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EXHIBIT 10.1
THIS FACILITY AGREEMENT is dated 20 February, 2001 and amended and restated on
24 September, 2001
BETWEEN:
(1) POLSKA TELEFONIA CYFROWA SP. Z O.O., a company registered in the National
Court Register under the number 0000029159 ( the "Borrower");
(2) THE GUARANTORS listed in Schedule B;
(3) DEUTSCHE BANK AG LONDON ("DBAG"), DEUTSCHE BANK POLSKA S.A. ("DB Polska")
and DRESDNER BANK LUXEMBOURG S.A. ("Dresdner") as lead arrangers (each a
"Lead Arranger" and, collectively, the "Lead Arrangers");
(4) THE BANKS listed in Schedule A;
(5) DB POLSKA as security agent for the Banks (the "Security Agent"); and
(6) 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"
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).
"Additional Debt Amount"
means, at any time, an amount equal to the Euro Equivalent of the sum of
(a) (euro)450,000,000 and (b) the amount by which (euro)700,000,000
exceeds the sum of (i) the "Total Commitments" under, and as defined in,
the Main 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:
(a) 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
(b) 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 1.5 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;
(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 16 February, 2001; 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 31 March, 2007.
"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"
has the meaning given to it in the Main Facility Agreement.
"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 August 2001 relating to the Group
provided on behalf of the Borrower by the Lead Arrangers to the Banks.
"Initial Banks"
means Deutsche Bank Luxembourg S.A. and Dresdner.
"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
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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:
(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.
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"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 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.
"Main Facility Agreement"
means the (euro)550,000,000 facility agreement dated on or about 20
February, 2001 between the Borrower, the Guarantors as defined therein,
the Arrangers as defined therein, the Banks as defined therein, DBAG, DB
Polska, Dresdner and The European Bank for Reconstruction and Development,
as Lead Arrangers, Deutsche Bank Luxembourg S.A., as Agent, and DB Polska,
as Security Agent.
"Main Facility Senior Finance Documents"
means the "Senior Finance Documents" as defined in the Main Facility
Agreement.
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"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) shall be deemed to have Commitments equal
to the drawn portion of its Commitments.
"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
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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.
"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 Main
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.
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"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.
"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 Xxxxx'x 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;
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(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 Xxxxx'x 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 Xxxxx'x 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.
"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.
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"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, 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:
(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.;
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(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.
"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.
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"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 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) the Subordinated Debt referred to in paragraphs (a) through (e) of the
definition of High Yield Debt Documents, (c) any amounts on deposit in
escrow accounts of the Borrower or any of its Subsidiaries and (d)
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 Main 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.
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"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.
"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;
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(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.
"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)(i) (Tranche A);
(b) when designated "Tranche B", the revolving loan tranche referred to
in Clause 2.1(a)(ii) (Tranche B); and
(c) without any such designation, Tranche A or Tranche B, as the context
requires.
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"Transaction Documents"
means:
(i) the Senior Finance Documents;
(ii) the High Yield Debt Documents;
(iii) the Shareholders' Agreement;
(iv) the Main 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, any Lead Arranger or a Bank with a Commitment of 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
Main 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
(a) 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:
(i) 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 (euro)20,000,000); and
(ii) 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 (euro)130,000,000, subject to the Zloty
Limits).
(b) Upon five Business Days' prior notice to the Borrower and the Agent,
any Initial Bank may, immediately prior to a transfer by it pursuant
to Clause 30.2 (Changes to Parties), redenominate (i) its
participation in any or all Tranche A Advances and an equal amount
of the Tranche A Commitments into Zloty and redesignate such
participations in Tranche A Advances and such Tranche A Commitments
as participations in Tranche B Advances and Tranche B Commitments,
respectively, effective as of the end of the Interest Period then in
effect for such Advances (and immediately prior to the Effective
Date (as defined in the relevant Transfer Certificate)) and (ii) any
or all undrawn Tranche A Commitments into Zloty and redesignate such
Commitments as Tranche B Commitments effective as of the date
specified in such notice. The amount of the Tranche B Advance into
which an Initial Bank's participation in a Tranche A Advance is
redenominated will be the Zloty Equivalent of the Original Euro
Amount of that participation as at 11:00 am Warsaw time three
Business Days before the relevant Effective Date. In connection with
any such redenomination and redesignation, each Bank shall, on the
Effective Date therefor, pay to the Agent such amounts and in such
currencies as the Agent shall designate by notice to the Banks at
least three Business Days prior to such Effective Date, and the
Agent shall, on such Effective Date, pay to the Banks such amounts
and in such currencies, in each case, as the Agent shall determine
may be necessary to ensure that the Tranche A Lenders participate
ratably in the outstanding Tranche A Advances based on their
respective Tranche A Commitments and the Tranche B Lenders
participate ratably in the outstanding Tranche B Advances based on
their respective Tranche B Commitments.
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.
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(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 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;
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(c) the provision of an amount, together with amounts drawn for the same
purpose under the Main Facility Agreement, of up to the Euro
Equivalent of (euro)15,000,000 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 Main
Facility Agreement incurred in each case for the purpose of funding
the UMTS Licence Initial Instalments does not exceed
(euro)150,000,000 (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 (euro)250,000,000 (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 Main
Facility Agreement, of up to the Euro Equivalent of
(euro)25,000,000;
(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 purpose under the
Main Facility Agreement, of up to the Euro Equivalent of
(euro)75,000,000; 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;
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(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) (euro)250,000,000 (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; and
(d) in the case of a Utilisation consisting of a Tranche A Advance, that
Tranche A (as defined in the Main Facility Agreement) is fully
drawn, and in the case of a Utilisation consisting of a Tranche B
Advance, that Tranche B (as defined in the Main Facility Agreement)
is fully drawn.
4.3 Conditions Precedent to the initial Utilisation of Commitments in excess
of the Euro Equivalent of (euro)100,000,000
The obligation of each Bank to participate in the initial Utilisation of
Commitments in excess of the Euro Equivalent of (euro)100,000,000 is
subject to the further conditions precedent that the Agent has received
all of the documents listed in Schedule N in the agreed form.
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
three 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)5,000,000 or the Zloty Equivalent
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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 of an Original Euro Amount 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 three 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.
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. 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
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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.
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
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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 (euro)10,000,000 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 (euro)5,000,000 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 2005 and on the last day of each
quarter thereafter until the Final 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 2005 (euro)7,500,000
20 February 2006 (euro)22,500,000
31 March 2006 (euro)30,000,000
30 June 2006 (euro)30,000,000
30 September 2006 (euro)30,000,000
Final Repayment Date (euro)30,000,000
--------------------
(euro)150,000,000
--------------------
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
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(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.
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.
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(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 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 (euro)5,000,000 (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 (euro)5,000,000 (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
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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.
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 one, 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.
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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;
(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.
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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 1.5 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.
(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
1.50% >3.0 : 1
1.40% 2.0 : 1
1.30%
