Exhibit 4.7
FORM OF AGREEMENT TO NOVATE
Obligations under Financial Lease Agreement No. [number]
dated [date of agreement]
THIS AGREEMENT TO NOVATE OBLIGATIONS UNDER FINANCIAL LEASE AGREEMENT No.
[number] dated [date of agreement] (this "Novation Agreement") is made on
January 29, 2004, by and between:
(1) OPEN JOINT STOCK COMPANY RTC-LEASING ("RTC-Leasing"), located at: 5
Xxxxxxxxxxxx, Xxxxxx 000000, Russian Federation, represented by
GeneralDirector Director Xxxxxxx Grigorievich Trufanov who is acting under
the Charter, and
(2) OPEN JOINT STOCK COMPANY OF LONG DISTANCE AND INTERNATIONAL
TELECOMMUNICATIONS ROSTELECOM ("Rostelecom"), located at: 5 Xxxxxxxxxxxx,
Xxxxxx 000000, Russian Federation, represented by General Director Dmitry
Yevgenievich Yerokhin who is acting under the Charter,
(jointly referred to as the "Parties" and individually, as a "Party").
PREAMBLE
WHEREAS:
- On [date of agreement], RTC-Leasing as lessor and Rostelecom as lessee
entered into Financial Lease Agreement No. [number] (with subsequent
amendments, dated [dates of amendments] (hereinafter, the "Lease
Agreement") whereunder RTC-Leasing undertook an obligation to
Rostelecom to acquire title to the property specified by Rostelecom
from the seller specified by Rostelecom and to provide such property
to Rostelecom for temporary possession and use, while Rostelecom
undertook an obligation to make lease payments in favor of
RTC-Leasing;
- As of the date hereof (the "Execution Date"), RTC-Leasing has
performed its obligations to acquire the property specified in the
Lease Agreement and to provide such property to Rostelecom on the
terms of the Lease Agreement;
- As of the Execution Date, the aggregate amount of the lease payments
due from Rostelecom in favor of RTC-Leasing is [amount], including
value-added tax of [amount] (the "Debt Amount"); and
- the Parties intend to terminate Rostelecom's obligation under the
Lease Agreement to make lease payments in favor of RTC-Leasing (the
"Initial Obligation") by way of replacing it with a different
obligation, to transfer title to the property specified in the Lease
Agreement and to terminate the Lease Agreement;
THEREFORE THE PARTIES AGREE AS FOLLOWS:
1. DEFINITIONS AND CONSTRUCTION
1.1 Definitions
When used herein, the following terms shall have the following meanings:
"Execution Date" shall have the meaning specified in the Preamble.
"Interest Payment Date" shall mean January 29, April 29, July 29, and
October 29, of each year as long as the Loan Amount remains outstanding.
"Lease Agreement" shall have the meaning specified in the Preamble.
"Borrower's Obligation" shall mean the borrower's obligation of Rostelecom
to repay the Loan Amount to RTC-Leasing arising out of this Novation
Agreement.
"Final Payment Date" shall mean June 30, 2038.
"Initial Obligation" shall have the meaning specified in the Preamble.
"Interest Period" shall mean the period of time during which interest is
accrued on the outstanding Loan Amount pursuant to Article 5.3.
"Business Day" shall mean any day except Saturdays and Sundays and except
any other day when Moscow banks are entitled or obliged not to perform
transactions.
"Debt Amount" shall have the meaning specified in the Preamble.
"Loan Amount" shall mean the cash amount equivalent to the Debt Amount and
due from Rostelecom in favor of RTC-Leasing as a result of the novation of
the Initial Obligation on the terms hereof.
1.2 Construction
In this Novation Agreement, unless otherwise expressly implied:
(i) words used in the singular also include such words in the plural, and
vice versa;
(ii) headings in this Novation Agreement are used for ease of reference
only and shall not affect the construction hereof;
(iii) a reference to any Article, Preamble or Party shall be a reference to
the relevant Article or Preamble of or Party to this Novation
Agreement;
(iv) a reference to a person shall include a reference to an individual,
joint stock company, limited liability company, commonwealth, company,
partnership, corporation, association or any other corporate entity
and any government or municipal authority;
(v) a reference to a person shall also include a reference to the legal
and contractual successors to such person; and
(vi) any action to be performed hereunder on a certain calendar date not
falling on a Business Day shall be performed on the Business Day
immediately prior to such calendar date.
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2. NOVATION
2.1 The Initial Obligation shall be hereby replaced with the Borrower's
Obligation to be performed by Rostelecom in favor of RTC-Leasing on the
terms hereof.
2.2 As of the Execution Date, the Initial Obligation and any provisions of the
Lease Agreement determining the procedure and deadlines for the performance
of the Initial Obligation shall be deemed terminated and the Borrower's
Obligation shall be deemed to have arisen. The Parties hereby acknowledge
that the termination of the Initial Obligation shall constitute grounds for
the transfer of title to the property provided to Rostelecom under the
Lease Agreement and for the execution of the acknowledgment of transfer of
title as determined in Clause 5.6 of the Lease Agreement.
3. BORROWER'S OBLIGATION
Rostelecom shall repay, to RTC-Leasing, cash in the Loan Amount and pay
interest on the Loan Amount by the deadlines and on the terms specified
herein.
4. LOAN AMOUNT REPAYMENT
Rostelecom shall fully return the Loan Amount to RTC-Leasing in one payment
on the Final Payment Date.
5. INTEREST PAYMENTS
5.1 On each Interest Payment Date, Rostelecom shall pay, to RTC-Leasing,
interest accrued on the Loan Amount over the past Interest Period.
5.2 The interest rate shall be one-tenth of one percent (0.1%) per annum. The
interest rate shall be calculated with respect to the actual number of
calendar days a year (365 or 366, respectively) and on the basis of the
actual number of days that elapsed during the relevant Interest Period.
5.3 The period during which the Loan Amount remains outstanding shall be
divided into successive Interest Periods, provided that (i) each Interest
Period except the last Interest Period shall equal three (3) months; (ii)
the first Interest Period shall commence on the Execution Date and end on
the next Interest Payment Date, and each subsequent Interest Period shall
commence on the day following the relevant previous Interest Payment Date
and end on the next Interest Payment Date; and (iii) the last Interest
Period shall commence on the day following the relevant previous Interest
Payment Date and end on the Final Payment Date. Interest shall be accrued
daily on the outstanding portion of the Loan Amount for the relevant
Interest Period.
6. PAYMENTS
6.1 Rostelecom shall make payments to repay the Loan Amount and pay interest by
remitting cash due to RTC-Leasing to the bank account of RTC-Leasing.
RTC-Leasing shall give prior notice in writing to Rostelecom specifying its
banking details. The obligations of Rostelecom to pay the Loan Amount and
the interest accrued shall be deemed discharged as of the moment cash is
credited to the correspondent account of the bank specified by RTC-Leasing.
6.2 Rostelecom shall make all payments hereunder without any withholdings or
deductions other than in amounts, if any, provided for by applicable law.
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6.3 Payments received by RTC-Leasing from Rostelecom hereunder shall be used to
repay the indebtedness of Rostelecom hereunder in the following order:
(i) unpaid costs of RTC-Leasing, if any, to recover amounts due hereunder;
(ii) penalty amount;
(iii) interest on the Loan Amount; and
(iv) principal outstanding Loan Amount.
7. DEFAULT
7.1 In the event Rostelecom fails to pay any amount hereunder when due
RTC-Leasing shall have the right to demand that Rostelecom pay a late
penalty at a rate of point fifteen percent (0.15%) per annum of the overdue
amount and Rostelecom shall pay such penalty within ten (10) Business Days
of the date of such demand. The said penalty shall be accrued until the
date Rostelecom actually makes the payment.
7.2 For the avoidance of doubt accrual of interest at the rate specified in
Article 5.2 on any amount due to RTC-Leasing and not paid by Rostelecom
when due shall terminate and the penalty specified in Article 7.1 above
shall be accrued.
8. ADDITIONAL OBLIGATIONS OF THE PARTIES
8.1 Rostelecom guarantees to RTC-Leasing and shall have the obligations
undertaken by Rostelecom hereunder treated at any time as coming under at
least the same order of priority as all the present and future outstanding
unsecured obligations created or assumed by Rostelecom.
8.2 Each Party shall promptly notify the other Party in writing about any
information or documents related to any event or circumstance arising after
the Execution Date that leads or may lead to a default on any obligation
hereunder and shall perform any reasonable commercial actions to cure such
event or circumstance.
9. CONFIDENTIAL INFORMATION AND PUBLIC STATEMENTS
9.1 Without prejudice to the provisions of Article 9.2 each Party shall, for
the duration of the term hereof, preserve confidentiality with respect to
the content of this Novation Agreement and the content of any information
related to the Parties' business relations, counterparties, financial or
other aspects of operations, and neither Party may, without the other
Party's prior consent in writing, directly or indirectly disclose the
content of such information in full or in part with the exception of
disclosures of information: (i) as expressly directed under applicable law
or stock exchange rules and/or (ii) to its officers and employees directed
by the Parties to be involved in the making or performance of this Novation
Agreement and/or (iii) to legal and financial advisors providing services
to either of the Parties provided such advisors undertake obligations not
to disclose the content of such information to third parties and/or (iv)
where such information becomes generally available for reasons not related
to a default under paragraphs (i), (ii) and (iii) above.
9.2 Neither Party may publicly present any reports, make any statements or
publish any press releases for the general public with respect to this
Novation Agreement without the other Party's prior consent which may not be
unreasonably withheld. If either of the Parties is unable to obtain the
other Party's consent to a public report, statement or press release and
such report, statement or press release is required under applicable law or
is directed by
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government agencies, stock exchange rules or accepted practice so as to
perform disclosure obligations, such Party shall have the right to present,
make or publish such report, statement or press release and immediately
dispatch copies of such documents to the other Party.
10. FORCE MAJEURE
10.1 In the event either Party cannot perform its obligations hereunder due to
the occurrence of any event or circumstance which is beyond the control of
such Party and which it was impossible to foresee as of the date hereof,
including any change of applicable law and any action or inaction of
government agencies, the term for the performance by such Party of its
obligations hereunder shall be extended for the duration of the term of
such circumstance or event.
10.2 Neither Party may refer to circumstances or events specified in Article
10.1 if such Party fails to notify the other Party about such circumstances
or events within ten (10) Business Days of the date of their occurrence.
11. ASSIGNMENT
Neither Party may assign or transfer its rights or obligations hereunder
and/or the Borrower's Obligation without the other Party's prior consent in
writing.
12. NOTICES
Any notice or other communication hereunder or in connection herewith shall
be made in writing and delivered in person or dispatched by registered mail
or sent by tested facsimile with confirmation of receipt to the proper
number of the Party which is to receive such notice or communication at its
address specified in this Article 12 or to another address notified by such
Party to the other Party in writing:
To RTC-Leasing:
OJSC RTC-Leasing
00-0X Xxxxxx Xxxxxxxxx
Xxxxxx 000000
Russian Federation
Fax: (000) 000-0000
Attn: General Director
To Rostelecom:
OJSC Rostelecom
00, 0-xx Xxxxxxxxx-Xxxxxxxx
Xxxxxx 000000
Russian Federation
Fax: (000) 000-0000
Attn: Financial Director
Cc: Chief, Treasury Department
13. SETTLEMENT OF DISPUTES
In the event differences arise in relation to the performance of
obligations hereunder the Parties shall do their utmost to settle such
disputes by negotiation. In the event the Parties are unable to settle a
dispute within thirty (30) days of the date of its occurrence such dispute
shall be settled by the Arbitrazh Court of City of Moscow.
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14. MISCELLANEOUS
14.1 Each Party shall itself pay its costs and expenses incurred in connection
with the discussion, preparation, execution and performance by the Parties
of this Novation Agreement.
14.2 Amendments and additions to this Novation Agreement shall be legally valid
provided they are made in writing and signed by the Parties' duly
authorized representatives.
14.3 This Novation Agreement shall enter into force as of the Execution Date and
shall remain in force pending performance by the Parties of all their
obligations hereunder.
14.4 This Novation Agreement is made in two counterparts of equal legal
validity, one counterpart per Party.
In witness whereof this Novation Agreement is signed by duly authorized
representatives of the Parties:
For RTC-Leasing For Rostelecom
--------------------------------- ------------------------------
Xxxxxxx Grigorievich Xxxxxxxx Xxxxxx Yevgenievich Yerokhin
General Director General Director
--------------------------------- ------------------------------
Natalia Yevgenievna Kolesnikova Xxxxxxxxx Xxxxxxxxxxxxx Xxxxxx
Chief Accountant Chief Accountant
Seal Seal
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