c) expenses, legal fees, defence costs in
addition to the sum insured;
(d) Europewide jurisdiction; and
(e) banks' clauses (loss payee clause,
assignment clause)
- 62 -
B. OPERATING PHASE INSURANCES
The operating phase insurances intend to cover everything in connection
with the operation. They start with the operation date and should
replace the erection phase insurances for finished projects or parts of
the projects.
Operating phase insurances are usually issued for one year period with
automatic prolongation.
1. PROPERTY ALL RISK INCLUDING BUT NOT LIMITED TO:
- FLEXA (Fire, lightning, explosion, aircraft
crash);
- Extended Coverage (Tap water, storm, hail,
vehicle impact, strike, riot, sprinkler
leakage;);
- Forces of nature (Earthquake, subsidence and
landslide, flood, volcanic eruption etc);
- Electronic insurance (for internal operating
losses e.g. by overvoltage and indirect
stroke of lightning as well as handling
errors).
INSURED: Western Wireless International d.o.o. (the Borrower);
CO-INSURED
INTERESTS: The Lender
COVER: All assets, the site and all other property and
interests used for or in connection with the
operation and maintenance of the operation including
Buildings, Office Equipment, Inventory,
EDP/Computer-Equipment, the electrical
interconnection facilities and stocks against all
risks of physical loss or damage including burglary
and theft, natural hazards, mechanical and electrical
breakdown or a Property insurance, which contains at
least the following components:-
- FLEXA (Fire, lightning, explosion, aircraft
crash)-
- Extended Coverage (Tap water, storm, hail,
vehicle impact, strike, riot,
sprinkler-leakage)-
- 63 -
- Forces of nature (Earthquake, subsidence and
landslide, flood, volcanic eruption etc)-
- Electronic insurance (for internal operating
losses e.g. by overvoltage and indirect
stroke of lightning as well as handling
errors).
SUM INSURED: An amount equal to not less than 100% of the full
reinstatement value of all properties, at a minimum
of not less than US$ 33,000,000. (current sums
insured in 2002).
DEDUCTIBLES: Not exceeding US$ 5,000 (for each and every claim)
except Earthquake where a deductible not exceeding 5%
of the claim amount will be applicable
PRINCIPAL EXTENSIONS (a) debris removal
(b) professional fees;
(c) expediting expenses;
(d) local authorities (in cases of sites with
building permits);
(e) computer equipment, data carrying media and
reinstatement of data;
(f) temporary removal;
(g) Automatic coverage for capital additions
(15% of sums insured); and
(h) bank clauses (loss payee clause, assignment
clause).
PRINCIPAL EXCLUSIONS: (a) war, radioactivity etc.;
(b) latent defects.
PERIOD: From the earlier of (a) the date upon which the
Insurance under Paragraph 1 of Part A of this
Appendix 1 expires and (b) the Commercial Operations
Date, until the date falling 12 months thereafter, to
be renewed annually prior to its expiry until payment
in full of the Senior Loans,
- 64 -
2. BUSINESS INTERRUPTION
INSURED: The Borrower
CO-INSURED INTERESTS: The Senior Creditors
COVER: As a minimum, debt service, fixed
operating expenses, extra expenses
(incl. contractual liquidated
damages) and increased cost of
working as a direct consequence of
loss of or damage to any part of
the Project and insured under
Paragraph 1 of Part A above
incurred during the indemnity
period.
To be extended to loss of profits
as soon as break-even is reached.
SUM INSURED: The amount determined to provide
the cover for all fixed costs and
debt services for the duration of
the indemnity period, at least US$
2,000,000.
US$ 250,000 for extra expenses.
INDEMNITY PERIOD: 12 months from the occurrence of
loss or damage.
WAITING PERIOD: Not to exceed 7 days (for each and
every claim), except extra expense
US$ 2.500.
PRINCIPAL EXTENSIONS: (a) suppliers extension;
(b) failure of utilities;
(c) denial of access;
(d) interim payments clause;
and
(e) banks clauses (loss payee
clause, assignment
clause).
PRINCIPAL EXCLUSIONS: As per the Property All Risk
section 1
PERIOD: From the earlier of (a) the date
upon which the Insurances under
Paragraph 1 of Part A of this
Appendix 1 expires, and (b) the
Commercial Operations Date, until
the date falling 12 months
thereafter, to be renewed annually
prior to its expiry until payment
in full of the Senior Loans
-65-
3. THIRD PARTY LIABILITY
INSURED: The Borrower, together with its
respective assigns, directors,
employees, secondees, servants and
agents.
CO-INSURED INTERESTS: The Senior Creditors, together with
their respective assigns,
directors, employees, secondees,
servants and agents.
COVER: Indemnity in respect of all sums
which the Insured shall become
legally liable to pay to third
parties arising out of the Project
in respect of:
(a) accidental death of, or
accidental bodily injury
to, illness or disease
contracted by, any person
(the term "bodily injury"
shall be deemed to include
mental injury, defamation,
libel and slander); and
(b) accidental loss or damage
to property including but
not limited to loss of
use, interference with any
easement, right of air,
light or water, stoppage
of traffic, nuisance,
trespass, loss of
amenities, destruction,
obstruction or any like
cause.
SUM INSURED: At least US$ 2,500,000 per
occurrence or series of occurrences
during the period of insurance
GEOGRAPHICAL SCOPE: Slovenia / Worldwide for business
travel
DEDUCTIBLE: Not to exceed US$ 1,000 for each
claim.
PERIOD: From the earlier of (a) the date on
which the Insurances referred to in
Paragraph 4 of Part A of this
Appendix 1 expire and (b) the
Commercial Operations Date until
the date falling 12 months
thereafter to be renewed annually
prior to its expiry until the
payment in full of the Senior
Loans.
PRINCIPAL EXTENSIONS: (a) Employers Liability;
(b) Tenants Liability;
(c) Europewide jurisdiction;
-66-
(d) expenses, legal fees and
defence costs in addition
to the sum insured; and
(e) Environmental Liability.
4. MARINE
A MARINE COVER CAN BE PROVIDED BY THE HAULIER OR BY AN OWN INSURANCE
POLICY. HOWEVER THE FOLLOWING ISSUES SHOULD BE GRANTED.
INSURED: The Borrower;
CO-INSURED INTERESTS: The Senior Creditors
DESCRIPTION OF COVER: Coverage will extend to all risks
of direct physical loss or damage
to any goods whilst on
transportation. Coverage is
arranged on an open cover basis,
for all risks covering all
transport requirements.
SUM INSURED: The expected maximum value of the
largest single consignment/shipment
plus 10% for CIF, at least US$
2,500,000.
PERIOD: From Commercial Operations Date
resp. Day one of the first
consignment until the date falling
12 months thereafter to be renewed
annually prior to its expiry until
the payment in full of the Senior
Loans.
DEDUCTIBLES: Not exceeding US$ 5,000 each and
every loss or series of losses
consequent upon one event.
PRINCIPAL EXTENSIONS: (a) all forms of air, sea and
land conveyances to be
covered; and
(b) automatic cover, subject
to declaration of values
for premium purposes.
PRINCIPAL CONDITIONS: (a) all risks of physical loss
or damage as per institute
clauses or equivalent;
(b) institute war clauses
(cargo, air cargo) or
equivalent;
(c) institute strikes clause
(cargo, air cargo) or
equivalent;
(d) institute classification
clause, replacement
clause;
-67-
(e) debris removal clause;
(f) delayed unpacking (150
days) clause;
(g) offsite storage;
(h) non contribution from
other insurance;
(i) subrogation waiver; and
(j) bank clauses (loss payee
clause, assignment
clause).
PRINCIPAL EXCLUSIONS: (a) excluding rust, oxidation,
discoloration and costs of
chipping, scratching and
repainting/coating except
where plant/machinery is
packed/shipped using
approved specifications;
and
(b) excluding electrical and
mechanical derangement
unless caused by an
insured peril.
5. DIRECTORS & OFFICERS LIABILITY
INSURED: The Borrower
INSURED PERSONS: All of the Borrower's Directors and
Officers
COVER: D&O insurance provides cover for
claims made against the individual
directors & officers for 'wrongful
acts' committed as directors &
officers of the "company".
SUM INSURED: US$ 2.500.000 per occurrence or
series of occurrences during the
period of insurance.
GEOGRAPHICAL SCOPE: Worldwide
DEDUCTIBLE: Not to exceed US$ 5.000 for each
claim
PERIOD: From the General Operations Date
until the date falling 12 months
thereafter to be renewed annually
prior to its expiry until the
payment in full of the Senior
Loans.
PRINCIPAL CONDITIONS: Legal Liability with respect of
Civil Law
PRINCIPAL EXCLUSIONS: Wilful acts
-68-
C. OTHER INSURANCES
1. AUTOMOBILE THIRD PARTY LIABILITY AND OWN DAMAGE LIABILITY
Automobile bodily injury and property damage liability
insurance for vehicles of the Borrower requiring such cover
under the statutory requirements of Slovenia.
2. PERSONAL ACCIDENT & TRAVEL
If overseas travel is undertaken by employees, consideration
should be given to the purchase of this cover.
If benefits available under this cover are provided as part of
employees' contracts (as opposed to a benefit to the
employer), then it will be important to ensure that no less
cover is provided post completion.
3. FIDELITY GUARANTEE/CRIME
Dishonesty from employees can represent a significant exposure
to employers. The exposure to fraud from outside third parties
may also be an area of concern going forward. Examples of
potential exposures include:
Funds transfer - this area is vulnerable to short and
long-term fraud;
Cheques - this is an area that may be susceptible to long term
fraud;
Computer Systems - accounting areas are also vulnerable to
short or long term fraud.
Terms and conditions of an insurance cover can not be provided
prior to a security check, usually done by an insurer."
124. Schedule 14 (Covenant Compliance Certificate) of the Original Facility
Agreement is amended by deleting such Schedule in its entirety and
replacing it with the following schedule:
"SCHEDULE 14
COVENANT COMPLIANCE CERTIFICATE
To: IKB Deutsche Industriebank AG as Off Shore Facility Agent
From: [Western Wireless International d.o.o.] [Western Wireless International
Corporation](1)
Dated:
----------
(1) Western Wireless International Corporation Certificate only required after
the Second Amendment Agreement Effective Date and to include the
information in paragraph 1, paragraph 2(a), (j), (k), (l) (as it applies to
the Group), paragraph 3(a) as it relates to the Sponsors' and Shareholders'
Undertaking and Completion Guarantee.
-69-
Dear Sirs
FACILITY AGREEMENT
DATED [-] (THE "AGREEMENT")
1. We refer to the Agreement. This is a Covenant Compliance Certificate.
Terms defined in the Agreement have the same meaning in this Covenant
Compliance Certificate unless given a different meaning in this
Covenant Compliance Certificate.
2. We confirm that as at the date of the financial statements in respect
of [-]:
(a) all contributions required to be made by the Shareholders
pursuant to the Sponsors' and Shareholders' Undertaking and
Completion Guarantee have been made when due;
(b) the Contributed Capital Ratio is [-]*;
(c) the number of Subscribers was [-]*;
(d) the Population Coverage was [-]*;
(e) the Service Revenues were [-]*;
(f) EBITDA of the Borrower was [-];
(g) the Total Leverage Ratio was [-];
(h) the Interest Coverage Ratio was [-]*;
(i) the Debt Service Cover Ratio was [-]*;
(j) from the Second Amendment Agreement Effective Date, the
Consolidated Tangible Net Worth of the Group was [-] for the
preceding financial year of the Group;
(k) from the Second Amendment Agreement Effective Date, the
Consolidated EBITDA of the Group for the preceding financial
year of the Group was [-];
(l) the financial statements were prepared in accordance with [US
GAAP] [and, if applicable, Slovenian Accounting Standards]
consistently applied and represent a true and fair view of the
[Borrower] [Group] and do not omit any material liability;
(m) we have received Sponsors Unsecured Loans in the amount of
[-],
----------
* Only required to be included for Covenant Compliance Certificates issued prior
to the Second Amendment Agreement Effective Date.
-70-
and attached hereto are detailed calculations and/or evidence thereof.
3. We confirm that as of the date hereof:
(a) no Potential Event of Default or Event of Default is
continuing;(2)
(b) [no Cash Shortfall] [a Cash Shortfall] exists [in an amount
equal to [-]].(3)
4. As at the date of this Covenant Compliance Certificate the Repeated
Representations are correct by reference to the facts and circumstances
as at the date hereof except for representations which were made as of
a specific date which shall be correct in all material respects as of
such date.
5. We hereby request that the Applicable Margin in relation to the [state
Facility] be adjusted from [insert] to [insert].
Signed: --------------------- --------------------------
Director Director
[insert applicable auditor certification language](4)
--------------------------
for and on behalf of
[name of auditors of the Borrower or Group](5)"
125. Paragraph 2 of Schedule 15 (Project Status and Progress Report) of the
Original Facility Agreement is amended by deleting such paragraph in
its entirety and replacing with the following paragraph:
"2. Set out below is:
(1) with respect to the Eligible Expenditures under the
ECA Facility a list of (i) all purchase orders
placed, and (ii) deliveries received and/or services
rendered during the Quarter together with copies of
the relevant invoices from the Equipment Vendor(+);
----------
(2) If this statement cannot be made, the certificate should identify any
Event of Default or Potential Event of Default that is continuing and
the steps, if any, being taken to remedy it.
(3) Include if Cash Shortfall exists.
(4) To be agreed with the Borrower's/Group's auditors and the Banks.
Auditors must verify all of the above statements other than points
2(c), (d) or 3.
(5) Only applicable if the Covenant Compliance Certificate accompanies the
audited financial statements and is to be signed by the auditors. To be
agreed with the Borrower's/Group's auditors.
(+) Only required to be included for Project Status and Progress Report
issued prior to the Second Amendment Agreement Effective Date.
-71-
(2) a detailed and full description of the status of the
installation of the Network in comparison to the most
recent Business Plan and the status of all national
roaming agreements;
(3) a comparison of the Borrower's actual business and
network development (including but not limited to
network roll out and network quality measured in
Population Coverage and dBm and services offered)
with the Licence requirements and the Business Plan;
(4) until the Second Amendment Agreement Conditions
Satisfaction Date, the information contained in the
annex hereto;
(5) a description of any non-compliance with delays in
performance of, cost increases under or other issues
arising out of any Material Contracts that could
reasonably be expected to affect the Borrower's
ability to perform its obligations under the Finance
Documents;
(6) a detailed description of any material financial,
operational, construction, regulatory,
administrative, legal or other issues that have had
or could reasonably be expected to have a significant
impact on the Borrower;
(7) a list of all Material Contracts entered into,
amended, terminated or substituted in the last
Quarter; and
(8) a description of any complaints received and
correspondence from the Government or any
governmental bodies or other authority in relation to
the Project; and
(9) details of all tariff plans and Subscriber
acquisition costs (in total and per subscriber)
including (without limitation) subsidies spent on the
provision of handsets and any special offers to
Subscribers; and
(10) an update of the sales and marketing strategy report
comprised in the most recent Business Plan and
covering subscriber acquisition cost, marketing cost
and handset and other subsidies; and
(11) a written outline of major market and business
developments.
126. Schedule 15 (Project Status and Progress Report) of the Original
Facility Agreement is amended by adding a "+" after the word
"Consultant*" at the end of such schedule.
127. Schedule 15 (Project Status and Progress Report) of the Original
Facility Agreement is amended by deleting the words "31.12.2003 or
31.12.2004" from the end of the footnote marked "*" of such schedule.
128. Schedule 16 (Form of Permitted Bill of Exchange) of the Original
Facility Agreement is amended by deleting such Schedule in its entirety
and replacing it by the following schedule:
-72-
"SCHEDULE 16
FORM OF PERMITTED BILL OF EXCHANGE
V______________________________ ([-])
(kraj in datam [-])
_______________________________ PLACAJTE ZA TO _________ MENICO
([-])
PO NALOGU _____________________________________________ ZNESEK
([-])
([-])
VREDNOST PREJETA ______IN GA POLOZITE NA RAGUN _______ OBVESTIL
OBVESTITE ________________________
([-])
PLACLJIVO PRI ___________________________________________________
([-])"
129. Schedule 17 (Population Coverage Verification) of the Original Facility
Agreement is amended by adding footnote reference "6" after the number
"17" in the heading and adding the following footnote to the footer at
the bottom of the first page of such schedule:
"6 Obsolete from the Second Amendment Agreement Effective Date."
130. Schedule 17 (Population Coverage Verification) of the Original Facility
Agreement is amended by changing the footnote reference "3" in
paragraph 3.4.2 of such Schedule is re-numbered as footnote reference
"7".
131. Schedule 18 (Initial report of the Independent Technical Consultant) of
the Original Facility Agreement is amended by deleting the word
"report" in the heading of such Schedule and replacing it with the word
"REPORT".
132. Schedule 19 (Additional Coverage Requirements) of the Original Facility
Agreement is amended by adding footnote reference "8" after the number
"19" in the heading of such Schedule and adding the following footnote
to the footer at the bottom of the first page of such schedule:
"9 Obsolete from the Second Amendment Agreement Effective Date."
133. The Original Facility Agreement is amended by inserting the following
exhibits after the end of Annex 5 (Base Stations being "on air") and
before the start of the Execution Clause (Signatories to the Facility
Agreement):
"Exhibit 1
Vega Status Quo Business Plan"
-73-
"Exhibit 2
Group Business Plan"
134. The execution block for the party named "IKB Deutsche Industriebank AG"
in the Execution Clause (Signatories to the Facility Agreement) of the
Original Facility Agreement is amended by deleting the words "Andreas
Nestel" from the 'Attention of' line in such execution block and
replacing it with "Dr. Peer Gunzel".
135. The execution block for the party named "Raiffeisenlandesbank
Oberosterreich reg. Gen. m.b.H." in the Execution Clause of the
Original Facility Agreement is amended by deleting such party name in
its entirety and replacing it with the following name:
"RAIFFEISENLANDESBANK OBEROSTERREICH REG. GEN. M.B.H."
136. The execution block for the party named "Western Wireless International
d.o.o." in the Execution Clause of the Original Facility Agreement is
amended by deleting the fax details "+386 1 5801 109" in the "Fax" line
of such clause and replacing it with the following fax details: "+386 1
5801 011".
137. The execution block for the party named "Nova Ljubljanska Banka d.d.,
Ljubljana" in the Execution Clause of the Original Facility Agreement
is amended by adding the contact details "or +386 1 476 5108" after the
contact number "+386 1 520 7273" in the "Telephone" lines of such
execution block.
138. The execution block for the party named "Nova Ljubljanska Banka d.d.,
Ljubljana" in the Execution Clause of the Original Facility Agreement
is amended by adding the words "or Ms. Ida Menard" to the end of the
"Attention of" line of such execution block.
139. The Execution Clause of the Original Facility Agreement is amended by
deleting the execution block for the party named "Landesbank
Schleswig-Holstein Girozentrale" in its entirety and replacing it with
the following execution block:
"CO-ARRANGER AND ORIGINAL EURO FACILITY BANK
HSH NORDBANK AG
By: MARION POETSCHKE MANFRED ZIWEY
---------------- -------------
Name: Marion Poetschke Name: Manfred Ziwey
Title: Assistant Director Title: Director
Address: Martensdamm 6, 24103 Kiel, Germany
Telephone: +431 900 11604
Fax: +431 900 34151
Attention of: Klaus-Volker Lenk"
140. The Execution Clause of the Original Facility Agreement is amended by
deleting the execution blocks for the party named "Hypo Alpe-Adria-Bank
AG" and "Hypo Alpe-Adria-Bank d.d." in such clause and replacing them
with the following execution blocks:
-74-
"CO-ARRANGER AND ORIGINAL EURO FACILITY BANK
HYPO ALPE-ADRIA BANK AG
By: MARION POETSCHKE MANFRED ZIWEY
---------------- -------------
Name: Marion Poetschke Name: Manfred Ziwey
Title: Assistant Director Title: Director
Address: Stock im Eisen-Platz 3, 1010 Wien, Austria
Telephone: +43 50202 6952 or +43 50202 2315 or 2483
Fax: +43 (0) 50202 6990
Attention of: International Finance (for credit matters)
International Services (for administrative matters)
EURO FACILTY BANK
DEG - DEUTSCHE INVESTITIONS -
UND ENTWICKLUNGSGESELLSCHAFT MBH
By: By:
Name: Name:
Title: Title:
Address: Belvederestr. 40
50933 Cologne, Germany
Telephone: +49 221 4986 576
Fax: +49 221 4986 107
Attention of: Matthias Goulnik
EURO FACILITY BANK
AKA AUSFUHRKREDIT-GESELLSCHAFT M.B.H.
By: By:
Name: Name:
Title: Title:
Address: Grosse Gallusstrasse 1-7
60311 Frankfurt am Main, Germany
Telephone: +49 69 29891 236 or +49 69 29891 167
Fax: +49 29891 150
Attention of: Heike Koenebruch or Beate Muller
ORIGINAL SIT FACILITY BANK
HYPO ALPE-ADRIA-BANK D.D.
-75-
By: By:
Name: Name:
Title: Title:
Address: Trg Osvobodilne fronte 12
PO Box 1601, SI - 1001 Ljubljana, Slovenia
Telephone: +386 1 300 4408
Fax: +386 1 300 4491
Attention of: Mr. Ivo Rep"
-76-
SIGNATURE PAGE OF THE SECOND AMENDMENT AGREEMENT RELATING TO
THE FACILITY AGREEMENT
THE BORROWER
WESTERN WIRELESS INTERNATIONAL D.O.O.
By:
Name:
Title:
Address: Brnciceva ulica 49, 1231 Ljubljana, Slovenia
Telephone: +386 1 5801 200
Fax: +386 1 5801 011
Attention of: Steven Fast
LEAD ARRANGER, OFF SHORE SECURITY AGENT, OFF SHORE FACILITY AGENT AND
ORIGINAL EURO FACILITY BANK
IKB DEUTSCHE INDUSTRIEBANK AG
By: By:
Name: Name:
Title: Title:
Address: Wilhelm-Botzkes-Strasse 1, 40474 Dusseldorf, Germany
Telephone: +49 211 8221 4887 or +49 211 8221 4193
Fax: +49 211 8221 2887 or +49 211 8221 2193
Attention of: Martina Messing or Dr. Peer Gunzel
SIGNATURE PAGE OF THE SECOND AMENDMENT AGREEMENT RELATING TO
THE FACILITY AGREEMENT
LEAD ARRANGER AND ORIGINAL EURO FACILITY BANK
KREDITANSTALT FUR WIEDERAUFBAU
By: By:
Name: Name:
Title: Title:
Address: Palmengartenstrasse 5-9, 60325 Frankfurt am Main, Germany
Telephone: +49 69 7431 4247
Fax: +49 69 7431 2258
Attention of: Andre Collin
SENIOR CO-ARRANGER AND ORIGINAL EURO FACILITY BANK
RAIFFEISENLANDESBANK OBEROSTERREICH REG. GEN. M.B.H.
By: By:
Name: Name:
Title: Title:
Address: Raiffeisenplatz 1, 4021 Linz, Austria
Telephone: +43 732 6596 3170
Fax: +43 732 6596 3131
Attention of: Dr. Lambert Hofbauer
SIGNATURE PAGE OF THE SECOND AMENDMENT AGREEMENT RELATING TO
THE FACILITY AGREEMENT
SENIOR CO-ARRANGER, ON SHORE SECURITY AGENT, ON SHORE FACILITY AGENT
AND ORIGINAL SIT FACILITY BANK
NOVA LJUBLJANSKA BANKA D.D., LJUBLJANA
By: By:
Name: Name:
Title: Title:
Address: Smartinska 130, SI - 1520 Ljubljana, Slovenia
Telephone: +386 1 520 7273 or +386 1 476 5108
Fax: +386 1 425 60 02
Attention of: Ms. Jasna Istenic or Ms. Ida Menard
CO-ARRANGER AND ORIGINAL EURO FACILITY BANK
HSH NORDBANK AG
By: By:
Name: Name:
Title: Title:
Address: Martensdamm 6, 24103 Kiel, Germany
Telephone: +431 900 11604
Fax: +431 900 34151
Attention of: Klaus-Volker Lenk
SIGNATURE PAGE OF THE SECOND AMENDMENT AGREEMENT RELATING TO
THE FACILITY AGREEMENT
CO-ARRANGER AND ORIGINAL EURO FACILITY BANK
HYPO ALPE-ADRIA-BANK AG
By: By:
Name: Name:
Title: Title:
Address: Stock im Eisen-Platz 3, 1010 Wien, Austria
Telephone: +43 50202 6952 or +43 50202 2315 or 2483
Fax: +43 (0) 50202 6990
Attention of: International Finance (for credit matters)
International Services (for administrative matters)
ORIGINAL SIT FACILITY BANK
HYPO ALPE-ADRIA-BANK D.D.
By: By:
Name: Name:
Title: Title:
Address: Trg Osvobodilne fronte 12
PO Box 1601, SI - 1001 Ljubljana, Slovenia
Telephone: +386 1 300 4408
Fax: +386 1 300 4491
Attention of: Mr. Ivo Rep
SIGNATURE PAGE OF THE SECOND AMENDMENT AGREEMENT RELATING TO
THE FACILITY AGREEMENT
EURO FACILITY BANK
DEG - DEUTSCHE INVESTITIONS -
UND ENTWICKLUNGSGESELLSCHAFT MBH
By: By:
Name: Name:
Title: Title:
Address: Belvederestr. 40
50933 Cologne, Germany
Telephone: +49 221 4986 576
Fax: +49 221 4986 107
Attention of: Matthias Goulnik
EURO FACILITY BANK
AKA AUSFUHRKREDIT-GESELLSCHAFT M.B.H.
By: By:
Name: Name:
Title: Title:
Address: Grosse Gallusstrasse 1-7
60311 Frankfurt am Main, Germany
Telephone: +49 69 29891 236 or +49 69 29891 167
Fax: +49 69 29891 150
Attention of: Heike Koenebruch or Beate Muller
SIGNATURE PAGE OF THE SECOND AMENDMENT AGREEMENT RELATING TO
THE FACILITY AGREEMENT
ACKNOWLEDGEMENT
By signing hereunder, each Sponsor and Shareholder acknowledges and
consents to the terms and conditions of this Agreement and of the
amendments made to the Original Facility Agreement.
Each Sponsor and Shareholder confirms that it has no defence under any
Finance Document, in particular the Sponsor's and Shareholders'
Undertaking and Completion Guarantee (as amended on 28 October 2002 and
on or about the date hereof), as a consequence of the amendments made
thereto and further confirm the rights and obligations of each Sponsor
and Shareholder under each unamended and amended term of any Finance
Document.
THE SPONSORS
WESTERN WIRELESS INTERNATIONAL CORPORATION
By:
Name:
Title:
Address: 3650 131st Avenue, S.E., Suite 400, Bellevue, Washington
98006, USA
Telephone: +1 425 586 8161
Fax: +1 425 586 8777
Attention of: Scott Alderman
WESTERN WIRELESS INTERNATIONAL SLOVENIA CORPORATION
By:
Name:
Title:
Address: 3650 131st Avenue, S.E., Suite 400, Bellevue, Washington
98006, USA
Telephone: +1 425 586 8161
Fax: +1 425 586 8777
Attention of: Scott Alderman
SIGNATURE PAGE OF THE SECOND AMENDMENT AGREEMENT RELATING TO
THE FACILITY AGREEMENT
WESTERN WIRELESS INTERNATIONAL SLOVENIA II CORPORATION
By:
Name:
Title:
Address: 3650 131st Avenue, S.E., Suite 400, Bellevue, Washington
98006, USA
Telephone: +1 425 586 8161
Fax: +1 425 586 8777
Attention of: Scott Alderman