1
Exhibit 10.14
CONFORMED COPY
WITH COLLATERAL SHARING
INTERCREDITOR AGREEMENT
AS SEPARATELY EXECUTED
Euro 550,000,000
FACILITY AGREEMENT
Dated 20 February, 2001
Between
POLSKA TELEFONIA CYFROWA SP. Z O.O.
as Borrower
The Guarantors named herein
as Guarantors
DEUTSCHE BANK LUXEMBOURG S.A.
as Agent
THE BANKS
DEUTSCHE BANK AG LONDON,
DRESDNER BANK LUXEMBOURG S.A.,
THE EUROPEAN BANK FOR RECONSTRUCTION AND DEVELOPMENT,
DEUTSCHE BANK POLSKA S.A.
as Lead Arrangers
The Arrangers named herein
as Arrangers
DEUTSCHE BANK POLSKA S.A.
as Security Agent
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CONTENTS
CLAUSE PAGE
1. INTERPRETATION............................................................1
2. FACILITY AND RELATED MATTERS.............................................28
3. PURPOSE AND RESPONSIBILITY...............................................29
4. CONDITIONS PRECEDENT.....................................................30
5. ADVANCES.................................................................30
6. CANCELLATION AND REDUCTION...............................................33
7. REPAYMENT................................................................35
8. PREPAYMENT...............................................................35
9. INTEREST PERIODS.........................................................37
10. INTEREST.................................................................37
11. SELECTION OF OPTIONAL CURRENCIES.........................................39
12. AMOUNT OF OPTIONAL CURRENCIES............................................40
13. PAYMENTS.................................................................42
14. TAXES....................................................................43
15. MARKET DISRUPTION........................................................45
16. INCREASED COSTS..........................................................47
17. ILLEGALITY AND MITIGATION................................................48
18. REPRESENTATIONS AND WARRANTIES...........................................49
19. UNDERTAKINGS.............................................................53
20. SYSTEM UNDERTAKINGS......................................................70
21. FINANCIAL UNDERTAKINGS...................................................71
22. DEFAULT..................................................................73
23. GUARANTEES...............................................................78
24. INDEMNITIES..............................................................80
25. AGENT, SECURITY AGENT, LEAD ARRANGERS, ARRANGERS AND BANKS...............81
26. FEES.....................................................................86
27. EXPENSES.................................................................87
28. STAMP DUTIES.............................................................87
29. AMENDMENTS AND WAIVERS...................................................87
30. CHANGES TO PARTIES.......................................................89
31. SET-OFF AND REDISTRIBUTION...............................................91
32. DISCLOSURE OF INFORMATION................................................93
33. SEVERABILITY.............................................................94
34. COUNTERPARTS.............................................................94
35. NOTICES..................................................................94
36. EVIDENCE AND CALCULATIONS................................................96
37. LANGUAGE.................................................................96
38. JURISDICTION.............................................................96
39. WAIVER OF IMMUNITY.......................................................98
40. GOVERNING LAW............................................................98
41. THIRD PARTIES............................................................98
(i)
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SCHEDULES
X. Xxxxx
B. Guarantors
C. Form of Transfer Certificate
D. Security Documents
E. Documentary Conditions Precedent
F. Existing Security Interests
G. Additional Costs Rate
H. Form of Request for an Advance
I. Accession Document
J. Form of Compliance Certificate
K. Existing Financial Indebtedness
L. Existing Hedging Agreements
M. Collateral Sharing Intercreditor Agreement
(ii)
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THIS FACILITY AGREEMENT is dated 20 February, 2001
BETWEEN:
(1) POLSKA TELEFONIA CYFROWA SP. Z O.O., a company registered in the
Commercial Register of the District Court in Warsaw under number 45740
( the "BORROWER");
(2) THE GUARANTORS listed in Schedule B;
(3) DEUTSCHE BANK AG LONDON ("DBAG"), DEUTSCHE BANK POLSKA S.A. ("DB
POLSKA"), DRESDNER BANK LUXEMBOURG S.A. ("DRESDNER") AND THE EUROPEAN
BANK FOR RECONSTRUCTION AND DEVELOPMENT ("EBRD") as lead arrangers
(each a "LEAD ARRANGER" and, collectively, the "LEAD ARRANGERS");
(4) BANK ZACHODNI, S.A., BAYERISCHE LANDESBANK GIROZENTRALE, INDUSTRIEBANK
VON JAPAN (DEUTSCHLAND) AKTIENGESELLSCHAFT, KREDITANSTALT FyR
WIEDERAUFBAU, MIZUHO BANK NEDERLAND NV and WIELKOPOLSKI BANK KREDYTOWY
S.A. each as arrangers (each an "ARRANGER" and, collectively, the
"ARRANGERS");
(5) THE BANKS listed in Schedule A;
(6) DB POLSKA as security agent for the Banks (the "SECURITY AGENT"); and
(7) DEUTSCHE BANK LUXEMBOURG S.A. as facility agent for the Banks (the
"AGENT").
IT IS AGREED as follows:
1. INTERPRETATION
1.1 Defined Terms:
In this Agreement:
"ACCESSION DOCUMENT"
means an agreement substantially in the form of Schedule I pursuant to
which a Principal Member of the Group becomes a Guarantor.
"ACCOUNTING PERIOD"
in relation to any person means any period of approximately three
months (ending on the last day in March, June, September and December
of each year) or one year ending on the last day in December for which
Accounts of such person are required to be delivered pursuant to this
Agreement.
"ACCOUNTING PRINCIPLES"
means:
(a) in the case of the Accounts of the Borrower and the Group, the
IAS on which the preparation of the Original Borrower Accounts
was based; and
(b) in the case of the Accounts of each Principal Member of the
Group (other than the Borrower), the IAS or the accounting
principles and practices generally accepted in the
jurisdiction of incorporation of such person.
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"ACCOUNTS"
means from time to time:
(a) the latest audited consolidated annual accounts of the Group
so far as concerns the annual period ending 31st December,
1999 and each annual period thereafter;
(b) the latest audited annual accounts of each Principal Member of
the Group; and
(c) the latest unaudited quarterly consolidated financial
statements of the Group or so far as concerns each quarter
ending 30th September, 2000 and thereafter the latest
unaudited quarterly consolidated financial statements of the
Group,
delivered or required to be delivered to the Agent pursuant to this
Agreement, or such of those accounts as the context requires.
"ACQUISITION"
means the acquisition directly or indirectly (whether by one
transaction or by a series of related transactions) of any interest
whatsoever in the share capital (or equivalent) or the business or
undertaking (including without limitation, any franchise rights) or
assets constituting a separate business or undertaking of any person.
"ADDITIONAL COSTS RATE"
(a) means, in relation to an Advance or unpaid sum owing to a
bank, the rate per annum notified by any Bank to the Agent to
be the cost to that Bank of compliance with all reserve asset,
liquidity or cash margin or other like requirements of the
Bank of England, the Financial Services Authority, the
European Central Bank or any other applicable monetary,
regulatory, supervisory or other authority (other than the
National Bank of Poland) in relation to that Advance or unpaid
sum and which in the case of the Bank of England and the
Financial Services Authority shall be determined in accordance
with Schedule G (Additional Costs Rate); and
(b) in relation to Advances from the EBRD, 0.03 per cent. per
annum.
"ADDITIONAL DEBT AMOUNT"
means, at any time, an amount equal to the Euro Equivalent of the sum
of (a) euro500,000,000 and (b) the amount by which euro650,000,000
exceeds the sum of (i) the "TOTAL COMMITMENTS" under, and as defined
in, the Supplemental Facility Agreement at such time and (ii) the Total
Commitments at such time.
"ADVANCE"
means :
(a) when designated "TRANCHE A", the principal amount of each
borrowing under this Agreement from the Tranche A Commitments;
(b) when designated "TRANCHE B", the principal amount of each
borrowing under this Agreement from the Tranche B Commitments;
and
(c) without any such designation, a Tranche A Advance or Tranche B
Advance as the context requires;
or, in each case, the principal amount of such borrowing outstanding
from time to time, as the context requires.
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"AFFILIATE"
means, as to any person, any other person that, directly or indirectly
controls, is controlled by or is under common control with such person
or is a director or officer of such person. For purposes of this
definition, the term "control" (including the terms "controlling",
"controlled by" and "under common control with") of a person means the
possession, direct or indirect of the power to vote 5% or more of the
voting interests of such person or to direct or cause the direction of
the management and policies of such person, whether through the
ownership of voting interests, by contract or otherwise.
"AGENT'S SPOT RATE OF EXCHANGE"
means:
(d) when converting an amount into Euro or Zloty, the Agent's spot
rate of exchange for the purchase of Euro or Zloty in the
Brussels or, as the case may be, Warsaw foreign exchange
market with the relevant currency at or about 11.00 a.m. on a
particular day; and
(e) when converting an amount of Euro or Zloty into any other
currency, the Agent's spot rate of exchange for the purchase
of such other currency in the Brussels or as the case may be,
Warsaw foreign exchange market with Euro or Zloty, as the case
may be, at or about 11.00 a.m. on a particular day.
"APPLICABLE LEGAL LENDING LIMITS"
has the meaning given to such term in Clause 5.5 (Zloty Limit).
"APPLICABLE MARGIN"
means 0.9 per cent. per annum (subject to adjustment under Clause 10.5
(Margin adjustment)).
"ASSET PLEDGE"
means the pledge of assets in the agreed form executed by the Borrower
in favour of the Security Agent to be registered in accordance with the
terms hereof.
"AUDITORS"
means Xxxxxx Xxxxxxxx Xx. z o.o., any of the other "big five"
accounting firms as may from time to time be appointed by the Borrower,
or such other firm of internationally recognised auditors as may from
time to time be appointed by the Borrower and approved by the Agent
(such approval not to be unreasonably withheld or delayed).
"AVAILABILITY PERIOD"
means the period starting on the Signing Date and ending on the date
falling one month before the Final Repayment Date.
"BANK"
means each of the following:
(a) when designated "TRANCHE A":
(i) each bank or other financial institution whose name
is set out in Schedule A which has a Tranche A
Commitment;
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(ii) each bank or other financial institution to which
rights and/or obligations under this Agreement are
assigned or transferred pursuant to Clause 30
(Changes to Parties) under Tranche A and which
assumes rights and obligations under Tranche A
pursuant to a Transfer Certificate; and
(b) when designated "TRANCHE B":
(i) each bank or other financial institution whose name
is set out in Schedule A which has a Tranche B
Commitment;
(ii) each bank or other financial institution to which
rights and/or obligations under this Agreement are
assigned or transferred pursuant to Clause 30
(Changes to Parties) under Tranche B and which
assumes rights and obligations under Tranche B
pursuant to a Transfer Certificate; and
(c) without any such designation, a Tranche A Bank or a Tranche B
Bank as the context requires.
"BANK ACCOUNT SIDE LETTER"
means the side letter relating to bank accounts of the Borrower's Dutch
and Luxembourg subsidiaries in the agreed form executed by the Borrower
in favour of the Agent for the benefit of the Finance Parties.
"BANK GUARANTEE FUND"
means the Bank Guarantee Fund as defined in the Act on Bank Guarantee
Fund dated 14th December, 1994 enacted under Polish law.
"BUSINESS DAY"
means a day (not being a Saturday or Sunday) on which banks and foreign
exchange markets are open for business:
(a) in relation to a transaction involving Tranche A, in London,
Luxembourg and Brussels;
(b) in relation to a transaction involving Tranche B, in Warsaw,
or, only for the purposes of determination of the Rate Fixing
Day and notice of Requests, Luxembourg, Warsaw and London, or,
with respect to Tranche B Advances redenominated to Euro
pursuant to clause 15.3 (Negotiation and Substitute Basis),
Brussels, Warsaw, London and Luxembourg;
(c) in relation to a transaction involving an Optional Currency,
in London, Luxembourg and the principal financial centre of
the country of that Optional Currency; and
(d) in relation to any date for payment or purchase of Euro, in
Luxembourg and which is also a TARGET Day.
"BUSINESS PLAN"
means:
(a) on the Signing Date and until the first delivery of a document
to the Agent in accordance with Clause 8.5 (UMTS Prepayment)
or Clause 19.2(a)(iii) (Financial Information and Business
Plan), as the case may be, the document delivered to the Agent
as a condition precedent of the first drawdown in accordance
with paragraph 20 of Schedule E; and
(b) thereafter the document most recently delivered to the Agent
in accordance with Clause 8.5 (UMTS Prepayment) or Clause
19.2(a)(iii) or (iv) (Financial Information and Business
Plan), as the case may be,
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and in each case such document shall include the relevant assumptions
and projections associated with that document and shall be
substantially in the form of the document referred to in paragraph (a)
above or in such other form as may be agreed between the Borrower and
the Agent acting on behalf of the Majority Banks.
"CAPITAL EXPENDITURE"
means any expenditure which should be treated as capital expenditure in
the audited consolidated Accounts of the Group in accordance with the
Accounting Principles.
"CASH"
means any credit balances on any deposit, savings or current account
with any Bank or bank or other financial institution which has (or the
Holding Company of which has) a long-term debt rating of at least (a)
"BBB-" from S&P and "Baa3" from Xxxxx'x in any amount or (b) "BB" from
S&P and "Ba" from Xxxxx'x in such amounts as may be agreed between the
Agent and the Borrower from time to time; short term government
securities of Poland, a member state of the European Union or a member
of the G7 group of nations; and cash in hand but excluding any cash on
deposit in any escrow account maintained to secure or fund payment of
interest on high yield bonds.
"COLLATERAL SHARING INTERCREDITOR AGREEMENT"
means an agreement substantially in the form set forth at Schedule M.
"COMMITMENT"
in relation to a Bank means:
(a) when designated "TRANCHE A", the amount appearing and
designated as such set opposite its name in Schedule A and/or
in any Transfer Certificate or other document by which it
became party to or acquired rights under this Agreement;
(b) when designated "TRANCHE B":
(i) at any time on or before the last day of the
Availability Period, the lower of (A) the Zloty
Equivalent at that time of the amount in Euro
appearing and designated as such set opposite its
name in Schedule A and (B) its Zloty Limit at such
time and in each case the Zloty Equivalent of any
amount in Euro appearing and designated as such in a
Transfer Certificate or other document by which it
became a party to or acquired rights under this
Agreement on or prior to the last day of the
Availability Period;
(ii) at any time after the last day of the Availability
Period, the amount in Zloty as calculated by the
Agent in accordance with Clauses 5.5 (Zloty Limit)
and 6 (Cancellation and Reduction) as being the
revised Tranche B Commitment at such time and the
Zloty Equivalent of any amount in Euro appearing and
designated as such in a Transfer Certificate or other
document by which it became a party to or acquired
rights under this Agreement after the last day of the
Availability Period; and
(c) without any such designation, a Bank's Tranche A Commitment or
Tranche B Commitment as the context requires,
in each case to the extent not cancelled, reduced or transferred under
this Agreement (collectively the "TOTAL COMMITMENTS" and where the
aggregate Total Commitments for Tranche A and Tranche B is to be
calculated under this Agreement, any Commitment determined as a Zloty
amount or denominated in Zloty will be calculated at its Euro
Equivalent at the time of such calculation).
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"DANGEROUS SUBSTANCE"
means any radioactive emissions and any natural or artificial substance
(whether in the form of a solid, liquid, gas or vapour but excluding,
for the avoidance of doubt, radio waves) the generation,
transportation, storage, treatment, use or disposal of which (whether
alone or in combination with any other substance) and including
(without limitation) any controlled, special, hazardous, toxic,
radioactive or dangerous waste, gives rise to a risk of causing harm to
man or damaging the Environment or public health.
"DCS-1800 LICENCE"
means the licence numbered 498/99 issued to the Borrower on 11th
August, 1999 which licence includes the permit to install and utilise a
telecommunications network and the frequency allocation necessary for
the Borrower to provide a service in the ETSI/GSM 1800MHz band.
"DEFAULT"
means (a) an Event of Default, or (b) an event which, with the giving
of notice or lapse of time or both, would constitute an Event of
Default.
"DEFAULT DATE"
means the first date on which the Agent serves a notice under Clause
22.21 (Acceleration) or the date after an Event of Default which the
Majority Banks determine is the Default Date.
"DOLLARS" and "US$"
means the lawful currency of the United States of America.
"EBITDA"
of any person means in respect of each Ratio Period, the sum of the
following for such Ratio Period:
(a) the net income (whether positive or negative) before
Extraordinary Items;
(b) any Interest Payable;
(c) any provision for income Taxes;
(d) any amortisation and depreciation reflected in the relevant
Accounts during such Ratio Period; and
(e) (without double-counting) any consolidated losses which arise
as a result of having Financial Indebtedness in a currency
which during such Ratio Period appreciates against the Zloty;
after deducting the sum of:
(f) to the extent not already deducted in determining net income,
any handset costs and other subscriber acquisition costs
(including commissions for dealers, equipment subsidy, and
marketing and promotion but excluding market research, public
relations, loyalty programmes, activation fees and prepaid
revenues) whether or not capitalised during such Ratio Period;
(g) any Interest Receivable for such Ratio Period; and
(h) (without double-counting) any consolidated gains which arise
as a result of having Financial Indebtedness in a currency
which during the relevant Ratio Period depreciates against the
Zloty;
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in each case, of such person and its Subsidiaries on a consolidated
basis.
"ENVIRONMENT"
means all, or any of, the following media, the air (including the air
within buildings and the air within other natural or man-made
structures above or below ground), water (including, without
limitation, ground and surface water) and land (including, without
limitation, surface and sub-surface soil).
"ENVIRONMENTAL CLAIM"
means any claim by any person:
(a) in respect of any loss or liability suffered or incurred by
that person as a result of or in connection with any violation
of applicable Environmental Law; or
(b) that arises as a result of or in connection with Environmental
Contamination and that could give rise to any remedy or
penalty (whether interim or final) that may be enforced or
assessed by private or public legal action or administrative
order or proceedings including, without limitation, any such
claim that arises from injury to persons or property.
"ENVIRONMENTAL CONTAMINATION"
means each of the following and their consequences:
(a) any release, emission, leakage or spillage of any Dangerous
Substance at or from any site owned or occupied by any member
of the Group into any part of the Environment;
(b) any accident, fire, explosion or sudden event at any site
owned or occupied by any member of the Group which is directly
caused by or attributable to any Dangerous Substance; and
(c) any other pollution of the Environment arising at or from any
site owned or occupied by any member of the Group.
"ENVIRONMENTAL LAW"
means all laws and regulations concerning pollution, the Environment or
Dangerous Substances.
"ENVIRONMENTAL LICENCE"
means any permit, licence, authorisation, consent or other approval
required by any applicable Environmental Law.
"EURIBOR"
in relation to any Tranche A Advance made in Euro for any Interest
Period relating thereto, means:
(a) the rate per annum determined by the Banking Federation of the
European Union which appears on page Euribor 01 on the Reuters
screen (or any other page as may replace such page on such
service); or
(b) if no offered rate appears on the relevant page of the Reuters
screen or there is no relevant page on the Reuters screen, the
arithmetic mean (rounded upward, if necessary, to four decimal
places) of the respective rates, as supplied to the Agent at
its request, quoted by the Tranche A Reference Banks to
leading banks in the ordinary course of business in the
European interbank market,
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at or about 11.00 a.m. on the Rate Fixing Day of such Interest Period
for the offering of deposits in the currency of the Advance for the
same period as such Interest Period and in an amount comparable to the
amount of such Advance. If any of the Tranche A Reference Banks is
unable or otherwise fails so to supply such offered rate by 1.00 p.m.
on the required date, "EURIBOR" for the relevant Interest Period shall
be determined on the basis of the quotations of the remaining Tranche A
Reference Banks.
"EURO", "EURO" and "euro"
means the lawful currency of the member states of the European Union
that have adopted the single currency in accordance with the treaty
establishing the European Community (signed in Rome on 25 March, 1957),
as amended by the Treaty on European Union (signed in Maastricht on 7
February, 1992).
"EURO EQUIVALENT"
means:
(a) in relation to an amount in Euro, that amount (or its
equivalent in other currencies); and
(b) in relation to any amount denominated in a currency other than
Euro, the amount of Euro which the amount in such currency
would purchase on a particular day when converted at the
Agent's Spot Rate of Exchange.
"EVENT OF DEFAULT"
means an event specified as such in Clause 22.1 (Events of Default).
"EXCLUDED SHARE CAPITAL"
of the Group means shares in the capital of any member of the Group
owned by a person which is not a member of the Group which by their
terms are or may become redeemable (whether or not subject to the
occurrence of any contingency) at any time whilst any part of any
Advance remains outstanding (whether or not due and payable) or any
Commitment is in force or within one year after the Final Repayment
Date.
"EXTRAORDINARY ITEMS"
means extraordinary items and exceptional items within the meaning in
the IAS.
"FACILITY OFFICE"
means:
(a) in relation to the Agent, the respective offices notified in
accordance with Clause 35.2 (Addresses for notices);
(b) in the case of a Tranche A Bank, the office(s) notified by
that Bank to the Agent on or before the date it becomes a
Tranche A Bank as the office(s) through which it will perform
all or any of its obligations in connection with Tranche A or
if two offices are so notified:
(i) for the purposes of Tranche A Advances denominated in
sterling and any interest or other amounts accruing
in relation thereto where such Tranche A Bank
otherwise performs its obligations hereunder in
connection with Tranche A through an office in the
United Kingdom, the office outside the United Kingdom
so identified as such Tranche A Bank's euro sterling
office;
(ii) for all other purposes, the office so identified as
such Tranche A Bank's main office;
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(c) in the case of a Tranche B Bank, the office(s) notified by
that Bank to the Agent on or before the date it becomes a
Tranche B Bank as the office(s) through which it will perform
all or any of its obligations in connection with Tranche B; or
(d) in the case of sub-paragraph (b) or (c) above, such other
office(s) notified by a Bank to the Agent by (unless otherwise
agreed by the Agent) not less than 5 Business Days' notice, as
the office(s) through which it will perform all or any of its
obligations in connection with Tranche A or Tranche B.
"FEE LETTERS"
means:
(a) the arrangement fee letter between the Lead Arrangers and the
Borrower dated on or about 24 October, 2000; and
(b) the agency fee letter between the Agent and the Borrower dated
on or about 16 February, 2001;
in each case setting out the amount of various fees referred to in
Clause 26 (Fees).
"FINAL MANDATORY REGISTRATION DATE"
means the date falling 45 days after the date of the First Mandatory
Registration Date.
"FINAL REPAYMENT DATE"
means the date falling on the fifth anniversary of the Signing Date.
"FINANCE LEASE"
means a finance lease as determined in accordance with the IAS.
"FINANCE PARTY"
means the Lead Arrangers, the Arrangers, each Bank, the Security Agent
and the Agent.
"FINANCIAL INDEBTEDNESS"
means any indebtedness in respect of:
(a) moneys borrowed at banks and other financial institutions;
(b) any debenture, bond, note, loan stock or other security;
(c) any acceptance credit;
(d) receivables sold or discounted (otherwise than on a
non-recourse basis);
(e) the acquisition cost of any asset to the extent payable before
or after the time of acquisition or possession by the party
liable (i) where the advance or deferred payment is arranged
primarily as a method of raising finance or financing the
acquisition of that asset and (ii) where payment is deferred
for more than 180 days after the time of acquisition or
possession;
(f) any Finance Lease or QTE Lease;
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(g) any currency swap or interest swap, cap or collar
arrangements, future or option contracts or any other
derivative instrument calculated as the negative
xxxx-to-market value of such instrument as of the date of
calculation;
(h) any amount raised under any other transaction having the
commercial effect of a borrowing or raising of money;
(i) any Excluded Share Capital; or
(j) any guarantee, surety, indemnity or similar assurance against
financial loss of any person in respect of any amounts
referred to in paragraphs (a) to (i) above.
"FIRST MANDATORY REGISTRATION DATE"
means the date falling 55 days after the date of the initial
Utilisation hereunder.
"FORMER SHAREHOLDER LOANS"
means the $17,178,125 shareholder loan from Deutsche Telekom MobilNet
GmbH to the Borrower, the Zloty equivalent of $39,843,750 shareholder
loan from Elektrim S.A. to the Borrower and the $17,578,125 shareholder
loan from MediaOne International B.V. to the Borrower (plus, in
relation to each such amount, any accrued or capitalised interest in
respect thereof), each made on August 24, 1999 and converted into
Reserve Capital on 30 November, 2000.
"GROUP"
means the Borrower and its Subsidiaries from time to time.
"GSM LICENCE"
means the licence numbered 2/96/GSM2 issued to the Borrower on 23rd
February, 1996 which licence includes the permit to install and utilise
a telecommunications network and the frequency allocation necessary for
the Borrower to provide a service.
"GUARANTORS"
means each Subsidiary of the Borrower listed on Schedule B and each
other Principal Member of the Group that shall have become a guarantor
pursuant to Clause 23.9 (Further Guarantors).
"HEDGING AGREEMENTS"
means any currency swap or interest swap, cap or collar arrangements,
future or option contracts or any other derivative instrument or
agreement.
"HEDGING DOCUMENTS"
means any currency swap or interest swap, cap or collar arrangements,
future or option contracts or any other derivative instrument or
agreement entered into between the Borrower and a Bank in accordance
with the Hedging Policy.
"HEDGING POLICY"
means on the Signing Date the interest rate and foreign exchange
hedging strategy of the Borrower provided pursuant to paragraph 21 of
Schedule E and thereafter shall mean the most recent Hedging Policy
agreed with the Agent in accordance with Clause 19.14 (Treasury
transactions).
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"HIGH YIELD DEBT DOCUMENTS"
means:
(a) the indenture dated 1st July, 1997 between PTC International
Finance B.V., the Borrower, and the Bank of New York as
trustee;
(b) the senior subordinated guaranteed discount notes due 2007
issued pursuant to the indenture referred to in (a) above;
(c) the guarantee dated 1st July, 1997 given by the Borrower in
respect of the obligations of PTC International Finance B.V.
included in the terms of the indenture referred to in
paragraph (a) above;
(d) the onlending agreement dated 1st July, 1997 between PTC
International Finance B.V. and the Borrower by which the
proceeds of the notes referred to in paragraph (b) above are
lent to the Borrower;
(e) the support agreement dated 1st July, 1997 between the
Borrower and PTC International Finance B.V. relating to the
onlending agreement referred to in paragraph (d) above;
(f) the indentures each dated 23rd November, 1999 between PTC
International Finance II S.A., PTC International Finance
(Holding) B.V., the Borrower and State Street Bank and Trust
Company, as trustee;
(g) the senior subordinated guaranteed notes due 2009 issued
pursuant to the indentures referred to in (f) above;
(h) the guarantees each dated 23rd November, 1999 given by each of
the Borrower and PTC International Finance (Holding) B.V. in
respect of the obligations of PTC International Finance II
S.A. included in the terms of each indenture referred to in
paragraph (f) above;
(i) the onlending agreement dated 23rd November, 1999 between PTC
International Finance II S.A., and PTC International Finance
(Holding) B.V. by which a portion of the proceeds of the notes
referred to in paragraph (g) above are lent to PTC
International Finance (Holding) B.V.;
(j) the onlending agreement dated 23rd November, 1999 between PTC
International Finance (Holding) B.V. and the Borrower by which
a portion of the proceeds of the notes referred to in
paragraph (g) above are lent to the Borrower;
(k) the support agreement dated 23rd November, 1999 between the
Borrower and PTC International Finance (Holding) B.V. relating
to the onlending agreement referred to in paragraph (j) above;
and
(l) such other documents as evidence, and give effect to, any
Subordinated Debt transactions permitted under the terms of
this Agreement to be entered into by any Obligor after the
date of this Agreement; provided that any such Subordinated
Debt transactions are on substantially the same terms
(including the subordination terms) other than in relation to
any discount amounts or escrow amounts (which shall be on
market terms) as the High Yield Debt Documents as in effect on
the date hereof.
"HOLDING COMPANY"
means, in relation to a body corporate, any other body corporate of
which it is a Subsidiary.
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"IAS"
means accounting principles issued by the International Accounting
Standards Committee from time to time.
"INFORMATION MEMORANDUM"
means the information memorandum dated 31 October, 2000 relating to the
Group provided on behalf of the Borrower by the Lead Arrangers to the
Banks.
"INSTALMENT DATE"
has the meaning given to it in Clause 6.4 (Reduction of Facility).
"INTELLECTUAL PROPERTY RIGHTS"
means all know-how, patents, trademarks, designs, trading names,
copyrights and other intellectual property rights (in each case whether
registered or not and including all applications for the same).
"INTEREST"
means:
(a) interest, commissions, commitment fees and amounts in the
nature of interest (including, without limitation, the
interest element of Finance Leases and QTE Leases) accrued;
(b) prepayment penalties or premiums incurred in repaying or
prepaying any Financial Indebtedness;
(c) discount fees and acceptance fees payable or deducted in
respect of any Financial Indebtedness (including all
commissions payable in connection with any letter of credit);
and
(d) any net payment (or, if appropriate in the context, receipt)
under any interest rate or foreign exchange hedging agreement
or instrument, taking into account any premiums payable.
"INTEREST DATE"
means, in relation to any Advance or any overdue amount, the last day
of any applicable Interest Period.
"INTEREST EXPENSE ON SENIOR DEBT"
of any person means all Interest accrued (whether or not paid) by such
person and its Subsidiaries on a consolidated basis in respect of
Senior Debt during any Ratio Period after deducting the aggregate of
(a) Interest Receivable in such Ratio Period and (b) any unrealised
foreign exchange losses to the extent included as Interest during such
Ratio Period and adding back any unrealised foreign exchange gains to
the extent deducted as Interest during such Ratio Period in each case
of such person and its Subsidiaries on a consolidated basis.
"INTEREST EXPENSE ON TOTAL DEBT"
of any person means all Interest accrued (whether or not paid) by such
person and its Subsidiaries on a consolidated basis during any Ratio
Period (including, without limitation, the appropriate proportion
during such Ratio Period of any amounts which are attributable to
interest not payable in Cash in accordance with the terms of the High
Yield Debt Documents during the period of five years from the issue of
the notes in accordance with the terms of the High Yield Debt Documents
and any other interest which is not payable in Cash during such Ratio
Period) after deducting the aggregate of:
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(a) Interest Receivable in such Ratio Period;
(b) any Interest accrued during such Ratio Period in respect of
Financial Indebtedness issued pursuant to the High Yield Debt
Documents to the extent that the amount of such Interest shall
have been and remain deposited in escrow and invested in
assets permitted under the High Yield Debt Documents;
(c) any Interest accrued during such Ratio Period in respect of
indebtedness consisting of instalment payments relating to the
acquisition by the Borrower of the GSM Licence, the DCS-1800
Licence or the UMTS Licence;
(d) any unrealised foreign exchange losses to the extent included
as Interest during such Ratio Period; and
(e) any Interest accrued during such Ratio Period in respect of
QTE Leases, to the extent that the amount of such Interest
shall have been and remain deposited in escrow.
in each case, of such person and its Subsidiaries on a consolidated
basis and adding back any unrealised foreign exchange gains to the
extent deducted as Interest during such Ratio Period of such person and
its Subsidiaries on a consolidated basis.
"INTEREST PAYABLE"
of any person means in relation to any Ratio Period all Interest paid
or payable to the extent that it is included in the net income of such
person and its Subsidiaries on a consolidated basis during such Ratio
Period.
"INTEREST PERIOD"
means, in relation to any Advance, each period determined in accordance
with Clause 9.1 (Selection and agreement).
"INTEREST RECEIVABLE"
of any person means all Interest received or receivable to the extent
that it is included in the net income of such person and its
Subsidiaries on a consolidated basis during the relevant Ratio Period.
"INVESTMENT GRADE RATING"
means the Borrower has:
(a) a foreign and domestic currency rating of BBB- or above for
senior unsecured debt or the debt represented by the High
Yield Debt Documents, as applicable, from S&P; and
(b) a foreign and domestic currency rating of Baa3 or above for
senior unsecured debt or the debt represented by the High
Yield Debt Documents, as applicable, from Xxxxx'x;
except the Borrower will be deemed to have an Investment Grade Rating
if it has a foreign and domestic currency rating from each of these
rating agencies and there is not more than one sub grade difference
between the foreign currency ratings given by these two rating agencies
and the higher of the two foreign currency ratings from these two
rating agencies is a rating at least as high as the applicable rating
set out in (a) or (b) above.
"ISSUERS"
means (a) PTC International Finance B.V. and PTC International Finance
II S.A., being the Subsidiaries of the Borrower which have issued or
issue notes to the investors pursuant to the High
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Yield Debt Documents and (b) any Obligor (other than the Borrower)
which issues notes to investors pursuant to the High Yield Debt
Documents after the date of this Agreement.
"LIBOR"
in relation to any Tranche A Advance made in a currency other than Euro
or Zloty for any Interest Period relating thereto, means:
(a) other than in the case of Sterling, the rate per annum which
appears on page Libor 01 and 02 on the Reuters screen (or any
other page as may replace such page on such service); or
(b) in the case of Sterling, or if no offered rate appears on the
relevant page of the Reuters screen or there is no relevant
page on the Reuters screen, the arithmetic mean (rounded
upward, if necessary, to four decimal places) of the
respective rates, as supplied to the Agent at its request,
quoted by the Tranche A Reference Banks to leading banks in
the ordinary course of business in the European interbank
market,
at or about 11.00 a.m. on the Rate Fixing Day of such Interest Period
for the offering of deposits in the currency of the Advance for the
same period as such Interest Period and in an amount comparable to the
amount of such Advance. If any of the Tranche A Reference Banks is
unable or otherwise fails so to supply such offered rate by 1.00 p.m.
on the required date, "LIBOR" for the relevant Interest Period shall be
determined on the basis of the quotations of the remaining Tranche A
Reference Banks.
"LICENCE"
means:
(a) the GSM Licence;
(b) the DCS-1800 Licence;
(c) the UMTS Licence;
(d) the licence numbered 516/99 issued on 26th November 1999 for
the provision of telecommunication services; and
(e) any other licence for the operation of a telecommunications
network (including all apparatus, equipment and
telecommunication systems of every description which it is
authorised to operate or run under such licence) obtained by
any member of the Group where the revocation, suspension or
termination of such licence might have a Material Adverse
Effect.
"MAJORITY BANKS"
means at any time:
(a) Banks whose Commitments aggregate more than 66 2/3% of the
Total Commitments at such time; or
(b) if the Total Commitments have been reduced to nil, Banks whose
Commitments aggregated more than 66 2/3% of the Total
Commitments immediately before the reduction;
provided, however, that for the purposes of this definition only, any
Bank that fails to participate fully in an Advance in accordance with
Clause 5.3 (Participations in Advances) or the EBRD if it provides a
notice to the Borrower in accordance with Clause 6.7 (Suspension and
Cancellation of the EBRD's Commitments) shall be deemed to have
Commitments equal to the drawn portion of its Commitments.
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"MANDATORY CANCELLATION DATE"
has the meaning given to it in Clause 6.1 (Mandatory Cancellation).
"MATERIAL ADVERSE EFFECT"
means any effect which, in the reasonable opinion of the Majority
Banks, is or is likely to be materially adverse to:
(a) the ability of any Obligor to perform its payment obligations
under this Agreement or other material obligations under any
of the Senior Finance Documents; or
(b) the business, financial condition, operations or performance
of the Group (taken as a whole).
"MATERIAL CONTRACTS"
means:
(a) the Licences;
(b) the interconnect agreements referred to in paragraph 23 of
Schedule E or any interconnect agreements resulting from the
negotiations referred to in that paragraph;
(c) the supply agreement dated 5th June, 1996 between the
Borrower, Siemens AG and ZWUT SA as amended;
(d) the supply agreement dated 5th June, 1996 between the Borrower
and Ericsson Radio Systems AB and Ericsson Sp. z o.o., as
amended; and
(e) the supply agreement dated 28th July, 1999 between the
Borrower and Alcatel Polska SA;
together with any agreements replacing any of the above and any other
agreements fundamental to the business of the Group which if cancelled,
terminated, revoked or not replaced, would be reasonably likely to have
a Material Adverse Effect.
"MOODY'S"
means Xxxxx'x Investor Services, Inc.
"NECESSARY AUTHORISATIONS"
means all material approvals, authorisations and licences (other than
any Licence) from, all rights granted by and all filings, registrations
and agreements with, any government or other regulatory authority
necessary in order to enable the Borrower and its Subsidiaries to
construct, maintain and operate the Network.
"NET PROCEEDS"
means the aggregate value of consideration received by any member of
the Group in respect of any disposal of any assets (including shares in
other Group members) by a member of the Group to any third party which
is not a member of the Group after deduction of:
(a) all amounts paid or provided for or on account of Taxes
applicable to, or to any gain resulting from, the disposal of
such assets or the discharge of any liability secured on such
assets; and
(b) all costs, fees, expenses and the like properly incurred in
arranging and effecting that disposal.
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"NETWORK"
means any network operated by the Borrower or any other member of the
Group and operated or run by it pursuant to any Licence.
"NEW FACILITY"
means one or more credit facilities (other than pursuant to the
Supplemental Facility Agreement) or other Financial Indebtedness of the
type referred to in clause (a) or (b) of the definition of "Financial
Indebtedness" of the Borrower and any guarantees by the Obligors of
each such credit facility or other Financial Indebtedness in each case
ranking pari passu (other than, in the case of an unsecured facility or
other Financial Indebtedness, as to security) with the Tranches;
provided, however, that to the extent that the terms of any such credit
facility or other debt instrument require scheduled repayment of
principal thereunder during the term of this Agreement, no such
repayments shall occur on any date other than on an Instalment Date and
no such repayment shall exceed the Maximum Repayment Amount at such
time; provided further, however, that all or any part of any New
Facility may be repaid, replaced, substituted or refinanced by another
New Facility. "MAXIMUM REPAYMENT AMOUNT" means, at any Instalment Date,
an amount equal to (a) the product of (i) the commitments in effect
under such credit facility or other debt instrument as of the date of
incurrence thereof and (ii) the principal amount of Advances required
to be repaid on that Instalment Date pursuant to Clause 7(a)
(Repayment) divided by (b) the Commitments in effect on the date
hereof.
"OBLIGOR"
means the Borrower and each Guarantor.
"OPTIONAL CURRENCY"
means for the purposes of Tranche A, Dollars, Deutschmarks, Swiss
Francs, sterling, Japanese Yen and Zloty to the extent that at any
relevant time Zloty is acceptable to all Tranche A Banks and at such
time is freely transferable and convertible into Euro and deposits of
which are readily available in the London money market.
"ORDINARY SHARE PLEDGES"
means the Polish law pledges in the agreed form in favour of the
Security Agent of at least 51 per cent of the Shares.
"ORIGINAL BORROWER ACCOUNTS"
means the annual audited Accounts of the Borrower for the year ending
31st December, 1999.
"ORIGINAL EURO AMOUNT"
means, in relation to a Tranche A Utilisation:
(a) if that Tranche A Utilisation is denominated in Euro, the
amount of that Utilisation; or
(b) if that Tranche A Utilisation is denominated in an Optional
Currency, the amount in Euro of that Tranche A Utilisation
specified in the relevant Request.
"PARTY"
means a party to this Agreement.
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"PERMITTED DISTRIBUTION"
means:
(a) a distribution of dividends on or in respect of any share
capital of any member of the Group;
(b) a distribution of interest at a rate no higher than the
interest rate applicable to the Former Shareholder Loans in
effect immediately before their conversion into Reserve
Capital on the Shareholder Loans in accordance with the terms
thereof or, during the UMTS Approved Period and the UMTS
Prepayment Period, principal of or other payments under the
Shareholder Loans in accordance with the terms thereof; or
(c) a distribution of interest on or other payments under the
Subordinated Debt (other than the Shareholder Loans), in
accordance with the terms of the High Yield Debt Documents,
which is permitted in accordance with Clause 19.18 (Permitted
Distributions).
"PERMITTED INVESTMENTS"
means investments in:
(a) government securities of:
(i) Poland;
(ii) a member state of the European Union; or
(iii) a member of the G7 group of nations,
which, if they are registered securities, are securities over
which the Borrower has granted security in favour of the
Finance Parties in the jurisdiction of the issuer in a manner
satisfactory to the Agent (acting reasonably), and which, if
they are bearer securities, are securities deposited in an
account over which the Finance Parties have security; or
(b) certificates of deposits, notes, acceptances issued by and
deposit and current accounts of and time deposits with any
Bank or other bank which is an authorised institution for
accepting such investments and which:
(i) in the case of investments in Poland, is an
authorised institution in the Republic of Poland for
accepting such investments with (or the Holding
Company of which has) a long-term debt rating of at
least (a) "BBB-" from S&P and "Baa3" from Moody's in
any amount or (b) "BB" from S&P and "Ba" from Moody's
in such amounts as agreed between the Agent and the
Borrower from time to time;
(ii) in the case of any account other than the collection
account for subscriber receivables, is a Bank with
(or the Holding Company of which has) a long-term
debt rating of at least (a) "BBB-" from S&P and
"Baa3" from Moody's in any amount or (b) "BB" from
S&P and "Ba" from Moody's in such amounts as agreed
between the Agent and the Borrower from time to time;
or
(iii) in the case of the collection account for subscriber
receivables, is a major recognised bank in Poland
with (or the Holding Company of which has) a
long-term debt rating of at least (a) "BBB-" from S&P
and "Baa3" from Moody's in any amount or (b) "BB"
from S&P and "Ba" from Moody's in such amounts as
agreed between the Agent and the Borrower from time
to time and the Agent is satisfied that there are
first priority Security Interests created by the
Security Documents over that account and such bank
has agreed to waive its rights of set-off over such
account.
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"PLEDGE LAW"
means the Law on Registered Pledge and The Pledge Register of 6th
December, 1996 (Journal of Law, No. 149, Item 703), as amended from
time to time.
"PRINCIPAL MEMBER OF THE GROUP"
means at any time:
(a) the Borrower;
(b) the Issuers;
(c) any other member of the Group:
(i) whose EBITDA constitutes more than 5% of EBITDA of
the Group at such time and, if the aggregate EBITDA
of the Principal Members of the Group constitutes
less than 90% of EBITDA of the Group, the next
largest members of the Group by reference to EBITDA
so that EBITDA of the Principal Members of the Group
constitutes at least 90% of EBITDA of the Group;
(ii) whose gross assets constitute more than 5% of the
consolidated gross assets of the Group at such time
and, if the aggregate gross assets of the Principal
Members of the Group constitute less than 90% of the
consolidated gross assets of the Group, the next
largest members of the Group by reference to gross
assets so that the gross assets of the Principal
Members of the Group constitute at least 90% of the
consolidated gross assets of the Group; or
(iii) whose turnover constitutes more than 5% of turnover
of the Group at such time and, if the aggregate
turnover of the Principal Members of the Group
constitutes less than 90% of turnover of the Group,
the next largest members of the Group by reference to
turnover so that turnover of the Principal Members of
the Group constitutes at least 90% of turnover of the
Group,
all as shown in the most recent annual Accounts of such member
of the Group and the annual consolidated Accounts of the
Group; and
(d) any member of the Group to whom all or a substantial part of
the assets of a Principal Member of the Group are transferred.
"QTE LEASES"
means tax advantaged synthetic leases pursuant to which the Borrower
effectively sells and leases back "qualified technological equipment"
as defined at Section 168(i)(2) of the United States Internal Revenue
Code.
"QUALIFYING BANK"
means the EBRD or, at any time, a bank or financial institution which
is at that time:
(a) resident in the Republic of Poland; or
(b) resident (as such term is defined in the appropriate double
taxation treaty) in a country with which the Republic of
Poland has an appropriate double taxation treaty giving
residents of that country complete exemption from Polish
Taxation on interest and which:
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(i) does not carry on business in the Republic of Poland
through a permanent establishment with which the
indebtedness under this Agreement in respect of which
the interest is paid is effectively connected; and
(ii) has submitted all of the necessary forms completed in
a proper manner together with all necessary documents
and has taken all necessary steps in order to secure
total relief from Polish Taxation in respect of
interest and/or commissions to be paid to it under
this Agreement pursuant to such treaty.
For this purpose "DOUBLE TAXATION TREATY" means any convention
or agreement between the government of the Republic of Poland
and any other government for the avoidance of double taxation
and the prevention of fiscal evasion with respect to Taxes on
income.
"RATE FIXING DAY"
means in relation to an Interest Period:
(a) (if the currency is Euro) two TARGET Days before the first day
of such Interest Period; and
(b) (for Zloty or any other currency (other than Euro)) two
Business Days before the first day of such Interest Period.
"RATIO PERIOD"
means each period covered by the four consecutive quarterly Accounting
Periods ending on the last day of a quarterly Accounting Period.
"REDUCTION AMOUNT"
has the meaning given to it in Clause 6.4 (Reduction of Facility).
"REFERENCE BANKS"
means:
(a) when designated "TRANCHE A", the principal Luxembourg offices
of the Agent, Dresdner and a Tranche A Bank selected by the
Agent after consultation with the Borrower;
(b) when designated "TRANCHE B", the principal Warsaw offices of
DB Polska, Wielkopolski Bank Kredytowy S.A. and Citibank
(Poland) S.A.;
(c) without designation the Tranche A Reference Banks or the
Tranche B Reference Banks as the context requires,
and in each case such other Banks as may become Reference Banks
pursuant to Clause 30.4 (Reference Banks).
"REFIXING DATE"
has the meaning given to it in Clause 5.5 (Zloty Limit).
"REGISTERED SHARE PLEDGES"
means the first priority Polish law pledges in favour of the Security
Agent in the agreed form pledging at least 51 per cent of the Shares
registered or to be registered in the register of pledges in Warsaw.
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"REQUEST"
means a request, substantially in the form of Schedule H made by the
Borrower to the Agent for an Advance to be made under this Agreement.
"RESERVE CAPITAL"
means amounts contributed to the Borrower's reserve capital as
additional payments (known as doplaty under the Polish Commercial
Code).
"RESTRICTED PAYMENT"
means any payment (whether in cash, property, securities or otherwise)
on account of the purchase, redemption, reduction or other acquisition
or retirement of any of the share capital of any member of the Group
not held by a member of the Group.
"RESTRICTED PERIOD"
means the period from the date of this Agreement until the date on
which the Borrower achieves an Investment Grade Rating.
"RESTRICTED PERSON"
means the Shareholders, any Affiliate of a Shareholder or any
partnership in which any of the Shareholders or any of their Affiliates
is a partner (either directly or through any intermediate
partnerships).
"ROLLOVER DATE"
means the date on which the Interest Period for an Advance commences.
"S&P"
means Standard and Poor's, a division of The XxXxxx-Xxxx Companies,
Inc.
"SECURITY"
means any property or assets in which a Security Interest is granted in
accordance with the terms of the Security Documents.
"SECURITY DOCUMENTS"
means each of the security documents identified in Schedule D which are
entered into in accordance with the terms of this Agreement, together
with such other security documents and guarantees as may from time to
time be entered into by the Borrower or a Subsidiary of the Borrower in
favour of a Finance Party or the Security Agent pursuant to any of the
Senior Finance Documents.
"SECURITY INTEREST"
means any mortgage, pledge, lien, charge, assignment for the purpose of
providing security, hypothecation or other security interest.
"SENIOR DEBT"
of any person means without duplication the consolidated Financial
Indebtedness (including, for the avoidance of doubt, Financial
Indebtedness pursuant to Finance Leases and obligations in respect of
QTE Leases (valued at the principal amount of such Finance Leases or
QTE Leases or, if such QTE
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Leases have been defeased, at the residual value thereof), the monthly
xxxx-to-market value of Hedging Agreements entered into in relation to
any Senior Debt and the negative xxxx-to-market value (if any) of any
Hedging Agreement entered in respect of interest payments in relation
to any Financial Indebtedness incurred pursuant to the High Yield Debt
Documents) of such person and its Subsidiaries on a consolidated basis
but excluding, to the extent otherwise included therein, (a)
Subordinated Debt so long as such Subordinated Debt has a maturity
falling at least twelve months after the Final Repayment Date, (b) any
amounts on deposit in escrow accounts of the Borrower or any of its
Subsidiaries and (c) instalment payments (if any) due for the GSM
Licence, the DCS-1800 Licence or the UMTS Licence owing to the
government of the Republic of Poland (but including any letter of
credit, bank guarantee, performance bond or similar instrument issued
in respect of such instalment payments)).
"SENIOR FINANCE DOCUMENTS"
means each of:
(i) this Agreement;
(ii) the Fee Letters;
(iii) the Security Documents;
(iv) each document evidencing a transaction designated to
be secured by the Security Documents pursuant to
Clause 19.14 (Treasury Transactions);
(v) the Side Letter;
(vi) a side letter in the agreed form from the
Shareholders to the Agent, pursuant to which the
Shareholders agree to notify the Agent of any pledge
of the Shares;
(vii) each Accession Agreement;
(viii) the Collateral Sharing Intercreditor Agreement or
other intercreditor or security sharing agreement
between the Finance Parties, the creditors under the
Supplemental Facility Senior Finance Documents and
the creditors under any New Facility; and
(ix) any other document designated as such by the Agent
and the Borrower.
"SHAREHOLDER LOANS"
means all amounts borrowed by an Obligor from a Shareholder or an
Affiliate of a Shareholder which is not a member of the Group and all
amounts contributed by Shareholders to the Borrower's reserve capital
as additional payments (known as doplaty under the Polish Commercial
Code), which shall be subordinated to the amounts outstanding under
this Agreement on terms substantially the same or more favourable to
the Finance Parties as the subordination terms in effect with respect
to Former Shareholder Loans immediately prior to their conversion into
Reserve Capital.
"SHAREHOLDERS"
means each shareholder from time to time of the Borrower being as at
the date of this Agreement, Elektrim S.A., Deutsche Telekom MobilNet
GmbH, Deutsche Telekom A.G., MediaOne International B.V.,
Elektrim-Autoinvest S.A., Elektrim Telekomunikacja Sp. z o.o., Polpager
Sp. z o.o. and Carcom Warszawa Sp. z o.o.
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"SHAREHOLDERS' AGREEMENT"
means the Shareholders' Agreement dated 21st December, 1995 between the
Shareholders (other than Carcom Sp. z o.o.) as amended from time to
time.
"SHARES"
means the equity share capital of the Borrower.
"SIDE LETTER"
means the letter between Elektrim S.A. and the Agent dated on or about
16 February, 2001.
"SIGNING DATE"
means the date of this Agreement.
"STERLING", "STERLING" and "(POUND)"
means the lawful currency for the time being of the United Kingdom.
"SUBORDINATED CREDITOR"
means each person who lends a Shareholder Loan and each noteholder and
the trustee under the High Yield Debt Documents.
"SUBORDINATED DEBT"
means:
(a) all amounts outstanding under or in connection with the High
Yield Debt Documents including for the avoidance of doubt
between the Borrower and each Issuer on the terms as set out
in the High Yield Debt Documents as at the Signing Date;
(b) any actual or contingent liability under any guarantee and
support agreement given by the Borrower referred to in the
definition of High Yield Debt Documents on the terms as set
out in the High Yield Debt Documents as at the Signing Date;
(c) all Shareholder Loans;
(d) any intercompany debt which is subordinated in right of
payment to the amounts owing hereunder on terms substantially
the same as those subordination terms set forth in the
subordination agreements listed at Schedule D, paragraph 4;
and
(e) any other present and future sums, liabilities and obligations
(whether actual or contingent) payable, owing, due or incurred
by an Obligor which are subordinate in right of payment to the
amounts owing hereunder on terms substantially the same as
those subordination terms set forth in the High Yield Debt
Documents existing as of the date hereof.
"SUBSIDIARY"
means, an entity from time to time of which a person has direct or
indirect control or owns directly or indirectly more than fifty per
cent. (50%) of the share capital or similar right of ownership.
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"SUPPLEMENTAL FACILITY AGREEMENT"
means the EURO 100,000,000 facility agreement dated on or about 16
February, 2001 between the Borrower, the Guarantors as defined therein,
the Arrangers as defined therein, the Banks as defined therein, DBAG,
DB Polska and Dresdner as Lead Arrangers, Deutsche Bank Luxembourg,
S.A., as Agent, and DB Polska as Security Agent.
"SUPPLEMENTAL FACILITY SENIOR FINANCE DOCUMENTS"
means the "Senior Finance Documents" as defined in the Supplemental
Facility Agreement.
"TARGET" means Trans-European Automated Real-time Gross Settlement
Express Transfer payment system.
"TARGET DAY" means any day on which TARGET is open for the settlement
of payments in Euro.
"TAX ON OVERALL NET INCOME"
of a person shall be construed as a reference to Tax (other than Tax
deducted or withheld from any payment) imposed on that person on:
(i) the net income, profits or gains of that person
world-wide; or
(ii) such of its income, profits or gains as arise in or
relate to the jurisdiction in which it is resident or
in which its principal office (and/or its Facility
Office) is located.
"TAXES"
means all income and other taxes and levies, imposts, duties, charges,
deductions and withholdings in the nature or on account of tax together
with interest thereon and penalties and fees with respect thereto, if
any, and any payments made on or in respect thereof, and "TAX" and
"TAXATION" shall be construed accordingly.
"TELECOM BUSINESS"
means the development, ownership or operation of a mobile telephony
system and other telephony, telecommunication, information or internet
services and any other services ancillary, related or complementary to
any such system or such other services.
"TRANCHE"
means:
(a) when designated "TRANCHE A", the revolving loan tranche
referred to in Clause 2.1(a) (Tranche A);
(b) when designated "TRANCHE B", the revolving loan tranche
referred to in Clause 2.1(b) (Tranche B); and
(c) without any such designation, Tranche A or Tranche B, as the
context requires.
"TRANSACTION DOCUMENTS"
means:
(i) the Senior Finance Documents;
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(ii) the High Yield Debt Documents;
(iii) the Shareholders' Agreement;
(iv) the Supplemental Facility Senior Finance Documents;
and
(v) any other document designated as such in writing by
the Agent and the Borrower.
"TRANSFER CERTIFICATE"
has the meaning given to it in Clause 30.3 (Procedure for transfers).
"UMTS APPROVAL BANKS"
means at any time, each Commitment Bank and, if all Commitment Banks do
not constitute the Majority Banks at such time, such other Banks such
that the aggregate Commitments of the Commitment Banks and such other
Banks at such time constitute at least 66 2/3% of the Total Commitments
at such time; provided that if the Total Commitments have been reduced
to nil, for purposes of this definition "Commitments" and "Total
Commitments" shall be the Commitments and Total Commitments in effect
immediately before such reduction. For the purposes of this definition,
a "COMMITMENT BANK" means, at any time, a Bank with a Commitment of at
least EURO 50,000,000 at such time, Mizuho Holdings, Inc., at any time,
so long as the aggregate Commitments of any direct and indirect
subsidiaries of Mizuho Holdings, Inc. (including Industriebank von
Japan (Deutschland) Aktiengesellschaft and Mizuho Bank Nederland NV)
are at least EURO 50,000,000 at such time and Deutsche Bank AG London,
at any time, so long as the aggregate Commitments of Deutsche Bank
Luxembourg S.A. and Deutsche Bank Polska S.A. are at least
EURO 50,000,000 at such time.
"UMTS APPROVED PERIOD"
means the period from the date on which the UMTS Approval Banks approve
the UMTS Business Plan in accordance with Clause 8.5 (UMTS Prepayment)
to the Final Repayment Date.
"UMTS BUSINESS PLAN"
means an updated Business Plan incorporating the acquisition and
financing of the UMTS Licence and all UMTS Expenditures in the Republic
of Poland (including financial projections (including projected profit
and loss accounts, balance sheets and cash flow statements for the
Borrower's fiscal years from 2001 to 2007) reflecting the anticipated
additional Financial Indebtedness, Shareholder Loans and/or capital
contributions that will or may be required) and demonstrating that
implementation of such Business Plan will not result in a breach of the
Borrower's obligations under Clause 19.26 (Financial Indebtedness),
Clause 19.33 (UMTS Licence) and Clause 21 (Financial Undertakings) and
that no Event of Default is reasonably likely to or will occur as a
result of the implementation of such Business Plan in accordance with
the terms thereof.
"UMTS EXCLUSION PERIOD"
means the period from the earlier of (a) the date of notification of
the second and final rejection of the UMTS Business Plan by the UMTS
Approval Banks pursuant to Clause 8.5 (UMTS Prepayment) and (b) the one
month anniversary of the date on which the UMTS Approval Banks first
rejected the UMTS Business Plan pursuant to Clause 8.5 (UMTS
Prepayment) unless the Borrower shall have submitted a revised UMTS
Business Plan prior to such one month anniversary until the earlier to
occur of the (i) first day of the UMTS Prepayment Period and (ii) the
Final Repayment Date.
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"UMTS EXPENDITURE"
means amounts spent for capital expenditures, working capital
requirements and operating expenses associated with the UMTS business,
as well as UMTS licence fee payments other than the UMTS Licence
Initial Instalments.
"UMTS LICENCE"
means the licence numbered 2/UMTS issued to the Borrower on 20 December
2000 to provide telecommunications services meeting the European UMTS
telecommunications standard including a permit to install and use a
telecommunications network and allocation of frequencies in the 2 GHz
band.
"UMTS LICENCE INITIAL INSTALMENTS"
means the UMTS Licence fee payments required prior to or within the
first 12 months following the award of the UMTS Licence to the
Borrower.
"UMTS PRE-APPROVAL PERIOD"
means the period from the date hereof until the earliest to occur of
(a) the date on which the UMTS Approval Banks approve the UMTS Business
Plan in accordance with Clause 8.5 (UMTS Prepayment); (b) the first day
of the UMTS Exclusion Period; (c) the first day of the UMTS Prepayment
Period; and (d) the Final Repayment Date.
"UMTS PREPAYMENT NOTICE"
has the meaning given to it in Clause 8.5 (UMTS Prepayment).
"UMTS PREPAYMENT PERIOD"
means the period from the date on which the Borrower delivers a UMTS
Prepayment Notice pursuant to Clause 8.5(b) (UMTS Prepayment) to the
date of prepayment specified therein.
"UTILISATION"
means:
(a) when designated "TRANCHE A", a utilisation under this
Agreement of Tranche A;
(b) when designated "TRANCHE B", a utilisation under this
Agreement of Tranche B; and
(c) without any such designation, a utilisation of Tranche A or
Tranche B, as the context requires.
"UTILISATION DATE"
means each date on which an Advance was or is to be made.
"WIBOR"
in relation to any Advance made in Zloty for any Interest Period
relating thereto means:
(a) the offered rate which appears on page WIBO on the Reuters
screen (or any other page as may replace such page on such
service); or
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(b) if one only or no offered rate appears on the WIBO page of the
Reuters screen or there is no relevant page on the Reuters
screen, the arithmetic mean (rounded upward, if necessary, to
two decimal places) of the respective rates, as supplied to
the Agent at its request, quoted by the Tranche B Reference
Banks to leading banks in the ordinary course of business in
the Warsaw interbank market,
at or about 11.00 a.m. on the Rate Fixing Day of such Interest Period
for the offering of deposits in Zloty for the same period as such
Interest Period and in an amount comparable to the amount of such
Advance, provided that if any of the Tranche B Reference Banks is
unable or otherwise fails so to supply such offered rate by 1.00 p.m.
on the required date, "WIBOR" for the relevant Interest Period shall be
determined on the basis of the quotations of the remaining Tranche B
Reference Banks.
"ZLOTY" and "PLN"
means the lawful currency for the time being of the Republic of Poland.
"ZLOTY EQUIVALENT"
means:
(i) in relation to any amount in Zloty, that amount; and
(ii) in relation to any amount denominated in a currency
other than Zloty the amount of Zloty which the amount
of such currency would purchase on a particular day
when converted at the Agent's Spot Rate of Exchange.
"ZLOTY LIMIT"
means, in relation to a Tranche B Bank, the amount in Zloty which:
(a) from the date of this Agreement up to but not including the
first Refixing Date, is set opposite the name of that Tranche
B Bank in Schedule A and/or stated before the first Refixing
Date in any Transfer Certificate or other document by which it
becomes a party to or acquired rights under this Agreement;
and
(b) as at each Refixing Date, subject to the limitations contained
in Clause 5.5 (Zloty Limit), is equal to its Zloty Limit
increased or decreased, as the case may be, to compensate for
any depreciation or appreciation of the Zloty against the Euro
and notified to it in accordance with Clause 5.5 (Zloty Limit)
having regard to Clause 5.5(e) (Zloty Limit) and/or stated
since the last Refixing Date in any Transfer Certificate or
other document by which it becomes a party to or acquired
rights under this Agreement,
in each case to the extent not cancelled, reduced or transferred under
this Agreement.
1.2 Construction
(a) In this Agreement, save where the context otherwise requires:
(i) references to documents being in the "AGREED FORM"
means documents (A) in a form previously agreed in
writing by or on behalf of the Agent and the
Borrower, or (B) in a form substantially as set out
in any Schedule to any Senior Finance Document, or
(C) (if not falling within (A) or (B) above) in form
and substance satisfactory to the Agent acting on
behalf of the Majority Banks;
(ii) an "AMENDMENT" includes a supplement, novation or
re-enactment and "AMENDED" is to be construed
accordingly;
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(iii) "ASSETS" includes present and future properties,
revenues and rights of every description;
(iv) an "AUTHORISATION" includes an authorisation,
consent, approval, resolution, licence, exemption,
filing or registration;
(v) "CONTROL" means the power to direct the management
and policies of an entity, whether through the
ownership of voting capital, by contract or
otherwise;
(vi) "FIRST PRIORITY" means, with respect to any Security
Interest in any asset, a Security Interest in such
asset that has priority over all other Security
Interests in such asset other than Security Interests
securing obligations in respect of the Supplemental
Facility Senior Finance Documents or any New Facility
which rank pari passu as a result of the operation of
the Collateral Sharing Intercreditor Agreement;
(vii) references to "INDEBTEDNESS" shall be construed so as
to include any obligation or liability (whether
present or future, actual or contingent) for the
payment or repayment of money;
(viii) a "MONTH" is a reference to a period starting on one
day in a calendar month and ending on the numerically
corresponding day in the next calendar month, except
that if there is no numerically corresponding day in
the month in which that period ends, that period
shall end on the last Business Day in that calendar
month;
(ix) an amount "OUTSTANDING" under or in respect of any
Advance at any time is the principal amount thereof
from time to time outstanding;
(x) a "REGULATION" includes any regulation having the
force of law and/or, rule, official directive or
guideline (whether or not having the force of law)
having authority to regulate banking activity in
Poland or any other jurisdiction through which a Bank
makes its participation in the Advances available or
in which a Bank or its Holding Company is located or
incorporated; or
(xi) a provision of law is a reference to that provision
as amended or re-enacted;
(xii) a Clause or a Schedule is a reference to a clause of
or a schedule to this Agreement;
(xiii) a person includes its successors and assigns;
(xiv) a Transaction Document or another document is a
reference to that Transaction Document or other
document as amended;
(xv) the contents page of, and headings in, this Agreement
are for convenience only and shall be ignored in
construing this Agreement; and
(xvi) unless the contrary intention appears, a time of day
is a reference to London time in the case of any
notice or determination under Tranche A and Warsaw
time in the case of any notice or determination under
Tranche B.
(b) Unless the contrary intention appears, a term used in any
other Senior Finance Document or in any notice given under or
in connection with any Senior Finance Document has the same
meaning in that Senior Finance Document or notice as in this
Agreement.
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2. FACILITY AND RELATED MATTERS
2.1 Facility
Subject to the terms of this Agreement, the Banks agree to make
available to the Borrower a revolving credit facility where the
aggregate principal amount of Utilisations made shall not exceed the
Total Commitments in effect from time to time. The facility will be
made available in the following tranches:
(a) Tranche A
a euro revolving credit tranche which shall be available for
drawing in euro or Optional Currencies where the Original Euro
Amount of Tranche A Utilisations made shall not exceed the
Tranche A Total Commitments (being as at the date of this
Agreement euro292,500,000); and
(b) Tranche B
a Zloty revolving credit tranche which shall be available for
drawing in Zloty where the aggregate principal amount of
Tranche B Utilisations made shall not exceed the Tranche B
Total Commitments (being as at the date of this Agreement the
Zloty Equivalent of euro257,500,000, subject to the Zloty
Limits).
2.2 Nature of the Banks' rights and obligations
(a) No Bank is obliged to participate in the making of any
Utilisation:
(i) in the case of a Tranche A Utilisation, if to do so
would cause the Original Euro Amount of the aggregate
of its participations in the Tranche A Utilisations
outstanding under this Agreement to exceed its
Tranche A Commitment; or
(ii) in the case of a Tranche B Utilisation, if to do so
would cause the aggregate of its participations in
the Tranche B Utilisations outstanding under this
Agreement to exceed its Tranche B Commitment.
(b) The obligations of each Bank under this Agreement are several.
The failure of a Bank to carry out its obligations under this
Agreement shall not relieve any other party of its obligations
under any Senior Finance Document. No Finance Party shall be
responsible for the obligations of any other Finance Party
under the Senior Finance Documents.
(c) The rights of a Finance Party under the Senior Finance
Documents are divided rights. Each Finance Party may, except
as otherwise stated herein, separately enforce those rights.
(d) Nothing in this Agreement constitutes a partnership between
the Finance Parties.
2.3 [Intentionally omitted]
2.4 Parallel Debt and Security
For the purpose of ensuring and preserving the validity and continuity
of the security rights created under or pursuant to the Security
Documents referred to in Paragraphs 1, 7, 8 and 9 of Schedule D, the
Borrower hereby irrevocably and unconditionally undertakes to pay and
to procure that each of its Subsidiaries irrevocably and
unconditionally undertakes to pay to the Security Agent any and all
amounts owing by the Obligors to the Finance Parties under the Senior
Finance Documents (the "OBLIGATIONS").
The Borrower and the Security Agent acknowledge that for this purpose
all obligations of the Obligors to the Finance Parties under the Senior
Finance Documents are also obligations of the Obligors to the Security
Agent, which are separate and independent from, and without prejudice
to, their identical
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obligations to the Finance Parties under the Senior Finance Documents,
provided, however, that the amounts due and payable under this Clause
(the "PARALLEL DEBT") shall be decreased to the extent that the
Borrower or any of its Subsidiaries has paid any amounts to the Finance
Parties or any of them in respect of the Obligations, the Obligations
shall be decreased by any amount paid by the Borrower or any of its
Subsidiaries to the Security Agent in respect of the Parallel Debt, and
the Parallel Debt shall not exceed the aggregate of the Obligations.
Nothing in this Clause shall in any way negate or affect the
obligations which the Obligors have to the Finance Parties under the
Senior Finance Documents.
For the purpose of this Clause the Security Agent acts in its own name
and on behalf of itself and not as agent or representative of any other
party hereto, and any security rights granted to the Security Agent to
secure the Parallel Debt are granted to it in its capacity as creditor
of the Parallel Debt.
Any amount received by the Security Agent in relation to the Parallel
Debt and pursuant to the foreclosure of security rights granted to it
to secure this debt, shall be applied by the Security Agent in
accordance with Clause 31.2 (Application of payments).
3. PURPOSE AND RESPONSIBILITY
3.1 Purpose
The proceeds of each Utilisation shall be applied in or towards:
(a) the refinancing of the existing DM672,000,000 facility
agreement between the Borrower, Citibank N.A. as Co-ordinator
and Citibank (Poland) S.A. and Citibank N.A. as Security
Agents, inter alia, dated 17th December, 1997;
(b) the financing of ongoing capital expenditure and working
capital requirements of the Borrower and its wholly-owned
Subsidiaries involved in the Telecom Business, including,
inter alia, operating losses and financial expenses but
excluding UMTS Expenditures, UMTS License fees and UMTS
Licence Initial Instalments;
(c) the provision of an amount, together with amounts drawn for
the same purpose under the Supplemental Facility Agreement, of
up to the Euro Equivalent of euro15,000,000 in cash collateral
for letters of credit;
(d) the funding by the Borrower of UMTS Licence Initial
Instalments paid or to be paid in connection with the
acquisition of the UMTS Licence; provided that the aggregate
amount of all Utilisations hereunder and all "UTILISATIONS"
under and as defined in the Supplemental Facility Agreement
incurred in each case for the purpose of funding the UMTS
Licence Initial Instalments does not exceed euro150,000,000
(or the Euro Equivalent thereof, if incurred in another
currency); and provided further that the maximum aggregate
principal amount of all Financial Indebtedness (other than
Shareholders Loans) incurred (whether hereunder or otherwise)
for the purpose of funding the UMTS Licence Initial
Instalments does not exceed an amount equal to the lower of
euro250,000,000 (or the Euro Equivalent thereof, if incurred
in another currency) and 2/3 of the Euro Equivalent of the
aggregate amount of all UMTS Licence Initial Instalments; and
(e) the financing of any UMTS Expenditures:
(i) during the UMTS Pre-Approval Period in an amount,
together with amounts drawn for the same purpose
under the Supplemental Facility Agreement, of up to
the Euro Equivalent of euro25,000,000;
(ii) during the UMTS Prepayment Period, in an amount,
together with any Utilisations made pursuant to
sub-Clause (i) above, and together with amounts drawn
for the same
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purpose under the Supplemental Facility Agreement, of
up to the Euro Equivalent of euro75,000,000; and
(iii) during the UMTS Approved Period, in any amount.
3.2 Responsibility
Without prejudice to the terms of this Agreement, none of the Finance
Parties shall be bound to enquire as to the use or application of the
proceeds of any Utilisation, nor shall any of them be responsible for
or for the consequences of such use or application.
4. CONDITIONS PRECEDENT
4.1 Conditions Precedent to first Utilisation
The obligations of each Finance Party to the Borrower under this
Agreement with respect to the making of the first Utilisation are
subject to the conditions precedent that the Agent has received all of
the documents listed in Schedule E in the agreed form.
4.2 Conditions Precedent to each Utilisation
The obligation of each Bank to participate in any Utilisation is
subject to the further conditions precedent that on both the date of
the Request and on the Utilisation Date:
(a) no Default is outstanding or might result from the Utilisation
(including without limitation pro forma compliance with Clause
21.1 (Senior Debt to EBITDA) calculated based on the Group's
Accounts in respect of the most recent quarterly Accounting
Period for which financial statements are available);
(b) the representations and warranties in Clause 18
(Representations and Warranties) to be repeated on those dates
are correct in all material respects and will be correct in
all material respects immediately after the making of the
Utilisation; and
(c) in the case of a Utilisation for the purpose of financing the
amount of any UMTS Licence Initial Instalment as referred to
in Clause 3.1(d) (Purpose), the Borrower has delivered to the
Agent evidence reasonably satisfactory to the Agent that the
Shareholders have made after the date hereof or will make on
or prior to the date of such Utilisation capital contributions
or Shareholder Loans in amounts that will ensure that
immediately following such Utilisation the principal amount of
Financial Indebtedness (other than Shareholder Loans) incurred
(whether hereunder or otherwise) for the purposes of funding
such UMTS Licence Initial Instalments as well as all previous
UMTS Licence Initial Instalments paid does not exceed an
amount equal to the lower of (i) euro250,000,000 (or the Euro
Equivalent thereof, if incurred in another currency) and (ii)
2/3 of the Euro Equivalent of the aggregate amount of such
UMTS Licence Initial Instalment and all previous UMTS Licence
Initial Instalments paid; provided that the Reserve Capital
cash payment of the Zloty equivalent of US$4,000,000 made by
certain Shareholders to the Borrower on 30 November, 2000
shall be counted as a capital contribution made after the date
hereof by Shareholders for the purposes of Clauses 3.1, 4.2,
19.26 and 19.33.
5. ADVANCES
5.1 Delivery of Request
The Borrower may request a Utilisation if the Agent receives a duly
completed Request by not later than 11.00 a.m. Warsaw time three
Business Days before the proposed Utilisation Date for a Tranche A
Utilisation denominated in Euro, four Business Days before the proposed
Utilisation Date for a Tranche A Utilisation denominated in an Optional
Currency and 11 Business Days (or, in the case of the initial
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Tranche B Utilisation, five Business Days) before the proposed
Utilisation Date for a Tranche B Utilisation. Each Request is
irrevocable.
5.2 Form of Request
(a) Each Request will not be regarded as having been duly
completed unless it specifies:
(i) whether the Utilisation is a Tranche A Advance or a
Tranche B Advance;
(ii) the proposed Utilisation Date, which shall be a
Business Day falling after the date on which the
Agent notifies the Borrower and the Banks that the
documentary conditions precedent in Schedule E appear
on their face to have been satisfied or waived but on
or before the date falling one month before the Final
Repayment Date;
(iii) the currency of the Utilisation which must be Euro or
an Optional Currency for Tranche A Utilisations and
Zloty for Tranche B Utilisations;
(iv) the amount of the proposed Utilisation which shall be
the balance of the undrawn Commitments for Tranche A
or Tranche B as applicable or:
(A) subject to paragraph (B), shall be a minimum
amount of an Original Euro Amount (in the
case of Tranche A) of EURO 10,000,000 or the
Zloty Equivalent thereof (in the case of
Tranche B) rounded up or down to the nearest
PLN 10,000 and an integral multiple of an
Original Euro Amount (in the case of Tranche
A) of EURO 5,000,000 or the Zloty Equivalent
thereof (in the case of Tranche B) rounded
up or down to the nearest PLN 10,000; and
(B) for an Advance which is being drawn to
provide cash cover for a letter of credit or
bank guarantee permitted by Clause 19.26(b)
(Financial Indebtedness) shall be a minimum
amount of an Original Euro Amount (in the
case of Tranche A) of EURO 1,000,000 or the
Zloty Equivalent thereof (in the case of
Tranche B) and an integral multiple thereof;
(v) the duration of its Interest Period, which shall
comply with the terms of Clause 9 (Interest Periods);
and
(vi) the details of the bank and account to which the
proceeds of the proposed Advance are to be made
available.
(b) Each Request must specify one Utilisation only, but the
Borrower may, subject to the other terms of this Agreement,
deliver more than one Request on any one day. Unless otherwise
agreed by the Agent, no more than twenty Utilisations under
any Tranche may be outstanding at one time.
(c) The Agent shall promptly (and in any event before 10.00 a.m.
Warsaw time two Business Days before the relevant Utilisation
Date for a Tranche A Utilisation and ten Business Days (or, in
the case of the initial Tranche B Utilisation, four Business
Days) before the relevant Utilisation Date for a Tranche B
Utilisation) notify each Bank in the relevant Tranche of each
Request, confirming that all conditions precedent have been
met.
(d) Subject to the terms of this Agreement, each Tranche A Bank
will make its participation in a Tranche A Advance available
to the Agent for the Borrower on the relevant Utilisation
Date.
(e) Subject to the terms of this Agreement, each Tranche B Bank
will make its participation in a Tranche B Advance available
to the Agent for the Borrower by 10.00 a.m. Warsaw time on the
relevant Utilisation Date.
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5.3 Participations in Advances
The amount of each Tranche A Bank's participation in each Tranche A
Advance shall be the proportion which the undrawn and uncancelled
amount of its Tranche A Commitment bears to the undrawn and uncancelled
amount of the Tranche A Total Commitments. Subject to the provisions of
Clause 6.7 (Suspension and Cancellation of the EBRD's Commitments), the
amount of each Tranche B Bank's participation in a Tranche B Advance
shall be the proportion which the undrawn and uncancelled proportion of
its Tranche B Commitment bears to the undrawn and uncancelled amount of
the Tranche B Total Commitments.
5.4 [Intentionally omitted]
5.5 Zloty Limit
(a) On 30 June and 31 December of each year until the first
Instalment Date, thereafter on each Instalment Date and, at
all times, on any other date on which the Tranche B
Commitments are reduced in accordance with Clause 6
(Cancellation and Reduction) (each a "REFIXING DATE") the
Agent will recalculate the Zloty Limits of each Tranche B Bank
on such date, or if any such date is not a Business Day in
London and Warsaw, on the first preceding Business Day.
(b) The Zloty Limit of each initial Tranche B Bank will be set on
or before the Signing Date and, for the purposes of paragraph
(a) above, the Agent will recalculate the Zloty Limit of each
Tranche B Bank by increasing it or decreasing it, as the case
may be, by an amount which reflects the depreciation or
appreciation of the Zloty against the Euro as determined by
reference to the one month average of the Zloty/Euro exchange
rate based on such rates published by the National Bank of
Poland in the one month period immediately preceding the
applicable Refixing Date.
(c) Promptly upon recalculating the Zloty Limit of each Tranche B
Bank, the Agent will notify each Tranche B Bank of its revised
Zloty Limit.
(d) If the revised Zloty Limit for a Tranche B Bank would breach
that part of that Tranche B Bank's legal lending limit under
Polish law for the Borrower, the Group or any of the
Shareholders (or if relevant, any Holding Company, a
shareholder or other Subsidiary thereof) which it has
allocated to Tranche B (the "APPLICABLE LEGAL LENDING
Limits"), that Tranche B Bank will promptly notify the Agent
and the Borrower and it will use its reasonable efforts to
increase such Applicable Legal Lending Limits so that the
revised Zloty Limit would not breach such Applicable Legal
Lending Limits or to transfer part of its Tranche B Commitment
to another Bank or another bank or financial institution which
has capacity to allocate part of its Applicable Legal Lending
Limits to Tranche B.
(e) If the Tranche B Bank fails to increase such Applicable Legal
Lending Limits or transfer its Tranche B Commitment in
accordance with paragraph (c), its Zloty Limit will only be
increased to the maximum it can allocate to Tranche B without
breaching its Applicable Legal Lending Limits.
(f) If the Applicable Legal Lending Limits of any Tranche B Bank
are increased at any time during the Availability Period, the
Bank will take into account the likely requirements for future
increases in the Zloty Equivalent of the Tranche B Commitments
(taking into account previous depreciation of the Zloty
against the Euro) when considering other lending opportunities
which could utilise such Applicable Legal Lending Limits and,
without legal commitment, will take reasonable care to ensure
that it will be able to meet the likely requirements for
future increases in the Zloty Equivalent of the Tranche B
Commitments.
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6. CANCELLATION AND REDUCTION
6.1 Mandatory Cancellation
(a) On each date on which a mandatory repayment of principal and,
if applicable, concurrent cancellation of commitments (the
amount of any such repayment and cancellation being a "NEW
FACILITY REPAYMENT AMOUNT") is required under and in respect
of any New Facility (a "MANDATORY CANCELLATION DATE"), the
Commitments will be cancelled by the Euro Equivalent of an
amount equal to the then applicable Cancellation Amount.
"CANCELLATION AMOUNT" means, at any time, an amount equal to
(i) the product of (A) the Commitments then in effect and (B)
the applicable New Facility Repayment Amount divided by (ii)
the commitments then in effect under that New Facility.
(b) If, by the First Mandatory Registration Date, (i) the Asset
Pledge has not been registered in the register of pledges in
Warsaw and (ii) Shareholders owning at least 51% of the
outstanding Shares shall have failed to execute and deliver
the requisite Ordinary Share Pledges and Registered Share
Pledges to the Security Agent and failed to have filed such
Registered Share Pledges for registration in the register of
pledges in Warsaw and the Agent shall not have received an
opinion of counsel satisfactory to it, the Commitments will,
immediately upon the earlier to occur of (x) receipt of
written notice of the Agent (acting upon the instructions of
the Majority Banks) and (y) the 30th Business Day after the
First Mandatory Registration Date, be reduced to nil.
(c) If, by the Final Mandatory Registration Date, (i) the Asset
Pledge has not been registered in the register of pledges in
Warsaw and (ii) the Registered Share Pledge has not been
registered in the register of pledges in Warsaw, the
Commitments will, immediately upon the earlier to occur of (x)
receipt of written notice of the Agent (acting upon the
instructions of the Majority Banks) and (y) the 30th Business
Day after the Final Mandatory Registration Date, be reduced to
nil.
6.2 Voluntary Cancellation
The Borrower may, by giving not less than three Business Days' (for a
cancellation of Tranche A Commitments) and ten Business Days' (for a
cancellation of Tranche B Commitments) prior notice to the Agent,
cancel the unutilised portion of the Commitments in whole or in part
(but, if in part, in a minimum amount of euro10,000,000 for Tranche A
or the Zloty Equivalent thereof (rounded up or down to the nearest
10,000 Zloty) for Tranche B, and an integral multiple of euro5,000,000
for Tranche A or, the Zloty Equivalent thereof (rounded up or down to
the nearest 10,000 Zloty) for Tranche B).
6.3 Additional right of cancellation
If:
(a) the Borrower is required to pay to a Bank any additional
amounts under Clause 14(a) (Taxes); or
(b) the Borrower is required to pay to a Bank any amount under
Clause 16.1 (Increased costs),
then, without prejudice to the obligations of the Borrower under those
Clauses, the Borrower may, whilst the circumstances continue, serve a
notice of cancellation on that Bank through the Agent. On the date
falling five Business Days after the date of service of that notice the
Commitment of that Bank shall be cancelled.
6.4 Reduction of Facility
The Tranche A Total Commitments and the Tranche B Total Commitments
will reduce and be cancelled on 30 September 2004 and on the last day
of each quarter thereafter until the Final
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Repayment Date (each date for such reduction of the Facilities being an
"INSTALMENT DATE") by the amount (each such amount being a "REDUCTION
AMOUNT") set opposite the applicable Instalment Date below:
INSTALMENT DATE REDUCTION AMOUNT
--------------- ----------------
30 September 2004 euro27,500,000
31 December 2004 euro82,500,000
31 March 2005 euro110,000,000
30 June 2005 euro110,000,000
30 September 2005 euro110,000,000
Final Repayment Date euro110,000,000
-------------------------------
euro550,000,000
-------------------------------
6.5 Adjustment of Cancellation and Reduction Amounts
(a) The amount of each cancellation in accordance with Clause
6.1(a) (Mandatory Cancellation) or Clause 6.2 (Voluntary
Cancellation) will be applied so as to reduce the Reduction
Amounts as set out in Clause 6.4 (Reduction of Facility) in
inverse order of their maturity; and
(b) The amount of each cancellation in accordance with Clause
6.1(a) (Mandatory Cancellation) or Clause 6.2 (Voluntary
Cancellation) or Clause 6.4(a) (Reduction of Facility) will be
applied as near as is practicable between Tranche A and
Tranche B by reference to the proportion which, at the time of
such cancellation, the Euro Equivalent of the Total
Commitments of each Tranche bears to the Euro Equivalent of
the Total Commitments under both Tranches.
6.6 Miscellaneous provisions
(a) Any notice of cancellation under this Agreement shall only be
effective on actual receipt by the Agent. The Agent will then
notify the Banks promptly of receipt of any such notice.
(b) No cancellation of the Commitments is permitted except in
accordance with the express terms of this Agreement.
(c) Any notice of cancellation shall be irrevocable and no amount
cancelled may subsequently be reinstated.
(d) Without prejudice to Clause 6.5 (Adjustment of Cancellation
and Reduction Amounts) any cancellation under this Clause 6
(other than a cancellation in accordance with Clause 6.3
(Additional right of cancellation)) will be applied pro rata
between the Commitments of each Bank in the relevant Tranche.
6.7 Suspension and Cancellation of the EBRD's Commitments
From time to time, the EBRD may, by notice to the Borrower, suspend
temporarily or cancel permanently its obligation to the Borrower to
make Tranche B Advances to the Borrower if the Board of Governors of
the EBRD has determined in accordance with Article 8, paragraph 3, of
the Agreement Establishing the European Bank for Reconstruction and
Development that access by Poland to EBRD resources should be suspended
or otherwise modified. During any period in which the EBRD's obligation
to make Advances has been suspended or cancelled, its unused Commitment
shall be deemed to be nil for all purposes under the Senior Finance
Documents. The exercise by the EBRD of the right
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of suspension shall not preclude the EBRD from exercising its right of
cancellation as provided in this Clause 6.7 for the same reason and
shall not limit any other rights of the EBRD under the Senior Finance
Documents except as contemplated by the definition of "Majority Banks."
7. REPAYMENT
(a) The Borrower will repay Utilisations on each Instalment Date
and each Mandatory Cancellation Date in such amount as will
ensure that:
(i) the Tranche A Utilisations do not exceed the Tranche
A Commitments then in effect (after giving effect to
any reduction and cancellation of Commitments on such
date); and
(ii) the Tranche B Utilisations do not exceed the Tranche
B Commitments then in effect (after giving effect to
any reduction and cancellation of Commitments on such
date).
(b) If at any time the Zloty Limits of any Tranche B Bank are
reduced in accordance with Clause 5.5 (Zloty Limit) below the
Zloty Equivalent of the Tranche B Advances outstanding and
owing to such Tranche B Bank at such time, the Borrower will
repay Utilisations in such amounts as will ensure that such
Tranche B Advances are equal to the Zloty Limits of such
Tranche B Bank at such time.
(c) If, by the First Mandatory Registration Date: (i) the Asset
Pledge has not been registered in the register of pledges in
Warsaw and (ii) Shareholders owning at least 51% of the
outstanding Shares shall have failed to execute and deliver
the requisite Ordinary Share Pledges and Registered Share
Pledges to the Security Agent and failed to have filed such
Registered Share Pledges for registration in the register of
pledges in Warsaw and the Agent shall not have received an
opinion of counsel satisfactory to it, the Borrower will,
immediately upon the earlier to occur of (x) receipt of
written notice of the Agent (acting upon the instructions of
the Majority Banks) and (y) the 30th Business Day after the
First Mandatory Registration Date, repay all Utilisations.
(d) If, by the Final Mandatory Registration Date, (i) the Asset
Pledge has not been registered in the register of pledges in
Warsaw and (ii) the Registered Share Pledge has not been
registered in the register of pledges in Warsaw, the Borrower
will, immediately upon the earlier to occur of (x) receipt of
written notice of the Agent (acting upon the instructions of
the Majority Banks) and (y) the 30th Business Day after the
Final Mandatory Registration Date, repay all Utilisations.
(e) The Borrower will repay all Utilisations on the Final
Repayment Date.
8. PREPAYMENT
8.1 Prohibition
The Borrower may not prepay all or any part of any Advance except as
expressly provided in this Agreement.
8.2 Voluntary prepayment of Advances
(a) Subject to paragraph (c) below, the Borrower, on giving not
less than three Business Days (for a prepayment of Tranche A
Advances) and ten Business Days (for a prepayment of Tranche B
Advances) prior written notice to the Agent (which shall
promptly give notice of the same to the Banks in the Tranche
under which a Utilisation is being prepaid) specifying, inter
alia, the amount and date for prepayment and, identifying the
Advance concerned, may prepay any
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Advance without penalty on the Interest Date applicable to
such Advance(s) (or, subject to Clause 24 (Indemnities), at
any other time) in whole or in part.
(b) Any prepayment of part of an Advance shall be in a minimum
amount of an Original Euro Amount of euro10,000,000 (in the
case of Tranche A) or the Zloty Equivalent thereof (in the
case of Tranche B) rounded up or down to the nearest 10,000
Zloty and an integral multiple of an Original Euro Amount of
euro5,000,000 (in the case of Tranche A) or the Zloty
Equivalent thereof (in the case of Tranche B) rounded up or
down to the nearest 10,000 Zloty.
(c) Any such prepayment shall be applied pro rata against the
participations of the Banks in the Advances prepaid.
8.3 Additional right of prepayment
If the Borrower serves a notice of cancellation under Clause 6.3
(Additional right of cancellation) in relation to a Bank, on the date
that such Bank's Commitment is cancelled, the Borrower shall prepay all
of that Bank's participations in Advances.
8.4 General provisions relating to prepayment
(a) Any notice of prepayment given under this Agreement shall be
irrevocable, and the Borrower shall be bound to prepay in
accordance with such notice.
(b) Amounts repaid or prepaid in respect of any Advance may be
reborrowed hereunder subject to the other terms of this
Agreement.
(c) Any repayment or prepayment of any Utilisation under any
provision of this Agreement shall be made together with
interest and fees accrued on the amount repaid or prepaid and
any amount which becomes due and payable as a result of that
repayment or prepayment pursuant to Clause 24 (Indemnities).
8.5 UMTS Prepayment
(a) The Borrower may, at any time, submit a UMTS Business Plan to
the Banks, in a form reasonably satisfactory to the Agent, for
approval by the UMTS Approval Banks. The UMTS Approval Banks
shall, within 21 days after receipt of such Business Plan,
approve or reject such UMTS Business Plan by written notice
from the Agent to the Borrower. In the event that the UMTS
Approval Banks reject such UMTS Business Plan, the Borrower
shall have one month from the date on which the Agent notifies
the Borrower of such rejection to submit an amended UMTS
Business Plan to the Banks, in a form reasonably satisfactory
to the Agent, for approval by the UMTS Approval Banks, which
the UMTS Approval Banks shall, within 21 days after the
receipt of such amended Business Plan, approve or reject by
written notice from the Agent to the Borrower. If the UMTS
Approval Banks (through the Agent) fail to notify the Borrower
of their approval or rejection of any such UMTS Business Plan
delivered pursuant to this Clause 8.5 within the applicable 21
day period, the UMTS Approval Banks shall be deemed to have
approved such UMTS Business Plan.
(b) If the UMTS Approval Banks reject any UMTS Business Plan
submitted by the Borrower pursuant to this Clause 8.5, the
Borrower may elect by written notice (a "UMTS PREPAYMENT
NOTICE") to the Agent (which shall promptly give notice of the
same to the Banks), given no later than one month from the
date on which the Agent notifies the Borrower of its second
and final rejection, to prepay the Advances in full and cancel
the Commitments in full within nine months of the delivery of
such UMTS Prepayment Notice. Any such UMTS Prepayment Notice
shall specify the date of such prepayment and cancellation and
if such UMTS Prepayment Notice is given, the Borrower shall
prepay the Advances in full and the Commitments shall be
automatically cancelled in full on the date specified therein.
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9. INTEREST PERIODS
9.1 Selection and agreement
(a) The duration of each Interest Period for an Advance shall be
three months; provided, however, that the Borrower may notify
the Agent not later than five Business Days prior to the first
day of each Interest Period, specifying that the duration of
such Interest Period:
(i) for Tranche A Advances, shall be one, two, three, six
or, as may be agreed by the Agent, acting on the
instructions of all the Tranche A Banks, twelve
months; provided further that until the completion of
syndication to the reasonable satisfaction of the
Agent, each Interest Period shall be one month; and
(ii) for Tranche B Advances, shall be three, six or, as
may be agreed by the Agent, acting on the
instructions of all the Tranche B Banks, twelve
months.
(b) Any Interest Period for which no effective selection notice is
received by the Agent shall be of three months' duration.
(c) No Interest Date may overrun an Instalment Date if, having
regard to the Interest Dates of outstanding Advances, it would
cause the Commitments to be exceeded if the relevant Advance
were not repaid on that Instalment Date.
9.2 Duration
(a) Each Interest Period for an Advance shall commence on the
expiry of its immediately preceding Interest Period.
(b) If any Interest Period for any Advance would otherwise end on
a day which is not a Business Day, such Interest Period shall
end instead on the next Business Day in that calendar month
(if there is one) or the preceding Business Day (if there is
not).
9.3 Notification
The Agent will notify the Banks participating in that Advance and the
Borrower of the duration and rate of interest of each Interest Period
relating to each Advance under that Tranche promptly after ascertaining
the same.
9.4 Adjustments
(a) If two or more Interest Periods relating to Advances under the
same Tranche denominated in the same currency end at the same
time, then on the last day of those Interest Periods, those
Advances shall be consolidated into and treated as a single
Advance and shall constitute one Utilisation for the purposes
of Clause 5.2(b) (Form of Request).
(b) The Agent and the Borrower may enter into such other
arrangements for the consolidation and splitting of Advances
or Interest Periods as permitted under 9.1(a) and as they may
agree.
10. INTEREST
10.1 Rate
The rate of interest applicable to each Advance for each Interest
Period applicable to it shall be the rate per annum determined by the
Agent to be the aggregate of:
(a) the Applicable Margin;
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(b) (i) in the case of any Tranche A Advance made in any
Optional Currency, LIBOR on the Rate Fixing Day
therefor;
(ii) in the case of any Tranche A Advance made in Euro,
EURIBOR on the Rate Fixing Day therefor; and
(iii) in the case of any Advance made in Zloty, WIBOR on
the Rate Fixing Day therefor; and
(c) the Additional Costs Rate.
10.2 Due dates
Save as otherwise provided in this Agreement, accrued interest on each
Advance is payable by the Borrower on the last day of each Interest
Period for that Advance and, if the Interest Period is twelve months in
duration, six monthly.
10.3 Default interest
(a) If the Borrower fails to pay any amount payable by it under
the Senior Finance Documents, it shall, forthwith on demand by
the Agent pay interest on the overdue amount from the due date
up to the date of actual payment, as well after as before
judgment, at a rate (the "DEFAULT RATE") determined by the
Agent to be two per cent. per annum above the rate which would
have been payable if the overdue amount had, during the period
of non-payment, constituted an Advance in the currency of the
overdue amount for such successive Interest Periods of such
duration as the Agent may determine (each a "DESIGNATED
INTEREST PERIOD") or if of principal, if such due date falls
during an Interest Period, the rate on the overdue amount
under Clause 10.1 (Rate) immediately before the due date
during such Interest Period.
(b) The default rate will be determined by the Agent on each
Business Day or two Business Days or Target Days before the
first day of, the relevant Designated Interest Period, as
appropriate.
(c) If the Agent determines that deposits in the currency of the
overdue amount are not at the relevant time being made
available by the Reference Banks to leading banks in the
London, European or Warsaw interbank market (as applicable),
the default rate will be determined by reference to the cost
of funds to each of the Banks from whatever sources it may
reasonably select.
10.4 Notification
The Agent shall promptly notify the Borrower and the Banks of the
determination by the Agent of a Designated Interest Period and a
default rate of interest under this Agreement.
10.5 Margin adjustment
(a) The Applicable Margin will be 0.90 per cent. per annum unless
adjusted in accordance with this Clause 10.5.
(b) The Borrower will deliver to the Agent (by no later than the
date it delivers to the Agent the quarterly financial
statements specified in Clause 19.2(a)(ii)(A) (Financial
Information and Business Plan)) a notice signed by a member of
the Management Board or by the Borrower's Group Treasurer in
the agreed form (a "MARGIN NOTICE") specifying the ratio of
Senior Debt to EBITDA as calculated in accordance with Clause
21.1 (Senior Debt to EBITDA) as at the date to which the
relevant financial statements were prepared for the purposes
of calculating whether the Applicable Margin is to be adjusted
in accordance with this Clause 10.5.
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(c) Subject to paragraph (d) below, the Applicable Margin will be
adjusted (upwards or downwards) to the percentage rates per
annum specified in Column 1 below set opposite the range into
which the ratio of Senior Debt of the Group to EBITDA of the
Group, as shown in the Margin Notice, falls:
COLUMN 1 COLUMN 2
APPLICABLE MARGIN SENIOR DEBT/EBITDA RATIO
----------------- ------------------------
0.90% more than 3.0 : 1
0.80% less than 3.0 : 1 and more than 2.0 : 1
0.60% less than 2.0 : 1
(d) The adjustment (if any) specified in (c) above will apply to
the Applicable Margin and all then outstanding Advances with
effect from the date on which the Margin Notice was received.
If the first Utilisation hereunder occurs prior to the date on
which the financial statements specified in Clause
19.2(a)(ii)(A) (Financial Information and Business Plan)
relating to the quarterly Accounting Period ending 31
December, 2000 are delivered to the Agent together with the
requisite Margin Notice then the Applicable Margin shall be
determined by reference to the quarterly financial statements
and the requisite Margin Notice relating to the quarterly
Accounting Period ending 30 September, 2000 and for this
purpose the Borrower shall deliver to the Agent such quarterly
financial statements and Margin Notice on or before the date
on which the first Request is delivered by the Borrower
hereunder.
(e) If the Borrower fails to deliver a Margin Notice in accordance
with paragraph (b) above the Applicable Margin with effect
from the last date permitted for delivery of the relevant
accounts under Clause 19.2(a)(ii)(A) (Financial Information
and Business Plan) will be 0.90% provided that if that Margin
Notice is delivered later, the Applicable Margin will be
adjusted in accordance with this Clause 10.5 with effect from
the date the Margin Notice is delivered.
11. SELECTION OF OPTIONAL CURRENCIES
11.1 Selection
(a) The Borrower may select the currency of a Tranche A Advance
for an Interest Period in either the relevant Request or if
the Advance is outstanding, a notice received by the Agent not
later than four Business Days before the first day of that
Interest Period. In the latter case, the Borrower may specify
whether that Tranche A Advance is to be denominated in more
than one currency, and, if so, the amount in Euro of each such
currency (being a minimum Original Euro Amount of
euro10,000,000 or an integral multiple of euro5,000,000 or the
balance of the Tranche A Advance, if more).
(b) The currency of each Tranche A Advance must be Euro or an
Optional Currency.
(c) If the Borrower fails to give a notice in respect of an
outstanding Tranche A Advance in accordance with paragraph (a)
above, that Tranche A Advance will remain denominated for its
next Interest Period in the same currency in which it is then
denominated.
(d) Each part of a Tranche A Advance which is to be denominated in
a different currency from any other part of that Tranche A
Advance will be treated as a separate Tranche A Advance.
(e) The Borrower may not choose a currency if as a result the
Tranche A Advances would be denominated at any one time in
more than five currencies.
(f) The Agent shall notify each Tranche A Bank of the currency,
the Original Euro Amount and the amount of its participation
in each Tranche A Advance promptly (and in any event, before 1
p.m. three Business Days before the relevant Utilisation Date)
after they are ascertained.
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11.2 Revocation of currency
If before 9.30 a.m. Warsaw time on any Rate Fixing Day, the Agent
receives notice from a Tranche A Bank that:
(a) it is impracticable for the Tranche A Bank to fund its
participation in the Tranche A Advance in the relevant
Optional Currency during that Interest Period in the ordinary
course of business in the European interbank market; and/or
(b) the use of the proposed Optional Currency might contravene any
law or regulation,
the Agent shall give notice to the Borrower and to the Tranche A Banks
to that effect before 11.00 a.m. Warsaw time on that day. In this
event:
(i) the Borrower and the Tranche A Banks may agree that
the drawdown will not be made; or
(ii) in the absence of agreement and in any other case:
(1) that Tranche A Bank's participation in the
Tranche A Advance (or, if more than one
Tranche A Bank is similarly affected, those
Tranche A Bank's participations in the
Tranche A Advances) shall be treated as a
separate Tranche A Advance denominated in
Euro during the relevant Interest Period;
(2) in the definition of "LIBOR" or "EURIBOR"
(insofar as such definition applies to that
Tranche A Advance) in Clause 1.1
(Definitions):
(A) there shall be substituted for the
time "11.00 a.m." the time "1.00
p.m."; and
(B) paragraph (c) of that definition
shall apply.
11.3 Sterling
Each Tranche A Bank shall advance its participation in any Tranche A
Advance in Sterling through a Facility Office outside the United
Kingdom.
12. AMOUNT OF OPTIONAL CURRENCIES
12.1 Drawdowns
If a Tranche A Advance is to be drawn down in an Optional Currency, the
amount of each Tranche A Bank's participation in that Tranche A Advance
will be determined by converting into that Optional Currency the
Tranche A Bank's participation in the Original Euro Amount of that
Tranche A Advance on the basis of the Agent's Spot Rate of Exchange
three Business Days before its Utilisation Date.
12.2 Change of currency
(a) If a Tranche A Advance is to be continued during its next
Interest Period in a different currency (the "NEW currency")
from that in which it is currently denominated, then, on the
last day of its current Interest Period:
(i) each Tranche A Bank shall pay an amount equal to its
participation in the amount of such Tranche A Advance
as of the beginning of its next Interest Period in
the new currency (the "NEW AMOUNT") to the Agent, who
shall hold the same on behalf of such Tranche A Bank;
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(ii) the Agent shall:
(A) apply the New Amount so made available to it
by each Tranche A Bank in or towards the
purchase of such Tranche A Bank's portion of
the amount of such Tranche A Advance as of
the last day of its current Interest Period
(the "EXISTING AMOUNT") and pay the amount
so purchased to such Tranche A Bank; and
(B) pay any portion of the amount made available
to it by the Tranche A Banks and not applied
in accordance with paragraph (A) above to
the Borrower; and
(iii) the Borrower shall pay to the Agent for the account
of each Tranche A Bank a sum equal to the amount (if
any) by which such Tranche A Bank's share of the
Existing Amount of such Tranche A Advance exceeds the
portion thereof purchased by the Agent pursuant to
paragraph (ii)(A) above.
(b) If the new currency is Euro, the amount of each Tranche A
Bank's participation in that Tranche A Advance will be its
participation in the Original Euro Amount of that Tranche A
Advance for that Interest Period.
(c) If the new currency is an Optional Currency, the amount of
each Tranche A Bank's participation in that Tranche A Advance
will be determined by converting into the new currency its
participation in the Original Euro Amount of that Tranche A
Advance on the basis of the Agent's Spot Rate of Exchange
three Business Days before the commencement of that Interest
Period.
12.3 Same Optional Currency
(a) If a Tranche A Advance is to be continued during its next
Interest Period in the same Optional Currency as that in which
it is denominated during its current Interest Period, there
shall be calculated the difference between the amount of the
Tranche A Advance (in that Optional Currency) for the current
Interest Period and for the next Interest Period. The amount
of the Tranche A Advance for the next Interest Period will be
determined by notionally converting into that Optional
Currency the Original Euro Amount of the Tranche A Advance on
the basis of the Agent's Spot Rate of Exchange two Business
Days before the commencement of that Interest Period.
(b) At the end of the current Interest Period (but subject always
to paragraph (c) below):
(i) if the amount of the Tranche A Advance for the next
Interest Period is less than for the preceding
Interest Period, the Borrower shall repay the
difference; or
(ii) if the amount of the Tranche A Advance for the next
Interest Period is greater, each Tranche A Bank shall
forthwith make available to the Agent for the
Borrower its participation in the difference.
(c) If the Agent's Spot Rate of Exchange for the next Interest
Period shows an appreciation or depreciation of the Optional
Currency against Euro of less than five per cent. when
compared with the Original Exchange Rate, no amounts are
payable in respect of the difference. In this Clause 12,
"ORIGINAL EXCHANGE RATE" means the Agent's Spot Rate of
Exchange used for determining the amount of the Optional
Currency for the Interest Period which is the later of the
following:
(i) the Interest Period during which the Tranche A
Advance was first denominated in that Optional
Currency if the Tranche A Advance has since then
remained denominated in that Optional Currency; and
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(ii) the most recent Interest Period immediately prior to
which a difference was required to be paid under this
Clause 12.3.
12.4 Prepayments and repayments
If a Tranche A Advance is to be repaid or prepaid by reference to an
Original Euro Amount, the Optional Currency amount to be repaid or
prepaid shall be determined by reference to the Agent's Spot Rate of
Exchange last used for determining the Optional Currency amount of that
Tranche A Advance under this Clause 12 or, if applicable, the Original
Exchange Rate.
12.5 Notification
The Agent shall notify the Tranche A Banks and the Borrower of Optional
Currency amounts (and the applicable Agent's Spot Rate of Exchange)
promptly after they are ascertained.
13. PAYMENTS
13.1 Place
All payments by the Borrower or a Bank under the Senior Finance
Documents shall be made to the Agent to its account at such office or
bank in the principal financial centre of the country of the relevant
currency (or, in the case of Euro, any financial centre in which
payment in Euro can be effected) as it may notify to the Borrower or
that Bank for this purpose. Notwithstanding the above, all payments by
the Borrower to any Lead Arranger under Clauses 26 (Fees) and 27
(Expenses) shall be made direct to such Lead Arranger in the manner
agreed by such Lead Arranger and the Borrower. Payments by Banks to the
Agent under Tranche B shall be made prior to 10 a.m. Warsaw time on the
date such payment is due.
13.2 Funds
Payments under the Senior Finance Documents to the Agent shall be made
for value on the due date at such times and in such funds as the Agent
may specify to the Party concerned as being customary at the time for
the settlement of transactions in the relevant currency in the place
for payment.
13.3 Distribution
(a) Each payment received by the Agent under the Senior Finance
Documents for another Party shall, subject to paragraphs (b)
and (c) below, be made available by the Agent to that Party by
payment (on the date and in the currency and funds of receipt)
to its account with such office or bank in the principal
financial centre of the country of the relevant currency (or,
in the case of Euro, any financial centre in which payment in
Euro can be effected) as it may notify to the Agent for this
purpose by not less than five Business Days' prior notice.
(b) The Agent may apply any amount received by it for the Borrower
in or towards payment (on the date and in the currency and
funds of receipt) of any amount due from the Borrower under
the Senior Finance Documents or in or towards the purchase of
any amount of any currency to be so applied.
(c) Where a sum is to be paid to the Agent under the Senior
Finance Documents for another Party, the Agent is not obliged
to pay that sum to that Party until it has established that it
has actually received that sum. The Agent may, however, assume
that the sum has been paid to it in accordance with this
Agreement, and, in reliance on that assumption, make available
to that Party a corresponding amount. If the sum has not been
made available but the Agent has paid a corresponding amount
to another Party, that Party shall forthwith on demand by the
Agent refund the corresponding amount together with interest
on that amount from the date of payment to the date of
receipt, calculated at a rate determined by the Agent to
reflect its cost of funds.
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(d) The Agent shall not be obliged to pay any amount in Zloty if
it is unable to establish that it has actually received such
amount from the Borrower or the Tranche B Banks prior to 10
a.m. Warsaw time on the date such payment should otherwise be
made.
13.4 Currency
(a) Subject to paragraph (e) below, a repayment or prepayment of a
Utilisation or any part of a Utilisation is payable in the
currency in which the Utilisation is denominated on its due
date.
(b) Interest is payable in the currency in which the relevant
amount in respect of which it is payable is denominated.
(c) Amounts payable in respect of costs, indemnities, expenses and
Taxes and the like are payable in the currency in which they
are incurred.
(d) Any other amount payable under the Senior Finance Documents
is, except as otherwise provided in this Agreement, payable in
Euro.
(e) For the purpose of the effectiveness and enforcement of the
notarial deed of submission to execution pursuant to Art. 777
Sec. 1.5 of the Polish Code of Civil Procedure and the other
Polish Security Documents, the Parties agree that, with
respect to the Borrower's payment of the obligations referred
to in paragraphs (a), (b), (c) and (d) above, the Finance
Parties shall, without prejudice to the Finance Parties'
rights to claim such payments in the relevant currencies and
without prejudice to mandatory provisions of Polish law, be
entitled to claim such payments from the Borrower be made in
Euro.
13.5 Set-off and counterclaim
All payments made by the Borrower under the Senior Finance Documents
shall be made without set-off or counterclaim.
13.6 Non-Business Days
(a) If a payment under the Senior Finance Documents is due on a
day which is not a Business Day, the due date for that payment
shall instead be the next Business Day in the same calendar
month (if there is one) or the preceding Business Day (if
there is not).
(b) During any extension of the due date for payment of any
principal under this Agreement interest is payable on that
principal at the rate payable on the original due date.
13.7 Partial payments
If the Agent receives a payment insufficient to discharge all the
amounts then due and payable by the Borrower under the Senior Finance
Documents, the Agent shall apply that payment towards the obligations
of the Borrower under the Senior Finance Documents in accordance with
Clause 31.2 (Application of payments).
14. TAXES
(a) All payments by the Obligors under the Senior Finance
Documents shall be made without any deduction and free and
clear of and without deduction for or on account of any Taxes,
except to the extent that the payor is required by law to make
payment subject to any Taxes. Subject to paragraph (b) below,
if any Tax or amounts in respect of Tax must be deducted, or
any other deductions must be made, from any amounts payable or
paid by an Obligor, or paid or payable by the Agent to a
Finance Party, under the Senior Finance Documents, that
Obligor shall pay at the same time, or promptly upon
notification by the Agent where the deduction has been made by
the Agent, such additional amounts as may be necessary to
ensure that the
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relevant Bank receives a net amount equal to the full amount
which it would have received had payment not been made subject
to Tax or any other deduction.
(b) An Obligor is not obliged to pay any additional amount
pursuant to paragraph (a) above (i) in respect of any
deduction which would not have been required if, upon
reasonable written request of such Obligor to the Agent and
the relevant Finance Party, the relevant Finance Party had
completed a tax residence certificate confirmed or issued by
the applicable tax authority of each Finance Party, a
declaration, claim, exemption or other applicable form which
it was, at the time of such request, lawfully able to complete
and which did not require disclosure of information which the
relevant Finance Party reasonably considered to be
confidential or (ii) in respect of any Tax on overall net
income of a Bank (or the overall net income of a division or
branch of the Bank) imposed in the jurisdiction in which its
principal office or Facility Office is situated. This Clause
14(b) shall not apply to the EBRD.
(c) If:
(i) on the Signing Date, any Bank which is a Party on the
Signing Date is not a Qualifying Bank; or
(ii) after the Signing Date, a Bank ceases to be a
Qualifying Bank, other than as a result of the
introduction of, suspension, withdrawal or
cancellation of, or change in, or change in the
official interpretation, administration or official
application of, any law, regulation having the force
of law, tax treaty or any published practice or
published concession of the Polish tax authorities or
any other relevant taxing or fiscal authority in any
jurisdiction with which the relevant Bank has a
connection, occurring after the Signing Date; or
(iii) on the date of any transfer under Clause 30.2
(Transfers by Banks), a New Bank (as such term is
defined in that Clause) is not a Qualifying Bank,
then the Borrower shall not be liable to pay to that Bank
under paragraph (a) above any amount in respect of Taxes
levied or imposed by the Polish taxing authority or any taxing
authority of or in Poland in excess of the amount it would
have been obliged to pay if that Bank had been a Qualifying
Bank.
(d) If an Obligor makes a payment pursuant to paragraph (a) above
for the account of any Bank and such Bank determines, in its
sole discretion, that it has received or been granted a credit
against, or relief or remission or repayment of, any Tax paid
or payable by it (a "TAX CREDIT") which is attributable to
that payment or the corresponding payment under the Senior
Finance Documents such Bank shall, to the extent that it can
do so without prejudice to the retention of the amount of such
credit, relief, remission or repayment, pay to the Obligor
such amount as the Bank acting in good faith determines to be
attributable to such payments and which will leave the Bank
(after such payment) in no better or worse position than it
would have been if the Obligor had not been required to make
any deduction or withholding.
(e) Nothing in this Clause 14 shall interfere with the right of a
Bank to arrange its tax affairs in whatever manner it thinks
fit and, without limiting the foregoing, no Bank shall be
under any obligation to claim a Tax Credit or to claim a Tax
Credit in priority to any other claims, relief, credit or
deduction available to it. Notwithstanding any other provision
of this Clause 14, no Bank shall be obliged to disclose any
information relating to its tax affairs or any computations in
respect thereof.
(f) Each Obligor shall:
(i) pay when due all Taxes required by law to be deducted
or withheld by it from any amounts paid or payable
under the Senior Finance Documents;
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(ii) within 30 days of the payment being made, deliver to
the Agent for the relevant Finance Party evidence
satisfactory to that Finance Party (including all
relevant Tax receipts within 30 days or if later, as
soon as they are available) that the payment has been
duly remitted to the appropriate authority; and
(iii) forthwith on demand indemnify each Finance Party
against any loss or liability which that Finance
Party incurs as a consequence of the non-payment of
those Taxes.
(g) Each Bank, other than the EBRD, represents to the Agent that,
in the case of a Bank which is a Bank on the Signing Date and,
in the case of a Bank which becomes a Bank after the date of
this Agreement, on the date it becomes a Bank, in relation to
the Facilities, it is:
(i) either:
(A) not resident in the United Kingdom for
United Kingdom tax purposes; or
(B) a bank as defined in section 840A of the
Income and Corporation Taxes Act 1988 and
resident in the United Kingdom; and
(ii) beneficially entitled to the principal and interest
payable by the Agent to it under this Agreement;
and, if it is able to make those representations on the
Signing Date or the date it becomes a Bank, shall forthwith
notify the Agent if either representation ceases to be
correct.
(h) The EBRD represents to the Agent that it is exempt in the
United Kingdom from direct taxes, including income tax,
capital gains tax and corporation tax.
15. MARKET DISRUPTION
15.1 Disruption events
(a) If, in relation to any proposed Tranche A Advance and any
Interest Period relative thereto:
(i) no, or where there is more than one Tranche A
Reference Bank only one, Tranche A Reference Bank
supplies an interest rate to the Agent as required by
the definition of "LIBOR" or "EURIBOR" after the
Agent has requested such a rate from the Tranche A
Reference Banks; or
(ii) the Agent has received notification from a Tranche A
Bank or Banks whose participations in such Tranche A
Advance constitute at least forty per cent. (40%) by
value of such Tranche A Advance that by reason of
circumstances affecting the European interbank
market:
(A) deposits in the currency of such Tranche A
Advance for the same period as such Interest
Period are not available to them in the
interbank market in sufficient amounts in
the ordinary course of business to fund
their respective participations in such
Tranche A Advance for such Interest Period,
or
(B) whilst such deposits are so available, the
cost of such deposits exceeds LIBOR or
EURIBOR as determined in relation to such
Tranche A Advance for such Interest Period,
the Agent shall promptly give written notice of such
determination or notification to the Borrower and
each of the Tranche A Banks and each Tranche A Bank
which is affected by the circumstances described in
paragraph (ii) above shall be an "AFFECTED BANK".
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(b) If, in relation to any proposed Tranche B Advance and any
Interest Period relative thereto:
(i) fewer than three Tranche B Reference Banks supply an
interest rate to the Agent as required by the
definition of WIBOR after the Agent has requested
such a rate from the Tranche B Reference Banks; or
(ii) the Agent has received notification from (i) the EBRD
or (ii) a Tranche B Bank or Banks whose
participations in such Tranche B Advance constitute
at least forty per cent. (40%) by value of such
Tranche B Advance that by reason of circumstances
affecting the Warsaw interbank market:
(A) deposits in Zloty for the same period as
such Interest Period are not available to
them in the interbank market in sufficient
amounts in the ordinary course of business
to fund their respective participations in
such Tranche B Advance for such Interest
Period, or
(B) whilst such deposits are so available, the
cost of such deposits exceeds WIBOR as
determined in relation to such Tranche B
Advance for such Interest Period plus, in
the case of the EBRD, the Additional Costs
Rate,
the Agent shall promptly give written notice of such
determination or notification to the Borrower and
each of the Tranche B Banks and each Tranche B Bank
(including the EBRD) which is affected by the
circumstances described in paragraph (ii) above shall
be an "AFFECTED BANK".
15.2 Effect
After the giving of any notice by the Agent pursuant to Clause 15.1
(Disruption events) to the effect that it has received notification in
accordance with Clause 15.1 (Disruption events):
(a) each Bank which is not an Affected Bank shall be obliged to
participate in the Advance to which such notification relates;
and
(b) each Affected Bank, other than an Affected Bank to which funds
are not reasonably available, shall be obliged to participate
in the Advance to which the notification relates subject to
Clause 15.3 (Negotiation and Substitute Basis).
15.3 Negotiation and Substitute Basis
(a) During the period of 30 days (the "30 DAY PERIOD") after the
giving of any notice by the Agent pursuant to Clause 15.1
(Disruption events), the Agent (in consultation with the Banks
in the relevant Tranche) shall negotiate with the Borrower in
good faith with a view to ascertaining whether a substitute
basis (a "SUBSTITUTE BASIS") may be agreed for the making of
further Advances and/or the maintaining of any existing
Advances by the Banks to which such notice by the Agent
related for the current Interest Period relative to those
Advances. If a Substitute Basis is agreed by all the Banks in
the relevant Tranche and the Borrower, such Substitute Basis
shall apply in accordance with its terms from the commencement
of the next Interest Period relating to each relevant Advance.
The Agent shall not agree any Substitute Basis on behalf of
any Bank without the prior consent of that Bank.
(b) From the beginning of the 30 Day Period to the commencement of
the next Interest Period relating to each relevant Advance,
each Affected Bank's participation in each outstanding Advance
to which such notification related shall bear interest during
the Interest Period therefor until and unless such Substitute
Basis is agreed, at the Applicable Margin plus the rate
certified by such Affected Bank to be its cost of funds (from
such source as it may reasonably select) for such Interest
Period.
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(c) If the Agent and the Borrower fail to agree on a Substitute
Basis within 30 days from the date of such notice:
(i) with respect to all Affected Banks other than the
EBRD, the Agent shall determine the rate of interest
to apply to each Affected Bank's participation in
each then existing Advance during such Interest
Period by reference to the Applicable Margin plus the
cost to such Affected Bank of funding the portion of
the Advances scheduled to be outstanding during such
Interest Period from whatever sources it reasonably
selects out of those sources then available to it;
and
(ii) with respect to the EBRD's participation in any
existing or future Tranche B Advance, the Agent shall
redenominate (at the exchange rate obtained by the
EBRD from one of the Tranche B Reference Banks) the
EBRD's participation in such Tranche B Advance into
Euro as of the date two Business Days after the end
of the 30 day period referred to in sub-Clause (a)
above, a new Interest Period shall commence on the
date of such redenomination and the Agent shall
determine the rate of interest to apply to such
participation in such Tranche B Advance from the
beginning of the previous Interest Period to the date
of such redenomination by reference to the Applicable
Margin plus the cost to the EBRD (as notified by the
EBRD to the Agent) of funding the portion of such
Advances scheduled to be outstanding during such
period from whatever sources it reasonably selects
out of those sources then available to it.
16. INCREASED COSTS
16.1 Increased costs
(a) Subject to Clause 16.3 (Exceptions), the Borrower shall
forthwith on demand by a Bank through the Agent pay to that
Bank, the amount of any increased cost incurred by it or any
of its Holding Companies as a result of:
(i) the introduction of, or any change in, or any change
in the interpretation or application of, any law or
regulation applicable to a whole class of financial
institutions of which that Bank is one; or
(ii) compliance with any regulation made after the date of
this Agreement,
including any law or regulation relating to Taxation, change
in currency of a country or reserve asset, special deposit,
cash ratio, liquidity or capital adequacy requirements or any
other form of banking or monetary control.
(b) In this Agreement "INCREASED COST" means:
(i) an additional cost incurred by a Bank or any of its
Holding Companies as a result of it having entered
into, or performing, maintaining or funding its
obligations under, any Senior Finance Document; or
(ii) that portion of an additional cost incurred by a Bank
or any of its Holding Companies in making, funding or
maintaining all or any advances comprised in a class
of advances formed by or including that Bank's
participations in the Utilisations made or to be made
under this Agreement as is attributable to that Bank
making, funding or maintaining those participations;
or
(iii) a reduction in any amount payable to a Bank or any of
its Holding Companies or the effective return to a
Bank or any of its Holding Companies under this
Agreement or (to the extent that it is attributable
to this Agreement) on its capital; or
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(iv) the amount of any payment made by a Bank or any of
its Holding Companies, or the amount of any interest
or other return foregone by a Bank or any of its
Holding Companies, calculated by reference to any
amount received or receivable by that Bank or any of
its Holding Companies from any other Party under this
Agreement.
16.2 Bank Guarantee Fund
(a) Where any Tranche B Bank (or its Holding Company) is obliged
to make a payment into the Bank Guarantee Fund as a result of
it maintaining its Commitment, making, funding or maintaining
all or any advances comprised in a class of advances formed by
or including its (or such Finance Party's) participation in
some or all of the Utilisations made or to be made under this
Agreement, that Tranche B Bank may, within 30 days of making a
payment into the Bank Guarantee Fund, send to the Agent a
notice of such payment. The Agent shall reasonably determine
the amount which was paid by that Tranche B Bank to the Bank
Guarantee Fund which is attributable on the basis of Polish
law to its making, funding or maintaining Advances under this
Agreement or maintaining its obligation, if any, to provide
Utilisations. The Agent shall send a certificate signed by its
senior credit officer of the amount so determined to the
Borrower.
(b) Within 30 days after receipt of a certificate presented by the
Agent in accordance with paragraph (a) above, the Borrower
shall pay to the Agent for the account of the relevant Tranche
B Bank (or, as the case may be, Holding Company of such
Tranche B Bank) the amount set out in the certificate (in the
absence of manifest error) so as to compensate such Tranche B
Bank (or such Holding Company) for the payment into the Bank
Guarantee Fund.
16.3 Exceptions
Clause 16.1 (Increased costs) does not apply to any increased cost:
(a) compensated for by the operation of Clause 14 (Taxes) or the
payment of the Additional Costs Rate; or
(b) attributable to any Tax on Overall Net Income of a Bank (or
the overall net income of a division or branch of the Bank)
imposed in the jurisdiction in which its principal office or
Facility Office is situate; or
(c) of which the relevant Finance Party was aware more than 90
days prior to notifying the Borrower thereof with a
computation of the relevant cost; or
(d) arising directly out of the implementation by the applicable
authorities having jurisdiction over such Bank and/or its
Facility Office of the matters set out in the statement of the
Basle Committee on Banking Regulations and Supervisory
Practices dated July, 1988 and entitled "International
Convergence of Capital Measurement and Capital Standards", or
the directives of the European Council (as amended or
supplemented prior to the Signing Date) of 17th April, 1989 on
the own funds of credit institutions (89/229/EEC) and of 18th
December, 1989 on the solvency ratio for credit institutions
(89/647/EEC), in each case to the extent and according to the
timetable provided therein.
17. ILLEGALITY AND MITIGATION
17.1 Illegality
If it is or becomes unlawful in any jurisdiction for a Bank to give
effect to any of its obligations as contemplated by this Agreement or
to fund or maintain its participation in any Utilisation, then:
(a) that Bank may notify the Borrower through the Agent; and
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(b) if that Bank so notifies the Borrower (through the Agent),
(i) the Borrower shall prepay the participations of that
Bank in all the Utilisations; and
(ii) the Commitments of that Bank shall be cancelled,
in each case forthwith or if later, the latest date permitted
by applicable law as notified to the Borrower by such Bank
through the Agent.
17.2 Mitigation
Notwithstanding the provisions of Clauses 14 (Taxes), 15.1 (Disruption
events), 16.1 (Increased Costs) and 17.1 (Illegality), if in relation
to a Bank or (as the case may be) the Agent circumstances arise which
would result in:
(a) any deduction, withholding or payment of the nature referred
to in Clause 14 (Taxes); or
(b) any market disruption of the nature referred to in Clause 15.1
(Disruption events); or
(c) any increased cost of the nature referred to in Clause 16.1
(Increased Costs); or
(d) a notification pursuant to Clause 17.1 (Illegality),
then without in any way limiting, reducing or otherwise qualifying the
rights of such Bank or the Agent, such Bank shall promptly upon
becoming aware of the same notify the Agent thereof (whereupon the
Agent shall promptly notify the Borrower) and such Bank shall use all
reasonable endeavours to transfer its participation in the relevant
Tranche and its rights hereunder and under the Senior Finance Documents
to another bank or Facility Office not affected by the circumstances
having the results set out in (a), (b) or (c) above or otherwise take
such reasonable steps as may be open to it to mitigate the effects of
such circumstances but always taking into account that such Bank shall
not be under any obligation to take any such action if, in its opinion,
to do so would or might have a material adverse effect upon its
business, operations or financial condition or would involve it in any
unlawful activity or any activity that is contrary to its policies or
any request, guidance or directive of any competent authority (whether
or not having the force of law) or (unless indemnified to its
reasonable satisfaction) would involve it in any significant expense or
tax disadvantage.
18. REPRESENTATIONS AND WARRANTIES
18.1 Representations and warranties
The Borrower makes the representations and warranties set out in this
Clause 18 to each of the Finance Parties.
18.2 Status
(a) It is a limited liability company, duly incorporated and
validly existing under the laws of Poland and each other
Obligor is a corporation or limited liability company, duly
incorporated and validly existing under the laws of the
jurisdiction of its incorporation; and
(b) each member of the Group has the power to own its assets and
carry on its business as it is being conducted.
18.3 Powers and authority
Each Obligor has the power to enter into and perform, and has taken all
necessary action to authorise the entry into, performance and delivery
of, the Senior Finance Documents to which it is or will be a party and
the transactions contemplated by those Senior Finance Documents.
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18.4 Legal validity
Each Senior Finance Document to which any Obligor is or will be a party
constitutes, or when executed in accordance with its terms will
constitute, its legal, valid and binding obligation enforceable in
accordance with its terms subject to applicable insolvency and other
laws affecting creditors' rights generally.
18.5 Authorisations
(a) All authorisations required or the absence of which may
prejudice the Finance Parties in connection with the entry
into, performance, validity and enforceability of the Senior
Finance Documents and the transactions contemplated by the
Senior Finance Documents have been obtained or effected and
are in full force and effect.
(b) The Borrower holds the GSM Licence, the DCS-1800 Licence and
the UMTS Licence and each Obligor holds all Necessary
Authorisations and has received no notice of proceedings
relating to the revocation of the GSM Licence, the DCS-1800
Licence, the UMTS Licence or any other licence, certificate,
franchise or permit, which individually or in the aggregate,
if the subject of an unfavourable ruling or finding, would
have a Material Adverse Effect.
18.6 Pari passu ranking
Each Obligor's obligations under the Senior Finance Documents rank and
will rank at least pari passu with all its other unsecured and
unsubordinated obligations except for obligations which are mandatorily
preferred by law applying to companies generally.
18.7 Stamp duties
No stamp or registration duty or similar Taxes or charges are payable
in Poland, the Netherlands, Luxembourg or England in respect of any
Senior Finance Document other than registration fees in relation to the
registration of pledges under the Pledge Law or the laws of the
Netherlands, Luxembourg or England relating to the granting of Security
Interests which have been paid by the Borrower.
18.8 Immunity
(a) The execution by each Obligor of each Senior Finance Document
to which it is or will be a party constitutes, and its
exercise of its rights and performance of its obligations
under each Senior Finance Document will constitute, private
and commercial acts done and performed for private and
commercial purposes.
(b) No Obligor will be entitled to claim immunity from suit,
execution, attachment or other legal process in any
proceedings taken in Poland, the Netherlands, Luxembourg or
England in relation to any Senior Finance Document.
18.9 Non-conflict
The entry into and performance by any Obligor of, and the transactions
contemplated by, the Senior Finance Documents do not and will not:
(a) conflict with any law or regulation or judicial or official
order with which such Obligor is required to comply; or
(b) conflict with the constitutional documents of any member of
the Group; or
(c) conflict with any document which is binding upon any member of
the Group or any asset of any member of the Group.
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18.10 No default
(a) No Default is outstanding or might result from the making of
any Utilisation; and
(b) no other event is outstanding which constitutes (or with the
giving of notice or lapse of time might constitute) a default
under any document which is binding on any member of the Group
or any asset of any member of the Group to an extent or in a
manner which could reasonably be expected to have a Material
Adverse Effect.
18.11 Litigation
No litigation, arbitration or administrative proceedings are current
or, to its knowledge, pending or threatened, which, if adversely
determined, could reasonably be expected to have a Material Adverse
Effect.
18.12 Accounts
(a) The Original Borrower Accounts:
(i) have been prepared in accordance with the Accounting
Principles consistently applied; and
(ii) fairly represent the financial condition of the
Borrower as at the date to which they were drawn up,
and there has been no material adverse change in the business,
financial condition, operations or performance of the Group
(taken as a whole) since the date to which those Accounts were
drawn up.
(b) The annual audited Accounts of the Group and each Principal
Member of the Group most recently delivered to the Agent after
the Original Borrower Accounts:
(i) have been prepared in accordance with the Accounting
Principles consistently applied; and
(ii)
(A) in the case of a Principal Member of the
Group, fairly represent the financial
condition of each Principal Member of the
Group as at the date to which they were
drawn up; and
(B) in the case of the Group, fairly represent
the financial condition of the Group as at
the date to which they were drawn up,
and no event has occurred which would have a Material Adverse
Effect since the date those Accounts were drawn up.
18.13 Security Interests
(a) The security conferred by the Security Documents constitutes,
or will when executed and/or registered (as applicable)
constitute, a first ranking Security Interest of the type
therein described over the security assets referred to therein
and no Security Interest exists over its or any of its
Subsidiaries' assets which would cause a breach of Clause 19.8
(Negative Pledge).
(b) No member of the Group owns any bank account other than (i)
bank accounts subject to a first ranking Security Interest in
favour of the Finance Parties, (ii) escrow accounts permitted
under the Senior Finance Documents or (iii) bank accounts
subject to the Bank Account Side Letter.
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(c) None of the shares pledged by any Obligor pursuant to any
Security Document is evidenced by a share certificate.
18.14 Information Memorandum
(a) All information contained in the Information Memorandum (other
than information in reports from third parties that has been
provided to the Borrower by such third parties) was true in
all material respects at its date, all calculations made in
the financial models in the Information Memorandum have been
made correctly and all expressions of opinion or intention and
all forecasts and projections made by it (including any
assumptions, forecasts and projections made in connection with
the banking base case in the Information Memorandum) contained
in the Information Memorandum were arrived at after careful
consideration, were fair and were based on reasonable grounds.
(b) So far as it is aware after due and careful review and enquiry
all factual information furnished by the Borrower or its
advisors on which the Information Memorandum is based or which
is referred to therein was true in all material respects as at
its date.
(c) The Information Memorandum did not omit anything which is
material in the context of the business and financial
condition of the Borrower.
(d) As at the Signing Date, nothing has occurred since the date of
the Information Memorandum which renders the information
therein (as updated prior to the Signing Date) untrue or
misleading in any material respect and which is material in
the context of the business and financial condition of the
Borrower.
18.15 Intellectual Property Rights
(a) It (and each of its Subsidiaries) owns or has the legal right
to use all the Intellectual Property Rights which are material
to the conduct of the business of the Group taken as a whole
or are required by it in order for it to carry on its business
in all material respects as it is being conducted on the
Signing Date and as far as it is aware it does not (nor do any
of its Subsidiaries), in carrying on its business, infringe
any Intellectual Property Rights of any third party in any way
which would have a Material Adverse Effect.
(b) None of the Intellectual Property Rights which are material in
the context of the business of any member of the Group is, to
its knowledge, being infringed nor, to its knowledge, is there
any threatened infringement of those Intellectual Property
Rights, by any third party which would have a Material Adverse
Effect.
(c) All registered Intellectual Property Rights owned by it (or
any Subsidiary of it) and which are material to the conduct of
the business of any member of the Group are subsisting and all
actions (including payment of all fees) required to maintain
the same in full force and effect have been taken, where lack
of subsistence or failure to take any such action would have a
Material Adverse Effect.
18.16 Environmental matters
(a) It and its Subsidiaries (i) have obtained all requisite
Environmental Licences required for the carrying on of its
business as currently conducted and (ii) have at all times
complied with the terms and conditions of such Environmental
Licences and (iii) have at all times complied with all other
applicable Environmental Laws, which in each such case, if not
obtained or complied with, would have a Material Adverse
Effect.
(b) So far as it is aware after due enquiry, there is no
Environmental Claim pending or threatened, against any member
of the Group which is reasonably likely to be decided against
that member of the Group and which if so decided would have a
Material Adverse Effect.
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(c) So far as it is aware after due enquiry, no Dangerous
Substance has been used, disposed of, generated, stored,
transported, dumped, released, deposited, buried or emitted
at, on, from or under any premises (whether or not owned,
leased, occupied or controlled by any member of the Group and
including any offsite waste management or disposal location
utilised by any member of the Group) in circumstances where
this would be reasonably likely to result in a liability on
any member of the Group which would have a Material Adverse
Effect.
18.17 Material Contracts
(a) Each of the Material Contracts to which any Obligor is a party
constitutes its legal, valid and binding obligation and is
enforceable against it in accordance with its terms subject to
applicable insolvency and other laws affecting creditors'
rights generally, and all authorisations, approvals, consents,
licences, exemptions, filings, registrations, recordings,
notarisations, and other matters, official or otherwise,
necessary in connection with the entry into, performance and
validity by and in respect of that party and enforceability
against that party have been obtained or effected and are in
full force and effect.
(b) Neither (i) it nor any member of the Group is in breach of any
of its material obligations under any Licence, nor (ii) is it
nor any member of the Group in breach of any of its
obligations under any other Material Contract in a manner or
to such an extent which would be reasonably likely to have a
Material Adverse Effect.
(c) There is no material dispute between any parties to the
Material Contracts and there have been no material amendments
to any Material Contract since the form provided to the Agent
prior to the Signing Date.
18.18 Times for Making Representations and Warranties
(a) The representations and warranties set out in this Clause 18
are made on the date of this Agreement.
(b) The representations and warranties set out in Clauses 18.2
(Status), 18.3 (Powers and authority), 18.4 (Legal validity),
18.5 (Authorisation), 18.6 (Pari Passu Ranking), 18.8
(Immunity), 18.9 (Non-conflict), 18.10 (No default), 18.11
(Litigation), 18.12(b) (Accounts), 18.13 (Security Interests)
and 18.17 (Material Contracts) are deemed to be repeated by
the Borrower on the date of each Request, each Rollover Date
and each Utilisation Date as if they had been given on such
dates having regard to the facts and circumstances existing on
such dates.
19. UNDERTAKINGS
19.1 Duration
The undertakings in this Clause 19 shall remain in force from the date
of this Agreement and for so long as any amount is or may be
outstanding under any Senior Finance Document or any Commitment is in
force.
19.2 Financial Information and Business Plan
(a) The Borrower shall procure that there shall be furnished to
the Agent in sufficient copies (in electronic form, if agreed
to by the Agent) for each of the Banks (or, in the case of
Clause 19.2(a)(vii), for each of the Tranche B Banks):
(i) as soon as the same are available (and in any event
within 120 days) after the end of each annual
Accounting Period:
(A) the audited consolidated Accounts of the
Group for that financial year; and
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(B) the audited Accounts for that financial year
for each Principal Member of the Group;
(ii) as soon as the same are available (and in any event
within 45 days) after the end of each quarterly
Accounting Period:
(A) the financial statements and the unaudited
consolidated Accounts of the Borrower and,
for each quarterly Accounting Period ending
on or after 31 March, 2001, the financial
statements and the unaudited consolidated
Accounts of the Group for that Accounting
Period;
(B) the details of the exposure under any
hedging transaction or hedging line of
credit designated as a "Senior Finance
Document" pursuant to Clause 19.14(c); and
(C) a list of each Principal Member of the
Group; provided, however, that the Borrower
shall also procure that such list be
furnished upon the request of the Agent.
(iii) as soon as the same is available (and in any event
within 60 days after the commencement of each annual
Accounting Period), an updated Business Plan covering
the period to the Final Repayment Date which has been
approved by the management board of the Borrower, on
the basis that such Business Plan shall be subject to
approval by the supervisory board of the Borrower
and, if such supervisory board makes any changes to
such Business Plan, as soon as practicable after such
changes have been made (and in any event within 1
week of the approval of the Business Plan by such
supervisory board, the Business Plan as changed by
such supervisory board);
(iv) as soon as the same is available (and in any event by
31 March, 2001) the UMTS Business Plan approved by
the management board of the Borrower and the
supervisory board of the Borrower;
(v) as soon as the same is available (and in any event
within 45 days) after the end of each quarterly
Accounting Period, a report in an agreed form setting
out performance indicators covering the level of,
among other things, subscribers, network coverage,
revenue per subscriber, acquisition costs per
subscriber, churn and Capital Expenditure of the
Borrower and its Subsidiaries for the previous
quarterly Accounting Period;
(vi) as soon as the same is available (and in any event
within 45 days) after the end of each quarterly
Accounting Period a report in an agreed form setting
out the information (including any reconciliation
between the accounts of the Borrower and its
Subsidiaries) that is needed to calculate the
financial covenants contained in Clause 21 (Financial
undertakings) and the results of such calculations;
(vii) at the same time as the annual audited consolidated
Accounts are delivered pursuant to paragraph (i)(A)
above a report of the Auditors in a form reasonably
satisfactory to the Agent:
(A) setting out in reasonable detail
computations establishing, as at the date of
such Accounts, whether the Borrower complied
with each of the financial ratios set out in
Clause 21 (Financial Undertakings);
(B) stating whether the Auditors in the course
of their audit discovered any breach of the
obligations set out in Clause 21 (Financial
Undertakings); and
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(C) a letter explaining any differences between
the format, headings and characterisations
used where those differences would affect
the ability of the Agent and the Banks to
calculate the components of the financial
ratios in Clause 21 (Financial
Undertakings); and
(viii) at the same time that they are submitted to the
National Statistical Office in Poland, copies of
forms F-01 and F-02; and
(ix) at the same time that they are submitted, copies of
all regular, periodic and special reports and all
registration statements, that the Borrower or any of
its Subsidiaries files with the Securities and
Exchange Commission or any governmental authority
that may be substituted therefore, or with any
national securities exchange.
(b) The Borrower shall supply to the Agent together with the
quarterly Accounts specified in paragraph (a)(ii) above and,
in the case only of (ii) below, at any other time if the Agent
reasonably so requests, a certificate substantially in the
form of Schedule J signed by a member of the management board
of the Borrower on its behalf:
(i) setting out in reasonable detail computations
establishing, as at the date of the latest Accounts,
whether each of the financial ratios set out in
Clause 21 (Financial Undertakings) were complied with
and certifying that (A) the relevant Accounts fairly
represent the financial position of the Borrower or
the Group, as applicable, and (B) the relevant
Accounts were prepared in accordance with the
Accounting Principles or the terms of Clause 19.7
(Accounting Standards) has been complied with; and
(ii) certifying that, so far as he is aware, having made
proper enquiries, no Default is outstanding or, if a
Default is outstanding, specifying the Default and
the steps, if any, being taken to remedy it.
(c) The Borrower shall supply to the Agent promptly at any time
the Agent reasonably requests it, the amount of Senior Debt of
the Group outstanding at the time of the Agent's request.
19.3 Information - Miscellaneous
The Borrower shall supply to the Agent in sufficient copies for all the
Banks, if the Agent so requests:
(a) all documents or information relating to matters which are
material to the Borrower's or the Group's business, assets or
financial condition and which are likely to result in a
Material Adverse Effect or which are despatched by it to its
creditors (or any class of them) at the same time as they are
despatched;
(b) promptly upon becoming aware of them, details of any
litigation, arbitration or administrative proceedings which
are current, threatened or pending and which if, adversely
determined, could reasonably be expected to have a Material
Adverse Effect; and
(c) promptly, such further information in the possession or
control of any member of the Group regarding its financial
condition and operations as any Finance Party (through the
Agent) may reasonably request.
19.4 Notification of Default
The Borrower shall notify the Agent of any Default (and the steps, if
any, being taken to remedy it) promptly upon it becoming aware of its
occurrence.
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19.5 Authorisations
(a) The Borrower shall promptly:
(i) obtain, maintain and comply with the terms of; and
(ii) supply certified copies to the Agent of,
any authorisation required (or the absence of which may
prejudice the Finance Parties) under any law or regulation to
enable it or another member of the Group to perform its
obligations under, or for the validity or enforceability of,
any Senior Finance Document to which it or another member of
the Group is a party.
(b) The Borrower shall promptly obtain or cause to be obtained
every Necessary Authorisation and ensure that:
(i) none of the Necessary Authorisations is revoked,
cancelled, suspended, withdrawn, terminated, expires
or is not renewed or otherwise ceases to be in full
force and effect; and
(ii) no Necessary Authorisation is modified and no member
of the Group commits any breach of the terms or
conditions of any Necessary Authorisation
which, in the case of (i) or (ii), is reasonably likely to
result in a Material Adverse Effect.
19.6 Audit and Accounting Dates
The Borrower will ensure that:
(a) the annual Accounts to be delivered to the Agent pursuant to
Clauses 19.2(a)(i) and 19.2(a)(vi) (Financial information and
Business Plan) are audited by the Auditors;
(b) it shall at all times have duly appointed the Auditors as
auditors and each Principal Member of the Group shall at all
times have the Auditors as duly appointed auditors (where
required by law); and
(c) it will not, and no member of the Group will, change the end
of its annual Accounting Period without the prior written
consent of the Agent acting on the instructions of the
Majority Banks.
19.7 Accounting Standards
The Borrower will ensure that:
(a) all Accounts shall be prepared in accordance with the
Accounting Principles or shall indicate in notes to or
accompanying such Accounts any material departures from the
Accounting Principles;
(b) all Accounts shall (in the case of annual Accounts) fairly
represent (subject to adjustments which fall to be made at the
end of the financial year) the consolidated financial position
and results of operations of the relevant member of the Group
and its Subsidiaries (in the case of consolidated Accounts) or
its financial position and results of operations (in the case
of unconsolidated Accounts), as at the end of and for the
Accounting Period to which they relate.
19.8 Negative Pledge
(a) The Borrower shall not, and shall procure that no other member
of the Group will, create or permit to subsist any Security
Interest on any of its assets or undertaking.
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(b) Paragraph (a) does not apply to the following Security
Interests:
(i) any Security Interest existing at the date of this
Agreement and detailed in Schedule F provided that
the amount secured by such Security Interest is not
increased above the amount stated or described in
that Schedule as reduced from time to time;
(ii) any Security Interest constituted or evidenced by the
Security Documents or the Supplemental Facility
Senior Finance Documents;
(iii) a lien arising by operation of law in the ordinary
course of business and securing amounts not more than
60 days overdue;
(iv) any Security Interest which arises as a result of or
in the course of legal proceedings the enforcement or
realisation of which is stayed (A) by reason of the
claims in relation to which such Security Interest
arises being contested in good faith or (B) pending
or during the hearing of an appeal made against the
judgment or order creating the same;
(v) (A) any Security Interests over assets acquired
after the Signing Date to secure only
Financial Indebtedness used to acquire such
assets, including Security Interests in
favour of a vendor over assets acquired by
way of vendor financings permitted under
Clause 19.26 (Financial Indebtedness) where
the payment terms exceed 180 days; provided,
however, that no such Security Interest
shall extend to cover any property other
than the assets being acquired and that, in
the case of vendor financings, the aggregate
fair market value of such assets, as
determined based on the purchase price (net
of taxes) set forth on the invoice therefor,
acquired by way of all such vendor
financings does not exceed the Euro
Equivalent of euro50,000,000 at any time;
(B) any rights by way of reservation or
retention of title to secure only Financial
Indebtedness or other obligations incurred
to acquire goods which are acquired by or
supplied to the Borrower or any other member
of the Group in the ordinary course of its
business after the Signing Date; provided,
however, that no such Security Interest
shall extend to cover any property other
than the goods being acquired;
so long as the amount of the Financial Indebtedness
incurred before, on or after the Signing Date which
is secured by the Security Interests referred to in
sub-Clauses (A) and (B) above would not cause the
limit on Financial Indebtedness set forth therefor in
Clause 19.26(a) (Financial Indebtedness) to be
breached;
(vi) any Security Interest securing any New Facility
pursuant to security documentation in form and
substance satisfactory to the Agent, acting on the
instruction of the Majority Banks; provided that:
(A) such Security Interest shall effectively
rank pari passu with the Security Interests
granted under the Security Documents;
(B) the Security Interest shall not extend to or
cover any assets not subject to the Security
Interests granted under the Security
Documents;
(C) the secured creditors under any such New
Facility shall have entered into the
Collateral Sharing Intercreditor Agreement;
and
(D) the security agent under any such New
Facility shall be satisfactory to the Agent
and the Security Agent, acting reasonably;
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(vii) any Security Interest in any escrow accounts pledged
to high yield bondholders and in amounts on deposit
thereon;
(viii) any Security Interest in (a) any escrow accounts (and
amounts on deposit therein) established for the
purpose of supporting obligations under a QTE Lease,
so long as the aggregate fair market value of the
assets which are the subject of such leases at the
time such leases are entered into as determined by an
independent market consultant approved by the Agent
does not exceed the Euro Equivalent of
euro100,000,000 at such time or (b) any single
purpose accounts (and amounts on deposit therein) in
the name of an Issuer or any other finance subsidiary
through which payments within 5 Business Days of high
yield bond interest are made, provided that the
aggregate amount on deposit therein shall not exceed
at any time the amount of the next payment of high
yield bond interest;
(ix) any Security Interests in favour of a vendor over
assets acquired by way of vendor financings where the
payment terms do not exceed 180 days; provided,
however, that no such Security Interest shall extend
to cover any property other than the assets being
acquired;
(x) any Security Interest securing indebtedness incurred
to refinance other indebtedness permitted to be
secured by any Security Interests permitted under
paragraphs (b)(i) to (v) above provided that the
replacement Security Interest does not cover any
assets other than the original assets subject to the
original Security Interest and that the aggregate
principal amount secured thereby is not increased;
and
(xi) any Security Interest over cash collateral in
relation to letters of credit, guarantees or bonds
which are permitted to be issued under Clause
19.26(b) (Financial Indebtedness) so long as the
aggregate amount of such cash collateral does not
exceed euro15,000,000 at any time.
19.9 Transactions Similar to Security
The Borrower shall not, and shall procure that no other member of the
Group will sell, transfer or otherwise dispose of any of its assets on
terms whereby it is or may be leased to or re-acquired or acquired by a
member of the Group or any of its related entities in circumstances
where the transaction is entered into primarily as a method of raising
finance or of financing the acquisition of an asset other than:
(a) in connection with Finance Leases permitted in accordance with
Clause 19.26(a) (Financial Indebtedness);
(b) in connection with QTE Leases permitted in accordance with
Clause 19.26(a) (Financial Indebtedness); or
(c) any goods acquired in the ordinary course of the Borrower's
business which are transferred upon acquisition back to the
vendor thereof in relation to the financing of the acquisition
price thereof so long as the amount of the Financial
Indebtedness incurred in relation to the financing of the
acquisition would not cause any limit on Financial
Indebtedness contained in Clause 19.26 (Financial
Indebtedness) to be breached and that Financial Indebtedness
is incurred after the Signing Date,
provided that, in relation to any Finance Lease or QTE Lease, such
security interest relates solely to the assets which are the subject
matter of such lease.
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19.10 Disposals
(a) The Borrower shall not, and shall procure that no other member
of the Group will, either in a single transaction or in a
series of transactions whether related or not and whether
voluntarily or involuntarily, sell, transfer, grant or lease
or otherwise dispose of any of its assets.
(b) Paragraph (a) does not apply to:
(i) disposals made in the ordinary course of trading of
the disposing entity;
(ii) disposals of non core assets of the Group on terms no
less favourable to the Group than arm's-length terms
where the consideration is received in Cash;
(iii) disposals of assets which are surplus, obsolete or
redundant plant and equipment on terms no less
favourable to the Group than on arm's length terms
where the consideration is received in Cash;
(iv) disposals of assets in exchange for other assets
comparable or superior as to type, value and quality;
(v) disposals of assets to become the subject of a
Finance Lease permitted pursuant to Clause
19.26(a)(iv) (Financial Indebtedness) for fair value;
(vi) disposals of assets to become the subject of a QTE
Lease pursuant to Clause 19.26(a)(v) (Financial
Indebtedness) for fair value; or
(vii) disposal of assets on arm's length terms for Cash not
otherwise permitted pursuant to (i) to (vi)
(inclusive) above,
(A) the Net Proceeds of which, in the case of
any single transaction or series of related
transactions do not exceed the Euro
Equivalent of euro500,000; and
(B) the Euro Equivalent of the Net Proceeds of
which when aggregated with the Euro
Equivalent of the Net Proceeds of all other
such disposals in any annual Accounting
Period do not exceed euro5,000,000.
This provision is intended to operate notwithstanding the
invalidity or unenforceability of any provision of a Security
Document restricting disposals.
19.11 Pari passu ranking
The Borrower shall procure that its obligations under the Senior
Finance Documents, do rank and will rank at least pari passu (save by
reason of and to the extent of the security afforded thereto by the
Security Documents or any documents evidencing security under the New
Facility) with all its other present and future unsecured and
unsubordinated obligations, other than obligations which are
mandatorily preferred by law applying to companies generally.
19.12 Loans and guarantees
(a) The Borrower will not, and will procure that no other member
of the Group will:
(i) make any loans, provide credit, enter into any hire
purchase, rental, finance or operating lease as
lessor or otherwise enter into transactions where
third parties incur Financial Indebtedness in its
favour; or
(ii) give any guarantee to or for the benefit of any
person,
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other than loans or guarantees:
(A) arising under the Transaction Documents;
(B) between one member of the Group and another
member of the Group so long as the business
of such member of the Group is solely
related to the Borrower's Telecom Business
where the requirements of Clause 19.32
(Security and bank accounts) in relation to
the giving of guarantees and security by the
relevant members of the Group have been
complied with;
(C) the aggregate Euro Equivalent of which does
not exceed euro20,000,000 outstanding at any
time;
(D) arising in the ordinary course of business
of the relevant member of the Group; or
(E) loans to employees the aggregate Euro
Equivalent of which does not exceed
euro10,000,000 outstanding at any time.
(b) The Borrower will not, and will procure that none of its
Subsidiaries will, agree to change the interest rates set
forth in any of the Onlending Agreement between PTC
International Finance B.V. and the Borrower dated 1 July,
1997, the Onlending Agreement between PTC International
Finance II S.A and PTC International Finance (Holding) B.V. or
the Onlending Agreement between International Finance
(Holding) B.V. and the Borrower, each dated 23 November, 1999
or any other onlending agreement entered into between any
members of the Group from time to time in accordance with the
terms hereof without the consent of the Majority Banks, except
in order to ensure that at the end of the discount or
zero-coupon periods, as applicable, of the bonds issued
pursuant to the High Yield Debt Documents, the proceeds of
which are on-lent under the terms of the relevant onlending
agreement, the amount of the proceeds (with any capitalised
interest) on-lent from the respective issuer to the Borrower
is equal to the nominal value of the respective bonds.
19.13 Operating Leases
The Borrower will not, and will procure that no other member of the
Group will, after the Signing Date enter into any operating lease as
lessee of or in respect of equipment, machinery or plant (other than
any motor vehicles) if the equipment, machinery or plant concerned is
of such importance in the business of the Group taken as a whole that
such business would be materially and adversely affected were the
leases for such equipment, machinery or plant to be terminated early
and the right to possession of the equipment, machinery or plant lost
to the Group.
19.14 Treasury transactions
(a) The Borrower will enter into such hedging transactions as are
required in accordance with the Hedging Policy and may enter
into such other hedging transactions as are generally
envisaged by the spirit of the Hedging Policy but otherwise it
will not, and will procure that none of its Subsidiaries will,
enter into any interest rate swap, cap, ceiling, collar or
floor or any currency swap, futures, foreign exchange or
commodity contract or option (whether over the counter or
exchange traded) or any similar treasury transaction.
(b) The Borrower will use all reasonable endeavours to agree with
the Agent, acting on behalf of the Majority Banks, an updated
Hedging Policy on an annual basis.
(c) The Agent, at the request of the Borrower, shall designate any
hedging transaction or documents evidencing a hedging line of
credit with a Bank, which is in accordance with the Hedging
Policy, as a "Senior Finance Document" with its obligations to
that Bank secured by the Security Documents.
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19.15 Receivables disposals
The Borrower will not, and will procure that no other member of the
Group will, sell, transfer or otherwise dispose of any of its
receivables other than:
(a) the discounting of bills or notes in the ordinary course of
trading;
(b) the sale of bad debts to a Subsidiary or in the ordinary
course of business on arm's length terms on either a recourse
or non-recourse basis where the seller receives Cash on
completion of the sale; or
(c) a discount to a subscriber in the ordinary course of business.
19.16 Acquisitions and Investments
The Borrower will not, and will procure that no other member of the
Group will:
(a) make any Acquisition; or
(b) make any investment with Cash,
other than:
(i) a Permitted Investment;
(ii) capital expenditures in the Telecom Business of any
Obligor; and
(iii) an investment in a Subsidiary or Affiliate of the
Borrower, so long as the business of such Subsidiary
or Affiliate is related to the Borrower's Telecom
Business; provided that the aggregate amount of
investments in Subsidiaries and Affiliates that are
not Obligors shall not exceed the Euro Equivalent of
euro50,000,000 at any time.
19.17 Restricted Distributions
Except as provided in Clause 19.18 (Permitted Distributions), the
Borrower will not and will procure that no other member of the Group
(other than by any member of the Group in favour of the Borrower or
another member of the Group which is directly or indirectly wholly
owned by the Borrower) will:
(a) make or resolve to make any distribution, dividend, Restricted
Payment or other payment (in cash or in kind) on or in respect
of any share capital, Reserve Capital or equivalent of a
member of the Group;
(b) make or resolve to make (whether in cash, property, securities
or otherwise) any redemption, repurchase, defeasance,
retirement, return or repayment of any of its share capital or
equivalent of a member of the Group (other than by way of a
reduction of share capital without any payment to
shareholders);
(c) make or resolve to make any redemption, repurchase,
defeasance, repayment, prepayment or payment (in cash or in
kind) of the principal of, or interest (whether or not
capitalised) or other amount on or in respect of Subordinated
Debt or any sub-participation or cash collateral arrangement
in respect of any Subordinated Debt;
(d) make or resolve to make any other transfer of assets to any
Shareholder or other Restricted Person; or
(e) exercise any right of set-off in respect of any Subordinated
Debt.
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19.18 Permitted Distributions
(a) Any member of the Group may make or resolve to make a
Permitted Distribution of the type referred to in clause (a)
or (b) of the definition of "Permitted Distribution" so long
as before and after giving effect to such Permitted
Distribution, the ratio of Senior Debt of the Group to EBITDA
of the Group (calculated based on the financial statements of
the Borrower most recently available and giving pro forma
effect to such Permitted Distribution) shall be less than
3.0:1.0.
(b) So long as no Event of Default shall have occurred and be
continuing, the relevant Issuer, holding company of an Issuer
or the Borrower may make any payment due by it under the High
Yield Debt Documents if:
(i) in the case of a payment by the relevant Issuer to
the relevant trustee, a Payment Blockage Notice (as
defined in the applicable High Yield Debt Documents)
does not apply to that payment; or
(ii) in the case of the payment by the Borrower or a
holding company of an Issuer to the relevant Issuer,
the payment to the trustee which such payment is to
fund is not subject to a Payment Blockage Notice (as
defined in the applicable High Yield Debt Documents).
(c) Without prejudice to sub-Clause 19.18(d), so long as no Event
of Default shall have occurred and be continuing, the Borrower
or any member of the Group may make payments of interest in
respect of any transaction described in paragraph (e) of the
definition of Subordinated Debt.
(d) Unless a Default has occurred and is continuing, the whole or
any part of the Subordinated Debt may be repaid, replaced,
substituted or refinanced by way of an equity contribution,
Reserve Capital or other Subordinated Debt; provided that in
the case of such other Subordinated Debt, the maturity date of
such other Subordinated Debt is no earlier than 12 months
after the Final Repayment Date.
19.19 Certification of Payment Amounts
Where any Permitted Distribution, other than pursuant to the High Yield
Debt Documents, is proposed to be made pursuant to Clause 19.18
(Permitted Distributions) the Borrower shall, prior to making such
payment, provide to the Agent not less than 10 Business Days before the
proposed date for the Distribution, a certificate signed by an
authorised signatory of the Borrower showing:
(a) the date and amount of such proposed Distribution;
(b) such calculations in reasonable detail as are necessary to
show how the payment figure was arrived at and that the
provisions in Clause 19.18 (Permitted Distributions) have been
complied with; and
(c) all calculations required under Clause 21 (Financial
Undertakings) calculated before and after giving effect to
such proposed Distribution.
19.20 Share Capital
The Borrower will not and will procure that no member of the Group
will:
(a) other than in the case of the Borrower, issue any Excluded
Share Capital;
(b) issue any new share capital or grant any option over any
shares to any person except:
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(i) in the case of any Subsidiary of the Borrower, shares
issued to another member of the Group, where a
Security Agent or the Banks already have security
over the shares of the issuer of any such new shares
in which case the new share capital or option may be
issued or granted once the relevant Security Agent or
the Agent has confirmed to the Borrower that the
member of the Group to whom such new shares are to be
issued has provided security over such shares to a
Security Agent and/or the Finance Parties to the
reasonable satisfaction of Security Agent and the
Agent have obtained whatever certificates, corporate
authorities or opinions they may deem necessary; and
(ii) the Borrower may issue new share capital in
consideration of cash or a contribution in kind by
any Shareholder of any Shareholder Loan or any
Reserve Capital, provided that promptly after the
issuance thereof, the Borrower shall notify the
Finance Parties as to the number of shares issued and
the identity of the person to which such shares were
issued; or
(c) undertake an initial public offering without giving prior
written notice to the Banks through the Agent.
19.21 Intellectual Property Rights
The Borrower will, and will procure that each of its Subsidiaries will:
(a) promptly make such registrations and pay such fees and similar
amounts as are necessary to keep those registered Intellectual
Property Rights owned by the Group which are material to the
conduct of the business of the Group taken as a whole from
time to time;
(b) not infringe in carrying on its business any Intellectual
Property Rights of any third party in any way which would have
a Material Adverse Effect;
(c) promptly take such steps as are necessary and commercially
reasonable (including, without limitation, the institution of
legal proceedings) to prevent third parties infringing those
Intellectual Property Rights referred to in paragraph (a)
above and (without prejudice to paragraph (a) above) take such
other steps as are reasonably practicable to maintain and
preserve its interests in those rights;
(d) promptly upon being required to do so by the Agent or a
Security Agent, comply with all proper instructions of the
Agent or a Security Agent which the Agent or a Security Agent
is entitled to give under the Security Documents in respect of
its Intellectual Property Rights referred to in paragraph (a)
above;
(e) not sell, transfer, lease, licence on an exclusive basis or
otherwise dispose of all or any part of its interest in any of
the Intellectual Property Rights referred to in paragraph (a)
above (whether in a single transaction or in a series of
transactions whether related or not and whether voluntarily or
involuntarily) save:
(i) as effected pursuant to any of the Security
Documents; or
(ii) for any licence arrangements in respect of those
rights entered into with members of the Group for so
long as they remain members of the Group; or
(iii) for any licence arrangements in respect of those
rights entered into with any third party, where those
licence arrangements are entered into on arms' length
terms and in the ordinary course of business and
which do not materially and adversely affect the
interests of the Banks under the Senior Finance
Documents; and
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(f) not permit any registration of any of the Intellectual
Property Rights referred to in paragraph (a) above to be
abandoned, cancelled or to lapse or to be liable to any claim
of abandonment for non-use or otherwise.
19.22 Environmental Matters
The Borrower will and will procure that each other member of the Group
will:
(a) (i) obtain all requisite Environmental Licences required for
the carrying on of its business as currently conducted, (ii)
comply with the terms and conditions of all such Environmental
Licences applicable to it and (iii) comply with all other
applicable Environmental Laws, in each case where failure to
do so would have a Material Adverse Effect;
(b) promptly upon receipt of the same, notify the Agent and the
Security Agent of any Environmental Claim pending or
threatened against any member of the Group which if decided
against that member of the Group would be reasonably likely to
have a Material Adverse Effect;
(c) not use, dispose of, generate, store, transport, dump,
release, deposit, bury or emit at, on, from or under any
premises (whether or not owned, leased, occupied or controlled
by any member of the Group and including any offsite waste
management or disposal location utilised by any member of the
Group) any Dangerous Substance in circumstances where this
would be reasonably likely to result in a liability on any
member of the Group which would have a Material Adverse
Effect.
The Borrower shall supply to the Agent in sufficient copies for all the
Banks, if the Agent so requests, within 60 days after the end of each
annual Accounting Period, a report, in form and scope satisfactory to
the Agent, on environmental, health and safety issues arising in
relation to the Borrower or its Telecom Business during such annual
Accounting Period, including compliance by the Borrower with
Environmental Laws, any violations thereof and fines and remedial
action relating thereto, public complaints and environmental
emergencies.
19.23 Insurance
The Borrower shall, and shall procure that each other member of the
Group will maintain insurance with financially sound and reputable
insurers with respect to its assets of an insurable nature against such
risks and in such amounts as are normally maintained by persons
carrying on the same or a similar class of business and will provide
the Agent details of such insurances, promptly after each renewal and
such other times as the Agent may reasonably request.
19.24 Change of Business
The Borrower and the Group shall conduct at all times only the Telecom
Business.
19.25 Mergers
The Borrower will not, and will procure that no other member of the
Group will, enter into any merger, amalgamation, reconstruction or
consolidation with any other person or business other than:
(a) a conversion by the Borrower into a joint stock company
(Spolka Akcyjna);
(b) a merger where the Borrower or the relevant Subsidiary is the
surviving legal entity; or
(c) a merger where the Borrower or the relevant Subsidiary is not
the surviving legal entity but the surviving legal entity of
such merger assumes the obligations of the Borrower or the
relevant Subsidiary,
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in each case where the Majority Banks are satisfied, in their
reasonable opinion, that (i) the net assets of the Borrower or its
Subsidiary or their successor (as the case may be) are no less than
those of the Borrower or its Subsidiary immediately prior to the merger
and (ii) the most recent Business Plan (updated to reflect the merger
or conversion) demonstrates that the resulting entity will be able to
comply with all of the obligations of the Borrower or the relevant
Subsidiary under the Senior Finance Documents to at least the same
extent as the Borrower or the relevant Subsidiary would have been able
to do.
19.26 Financial Indebtedness
(a) The Borrower will not, and will procure that no member of the
Group will, incur or permit to subsist any Financial
Indebtedness other than:
(i) indebtedness under the Senior Finance Documents;
(ii) any existing Financial Indebtedness set forth in
Schedule K and any refinancing of any such Financial
Indebtedness marked by an asterisk in Schedule K;
provided that the principal amount of such
refinancing Financial Indebtedness does not exceed
the principal amount being refinanced and the obligor
of the new Financial Indebtedness remains the same as
the obligor of the refinanced Financial Indebtedness;
(iii) Financial Indebtedness incurred in accordance with
the Hedging Policy and pursuant to any (a) Hedging
Agreement in effect as of the date hereof and set
forth in Schedule L, intended to hedge against
interest rate or foreign exchange rate fluctuations,
(b) Hedging Agreement intended to hedge against
interest rate or foreign exchange rate fluctuations
relating to any Financial Indebtedness under the
Senior Finance Documents, (c) Hedging Agreement
intended to hedge against interest rate or foreign
exchange rate fluctuations relating to any interest
amounts payable under any High Yield Debt Documents
and (d) Hedging Agreement intended to hedge against
any foreign exchange rate fluctuations relating to
the principal outstanding under any High Yield Debt
Documents; provided that any such Hedging Agreement
as is described in this sub-clause (d) is unsecured
and subordinated to the Financial Indebtedness under
the Senior Finance Documents;
(iv) Financial Indebtedness consisting of vendor
financings where the payment terms exceed 180 days so
long as the aggregate amount outstanding thereunder
does not at any time exceed the Euro Equivalent of
euro50,000,000;
(v) during the UMTS Pre-Approval Period:
(A) (x) Subordinated Debt (other than
Shareholder Loans) of an Obligor
(and any Subordinated Debt of the
Borrower incurred from the onlending
of such Subordinated Debt of the
Obligor) so long as after giving pro
forma effect thereto, the Borrower
will be in compliance with its
undertakings contained in Clause 21
(Financial Undertakings); and
(y) Financial Indebtedness incurred
pursuant to any New Facility;
provided that before and after
giving effect to the incurrence of
such New Facility, no Default shall
have occurred and be continuing;
in either case for the purpose of funding the UMTS
Licence Initial Instalments provided that:
(aa) the maximum aggregate principal
amount of the Financial
Indebtedness referred to in (x)
and (y) above
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shall not, at any
time, exceed euro100,000,000
(or the Euro Equivalent
thereof, if incurred in
another currency); and
(bb) immediately following the
application of any such
Financial Indebtedness in
payment of any UMTS
Licence Initial Instalment the
aggregate principal amount of
all Financial Indebtedness
(other than Shareholder Loans)
incurred (whether hereunder or
otherwise) for the purpose of
financing such UMTS Licence
Initial Instalment and all
previous UMTS Licence Initial
Instalments shall not exceed an
amount equal to the lower of
(i) euro250,000,000 (or Euro
Equivalent thereof, if incurred
in another currency) and (ii)
2/3 of the Euro Equivalent of
the aggregate amount of such
UMTS Licence Initial Instalment
and all previous UMTS Licence
Initial Instalments;
(B) Subordinated Debt of an Obligor so long as
such Subordinated Debt is zero-coupon or the
payment of interest on such Subordinated
Debt is secured with cash on deposit in an
escrow account and the period during which
such Subordinated Debt is zero coupon or the
interest thereon is escrowed extends beyond
the Final Repayment Date and so long as the
proceeds thereof are used for general
corporate purposes other than UMTS
Expenditures;
(C) Financial Indebtedness of an Obligor
consisting of Shareholder Loans, the
proceeds of which are used (i) to purchase
the UMTS Licence or (ii) for general
corporate purposes other than UMTS
Expenditures;
(vi) during the UMTS Approved Period:
(A) Subordinated Debt of an Obligor (and any
Subordinated Debt of the Borrower incurred
from the onlending of such Subordinated Debt
of the Obligor) so long as after giving pro
forma effect thereto, the Borrower will be
in compliance with its undertakings
contained in Clause 21 (Financial
Undertakings);
(B) Financial Indebtedness consisting of:
(x) Financial Indebtedness incurred
pursuant to any New Facility;
provided that before and after
giving effect to the incurrence of
such New Facility, no Default shall
have occurred and be continuing;
(y) Financial Indebtedness or other
obligations incurred pursuant to QTE
Leases (and (without
double-counting) any letter of
credit issued in connection
therewith) in an aggregate amount
not exceeding the Euro Equivalent of
euro100,000,000 and Finance Leases;
provided that the aggregate principal amount
outstanding (or, in the case of QTE Leases and
letters of credit referred to in sub-Clause (y)
above, upon defeasance in accordance to the terms
thereof, the residual amount thereof) of all such
Financial Indebtedness or other obligations incurred
in accordance with this sub-Clause (B) and any
amounts incurred pursuant to sub-Clause (v)(A)(y)
above during the UMTS Pre-Approval Period does not,
at any time, exceed the Additional Debt Amount;
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(vii) during the UMTS Prepayment Period:
(A) Subordinated Debt of an Obligor (and any
Subordinated Debt of the Borrower incurred
from the onlending of such Subordinated Debt
of the Obligor) so long as after giving pro
forma effect thereto, the Borrower will be
in compliance with its undertakings
contained in Clause 21 (Financial
Undertakings);
(B) Financial Indebtedness consisting of vendor
financings where the payment terms exceed
180 days, so long as the aggregate amount
outstanding thereunder does not at any time
exceed the Euro Equivalent of
euro75,000,000;
(viii) during the UMTS Exclusion Period;
(A) Subordinated Debt of an Obligor consisting
of Shareholder Loans; and
(B) Subordinated Debt (other than Shareholder
Loans) of an Obligor (and any Subordinated
Debt of the Borrower incurred from the
onlending of such Subordinated Debt of the
Obligor) so long as such Subordinated Debt
is zero-coupon or the payment of interest on
such Subordinated Debt is secured with cash
on deposit in an escrow account and the
period during which such Subordinated Debt
is zero-coupon or the interest thereon is
escrowed extends beyond the Final Repayment
Date and so long as the proceeds thereof are
used for general corporate purposes other
than UMTS Expenditures; and
(ix) Indebtedness under the Supplemental Facility Senior
Finance Documents or refinancings thereof, so long as
the aggregate principal amount outstanding thereunder
does not exceed the Euro Equivalent of
euro100,000,000.
(b) The Borrower may not, and shall procure that none of its
Subsidiaries will, incur or permit to subsist any indebtedness
by the issue of any letters of credit, bank guarantees, bonds
for the performance of bids, tenders or contracts or similar
instruments other than:
(i) letters of credit, bank guarantees, performance bonds
or similar instruments with tenors not exceeding one
year incurred by a member of the Group in the
ordinary course of its business or issued in support
of Financial Indebtedness, the aggregate principal
amount of which does not exceed the Euro Equivalent
of euro15,000,000; or
(ii) letters of credit, bonds or guarantees in connection
with the leasehold interests of the Borrower in
property which is required for the Borrower's
business where the amount of the letters of credit,
bonds or guarantees does not exceed 6 months rent for
the leasehold interest in respect of which the letter
of credit, bond or guarantee is issued.
(c) Notwithstanding the foregoing, any Financial Indebtedness,
letters of credit, bank guarantees, performance bonds or
similar instruments incurred during a period in which it was
permitted under this Agreement to be incurred shall be deemed
to be permitted in any subsequent period if it would not
otherwise have been permitted to be incurred under this
Agreement during such subsequent period.
19.27 Arm's-length Terms
The Borrower will not, and will procure that no other member of the
Group will, incur any liability to or for the benefit of, or enter into
any arrangement with any Restricted Person (other than in relation to
Subordinated Debt) or other person owned in whole or in part, either
directly or indirectly, by a Shareholder or which are on terms no worse
to the Group than on an arm's length basis in the ordinary
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course of business and, in respect of agreements entered into after the
Signing Date, where there have been bona fide negotiations relating to
such terms.
19.28 Compliance with Laws
The Borrower will, and will procure that each of its Subsidiaries will,
comply in all respects with all applicable material laws, rules,
regulations and orders of any governmental authority, having
jurisdiction over it or any of its assets the failure to comply with
which would be reasonably likely to have a Material Adverse Effect.
19.29 Auditors
The Borrower will instruct the Auditors to discuss the Group's and/or
any Group member's financial position with the Agent on request from
the Agent at the expense of the Borrower (following consultation with
the Borrower and not more than once in each annual Accounting Period)
up to an amount in each case, of US$1,500 except that such limit shall
not apply if a Default subsists and has not been waived. The Agent will
inform the Banks of the results of any such discussions.
19.30 The Pledge Law
(a) The Borrower shall procure that the Security Documents
referred to in Schedule D are duly authorised and executed
(unless otherwise specified in Schedule E), and the security
is registered promptly (unless otherwise specified in Schedule
E) with the requisite court to the extent required by the
Pledge Law and all fees are paid in connection with such
registration at the time of or before registration; provided,
however that the Asset Pledge shall be executed by the
Borrower and be held in escrow by the Security Agent until the
date of deregistration of the Polish asset pledge made by the
Borrower in favor of Citibank International plc and Citibank
(Poland) S.A. (the "CITIBANK PLEDGE").
(b) The Borrower shall procure that appropriate application for
the registration of the documents referred to in paragraph (a)
above are lodged promptly after the deregistration of the
Citibank Pledge.
(c) The Borrower shall procure that all pledges of collateral
under the facility agreement dated 17th December, 1997 between
the Borrower, the arrangers named therein, the banks named
therein, Citibank International plc as Facility A Agent and
Security Agent, Citibank (Poland) S.A. as Facility B Agent and
Security Agent and Citibank N.A. as Co-ordinator shall be
deleted from the register of pledges maintained by the Warsaw
court promptly after the initial Utilisation hereunder.
(d) The Borrower shall execute a notarial deed in favour of the
Finance Parties under which it will submit to execution with
respect to the obligation to repay the Advances pursuant to
Art. 777 Sec. 1.5 of the Polish Code of Civil Procedure, and a
notarial deed in favour of the Security Agent with respect to
the obligation to surrender PTC's movables pursuant to Art.
777 Sec. 1.4 of the Polish Code of Civil Procedure no later
than the Business Day immediately following the first
Utilisation.
19.31 Principal Members of the Group
The Borrower will procure that all Principal Members of the Group
become Guarantors and grant security over their assets in accordance
with the terms of this Agreement.
19.32 Security and Bank Accounts
(a) The Borrower will procure that where the Borrower or another
member of the Group creates or acquires a Subsidiary after the
Signing Date:
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(i) the Holding Company of that Subsidiary gives to the
Security Agent security over all of the shares in the
Subsidiary; and
(ii) that Subsidiary, if it constitutes a Principal Member
of the Group, gives a guarantee of all amounts
outstanding under the Senior Finance Documents;
in each case, in such form as the Agent may reasonably require
and any person who provides the security or guarantees
provides the Security Agent with such corporate authorities,
certificates, evidence of registrations and opinions as the
Security Agent may require in each case simultaneously with
the creation or acquisition of the Subsidiary.
(b) The Borrower will, upon the acquisition of any material assets
or property not yet subject to the Security Documents, give
security to the Security Agent, to the extent it is legally
able to, over such assets or property, and will procure that
each Subsidiary that constitutes a Principal Member of the
Group give security to the Security Agent, to the extent it is
legally able to, over all or substantially all of its assets,
in each case on such terms and in such form as the Agent may
reasonably require (subject, however, to any exceptions
contained in the Security Documents in the agreed form on the
Signing Date) and will procure that any person who provides
the security provides the Security Agent with such corporate
authorities, certificates, evidence of registrations and
opinions as the Security Agent may require as soon as
practicable after the acquisition of such assets or property
or after it has become aware that the Subsidiary has become a
Principal Member of the Group, as the case may be.
(c) The Borrower will use all reasonable endeavours to assist the
Finance Parties in any enforcement proceedings in the event
that the security created, if any, over any of the Shares is
enforced.
(d) The Borrower will procure that each member of the Group will
maintain all its bank accounts:
(i) in the case of any account other than the collection
account for subscriber receivables, with a Bank or
any bank or other financial institution in London,
Poland or Amsterdam with (or the Holding Company of
which has) a long-term debt rating of at least (a)
"BBB-" from S&P and "Baa3" from Xxxxx'x in any amount
or (b) "BB" from S&P and "Ba" from Xxxxx'x in such
amounts as agreed between the Agent and the Borrower
from time to time, or
(ii) in the case of the collection account for subscriber
receivables, a Bank or any bank or other financial
institution in Poland, with a long-term debt rating
of at least (a) "BBB -"from S&P and "Baa3" from
Xxxxx'x in any amount or (b) "BB" from S&P and "Ba"
from Xxxxx'x in such amounts as agreed between the
Agent and the Borrower,
and the Agent is reasonably satisfied that there are first
priority Security Interests created by the Security Documents
over such accounts (other than over those accounts subject to
the Bank Account Side Letter) and such bank has agreed to
waive its rights of set off over such account.
19.33 UMTS Licence
(a) The Borrower shall not borrow, and shall not permit any
members of the Group to borrow, more, in the aggregate, than
the Euro Equivalent of the lesser of euro250,000,000 and
66 2/3 per cent. of the UMTS Licence Initial Instalments by
way of Subordinated Debt (other than Shareholder Loans) and
Senior Debt for the purpose of funding UMTS Licence Initial
Instalments. The Borrower shall not make, or permit any member
of the Group to make, any payments (other than those described
in the previous sentence) related to the UMTS Licence Initial
Instalments unless such UMTS Licence Initial Instalments are
funded by the Shareholders pursuant to capital contributions
or Shareholder Loans.
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(b) (i) During the UMTS Pre-Approval Period and (ii) during the
UMTS Exclusion Period, the Borrower shall furnish to the Agent
in sufficient copies for each of the Banks a certificate on
each March 31, June 30, September 30 and December 31 occurring
during the UMTS Pre-approval Period and on the date falling
three months from the date of the first day of the UMTS
Exclusion Period and every three months thereafter, setting
forth all amounts spent on purchasing the UMTS Licence and
UMTS Expenditures of the Group and the equivalent amount in
capital contributions or Shareholder Loans to the Group and
demonstrating compliance with Clause 19.26(a) (Financial
Indebtedness).
19.34 UMTS Expenditure
The Borrower will not, and will procure that no other member of the
Group will, incur any UMTS Expenditure during (a) the UMTS Pre-Approval
Period, other than for an amount of up to the Euro Equivalent of
euro25,000,000 in aggregate and (b) the UMTS Exclusion Period, unless
such UMTS Expenditures are funded through capital contributions or
Shareholder Loans.
20. SYSTEM UNDERTAKINGS
20.1 Network
The Borrower will procure that the Network is designed, constructed,
completed, operated and run in a safe, efficient and business-like
manner in accordance with:
(a) the requirements of each Licence;
(b) requirements relating thereto in any Material Contract;
(c) all applicable Polish laws and regulations; and
(d) reasonable and prudent industry standards applicable in
Poland,
which, in the case of paragraphs (b) and (c) above, are material to the
Network or which, if a member of the Group does not so design,
construct, complete, operate or run, may have a Material Adverse
Effect.
20.2 Material Contracts
(a) Subject to paragraph (b) below, the Borrower will, and will
cause each of its Subsidiaries to, comply with all of its
obligations under the Material Contracts to which it is a
party where failure so to comply is reasonably likely to have
a Material Adverse Effect.
(b) (i) Save in the circumstances identified in paragraph
(ii) below, the Borrower will not, and will not
permit any of its Subsidiaries to, give any consent
under or agree to waive amend or terminate any
Material Contract where to do so in the case of a
waiver or amendment is reasonably likely to have a
Material Adverse Effect.
(ii) For the avoidance of doubt, the provisions of
sub-paragraph (i) above and paragraph (c) below shall
not prohibit the Borrower from terminating, or
permitting any of its Subsidiaries to terminate, any
Material Contract provided that such Material
Contract is replaced by an agreement on substantially
the same or better terms.
(c) The Borrower will, and will cause each of its Subsidiaries to,
maintain and in good faith enforce in a manner it reasonably
considers appropriate its rights under the Material Contracts
and on applicable terms, regulations and authorisations to the
extent necessary in order to ensure:
(i) its compliance with its obligations under the Senior
Finance Documents; and
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(ii) if material to the interests of the Finance Parties
under the Senior Finance Documents, the performance
by the other parties thereto of their obligations
under the Material Contracts.
(d) The Borrower will, and will cause its Subsidiaries to, perform
its obligations under all material leases, permissions,
consents, approvals, licences, easements, rights of way and
any other rights if failing to do so is reasonably likely to
have a Material Adverse Effect.
(e) The Borrower will promptly provide the Agent for distribution
to the Banks at intervals of no more than 3 months' duration,
notice (together with such details as the Agent may reasonably
request) of any interconnection agreements or Licences entered
into by any member of the Group since the date of this
Agreement, or if later, the date on which the Borrower last
provided notice pursuant to this Clause 20.2(e).
(f) If the Agent notifies the Borrower that as a result of the
enforcement of the security created over the Borrower's
business and assets pursuant to the terms of this Agreement
all or substantially all of the business or assets of the
Borrower are to be transferred to another company, the
Borrower will use all reasonable endeavours to ensure that the
Material Contracts and any other rights necessary for the
operation and maintenance of the Network are transferred to
such other company.
20.3 Operations
The Borrower will procure that it has at all times available to it
operating and maintenance personnel trained to operate and maintain the
Network properly and efficiently within all manufacturers' material
guidelines and specifications and to respond to emergency conditions.
20.4 Maintenance and Reinstatement
The Borrower will keep and use all reasonable endeavours to keep or
will procure that the Network and, without limitation, all assets
forming part of the Network are kept in good and efficient operating
condition and that material defects, imperfections and other faults are
promptly remedied and made good and that repairs, renewals,
replacements, additions and improvements thereto required to such end
are promptly made.
20.5 Power to Remedy
(a) In case of default by the Borrower in complying with Clause
20.4 (Maintenance and reinstatement), the Borrower will permit
the Agent or its agents and contractors to enter facilities
relating to the Network and to comply with or object to any
notice served on the Borrower in respect of the Network and to
effect such repairs or insurance or generally do such things
or pay all reasonable and properly incurred costs, charges and
expenses as are reasonably necessary to prevent or remedy any
breach of that Clause or to comply with or object to any
notice.
(b) The Borrower will indemnify and keep the Agent indemnified
against all losses, costs, charges and expenses properly
incurred in connection with the exercise of the powers
contained in this Clause 20.5 unless the same arises as a
result of any gross negligence or wilful misconduct on the
part of the Agent or its officers, employees, directors,
agents or contractors.
21. FINANCIAL UNDERTAKINGS
21.1 Senior Debt to EBITDA
The Borrower will procure that the amount of Senior Debt of the Group
will not at any time during the period from each date (the
"DETERMINATION DATE") which falls two Business Days after the date on
which the Agent receives the Accounts in respect of a quarterly
Accounting Period referred to in the
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table below up to but excluding the next Determination Date exceed the
amount of EBITDA of the Group for the Ratio Period ending on the last
day of each quarterly Accounting Period referred to in the table below
multiplied by the multiplier set opposite such quarterly Accounting
Period in the table below:
ACCOUNTING PERIOD MULTIPLIER
----------------- ----------
Each quarterly Accounting Period ending on or after 4.0
the 31st December, 2000 but before 31st December,
2003
Each quarterly Accounting Period ending on or after 3.5
31st December, 2003 but before 31st December, 2004
Each quarterly Accounting Period ending on or after 3.0
31st December, 2004 and thereafter
21.2 EBITDA to Interest Expense on Senior Debt
The Borrower will procure that the ratio of EBITDA to Interest Expense
on Senior Debt, in each case of the Group on a consolidated basis, for
each Ratio Period ending:
(a) on or after 31st December, 2000 but before 31st December, 2002
will not be less than 2.5:1; and
(b) on or after 31st December, 2002 will not be less than 3.0:1.
21.3 EBITDA to Interest Expense on Total Debt
The Borrower will procure that the ratio of EBITDA to Interest Expense
on Total Debt, in each case of the Group on a consolidated basis, for
each Ratio Period ending:
(a) on or after 31st December, 2000 but before 31st December, 2001
will not be less than 1.50:1; and
(b) on or after 31st December, 2001 but before 31st December, 2002
will not be less than 1.75:1; and
(c) on or after 31st December, 2002 but before 31st December, 2003
will not be less than 2.00:1; and
(d) on or after 31st December, 2003 but on or before 31st
December, 2004 will not be less than 2.25:1; and
(e) on or after 31st December, 2004 will not be less than 2.50:1.
21.4 Calculation
(a) All the terms used in this Clause 21 are to be calculated
substantially in accordance with the Accounting Principles and
where applicable on the basis of information supplied pursuant
to Clause 19.2 (Financial information and Business Plan).
(b) Any amount outstanding in a currency other than Zloty is to be
taken into account at its Zloty Equivalent calculated on the
basis of the National Bank of Poland's fixing rate applicable
on the day the relevant amount falls to be calculated.
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22. DEFAULT
22.1 Events of Default
Each of the events set out in Clause 22.2 (Non-payment) to 22.20
(Material adverse change) is an Event of Default (whether or not caused
by any reason outside the control of the Borrower or of any other
person).
22.2 Non-Payment
The Borrower does not pay on the due date any amount payable by it
under any Senior Finance Document at the place and in the funds
expressed to be payable, except for any such amount which is unpaid due
to technical delays in the transmission of funds which are beyond the
control of the Borrower and which is paid in full within three Business
Days of the due date for payment.
22.3 Breach of Obligations
(a) There is any breach of the provisions of Clauses 19.4
(Notification of Default), 19.8 (Negative Pledge), 19.9
(Transactions similar to security), 19.33 (UMTS Licence),
19.34 (UMTS Expenditure) or 21 (Financial undertakings).
(b) There is any breach of the provisions of Clauses 19.10
(Disposals), 19.11 (Pari passu ranking), 19.16 (Acquisitions
and investments), 19.17 (Restricted distributions), 19.20
(Share capital), 19.24 (Change of business), 19.25 (Mergers),
19.26 (Financial Indebtedness) or 19.30 (The Pledge Law) and
either (i) such breach is unremedied for 14 days after the
earlier of (A) the Borrower becoming aware of such breach and
(B) receipt by the Borrower of written notice from the Agent
requiring the failure to be remedied, or (ii) the Majority
Banks (acting reasonably) notify the Borrower that in their
opinion such breach cannot or is not likely to be remedied
within 14 days from the date of such notice.
(c) Any Obligor or any Shareholder fails to comply with any other
provision of any Senior Finance Document and, if such default
is capable of remedy within such period, within 30 days after
the earlier of the Obligor or Shareholder becoming aware of
such default and receipt by the Obligor or Shareholders and
(if different) the Borrower of written notice from the Agent
requiring the failure to be remedied, that Obligor or
Shareholders fails to cure such default.
22.4 Misrepresentation/Breach of Warranty
Any representation, warranty or statement made or repeated by the
Borrower, any Obligor or any other party to a Senior Finance Document
(other than a Finance Party), in any Senior Finance Document or in any
certificate or statement delivered by or on behalf of any Obligor,
other member of the Group or other party to a Senior Finance Document
(other than a Finance Party), under any Senior Finance Document, is
incorrect in any respect which is material when made or deemed to be
made or repeated by reference to the facts and circumstances then
subsisting.
22.5 Cross-default
(a) Any amount in respect of Financial Indebtedness of a member of
the Group is not paid when due; or
(b) an event of default howsoever described (or any event which
with the giving of notice, lapse of time or any combination of
the foregoing would constitute such an event of default)
occurs under any document relating to Financial Indebtedness
of a member of the Group; or
(c) any Financial Indebtedness of a member of the Group becomes
prematurely due and payable or is placed on demand as a result
of an event of default (howsoever described) under the
document relating to that Financial Indebtedness; or
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(d) any commitment for, or underwriting of, any Financial
Indebtedness of a member of the Group is cancelled or
suspended as a result of an event of default (howsoever
described) under the document relating to that Financial
Indebtedness; or
(e) any Security Interest securing Financial Indebtedness over any
asset of a member of the Group becomes enforceable,
and the aggregate of all such Financial Indebtedness as described in
paragraphs (a) to (e) above of all members of the Group exceeds the
Euro Equivalent of euro10,000,000.
22.6 Invalidity
(a) Any of the Senior Finance Documents ceases to be in full force
and effect or ceases to constitute the legal, valid and
binding obligation of any Obligor or other party to it (other
than a Finance Party) enforceable in accordance with its terms
subject to applicable insolvency and other laws affecting
creditors' rights generally.
(b) Any Security Document fails, after the first Utilisation (or
in the case of those Security Documents listed at subclauses
(i), (ii), (iii) and (iv) of paragraph 25 of Schedule E, after
the date such Security Documents are required to be delivered
to the Security Agent in accordance with the terms of the
Senior Finance Documents (including, without limitation, to
the extent required by the terms of the Senior Finance
Documents, Registered Share Pledges pledging at least 51% of
the Shares in favour of the Security Agent), to provide first
priority security in favour of the Security Agent and/or the
Banks over the assets over which security is intended to be
given by that Security Document other than where (i) such an
event can be remedied, (ii) the Borrower is diligently taking
steps to remedy such event and (iii) such event is remedied in
a manner reasonably acceptable to the Majority Banks within 30
days after notice from the Agent to the Borrower requiring
such event to be remedied.
(c) It shall be unlawful for any Obligor or any other party (other
than a Finance Party) to perform any of its obligations under
any of the Senior Finance Documents which if not performed
would in the reasonable opinion of the Majority Banks be
materially adverse to the Banks.
22.7 Insolvency
(a) A Principal Member of the Group is declared insolvent by a
court of competent jurisdiction, is unable to pay its debts as
they fall due or admits inability to pay its debts as they
fall due; or
(b) a Principal Member of the Group suspends making payments on
all or any class of its debts or announces an intention to do
so, or a moratorium is declared in respect of any of its
indebtedness; or
(c) a Principal Member of the Group, by reason of financial
difficulties, begins negotiations with one or more of its
creditors with a view to the readjustment or rescheduling of
any of its indebtedness.
22.8 Insolvency proceedings
(a) Any formal proposal by a Principal Member of the Group to its
creditors or a petition is made or resolution passed with a
view to a composition, general assignment of all assets of any
Principal Member of the Group or arrangement with any
creditors of any Principal Member of the Group unless the
terms thereof have been previously approved by the Majority
Banks; or
(b) (i) a meeting of any Principal Member of the Group is
convened by at least 10% of its shareholders or its
management board or directors for the purpose of
voting on any resolution for (or to petition for) its
winding-up or for its administration and either (A)
the Majority Banks (acting in good faith) consider
that such meeting is not being
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convened for frivolous or vexatious purposes or (B)
the Borrower is not able to demonstrate to the
reasonable satisfaction of the Majority Banks that
such resolution or petition is unlikely to be passed
or made at such meeting; or
(ii) any such resolution is passed; or
(c) any person presents a petition for the winding-up or for the
administration of any Principal Member of the Group as a
result of a claim for an amount exceeding the Euro Equivalent
of euro10,000,000 and either (i) the Majority Banks consider
(acting reasonably) that such petition is not frivolous or
vexatious or (ii) the same is not being contested in good
faith; or
(d) an order for the winding-up or administration of any Principal
Member of the Group is made; or
(e) any other action is taken with a view to the administration,
custodianship, liquidation, winding-up or dissolution of any
Principal Member of the Group or any other insolvency
proceedings involving any Principal Member of the Group and
either (i) the Majority Banks (acting in good faith) consider
such action is not frivolous or vexatious or (ii) the same is
not being contested in good faith, other than in each case:
(i) in connection with a solvent winding-up of a
Subsidiary of the Borrower, other than the Issuers
the terms of which have been approved by the Majority
Banks; or
(ii) in connection with a solvent winding-up of an Issuer
where arrangements have been made for the Borrower to
assume the obligations under the relevant High Yield
Debt Documents on similar terms (mutatis mutandis) as
at the Signing Date or on such other terms as are
satisfactory to the Majority Banks (acting
reasonably).
22.9 Appointment of Receivers and Managers
(a) Any liquidator, official receiver, judicial custodian,
compulsory manager, receiver, administrative receiver,
administrator or the like is appointed in respect of any
Principal Member of the Group or any part of its assets; or
(b) a resolution of the board of directors of a Principal Member
of the Group is passed for the appointment of a liquidator,
trustee in bankruptcy, judicial custodian, compulsory manager,
receiver, administrative receiver, administrator or the like;
or
(c) any other steps are taken to enforce any Security Interest or
any part of the assets of any Principal Member of the Group in
respect of a sum owed of at least the Euro Equivalent of
euro10,000,000, other than in each case:
(i) in connection with a solvent winding-up of a
Subsidiary of the Borrower other than the Issuers,
the terms of which have been approved by the Majority
Banks; or
(ii) in connection with a solvent winding-up of an Issuer
where arrangements have been made for the Borrower to
assume the obligations under the relevant High Yield
Debt Documents on similar terms (mutatis mutandis) as
at the Signing Date or on such other terms as are
satisfactory to the Majority Banks (acting
reasonably).
22.10 Creditors' Process
Any attachment, sequestration, distress or execution affects any asset
the value of which in aggregate exceeds the Euro Equivalent of
euro10,000,000 of a Principal Member of the Group and is not discharged
within 30 days.
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22.11 Analogous Proceedings
There occurs, in relation to a member of the Group, any event anywhere
which, in the opinion of the Majority Banks, appears to correspond with
any of those mentioned in Clauses 22.7 (Insolvency) to 22.10
(Creditors' process) (inclusive).
22.12 Cessation of Business
Any Principal Member of the Group (other than an Issuer where
arrangements have been made for the Borrower to assume the obligations
under the relevant High Yield Debt Documents on similar terms (mutatis
mutandis) as at the Signing Date or on such other terms as are
satisfactory to the Majority Banks (acting reasonably)) ceases or
threatens to cease to carry on all or a substantial part of its
principal business.
22.13 Rescission of Agreements
Any member of the Group or any Shareholder party to a Senior Finance
Document rescinds any Senior Finance Document in whole or in part.
22.14 Ownership of the Borrower
(a) There is a change of ownership of any of the Shares during the
Restricted Period without the consent of the Majority Banks if
after giving effect to such transfer:
(i) Deutsche Telekom A.G., Deutsche Telekom MobilNet GmbH
and/or T-Mobile International A.G. cease to own,
either directly or indirectly, and legally and
beneficially, at least 25.01% of the Shares; or
(ii) Elektrim S.A. and/or Elektrim Telekomunikacja
Sp. z o.o. cease to own, either directly or
indirectly, and legally and beneficially, at least
25.01% of the Shares.
(b) There is a change of ownership of any of the Shares after the
Restricted Period without the consent of the Majority Banks if
(i) after giving effect to such transfer, Deutsche Telekom
A.G., Deutsche Telekom MobilNet GmbH, T-Mobile International
A.G. and/or another internationally recognised cellular
operator of comparable standing and comparable credit rating
cease to own, either directly or indirectly, and legally and
beneficially, at least 25.01% of the Shares or (ii) any person
or two or more persons acting in concert other than Deutsche
Telekom A.G., Deutsche Telekom MobilNet GmbH, T-Mobile
International A.G., MediaOne International B.V., Elektrim S.A.
and/or Elektrim Telekomunikacja Sp. z o.o., Vivendi S.A. or
any wholly owned Subsidiary of the foregoing shall own, either
directly or indirectly, and legally and beneficially, through
any contract, arrangement, understanding, relationship or
otherwise, (x) voting power which includes the power to vote,
or to direct the voting of, and/or (y) investment power which
includes the power to dispose of or to direct the disposition
of Shares representing 25% or more of the combined voting
power of all voting interests of the Borrower.
(c) Any Shareholder creates, incurs, assumes or suffers to exist
any lien, security interest or other charge or encumbrance of
any kind, or any other type of preferential arrangement on the
Shares to secure any Financial Indebtedness (other than under
the Senior Finance Documents) of any member of the Group.
22.15 Proceedings
(a) There is current or pending any litigation, dispute,
arbitration, administrative, regulatory or other proceedings
or enquiry concerning or involving any Principal Member of the
Group which, if adversely determined, is reasonably likely to
have a Material Adverse Effect.
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(b) Any judgment or order for an amount which is greater than the
Euro Equivalent of euro10,000,000 is made against any
Principal Member of the Group which is material in the context
of the operations of the business of the Principal Member of
the Group, is not subject to an appeal and which is not
satisfied within 20 days of the passing of such judgment or
order.
22.16 High Yield Debt Documents
An Issuer or the Borrower fails to comply with any of the material
provisions of, or its material obligations under, the High Yield Debt
Documents.
22.17 Loss of Licences, Breach of Material Contracts, Shareholders' Agreement
(a) Any Licence is:
(i) terminated, suspended or revoked or does not remain
in full force and effect or otherwise expires and is
not renewed prior to its expiry (in each case,
without replacement by Licence(s) having
substantially equivalent effect) except where the
Borrower is contesting the same in good faith by
appropriate proceedings and is lawfully able to
continue its business and operations; or
(ii) modified in a manner which is reasonably likely to
have a Material Adverse Effect or breached in any
material respect; or
(b) any event occurs which is reasonably likely to give rise to
the revocation, termination or suspension of any Licence
(without replacement) in such circumstance where the Borrower
is unable to demonstrate to the reasonable satisfaction of the
Majority Banks within 30 days of such event occurring that
either (i) such termination, suspension or revocation will not
occur or (ii) if it does occur, it will be contested in good
faith by appropriate proceedings and the Borrower will be
lawfully able to continue its operations while such
termination, suspension or revocation is being contested; or
(c) any other Material Contract, Shareholder Loan or Transaction
Document is varied, breached, cancelled, suspended, withdrawn,
revoked or terminated in a manner or circumstances which would
have a Material Adverse Effect; or
(d) any of the rights of the Shareholders under the Shareholders'
Agreement are reduced or diminished in a manner which could or
would be prejudicial to the Finance Parties or the
Shareholders' Agreement is cancelled, suspended or terminated
(unless replaced by an agreement in substantially the same
terms) or materially amended in a manner that would result in
a Material Adverse Effect; provided, however that, if so
requested by the Borrower, the Majority Banks shall confirm
within 14 days after such request whether such amendment would
result in a Material Adverse Effect.
22.18 Government Action
Any governmental action, including nationalisation, expropriation or
imposition of exchange controls is taken which, in the reasonable
opinion of the Majority Banks, would have a Material Adverse Effect.
22.19 [Intentionally Omitted]
22.20 Material Adverse Change
Any event or series of events occurs which is likely to have a Material
Adverse Effect.
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22.21 Acceleration
On and at any time after the occurrence of an Event of Default the
Agent may, and shall if so directed by the Majority Banks, by notice to
the Borrower do any or all of the following:
(a) cancel all or any part of the Tranche A Total Commitments
and/or the Tranche B Total Commitments; and/or
(b) demand that all or part of the Advances outstanding, together
with accrued interest and any or all other amounts accrued
under the Senior Finance Documents, be immediately due and
payable, whereupon they shall become immediately due and
payable; and/or
(c) demand that all or part of the Advances are repayable on
demand, whereupon they shall immediately become repayable on
demand by the Agent acting on the instructions of the Majority
Banks; and/or
(d) enforce or instruct the Security Agent to enforce all or part
of the security constituted under or pursuant to the Security
Documents or enforce any other right held by it.
23. GUARANTEES
23.1 Guarantee
In consideration of the Finance Parties entering into the Senior
Finance Documents each Guarantor (jointly and severally with the other
Guarantors) irrevocably and unconditionally:
(a) guarantees to each Finance Party as principal obligor the
performance by each other Obligor of all its obligations under
the Senior Finance Documents and the payment when due by each
other Obligor of all sums payable under the Senior Finance
Documents;
(b) undertakes with each Finance Party that if any other Obligor
fails to pay any of the indebtedness referred to in Clause
23.1(a) (Guarantee) on its due date it will pay that sum on
demand; and
(c) indemnifies each Finance Party on demand against all losses,
damages, costs and expenses incurred by such Finance Party
arising as a result of any obligation of any Obligor under the
Senior Finance Documents being or becoming unenforceable,
invalid or illegal.
23.2 Guarantors as Principal Debtors
As between each Guarantor and the Finance Parties but without affecting
the obligations of the Borrower, each Guarantor shall be liable under
Clause 23.1 (Guarantee) as if it were the sole principal debtor and not
merely a surety. Accordingly, its obligations thereunder and any
liability deriving therefrom shall not be discharged or affected by any
circumstance which would so discharge or affect such obligations or
liability of such Guarantor were the sole principal debtor including:
(a) any time, indulgence, waivers or consents given to any Obligor
or any other person;
(b) any amendment, variation or modification to any Senior Finance
Document or any other security or guarantee or any increase in
the amount of the Facilities;
(c) the making or absence of any demand on any Obligor or any
other person for payment or performance of any other
obligations, or the application of any moneys at any time
received from any Obligor or any other person;
(d) the enforcement, perfecting or protecting of or absence of
enforcement, perfecting or protecting of any security,
guarantee or undertaking (including, without limitation, all
or any of the obligations and liabilities of any Obligor);
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(e) the release, taking, giving or abstaining from taking of any
security, guarantee or undertaking (including, without
limitation, the Senior Finance Documents);
(f) the insolvency, winding-up, administration, receivership or
the commencement of any other insolvency procedure under the
laws of any relevant jurisdiction in relation to any Obligor,
any Finance Party or any other person or the making of any
arrangement or composition with or for the benefit of
creditors by any other Obligor, any Finance Party or any other
person;
(g) any amalgamation, merger or change in constitution in relation
to any Obligor, any Finance Party or any other person;
(h) the illegality, invalidity or unenforceability of or any
defect in any provision of any Finance Document or any
security, obligations or liabilities arising or expressed to
arise thereunder;
(i) any Finance Party ceasing or refraining from giving credit or
making loans or advances to or otherwise dealing with any
Obligor or any other person or any other security, guarantee
or undertaking; or
(j) any other circumstance which, but for this provision, might
operate to release or otherwise exonerate the Guarantor from
its obligations hereunder.
23.3 Other Guarantors
It is specifically acknowledged and agreed that the Finance Parties may
from time to time make any arrangement, compromise, waiver or other
dealing with any Obligor in relation to any guarantee or other
obligations under the Senior Finance Documents which such Finance
Parties may think fit and no such arrangement, compromise, waiver or
other dealing shall exonerate or discharge any other Obligor from its
obligations under the Senior Finance Documents.
23.4 Guarantors' Obligations Continuing
Each Obligor's obligations under this Agreement are and will remain in
full force and effect by way of continuing security until no sum
remains to be lent or remains payable under this Agreement.
Furthermore, those obligations are additional to, and not instead of,
any security or other guarantee or indemnity at any time existing in
favour of any person, whether from that Obligor or otherwise and each
Obligor waives any right it may have to require any Finance Party to
enforce any such security, guarantee or indemnity before claiming
against it.
23.5 Exercise of Guarantors' Rights
So long as any sum remains payable or capable of becoming payable under
the Senior Finance Documents:
(a) any right of an Obligor (by reason of performance of any of
its obligations hereunder), to be indemnified by any other
Obligor or to take the benefit of or enforce any security or
other guarantee or to receive any payment from any other
Obligor shall be exercised and enforced by such Obligor and
shall only be exercised and enforced by such Obligor in such
manner and on such terms as the Agent may require; and
(b) any amount received or recovered by such Obligor as a result
of any exercise of any such right shall be held in trust for
the Finance Parties and immediately paid to the Agent.
23.6 Avoidance of Payments
Each Obligor shall on demand indemnify the Agent and each Finance Party
against any funding or other cost, loss, expense or liability sustained
or incurred by it as a result of it being required for any reason to
refund all or part of any amount received or recovered by it from such
Obligor in respect of any sum payable by any Obligor under any Senior
Finance Document.
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23.7 Suspense Accounts
Any amount received or recovered by any Finance Party (otherwise than
as a result of a payment by a Borrower to the Agent) in respect of any
sum due and payable by any Borrower under this Agreement may be placed
in a suspense account and kept there for so long as the recipient
thinks fit. Amounts deposited in any such account shall accrue interest
at the Agent's usual rate for deposits of a similar amount and nature
from time to time and interest accrued shall be credited to such
account.
23.8 Primary Obligations
As a separate and alternative stipulation, each Obligor unconditionally
and irrevocably agrees that any sum expressed to be payable by any
Obligor under this Agreement but which is for any reason (whether or
not now existing and whether or not now known or becoming known to any
party to this Agreement) not recoverable from such Obligor on the basis
of a guarantee shall nevertheless be recoverable from it as if it were
the sole principal debtor and shall be paid by it to the Agent on
demand.
23.9 Further Guarantors
The Borrower will:
(a) procure that any person that becomes Principal Member of the
Group (other than the Borrower) which is not a Guarantor shall
(unless prohibited by law) become a Guarantor by delivering an
Accession Document duly executed by it and by the Borrower to
the Agent within 10 Business Days after such person becomes a
Principal Member of the Group pursuant to the terms of this
Agreement;
(b) procure that any Principal Member of the Group (other than the
Borrower) which enters into an Accession Document shall within
10 Business Days thereafter execute such Security Documents
(in favour of the Security Agent for the benefit of the
Finance Parties) as the Agent shall reasonably require; and
(c) procure that there shall be delivered to the Agent with the
original executed Accession Document and any such Security
Documents such evidence of the due execution of the Accession
Document and such Security Documents as the Agent shall
require together with a legal opinion reasonably satisfactory
to the Agent.
24. INDEMNITIES
24.1 Currency Indemnity
(a) If a Finance Party receives an amount in respect of an
Obligor's liabilities under the Senior Finance Documents or if
that liability is converted into a claim, proof, judgment or
order in a currency other than the currency (the "CONTRACTUAL
CURRENCY") in which the amount is expressed to be payable
under the relevant Senior Finance Document:
(i) such Obligor shall indemnify that Finance Party as an
independent obligation against any loss or liability
arising out of or as a result of the conversion;
(ii) if the amount received by that Finance Party, when
converted into the contractual currency at a market
rate in the usual course of its business is less than
the amount owed in the contractual currency, such
Obligor shall forthwith on demand pay to that Finance
Party an amount in the contractual currency equal to
the deficit; and
(iii) such Obligor shall forthwith on demand pay to the
Finance Party concerned any exchange costs and Taxes
payable in connection with any such conversion.
(b) Each Obligor waives any right it may have in any jurisdiction
to pay any amount under the Senior Finance Documents in a
currency other than that in which it is expressed to be
payable.
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24.2 Other Indemnities
The Borrower shall forthwith on demand indemnify each Finance Party
against any loss or liability which that Finance Party incurs as a
consequence of:
(a) the occurrence of any Default including a breach by a
Shareholder which is not an Obligor of a Senior Finance
Document to which such Shareholder is a party;
(b) the operation of Clause 22.21 (Acceleration);
(c) any payment of principal or an overdue amount being received
from any source otherwise than on the last day of a relevant
Interest Period or Designated Interest Period (as defined in
Clause 10.3 (Default interest)) relative to the amount so
received;
(d) an Advance (or part of an Advance) not being prepaid in
accordance with a notice of prepayment or (other than by
reason of negligence or default by that Finance Party) an
Advance not being made after the Borrower has delivered a
Request;
(e) any act or omission by the Borrower which invalidates the
Insurances (as defined in the Asset Pledge);
(f) the design, manufacture, testing, maintenance, repair,
refurbishment, condition, service, overhaul, modification,
change, loss, damage, removal or storage of any of the
Movables (as defined in the Asset Pledge) or any part thereof;
(g) the transfer, ownership, delivery, non-delivery, import,
export, possession, use, operation, registration,
non-registration, leasing or sub-leasing of any of the
Movables (as defined in the Asset Pledge) or any part thereof;
(h) the retaking of possession of any of the Movables (as defined
in the Asset Pledge) or any part thereof and entering upon any
premises for this purpose (including the exercise of the
Security Agent's powers set forth in Clause 6.4 of the Asset
Pledge); or
(i) the exercise or purported exercise of any rights, powers or
discretions vested in the Security Agent pursuant to the Asset
Pledge, any Ordinary Share Pledge and/or any Registered Share
Pledge.
The Borrower's liability in each case includes any loss or expense on
account of funds borrowed, contracted for or utilised to fund any
amount payable under any Senior Finance Document, any amount repaid or
prepaid or any Advance.
25. AGENT, SECURITY AGENT, LEAD ARRANGERS, ARRANGERS AND BANKS
25.1 Appointment and duties of the Agent and the Security Agent
(a) Subject to Clause 25.15(f) (Resignation of Agent and Security
Agent), each Finance Party (other than the Agent and the
Security Agent, respectively) irrevocably appoints the Agent
to act as its agent and the Security Agent to act as its
security agent under and in connection with the Senior Finance
Documents.
(b) Each Party irrevocably authorises the Agent and the Security
Agent on its behalf to perform the duties and to exercise the
rights, powers and discretions that are specifically delegated
to it under or in connection with the Senior Finance
Documents, together with any other incidental rights, powers
and discretions.
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(c) The Agent and the Security Agent have only those duties which
are expressly specified in this Agreement and in the Security
Documents and Collateral Sharing Intercreditor Agreement,
respectively. Those duties are solely of a mechanical and
administrative nature.
25.2 Role of the Lead Arrangers and Arrangers
Except as specifically provided in this Agreement, neither the Lead
Arrangers nor the Arrangers have any obligations of any kind to any
other Party under or in connection with any Senior Finance Document.
25.3 Relationship
The relationship between the Agent and the Security Agent, on the one
hand, and the other Finance Parties, on the other hand, is that of
agent and principal only. Nothing in this Agreement constitutes the
Agent or the Security Agent as fiduciary for any other Party or any
other person and neither the Agent nor the Security Agent need keep any
moneys paid to it for a Party segregated from its assets or be liable
to account for interest on those moneys.
25.4 Majority Banks' Instructions
(a) Each of the Agent and, subject to the terms of the Collateral
Sharing Intercreditor Agreement, the Security Agent will be
fully protected if it acts in accordance with the instructions
of the Majority Banks in connection with the exercise of any
right, power or discretion or any matter not expressly
provided for in the Senior Finance Documents. Any such
instructions given by the Majority Banks will be binding on
all the Banks. In the absence of such instructions, each of
the Agent and the Security Agent may act as it considers to be
in the best interests of the Banks.
(b) Neither the Agent nor the Security Agent is authorised to act
on behalf of a Bank (without first obtaining that Bank's
consent) in any legal or arbitration proceedings relating to
any Senior Finance Document.
25.5 Delegation
The Agent and the Security Agent may act under the Senior Finance
Documents through their respective personnel and agents.
25.6 Responsibility for Documentation
None of the Agent, the Security Agent, the Lead Arrangers or the
Arrangers are responsible to any other Party for:
(a) the execution, genuineness, validity, enforceability or
sufficiency of any Senior Finance Document or any other
document;
(b) the collectability of amounts payable under any Senior Finance
Document; or
(c) the accuracy of any statements (whether written or oral) made
in or in connection with any Senior Finance Document.
25.7 Default
(a) Neither the Agent nor the Security Agent is obliged to monitor
or enquire as to whether or not a Default has occurred.
Neither the Agent nor the Security Agent will be deemed to
have knowledge of the occurrence of a Default. However, if the
Agent or the Security Agent receives notice from a Party
referring to this Agreement, describing the Default and
stating that the event is a Default, it shall promptly notify
the Banks.
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(b) Each of the Agent or the Security Agent may require the
receipt of security satisfactory to it, whether by way of
payment in advance or otherwise, against any liability or loss
which it will or may incur in taking any proceedings or action
arising out of or in connection with any Senior Finance
Document before it commences those proceedings or takes that
action.
25.8 Exoneration
(a) Without limiting paragraph (b) below, neither the Agent nor
the Security Agent will be liable to any other Party for any
action taken or not taken by it under or in connection with
any Senior Finance Document, unless caused by its gross
negligence or wilful misconduct.
(b) No Party may take any proceedings against any officer,
employee or agent of the Agent or the Security Agent in
respect of any claim it might have against the Agent or the
Security Agent or in respect of any act or omission of any
kind (including gross negligence or wilful misconduct) by that
officer, employee or agent in relation to any Senior Finance
Document.
25.9 Reliance
Each of the Agent and the Security Agent may:
(a) rely on any notice or document believed by it to be genuine
and correct and to have been signed by, or with the authority
of, the proper person;
(b) rely on any statement made by a director or employee of any
person regarding any matters which may reasonably be assumed
to be within his knowledge or within his power to verify; and
(c) engage, pay for and rely on legal or other professional
advisers selected by it (including those in its employment and
those representing a Party other than itself).
25.10 Credit Approval and Appraisal
Without affecting the responsibility of the Borrower for information
supplied by it or on its behalf in connection with any Senior Finance
Document, each Bank confirms that it:
(a) has made its own independent investigation and assessment of
the financial condition and affairs of the Borrower and its
related entities in connection with its participation in this
Agreement and has not relied exclusively on any information
provided to it by the Agent, the Security Agent, any of the
Lead Arrangers or any of the Arrangers in connection with any
Senior Finance Document; and
(b) will continue to make its own independent appraisal of the
creditworthiness of the Borrower and its related entities
while any amount is or may be outstanding under the Senior
Finance Documents or any Commitment is in force.
25.11 Information
(a) The Agent shall promptly forward to the person concerned or
make available for his inspection the original or a copy of
any document which is delivered to the Agent by a Party for
that person.
(b) The Agent shall promptly supply a Bank with a copy of each
document received by the Agent under Clause 4.1 (Conditions
precedent to first Utilisation), upon the request and at the
expense of that Bank.
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(c) Except where this Agreement specifically provides otherwise,
the Agent is not obliged to review or check the accuracy or
completeness of any document it forwards to or makes available
for inspection by another Party.
(d) Except as provided above, neither the Agent nor the Security
Agent has a duty:
(i) either initially or on a continuing basis to provide
any Bank with any credit or other information
concerning the financial condition or affairs of the
Borrower or of its related entities, whether coming
into its possession before, on or after the date of
this Agreement; or
(ii) unless specifically requested to do so by a Bank in
accordance with a Senior Finance Document, to request
any certificates or other documents from the
Borrower.
25.12 The Agent, the Security Agent, the Lead Arrangers and the Arrangers
individually
(a) If it is also a Bank, each of the Agent, the Security Agent,
the Lead Arrangers and the Arrangers has the same rights and
powers under this Agreement as any other Bank and may exercise
those rights and powers as though it were not the Agent, the
Security Agent, the Lead Arrangers or the Arrangers as the
case may be.
(b) Each of the Agent, the Security Agent, the Lead Arrangers and
the Arrangers may:
(i) carry on any business with the Borrower or its
related entities;
(ii) act as agent for, or in relation to any financing
involving, the Borrower or its related entities; and
(iii) retain any profits or remuneration in connection with
its activities under this Agreement or in relation to
any of the foregoing.
(c) In acting as the Agent or the Security Agent, as the case may
be, the agency division of the Agent or the Security Agent, as
the case may be, will be treated as a separate entity from its
other divisions and departments. Any information acquired by
the Agent or the Security Agent, as the case may be, which, in
its opinion, is acquired by it otherwise than in its capacity
as the Agent or the Security Agent may be treated as
confidential by the Agent or the Security Agent and will not
be deemed to be information possessed by the Agent or the
Security Agent in its capacity as such.
(d) The Borrower irrevocably authorises each of the Agent and the
Security Agent to disclose to the other Finance Parties any
information which, in the opinion of the Agent or the Security
Agent, as the case may be, is received by it in its capacity
as Agent or the Security Agent.
25.13 Indemnities
(a) Without limiting the liability of the Borrower under the
Senior Finance Documents, each Bank shall forthwith on demand
indemnify the Agent and the Security Agent for that Bank's
proportion of any liability or loss incurred by the Agent or
the Security Agent, as the case may be, in any way relating to
or arising out of its acting as Agent or Security Agent, as
the case may be, except to the extent that the liability or
loss arises from the gross negligence or wilful misconduct of
the Agent or Security Agent, as the case may be.
(b) A Bank's proportion of the liability set out in paragraph (a)
above at any time will be the proportion which its
participation in the Euro Equivalent of Utilisations bears to
all such Utilisations outstanding on the date of the demand.
However, if there are no Utilisations outstanding on the date
of demand or the Default Date has occurred, then the
proportion will be the proportion which its Commitment bears
to the Total Commitments or, if the Total
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Commitments have then been cancelled, bore to the Total
Commitments immediately before being cancelled.
25.14 Compliance
(a) Each of the Agent and the Security Agent may refrain from
doing anything which might, in its opinion, constitute a
breach of any law or regulation or be otherwise actionable at
the suit of any person, and may do anything which, in its
opinion, is necessary or desirable to comply with any law or
regulation of any jurisdiction.
(b) Without limiting paragraph (a) above, neither the Agent nor
the Security Agent need disclose any information relating to
the Borrower or any of its related entities if the disclosure
might, in the reasonable opinion of the Agent or the Security
Agent, constitute a breach of any law or regulation or any
duty of secrecy or confidentiality or be otherwise actionable
at the suit of any person.
25.15 Resignation of the Agent and the Security Agent
(a) Notwithstanding its irrevocable appointment, the Agent or the
Security Agent may resign by giving notice to the Banks and
the Borrower, in which case the Agent or the Security Agent,
as the case may be, may, with the prior written consent of the
Borrower (such consent not to be unreasonably withheld), and
subject, in the case of the Security Agent, to Clause 25.17
(Security Agent as Administrator) and the Collateral Sharing
Intercreditor Agreement, forthwith appoint one of its
Affiliates as successor Agent or Security Agent or, failing
that, the Majority Banks, subject, in the case of the Security
Agent, to Clause 25.17 (Security Agent as Administrator) and
the Collateral Sharing Intercreditor Agreement, may appoint a
successor Agent or Security Agent with the prior written
consent of the Borrower (such consent not to be unreasonably
withheld or delayed).
(b) If the appointment of a successor Agent or Security Agent is
to be made by the Majority Banks but they have not, within 30
days after notice of resignation, appointed a successor Agent
or Security Agent which accepts the appointment, the Agent or
Security Agent may, subject, in the case of the Security
Agent, to Clause 25.17 (Security Agent as Administrator) and
the Collateral Sharing Intercreditor Agreement, appoint a
successor Agent or Security Agent.
(c) The resignation of an Agent or Security Agent and the
appointment of any successor Agent or Security Agent will both
become effective only upon the successor Agent or Security
Agent notifying all the Parties that it accepts its
appointment. On giving the notification, the successor Agent
or Security Agent will succeed to the position of the Agent or
Security Agent in respect of the relevant Facility and the
term "AGENT" or "SECURITY AGENT" will mean the successor Agent
or Security Agent, as the case may be.
(d) The retiring Agent or Security Agent shall make available to
the successor Agent or Security Agent such documents and
records and provide such assistance as the successor Agent or
Security Agent may reasonably request for the purposes of
performing its functions as the Agent or Security Agent under
the Senior Finance Documents.
(e) Upon its resignation becoming effective, this Clause 25 shall
continue to benefit the retiring Agent or Security Agent in
respect of any action taken or not taken by it under or in
connection with the Senior Finance Documents while it was the
Agent or the Security Agent, and, subject to paragraph (d)
above, it shall have no further obligations under any Senior
Finance Document.
(f) The Majority Banks may, by notice to the Agent or Security
Agent, subject, in the case of the Security Agent, to Clause
25.17 (Security Agent as Administrator) and the Collateral
Sharing Intercreditor Agreement, require it to resign in
accordance with paragraph (a) above. In this
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event, the Agent or the Security Agent shall resign in
accordance with paragraph (a) above but it shall not be
entitled to appoint one of its Affiliates as successor Agent
or Security Agent.
25.16 Banks
(a) The Agent may treat each Bank as a Bank, entitled to payments
under this Agreement and as acting through its Facility
Office(s) unless it has received not less than five Business
Days' prior notice from that Bank to the contrary.
(b) The Agent may at any time, and shall if requested to do so by
the Majority Banks, convene a meeting of the Banks.
25.17 Security Agent as Administrator
(a) Each Finance Party irrevocably authorises the Security Agent
to act as administrator of a registered pledge to secure all
debts of the Obligors hereunder by way of a registered pledge
or other Security Interests established over the Borrower's
assets and the Shareholders' assets and enter into such
intercreditor arrangements as contemplated by the Security
Documents in the Security Agent's name but for the account of
the Finance Parties.
(b) The Security Agent in its capacity as administrator or
otherwise under the Security Documents:
(i) is not liable for any failure, omission or defect in
perfecting or registering the security constituted or
created by any Security Document in the absence of
wilful misconduct or gross negligence on the part of
the Security Agent; and
(ii) may accept without enquiry such title as any Obligor
may have to any asset secured by any Security
Document.
(c) Each Finance Party hereby irrevocably appoints the Security
Agent as its attorney to enter into the Security Documents and
the Collateral Sharing Intercreditor Agreement on its behalf.
(d) Notwithstanding anything to the contrary contained in any
Senior Finance Document, with respect to any Security located
in Luxembourg or subject to a Security Document governed by
Luxembourg law, the Security Agent shall be the Group Security
Agent (as defined in the Collateral Sharing Intercreditor
Agreement).
26. FEES
26.1 Commitment Fee
(a) The Borrower will pay to the Agent in Euro for distribution
among the Tranche A Banks pro rata to the aggregate of their
respective Tranche A Commitments a commitment fee in respect
of Tranche A computed at a rate per annum equal to 50% of the
Applicable Margin in effect from time to time on the daily
undrawn balance of the Tranche A Commitments.
(b) The Borrower will pay to the Agent in Zloty for distribution
among the Tranche B Banks pro rata to the aggregate of their
respective Tranche B Commitments a commitment fee in respect
of Tranche B computed at a rate per annum equal to 50% of the
Applicable Margin in effect from time to time on the daily
undrawn balance of the Tranche B Commitments.
(c) Commitment fees from the Signing Date shall be calculated in
accordance with paragraphs (a) and (b) above and shall be
payable quarterly in arrears.
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26.2 Front-end Fee
The Borrower shall pay to the Agent for the account of the Lead
Arrangers a front-end fee in the amount and on the dates agreed in the
relevant Fee Letter.
26.3 Agency Fees
The Borrower shall pay to the Agent and the Security Agent for their
own account agency fees in the amounts and on the dates agreed in the
relevant Fee Letter.
26.4 VAT and Other Taxes
Any fee referred to in this Clause 26 is exclusive of any value added
tax or any other Tax which might be chargeable in connection with that
fee. If any value added tax or other Tax is so chargeable, it shall be
paid by the Borrower at the same time as it pays the relevant fee or if
no VAT invoice has then been received, then within 7 Business Days of
receiving a relevant VAT invoice.
27. EXPENSES
27.1 Initial and Special Costs
The Borrower shall forthwith on demand pay the Agent, the Security
Agent and each Lead Arranger the amount of all reasonable costs and
expenses (including legal fees) incurred by any of them in connection
with:
(a) the negotiation, preparation, printing and execution of:
(i) this Agreement and any other documents referred to in
this Agreement; and
(ii) any other Senior Finance Document executed after the
date of this Agreement; and
(iii) the syndication of each Tranche;
(b) any amendment, waiver, consent or suspension of rights (or any
proposal for any of the foregoing) requested by or on behalf
of the Borrower and relating to a Senior Finance Document or a
document referred to in any Senior Finance Document.
27.2 Enforcement Costs
The Borrower shall forthwith on demand pay to each Finance Party the
amount of all costs and expenses (including legal fees and costs of
valuations) incurred by it in connection with the enforcement of, or
the preservation of any rights under, any Senior Finance Document.
28. STAMP DUTIES
The Borrower shall pay, and forthwith on demand indemnify each Finance
Party against any liability it incurs in respect of, any stamp,
registration and similar Tax which is or becomes payable in connection
with the entry into, performance or enforcement of any Senior Finance
Document.
29. AMENDMENTS AND WAIVERS
29.1 Procedure
(a) Subject to Clause 29.2 (Exceptions), any term of the Senior
Finance Documents may be amended or waived or any action
consented to with the agreement of the Borrower and the
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Majority Banks. The Agent may effect, on behalf of the Finance
Parties, an amendment, consent or waiver to which they or the
Majority Banks have agreed.
(b) The Agent shall promptly notify the other Parties of any
amendment or waiver effected under paragraph (a) above, and
any such amendment or waiver shall be binding on all the
Parties.
29.2 Exceptions
(a) Any amendment, waiver, variation, modification or consent of,
or action with respect to, any term of the Senior Finance
Documents shall require the consent of the Borrower and each
of the Banks if it relates to:
(i) the definition of "MAJORITY BANKS" in Clause 1.1
(Defined terms);
(ii) an extension of the date for, or a decrease in an
amount or a change in the currency of, any payment to
any Bank under the Senior Finance Documents
(including the Applicable Margin (other than in
accordance with the terms of this Agreement), any fee
payable under Clause 26.1 (Commitment fee) and any
amount payable pursuant to Clause 7 (Repayment));
(iii) an increase in any Bank's Commitment;
(iv) any release of a Security Document or a Guarantor;
(v) a term of a Senior Finance Document which expressly
requires the consent of that Bank;
(vi) Clause 2.2 (Nature of Bank's rights and obligations),
Clause 30.2 (Transfers by Banks), Clause 30.1
(Transfer by an Obligor), Clause 31 (Set-off and
redistribution), Clause 38.1 (Arbitration) or this
Clause 29; or
(vii) the definition of "UMTS APPROVAL BANKS" in Clause 1.1
(Defined Terms).
(b) An amendment or waiver that affects the rights and/or
obligations of the Agent or the Security Agent may not be
effected without the agreement of the Agent or the Security
Agent, as applicable.
(c) Any amendment, waiver, variation, modification or consent of,
or action with respect to, any term of the Senior Finance
Documents shall require the consent of the Borrower and the
Majority Banks, including the EBRD, if it relates to
sub-Clause (b) of the definition of "Additional Costs Rate" in
Clause 1.1, Clause 6.7 (Suspension and Cancellation of the
EBRD's Commitments), Clause 14 (Taxes), 15.1(b)(ii)
(Disruption Events), 15.3(c)(ii) (Negotiation and Substitute
Basis), 31.5(b) (Exceptions) or 38 (Jurisdiction).
29.3 Waivers and remedies cumulative
The rights of each Finance Party under the Senior Finance Documents:
(a) may be exercised as often as necessary;
(b) are cumulative and not exclusive of its rights under the
general law; and
(c) may be waived only in writing and specifically.
Delay in exercising or non-exercise of any such right is not a waiver
of that right.
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29.4 Remedies cumulative
The rights and remedies of each of the Finance Parties in this
Agreement may be exercised as often as necessary and are cumulative and
not exclusive of any rights or remedies provided by law.
30. CHANGES TO PARTIES
30.1 Transfers by an Obligor
No Obligor may assign, transfer, novate or dispose of any of, or any
interest in, its rights and/or obligations under the Senior Finance
Documents.
30.2 Transfers by Banks
(a) A Bank (the "EXISTING BANK") may at any time assign or
transfer any of its rights and/or obligations under this
Agreement and the Collateral Sharing Intercreditor Agreement
to another bank or financial institution (the "NEW Bank")
with, in the case of any bank or financial institution other
than a Bank or an Affiliate of such Existing Bank, the prior
written consent of the Borrower, such consent not to be
unreasonably withheld or delayed; provided that:
(i) such assignment and/or transfer shall be in the
amount of euro5,000,000 and an integral multiple of
euro1,000,000, in the case of an assignment and/or
transfer under Tranche A and in the amount of the
Zloty Equivalent of euro3,000,000 and an integral
multiple of euro500,000, in the case of an assignment
and/or transfer under Tranche B, except in the case
of an assignment or transfer which has the effect of
reducing the participation of the relevant Bank to
zero; and
(ii) if the Borrower fails to respond to a request for
such consent within 10 Business Days after such
request, the Borrower shall be deemed to have given
its consent under this Clause 30.2(a).
(b) A transfer and/or assignment of obligations will be effective
only if the New Bank confirms to the Agent and the Borrower
that it undertakes to be bound by the terms of this Agreement
and the Collateral Sharing Intercreditor Agreement as a Bank
in form and substance satisfactory to the Agent or executes a
Transfer Certificate and serves the attached notice on the
Borrower and the Agent. On the transfer and/or assignment
becoming effective in this manner the Existing Bank shall be
relieved of its obligations under this Agreement and the
Collateral Sharing Intercreditor Agreement to the extent that
they are transferred and/or assigned to the New Bank.
(c) Nothing in this Agreement restricts the ability of a Bank to
sub-contract an obligation if that Bank remains liable under
this Agreement and the Collateral Sharing Intercreditor
Agreement for that obligation.
(d) On each occasion an Existing Bank assigns and/or transfers any
of its Tranche A Commitment and/or its Tranche B Commitment
and/or rights and/or obligations under this Agreement and the
Collateral Sharing Intercreditor Agreement to any bank or
financial institution other than an Affiliate of such Existing
Bank, the New Bank shall, on the date the assignment or
transfer takes effect, pay to the Agent for its own account a
fee of euro1,500, in the case of a transfer and/or assignment
under Tranche B and euro5,000 in the case of a transfer and/or
assignment under Tranche A.
(e) An Existing Bank is not responsible to a New Bank for:
(i) the execution, genuineness, validity, enforceability
or sufficiency of any Senior Finance Document or any
other document;
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(ii) the collectability of amounts payable under any
Senior Finance Document; or
(iii) the accuracy of any statements (whether written or
oral) made in or in connection with any Senior
Finance Document.
(f) Each New Bank confirms to the Existing Bank and the other
Finance Parties that it:
(i) has made its own independent investigation and
assessment of the financial condition and affairs of
the Obligors and their related entities in connection
with its participation in this Agreement and has not
relied exclusively on any information provided to it
by the Existing Bank in connection with any Senior
Finance Document; and
(ii) will continue to make its own independent appraisal
of the creditworthiness of the Obligors and their
related entities while any amount is or may be
outstanding under this Agreement or any Commitment is
in force.
(g) Nothing in any Senior Finance Document obliges an Existing
Bank to:
(i) accept a re-transfer from a New Bank of any of the
Commitment and/or rights and/or obligations assigned,
transferred or novated under this Clause; or
(ii) support any losses incurred by the New Bank by reason
of the non-performance by the Borrower of its
obligations under the Senior Finance Documents or
otherwise.
(h) Any reference in this Agreement to a Bank includes a New Bank
but excludes a Bank if no amount is or may be owed to or by it
under this Agreement and its Commitment has been cancelled or
reduced to nil.
(i) If at any time any Bank assigns or transfers any of its
rights, benefits and obligations hereunder or transfers its
Facility Office and at the time of such assignment or transfer
there arises an obligation on the part of the Borrower under
Clause 14 (Taxes) or Clause 16 (Increased costs)(other than a
payment in respect of the Bank Guarantee Fund) to pay to such
Bank or its assignee or transferee any amount in excess of the
amount the Borrower would have then been obliged to pay but
for such assignment or transfer, then the Borrower shall not
be obliged to pay the amount of such excess.
30.3 Procedure for Transfers
A transfer and/or assignment may be effected if the Existing Bank and
the New Bank deliver to the Agent a duly completed certificate,
substantially in the form of Schedule C (a "TRANSFER CERTIFICATE").
30.4 Reference Banks
If a Reference Bank (or, if a Reference Bank is not a Bank, the Bank of
which it is an Affiliate) ceases to be a Bank, the Agent shall (in
consultation with the Borrower) appoint another Bank or an Affiliate of
a Bank to replace that Reference Bank.
30.5 Register
The Agent shall keep a register of all the Parties and shall supply any
other Party (at that Party's expense) with a copy of the register on
request.
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31. SET-OFF AND REDISTRIBUTION
31.1 Set-off
Each Finance Party may (but shall not be obliged to) set off against
any obligation of any Obligor due and payable by it to or for the
account of such Finance Party under this Agreement and not paid on the
due date or within any applicable grace period any moneys held by such
Finance Party for the account of such Obligor at any office of such
Finance Party anywhere and in any currency, whether or not matured.
Such Finance Party may effect such currency exchanges as are
appropriate to implement the set-off and any usual charges in relation
to such currency exchanges shall be paid by such Obligor. Any Finance
Party which has set off shall give prompt notice of that fact to the
relevant Obligor.
31.2 Application of Payments
(a) If the Agent receives a payment insufficient to discharge all
the amounts then due and payable by the Borrower under the
Senior Finance Documents, the Agent shall, subject, however,
to the terms of the Collateral Sharing Intercreditor
Agreement, apply that payment towards the obligations of the
Borrower under the Senior Finance Documents in the following
order (after converting the payment into the currency
necessary to make payment of the relevant amounts due in the
currencies in which they are due at the Agent's Spot Rate of
Exchange):
(i) FIRST, to the reimbursement of the Security Agent for
all of the amounts advanced by it to preserve,
maintain and protect the Security in the event of a
Default under the Senior Finance Documents;
(ii) SECOND, to the reimbursement of the Security Agent
for all amounts expended by it in obtaining and
disposing of the Security (including, without
limitation, reasonable legal fees, trustees' fees and
other expenses of collection and enforcement of
remedies);
(iii) THIRD, in or towards payment of any unpaid fees,
costs and expenses of the Agent under the Senior
Finance Documents (including, without limitation,
amounts advanced by the Agent on behalf of any other
Finance Party under the Senior Finance Documents) pro
rata between the amounts of such unpaid fees, costs
and expenses;
(iv) FOURTH, in or towards payment pro rata to the
relevant proportions of any accrued interest and fees
due to each Bank but unpaid under the Senior Finance
Documents;
(v) FIFTH, in or towards payment pro rata to the relevant
proportions of any principal due to each Bank but
unpaid under the Senior Finance Documents (including
any amounts due pursuant to a Hedging Document
designated as such pursuant to Clause 19.14(c)
(Treasury Transactions)); and
(vi) SIXTH, in or towards payment pro rata to the relevant
proportions of any other sum due but unpaid under the
Senior Finance Documents.
(b) For the purposes of paragraph (a) above, "THE RELEVANT
PROPORTIONS" means the proportion which the Euro Equivalent of
the amount of each Bank's actual participations in the amounts
that have fallen due in the same class as set out in paragraph
(a) above bears to the Euro Equivalent of the aggregate amount
of all such amounts that have fallen due at that time.
(c) The Agent shall, if so directed by all the Banks, vary the
order set out in sub-paragraphs (a)(ii) to (iv) above and it
shall without any legal commitment use reasonable endeavours
to notify the Borrower of any such variation.
(d) Paragraphs (a), (b) and (c) above will override any
appropriation made by an Obligor or a Shareholder.
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(e) For the purposes of this Clause 31.2 any Euro Equivalent shall
be calculated as at the date 2 Business Days prior to the date
the Agent makes any relevant application. Not earlier than 20
days after the Default Date, all of the Banks may give notice
to the Agent and the Borrower requiring that all amounts
outstanding in Optional Currencies shall be converted into
Euro. If the Banks give such a notice, such amounts
outstanding in Optional Currencies will be converted into Euro
at the Agent's Spot Rate of Exchange on the date that such
notice is received by the Agent and thereafter the Borrower
will repay the amounts outstanding in Optional Currencies to
all Banks in Euro by reference to the amount in Euro as
calculated by the Agent.
31.3 Redistribution and Loss Sharing
(a) If any amount owing by an Obligor to a Bank is discharged by
the proceeds on enforcement of security being allocated to
that Bank in priority to other Banks (pursuant to Polish law
or otherwise) or otherwise by enforcement of security, that
Bank shall pay over that amount to the Group Security Agent
(as defined in the Collateral Sharing Intercreditor Agreement)
in accordance with the terms of the Collateral Sharing
Intercreditor Agreement.
(b) If any amount owing by an Obligor to a Bank (the "RECOVERING
BANK") is discharged by payment, set-off or by any other
manner (other than under the circumstances described in
subclause (a) above) other than (w) through the Agent in
accordance with Clause 13 (Payments), (x) in accordance with
the applicable priority at the relevant time set out in Clause
31.2 (Application of payments) or (y) in accordance with a
guarantee from an affiliate of such Bank (a "RECOVERY"), then:
(i) the recovering Bank shall, within three Business
Days, notify details of the recovery to the Agent;
(ii) that Agent shall determine whether the recovery is in
excess of the amount which the recovering Bank would
have received had the recovery been received by the
Agent and distributed in accordance with Clause 13
(Payments) and the applicable priorities at the
relevant time set out in Clause 31.2 (Application of
payments);
(iii) subject to Clause 31.5 (Exceptions), the recovering
Bank shall, within three Business Days of demand by
the Agent, pay to the Agent an amount (the
"REDISTRIBUTION") equal to the excess in the currency
in which the recovering Bank made the recovery;
(iv) that Agent shall treat the redistribution as if it
were a payment by the Borrower under Clause 13
(Payments) and, after converting the redistribution
into the currencies necessary to make payments of
amounts due to the Banks in the currency in which
they are due at the Agent's Spot Rate of Exchange, it
shall pay the redistribution to the Banks (other than
the recovering Bank) in accordance with Clause 31.2
(Application of payments); and
(v) after payment of the full redistribution, the
recovering Bank will be subrogated to the portion of
the claims paid under paragraph (iv) above and the
Borrower will owe the recovering Bank a debt which is
equal to the redistribution, immediately payable and
of the type originally discharged.
31.4 Reversal of Redistribution
If after the operation of Clause 31.3 (Redistribution and loss
sharing):
(a) a recovering Bank must subsequently return a recovery, or an
amount measured by reference to a recovery, to an Obligor; and
(b) the recovering Bank has paid a redistribution in relation to
that recovery,
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each Bank shall, within three Business Days of demand by the recovering
Bank through the Agent reimburse the recovering Bank all or the
appropriate portion of the redistribution paid to that Bank together
with interest on the amount to be returned to the recovering Bank for
the period whilst it held the redistribution. Thereupon, the
subrogation in Clause 31.3(b)(v) (Redistribution and loss sharing) will
operate in reverse to the extent of the reimbursement.
31.5 Exceptions
(a) A recovering Bank is not obliged to share with any other Bank
under Clause 31.3 (Redistribution and loss sharing) any amount
which the recovering Bank has received or recovered as a
result of taking legal proceedings, if the other Bank had an
opportunity to participate in those legal proceedings but did
not do so or did not take separate legal proceedings.
(b) Clause 31.3 (Redistribution and Loss Sharing) shall not apply
if:
(i) the recovering Bank is the EBRD; and
(ii) the amount received or recovered by the EBRD from the
Obligor was so received or recovered by virtue of the
EBRD's status as an international financial
institution and/or by virtue of it being exempted
from:
(A) any unavailability of foreign exchange in
the Republic of Poland; and/or
(B) any prohibition or restriction imposed on
the payment of amounts outstanding under any
Senior Finance Document by a moratorium or
other debt rescheduling, whether in law or
practice.
32. DISCLOSURE OF INFORMATION
(a) A Bank may disclose to one of its Affiliates or any person
with whom it is proposing to enter, or has entered into, any
kind of transfer, participation or other agreement in relation
to this Agreement:
(i) a copy of any Senior Finance Document; and
(ii) any information which that Bank has acquired under or
in connection with any Senior Finance Document;
so long as in all cases, any recipient thereof has previously
agreed in writing to keep the content of such Senior Finance
Document or such information confidential and not to disclose
it to any other person.
(b) Subject to sub-Clause (a) above, the parties will keep
confidential the Senior Finance Documents and all information
that they acquire under or in connection with the Senior
Finance Documents save that such information may be disclosed:
(i) if so required by law or regulation or if requested
by any regulator with jurisdiction over any Finance
Party or any affiliate of any Finance Party;
(ii) if it comes into the public domain (other than as a
result of a breach of this Clause 32);
(iii) to auditors, professional advisers or rating
agencies; or
(iv) in connection with any legal proceedings.
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The provisions of this Clause 32 shall supersede any undertakings with
respect to confidentiality previously given by any Finance Party in
favour of any Obligor.
33. SEVERABILITY
If a provision of any Senior Finance Document is or becomes illegal,
invalid or unenforceable in any jurisdiction, that shall not affect:
(a) the validity or enforceability in that jurisdiction of any
other provision of the Senior Finance Documents; or
(b) the validity or enforceability in other jurisdictions of that
or any other provision of the Senior Finance Documents.
34. COUNTERPARTS
Each Senior Finance Document may be executed in any number of
counterparts, and this has the same effect as if the signatures on the
counterparts were on a single copy of the Senior Finance Document.
35. NOTICES
35.1 Communications in Writing
Any communication to be made under or in connection with the Senior
Finance Documents shall be made in writing and, unless otherwise
stated, may be made by fax or letter or (to the extent that the
relevant party has specified such address pursuant to Clause 35.2
(Addresses)) by e-mail.
35.2 Addresses
(a) The address and fax number, and (if so specified) e-mail
address, and, where appropriate, web site (and the department
or officer, if any, for whose attention the communication is
to be made) of each party for any communication or document to
be made or delivered under or in connection with the Senior
Finance Documents is:
(i) in the case of the Borrower, that identified with its
name below;
(ii) in the case of each Bank or any other Obligor, that
notified in writing to the Agent on or prior to the
date on which it becomes a party; and
(iii) in the case of the Agent or the Security Agent, that
identified with its name below,
or any substitute address, fax number, e-mail address, web
site or department or officer, or initial e-mail address as
the party may notify to the Agent (or the Agent may notify to
the other parties, if a change is made by the Agent) by not
less than five Business Days' written notice.
(b) The address, e-mail address and facsimile number of the
Borrower are:
Al. Xxxxxxxxxxxxx 000
00-000 Xxxxxx 0
Xxxxxx
Tel: x00 00 000 0000
Facsimile: x00 00 000 0000
Email: xxxxxxxxxxx@xxxxxx.xxx.xx
xxxxxxxx@xxxxxx.xxx.xx
Attn: Finance Director/Group Treasurer
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or such other as the Borrower may notify to the Agent by not
less than five Business Days' notice.
(c) The address, e-mail address and facsimile number of the Agent
are:
Deutsche Bank Luxembourg S.A.
0, Xxxxxxxxx Xxxxxx Xxxxxxxx
X-0000 Xxxxxxxxxx
Tel: x000 00000 000/294
Facsimile: x000 00000 000
Email: xxxxxx.xxxxx@xx.xxx
Attn: International Loans & Agency Services,
Project Finance
or such other as the Agent may notify to the other Parties by
not less than five Business Days' notice.
(d) the address, email address and facsimile number of the
Security Agent are:
Deutsche Bank Polska S.A.
Plac Xxxxxxxxxx 12/14/16
00-000 Xxxxxxxx
Xxxxxx
Tel: x00 00 0000000
Facsimile: x00 00 0000000
Email: xxx.xxxxxxxxxxx@xx.xxx
Attn: Xxx Xxxxxxxxxxx (Collateral Unit)
or such other as the Security Agent may notify to the other
Parties by not less than five Business Days' notice.
35.3 Delivery
(a) Any communication or document made or delivered by one person
to another under or in connection with the Senior Finance
Documents will only be effective:
(i) if by way of fax or e-mail, when received in legible
form; or
(ii) if by way of letter, when it has been left at the
relevant address or five Business Days after being
deposited in the post postage prepaid in an envelope
addressed to it at that address; or
(iii) where reference in such communication is to a web
site, when the delivery of the letter, fax or, as the
case may be e-mail referring the addressee to such
web site is effective;
and, if a particular department or officer is specified as
part of its address details provided under Clause 35.2
(Addresses), if addressed to that department or officer.
(b) Any communication or document to be made or delivered to an
Agent will be effective only when actually received by such
Agent and then only if it is expressly marked for the
attention of the department or officer identified with such
Agent's signature below (or any substitute department or
officer such Agent shall specify for this purpose).
(c) All notices from or to an Obligor shall be sent through the
Agent.
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(d) Any communication or document made or delivered to any Obligor
in accordance with this Clause will be deemed to have been
made or delivered to each of the Obligors.
35.4 Notification of address, fax number and e-mail address
Promptly upon receipt of notification of an address, fax number or (as
the case may be) e-mail or change of address, fax number or e-mail
pursuant to Clause 35.2 (Addresses) or changing its own address, fax
number or e-mail, the Agent shall notify the other parties.
36. EVIDENCE AND CALCULATIONS
36.1 Accounts
Accounts maintained by a Finance Party in connection with this
Agreement are prima facie evidence of the matters to which they relate.
36.2 Certificates and Determinations
Any certification or determination by a Finance Party of a rate or
amount under the Senior Finance Documents is, in the absence of
manifest error, prima facie evidence of the matters to which it
relates.
36.3 Calculations
Interest and the fees payable under Clause 26.1 (Commitment Fee) (in
relation to Tranche A), accrue from day to day and are calculated on
the basis of the actual number of days elapsed and a year of 360 days,
or in the case of fees payable under Clause 26.1 (Commitment Fee) (in
relation to Tranche B) and interest payments under Tranche B, 365 days.
37. LANGUAGE
(a) Any notice given under or in connection with any Senior
Finance Document shall be in English.
(b) All other documents provided under or in connection with any
Senior Finance Document shall be:
(i) in English; or
(ii) if not in English, accompanied by a certified English
translation and, in this case, the English
translation shall prevail unless the document is a
statutory or other official document.
(c) Counterparts of this Agreement shall be executed in both the
English and the Polish languages. In the event of any
inconsistency between the English text and the Polish text,
the English text shall prevail.
38. JURISDICTION
38.1 Arbitration
Subject to Clauses 38.2 (Submission) and 38.5 (Non-exclusivity), any
dispute, controversy or claim arising out of or in connection with any
Senior Finance Document, including any question regarding the
existence, validity, interpretation, breach or termination of a Senior
Finance Document (a "DISPUTE") shall be finally resolved in accordance
with the UNCITRAL Arbitration Rules as at present in force. The
arbitral tribunal shall consist of a sole arbitrator (the "TRIBUNAL").
The appointing authority shall be the London Court of International
Arbitration. The place of arbitration shall be London, England
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and the language shall be English. Any award of the sole arbitrator
shall be binding from the day it is made and the parties hereby waive
any rights to refer any question of law and any right of appeal on the
law and/or merits to any court. The Tribunal shall not be authorised to
take or provide, and the parties hereto other than the EBRD shall not
be authorised to seek from any judicial authority, any interim measures
of protection or pre-award relief against the EBRD, any provisions of
the UNCITRAL Arbitration Rules notwithstanding. The Tribunal shall have
authority to consider and include in any proceeding, decision or award
any further dispute properly brought before it by the EBRD (but no
other party) insofar as such dispute arises out of any Senior Finance
Document, but, subject to the foregoing, no other parties or other
disputes shall be included in, or consolidated with, the arbitral
proceedings. In any arbitral proceeding, the certificate of a Finance
Party as to any amount due to such Finance Party under any Senior
Finance Document shall be prima facie evidence of such amount.
38.2 Submission
For the benefit of each Finance Party only, the Obligors agree that
notwithstanding Clauses 38.1 (Arbitration) and 38.5 (Non-exclusivity),
a Finance Party may, subject to Clause 38.6 (EBRD Consent), before
taking a substantive step in any arbitration proceedings, refer a
Dispute to the courts of England and each party to the Senior Finance
Documents hereby submits to the jurisdiction of such courts. However,
such submission to the jurisdiction of the English courts will only be
effective, insofar as EBRD is concerned, if EBRD's consent, pursuant to
Clause 38.6 (EBRD Consent), is obtained prior to the commencement of
any such action.
38.3 Service of Process
Without prejudice to any other mode of service, the Borrower:
(a) irrevocably appoints Xxxxxxxx Chance Secretaries Limited as
its agent for service of process in relation to any
proceedings before the English courts in connection with any
Senior Finance Document; and
(b) agrees that failure by a process agent to notify the Borrower
of the process will not invalidate the proceedings concerned;
and
(c) consents to the service of process relating to any such
proceedings by prepaid posting of a copy of the process to its
address for the time being applying under Clause 35.2
(Addresses for notices).
38.4 Forum Conveniens and Enforcement Abroad
The Borrower:
(a) waives objection to the English courts on grounds of
inconvenient forum or otherwise as regards proceedings in
connection with a Senior Finance Document; and
(b) agrees that a judgment or order of an English court in
connection with a Senior Finance Document is conclusive and
binding on it and may be enforced against it in the courts of
any other jurisdiction.
38.5 Non-exclusivity
This Clause is for the benefit of each Finance Party only. Nothing in
this Clause 38 limits the right of a Finance Party to resolve a Dispute
by bringing proceedings against an Obligor:
(a) in any other court of competent jurisdiction; or
(b) concurrently in more than one jurisdiction to the extent
allowed by law.
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38.6 EBRD Consent
Notwithstanding Clauses 38.2 (Submission) and 38.5 (Non-exclusivity),
no Dispute may be referred to the courts of England or the courts of
any other jurisdiction by any party to the Senior Finance Documents on
behalf of or involving or including EBRD without the prior written
consent of EBRD.
38.7 Non-waiver
Nothing in this Agreement shall be construed as a waiver, renunciation
or other modification of any immunities, privileges or exemptions of
the EBRD accorded under the Agreement Establishing the European Bank
for Reconstruction and Development, international convention or any
applicable law.
39. WAIVER OF IMMUNITY
The Borrower irrevocably and unconditionally:
(a) agrees that if a Finance Party brings proceedings in any
jurisdiction against it or its assets in relation to a Senior
Finance Document, no immunity from those proceedings
(including, without limitation, suit, attachment prior to
judgment, other attachment, the obtaining of judgment,
execution or other enforcement) will be claimed by or on
behalf of itself or with respect to its assets;
(b) waives any such right of immunity which it or its assets now
has or may subsequently acquire to the fullest extent
permitted by the laws of such jurisdiction; and
(c) consents generally in respect of any such proceedings to the
giving of any relief or the issue of any process in connection
with those proceedings, including, without limitation, the
making, enforcement or execution against any assets whatsoever
(irrespective of its use or intended use) of any order or
judgment which may be made or given in those proceedings.
In furtherance of the foregoing the Borrower represents and warrants
that this Agreement and the incurring by the Borrower of the Tranches
are commercial rather than public or governmental acts and that the
Borrower is not entitled to claim immunity from legal proceedings with
respect to itself or any of its assets on the grounds of sovereignty or
otherwise under any law or in any jurisdiction where an action may be
brought for the enforcement of any of the obligations arising under or
relating to this Agreement. To the extent that the Borrower or any of
its assets has or hereafter may acquire any right to immunity from
set-off, legal proceedings, attachment prior to judgment, other
attachment or execution of judgment on the grounds of sovereignty or
otherwise, the Borrower hereby irrevocably waives such rights to
immunity in respect of its obligations arising under or relating to
this Agreement.
40. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
English law.
41. THIRD PARTIES
A person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) Xxx 0000 to enforce or to enjoy the
benefit of any terms of this Agreement.
IN WITNESS WHEREOF the parties to this Agreement have caused this Agreement to
be duly executed on the date first written above.
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SCHEDULE A
BANKS
TRANCHE A TRANCHE B ZLOTY
COMMITMENT COMMITMENT LIMIT
BANK euro euro PLN
---- ----------------- --------------- ---------------
TRANCHE A BANKS
Bank fur Arbeit und Wirtschaft
Aktiengesellschaft E10,000,000.00
Bayerische Landesbank Girozentrale 37,500,000.00
BRE Bank S.A. 16,000,000.00
Deutsche Bank Luxembourg S.A. 41,999,999.98
Dresdner Bank Luxembourg S.A. 51,999,999.98
Industriebank von Japan (Deutschland)
Aktiengesellschaft 16,666,666.68
Kreditanstalt fur Wiederaufbau 70,000,000.00
Mizuho Bank Nederland NV 33,333,333.36
Westdeutsche Landesbank Girozentrale,
London Branch 15,000,000.00
Total Tranche A Commitments: E292,500,000.00
TRANCHE B BANKS
Bankael Xxxxxx Spolka Akcyjna E12,500,000.00 PLN48,505,000.00
Bank Zachodni, S.A. 18,333,333.00 71,140,665.00
Bayerische Landesbank Girozentrale 12,500,000.00 48,505,000.00
BIG Bank XXXXXXX X.X. 25,000,000.00 97,010,000.00
Citibank (Poland) S.A. 25,000,000.00 97,010,000.00
Deutsche Bank Polska S.A. 10,000,000.00 38,804,000.00
European Bank for Reconstruction and
Development 75,000,000.00 291,030,000.00
ING Bank N.V., Warsaw Branch 12,500,000.00 48,505,000.00
Kredyt Bank S.A. 10,000,000.00 38,804,000.00
LG PetroBank S.A. 5,000,000.00 19,402,000.00
Powszechny Bank Kredytowy S.A. w Warszawie 20,000,000.00 77,608,000.00
Wielkopolski Bank Kredytowy S.A. 31,666,667.00 122,879,335.00
Total Tranche B Commitments: E257,500,000.00 PLN999,203,000.00
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SCHEDULE B
GUARANTORS
PTC International Finance B.V.
PTC International Finance (Holding) B.V.
PTC International Finance II S.A.
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SCHEDULE C
FORM OF TRANSFER CERTIFICATE
DATED [ ]
BETWEEN
(1) [ ] (the "TRANSFEROR") of [ ]; and
(2) [ ] (the "TRANSFEREE") of [ ].
POLSKA TELEFONIA CYFROWA SP. Z O.O.
euro550,000,000 CREDIT AGREEMENT DATED -20 FEBRUARY, 2001
NOW IT IS HEREBY AGREED as follows:
1. DEFINITIONS AND INTERPRETATIONS
1.1 Definitions
"CREDIT AGREEMENT" means the facility agreement dated 20 February, 2001
between Polska Telefonia Cyfrowa Sp. z o.o., the Guarantors as defined
therein, the Arrangers as defined therein, the Banks as defined
therein, Deutsche Bank AG London, Deutsche Bank Polska S.A., Dresdner
Bank Luxembourg, S.A. and The European Bank for Reconstruction and
Development as Lead Arrangers, Deutsche Bank Luxembourg, S.A., as
Agent, and Deutsche Bank Polska S.A., as Security Agent.
"EFFECTIVE DATE" means [ ].
"TRANSFERRED ADVANCES" means a principal amount of the following
Utilisations:
[describe Advances, amount, Interest Periods, Tranche etc].
"TRANSFERRED COMMITMENT" means [so far as concerns Tranche A euro[ ]]
and so far as concerns Tranche B, euro[ ]].
[TRANSFERRED ZLOTY LIMIT" means [ ].]
1.2 Interpretation
In this Transfer Certificate terms defined in the Credit Agreement
shall, unless otherwise defined herein or the context otherwise
requires, have the same meaning.
2. ASSIGNMENT AND TRANSFER
With effect on and from the Effective Date:
(a) the Transferor hereby assigns and transfers to the Transferee
its rights to and obligations in relation to the Transferred
Advances, [and] the Transferred Commitments [and the
Transferred Zloty Limit]1 under the Credit Agreement together
with its obligations in relation to the Transferred
Commitments and all rights and benefits under the Senior
Finance Documents relevant thereto; and
1 N.B. -- Use only for Tranche B during Availability Period
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(b) the Transferee will become a party to the Collateral Sharing
Intercreditor Agreement as a Main Bank Finance Party.
3. NOTICE OF TRANSFER
The parties hereto agree that a notice of transfer in the form of the
Annexure shall, following execution of this Agreement, be sent to the
Borrower and the Agent.
4. APPLICABLE LAW
This Transfer Certificate shall be governed by and construed with
English law.
5. TRANSFEREE REPRESENTATIONS
The Transferee hereby:
(a) represents to the Agent that on the Effective Date, in
relation to the Tranches, it is either:
(i) not resident in the United Kingdom for United Kingdom
tax purposes; or
(ii) a bank as defined in section 840A of the Income and
Corporation Taxes Act 1988 and resident in the United
Kingdom; and
beneficially entitled to the principal and interest payable by
the Agent to it under this Agreement and, if it is able to
make those representations on the Effective Date, shall
forthwith notify the Agent if either representation ceases to
be correct;
(b) confirms that it has received from the Transferor a copy of
the Credit Agreement together with such other documents and
information as it has requested in connection with this
Transfer Certificate;
(c) without affecting the responsibility of any Obligor for
information supplied by it or on its behalf in connection with
any Senior Finance Document, the Transferee confirms that it:
(i) has made its own independent investigation and
assessment of the financial condition and affairs of
the Obligors and their related entities in connection
with its participation in the Credit Agreement and
has not relied exclusively on any information
provided to it by the Agent, the Security Agent, any
Lead Arranger or any Arranger in connection with any
Senior Finance Document; and
(ii) will continue to make its own independent appraisal
of the creditworthiness of the Obligors and their
related entities while any amount is or may be
outstanding under the Senior Finance Documents or any
Commitment is in force; and
(d) represents and warrants to the Transferor and all other
parties to the Credit Agreement that it has the power to
become a party to the Credit Agreement and the Collateral
Sharing Intercreditor Agreement as a "Bank" and a "Main Bank
Finance Party", respectively, on the terms herein and therein
set out and has taken all necessary steps to authorise
execution and delivery of this Transfer Certificate.
6. TRANSFEREE COVENANTS
The Transferee hereby undertakes with the Transferor and all other
parties to the Credit Agreement that:
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(a) it will perform in accordance with its terms all
those obligations which, by the terms of the Credit
Agreement, will be assumed by it following delivery
of this Transfer Certificate to the Agent; and
(b) it will comply with its obligations under the
Collateral Sharing Intercreditor Agreement as a Main
Bank Finance Party.
7. EXCLUSION OF TRANSFEROR'S LIABILITIES
Neither the Transferor nor any other Finance Party makes any
representation or warranty or assumes any responsibility with respect
to:
(a) the execution, genuineness, validity, enforceability or
sufficiency of any Senior Finance Document or any other
document;
(b) the collectability of amounts payable under any Senior Finance
Document; or
(c) the accuracy of any statements (whether written or oral) made
in or in connection with any Senior Finance Document.
8. NOVATION
Upon receipt of this Transfer Certificate by the Agent the Transferee
will become a party to the Credit Agreement and the Collateral Sharing
Intercreditor Agreement, on and with effect from the Effective Date in
substitution for the Transferor with respect to those rights and
obligations which by the terms of the Credit Agreement, the Collateral
Sharing Intercreditor Agreement and this Transfer Certificate are
assumed by the Transferee and the Transferor is accordingly released
from all such obligations.
IN WITNESS whereof the parties hereto have entered into this Transfer
Certificate on the date stated at the head of this Transfer Certificate.
TRANSFEROR
[ ]
By:
TRANSFEREE
[ ]
By:
*[BORROWER
POLSKA TELEFONIA CYFROWA SP. Z O.O.
By:]
--------------
* Required in the event of a transfer to Transferee that is not a Bank or
an Affiliate of the Transferor; provided, however, that the Borrower's
consent shall not be required if the Borrower fails to respond to a
request for its consent within 10 Business Days after the date of this
Transfer Certificate, the Borrower shall be deemed to have given its
consent.
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[Without prejudice to the foregoing execution of this Transfer Certificate by
the parties hereto, [Name of Transferee] hereby expressly and specifically
confirms its agreement with the granting of jurisdiction to English courts
provided for in the Credit Agreement, the Collateral Sharing Intercreditor
Agreement and in any other Senior Finance Documents, for the purpose of Article
1 of the Protocol annexed to the Convention on the Jurisdiction and the
Enforcement of Judgments in Civil and Commercial Matters signed at Brussels on
27 September, 1968, as amended.
For [Name of Transferee]
By:________________________
Name:
Title:]**
--------------------------
** Required in the event of a transfer to Transferee that is incorporated
in Luxembourg.
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ANNEXURE
NOTICE OF TRANSFER TO BORROWER AND AGENT
To: POLSKA TELEFONIA CYFROWA SP. Z O.O. (the "BORROWER")
DEUTSCHE BANK LUXEMBOURG, S.A.
DEUTSCHE BANK POLSKA S.A.
[ ] (the "TRANSFEROR") and [ ] (the "TRANSFEREE") hereby give notice that
pursuant to the terms of a transfer certificate dated [ ], (the "TRANSFER
CERTIFICATE") a copy of which is enclosed, made between the Transferor and the
Transferee relating to a facility agreement dated 20 February, 2001 (the "CREDIT
AGREEMENT") between the Borrower, Deutsche Bank AG London Branch, Deutsche Bank
Polska S.A., Dresdner Bank Luxembourg, S.A. and The European Bank for
Reconstruction and Development as Lead Arrangers, the Arrangers named therein,
the Banks named therein, Deutsche Bank Luxembourg, S.A. as Agent, and Deutsche
Bank Polska S.A., as Security Agent, the Transferor has, with effect from [ ]
(the "EFFECTIVE DATE") effected the transfer stated in the Transfer Certificate.
The Transferee agrees, with effect from the Effective Date, to be bound by the
terms and conditions of the Senior Finance Documents as if it had been an
original party to the Credit Agreement as a Bank with a participation in the
Utilisations equal to the Transferred Advances, [and] with the Transferred
Commitments [and with the Zloty Limit2] stated in the Transfer Certificate.
Dated [ ]
By:
By:
---------------------------
2 N.B. -- Use only for Tranche B during Availability Period
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SCHEDULE D
SECURITY DOCUMENTS
1. The Asset Pledge.
2. Registration of security over Intellectual Property Rights of the
Borrower at the Patent Office in Poland.
3. Pledge agreements in respect of the receivables of each of the Issuers
and PTC International Finance (Holding) B.V. in the agreed form signed
by relevant Issuer and PTC International Finance (Holding) B.V. in
favour of Deutsche Bank Polska S.A. as Security Agent:
(a) Deed of Pledge of Accounts Receivable of PTC International
Finance (Holding) B.V. and PTC International Finance B.V.; and
(b) Deed of Pledge of Accounts Receivable of PTC International
Finance II S.A.
4. Subordination Agreements in the agreed form:
(a) signed by the Borrower and PTC International Finance (Holding)
B.V. in favour of Deutsche Bank Polska S.A. as Security Agent;
(b) signed by PTC International Finance (Holding) B.V. and PTC
International Finance II S.A. in favour of Deutsche Bank
Polska S.A. as Security Agent; and
(c) signed by PTC International Finance B.V. and the Borrower in
favour of Deutsche Bank Polska S.A. as Security Agent.
5. Pledge over the shares of each Issuer and PTC International Finance
(Holding) B.V. in the agreed form executed by the Borrower in favour of
Deutsche Bank Polska S.A. as Security Agent:
(a) Share Pledge Agreement over the shares of PTC International
Finance B.V. and PTC International Finance (Holding) B.V. from
the Borrower in favour of Deutsche Bank Polska S.A. and
(b) Share Pledge Agreement over the shares of PTC International
Finance II S.A. from PTC International Finance (Holding) B.V.
in favour of Deutsche Bank Polska S.A.
6. A Pledge over cash in the agreed form in respect of the moneys held on
bank accounts established after the date hereof in favour of Deutsche
Bank Polska S.A. as Security Agent.
7. Mortgages over any real property having a fair market value in excess
of euro3,000,000 as determined by an independent market consultant
approved by the Agent owned by the Borrower or any of its Subsidiaries
in the agreed form.
8. Ordinary Share Pledges.
9. Registered Share Pledges.
10. The Bank Account Side Letter.
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SCHEDULE E
DOCUMENTARY CONDITIONS PRECEDENT
THE BORROWER
1. Documents, dated no earlier than 30 days prior to the date of this
Agreement, necessary for demonstrating the capability and authorisation
of the Borrower to execute and perform this Agreement including:
(a) notarised copy of the Borrower's Limited Liability Company
Agreement;
(b) an original or notarised copy of the Borrower's extract from
the commercial register not older than one month; and
(c) originals or notarised copies of all other documents
demonstrating changes in any circumstances attested to by the
documents referred to in this paragraph if such circumstances
have any influence on the capability or authorisation of the
Borrower to execute or perform the Senior Finance Documents.
2. (a) A copy of a resolution of the management board of the Borrower
approving the terms of, and the transactions contemplated by,
the Senior Finance Documents.
(b) A copy of a resolution of the supervisory board of the
Borrower approving the terms of, and the transactions
contemplated by, the Senior Finance Documents.
(c) A copy of a resolution of the management board of the Borrower
to the effect that they have in good faith determined that any
encumbrance or restriction contained in the Subordination
Agreement dated as of 23rd November 1999 between PTC
International Finance (Holding) B.V. and PTC International
Finance II, S.A., as amended and re-executed as of the date
hereof, are no less favourable in any material respect, taken
as a whole, to the holders of each of: (i) the $253,203,000
10-3/4% senior subordinated guaranteed discount notes due 2007
issued by PTC International Finance B.V., (ii) the
$150,000,000 11-1/4% senior subordinated guaranteed notes due
2009 issued by PTC International Finance II S.A. and (iii) the
EURO 300,000,000 11-1/4% senior subordinated guaranteed notes
due 2009 issued by PTC International Finance II S.A. than
those encumbrances and restrictions contained in such
Subordination Agreement prior to such amendment and
re-execution, as required by Section 4.11(a)(v) of each of the
indentures referred to in clauses (a) and (f) of the High
Yield Debt Documents.
3. A specimen of the signature of each person authorised to sign the
Senior Finance Documents on behalf of the Borrower and to sign and/or
despatch all documents and notices to be signed and/or despatched by
the Borrower under or in connection with the Senior Finance Documents.
4. (a) A certificate of a member of the management board of the
Borrower certifying that the incurrence of Utilisations will
be permitted in accordance with Sections 4.09 and 4.16 of each
of the indentures dated 23rd November, 1999 between PTC
International Finance II S.A., PTC International Finance
(Holding) B.V., the Borrower and State Street Bank and Trust
Company, as trustee (the "1999 INDENTURES") and the indenture
dated 1st July, 1997 between PTC International Finance B.V.,
the Borrower, and The Bank of New York as trustee (the "1997
INDENTURE").
(b) A certificate of an authorised signatory of the Borrower
certifying:
(i) that each of PTC International Finance B.V., PTC
International Finance II S.A. and PTC International
Finance (Holding) B.V. is a "Restricted Subsidiary"
as defined in each of the 1999 Indentures and the
0000 Xxxxxxxxx; and
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(ii) that each copy document delivered under paragraphs 1,
2 and 3 above is correct, complete and in full force
and effect as at a date no earlier than the date of
this Agreement.
PTC INTERNATIONAL FINANCE B.V.
5. A copy of the constitutional documents of PTC International Finance
B.V.
6. A copy of a resolution of the board of directors of PTC International
Finance B.V. approving the terms of, and the transactions contemplated
by, the Senior Finance Documents to which it is a party.
7. A specimen of the signature of each person authorised to sign the
documents referred to in paragraph 6 above on behalf of PTC
International Finance B.V. and to sign and/or despatch all documents
and notices to be signed and/or despatched by PTC International Finance
B.V. under or in connection with those documents.
8. A certificate of an authorised signatory of PTC International B.V.
certifying that each copy document delivered under paragraphs 5, 6 and
7 above is correct, complete and in full force and effect as at a date
no earlier than the date of this Agreement.
PTC INTERNATIONAL FINANCE II S.A.
9. A copy of the constitutional documents of PTC International Finance II
S.A.
10. A copy of a resolution of the board of directors of PTC International
Finance II S.A. approving the terms of, and the transactions
contemplated by, the Senior Finance Documents to which it is a party.
11. A specimen of the signature of each person authorised to sign the
documents referred to in paragraph 10 above on behalf of PTC
International Finance II S.A. and to sign and/or despatch all documents
and notices to be signed and/or despatched by PTC International Finance
II S.A. under or in connection with those documents.
12. A certificate of an authorised signatory of PTC International Finance
II S.A. certifying that each copy document delivered under paragraphs
9, 10 and 11 above is correct, complete and in full force and effect as
at a date no earlier than the date of this Agreement.
PTC INTERNATIONAL FINANCE (HOLDING) B.V.
13. A copy of the constitutional documents of PTC International Finance
(Holding) B.V.
14. A copy of a resolution of the board of directors of PTC International
Finance (Holding) B.V. approving the terms of, and the transactions
contemplated by, the Senior Finance Documents to which it is a party.
15. A specimen of the signature of each person authorised to sign the
documents referred to in paragraph 14 above on behalf of PTC
International Finance (Holding) B.V. and to sign and/or despatch all
documents and notices to be signed and/or despatched by PTC
International Finance (Holding) B.V. under or in connection with those
documents.
16. A certificate of an authorised signatory of PTC International Finance
(Holding) B.V. certifying that each copy document delivered under
paragraphs 13, 14 and 15 above is correct, complete and in full force
and effect as at a date no earlier than the date of this Agreement.
MISCELLANEOUS
17. Legal opinions from each of:
(a) Shearman & Sterling;
(b) Soltysinski, Xxxxxxx & Szlezak;
(c) Xxxxx Dutilh; and
(d) Elvinger, Hoss & Prussen.
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18. The Fee Letters duly executed in the agreed form.
19. National Bank of Poland permit for the Borrower to borrow and repay
Utilisations and all other amounts payable under the Senior Finance
Documents in the currency in which they are due.
20. The Business Plan in the agreed form.
21. The Hedging Policy in the agreed form.
22. Certified copies of the GSM Licence, the DCS-1800 Licence, the UMTS
Licence and the supply agreements referred to in paragraphs (c), (d)
and (e) of the definition of "Material Contracts" in Clause 1.1
(Defined terms).
23. Certified copies of the duly executed interconnection agreements with
Telekomunikacja Polska Spo=ka Akcyjna, Polkomtel S.A. and PTK Centertel
in form and substance reasonably satisfactory to the Agent.
24. Evidence of the irrevocable acceptance of the person appointed as
process agent under Clause 38.2 (Service of process) to act as agent
for service of process.
25. Execution of each Security Document listed in Schedule D by the
Obligors party thereto other than (i) mortgages, (ii) the Ordinary
Share Pledges, (iii) pledges over cash in respect of moneys held on
bank accounts and (iv) the Registered Share Pledges which shall be in
the agreed form.
26. Collateral Sharing Intercreditor Agreement duly executed in the form
set forth at Schedule M.
27. A copy of any other governmental or other authorisation, approval or
other document, opinion or assurance, including without limitation a
document evidencing approval by the Shareholders, necessary or
desirable in connection with the entry into and performance of, and the
transactions contemplated by, any Senior Finance Document or for the
validity and enforceability of any Senior Finance Document.
28. [intentionally omitted]
29. A search in respect of each member of the Group at the register of
pledges maintained by the Warsaw court, the Central Registry of
Treasury Pledges in Poland, the Commercial Register of the Chamber of
Commerce and Industry of Amsterdam, and the Greffe de la 2e section du
Tribunal d'Arrondissement de et a Luxembourg showing, inter alia, no
Security Interests over any of its assets (other than any permitted
under this Agreement) and no appointment of a receiver, liquidator or
administrator or the presentation of any petition in respect of any of
the same.
30. Evidence that the insurances required to be taken out in accordance
with Clause 19.23 (Insurance) of this Agreement have been taken out and
are in full force and effect in the form of a confirmation in the
agreed form from the relevant insurers.
31. An instruction to the Agent that all fees payable in accordance with
the Fee Letters and all other fees, costs and expenses (including,
without limitation, legal fees and all costs of registration, property
transfers, security or otherwise) details of which are known at the
Signing Date may be deducted from the first Advance under this
Agreement.
32. Evidence reasonably satisfactory to the Agent that the facility
agreement dated 17th December, 1997 between the Borrower, the arrangers
named therein, the banks named therein, Citibank International plc as
Facility A Agent and Security Agent, Citibank (Poland) S.A. as Facility
B Agent and Security Agent and Citibank N.A. as Co-ordinator will be
repaid and cancelled, all pledges of collateral thereunder will be
promptly deleted from the register of pledges maintained by the Warsaw
court and Citibank International plc as Facility A Agent and Citibank
(Poland) S.A. as Facility B Agent will issue final and unconditional
acknowledgements of discharge of all obligations secured by such
pledges by way of a payoff letter in the agreed form and releases in
the agreed form.
33. A compliance certificate in the form set forth at Schedule J.
34. The executed Side Letter from Elektrim S.A. to the Agent.
35. A side letter from the Shareholders to the Agent, in the agreed form,
providing that the Shareholders notify the Agent upon a pledge of the
Shares by any Shareholders.
36. Certified executed copies of each of the Supplemental Facility Senior
Finance Documents.
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SCHEDULE F
EXISTING SECURITY INTERESTS
NAME OF COMPANY PROPERTY CHARGED DATE OF CREATION DESCRIPTION OF CHARGE
------------------------------------------------------------------------------------------------------------------------------------
1. Polska Telefonia Cyfrowa Assets of Polska Telefonia 15 April 1998 Registered Pledge
Sp. z o.o. Cyfrowa Sp. z o.o.
------------------------------------------------------------------------------------------------------------------------------------
Shares and future shares in
2. Elektrim S.A. Polska Telefonia Cyfrowa 14 September 1998 (pledge over shares and Registered Pledge
Sp. z o.o. future shares)
------------------------------------------------------------------------------------------------------------------------------------
21 April 1998 (pledge over shares)
(on 12 June 2000 Elektrim S.A. was entered
as a pledgor in the Register of Pledges)
Shares and future shares in
3. BRE Bank S.A. Polska Telefonia Cyfrowa Registered Pledge
Sp. z o.o.
13 May 1999 (pledge over future shares)
(on 24 September 1999 Elektrim S.A.
submitted an application to change the
entry in the Register of Pledges)
------------------------------------------------------------------------------------------------------------------------------------
Shares and future shares in 7 April 1998 (pledge over shares)
4. Carcom Warszawa Sp. z o.o. Polska Telefonia Cyfrowa Registered Pledge
Sp. z o.o. 29 May 1999 (pledge over future shares)
------------------------------------------------------------------------------------------------------------------------------------
Shares and future shares in Registered pledge agreement was signed on
5. De Te Mobil Polska Telefonia Cyfrowa 30 January 1998 but the pledges have not Registered Pledge
Sp. z o.o. been registered yet
------------------------------------------------------------------------------------------------------------------------------------
Shares and future shares in Registered pledge agreement was signed on
6. Elektrim Autoinvest S.A. Polska Telefonia Cyfrowa 15 January 1998 but the pledges have not Registered Pledge
Sp. z o.o. been registered yet
------------------------------------------------------------------------------------------------------------------------------------
Shares and future shares in
Polska Telefonia Cyfrowa The registered pledge agreement was signed
Sp. z o.o. on 15 January 1998 but the pledge over
shares has not been registered yet. On 24 Registered Pledge
September 1999 Elektrim S.A. submitted an
7. Xxxxxxx Holding S.A. application to change the entry in the
------------------------------------------------------------------------------------------------------------------------------------
NAME OF COMPANY PERSONS ENTITLED TO THE
CHARGE
---------------------------------------------------------------
1. Polska Telefonia Cyfrowa Citibank (Poland) S.A.
Sp. z o.o.
---------------------------------------------------------------
2. Elektrim S.A. Citibank (Poland) S.A.
---------------------------------------------------------------
3. BRE Bank S.A. Citibank (Poland) S.A.
---------------------------------------------------------------
4. Carcom Warszawa Sp. z o.o. Citibank (Poland) S.A.
---------------------------------------------------------------
5. De Te Mobil Citibank (Poland) S.A.
---------------------------------------------------------------
6. Elektrim Autoinvest S.A. Citibank (Poland) S.A.
---------------------------------------------------------------
7. Xxxxxxx Holding S.A. Citibank (Poland) S.A.
---------------------------------------------------------------
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NAME OF COMPANY PROPERTY CHARGED DATE OF CREATION DESCRIPTION OF CHARGE
------------------------------------------------------------------------------------------------------------------------------------
Register of Pledges.
The pledge over future shares was
registered on 24 June 1998. On
24 September 1999 Elektrim S.A.
submitted an application to change
the entry in the Register of Pledges.
------------------------------------------------------------------------------------------------------------------------------------
Shares and future shares in 2 July 1998 (pledge over shares)
8. Polpager Sp. z o.o. Polska Telefonia Cyfrowa Registered Pledge
Sp. z o.o. 28 October 1998 (pledge over future shares)
------------------------------------------------------------------------------------------------------------------------------------
16 March 1999 (pledge over shares)
(On 24 September 1999 Elektrim S.A.
submitted an application to change the
entry in the Register of Pledges.)
Shares and future shares in
9. TUiR Xxxxx X.X. Polska Telefonia Cyfrowa Registered Pledge
Sp. z o.o. 6 January 1999 (pledge over new shares)
(Elektrim S.A. was entered as a pledgor in
the Register of Pledges)
------------------------------------------------------------------------------------------------------------------------------------
Shares and future shares in The registered pledge agreement was signed
10. Media One (US West Polska Telefonia Cyfrowa on 29 January 1998 but the pledges have not Registered pledge
International B.V.) Sp. z o.o. been registered yet
18 May 2000
------------------------------------------------------------------------------------------------------------------------------------
11. Drugi Polski Fundusz Future shares in Polska (On 24 September 1999 Elektrim S.A.
Rozwoju BRE Telefonia Cyfrowa Sp. z o.o. submitted an application to change the Registered pledge
entry in the Register of Pledges.)
------------------------------------------------------------------------------------------------------------------------------------
12. PTC International Finance Present and future accounts 17.12.97 First priority
B.V. receivable right of pledge
------------------------------------------------------------------------------------------------------------------------------------
13. Polska Telefonia Cyfrowa Present and future shares in PTC 17.12.97 First right
Sp. z o.o. International Finance B.V. of pledge
------------------------------------------------------------------------------------------------------------------------------------
14. Polska Telefonia Cyfrowa
Sp. z o.o. and PTC Deposit moneys 17.12.97 Charge and
International Finance assignment
------------------------------------------------------------------------------------------------------------------------------------
NAME OF COMPANY PERSONS ENTITLED TO THE
CHARGE
---------------------------------------------------------------
8. Polpager Sp. z o.o. Citibank (Poland) S.A.
---------------------------------------------------------------
9. TUiR Xxxxx X.X. Citibank (Poland) S.A.
---------------------------------------------------------------
10. Media One (US West Citibank (Poland) S.A.
International B.V.)
---------------------------------------------------------------
11. Drugi Polski Fundusz Citibank (Poland) S.A.
Rozwoju BRE
---------------------------------------------------------------
12. PTC International Finance Citibank N.A.
B.V.
---------------------------------------------------------------
13. Polska Telefonia Cyfrowa Citibank N.A.
Sp. z o.o.
---------------------------------------------------------------
14. Polska Telefonia Cyfrowa Citibank N.A.
Sp. z o.o. and
International Finance
---------------------------------------------------------------
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NAME OF COMPANY PROPERTY CHARGED DATE OF CREATION DESCRIPTION OF CHARGE
------------------------------------------------------------------------------------------------------------------------------------
15. PTC International Finance Accounts 17.12.97 First right of pledge
B.V.
------------------------------------------------------------------------------------------------------------------------------------
16. PTC International Finance Present and future shares in PTC 23.11.99 Pledge
(Holding) B.V. International Finance II S.A.
------------------------------------------------------------------------------------------------------------------------------------
17. PTC International Finance Present and future accounts 23.11.99 First priority right
(Holding) B.V. receivable of pledge
------------------------------------------------------------------------------------------------------------------------------------
18. PTC International Finance Receivables 24.11.99 First priority right
(Holding) B.V. of pledge
------------------------------------------------------------------------------------------------------------------------------------
19. PTC International Finance All monies and present and future 24.11.99 Pledge
II S.A. assets in the account
------------------------------------------------------------------------------------------------------------------------------------
20. PTC International Finance Accounts receivable 23.11.99 Pledge
II S.A.
------------------------------------------------------------------------------------------------------------------------------------
21. Polska Telefonia Cyfrowa Present and future shares in PTC 23.11.99 First priority right
Sp. z o.o. International Finance (Holding) of pledge
B.V.
------------------------------------------------------------------------------------------------------------------------------------
NAME OF COMPANY PERSONS ENTITLED TO THE
CHARGE
---------------------------------------------------------------
15. PTC International Finance Citibank N.A.
B.V.
---------------------------------------------------------------
16. PTC International Finance Citibank N.A.
(Holding) B.V.
---------------------------------------------------------------
17. PTC International Finance Citibank N.A.
(Holding) B.V.
---------------------------------------------------------------
18. PTC International Finance Citibank N.A.
(Holding) B.V.
---------------------------------------------------------------
19. PTC International Finance Citibank N.A.
II S.A.
---------------------------------------------------------------
20. PTC International Finance Citibank N.A.
II S.A.
---------------------------------------------------------------
21. Polska Telefonia Cyfrowa Citibank N.A.
Sp. z o.o.
---------------------------------------------------------------
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SCHEDULE G
ADDITIONAL COSTS RATE
1. The Additional Costs Rate shall be:
for all Banks, the rate determined by the Agent to be equal to the
arithmetic mean (rounded upwards, if necessary, to four decimal places) of
the rates notified by each of the Banks in accordance with its respective
status weighted in proportion to the percentage participation of that Bank
in the related Advance to the Agent as the rate resulting from the
application (as appropriate) of the following formulae:
in relation to Sterling Advances:
XL + S(X-X) + (E x 0.01)
------------------------
100 - (X+S)
in relation to other Advances:
E x 0.01
--------
300
where, in each case, on the day of application of a formula:
X is the percentage of Eligible Liabilities (in excess of any
stated minimum) by reference to which that Bank is required under
or pursuant to the Bank of England Act 1998 to maintain cash
ratio deposits with the Bank of England;
L is the percentage rate of interest (excluding the Applicable
Margin and any amounts compensated under the Additional Costs
Rate) payable for the relevant Interest Period on the Advance;
E is the rate of charge being payable by that Bank to the Financial
Services Authority ("FSA") pursuant to paragraph 2.02 or 2.03 (as
the case may be) of the Fees Regulations (but where, for this
purpose, the figures at paragraph 2.02(b) and 2.03(b) of the Fees
Regulations shall be deemed to be zero) and expressed in pounds
per (pound)1 million of the Fee Base of that Lender;
S is the level of interest bearing Special Deposits, expressed as a
percentage of Eligible Liabilities, which that Bank is required
to maintain by the Bank of England (or other United Kingdom
governmental authorities or agencies); and
D is the percentage rate per annum payable by the Bank of England
to that Bank on Special Deposits.
(X, L, S and D shall be expressed in the formula as numbers and not as
percentages. A negative result obtained from subtracting D from L
shall be counted as zero).
2. For the purposes of this Schedule G:-
"ELIGIBLE LIABILITIES" and "SPECIAL DEPOSITS" have the meanings given to
those terms under or pursuant to the Bank of Xxxxxxx Xxx 0000 or by the
Bank of England (as may be appropriate), on the day of the application of
the formula;
"FEE BASE" has the meaning given to that term for the purposes of, and
shall be calculated in accordance with, the Fees Regulations;
--------------------------------------------------------------------------------
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"FEES REGULATIONS" means, as appropriate, either:
(a) the Banking Supervision (Fees) Regulations 1998; or
(b) such regulations as from time to time may be in force, relating to the
payment of fees for banking supervision in respect of periods
subsequent to 31 March 1999.
3. The Additional Costs Rate shall be calculated at or about 11.00 a.m. on the
first day of each Interest Period and for the duration of such Interest
Period and shall be payable on the date on which interest is payable in
respect of the relevant Advance in accordance with the terms of this
Agreement.
4. Each Bank shall determine the Additional Costs Rate by application of the
relevant formula set out in paragraph 1 above on the first day of each
Interest Period and shall notify the Agent of such determination as soon as
it has been made. Promptly upon receipt of notifications from each of the
Banks, the Agent shall calculate the Additional Costs Rate for the purposes
of this Agreement as a weighted average of the Banks' Additional Cost Rates
(weighted in proportion to the percentage participation of each Bank in the
relevant Advance) expressed as a percentage rate per annum.
5. In the event that there is any change in applicable law or regulation, or
the interpretation thereof, by any agency of any state, or in the nature of
any request or requirement by the Financial Services Authority, the Bank of
England, or other applicable banking or regulatory authority, the effect of
which is to impose, modify or deem applicable any fees or any reserve,
special deposit, liquidity or similar requirements against assets held by,
or deposits in, or for the account of, or advances by the Banks, or in any
other respect whatsoever, the Agent shall be entitled to vary the formula
set forth in paragraph 1 above so as (but only so as) to restore the Banks'
position - in terms of overall return to the Banks - to that which
prevailed before such change became necessary. The Agent shall notify the
Borrower of any such necessary variation to the formula and the formula, as
so varied, shall be the formula for the purposes of this Agreement with
effect from the date of notification.
--------------------------------------------------------------------------------
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SCHEDULE H
FORM OF REQUEST FOR AN ADVANCE
To: Deutsche Bank Luxembourg, S.A., as Agent.
From: POLSKA TELEFONIA CYFROWA SP. Z O.O.
Date: [ ]
POLSKA TELEFONIA CYFROWA SP. Z O.O.
euro550,000,000 FACILITY AGREEMENT DATED 20 FEBRUARY, 2001
1. We wish to borrow an Advance as follows:-
(a) Tranche: [A/B]
(b) Utilisation Date: [ ]
(c) Currency/[Amount]: [ ]
(d) Interest Period: [ ]
(e) Payment instructions: [ ].
(f) [Original Euro Amount: [ ].]*
2. We confirm that the Advance referred to in this Request will be repaid on
the date and in accordance with the terms set out in the Facility Agreement.
3. We confirm that each condition specified in Clause 4.2 (Conditions
Precedent to each Utilisation) is satisfied on the date of this Request.
[4. We confirm that the proceeds of the Advance referred to in this Request
will be used for the purpose set forth in Clause 3.1(d) (Purpose).]**
By:
POLSKA TELEFONIA CYFROWA SP. Z O.O.
Authorised Signatory
---------------------------------------
* Tranche A only
** Include when Agreement
--------------------------------------------------------------------------------
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--------------------------------------------------------------------------------
SCHEDULE I
ACCESSION DOCUMENT
THIS ACCESSION AGREEMENT is made [.. ]
BETWEEN:-
(1) (No. ) (the "NEW GUARANTOR");
(2) POLSKA TELEFONIA CYFROWA SP. Z O.O., (No. ) (the "BORROWER");
(3) DEUTSCHE BANK LUXEMBOURG, S.A. in its capacity as Agent under the Credit
Agreement.
WHEREAS:-
(A) This Agreement is entered into in connection with a facility agreement (the
"CREDIT AGREEMENT") dated 20 February, 2001 and made between, inter alia,
the Borrower, the Guarantors named therein, Deutsche Bank AG London,
Deutsche Bank Polska S.A., Dresdner Bank Luxembourg, S.A. and The European
Bank for Reconstruction and Development as Lead Arrangers, the Arrangers
named therein, Deutsche Bank Luxembourg, S.A., as Agent, and Deutsche Bank
Polska S.A., as Security Agent.
(B) This Agreement has been entered into to record the admission of the New
Guarantor as a Guarantor under the Credit Agreement.
NOW IT IS HEREBY AGREED AS FOLLOWS:-
1. DEFINITIONS
Terms defined in the Credit Agreement shall have the same meaning when used
in this Agreement.
2. ADMISSION OF NEW GUARANTOR
2.1 The New Guarantor agrees to become a Guarantor under the Credit Agreement
and agrees to be bound by the terms of the Credit Agreement as if it had
been named as a Guarantor thereunder.
2.2 The New Guarantor thereby confirms the appointment of the Borrower as its
agent on the terms provided for in the Credit Agreement in relation to
Obligors.
2.3 The New Guarantor confirms that its address details for notices the Credit
Agreement are as follows:-
Address:
Facsimile:
Telex:
Attention of:
2.4 By their signature below the parties to this Agreement (other than the New
Guarantor) confirm their acceptance of the New Guarantor as a Guarantor for
the purpose of the Credit Agreement.
3. GOVERNING LAW AND SUBMISSION TO JURISDICTION
The provision of Clauses 38 (Jurisdiction), 39 (Waiver of Immunity) and 40
(Governing Law) shall apply to this Accession Agreement as though set out
in full herein, mutatis mutandis.
--------------------------------------------------------------------------------
120
117
--------------------------------------------------------------------------------
IN WITNESS whereof the parties have caused this Agreement to be duly executed on
the date first written above.
NEW GUARANTOR
[Name]
---------------------------
By:
BORROWER
POLSKA TELEFONIA CYFROWA SP. Z O.O.
---------------------------
By:
AGENT
DEUTSCHE BANK LUXEMBOURG, S.A.
---------------------------
By:
--------------------------------------------------------------------------------
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SCHEDULE J
FORM OF COMPLIANCE CERTIFICATE
DATED AS OF _________________
The undersigned hereby certifies that [s]he is a member of the management
board of Polska Telefonia Cyfrowa Sp. z o.o. (the "BORROWER") and that as such
[s]he is authorized to execute this certificate on behalf of the Borrower. With
reference to the facility agreement dated as of 20 February, 2001 (the "CREDIT
AGREEMENT"; terms defined therein and not otherwise defined herein being used
herein as therein defined) among the Borrower, the guarantors party thereto from
time to time, Deutsche Bank AG London, Deutsche Bank Polska S.A., Dresdner Bank
Luxembourg, S.A., and The European Bank for Reconstruction and Development as
Lead Arrangers, the Arrangers party thereto, Deutsche Bank Luxembourg, S.A. as
Agent, Deutsche Bank Polska S.A. as Security Agent and the Banks party thereto
from time to time, the undersigned further certifies, represents and warrants as
follows:
(a) attached to this Certificate as Annex A are the calculations necessary
to confirm compliance with the covenants contained in Clauses 21.1,
21.2 and 21.3 (Financial Undertakings) of the Credit Agreement as of
_________________.
(b) the consolidated financial statements of the Borrower and its
Subsidiaries (the "GROUP") for the quarterly period ended
_______________ attached hereto as Annex B are complete and correct
and present fairly, in accordance with the accounting standards set
forth in Clause 19.7 (Accounting Standards) of the Credit Agreement,
the financial position of the Group as at the end of such quarterly
accounting period, and the results of operations and cash flows for
such quarterly period, and for the elapsed portion of the fiscal year
ended with the last day of such quarterly period; and
(c) no Default is outstanding.
POLSKA TELEFONIA CYFROWA SP. Z O.O.
By
-------------------------------------
Title
--------------------------------------------------------------------------------
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ANNEX A TO COMPLIANCE CERTIFICATE
SENIOR DEBT TO EBITDA
RATIO PERIOD ENDED:
---------
Borrowings under any Senior Debt facility
Overdrafts
Xxxx-to-market value of Hedging Agreements in respect of
Senior Debt
Negative xxxx-to-market value of Hedging Agreements in respect of
Interest payments in relation to any Financial Indebtedness
incurred pursuant to the High Yield Debt Documents
Finance Leases
QTE Lease obligations
Letters of credit and bank guarantees
Any other Senior Debt
TOTAL SENIOR DEBT
Net income before Extraordinary Items
Interest Payable
Income Taxes
Amortisation and depreciation
Consolidated losses arising as a result of having Financial
Indebtedness in a currency which appreciated against the Zloty
(without double-counting)
SUBTOTAL:
---------
Less:
Handset costs and other subscriber acquisition costs, whether or
not capitalised, to the extent not already deducted in
determining net income
Interest Receivable
Consolidated gains arising as a result of having Financial
Indebtedness in a currency which depreciated against the Zloty
(without double-counting)
SUBTOTAL:
---------
EBITDA FOR THE RATIO PERIOD
--------------------------------------------------------------------------------
Senior Debt to EBITDA ratio
--------------------------------------------------------------------------------
PERMITTED LEVEL (TO DEC 2003 -- NOT MORE THAN 4:1) 4.00:1
IN COMPLIANCE ( YES / NO )
--------------------------------------------------------------------------------
123
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--------------------------------------------------------------------------------
EBITDA TO INTEREST EXPENSE ON SENIOR DEBT
Interest accrued on Senior Debt
less Interest Receivable
less unrealised foreign exchange losses to the extent included as Interest
plus unrealised foreign exchange gains to the extent deducted as Interest
INTEREST EXPENSE ON SENIOR DEBT
EBITDA FOR THE RATIO PERIOD
--------------------------------------------------------------------------------
EBITDA to Interest Expense on Senior Debt ratio
--------------------------------------------------------------------------------
PERMITTED LEVEL : (TO DEC 2002 -- NOT LESS THAN 2.5:1) 2.5:1
IN COMPLIANCE ( YES / NO )
EBITDA TO INTEREST EXPENSE ON TOTAL DEBT
Interest accrued on all debt
less Interest Receivable
less Interest accrued covered by amounts deposited in escrow
less Interest accrued in respect of GSM Licence, DCS-1800 Licence and
UMTS Licence indebtedness
less unrealised foreign exchange losses to the extent included as
Interest
less Interest accrued in respect of QTE Leases covered by amounts
deposited in escrow
plus unrealised foreign exchange gains to the extent included as
Interest
INTEREST EXPENSE ON TOTAL DEBT
EBITDA FOR THE RATIO PERIOD
--------------------------------------------------------------------------------
EBITDA to Interest Expense on Total Debt ratio
--------------------------------------------------------------------------------
PERMITTED LEVEL : (TO DEC 2001 -- NOT LESS THAN 1.5:1) 1.5:1
IN COMPLIANCE ( YES / NO )
--------------------------------------------------------------------------------
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SCHEDULE K
EXISTING FINANCIAL INDEBTEDNESS OF THE BORROWER AND ITS SUBSIDIARIES
---------------------------------------------------------------------------------------------------------------
DEBT CERTIFICATE
DEBT ISSUER/ DESCRIPTION OF NUMBER/FACILITY
GRANTOR/COUNTERPARTY BORROWER INDEBTEDNESS AGREEMENT NUMBER FINAL MATURITY
---------------------------------------------------------------------------------------------------------------
N/A PTC International 10 3/4% Senior N/A July 1, 2007
Finance B.V. Subordinated Guaranteed
Discount Notes
---------------------------------------------------------------------------------------------------------------
N/A PTC International 11 1/4% Senior N/A December 1, 2009
Finance II S.A. Subordinated Guaranteed
Discount Notes
---------------------------------------------------------------------------------------------------------------
Xxxxxx PTC Sp. z o.o. Finance lease of N/A (Finance Lease March, 2012
headquarters Agreement of
23 April 1997
---------------------------------------------------------------------------------------------------------------
Ministry of PTC Sp. z o.o. Licence GSM 900 - the 2/96/GSM2 March 31, 2001
Communications remaining instalment
---------------------------------------------------------------------------------------------------------------
Ministry of PTC Sp. z o.o. Licence GSM 1800 - 498/99 September 30,
Communications remaining instalments 2002
---------------------------------------------------------------------------------------------------------------
Ministry of PTC Sp. z o.o. Licence UMTS 2/UMTS issued September 30,
Communications December 20, 2000 2022
---------------------------------------------------------------------------------------------------------------
*BRE BANK SA PTC Sp. z o.o. Overdraft limit 02/162/98/Z/VV N/A
---------------------------------------------------------------------------------------------------------------
*CITIBANK (Poland) SA PTC Sp. z o.o. Overdraft & Guarantee Framework Agreement N/A
Limit No. 145/98
---------------------------------------------------------------------------------------------------------------
*CITIBANK (Poland) SA PTC Sp. z o.o. Credit Card Limit Agreement of N/A
April, 2000
---------------------------------------------------------------------------------------------------------------
---------------------------------------------
OUTSTANDING
PRINCIPAL AMOUNT
AS OF 31 DECEMBER 2000
/NEGATIVE XXXX-TO-MARKET
VALUE AS OF 31 DECEMBER
2000 FACILITY LIMIT
---------------------------------------------
USD 253 million at final N/A
maturity
---------------------------------------------
Euro 300 million and N/A
USD 150 million at final
maturity
---------------------------------------------
USD 53.6 million (value N/A
of future lease payments
as of 31 December 2000)
---------------------------------------------
Euro 56 100 000 N/A
---------------------------------------------
Euro 33 431 000 N/A
---------------------------------------------
Euro 650 000 000 N/A
---------------------------------------------
PLN 25 950 222.67 PLN 30 000 000
---------------------------------------------
Guarantee: PLN 6 303 DEM 11 350 000
159.65 as of 31 December
2000
Overdraft: PLN 10 392
199.26 as of 31 December
2000
---------------------------------------------
97 675.09 PLN as of PLN 1 338 000
31 December 2000
---------------------------------------------
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---------------------------------------------------------------------------------------------------------------
DEBT CERTIFICATE
DEBT ISSUER/ DESCRIPTION OF NUMBER/FACILITY
GRANTOR/COUNTERPARTY BORROWER INDEBTEDNESS AGREEMENT NUMBER FINAL MATURITY
---------------------------------------------------------------------------------------------------------------
*ING BARINGS PTC Sp. z o.o. Guarantee Limit N/A N/A
---------------------------------------------------------------------------------------------------------------
*Deutsche Bank Polska PTC Sp. z o.o. Short Term Facility N/A N/A
S.A. Limit
---------------------------------------------------------------------------------------------------------------
ING Barings PTC Sp. z o.o. Guarantee issued in GO/03337 January 31, 2001
favour of Xxxxxx Xx.
z o.o. with respect to
finance lease payments
---------------------------------------------------------------------------------------------------------------
N/A PTC Sp. z o.o. Unconditional Guarantee N/A July 1, 2007
issued in favour of
holders of 10 3/4 %
Senior Subordinated
Guaranteed Discount
Notes
---------------------------------------------------------------------------------------------------------------
N/A PTC Sp. z o.o. Unconditional and N/A December 1, 2009
Irrevocable Guarantee
issued in favour of
holders of 11 1/4%
Senior Subordinated
Guaranteed Discount
Notes
---------------------------------------------------------------------------------------------------------------
Citibank PTC Sp. z o.o. NDF Buy EUR 10 000 N/A April 2, 2001
000.00
---------------------------------------------------------------------------------------------------------------
PTC Sp. z o.o. NDF Buy EUR 10 000 N/A April 2, 2001
Citibank 000.00
---------------------------------------------------------------------------------------------------------------
PTC Sp. z o.o. NDF Buy EUR 10 000 N/A April 2, 2001
ING 000.00
---------------------------------------------------------------------------------------------------------------
PTC Sp. z o.o. NDF Buy EUR 10 000 N/A April 2, 2001
Citibank 000.00
---------------------------------------------------------------------------------------------------------------
ING PTC Sp. z o.o. NDF Buy EUR 10 000 N/A April 2, 2001
000.00
---------------------------------------------------------------------------------------------------------------
---------------------------------------------
OUTSTANDING
PRINCIPAL AMOUNT
AS OF 31 DECEMBER 2000
/NEGATIVE XXXX-TO-MARKET
VALUE AS OF 31 DECEMBER
2000 FACILITY LIMIT
---------------------------------------------
6 413 055.10 PLN as of USD 3 500 000
31 December 2000
---------------------------------------------
N/A Euro 5 000 000,
out of which
Euro 2 000 000
represents
overdraft limit
---------------------------------------------
PLN4,950,664.28 N/A
---------------------------------------------
USD 253 million N/A
---------------------------------------------
Euro 300 million and USD N/A
---------------------------------------------
PLN 5 404 500.00 N/A
---------------------------------------------
PLN 5 397 500.00 N/A
---------------------------------------------
PLN 5 396 500.00 N/A
---------------------------------------------
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---------------------------------------------------------------------------------------------------------------
DEBT CERTIFICATE
DEBT ISSUER/ DESCRIPTION OF NUMBER/FACILITY
GRANTOR/COUNTERPARTY BORROWER INDEBTEDNESS AGREEMENT NUMBER FINAL MATURITY
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
Citibank PTC Sp. z o.o. NDF Buy EUR 10 000 N/A April 2, 2001
000.00
---------------------------------------------------------------------------------------------------------------
ING PTC Sp. z o.o. NDF Buy EUR 10 000 N/A April 2, 2001
000.00
---------------------------------------------------------------------------------------------------------------
Xxxxxxx Xxxxx PTC Sp. z o.o. NDF Buy EUR 6 100 N/A April 2, 2001
000.00
---------------------------------------------------------------------------------------------------------------
Citibank PTC Sp. z o.o. Forward Buy EUR 16 N/A June 1, 2001
875 000.00 (SWAP)
---------------------------------------------------------------------------------------------------------------
ING PTC Sp. z o.o. Forward Buy EUR 8 N/A June 1, 2001
437 500.00 (SWAP)
---------------------------------------------------------------------------------------------------------------
---------------------------------------------
OUTSTANDING
PRINCIPAL AMOUNT
AS OF 31 DECEMBER 2000
/NEGATIVE XXXX-TO-MARKET
VALUE AS OF 31 DECEMBER
2000 FACILITY LIMIT
---------------------------------------------
PLN 5 408 500.00 N/A
---------------------------------------------
PLN 5 436 500.00 N/A
---------------------------------------------
PLN 2 983 815.00 N/A
---------------------------------------------
PLN 11 107 125.00 N/A
---------------------------------------------
PLN 4 738 078.13 N/A
---------------------------------------------
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SCHEDULE L
EXISTING HEDGING AGREEMENTS
ISDA Agreements concluded with:
Dresdner Bank AG dated 19 September 2000;
Xxxxxxx Xxxxx Capital Services, INC dated 15 March 2000;
ABN AMRO Bank NV dated 15 March 2000; and
Citibank NA dated 5 May 2000.
Quasi ISDA Agreements concluded with Polish banks :
BRE Bank SA dated 22 March 2000;
Citibank (Poland) SA dated 6 March 2000; and
ING Bank NV (Oddzial Warszawa) dated 6 March 2000.
Other hedging agreements concluded with Polish banks:
ABN AMRO Bank (Polska) SA dated 15 March 2000.
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SCHEDULE M
COLLATERAL SHARING INTERCREDITOR AGREEMENT
THIS COLLATERAL SHARING INTERCREDITOR AGREEMENT (this "AGREEMENT") is made
on _____________.
BETWEEN:
(1) The Finance Parties listed in Schedule I hereto; and
(2) DEUTSCHE BANK POLSKA S.A., as Group Security Agent for the Finance Parties
(each as defined below).
WHEREAS:
A. POLSKA TELEFONIA CYFROWA SP. Z O.O., a company registered in the
Commercial Register of the District Court in Warsaw under number 45740 (the
"COMPANY") has entered into (a) that certain euro550,000,000 Facility Agreement
dated on or about 16 February, 2001 (the "MAIN FACILITY AGREEMENT") between (i)
the Company, as Borrower, (ii) the other Obligors (as defined below) party
thereto, as Guarantors, (iii) the Banks referred to therein, (iv) Deutsche Bank
AG London, Deutsche Bank Polska S.A., Dresdner Bank Luxembourg S.A. and the
European Bank for Reconstruction and Development, as Lead Arrangers, (v)
Deutsche Bank Luxembourg S.A., as Agent, and (vi) Deutsche Bank Polska S.A., as
Security Agent, and (b) that certain EURO 100,000,000 Facility Agreement dated
on or about 16 February, 2001 (the "SUPPLEMENTAL FACILITY AGREEMENT") between
(i) the Company, as Borrower, (ii) the other Obligors party thereto, as
Guarantors, (iii) the Banks referred to therein, (iv) Deutsche Bank AG London,
Deutsche Bank Polska S.A. and Dresdner Bank Luxembourg S.A., as Lead Arrangers,
(v) Deutsche Bank Luxembourg S.A., as Agent, and (vi) Deutsche Bank Polska S.A.,
as Security Agent.
B. In connection with the Main Facility Agreement, each of the Obligors
granted to the Main Bank Finance Parties (as defined below) a security interest
in all of its rights, title and interest in the Security (as defined below), for
the purpose, among other things, of securing and providing for the repayment of
all amounts owing from time to time under or in connection with the Main
Facility Agreement.
C. In connection with the Supplemental Facility Agreement, each of the
Obligors granted to the Supplemental Bank Finance Parties (as defined below) a
security interest in all of its rights, title and interest in the Security, for
the purpose, among other things, of securing and providing for the repayment of
all amounts owing from time to time under or in connection with the Supplemental
Facility Agreement.
D. It is anticipated that the Company and the other Obligors may incur
additional financial indebtedness to third parties, and to the extent that such
additional financial indebtedness is Additional Secured Indebtedness (as defined
below), the lenders of such Additional Secured Indebtedness will share in the
Security.
E. It is further anticipated that the Company and the other Obligors may,
from time to time, enter into certain interest rate and/or currency swap
agreements with certain Main Bank Finance Parties or Supplemental Bank Finance
Parties or their respective affiliates (such Main Bank Finance Parties,
Supplemental Bank Finance Parties and affiliates being, collectively, the
"HEDGING BANKS"), and to the extent that such swap agreements are Secured Swap
Agreements (as defined below) the relevant Hedging Banks will share in the
Security.
F. In order to determine the rights and responsibilities of the Main Bank
Finance Parties, the Supplemental Bank Finance Parties, the Secured Swap Finance
Parties (as defined below), the Additional Finance Parties (as defined below),
the Representatives (as defined below) and the Group Security Agent with respect
to the Security, and in consideration therefor, the parties have entered into
this Agreement.
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IT IS AGREED as follows:
1. INTERPRETATION
1.1 Definitions: In this Agreement, unless the context otherwise requires, the
following expressions have the following meanings:
"AGENTS" means (a) the Agent (as defined in the Main Facility Agreement),
(b) the Agent (as defined in the Supplemental Facility Agreement), (c) the
person(s), if any, designated to act as facility agent, administrative
agent or paying agent or in a similar capacity under the Additional Secured
Indebtedness Finance Documents and (d) the person(s), if any, designated to
act as facility agent, administrative agent or paying agent or in a similar
capacity under the Secured Swap Finance Documents.
"AGENT'S SPOT RATE OF EXCHANGE" means:
(a) when converting an amount into Euro, the Group Security Agent's spot
rate of exchange for the purchase of Euro in the Brussels foreign
exchange market with the relevant currency at or about 11.00 a.m.
(Brussels time) on a particular day; and
(b) when converting an amount of Euro into any other currency, the Group
Security Agent's spot rate of exchange for the purchase of such other
currency in the Brussels foreign exchange market with Euro at or about
11.00 a.m. (Brussels time) on a particular day.
"BUSINESS DAY" means a day (other than a Saturday, Sunday or public
holiday) which is a day on which banks are open for business in London,
Luxembourg and Warsaw.
"DEFAULT" means any event of default under any Finance Document, and any
event which with the giving of notice or the lapse of time, or both, or the
making of any determination or the fulfilment of any condition provided for
in the relevant agreement would constitute such an event of default.
"FINANCE DOCUMENTS" means:
(a) when designated "MAIN BANK", the Senior Finance Documents as defined
in the Main Facility Agreement;
(b) when designated "SUPPLEMENTAL BANK", the Senior Finance Documents as
defined in the Supplemental Facility Agreement;
(c) when designated "ADDITIONAL SECURED INDEBTEDNESS", the agreements and
instruments for the time being evidencing the Additional Secured
Indebtedness and governing the terms thereof;
(d) when designated "SECURED SWAP", the Secured Swap Agreements and the
other agreements and instruments for the time being entered into in
connection therewith and governing the terms thereof; and
(e) without any such designation, the Main Bank Finance Documents, the
Supplemental Bank Finance Documents, the Additional Secured
Indebtedness Finance Documents and the Secured Swap Finance Documents.
"FINANCE PARTIES" means:
(a) when designated "MAIN BANK", the Finance Parties (as defined in the
Main Facility Agreement) that have executed this Agreement or acceded
to this Agreement pursuant to a Transfer Certificate (as defined in
the Main Facility Agreement) or by executing, together with the Group
Security Agent, a Finance Party Accession Agreement;
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(b) when designated "SUPPLEMENTAL BANK", the Finance Parties (as defined
in the Supplemental Facility Agreement) that have executed this
Agreement or acceded to this Agreement pursuant to a Transfer
Certificate (as defined in the Supplemental Facility Agreement) or by
executing, together with the Group Security Agent, a Finance Party
Accession Agreement;
(c) when designated "ADDITIONAL", the lenders from time to time (and/or
their agent(s)) under the Additional Secured Indebtedness Finance
Documents that have acceded to this Agreement by executing, together
with the Group Security Agent, a Finance Party Accession Agreement;
(d) when designated "SECURED SWAP", the Hedging Banks from time to time
(and/or their agent(s)) that enter into Secured Swap Agreements with
the Company in their capacity as swap counterparties under the Secured
Swap Agreements and that have acceded to this Agreement by executing,
together with the Group Security Agent, a Finance Party Accession
Agreement; and
(e) without any such designation, the Main Bank Finance Parties, the
Supplemental Bank Finance Parties, the Additional Finance Parties and
the Secured Swap Finance Parties.
"FINANCE PARTY ACCESSION AGREEMENT" means an accession agreement
substantially in the form set out in Schedule II hereto.
"GROUP" means the Company and its subsidiaries.
"GROUP SECURITY AGENT" means Deutsche Bank Polska S.A. acting in its
capacity as trustee and/or agent in relation to the Security Documents and
in relation to this Agreement on behalf of the Finance Parties, or such
other person as may from time to time be appointed pursuant to Clause 8.9.
"INDEBTEDNESS" means:
(a) when designated "MAIN BANK", all Obligations now or hereafter due,
owing or incurred to the Main Bank Finance Parties (or any of them) by
any Obligor under or in respect of the Main Bank Finance Documents (or
any of them);
(b) when designated "SUPPLEMENTAL BANK", all Obligations now or hereafter
due, owing or incurred to the Supplemental Bank Finance Parties (or
any of them) by any Obligor under or in respect of the Supplemental
Bank Finance Documents (or any of them);
(c) when designated "ADDITIONAL SECURED", all Obligations now or hereafter
due, owing or incurred to the Additional Finance Parties (or any of
them) by any Obligor under or in respect of indebtedness incurred
pursuant to and in accordance with Clause 19.26(a)(v)(A)(y) or
19.26(a)(vi)(B)(x) of the Main Facility Agreement and Clause
19.26(a)(v)(A)(y) or 19.26(a)(vi)(B)(x) of the Supplemental Facility
Agreement and secured by Security Interests permitted pursuant to, and
granted in accordance with, Clause 19.8(b)(vi) of the Main Facility
Agreement and Clause 19.8(b)(vi) of the Supplemental Facility
Agreement;
(d) when designated "SECURED SWAP" all Obligations now or hereafter due,
owing or incurred to the Secured Swap Finance Parties (or any of them)
by any Obligor under or in respect of Secured Swap Agreements or under
or in respect of Secured Swap Finance Documents in connection
therewith; and
(e) without any such designation, the Main Bank Indebtedness and/or the
Supplemental Bank Indebtedness and/or the Additional Secured
Indebtedness and/or the Secured Swap Indebtedness, as the context
requires.
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"MAJORITY FINANCE PARTIES" means, at any time, the Finance Parties whose
Proportionate Interests aggregate at least fifty-one per cent (51%) of all
the Proportionate Interests.
"NET SWAP AMOUNTS" means, at any time, (a) with respect to a Secured Swap
Finance Party, the net amount (if any) owing by any Obligor under all
Secured Swap Agreements with that Secured Swap Finance Party which have
been terminated at such time, and (b) with respect to all Secured Swap
Finance Parties, the sum of the Net Swap Amounts for all Secured Swap
Finance Parties (and, for the avoidance of doubt, the parties confirm that
the Net Swap Amounts for all Secured Swap Finance Parties is not reduced by
any net amount owed by a Secured Swap Finance Party to any Obligor under
the Secured Swap Agreements with that Secured Swap Finance Party), as such
"Net Swap Amounts" are calculated by the Group Security Agent (any such
calculation being conclusive, absent manifest error).
"OBLIGATIONS" means, with respect to any person, all liabilities and
obligations in any currency of such person of any kind, including, without
limitation, any liability of such person on any claim, whether or not the
right of any creditor to payment in respect of such claim is reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured, disputed,
stayed or otherwise affected by any bankruptcy or insolvency or similar
proceeding. Without limiting the generality of the foregoing, the
Obligations of any Obligor under the Finance Documents include, without
limitation, the obligation to pay principal, interest, reimbursement
obligations, letter of credit commissions, charges, expenses, fees,
attorney's fees and disbursements, indemnity and other amounts payable by
such Obligor under any Finance Document or any extensions or renewals
thereof, whether or not owed alone or jointly with any other person,
whether owed as principal or surety, whether current or otherwise and
whether or not from time to time decreased or extinguished and later
increased, created or incurred, and all or any portion of such obligations
or liabilities that are paid, to the extent all or any part of such payment
is avoided or recovered directly or indirectly from the Group Security
Agent or any Finance Party as a preference, invalid transfer or otherwise.
"OBLIGORS" means the Company and each other member of the Group which has
undertaken (or in the future undertakes) Obligations to a Finance Party
pursuant to one or more of the Finance Documents.
"PROPORTIONATE INTEREST" of a Finance Party means, as of any time at which
such interest shall be determined, a fraction, the numerator of which is
the Obligations representing outstanding principal, actual, but not
contingent, reimbursement obligations in respect of letters of credit
and/or bank guarantees and Net Swap Amounts owing to such Finance Party at
such time, and the denominator of which is the aggregate Obligations
representing outstanding principal, actual, but not contingent,
reimbursement obligations in respect of letters of credit and/or bank
guarantees and Net Swap Amounts owing to all Finance Parties at such time.
Any Obligations denominated in a currency other than Euros will, for the
purposes of this definition, be translated into Euros at the Agent's Spot
Rate of Exchange on the Business Day prior to the date on which the
Proportionate Interests are to be determined.
"REPRESENTATIVES" means (a) the Security Agent (as defined in the Main
Facility Agreement), (b) the Security Agent (as defined in the Supplemental
Facility Agreement), (c) the person(s) designated as agent and/or trustee
with respect to security under the Additional Secured Indebtedness Finance
Documents, provided if at any time an Additional Finance Party shall not
have appointed an agent and/or trustee, the Additional Finance Party shall
be the Representative for itself, and (d) the persons(s) designated as
agent and/or trustee with respect to security under the Secured Swap
Finance Documents, provided if at any time a Secured Swap Finance Party
shall not have appointed an agent and/or trustee, the Secured Swap Finance
Party shall be the Representative for itself.
"SECURED SWAP AGREEMENT" means any interest rate or foreign exchange
hedging agreement or arrangement entered into in accordance with Clause
19.14(a) of the Main Facility Agreement and Clause 19.14(a) of the
Supplemental Facility Agreement and secured by Security Interests permitted
pursuant to, and granted in accordance with, Clauses 19.14(c) and
19.8(b)(ii) of the Main Facility Agreement and Clauses 19.14(c) and
19.8(b)(ii) of the Supplemental Facility Agreement.
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"SECURITY" means any property or assets in which a Security Interest is
granted in accordance with the terms of the Security Documents.
"SECURITY DOCUMENTS" means (a) the Security Documents (as defined in the
Main Facility Agreement), (b) the Security Documents (as defined in the
Supplemental Facility Agreement), and (c) all other documents creating,
evidencing or granting a Security Interest in favour of the Finance Parties
(or any of them) in respect of the Obligations of any Obligor under the
Finance Documents (or any of them). For the avoidance of doubt, "SECURITY
DOCUMENTS" shall not include any guarantee from an affiliate of a Finance
Party.
"SECURITY INTEREST" means any mortgage, pledge, lien, charge, assignment
for the purpose of providing security, hypothecation or other security
interest.
"TRANSFEROR" has the meaning assigned to it in Clause 5.1.
"TRANSFEREE" has the meaning assigned to it in Clause 5.1.
1.2 Construction: In this Agreement, unless the context otherwise requires:
(a) a reference to any party hereto is, where relevant, deemed to be a
reference to or to include, as appropriate, that party's respective
permitted assignees, transferees and successors in title;
(b) references to Clauses, and Schedules are references to, respectively,
clauses of and schedules to this Agreement and references to this
Agreement include the Schedules;
(c) a reference to (or to any specified provision of ) any agreement, deed
or other instrument is to be construed as a reference to that
agreement, deed or other instrument or that provision as amended to
date and as from time to time amended, varied, supplemented, restated
or novated but excluding for this purpose any amendment, variation,
supplement or modification which is contrary to any provision of this
Agreement;
(d) a reference to a statute or statutory instrument is to be construed as
a reference to that statute or statutory instrument as the same may
have been, or may from time to time hereafter be, amended or
re-enacted;
(e) a time of day is a reference to London time;
(f) the index to and the headings in this Agreement are inserted for
convenience only and are to be ignored in construing this Agreement;
(g) words importing the plural shall include the singular and vice versa;
(h) a "person" includes any person, firm, company, corporation,
government, state or agency of a state or any other undertaking
(within the meaning of Section 259(1) of the Companies Act 1985) or
other entity or association (whether or not having separate legal
personality), or any two or more of the foregoing;
(i) "subsidiary" means, with respect to any person, any corporation or
other person more than fifty per cent. (50%) of whose securities or
other ownership interests having ordinary voting power for the
election of directors or similar representatives (other than
securities having such power only by reason of the happening of a
contingency) are, as of the date of determination thereof, directly or
indirectly owned by such person or one or more of such person's
subsidiaries; and
(j) "affiliate" means in relation to any person (i) any person (other than
a subsidiary) which, directly or indirectly, is in control of, is
controlled by, or is under common control with such person, or (ii)
any person who is a director or officer (A) of such person, (B) of any
subsidiary of such person or (C) of any person described in Clause (i)
above.
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2. PURPOSE AND RANKING
2.1 Purpose: The principal purpose of this Agreement is that:
(a) each Finance Party holding Security shall hold it for the benefit of
the Group Security Agent and all the Finance Parties, pro rata in
accordance with their respective Proportionate Interests from time to
time; and
(b) enforcement of the Security or amendment to Finance Documents
adversely affecting the Security shall only be undertaken with the
consent of the Majority Finance Parties.
2.2 No Prohibition of Finance Parties: Except as expressly provided to the
contrary in this Agreement or any Finance Document to which it is a party,
any Finance Party may:
(a) demand or receive payment, prepayment or repayment of, or any
distribution in respect of (or on account of), any of the Indebtedness
in cash or in kind or apply any money or property in discharge of any
Indebtedness;
(b) discharge any of the Indebtedness by set-off or any right of
combination of accounts;
(c) subject to Clause 2.3, amend, vary, waive or release any term of any
of the Finance Documents of which it is the holder or to which it is a
party, provided that any amendment or variation of the Additional
Secured Indebtedness Finance Documents or Secured Swap Finance
Documents not permitted by the provisions of the Main Bank Finance
Documents or the Supplemental Bank Finance Documents as in effect on
the date hereof shall result in the termination of all further rights
and claims of the relevant Additional Finance Parties (in the case of
such an amendment or variation to an Additional Secured Indebtedness
Finance Document) or of the relevant Secured Swap Finance Parties (in
the case of such an amendment or variation to a Secured Swap Finance
Document);
(d) accelerate any of the Indebtedness or otherwise declare any of the
Indebtedness owing to it payable on a Default or otherwise;
(e) enforce the Indebtedness owing to it by execution or otherwise;
(f) petition for (or vote in favour of any resolution for) or initiate or
participate in or support or take any steps with a view to any
insolvency, liquidation, reorganisation, administration or dissolution
proceedings, or any voluntary arrangement or assignment for the
benefit of creditors or any similar proceedings involving the
Obligors, whether by petition, convening a meeting, voting for a
resolution or otherwise; or
(g) otherwise exercise any rights or pursue any remedy for the recovery of
any of the Indebtedness or in respect of any breach of covenant,
misrepresentation or non-observance of any provision of any of the
Finance Documents evidencing or governing Indebtedness owing to it.
2.3 Limitations on Amendments to Finance Documents: No amendment, variation,
waiver or consent given under or in connection with the Finance Documents
shall:
(a) adversely affect the Security or the rights, preferences or priorities
of the Finance Parties under this Agreement;
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(b) release, invalidate or impair any of the Security, or cause or permit
the Security to constitute security for less than all of the relevant
category of Indebtedness arising under or in connection with the
Finance Documents; or
(c) increase the principal amount of the Indebtedness, except as permitted
by the Main Facility Agreement and the Supplemental Facility
Agreement;
unless in each case such amendment, variation, waiver or consent is
approved by the Group Security Agent, acting on the instructions of all of
the Finance Parties.
3. HOLDING OF SECURITY
Where any Security conferred by the Security Documents is held by one
Finance Party as trustee for the benefit of itself and other Finance
Parties, it shall be so held on a pari passu basis, pro rata in accordance
with the respective Proportionate Interests of the relevant Finance Parties
from time to time.
4. ENFORCEMENT OF SECURITY
4.1 Actions of Security Agent and Representatives:
(a) For so long as this Agreement shall be in effect, subject to Clause
2.3, (i) the Group Security Agent shall act in relation to the
Security Documents solely in accordance with the instructions of the
Majority Finance Parties and (ii) each Representative shall act in
relation to the Security Documents solely in accordance with the
instructions of the Group Security Agent (acting on the instructions
of the Majority Finance Parties).
(b) Without limiting the generality of the foregoing, each Finance Party
agrees that, so long as this Agreement shall be in effect, subject to
Clause 2.3, the Majority Finance Parties shall have the sole and
exclusive right to direct the Group Security Agent, and the Group
Security Agent (acting on the instructions of the Majority Finance
Parties) shall have the sole and exclusive right to direct each
Representative, in the administration and enforcement of all matters
in respect of the Security, including the right to direct the sale,
transfer, lease or other disposition of any Security, the foreclosure
or forbearance from foreclosure in respect of any Security and the
acceptance of Security in full or partial satisfaction of any amount
outstanding in respect of any Indebtedness.
(c) Except as otherwise specified herein, each Representative and each
other Finance Party agrees not to ask, demand, xxx for or otherwise
exercise any right or remedy in respect of the Security, or take or
receive from any Obligor or any other person, directly or indirectly,
in cash or other property, whether pursuant to any judicial or
non-judicial enforcement, collection, execution, levy or foreclosure
proceedings or otherwise, including by deed in lieu of foreclosure,
any Security or any part thereof or interest therein.
4.2 Assistance: Each Representative and each other Finance Party shall execute
or procure the execution of and deliver to the Group Security Agent such
powers of attorney, proxies, authorisations, assignments or other
instruments as may be reasonably requested by the Group Security Agent to
file any claims or take any action or institute any proceedings that the
Group Security Agent may deem reasonably necessary or desirable for the
collection of any of the Security or otherwise to enforce the rights of the
Group Security Agent or any Representative or any other Finance Party with
respect to any of the Security.
4.3 Turnover: All payments or distributions upon or with respect to the
Security that are received by any Representative or any other Finance Party
other than pursuant to Clause 5 shall be received in trust for the benefit
of the Group Security Agent and the Finance Parties, shall be segregated
from other funds and property held by such Representative or such other
Finance Party, as the case may be, and shall forthwith be
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paid over to the Group Security Agent in the same form as so received (with
any necessary endorsement) to be held as part of the Security and applied
and distributed in accordance with Clause 5.
4.4 Inconsistency: In the event that the terms of any Security Document or any
terms relating to Security contained in any other Finance Document are
inconsistent with the terms of this Agreement, the terms of this Agreement
shall be controlling.
5. PROPORTIONATE DIVISION OF PROCEEDS
Any and all proceeds of the Security received by the Group Security Agent
shall be applied as follows:
First, to the reimbursement of the Group Security Agent and each
Representative for all of the amounts advanced by it to preserve,
maintain and protect the Security in the event of a Default by any
Obligor under the Finance Documents;
Second, to the reimbursement of the Group Security Agent and each
Representative for all amounts expended by it in obtaining and
disposing of the Security (including, without limitation, reasonable
legal fees, trustees' fees and other expenses of collection and
enforcement of remedies);
Third, in payment of any unpaid fees, costs and expenses of the Agents
(in their respective capacities as Agents) under the Finance Documents
(including, without limitation, amounts advanced by any Agent on
behalf of any other Finance Party under the Finance Documents);
Fourth, in payment to the Finance Parties of Obligations of the
Obligors (or any of them) under the Finance Documents (or any of them)
in respect of interest and fees then due and payable;
Fifth, in payment to the Finance Parties of Obligations of the
Obligors (or any of them) under the Finance Documents (or any of them)
in respect of reimbursement obligations in respect of letters of
credit and/or bank guarantees, principal and Net Swap Payments then
due and payable;
Sixth, in payment to the Finance Parties of all other undischarged
Obligations of the Obligors (or any of them) under the Finance
Documents (or any of them);
Seventh, if any of the Obligations in respect of the Indebtedness
shall remain outstanding or may thereafter mature or accrue, any and
all surplus proceeds shall be held by the Group Security Agent, in a
market rate interest bearing account, to secure such Obligations
accruing thereafter and such proceeds shall be deemed to be Security
hereunder; and
Eighth, any surplus remaining shall be allocated to the payment of the
person or persons legally entitled thereto;
provided, however, that to the extent such proceeds are insufficient to
reimburse all of the Obligations and other amounts afforded a particular
priority as set forth above, such proceeds shall be distributed to the
Finance Parties pro rata based on such Obligations and other amounts owing
to such Finance Parties, respectively.
6. ADDITIONAL PARTIES
6.1 Assignment and Transfers by the Finance Parties:
(a) A Finance Party, or any successor or assign of such party (in this
capacity the "TRANSFEROR") may assign or otherwise transfer all or any
part of its rights and/or obligations under this Agreement to any
person (a "TRANSFEREE") to whom a Transferor is permitted to assign or
otherwise transfer
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rights and/or obligations under and in accordance with the Main Bank
Finance Documents, the Supplemental Bank Finance Documents, the
Secured Swap Finance Documents or the Additional Secured Indebtedness
Finance Documents (as the case may be).
(b) Such assignment or transfer will become effective upon execution by
the Group Security Agent of a Finance Party Accession Agreement (in
substantially the form of Schedule II hereto) or, in the case of a
Transferee that is or is to be a Main Bank Finance Party or
Supplemental Bank Finance Party, a Transfer Certificate (as defined in
the Main Facility Agreement or the Supplemental Facility Agreement, as
the case may be), in either case, duly completed, executed and
delivered to the Group Security Agent by or on behalf of such
Transferee pursuant to which the Transferee agrees to be bound by all
of the terms of this Agreement as if it had originally been party to
this Agreement as a Main Bank Finance Party, a Supplemental Bank
Finance Party, a Secured Swap Finance Party or an Additional Finance
Party (as the case may be) (including, for the avoidance of doubt,
appointing the Group Security Agent as security agent and trustee
under the Security Documents) and, to the extent permitted by
applicable law and the Finance Documents, the Representative of the
Transferee may execute a Finance Party Accession Agreement on behalf
of the Transferee.
6.2 Accession of Finance Parties:
(a) Each Additional Finance Party shall accede to the rights and
obligations specified for Additional Finance Parties herein by duly
completing, executing and delivering to the Group Security Agent a
Finance Party Accession Agreement pursuant to which the Additional
Finance Party agrees to be bound by all the terms of this Agreement as
if it had originally been party to this Agreement as an Additional
Finance Party and, to the extent permitted by applicable law and the
Additional Secured Indebtedness Finance Documents, and if the Group
Security Agent is satisfied it is authorised to do so, the
Representative of an Additional Finance Party may execute a Finance
Party Accession Agreement on behalf of an Additional Finance Party
(including, for the avoidance of doubt, appointing the Group Security
Agent as security agent and trustee under the relevant Security
Documents). Such accession will become effective upon execution by the
Group Security Agent of such Finance Party Accession Agreement.
(b) Each Secured Swap Finance Party shall accede to the rights and
obligations of a Secured Swap Finance Party herein by duly completing,
executing and delivering to the Group Security Agent a Finance Party
Accession Agreement pursuant to which the Secured Swap Finance Party
agrees to be bound by all the terms of this Agreement, in its capacity
as a Secured Swap Finance Party, as if it had originally been party to
this Agreement as a Secured Swap Finance Party and, to the extend
permitted by applicable law and the Secured Swap Finance Documents,
and if the Group Security Agent is satisfied it is authorised to do
so, the Representative of a Secured Swap Finance Party may execute a
Finance Party Accession Agreement on behalf of a Secured Swap Finance
Party (including, for the avoidance of doubt, appointing the Group
Security Agent as security agent and trustee under the relevant
Secured Documents).
6.3 Group Security Agent:
(a) Each of the parties to this Agreement (other than the relevant new
Transferee, Secured Swap Finance Party or Additional Finance Party)
hereby irrevocably authorises the Group Security Agent to execute on
its behalf any Finance Party Accession Agreement which has been duly
completed, executed and delivered on behalf of a Transferee, a Secured
Swap Finance Party or an Additional Finance Party.
(b) The Group Security Agent will promptly execute any properly completed
Finance Party Accession Agreement delivered to it.
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(c) The Group Security Agent will promptly notify the Representatives of
the receipt and execution by it on their behalf of any Finance Party
Accession Agreement.
6.4 Benefit of Agreement: This Agreement will be binding upon, and ensure for
the benefit of, each party to it and its or any subsequent successor or
assign.
7. REPRESENTATION AND WARRANTIES
Each party to this Agreement (other than the EBRD) hereby represents and
warrants to and for the benefit of each of the other parties to this
Agreement that it has all necessary consents, approvals, authorisations and
legal capacity to enter into this Agreement and the other Finance Documents
to which it is party and all necessary corporate, shareholder and other
action has been taken to ensure that this Agreement and the other Finance
Documents to which it is a party has been validly entered into by it and
creates legal, valid, binding and enforceable obligations upon it.
8. INFORMATION AND COOPERATION
8.1 Default: Upon any party hereto receiving notice of the occurrence of a
Default, such party will promptly notify the other Representatives and/or
Group Security Agent, as the case may be, in writing of such Default.
8.2 Waiver of Defaults: Upon the waiver or remedy of a Default in accordance
with the Finance Documents, the relevant Representative will promptly
notify the Representatives and/or Group Security Agent, as the case may be,
in writing of such waiver or remedy.
8.3 Consultation: The Group Security Agent shall, so far as practicable in the
circumstances from time to time, consult with the Representatives:
(a) before taking any formal steps to exercise any remedy against any
member of the Group; and
(b) generally with regard to significant matters affecting the rights of
the parties as regulated by this Agreement;
but nothing in this Clause 8.3 or elsewhere in this Agreement will
invalidate or otherwise affect any action or step taken in accordance with
this Agreement but without such consultation.
8.4 Notification of Breach: Each party to this Agreement will notify the Group
Security Agent of any breach of the provisions of this Agreement promptly
upon such party becoming aware of such breach.
8.5 Other Information: Each Representative and each other Finance Party shall
furnish to the Group Security Agent such information relating to the
Obligations owing to the Finance Parties as the Group Security Agent shall
reasonably request.
9. APPOINTMENT AND DUTIES OF THE GROUP SECURITY AGENT
9.1 Appointment and duties of the Group Security Agent:
(a) Deutsche Bank Polska S.A. is hereby appointed as Group Security Agent
to act as agent and security trustee for the purpose of the Security
Documents and this Agreement and is hereby irrevocably authorised to
exercise such rights, powers and discretions as are specifically
delegated to it by the terms of the Security Documents and this
Agreement, together with all such rights, powers and discretions as
are incidental thereto, and to give a good discharge for any moneys
payable under the Security Documents.
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(b) The Group Security Agent shall not have, nor be deemed to have,
assumed any obligations to, or trust or fiduciary relationship with,
any party to this Agreement or any Finance Party other than those for
which specific provision is made by the Security Documents entered
into by it and this Agreement.
(c) The Group Security Agent shall not be or be deemed to be agent or
trustee for any party to this Agreement other than the Finance
Parties.
9.2 The Group Security Agent's Duties: The Group Security Agent shall:
(a) promptly send to the Representatives details of each communication
received by it under this Agreement or under the Security Documents;
(b) promptly send to each Representative a copy of any legal opinion
delivered to it under this Agreement or any of the Security Documents
and of any document or information received by it pursuant to this
Agreement or any of the Security Documents;
(c) act in accordance with any written instructions given by the Majority
Finance Parties in accordance with this Agreement;
(d) have only those duties, obligations and responsibilities expressly
specified in the Security Documents or this Agreement; and
(e) promptly notify each Representative of the occurrence of any Default
on becoming aware of it.
9.3 The Group Security Agent's Rights: Subject to the provisions of this
Agreement, the Group Security Agent may:
(a) perform any of its duties, obligations and responsibilities under the
Security Documents or this Agreement by or through its personnel,
delegates or agents selected by it with reasonable care (on the basis
that the Group Security Agent may extend the benefit of any indemnity
received by it hereunder to its personnel, delegates or agents);
(b) refrain from exercising any right, power or discretion vested in it
under the Security Documents or this Agreement until it, where so
required hereunder, has received instructions in accordance with this
Agreement;
(c) refrain from doing anything which would or might in its reasonable
opinion be contrary to any law, directive or judgment of any court of
any applicable jurisdiction or otherwise render it liable to any
person and may do anything which is in its opinion necessary to comply
with any such law, directive or judgment;
(d) assume that no Default has occurred unless an officer of the Group
Security Agent, while active on the account of the Company, acquires
actual knowledge to the contrary;
(e) refrain from taking any step (or further step) to protect or enforce
the rights of any Finance Party under any of the Security Documents or
this Agreement until it has been indemnified and/or secured to its
satisfaction against any costs, losses, expenses or liabilities
(including legal fees) which it would or might sustain or incur as a
result;
(f) rely on any communication or document reasonably believed by it to be
genuine and correct and assume it to have been communicated or signed
by the person by whom it purports to be communicated and signed;
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(g) rely as to any matter of fact which might reasonably be expected to be
within the knowledge of any person on a statement by or on behalf of
such person;
(h) obtain and pay for such legal or other expert advice or services as
may be reasonably necessary or desirable in connection with the
fulfillment of its duties hereunder and rely on any such advice;
(i) accept without enquiry such title as an Obligor may have to any asset
or assets intended to be the subject of the security created by the
Security Documents; and
(j) hold or deposit any title deeds, Security Documents or any other
documents in connection with any of the assets charged by the Security
Documents with any reputable bankers or banking company or any company
whose business includes undertaking the safe custody of deeds or
documents or with any reputable lawyer or firm of lawyers and it shall
not be responsible for or be required to insure against any loss
incurred in connection with any such holding or deposit and it may pay
all sums required to be paid on account or in respect of any such
deposit.
9.4 Exoneration of the Group Security Agent: Neither the Group Security Agent
nor any of its personnel or agents:
(a) shall be responsible for the adequacy, accuracy or completeness of any
representation, warranty, statement or information in the Security
Documents or this Agreement or any notice or other document delivered
under the Security Documents or this Agreement by or against the
parties other than the Group Security Agent;
(b) shall be responsible for the execution, delivery, validity, legality,
adequacy, enforceability or admissibility in evidence of any of the
Security Documents or this Agreement by the parties other than the
Group Security Agent;
(c) shall be obliged to enquire as to the occurrence or continuation of a
Default or as to the accuracy or completeness of any representation or
warranty made by any person;
(d) shall be responsible for any failure of any Obligor or any of the
Finance Parties duly and punctually to observe and perform their
respective obligations under the Security Documents or this Agreement;
(e) shall be responsible for the consequences of relying on the advice of
any professional advisers selected by any of them in connection with
the Security Documents or this Agreement;
(f) shall be liable for acting (or refraining from acting) in what it
believes in good faith to be in the best interests of the Finance
Parties or any of them in circumstances where it has been unable, or
it is not practicable, to obtain instructions in accordance with this
Agreement; or
(g) shall be liable for anything done or not done by it under or in
connection with the Security Documents or this Agreement in each case,
save in the case of its own negligence or willful misconduct.
9.5 The Group Security Agent as Finance Party:
(a) For so long as it is a Finance Party in a capacity other than as Group
Security Agent, the Group Security Agent shall have the same rights,
powers and obligations under the Finance Documents as any other
Finance Party and may exercise those rights and powers as if it were
not also acting as Group Security Agent.
(b) The Group Security Agent may:
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(i) retain for its own benefit and without liability to account any
fee or other sum receivable by it for its own account; and
(ii) accept deposits from, lend money to, provide any advisory, trust
or other services to or engage in any kind of banking or other
business with any party to this Agreement or any subsidiary or
any party (and, in each case, may do so without liability to
account).
9.6 Communications and Information:
(a) The Group Security Agent will not be obligated to transmit to the
Finance Parties any information in any way relating to the Security
Documents or this Agreement which the Group Security Agent may have
acquired otherwise than in its capacity as Group Security Agent.
Notwithstanding anything to the contrary expressed or implied herein,
the Group Security Agent shall not as between itself and the Finance
Parties be bound to disclose to any Finance Party or other person any
information, disclosure of which might in the opinion of the Group
Security Agent result in a breach of any law or directive or be
otherwise actionable at the suit of any person.
(b) In acting as Group Security Agent for the Finance Parties or any of
them, the Group Security Agent's banking division shall be treated as
a separate entity from any other of its divisions (or similar unit of
the Group Security Agent in any subsequent re-organisation) or
affiliates (the "OTHER DIVISIONS") and, in the event that any of the
Other Divisions should act for the Company or any other member of the
Group in a corporate finance or other advisory capacity ("ADVISORY
CAPACITY"), any information given by the Company or any other member
of the Group to one of the Other Divisions is to be treated as
confidential and will not be available to the Finance Parties or the
banking division of the Group Security Agent without the consent of
the Company, provided that:
(i) the consent of the Company shall not be required in relation to
any information which the Group Security Agent in its discretion
determines relates to a Default or in respect of which the
Finance Parties to which such information is disclosed have given
a confidentiality undertaking in a form satisfactory to the Group
Security Agent and the relevant member of the Group acting
reasonably; and
(ii) if representatives or employees of the Group Security Agent
receive information in relation to a Default whilst acting in an
Advisory Capacity, they will not be obligated to disclose such
information to representatives or employees of the Group Security
Agent in their capacity as Group Security Agent or to any of the
Finance Parties if to do so would breach any rule or regulation
or fiduciary duty imposed upon such persons.
9.7 Non-Reliance on the Group Security Agent: Each Finance Party will be solely
responsible for making its own independent investigation and appraisal of
the business, operations, financial condition, creditworthiness, status and
affairs of the Company and each other member of the Group and has not
relied, and will not at any time rely on the Group Security Agent:
(a) to provide it with any information relating to the business,
operations, financial condition, creditworthiness, status and affairs
of the Company or any other member of the Group (other than as is
explicitly required by Clause 8.2); or
(b) to check or enquire into the adequacy or completeness of any
information provided by an Obligor under or in connection with any of
the Security Documents or this Agreement (whether or not such
information has been or is at any time circulated to it by the Group
Security Agent); or
(c) to assess or keep under review the business, operations, financial
condition, creditworthiness, status or affairs of the Company or any
other member of the Group.
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9.8 Indemnity to the Group Security Agent: Each Finance Party shall on demand
indemnify the Group Security Agent against its Proportionate Interest of
any cost, loss, expense or liability sustained or incurred by the Group
Security Agent in complying with any instructions from the Finance Parties
or otherwise sustained or incurred by it in its capacity as Group Security
Agent for the Finance Parties under or in connection with the Security
Documents or this Agreement or in the performance of its duties,
obligations and responsibilities under the Security Documents or this
Agreement, except to the extent sustained or incurred as a result of the
negligence or wilful misconduct of the Group Security Agent or any of its
personnel.
9.9 Resignation of the Group Security Agent: Appointment of a successor:
(a) The Group Security Agent may, subject to Clause 9.9(d) below, resign
its appointment at any time by giving 30 days' notice to the
Representatives and the Company.
(b) The Group Security Agent may be removed by the Majority Finance
Parties at any time.
(c) A successor Group Security Agent shall be selected:
(i) by the retiring Group Security Agent nominating one of its
affiliates as successor Group Security Agent in its notice of
resignation; or
(ii) if the retiring Group Security Agent makes no such nomination,
by the Majority Finance Parties nominating one of the Finance
Parties as successor Group Security Agent (following
consultation with the Company); or
(iii) if the Majority Finance Parties have failed to nominate a
successor Group Security Agent within 30 days after the date of
the retiring Group Security Agent's notice of resignation, by
the retiring Group Security Agent (following consultation with
the Company) nominating a financial institution of good standing
to be the successor Group Security Agent.
(d) The resignation of the retiring Group Security Agent and the
appointment of the successor Group Security Agent will (subject as
provided in Clause 9.9(g) below) become effective upon the successor
Group Security Agent accepting its appointment as Group Security Agent
in writing at which time:
(i) the successor Group Security Agent will become bound by all the
obligations of the Group Security Agent and become entitled to
all the rights, privileges, powers, authorities and discretions
of the Group Security Agent hereunder;
(ii) the agency of the retiring Group Security Agent will terminate
but without prejudice to any rights or liabilities which the
retiring Group Security Agent may have accrued or incurred prior
to the termination of its agency; and
(iii) the retiring Group Security Agent will be discharged from any
further liability or obligation under or in connection with the
Security Documents or this Agreement.
(e) The retiring Group Security Agent will co-operate with the successor
Group Security Agent in order to ensure that its functions are
transferred to the successor Group Security Agent and will promptly
make available to the successor Group Security Agent such documents
and records as have been maintained in connection with this Agreement
in order that the successor Group Security Agent is able to discharge
its functions.
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(f) The provisions of this Agreement will continue in effect for the
benefit of any retiring Group Security Agent in respect of any action
taken or omitted to be taken by it or any event occurring before the
termination of its agency.
(g) The Group Security Agent's resignation shall not take effect until all
necessary agreements and documents have been entered into in order to
substitute its successor as holder of the Security Documents and each
other party agrees to promptly enter into any documents reasonably
required for this purpose.
9.10 Role of the Group Security Agent: The Group Security Agent shall hold the
benefit of the Security Documents to which it is party as agent and trustee
for itself and the Finance Parties and apply all payments and other
benefits received by it by reason thereof, or otherwise realised
thereunder, in accordance with this Agreement.
9.11 Change of Office of the Group Security Agent: The Group Security Agent may
at any time and from time to time in its sole discretion by written notice
to the Company and each of the other Finance Parties designate a different
office in Poland from which its duties as Group Security Agent will
thereafter be performed.
9.12 Luxembourg Security: Notwithstanding anything to the contrary contained in
any Finance Document, with respect to any Security located in Luxembourg or
subject to a Security Document governed by Luxembourg law, the
Representative acting as security agent under any Security Document shall
be the Group Security Agent.
10. NOTICE
10.1 Communications in Writing: Any communication to be made under or in
connection with this Agreement shall be made in writing and, unless
otherwise stated, may be made by fax or letter or (to the extent that the
relevant party has specified such address pursuant to Clause 10.2 by
e-mail.
10.2 Addresses:
(a) The address and fax number, and (if so specified) e-mail address, and,
where appropriate, web site (and the department or officer, if any,
for whose attention the communication is to be made) of each party for
any communication or document to be made or delivered under or in
connection with this Agreement is:
(i) in the case of the Company, that identified with its name below;
(ii) in the case of each Finance Party or any other Obligor, that
notified in writing to the Group Security Agent on or prior to
the date on which it becomes a party; and
(iii) in the case of the Group Security Agent, that identified with
its name below,
or any substitute address, fax number, e-mail address, web site or
department or officer, or initial e-mail address as the party may
notify to the Group Security Agent (or the Group Security Agent may
notify to the other parties, if a change is made by the Group Security
Agent) by not less than five Business Days' written notice.
(b) The address, facsimile number and e-mail address of the Group Security
Agent are:
Deutsche Bank Polska S.A.
Plac Xxxxxxxxxx 12/14/16
00-000 Xxxxxxxx
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Poland
Tel: x00 00 0000000
Facsimile: x00 00 0000000
Email: xxx.xxxxxxxxxxx@xx.xxx
Attn: Xxx Xxxxxxxxxxx (Collateral Unit)
or such other as the Group Security Agent may notify to the other parties
by not less than five Business Days' notice.
10.3 Delivery:
(a) Subject to subclause (b) below, any communication or document made or
delivered by one person to another under or in connection with this
Agreement will only be effective:
(i) if by way of fax or e-mail, when received in legible form; or
(ii) if by way of letter, when it has been left at the relevant
address or five Business Days after being deposited in the post
postage prepaid in an envelope addressed to it at that address;
or
(iii) where reference in such communication is to a web site, when the
delivery of the letter, fax or, as the case may be e-mail
referring the addressee to such web site is effective;
and, if a particular department or officer is specified as part of its
address details provided under Clause 10.2, if addressed to that
department or officer.
(b) Any communication or document to be made or delivered to the Group
Security Agent will be effective only when actually received by such
person.
(c) All notices to an Obligor in relation to the Security, the Security
Documents or the enforcement thereof shall be sent through the Group
Security Agent.
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10.4 Notification of address, fax number and e-mail address: Promptly upon
receipt of notification of an address, fax number or (as the case may be)
e-mail or change of address, fax number or e-mail pursuant to Clause 10.2
or changing its own address, fax number or e-mail, the Group Security Agent
shall notify the other parties.
11. NO IMPLIED WAIVERS
11.1 No Waiver: No failure or delay by any of the Finance Parties in exercising
any right, power or privilege under this Agreement shall operate as a
waiver thereof nor shall any single or partial exercise or any right, power
or privilege preclude any other or further exercise thereof or the exercise
of any other right, power or privilege.
11.2 Cumulative Rights: The rights and remedies of the Finance Parties provided
in this Agreement are cumulative and not exclusive of any rights or
remedies provided by law.
11.3 Waiver in writing: A waiver given or consent granted by the Finance Parties
under this Agreement will be effective only if given in writing and then
only in the instance and for the purpose for which it is given.
12. INVALIDITY OF ANY PROVISION
If any provision of this Agreement is or becomes invalid, illegal or
unenforceable in any respect under any law, the validity, legality and
enforceability of the remaining provisions will not be affected or impaired
in any way.
13. TERMINATION
This Agreement shall terminate upon the latest to occur of (a) the payment
in full in cash of the Indebtedness, (b) the termination of the
commitments, if any, under the Finance Documents and (c) the expiration or
termination of the Secured Swap Finance Documents; provided that Clauses 9
and 15 shall survive any such termination.
14. LANGUAGE
(a) Any notice given under or in connection with this Agreement shall be
in English.
(b) All other documents provided under or in connection with this
Agreement shall be:
(i) in English; or
(ii) if not in English, accompanied by a certified English translation
and, in this case, the English translation shall prevail unless
the document is a statutory or other official document.
(c) Counterparts of this Agreement shall be executed in both the English
and the Polish languages. In the event of any inconsistency between
the English text and the Polish text, the English text shall prevail.
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15. GOVERNING LAW AND ARBITRATION
15.1 Governing Law: This Agreement shall be governed by and construed in all
respects in accordance with English law.
15.2 Arbitration
Subject to Clause 15.3, any dispute, controversy or claim arising out of or
in connection with this Agreement, including any question regarding the
existence, validity, interpretation, breach or termination of this
Agreement (a "DISPUTE") shall be finally resolved in accordance with the
UNCITRAL Arbitration Rules as at present in force. The arbitral tribunal
shall consist of a sole arbitrator (the "TRIBUNAL"). The appointing
authority shall be the London Court of International Arbitration. The place
of arbitration shall be London, England and the language shall be English.
Any award of the sole arbitrator shall be binding from the day it is made
and the parties hereby waive any rights to refer any question of law and
any right of appeal on the law and/or merits to any court. The Tribunal
shall not be authorised to take or provide, and the parties hereto other
than the EBRD shall not be authorised to seek from any judicial authority,
any interim measures of protection or pre-award relief against the EBRD,
any provisions of the UNCITRAL Arbitration Rules notwithstanding. The
Tribunal shall have authority to consider and include in any proceeding,
decision or award any further dispute properly brought before it by the
EBRD (but no other party) insofar as such dispute arises out of this
Agreement, but, subject to the foregoing, no other parties or other
disputes shall be included in, or consolidated with, the arbitral
proceedings.
15.3 Submission
Notwithstanding Clause 15.2, a party may, subject to Clause 15.5, before
taking a substantive step in any arbitration proceedings, refer a Dispute
exclusively to the courts of England and each party to this Agreement
hereby submits to the jurisdiction of such courts. However, such submission
to the jurisdiction of the English courts will only be effective, in so far
as EBRD is concerned, if EBRD's consent, pursuant to Clause 15.5, is
obtained prior to the commencement of any such action.
15.4 Forum Conveniens and Enforcement Abroad
All parties to this Agreement:
(a) waive objection to the English courts on grounds of inconvenient forum
or otherwise as regards proceedings in connection with this Agreement;
and
(b) agree that a judgment or order of an English court in connection with
this Agreement is conclusive and binding on it and may be enforced
against it in the courts of any other jurisdiction.
15.5 EBRD Consent
Notwithstanding Clause 15.3, no Dispute may be referred to the courts of
England by any party to this Agreement on behalf of or involving or
including EBRD without the prior written consent of EBRD.
15.6 Non-waiver
Nothing in this Agreement shall be construed as a waiver, renunciation or
other modification of any immunities, privileges or exemptions of the EBRD
accorded under the Agreement Establishing the European Bank for
Reconstruction and Development, international convention or any applicable
law.
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16. COUNTERPARTS
This Agreement may be executed in any number of counterparts and all of
such counterparts taken together shall be deemed to constitute one and the
same instrument.
17. AMENDMENTS TO THIS AGREEMENT
This Agreement may be amended by a written instrument signed by the Finance
Parties or, to the extent signature by a Representative is capable of
binding the relevant Finance Parties, their respective Representatives.
18. THIRD PARTIES
A person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) Xxx 0000 to enforce or to enjoy the
benefit of any terms of this Agreement.
IN WITNESS WHEREOF this Agreement has been duly executed by each of the
parties hereto the day and year first above written.
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SCHEDULE I
FINANCE PARTIES
Deutsche Bank Luxembourg S.A., as facility agent under the Main Facility
Agreement
Deutsche Bank Polska S.A., as security agent under the Main Facility Agreement
Banks under the Main Facility Agreement
Bank fur Arbeit und Wirtschaft Aktiengesellschaft
Bank Xxxxxx Spolka Akcyjna
Bank Zachodni, S.A.
Bayerische Landesbank Girozentrale
BIG Bank XXXXXXX X.X.
BRE Bank S.A.
Citibank (Poland) S.A.
Deutsche Bank Luxembourg S.A.
Deutsche Bank Polska X.X.
Xxxxxxxx Bank Luxembourg S.A.
The European Bank for Reconstruction and Development
Industriebank von Japan (Deutschland) Aktiengesellschaft
ING Bank N.V., Warsaw Branch
Kreditanstalt fur Wiederaufbau
Kredyt Bank S.A.
LG PetroBank S.A.
Mizuho Bank Nederland NV
Powszechny Bank Kredytowy S.A. w Warszawie
Westdeutsche Landesbank Girozentrale, London Branch
Wielkopolski Bank Kreditowy S.A.
Deutsche Bank Luxembourg S.A., as facility agent under the Supplemental Facility
Agreement
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145
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Deutsche Bank Polska S.A., as security agent under the Supplemental Facility
Agreement
Banks under the Supplemental Facility Agreement
Deutsche Bank Luxembourg S.A.
Deutsche Bank Polska X.X.
Xxxxxxxx Bank Luxembourg S.A.
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SCHEDULE II
FINANCE PARTY ACCESSION AGREEMENT
THIS AGREEMENT is made on
BETWEEN:
(1) [ ] (the "NEW FINANCE PARTY") and
(2) DEUTSCHE BANK POLSKA S.A., in its capacity as Group Security Agent under
the Intercreditor Agreement.
RECITAL:
(A) This Agreement is supplemental to a Collateral Sharing Intercreditor
Agreement dated __ February, 2001 (the "INTERCREDITOR AGREEMENT")
between, amongst others, Polska Telefonia Cyfrowa Sp. z o.o. and
Deutsche Bank Polska S.A. as Group Security Agent.
(B) This Agreement has been entered into to record the accession of the
New Finance Party as a [Main Bank Finance Party] [Supplemental Bank
Finance Party] [Additional Finance Party][Secured Swap Finance Party]
under the Intercreditor Agreement pursuant to the provisions of Clause
[5.1]/[5.2] thereof.
NOW THIS AGREEMENT WITNESSES as follows:
1. DEFINITIONS
Terms defined in the Intercreditor Agreement shall have the same meaning
when used in this Agreement.
2. ACCESSION OF NEW [MAIN BANK FINANCE PARTY] [SUPPLEMENTAL BANK FINANCE
PARTY] [ADDITIONAL FINANCE PARTY][SECURED SWAP FINANCE PARTY]
2.1 The New Finance Party hereby agrees to become, with immediate effect, a
[Main Bank Finance Party] [Supplemental Bank Finance Party] [Additional
Finance Party][Secured Swap Finance Party] and agrees to be bound by all of
the terms of the Intercreditor Agreement as if it had originally been party
thereto as a [Main Bank Finance Party] [Supplemental Bank Finance Party]
[Additional Finance Party][Secured Swap Finance Party] thereunder
including, for the avoidance of doubt, appointing the Group Security Agent
as security agent and trustee under the relevant Security Documents.
2.2 The New Finance Party confirms that its address details for notices in
relation to Clause 9 of the Intercreditor Agreement are as follows:
Address: o
Facsimile: o
Email: o
Attention: o
2.3 By its signature below, the Group Security Agent (for itself and on behalf
of the Obligors and the Finance Parties) confirms the acceptances of the
New Finance Party as a [Main Bank Finance Party] [Supplemental Bank Finance
Party] [Additional Finance Party][Secured Swap Finance Party] for all
purposes under the Intercreditor Agreement in accordance with Clause 5.3
thereof.
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3. LAW
This Agreement shall be governed and construed in all respects in
accordance with English law.
4. COUNTERPARTS
The Agreement may be executed in any number of counterparts and all of such
counterparts taken together shall be deemed to constitute one and the same
instrument.
IN WITNESS whereof this Agreement has been duly executed the day and year first
above written.
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SIGNATORIES TO THE ACCESSION AGREEMENT
The New [Main Bank Finance Party] [Supplemental Bank Finance Party] [Additional
Finance Party][Secured Swap Finance Party][Representative of such person]
By:
----------------------------------
Name:
Title:
The Group Security Agent
DEUTSCHE BANK POLSKA S.A.
By:
----------------------------------
Name:
Title:
[Without prejudice to the foregoing, execution of this Agreement by the parties
hereto, [Main Bank Finance Party] [Supplemental Bank Finance Party] [Additional
Finance Party][Secured Swap Finance Party][Representative of such person] hereby
expressly and specifically confirms its agreement with the granting of
jurisdiction to English courts provided for in this Agreement for the purpose of
Article 1 of the Protocol annexed to the Convention on the Jurisdiction and the
Enforcement of Judgments in Civil and Commercial Matters signed at Brussels on
27 September, 1968, as amended.]*
---------------
* required in the event that new party is incorporated in Luxembourg
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GROUP SECURITY AGENT
DEUTSCHE BANK POLSKA S.A.
By:
------------------------ ----------------------
Name:
Title:
SECURITY AGENT FOR THE MAIN BANK FACILITY
DEUTSCHE BANK POLSKA S.A.
for itself and on behalf of the Banks
By:
------------------------ ----------------------
Name:
Title:
AGENT FOR THE MAIN BANK FACILITY
DEUTSCHE BANK LUXEMBOURG S.A.
By:
------------------------ ----------------------
Name:
Title:
SECURITY AGENT FOR THE SUPPLEMENTAL BANK FACILITY
DEUTSCHE BANK POLSKA S.A.
for itself and on behalf of the Banks
By:
------------------------ ----------------------
Name:
Title:
AGENT FOR THE SUPPLEMENTAL BANK FACILITY
DEUTSCHE BANK LUXEMBOURG S.A.
By:
------------------------ ----------------------
Name:
Title:
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[AGENT FOR THE NEW FACILITY
NAME OF AGENT BANK
By:
------------------------ ----------------------
Name:
Title:]
Without prejudice to the foregoing, execution of this Agreement by the parties
hereto, Deutsche Bank Luxembourg S.A. hereby expressly and specifically confirms
its agreement with the granting of jurisdiction to English courts provided for
in this Agreement for the purpose of Article 1 of the Protocol annexed to the
Convention on the Jurisdiction and the Enforcement of Judgments in Civil and
Commercial Matters signed at Brussels on 27 September, 1968, as amended.
For DEUTSCHE BANK LUXEMBOURG S.A.
By:
------------------------ ----------------------
Name:
Title:
Without prejudice to the foregoing, execution of this Agreement by the parties
hereto, Dresdner Bank Luxembourg S.A. hereby expressly and specifically confirms
its agreement with the granting of jurisdiction to English Courts provided for
in this Agreement for the purpose of Article 1 of the Protocol annexed to the
Convention on the Jurisdiction and the Enforcement of Judgments in Civil and
Commercial Matters signed at Brussels on 27 September, 1968, as amended. *
For DRESDNER BANK LUXEMBOURG S.A.
By:
------------------------ ----------------------
Name:
Title:
-----------------
* Repeat this specific acceptance of jurisdiction clause for any other party
incorporated in Luxembourg.
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SIGNATORIES TO FACILITY AGREEMENT
BORROWER
POLSKA TELEFONIA CYFROWA SP. Z O. O.
By: /s/ X. Xxxxxxxxxx /s/ Xxxxxxx Xxxxxxxxxx
--------------------------------------- ----------------------------
Name: Xxxxxxxx Xxxxxxxxxx Xxxxxxx Xxxxxxxxxx
Title: Management Board Member Management Board Member
GUARANTORS
PTC International Finance B.V.
By: /s/ N.S. van der Werff /s/ R.W.M. Kluitenberg
--------------------------------------- ----------------------------
Name: N.S. van der Werff R.W.M. Kluitenberg
Title: Managing Director Managing Director
ABN AMRO Trust ABN AMRO Trust
Company (Nederland) B.V. Company (Nederland) B.V.
PTC International Finance (Holding) B.V.
By: /s/ N.S. van der Werff /s/ R.W.M. Kluitenberg
--------------------------------------- ----------------------------
Name: N.S. van der Werff R.W.M. Kluitenberg
Title: Managing Director Managing Director
ABN AMRO Trust ABN AMRO Trust
Company (Nederland) B.V. Company (Nederland) B.V.
PTC International Finance II S.A.
By: /s/ G. Ludziak
---------------------------------------
Name: Xxxxxxxx Ludziak
Title: Authorised Signatory
LEAD ARRANGERS
DEUTSCHE BANK AG LONDON, as Lead Arranger
By: /s/ Xxxxxx Xxxxxxxx /s/ Xxxxxx Xxxx
--------------------------------------- ----------------------------
Name: Xxxxxx Xxxxxxxx Xxxxxx Xxxx
Title: Managing Director Associate
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DEUTSCHE BANK POLSKA, S.A., as Lead Arranger
By: /s/ X. Xxxxxxxx /s/ Ch. Xxxxxxxx
--------------------------------------- ----------------------------
Name: Xxxx Xxxxxxxx Ch. Xxxxxxxx
Title: Prezes Zarzadu Head of Structured Finance
DRESDNER BANK LUXEMBOURG S.A., as Lead Arranger
By: /s/ X. Xxxxx /s/ X-X. Xxxxxx
--------------------------------------- ----------------------------
Name: Jitka Xxxxx X-X. Xxxxxx
Title: Vice President First Vice President
EUROPEAN BANK FOR RECONSTRUCTION AND
DEVELOPMENT, as Lead Arranger
By: /s/ Izzet Guney
---------------------------------------
Name: Izzet Guney
Title: Director, XXXX
TRANCHE A BANKS
BANK FUR ARBEIT UND WIRTSCHAFT AKTIENGESELLSCHAFT
By: /s/ Xx. Xxxxxx /s/ Xx. Xxxxxx
--------------------------------------- ----------------------------
Name: Xx. Xxxxxx Xx. Xxxxxx
Title: Senior Vice President Commercial Mandatory
BAYERISCHE LANDESBANK GIROZENTRALE
By: Xxxxxx Mattonet /s/ Xxx Xxxxxxxx
--------------------------------------- ----------------------------
Name: Xxxxxx Mattonet Xxx Xxxxxxxx
Title: Senior Vice President First Vice President
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BRE BANK S.A.
By: /s/ X. Xxxxxx /s/ X. Xxxxx
--------------------------------------- ----------------------------
Name: Xxxxxx Xxxxxx Xxxxx Xxxxx
Title: Director Deputy Director
DEUTSCHE BANK LUXEMBOURG S.A.
By: /s/ Xxxxxx Xxxxxxxx /s/ Xxxxxx Xxxx
--------------------------------------- ----------------------------
Name: Xxxxxx Xxxxxxxx Xxxxxx Xxxx
Title: Authorised Signatory Authorised Signatory
DRESDNER BANK LUXEMBOURG S.A.
By: /s/ X. Xxxxx /s/ X-X. Xxxxxx
--------------------------------------- ----------------------------
Name: Jitka Xxxxx X-X. Xxxxxx
Title: Vice President First Vice President
INDUSTRIEBANK VON JAPAN (DEUTSCHLAND) AKTIENGESELLSCHAFT
By: /s/ V. Schlabrendorff /s/ X. Xxxxxxx
--------------------------------------- ----------------------------
Name: V. Schlabrendorff X. Xxxxxxx
Title: Member of Board of Directors Senior General Manager
KREDITANSTALT FUR WIEDERAUFBAU
By: /s/ Xx. Xxxxxxx /s/ R. Prove
--------------------------------------- ----------------------------
Name: Xx. Xxxxxxx Xxxxxx Prove
Title: Vice President Senior Project Manager
MIZUHO BANK NEDERLAND NV
By: /s/ X. Xxxxx /s/ Tetsuo Kamatsu
--------------------------------------- ----------------------------
Name: Toyoji Kondo Tetsuo Kamatsu
Title: Managing Director Deputy Managing Director
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WESTDEUTSCHE LANDESBANK GIROZENTRALE, LONDON BRANCH
By: /s/ X. Xxxxx /s/ X. Xxxxxx
--------------------------------------- ----------------------------
Name: Xxxxx Xxxxx Xxxx Xxxxxx
Title: Manager Associate Director
TRANCHE B BANKS
BANK XXXXXX SPOLKA AKCYJNA
By: /s/ X. Xxxxxxxxxxx /s/ X. Xxxxxxxx
--------------------------------------- ----------------------------
Name: Xxxxx Xxxxxxxxxxx Xxxxxxxx Xxxxxxxx
Title: Executive Vice-President Executive Vice-President
BANK ZACHODNI, S.A.
By: /s/ Xxxxxxx Xxxxxx /s/ A. Walenska
--------------------------------------- ----------------------------
Name: Xxxxxxx Xxxxxx Xxxx Walenska
Title: Director Director
BAYERISCHE LANDESBANK GIROZENTRALE
By: X. Xxxxxx /s/ Xxx Xxxxxxxx
--------------------------------------- ----------------------------
Name: Xxxxxxxx Xxxxxx Xxx Xxxxxxxx
Title: Senior Vice President First Vice President
BIG BANK XXXXXXX X.X.
By: /s/ J. Andrzejewicz /s/ T. Murat
--------------------------------------- ----------------------------
Name: Xxxxx Xxxxxxxxxxxx Xxxxxx Xxxxx
Title: Proxy Proxy
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CITIBANK (POLAND) S.A.
By: /s/ Xxxxxx Xxxxx /s/ X. Xxxxxxxxxx
--------------------------------------- ----------------------------
Name: Xxxxxx Xxxxx Xxxxx Xxxxxxxxxx
Title: Corporate Bank Head Vice President
DEUTSCHE BANK POLSKA S.A.
By: /s/ X. Xxxxxxxx /s/ Ch. Xxxxxxxx
--------------------------------------- ----------------------------
Name: Xxxx Xxxxxxxx Ch. Xxxxxxxx
Title: Prezes Zarzadu Head of Structured Finance
EUROPEAN BANK FOR RECONSTRUCTION AND
DEVELOPMENT
By: /s/ Izzet Guney
---------------------------------------
Name: Izzet Guney
Title: Director, XXXX
ING BANK N.V., WARSAW BRANCH
By: /s/ Xxx Xxxxxxxxx /s/ B. Lutik
--------------------------------------- ----------------------------
Name: Xxx Xxxxxxxxx Beata Lutik
Title: Director Director
KREDYT BANK S.A.
By: /s/ X. Xxxxxxx
---------------------------------------
Name: Xxxxxxxxx Xxxxxxx
Title: Director of Project Finance Department
By: /s/ X. Xxxxxx
---------------------------------------
Name: Xxxxx Xxxxxx
Title: Deputy Director of Project Finance Department
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LG PETROBANK S.A.
By: /s/ X. Xxxxxxx /s/ Xxxxxxxxxx Xxxxxxxxx
--------------------------------------- ----------------------------
Name: Lnejan Xxxxxxx Xxxxxxxxxx Xxxxxxxxx
Title: Executive Vice President Director
POWSZECHNY BANK KREDYTOWY S.A. W WARSZAWIE
By: /s/ X. Xxxxxxx /s/ X. Xxxxxxx
--------------------------------------- ----------------------------
Name: Xxxxxx Xxxxxxx Xxxxxx Xxxxxxx
Title: Plenipotentiary Plenipotentiary
WIELKOPOLSKI BANK KREDYTOWY S.A.
By: /s/ Xxxx Xxxxxx /s/ Xxxxxx Xxxxxxxx
--------------------------------------- ----------------------------
Name: Xxxx Xxxxxx Xxxxxx Xxxxxxxx
Title: Director Director
AGENT
DEUTSCHE BANK LUXEMBOURG S.A., as Agent
By: /s/ Xxxxxx Xxxxxxxx /s/ Xxxxxx Xxxx
--------------------------------------- ----------------------------
Name: Xxxxxx Xxxxxxxx Xxxxxx Xxxx
Title: Authorised Signatory Authorised Signatory
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SECURITY AGENT
DEUTSCHE BANK POLSKA S.A., as Security Agent
By: /s/ X. Xxxxxxxx /s/ Ch. Xxxxxxxx
--------------------------------------- ----------------------------
Name: Xxxx Xxxxxxxx Ch. Xxxxxxxx
Title: Prezes Zarzadu Head of Structured Finance
Without prejudice to the foregoing execution of this Agreement by the parties
hereto, PTC International Finance II S.A. hereby expressly and specifically
confirms its agreement with the granting of jurisdiction to English courts
provided for in this Agreement for the purpose of Article 1 of the Protocol
annexed to the Convention on the Jurisdiction and the Enforcement of Judgments
in Civil and Commercial Matters signed at Brussels on 27 September, 1968, as
amended.
For PTC INTERNATIONAL FINANCE II S.A.
By: /s/ G. Ludziak
---------------------------------------
Name: Xxxxxxxx Ludziak
Title: Authorised Signatory
Without prejudice to the foregoing execution of this Agreement by the parties
hereto, Deutsche Bank Luxembourg S.A. hereby expressly and specifically confirms
its agreement with the granting of jurisdiction to English courts provided for
in this Agreement for the purpose of Article 1 of the Protocol annexed to the
Convention on the Jurisdiction and the Enforcement of Judgments in Civil and
Commercial Matters signed at Brussels on 27 September, 1968, as amended.
For DEUTSCHE BANK LUXEMBOURG S.A.
By: /s/ Xxxxxx Xxxxxxxx /s/ Xxxxxx Xxxx
--------------------------------------- ----------------------------
Name: Xxxxxx Xxxxxxxx Xxxxxx Xxxx
Title: Authorised Signatory Authorised Signatory
Without prejudice to the foregoing execution of this Agreement by the parties
hereto, Dresdner Bank Luxembourg S.A. hereby expressly and specifically confirms
its agreement with the granting of jurisdiction to English courts provided for
in this Agreement for the purpose of Article 1 of the Protocol annexed to the
Convention on the Jurisdiction and the Enforcement of Judgments in Civil and
Commercial Matters signed at Brussels on 27 September, 1968, as amended.
For DRESDNER BANK LUXEMBOURG S.A.
By: /s/ X. Xxxxx /s/ X-X. Xxxxxx
--------------------------------------- ----------------------------
Name: Jitka Xxxxx X-X. Xxxxxx
Title: Vice President First Vice President
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