1
Exhibit 10.15
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CONFORMED COPY
WITH COLLATERAL SHARING
INTERCREDITOR AGREEMENT
AS SEPARATELY EXECUTED
(euro)100,000,000
FACILITY AGREEMENT
Dated 20 February, 2001
Between
POLSKA TELEFONIA CYFROWA SP. Z O.O.
as Borrower
The Guarantors named herein
as Guarantors
DEUTSCHE BANK LUXEMBOURG S.A.
as Agent
THE BANKS
DEUTSCHE BANK AG LONDON,
DRESDNER BANK LUXEMBOURG S.A.,
DEUTSCHE BANK POLSKA S.A.
as Lead Arrangers
DEUTSCHE BANK POLSKA S.A.
as Security Agent
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CONTENTS
CLAUSE PAGE
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1. INTERPRETATION......................................................................................1
2. FACILITY AND RELATED MATTERS.......................................................................28
3. PURPOSE AND RESPONSIBILITY.........................................................................29
4. CONDITIONS PRECEDENT...............................................................................30
5. ADVANCES...........................................................................................31
6. CANCELLATION AND REDUCTION.........................................................................33
7. REPAYMENT..........................................................................................35
8. PREPAYMENT.........................................................................................35
9. INTEREST PERIODS...................................................................................37
10. INTEREST...........................................................................................38
11. SELECTION OF OPTIONAL CURRENCIES...................................................................39
12. AMOUNT OF OPTIONAL CURRENCIES......................................................................40
13. PAYMENTS...........................................................................................42
14. TAXES..............................................................................................44
15. MARKET DISRUPTION..................................................................................45
16. INCREASED COSTS....................................................................................47
17. ILLEGALITY AND MITIGATION..........................................................................48
18. REPRESENTATIONS AND WARRANTIES.....................................................................49
19. UNDERTAKINGS.......................................................................................53
20. SYSTEM UNDERTAKINGS................................................................................70
21. FINANCIAL UNDERTAKINGS.............................................................................71
22. DEFAULT............................................................................................73
23. GUARANTEES.........................................................................................78
24. INDEMNITIES........................................................................................80
25. AGENT, SECURITY AGENT, LEAD ARRANGERS, ARRANGERS AND BANKS.........................................81
26. FEES...............................................................................................86
27. EXPENSES...........................................................................................87
28. STAMP DUTIES.......................................................................................87
29. AMENDMENTS AND WAIVERS.............................................................................87
30. CHANGES TO PARTIES.................................................................................89
31. SET-OFF AND REDISTRIBUTION.........................................................................90
32. DISCLOSURE OF INFORMATION..........................................................................93
33. SEVERABILITY.......................................................................................93
34. COUNTERPARTS.......................................................................................93
35. NOTICES............................................................................................94
36. EVIDENCE AND CALCULATIONS..........................................................................95
37. LANGUAGE...........................................................................................96
38. JURISDICTION.......................................................................................96
39. WAIVER OF IMMUNITY.................................................................................97
40. GOVERNING LAW......................................................................................98
41. THIRD PARTIES......................................................................................98
(i)
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SCHEDULES
▇. ▇▇▇▇▇
B. Guarantors
C. Form of Transfer Certificate
D. Security Documents
E. Documentary Conditions Precedent
F. Existing Security Interests
G. Additional Costs Rate
H. Form of Request for an Advance
I. Accession Document
J. Form of Compliance Certificate
K. Existing Financial Indebtedness
L. Existing Hedging Agreements
M. Collateral Sharing Intercreditor Agreement
(ii)
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THIS FACILITY AGREEMENT is dated 20 February, 2001
BETWEEN:
(1) POLSKA TELEFONIA CYFROWA SP. Z O.O., a company registered in the
Commercial Register of the District Court in Warsaw under number 45740
(the "BORROWER");
(2) THE GUARANTORS listed in Schedule B;
(3) DEUTSCHE BANK AG LONDON ("DBAG"), DEUTSCHE BANK POLSKA S.A. ("DB POLSKA")
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.
"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
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(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) 500,000,000 and (b) the amount by which (euro) 650,000,000
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.
"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.
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"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 0.9 per cent. per annum (subject to adjustment under Clause 10.5
(Margin adjustment)).
"ASSET PLEDGE"
means the pledge of assets in the agreed form executed by the Borrower in
favour of the Security Agent to be registered in accordance with the
terms hereof.
"AUDITORS"
means ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. 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;
(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;
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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 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,
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.
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"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 ▇▇▇▇▇'▇ in any amount or (b) "BB" from S&P and "Ba"
from ▇▇▇▇▇'▇ 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).
"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.
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"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;
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).
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"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,
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.
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"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;
(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
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(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 the date falling on the fifth anniversary of the Signing Date.
"FINANCE LEASE"
means a finance lease as determined in accordance with the IAS.
"FINANCE PARTY"
means the Lead Arrangers, the Arrangers, each Bank, the Security Agent
and the Agent.
"FINANCIAL INDEBTEDNESS"
means any indebtedness in respect of:
(a) moneys borrowed at banks and other financial institutions;
(b) any debenture, bond, note, loan stock or other security;
(c) any acceptance credit;
(d) receivables sold or discounted (otherwise than on a non-recourse
basis);
(e) the acquisition cost of any asset to the extent payable before or
after the time of acquisition or possession by the party liable
(i) where the advance or deferred payment is arranged primarily
as a method of raising finance or financing the acquisition of
that asset and (ii) where payment is deferred for more than 180
days after the time of acquisition or possession;
(f) any Finance Lease or QTE Lease;
(g) any currency swap or interest swap, cap or collar arrangements,
future or option contracts or any other derivative instrument
calculated as the negative ▇▇▇▇-to-market value of such
instrument as of the date of calculation;
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(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 31 October, 2000 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 ▇▇▇▇▇'▇;
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 ▇▇▇▇▇'▇ 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 Moody's in any amount or (b) "BB" from S&P and
"Ba" from Moody's in such amounts as agreed between the
Agent and the Borrower from time to time;
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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 Moody's in any amount or
(b) "BB" from S&P and "Ba" from Moody's in such amounts as
agreed between the Agent and the Borrower from time to time;
or
(iii) in the case of the collection account for subscriber
receivables, is a major recognised bank in Poland with (or
the Holding Company of which has) a long-term debt rating of
at least (a) "BBB-" from S&P and "Baa3" from Moody's in any
amount or (b) "BB" from S&P and "Ba" from Moody's in such
amounts as agreed between the Agent and the Borrower from
time to time and the Agent is satisfied that there are first
priority Security Interests created by the Security
Documents over that account and such bank has agreed to
waive its rights of set-off over such account.
"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 ▇▇▇▇▇▇-▇▇▇▇ 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 ▇▇▇▇-to-market value of Hedging Agreements entered
into in relation to any Senior Debt and the negative ▇▇▇▇-to-market value
(if any) of any Hedging Agreement entered in respect of interest payments
in relation to any Financial Indebtedness incurred pursuant to the High
Yield Debt Documents) of such person and its Subsidiaries on a
consolidated basis but excluding, to the extent otherwise included
therein, (a) Subordinated Debt so long as such Subordinated Debt has a
maturity falling at least twelve months after the Final Repayment Date,
(b) any amounts on deposit in escrow accounts of the Borrower or any of
its Subsidiaries and (c) instalment payments (if any) due for the GSM
Licence, the DCS-1800 Licence or the UMTS Licence owing to the government
of the Republic of Poland (but including any letter of credit, bank
guarantee, performance bond or similar instrument issued in respect of
such instalment payments)).
"SENIOR FINANCE DOCUMENTS"
means each of:
(i) this Agreement;
(ii) the Fee Letters;
(iii) the Security Documents;
(iv) each document evidencing a transaction designated to be
secured by the Security Documents pursuant to Clause
19.14 (Treasury Transactions);
(v) the Side Letter;
(vi) a side letter in the agreed form from the Shareholders to
the Agent, pursuant to which the Shareholders agree to
notify the Agent of any pledge of the Shares;
(vii) each Accession Agreement;
(viii) the Collateral Sharing Intercreditor Agreement or other
intercreditor or security sharing agreement between the
Finance Parties, the creditors under the 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) (Tranche A);
(b) when designated "TRANCHE B", the revolving loan tranche referred
to in Clause 2.1(b) (Tranche B); and
(c) without any such designation, Tranche A or Tranche B, as the
context requires.
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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 662/3% 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) 95,000,000); 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) 5,000,000, 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; and
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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.
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
five Business Days before the proposed Utilisation Date for a Tranche B
Utilisation. Each Request is irrevocable.
5.2 Form of Request
(a) Each Request will not be regarded as having been duly completed
unless it specifies:
(i) whether the Utilisation is a Tranche A Advance or a Tranche
B Advance;
(ii) the proposed Utilisation Date, which shall be a Business Day
falling after the date on which the Agent notifies the
Borrower and the Banks that the documentary conditions
precedent in Schedule E appear on their face to have been
satisfied or waived but on or before the date falling one
month before the Final Repayment Date;
(iii) the currency of the Utilisation which must be Euro or an
Optional Currency for Tranche A Utilisations and Zloty for
Tranche B Utilisations;
(iv) the amount of the proposed Utilisation which shall be the
balance of the undrawn Commitments for Tranche A or Tranche
B as applicable or:
(A) subject to paragraph (B), shall be a minimum amount of
an Original Euro Amount (in the case of Tranche A) of
(euro) 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 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;
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(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 four Business Days before
the relevant Utilisation Date for a Tranche B Utilisation) notify
each Bank in the relevant Tranche of each Request, confirming
that all conditions precedent have been met.
(d) Subject to the terms of this Agreement, each Tranche A Bank will
make its participation in a Tranche A Advance available to the
Agent for the Borrower on the relevant Utilisation Date.
(e) Subject to the terms of this Agreement, each Tranche B Bank will
make its participation in a Tranche B Advance available to the
Agent for the Borrower by 10.00 a.m. Warsaw time on the relevant
Utilisation Date.
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 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
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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 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).
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6.3 Additional right of cancellation
If:
(a) the Borrower is required to pay to a Bank any additional amounts
under Clause 14(a) (Taxes); or
(b) the Borrower is required to pay to a Bank any amount under Clause
16.1 (Increased costs),
then, without prejudice to the obligations of the Borrower under those
Clauses, the Borrower may, whilst the circumstances continue, serve a
notice of cancellation on that Bank through the Agent. On the date
falling five Business Days after the date of service of that notice the
Commitment of that Bank shall be cancelled.
6.4 Reduction of Facility
The Tranche A Total Commitments and the Tranche B Total Commitments will
reduce and be cancelled on 30 September 2004 and on the last day of each
quarter thereafter until the Final Repayment Date (each date for such
reduction of the Facilities being an "INSTALMENT DATE") by the amount
(each such amount being a "REDUCTION AMOUNT") set opposite the applicable
Instalment Date below:
INSTALMENT DATE REDUCTION AMOUNT
------------------- ------------------
30 September 2004 (euro) 5,000,000
31 December 2004 (euro) 15,000,000
31 March 2005 (euro) 20,000,000
30 June 2005 (euro) 20,000,000
30 September 2005 (euro) 20,000,000
Final Repayment Date (euro) 20,000,000
------------------
(euro) 100,000,000
------------------
6.5 Adjustment of Cancellation and Reduction Amounts
(a) The amount of each cancellation in accordance with Clause 6.1(a)
(Mandatory Cancellation) or Clause 6.2 (Voluntary Cancellation)
will be applied so as to reduce the Reduction Amounts as set out
in Clause 6.4 (Reduction of Facility) in inverse order of their
maturity; and
(b) The amount of each cancellation in accordance with Clause 6.1(a)
(Mandatory Cancellation) or Clause 6.2 (Voluntary Cancellation)
or Clause 6.4(a) (Reduction of Facility) will be applied as near
as is practicable between Tranche A and Tranche B by reference to
the proportion which, at the time of such cancellation, the Euro
Equivalent of the Total Commitments of each Tranche bears to the
Euro Equivalent of the Total Commitments under both Tranches.
6.6 Miscellaneous provisions
(a) Any notice of cancellation under this Agreement shall only be
effective on actual receipt by the Agent. The Agent will then
notify the Banks promptly of receipt of any such notice.
(b) No cancellation of the Commitments is permitted except in
accordance with the express terms of this Agreement.
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(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.
(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
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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 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
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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 three, six or, as may be
agreed by the Agent, acting on the instructions of all the
Tranche B Banks, twelve months.
(b) Any Interest Period for which no effective selection notice is
received by the Agent shall be of three months' duration.
(c) No Interest Date may overrun an Instalment Date if, having regard
to the Interest Dates of outstanding Advances, it would cause the
Commitments to be exceeded if the relevant Advance were not
repaid on that Instalment Date.
9.2 Duration
(a) Each Interest Period for an Advance shall commence on the expiry
of its immediately preceding Interest Period.
(b) If any Interest Period for any Advance would otherwise end on a
day which is not a Business Day, such Interest Period shall end
instead on the next Business Day in that calendar month (if there
is one) or the preceding Business Day (if there is not).
9.3 Notification
The Agent will notify the Banks participating in that Advance and the
Borrower of the duration and rate of interest of each Interest Period
relating to each Advance under that Tranche promptly after ascertaining
the same.
9.4 Adjustments
(a) If two or more Interest Periods relating to Advances under the
same Tranche denominated in the same currency end at the same
time, then on the last day of those Interest Periods, those
Advances shall be consolidated into and treated as a single
Advance and shall constitute one Utilisation for the purposes of
Clause 5.2(b) (Form of Request).
(b) The Agent and the Borrower may enter into such other arrangements
for the consolidation and splitting of Advances or Interest
Periods as permitted under 9.1(a) and as they may agree.
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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.
10.4 Notification
The Agent shall promptly notify the Borrower and the Banks of the
determination by the Agent of a Designated Interest Period and a
default rate of interest under this Agreement.
10.5 Margin adjustment
(a) The Applicable Margin will be 0.90 per cent. per annum unless
adjusted in accordance with this Clause 10.5.
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(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
----------------- ------------------------------------------------------
0.90% greater than 3.0 : 1
0.80% less than or equal to 3.0 : 1 and greater than 2.0 : 1
0.60% less than or equal to 2.0 : 1
(d) The adjustment (if any) specified in (c) above will apply to the
Applicable Margin and all then outstanding Advances with effect
from the date on which the Margin Notice was received. If the
first Utilisation hereunder occurs prior to the date on which the
financial statements specified in Clause 19.2(a)(ii)(A)
(Financial Information and Business Plan) relating to the
quarterly Accounting Period ending 31 December, 2000 are
delivered to the Agent together with the requisite Margin Notice
then the Applicable Margin shall be determined by reference to
the quarterly financial statements and the requisite Margin
Notice relating to the quarterly Accounting Period ending 30
September, 2000 and for this purpose the Borrower shall deliver
to the Agent such quarterly financial statements and Margin
Notice on or before the date on which the first Request is
delivered by the Borrower hereunder.
(e) If the Borrower fails to deliver a Margin Notice in accordance
with paragraph (b) above the Applicable Margin with effect from
the last date permitted for delivery of the relevant accounts
under Clause 19.2(a)(ii)(A) (Financial Information and Business
Plan) will be 0.90% provided that if that Margin Notice is
delivered later, the Applicable Margin will be adjusted in
accordance with this Clause 10.5 with effect from the date the
Margin Notice is delivered.
11. SELECTION OF OPTIONAL CURRENCIES
11.1 Selection
(a) The Borrower may select the currency of a Tranche A Advance for
an Interest Period in either the relevant Request or if the
Advance is outstanding, a notice received by the Agent not later
than four Business Days before the first day of that Interest
Period. In the latter case, the Borrower may specify whether that
Tranche A Advance is to be denominated in more than one currency,
and, if so, the amount in Euro of each such currency (being a
minimum Original Euro Amount of (euro) 10,000,000 or an integral
multiple of (euro) 5,000,000 or the balance of the Tranche A
Advance, if more).
(b) The currency of each Tranche A Advance must be Euro or an
Optional Currency.
(c) If the Borrower fails to give a notice in respect of an
outstanding Tranche A Advance in accordance with paragraph (a)
above, that Tranche A Advance will remain denominated for its
next Interest Period in the same currency in which it is then
denominated.
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(d) Each part of a Tranche A Advance which is to be denominated in a
different currency from any other part of that Tranche A Advance
will be treated as a separate Tranche A Advance.
(e) The Borrower may not choose a currency if as a result the Tranche
A Advances would be denominated at any one time in more than five
currencies.
(f) The Agent shall notify each Tranche A Bank of the currency, the
Original Euro Amount and the amount of its participation in each
Tranche A Advance promptly (and in any event, before 1 p.m. three
Business Days before the relevant Utilisation Date) after they
are ascertained.
11.2 Revocation of currency
If before 9.30 a.m. Warsaw time on any Rate Fixing Day, the Agent
receives notice from a Tranche A Bank that:
(a) it is impracticable for the Tranche A Bank to fund its
participation in the Tranche A Advance in the relevant Optional
Currency during that Interest Period in the ordinary course of
business in the European interbank market; and/or
(b) the use of the proposed Optional Currency might contravene any
law or regulation,
the Agent shall give notice to the Borrower and to the Tranche A Banks
to that effect before 11.00 a.m. Warsaw time on that day. In this
event:
(i) the Borrower and the Tranche A Banks may agree that the
drawdown will not be made; or
(ii) in the absence of agreement and in any other case:
(1) that Tranche A Bank's participation in the Tranche A
Advance (or, if more than one Tranche A Bank is
similarly affected, those Tranche A Bank's
participations in the Tranche A Advances) shall be
treated as a separate Tranche A Advance denominated in
Euro during the relevant Interest Period;
(2) in the definition of "LIBOR" or "EURIBOR" (insofar as
such definition applies to that Tranche A Advance) in
Clause 1.1 (Definitions):
(A) there shall be substituted for the time "11.00
a.m." the time "1.00 p.m."; and
(B) paragraph (c) of that definition shall apply.
11.3 Sterling
Each Tranche A Bank shall advance its participation in any Tranche A
Advance in Sterling through a Facility Office outside the United
Kingdom.
12. AMOUNT OF OPTIONAL CURRENCIES
12.1 Drawdowns
If a Tranche A Advance is to be drawn down in an Optional Currency, the
amount of each Tranche A Bank's participation in that Tranche A Advance
will be determined by converting into that Optional Currency the
Tranche A Bank's participation in the Original Euro Amount of that
Tranche A Advance on the basis of the Agent's Spot Rate of Exchange
three Business Days before its Utilisation Date.
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12.2 Change of currency
(a) If a Tranche A Advance is to be continued during its next
Interest Period in a different currency (the "NEW CURRENCY") from
that in which it is currently denominated, then, on the last day
of its current Interest Period:
(i) each Tranche A Bank shall pay an amount equal to its
participation in the amount of such Tranche A Advance as of
the beginning of its next Interest Period in the new
currency (the "NEW AMOUNT") to the Agent, who shall hold the
same on behalf of such Tranche A Bank;
(ii) the Agent shall:
(A) apply the New Amount so made available to it by each
Tranche A Bank in or towards the purchase of such
Tranche A Bank's portion of the amount of such Tranche
A Advance as of the last day of its current Interest
Period (the "EXISTING AMOUNT") and pay the amount so
purchased to such Tranche A Bank; and
(B) pay any portion of the amount made available to it by
the Tranche A Banks and not applied in accordance with
paragraph (A) above to the Borrower; and
(iii) the Borrower shall pay to the Agent for the account of each
Tranche A Bank a sum equal to the amount (if any) by which
such Tranche A Bank's share of the Existing Amount of such
Tranche A Advance exceeds the portion thereof purchased by
the Agent pursuant to paragraph (ii)(A) above.
(b) If the new currency is Euro, the amount of each Tranche A Bank's
participation in that Tranche A Advance will be its participation
in the Original Euro Amount of that Tranche A Advance for that
Interest Period.
(c) If the new currency is an Optional Currency, the amount of each
Tranche A Bank's participation in that Tranche A Advance will be
determined by converting into the new currency its participation
in the Original Euro Amount of that Tranche A Advance on the
basis of the Agent's Spot Rate of Exchange three Business Days
before the commencement of that Interest Period.
12.3 Same Optional Currency
(a) If a Tranche A Advance is to be continued during its next
Interest Period in the same Optional Currency as that in which it
is denominated during its current Interest Period, there shall be
calculated the difference between the amount of the Tranche A
Advance (in that Optional Currency) for the current Interest
Period and for the next Interest Period. The amount of the
Tranche A Advance for the next Interest Period will be determined
by notionally converting into that Optional Currency the Original
Euro Amount of the Tranche A Advance on the basis of the Agent's
Spot Rate of Exchange two Business Days before the commencement
of that Interest Period.
(b) At the end of the current Interest Period (but subject always to
paragraph (c) below):
(i) if the amount of the Tranche A Advance for the next Interest
Period is less than for the preceding Interest Period, the
Borrower shall repay the difference; or
(ii) if the amount of the Tranche A Advance for the next Interest
Period is greater, each Tranche A Bank shall forthwith make
available to the Agent for the Borrower its participation in
the difference.
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(c) If the Agent's Spot Rate of Exchange for the next Interest Period
shows an appreciation or depreciation of the Optional Currency
against Euro of less than five per cent. when compared with the
Original Exchange Rate, no amounts are payable in respect of the
difference. In this Clause 12, "ORIGINAL EXCHANGE RATE" means the
Agent's Spot Rate of Exchange used for determining the amount of
the Optional Currency for the Interest Period which is the later
of the following:
(i) the Interest Period during which the Tranche A Advance was
first denominated in that Optional Currency if the Tranche A
Advance has since then remained denominated in that Optional
Currency; and
(ii) the most recent Interest Period immediately prior to which a
difference was required to be paid under this Clause 12.3.
12.4 Prepayments and repayments
If a Tranche A Advance is to be repaid or prepaid by reference to an
Original Euro Amount, the Optional Currency amount to be repaid or
prepaid shall be determined by reference to the Agent's Spot Rate of
Exchange last used for determining the Optional Currency amount of that
Tranche A Advance under this Clause 12 or, if applicable, the Original
Exchange Rate.
12.5 Notification
The Agent shall notify the Tranche A Banks and the Borrower of Optional
Currency amounts (and the applicable Agent's Spot Rate of Exchange)
promptly after they are ascertained.
13. PAYMENTS
13.1 Place
All payments by the Borrower or a Bank under the Senior Finance Documents
shall be made to the Agent to its account at such office or bank in the
principal financial centre of the country of the relevant currency (or,
in the case of Euro, any financial centre in which payment in Euro can be
effected) as it may notify to the Borrower or that Bank for this purpose.
Notwithstanding the above, all payments by the Borrower to any Lead
Arranger under Clauses 26 (Fees) and 27 (Expenses) shall be made direct
to such Lead Arranger in the manner agreed by such Lead Arranger and the
Borrower. Payments by Banks to the Agent under Tranche B shall be made
prior to 10 a.m. Warsaw time on the date such payment is due.
13.2 Funds
Payments under the Senior Finance Documents to the Agent shall be made
for value on the due date at such times and in such funds as the Agent
may specify to the Party concerned as being customary at the time for the
settlement of transactions in the relevant currency in the place for
payment.
13.3 Distribution
(a) Each payment received by the Agent under the Senior Finance
Documents for another Party shall, subject to paragraphs (b) and
(c) below, be made available by the Agent to that Party by
payment (on the date and in the currency and funds of receipt) to
its account with such office or bank in the principal financial
centre of the country of the relevant currency (or, in the case
of Euro, any financial centre in which payment in Euro can be
effected) as it may notify to the Agent for this purpose by not
less than five Business Days' prior notice.
(b) The Agent may apply any amount received by it for the Borrower in
or towards payment (on the date and in the currency and funds of
receipt) of any amount due from the Borrower under
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the Senior Finance Documents or in or towards the purchase of any
amount of any currency to be so applied.
(c) Where a sum is to be paid to the Agent under the Senior Finance
Documents for another Party, the Agent is not obliged to pay that
sum to that Party until it has established that it has actually
received that sum. The Agent may, however, assume that the sum
has been paid to it in accordance with this Agreement, and, in
reliance on that assumption, make available to that Party a
corresponding amount. If the sum has not been made available but
the Agent has paid a corresponding amount to another Party, that
Party shall forthwith on demand by the Agent refund the
corresponding amount together with interest on that amount from
the date of payment to the date of receipt, calculated at a rate
determined by the Agent to reflect its cost of funds.
(d) The Agent shall not be obliged to pay any amount in Zloty if it
is unable to establish that it has actually received such amount
from the Borrower or the Tranche B Banks prior to 10 a.m. Warsaw
time on the date such payment should otherwise be made.
13.4 Currency
(a) Subject to paragraph (e) below, a repayment or prepayment of a
Utilisation or any part of a Utilisation is payable in the
currency in which the Utilisation is denominated on its due date.
(b) Interest is payable in the currency in which the relevant amount
in respect of which it is payable is denominated.
(c) Amounts payable in respect of costs, indemnities, expenses and
Taxes and the like are payable in the currency in which they are
incurred.
(d) Any other amount payable under the Senior Finance Documents is,
except as otherwise provided in this Agreement, payable in Euro.
(e) For the purpose of the effectiveness and enforcement of the
notarial deed of submission to execution pursuant to Art. 777
Sec. 1.5 of the Polish Code of Civil Procedure and the other
Polish Security Documents, the Parties agree that, with respect
to the Borrower's payment of the obligations referred to in
paragraphs (a), (b), (c) and (d) above, the Finance Parties
shall, without prejudice to the Finance Parties' rights to claim
such payments in the relevant currencies and without prejudice to
mandatory provisions of Polish law, be entitled to claim such
payments from the Borrower be made in Euro.
13.5 Set-off and counterclaim
All payments made by the Borrower under the Senior Finance Documents
shall be made without set-off or counterclaim.
13.6 Non-Business Days
(a) If a payment under the Senior Finance Documents is due on a day
which is not a Business Day, the due date for that payment shall
instead be the next Business Day in the same calendar month (if
there is one) or the preceding Business Day (if there is not).
(b) During any extension of the due date for payment of any principal
under this Agreement interest is payable on that principal at the
rate payable on the original due date.
13.7 Partial payments
If the Agent receives a payment insufficient to discharge all the
amounts then due and payable by the Borrower under the Senior Finance
Documents, the Agent shall apply that payment towards the
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obligations of the Borrower under the Senior Finance Documents in
accordance with Clause 31.2 (Application of payments).
14. TAXES
(a) All payments by the Obligors under the Senior Finance Documents
shall be made without any deduction and free and clear of and
without deduction for or on account of any Taxes, except to the
extent that the payor is required by law to make payment subject
to any Taxes. Subject to paragraph (b) below, if any Tax or
amounts in respect of Tax must be deducted, or any other
deductions must be made, from any amounts payable or paid by an
Obligor, or paid or payable by the Agent to a Finance Party,
under the Senior Finance Documents, that Obligor shall pay at the
same time, or promptly upon notification by the Agent where the
deduction has been made by the Agent, such additional amounts as
may be necessary to ensure that the relevant Bank receives a net
amount equal to the full amount which it would have received had
payment not been made subject to Tax or any other deduction.
(b) An Obligor is not obliged to pay any additional amount pursuant
to paragraph (a) above (i) in respect of any deduction which
would not have been required if, upon reasonable written request
of such Obligor to the Agent and the relevant Finance Party, the
relevant Finance Party had completed a tax residence certificate
confirmed or issued by the applicable tax authority of each
Finance Party, a declaration, claim, exemption or other
applicable form which it was, at the time of such request,
lawfully able to complete and which did not require disclosure of
information which the relevant Finance Party reasonably
considered to be confidential or (ii) in respect of any Tax on
overall net income of a Bank (or the overall net income of a
division or branch of the Bank) imposed in the jurisdiction in
which its principal office or Facility Office is situated.
(c) If:
(i) on the Signing Date, any Bank which is a Party on the
Signing Date is not a Qualifying Bank; or
(ii) after the Signing Date, a Bank ceases to be a Qualifying
Bank, other than as a result of the introduction of,
suspension, withdrawal or cancellation of, or change in, or
change in the official interpretation, administration or
official application of, any law, regulation having the
force of law, tax treaty or any published practice or
published concession of the Polish tax authorities or any
other relevant taxing or fiscal authority in any
jurisdiction with which the relevant Bank has a connection,
occurring after the Signing Date; or
(iii) on the date of any transfer under Clause 30.2 (Transfers by
Banks), a New Bank (as such term is defined in that Clause)
is not a Qualifying Bank,
then the Borrower shall not be liable to pay to that Bank under
paragraph (a) above any amount in respect of Taxes levied or
imposed by the Polish taxing authority or any taxing authority of
or in Poland in excess of the amount it would have been obliged
to pay if that Bank had been a Qualifying Bank.
(d) If an Obligor makes a payment pursuant to paragraph (a) above for
the account of any Bank and such Bank determines, in its sole
discretion, that it has received or been granted a credit
against, or relief or remission or repayment of, any Tax paid or
payable by it (a "TAX CREDIT") which is attributable to that
payment or the corresponding payment under the Senior Finance
Documents such Bank shall, to the extent that it can do so
without prejudice to the retention of the amount of such credit,
relief, remission or repayment, pay to the Obligor such amount as
the Bank acting in good faith determines to be attributable to
such payments and which will leave the Bank (after such payment)
in no better or worse position than it would have been if the
Obligor had not been required to make any deduction or
withholding.
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(e) Nothing in this Clause 14 shall interfere with the right of a
Bank to arrange its tax affairs in whatever manner it thinks fit
and, without limiting the foregoing, no Bank shall be under any
obligation to claim a Tax Credit or to claim a Tax Credit in
priority to any other claims, relief, credit or deduction
available to it. Notwithstanding any other provision of this
Clause 14, no Bank shall be obliged to disclose any information
relating to its tax affairs or any computations in respect
thereof.
(f) Each Obligor shall:
(i) pay when due all Taxes required by law to be deducted or
withheld by it from any amounts paid or payable under the
Senior Finance Documents;
(ii) within 30 days of the payment being made, deliver to the
Agent for the relevant Finance Party evidence satisfactory
to that Finance Party (including all relevant Tax receipts
within 30 days or if later, as soon as they are available)
that the payment has been duly remitted to the appropriate
authority; and
(iii) forthwith on demand indemnify each Finance Party against
any loss or liability which that Finance Party incurs as a
consequence of the non-payment of those Taxes.
(g) Each Bank represents to the Agent that, in the case of a Bank
which is a Bank on the Signing Date and, in the case of a Bank
which becomes a Bank after the date of this Agreement, on the
date it becomes a Bank, in relation to the Facilities, it is:
(i) either:
(A) not resident in the United Kingdom for United Kingdom
tax purposes; or
(B) a bank as defined in section 840A of the Income and
Corporation Taxes Act 1988 and resident in the United
Kingdom; and
(ii) beneficially entitled to the principal and interest payable
by the Agent to it under this Agreement;
and, if it is able to make those representations on the
Signing Date or the date it becomes a Bank, shall forthwith
notify the Agent if either representation ceases to be correct.
15. MARKET DISRUPTION
15.1 Disruption events
(a) If, in relation to any proposed Tranche A Advance and any
Interest Period relative thereto:
(i) no, or where there is more than one Tranche A Reference Bank
only one, Tranche A Reference Bank supplies an interest rate
to the Agent as required by the definition of "LIBOR" or
"EURIBOR" after the Agent has requested such a rate from the
Tranche A Reference Banks; or
(ii) the Agent has received notification from a Tranche A Bank or
Banks whose participations in such Tranche A Advance
constitute at least forty per cent. (40%) by value of such
Tranche A Advance that by reason of circumstances affecting
the European interbank market:
(A) deposits in the currency of such Tranche A Advance for
the same period as such Interest Period are not
available to them in the interbank market in sufficient
amounts in the ordinary course of business to fund
their respective participations in such Tranche A
Advance for such Interest Period, or
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(B) whilst such deposits are so available, the cost of such
deposits exceeds LIBOR or EURIBOR as determined in
relation to such Tranche A Advance for such Interest
Period,
the Agent shall promptly give written notice of such
determination or notification to the Borrower and each of
the Tranche A Banks and each Tranche A Bank which is
affected by the circumstances described in paragraph (ii)
above shall be an "AFFECTED BANK".
(b) If, in relation to any proposed Tranche B Advance and any
Interest Period relative thereto:
(i) fewer than three Tranche B Reference Banks supply an
interest rate to the Agent as required by the definition of
WIBOR after the Agent has requested such a rate from the
Tranche B Reference Banks; or
(ii) the Agent has received notification from a Tranche B Bank or
Banks whose participations in such Tranche B Advance
constitute at least forty per cent. (40%) by value of such
Tranche B Advance that by reason of circumstances affecting
the Warsaw interbank market:
(A) deposits in Zloty for the same period as such Interest
Period are not available to them in the interbank
market in sufficient amounts in the ordinary course of
business to fund their respective participations in
such Tranche B Advance for such Interest Period, or
(B) whilst such deposits are so available, the cost of such
deposits exceeds WIBOR as determined in relation to
such Tranche B Advance for such Interest Period,
the Agent shall promptly give written notice of such
determination or notification to the Borrower and each of
the Tranche B Banks and each Tranche B Bank which is
affected by the circumstances described in paragraph (ii)
above shall be an "AFFECTED BANK".
15.2 Effect
After the giving of any notice by the Agent pursuant to Clause 15.1
(Disruption events) to the effect that it has received notification in
accordance with Clause 15.1 (Disruption events):
(a) each Bank which is not an Affected Bank shall be obliged to
participate in the Advance to which such notification relates;
and
(b) each Affected Bank, other than an Affected Bank to which funds
are not reasonably available, shall be obliged to participate in
the Advance to which the notification relates subject to Clause
15.3 (Negotiation and Substitute Basis).
15.3 Negotiation and Substitute Basis
(a) During the period of 30 days (the "30 DAY PERIOD") after the
giving of any notice by the Agent pursuant to Clause 15.1
(Disruption events), the Agent (in consultation with the Banks in
the relevant Tranche) shall negotiate with the Borrower in good
faith with a view to ascertaining whether a substitute basis (a
"SUBSTITUTE BASIS") may be agreed for the making of further
Advances and/or the maintaining of any existing Advances by the
Banks to which such notice by the Agent related for the current
Interest Period relative to those Advances. If a Substitute Basis
is agreed by all the Banks in the relevant Tranche and the
Borrower, such Substitute Basis shall apply in accordance with
its terms from the commencement of the next Interest
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Period relating to each relevant Advance. The Agent shall not
agree any Substitute Basis on behalf of any Bank without the
prior consent of that Bank.
(b) From the beginning of the 30 Day Period to the commencement of
the next Interest Period relating to each relevant Advance, each
Affected Bank's participation in each outstanding Advance to
which such notification related shall bear interest during the
Interest Period therefor until and unless such Substitute Basis
is agreed, at the Applicable Margin plus the rate certified by
such Affected Bank to be its cost of funds (from such source as
it may reasonably select) for such Interest Period.
(c) If the Agent and the Borrower fail to agree on a Substitute Basis
within 30 days from the date of such notice the Agent shall
determine the rate of interest to apply to each Affected Bank's
participation in each then existing Advance during such Interest
Period by reference to the Applicable Margin plus the cost to
such Affected Bank of funding the portion of the Advances
scheduled to be outstanding during such Interest Period from
whatever sources it reasonably selects out of those sources then
available to it.
16. INCREASED COSTS
16.1 Increased costs
(a) Subject to Clause 16.3 (Exceptions), the Borrower shall forthwith
on demand by a Bank through the Agent pay to that Bank, the
amount of any increased cost incurred by it or any of its Holding
Companies as a result of:
(i) the introduction of, or any change in, or any change in the
interpretation or application of, any law or regulation
applicable to a whole class of financial institutions of
which that Bank is one; or
(ii) compliance with any regulation made after the date of this
Agreement,
including any law or regulation relating to Taxation, change
in currency of a country or reserve asset, special deposit,
cash ratio, liquidity or capital adequacy requirements or any
other form of banking or monetary control.
(b) In this Agreement "INCREASED COST" means:
(i) an additional cost incurred by a Bank or any of its Holding
Companies as a result of it having entered into, or
performing, maintaining or funding its obligations under,
any Senior Finance Document; or
(ii) that portion of an additional cost incurred by a Bank or any
of its Holding Companies in making, funding or maintaining
all or any advances comprised in a class of advances formed
by or including that Bank's participations in the
Utilisations made or to be made under this Agreement as is
attributable to that Bank making, funding or maintaining
those participations; or
(iii) a reduction in any amount payable to a Bank or any of its
Holding Companies or the effective return to a Bank or any
of its Holding Companies under this Agreement or (to the
extent that it is attributable to this Agreement) on its
capital; or
(iv) the amount of any payment made by a Bank or any of its
Holding Companies, or the amount of any interest or other
return foregone by a Bank or any of its Holding Companies,
calculated by reference to any amount received or receivable
by that Bank or any of its Holding Companies from any other
Party under this Agreement.
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16.2 Bank Guarantee Fund
(a) Where any Tranche B Bank (or its Holding Company) is obliged to
make a payment into the Bank Guarantee Fund as a result of it
maintaining its Commitment, making, funding or maintaining all or
any advances comprised in a class of advances formed by or
including its (or such Finance Party's) participation in some or
all of the Utilisations made or to be made under this Agreement,
that Tranche B Bank may, within 30 days of making a payment into
the Bank Guarantee Fund, send to the Agent a notice of such
payment. The Agent shall reasonably determine the amount which
was paid by that Tranche B Bank to the Bank Guarantee Fund which
is attributable on the basis of Polish law to its making, funding
or maintaining Advances under this Agreement or maintaining its
obligation, if any, to provide Utilisations. The Agent shall send
a certificate signed by its senior credit officer of the amount
so determined to the Borrower.
(b) Within 30 days after receipt of a certificate presented by the
Agent in accordance with paragraph (a) above, the Borrower shall
pay to the Agent for the account of the relevant Tranche B Bank
(or, as the case may be, Holding Company of such Tranche B Bank)
the amount set out in the certificate (in the absence of manifest
error) so as to compensate such Tranche B Bank (or such Holding
Company) for the payment into the Bank Guarantee Fund.
16.3 Exceptions
Clause 16.1 (Increased costs) does not apply to any increased cost:
(a) compensated for by the operation of Clause 14 (Taxes) or the
payment of the Additional Costs Rate; or
(b) attributable to any Tax on Overall Net Income of a Bank (or the
overall net income of a division or branch of the Bank) imposed
in the jurisdiction in which its principal office or Facility
Office is situate; or
(c) of which the relevant Finance Party was aware more than 90 days
prior to notifying the Borrower thereof with a computation of the
relevant cost; or
(d) arising directly out of the implementation by the applicable
authorities having jurisdiction over such Bank and/or its
Facility Office of the matters set out in the statement of the
Basle Committee on Banking Regulations and Supervisory Practices
dated July, 1988 and entitled "International Convergence of
Capital Measurement and Capital Standards", or the directives of
the European Council (as amended or supplemented prior to the
Signing Date) of 17th April, 1989 on the own funds of credit
institutions (89/229/EEC) and of 18th December, 1989 on the
solvency ratio for credit institutions (89/647/EEC), in each case
to the extent and according to the timetable provided therein.
17. ILLEGALITY AND MITIGATION
17.1 Illegality
If it is or becomes unlawful in any jurisdiction for a Bank to give
effect to any of its obligations as contemplated by this Agreement or
to fund or maintain its participation in any Utilisation, then:
(a) that Bank may notify the Borrower through the Agent; and
(b) if that Bank so notifies the Borrower (through the Agent),
(i) the Borrower shall prepay the participations of that Bank in
all the Utilisations; and
(ii) the Commitments of that Bank shall be cancelled,
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in each case forthwith or if later, the latest date permitted
by applicable law as notified to the Borrower by such Bank
through the Agent.
17.2 Mitigation
Notwithstanding the provisions of Clauses 14 (Taxes), 15.1 (Disruption
events), 16.1 (Increased Costs) and 17.1 (Illegality), if in relation
to a Bank or (as the case may be) the Agent circumstances arise which
would result in:
(a) any deduction, withholding or payment of the nature referred to
in Clause 14 (Taxes); or
(b) any market disruption of the nature referred to in Clause 15.1
(Disruption events); or
(c) any increased cost of the nature referred to in Clause 16.1
(Increased Costs); or
(d) a notification pursuant to Clause 17.1 (Illegality),
then without in any way limiting, reducing or otherwise qualifying the
rights of such Bank or the Agent, such Bank shall promptly upon becoming
aware of the same notify the Agent thereof (whereupon the Agent shall
promptly notify the Borrower) and such Bank shall use all reasonable
endeavours to transfer its participation in the relevant Tranche and its
rights hereunder and under the Senior Finance Documents to another bank
or Facility Office not affected by the circumstances having the results
set out in (a), (b) or (c) above or otherwise take such reasonable steps
as may be open to it to mitigate the effects of such circumstances but
always taking into account that such Bank shall not be under any
obligation to take any such action if, in its opinion, to do so would or
might have a material adverse effect upon its business, operations or
financial condition or would involve it in any unlawful activity or any
activity that is contrary to its policies or any request, guidance or
directive of any competent authority (whether or not having the force of
law) or (unless indemnified to its reasonable satisfaction) would involve
it in any significant expense or tax disadvantage.
18. REPRESENTATIONS AND WARRANTIES
18.1 Representations and warranties
The Borrower makes the representations and warranties set out in this
Clause 18 to each of the Finance Parties.
18.2 Status
(a) It is a limited liability company, duly incorporated and validly
existing under the laws of Poland and each other Obligor is a
corporation or limited liability company, duly incorporated and
validly existing under the laws of the jurisdiction of its
incorporation; and
(b) each member of the Group has the power to own its assets and
carry on its business as it is being conducted.
18.3 Powers and authority
Each Obligor has the power to enter into and perform, and has taken all
necessary action to authorise the entry into, performance and delivery
of, the Senior Finance Documents to which it is or will be a party and
the transactions contemplated by those Senior Finance Documents.
18.4 Legal validity
Each Senior Finance Document to which any Obligor is or will be a party
constitutes, or when executed in accordance with its terms will
constitute, its legal, valid and binding obligation enforceable in
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accordance with its terms subject to applicable insolvency and other laws
affecting creditors' rights generally.
18.5 Authorisations
(a) All authorisations required or the absence of which may prejudice
the Finance Parties in connection with the entry into,
performance, validity and enforceability of the Senior Finance
Documents and the transactions contemplated by the Senior Finance
Documents have been obtained or effected and are in full force
and effect.
(b) The Borrower holds the GSM Licence, the DCS-1800 Licence and the
UMTS Licence and each Obligor holds all Necessary Authorisations
and has received no notice of proceedings relating to the
revocation of the GSM Licence, the DCS-1800 Licence, the UMTS
Licence or any other licence, certificate, franchise or permit,
which individually or in the aggregate, if the subject of an
unfavourable ruling or finding, would have a Material Adverse
Effect.
18.6 Pari passu ranking
Each Obligor's obligations under the Senior Finance Documents rank and
will rank at least pari passu with all its other unsecured and
unsubordinated obligations except for obligations which are mandatorily
preferred by law applying to companies generally.
18.7 Stamp duties
No stamp or registration duty or similar Taxes or charges are payable in
Poland, the Netherlands, Luxembourg or England in respect of any Senior
Finance Document other than registration fees in relation to the
registration of pledges under the Pledge Law or the laws of the
Netherlands, Luxembourg or England relating to the granting of Security
Interests which have been paid by the Borrower.
18.8 Immunity
(a) The execution by each Obligor of each Senior Finance Document to
which it is or will be a party constitutes, and its exercise of
its rights and performance of its obligations under each Senior
Finance Document will constitute, private and commercial acts
done and performed for private and commercial purposes.
(b) No Obligor will be entitled to claim immunity from suit,
execution, attachment or other legal process in any proceedings
taken in Poland, the Netherlands, Luxembourg or England in
relation to any Senior Finance Document.
18.9 Non-conflict
The entry into and performance by any Obligor of, and the transactions
contemplated by, the Senior Finance Documents do not and will not:
(a) conflict with any law or regulation or judicial or official order
with which such Obligor is required to comply; or
(b) conflict with the constitutional documents of any member of the
Group; or
(c) conflict with any document which is binding upon any member of
the Group or any asset of any member of the Group.
18.10 No default
(a) No Default is outstanding or might result from the making of any
Utilisation; and
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(b) no other event is outstanding which constitutes (or with the
giving of notice or lapse of time might constitute) a default
under any document which is binding on any member of the Group or
any asset of any member of the Group to an extent or in a manner
which could reasonably be expected to have a Material Adverse
Effect.
18.11 Litigation
No litigation, arbitration or administrative proceedings are current or,
to its knowledge, pending or threatened, which, if adversely determined,
could reasonably be expected to have a Material Adverse Effect.
18.12 Accounts
(a) The Original Borrower Accounts:
(i) have been prepared in accordance with the Accounting
Principles consistently applied; and
(ii) fairly represent the financial condition of the Borrower as
at the date to which they were drawn up,
and there has been no material adverse change in the business,
financial condition, operations or performance of the Group
(taken as a whole) since the date to which those Accounts were
drawn up.
(b) The annual audited Accounts of the Group and each Principal
Member of the Group most recently delivered to the Agent after
the Original Borrower Accounts:
(i) have been prepared in accordance with the Accounting
Principles consistently applied; and
(ii)
(A) in the case of a Principal Member of the Group, fairly
represent the financial condition of each Principal
Member of the Group as at the date to which they were
drawn up; and
(B) in the case of the Group, fairly represent the
financial condition of the Group as at the date to
which they were drawn up,
and no event has occurred which would have a Material Adverse
Effect since the date those Accounts were drawn up.
18.13 Security Interests
(a) The security conferred by the Security Documents constitutes, or
will when executed and/or registered (as applicable) constitute,
a first ranking Security Interest of the type therein described
over the security assets referred to therein and no Security
Interest exists over its or any of its Subsidiaries' assets which
would cause a breach of Clause 19.8 (Negative Pledge).
(b) No member of the Group owns any bank account other than (i) bank
accounts subject to a first ranking Security Interest in favour
of the Finance Parties, (ii) escrow accounts permitted under the
Senior Finance Documents or (iii) bank accounts subject to the
Bank Account Side Letter.
(c) None of the shares pledged by any Obligor pursuant to any
Security Document is evidenced by a share certificate.
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18.14 Information Memorandum
(a) All information contained in the Information Memorandum (other
than information in reports from third parties that has been
provided to the Borrower by such third parties) was true in all
material respects at its date, all calculations made in the
financial models in the Information Memorandum have been made
correctly and all expressions of opinion or intention and all
forecasts and projections made by it (including any assumptions,
forecasts and projections made in connection with the banking
base case in the Information Memorandum) contained in the
Information Memorandum were arrived at after careful
consideration, were fair and were based on reasonable grounds.
(b) So far as it is aware after due and careful review and enquiry
all factual information furnished by the Borrower or its advisors
on which the Information Memorandum is based or which is referred
to therein was true in all material respects as at its date.
(c) The Information Memorandum did not omit anything which is
material in the context of the business and financial condition
of the Borrower.
(d) As at the Signing Date, nothing has occurred since the date of
the Information Memorandum which renders the information therein
(as updated prior to the Signing Date) untrue or misleading in
any material respect and which is material in the context of the
business and financial condition of the Borrower.
18.15 Intellectual Property Rights
(a) It (and each of its Subsidiaries) owns or has the legal right to
use all the Intellectual Property Rights which are material to
the conduct of the business of the Group taken as a whole or are
required by it in order for it to carry on its business in all
material respects as it is being conducted on the Signing Date
and as far as it is aware it does not (nor do any of its
Subsidiaries), in carrying on its business, infringe any
Intellectual Property Rights of any third party in any way which
would have a Material Adverse Effect.
(b) None of the Intellectual Property Rights which are material in
the context of the business of any member of the Group is, to its
knowledge, being infringed nor, to its knowledge, is there any
threatened infringement of those Intellectual Property Rights, by
any third party which would have a Material Adverse Effect.
(c) All registered Intellectual Property Rights owned by it (or any
Subsidiary of it) and which are material to the conduct of the
business of any member of the Group are subsisting and all
actions (including payment of all fees) required to maintain the
same in full force and effect have been taken, where lack of
subsistence or failure to take any such action would have a
Material Adverse Effect.
18.16 Environmental matters
(a) It and its Subsidiaries (i) have obtained all requisite
Environmental Licences required for the carrying on of its
business as currently conducted and (ii) have at all times
complied with the terms and conditions of such Environmental
Licences and (iii) have at all times complied with all other
applicable Environmental Laws, which in each such case, if not
obtained or complied with, would have a Material Adverse Effect.
(b) So far as it is aware after due enquiry, there is no
Environmental Claim pending or threatened, against any member of
the Group which is reasonably likely to be decided against that
member of the Group and which if so decided would have a Material
Adverse Effect.
(c) So far as it is aware after due enquiry, no Dangerous Substance
has been used, disposed of, generated, stored, transported,
dumped, released, deposited, buried or emitted at, on, from or
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under any premises (whether or not owned, leased, occupied or
controlled by any member of the Group and including any offsite
waste management or disposal location utilised by any member of
the Group) in circumstances where this would be reasonably likely
to result in a liability on any member of the Group which would
have a Material Adverse Effect.
18.17 Material Contracts
(a) Each of the Material Contracts to which any Obligor is a party
constitutes its legal, valid and binding obligation and is
enforceable against it in accordance with its terms subject to
applicable insolvency and other laws affecting creditors' rights
generally, and all authorisations, approvals, consents, licences,
exemptions, filings, registrations, recordings, notarisations,
and other matters, official or otherwise, necessary in connection
with the entry into, performance and validity by and in respect
of that party and enforceability against that party have been
obtained or effected and are in full force and effect.
(b) Neither (i) it nor any member of the Group is in breach of any of
its material obligations under any Licence, nor (ii) is it nor
any member of the Group in breach of any of its obligations under
any other Material Contract in a manner or to such an extent
which would be reasonably likely to have a Material Adverse
Effect.
(c) There is no material dispute between any parties to the Material
Contracts and there have been no material amendments to any
Material Contract since the form provided to the Agent prior to
the Signing Date.
18.18 Times for Making Representations and Warranties
(a) The representations and warranties set out in this Clause 18 are
made on the date of this Agreement.
(b) The representations and warranties set out in Clauses 18.2
(Status), 18.3 (Powers and authority), 18.4 (Legal validity),
18.5 (Authorisation), 18.6 (Pari Passu Ranking), 18.8 (Immunity),
18.9 (Non-conflict), 18.10 (No default), 18.11 (Litigation),
18.12(b) (Accounts), 18.13 (Security Interests) and 18.17
(Material Contracts) are deemed to be repeated by the Borrower on
the date of each Request, each Rollover Date and each Utilisation
Date as if they had been given on such dates having regard to the
facts and circumstances existing on such dates.
19. UNDERTAKINGS
19.1 Duration
The undertakings in this Clause 19 shall remain in force from the date
of this Agreement and for so long as any amount is or may be
outstanding under any Senior Finance Document or any Commitment is in
force.
19.2 Financial Information and Business Plan
(a) The Borrower shall procure that there shall be furnished to the
Agent in sufficient copies (in electronic form, if agreed to by
the Agent) for each of the Banks (or, in the case of Clause
19.2(a)(vii), for each of the Tranche B Banks):
(i) as soon as the same are available (and in any event within
120 days) after the end of each annual Accounting Period:
(A) the audited consolidated Accounts of the Group for that
financial year; and
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(B) the audited Accounts for that financial year for each
Principal Member of the Group;
(ii) as soon as the same are available (and in any event within
45 days) after the end of each quarterly Accounting Period:
(A) the financial statements and the unaudited consolidated
Accounts of the Borrower and, for each quarterly
Accounting Period ending on or after 31 March, 2001,
the financial statements and the unaudited consolidated
Accounts of the Group for that Accounting Period;
(B) the details of the exposure under any hedging
transaction or hedging line of credit designated as a
"Senior Finance Document" pursuant to Clause 19.14(c);
and
(C) a list of each Principal Member of the Group; provided,
however, that the Borrower shall also procure that such
list be furnished upon the request of the Agent.
(iii) as soon as the same is available (and in any event within
60 days after the commencement of each annual Accounting
Period), an updated Business Plan covering the period to the
Final Repayment Date which has been approved by the
management board of the Borrower, on the basis that such
Business Plan shall be subject to approval by the
supervisory board of the Borrower and, if such supervisory
board makes any changes to such Business Plan, as soon as
practicable after such changes have been made (and in any
event within 1 week of the approval of the Business Plan by
such supervisory board, the Business Plan as changed by such
supervisory board);
(iv) as soon as the same is available (and in any event by 31
March, 2001) the UMTS Business Plan approved by the
management board of the Borrower and the supervisory board
of the Borrower;
(v) as soon as the same is available (and in any event within 45
days) after the end of each quarterly Accounting Period, a
report in an agreed form setting out performance indicators
covering the level of, among other things, subscribers,
network coverage, revenue per subscriber, acquisition costs
per subscriber, churn and Capital Expenditure of the
Borrower and its Subsidiaries for the previous quarterly
Accounting Period;
(vi) as soon as the same is available (and in any event within 45
days) after the end of each quarterly Accounting Period a
report in an agreed form setting out the information
(including any reconciliation between the accounts of the
Borrower and its Subsidiaries) that is needed to calculate
the financial covenants contained in Clause 21 (Financial
undertakings) and the results of such calculations;
(vii) at the same time as the annual audited consolidated
Accounts are delivered pursuant to paragraph (i)(A) above a
report of the Auditors in a form reasonably satisfactory to
the Agent:
(A) setting out in reasonable detail computations
establishing, as at the date of such Accounts, whether
the Borrower complied with each of the financial ratios
set out in Clause 21 (Financial Undertakings);
(B) stating whether the Auditors in the course of their
audit discovered any breach of the obligations set out
in Clause 21 (Financial Undertakings); and
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(C) a letter explaining any differences between the format,
headings and characterisations used where those
differences would affect the ability of the Agent and
the Banks to calculate the components of the financial
ratios in Clause 21 (Financial Undertakings); and
(viii)at the same time that they are submitted to the National
Statistical Office in Poland, copies of forms F-01 and F-02;
and
(ix) at the same time that they are submitted, copies of all
regular, periodic and special reports and all registration
statements, that the Borrower or any of its Subsidiaries
files with the Securities and Exchange Commission or any
governmental authority that may be substituted therefore, or
with any national securities exchange.
(b) The Borrower shall supply to the Agent together with the
quarterly Accounts specified in paragraph (a)(ii) above and, in
the case only of (ii) below, at any other time if the Agent
reasonably so requests, a certificate substantially in the form
of Schedule J signed by a member of the management board of the
Borrower on its behalf:
(i) setting out in reasonable detail computations establishing,
as at the date of the latest Accounts, whether each of the
financial ratios set out in Clause 21 (Financial
Undertakings) were complied with and certifying that (A) the
relevant Accounts fairly represent the financial position of
the Borrower or the Group, as applicable, and (B) the
relevant Accounts were prepared in accordance with the
Accounting Principles or the terms of Clause 19.7
(Accounting Standards) has been complied with; and
(ii) certifying that, so far as he is aware, having made proper
enquiries, no Default is outstanding or, if a Default is
outstanding, specifying the Default and the steps, if any,
being taken to remedy it.
(c) The Borrower shall supply to the Agent promptly at any time the
Agent reasonably requests it, the amount of Senior Debt of the
Group outstanding at the time of the Agent's request.
19.3 Information - Miscellaneous
The Borrower shall supply to the Agent in sufficient copies for all the
Banks, if the Agent so requests:
(a) all documents or information relating to matters which are
material to the Borrower's or the Group's business, assets or
financial condition and which are likely to result in a Material
Adverse Effect or which are despatched by it to its creditors (or
any class of them) at the same time as they are despatched;
(b) promptly upon becoming aware of them, details of any litigation,
arbitration or administrative proceedings which are current,
threatened or pending and which if, adversely determined, could
reasonably be expected to have a Material Adverse Effect; and
(c) promptly, such further information in the possession or control
of any member of the Group regarding its financial condition and
operations as any Finance Party (through the Agent) may
reasonably request.
19.4 Notification of Default
The Borrower shall notify the Agent of any Default (and the steps, if
any, being taken to remedy it) promptly upon it becoming aware of its
occurrence.
19.5 Authorisations
(a) The Borrower shall promptly:
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(i) obtain, maintain and comply with the terms of; and
(ii) supply certified copies to the Agent of,
any authorisation required (or the absence of which may
prejudice the Finance Parties) under any law or regulation to
enable it or another member of the Group to perform its
obligations under, or for the validity or enforceability of,
any Senior Finance Document to which it or another member of
the Group is a party.
(b) The Borrower shall promptly obtain or cause to be obtained every
Necessary Authorisation and ensure that:
(i) none of the Necessary Authorisations is revoked, cancelled,
suspended, withdrawn, terminated, expires or is not renewed
or otherwise ceases to be in full force and effect; and
(ii) no Necessary Authorisation is modified and no member of the
Group commits any breach of the terms or conditions of any
Necessary Authorisation
which, in the case of (i) or (ii), is reasonably likely to result
in a Material Adverse Effect.
19.6 Audit and Accounting Dates
The Borrower will ensure that:
(a) the annual Accounts to be delivered to the Agent pursuant to
Clauses 19.2(a)(i) and 19.2(a)(vi) (Financial information and
Business Plan) are audited by the Auditors;
(b) it shall at all times have duly appointed the Auditors as
auditors and each Principal Member of the Group shall at all
times have the Auditors as duly appointed auditors (where
required by law); and
(c) it will not, and no member of the Group will, change the end of
its annual Accounting Period without the prior written consent of
the Agent acting on the instructions of the Majority Banks.
19.7 Accounting Standards
The Borrower will ensure that:
(a) all Accounts shall be prepared in accordance with the Accounting
Principles or shall indicate in notes to or accompanying such
Accounts any material departures from the Accounting Principles;
(b) all Accounts shall (in the case of annual Accounts) fairly
represent (subject to adjustments which fall to be made at the
end of the financial year) the consolidated financial position
and results of operations of the relevant member of the Group and
its Subsidiaries (in the case of consolidated Accounts) or its
financial position and results of operations (in the case of
unconsolidated Accounts), as at the end of and for the Accounting
Period to which they relate.
19.8 Negative Pledge
(a) The Borrower shall not, and shall procure that no other member of
the Group will, create or permit to subsist any Security Interest
on any of its assets or undertaking.
(b) Paragraph (a) does not apply to the following Security Interests:
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(i) any Security Interest existing at the date of this Agreement
and detailed in Schedule F provided that the amount secured
by such Security Interest is not increased above the amount
stated or described in that Schedule as reduced from time to
time;
(ii) any Security Interest constituted or evidenced by the
Security Documents or the Main Facility Senior Finance
Documents;
(iii) a lien arising by operation of law in the ordinary course
of business and securing amounts not more than 60 days
overdue;
(iv) any Security Interest which arises as a result of or in the
course of legal proceedings the enforcement or realisation
of which is stayed (A) by reason of the claims in relation
to which such Security Interest arises being contested in
good faith or (B) pending or during the hearing of an appeal
made against the judgment or order creating the same;
(v) (A) any Security Interests over assets acquired after the
Signing Date to secure only Financial Indebtedness
used to acquire such assets, including Security
Interests in favour of a vendor over assets acquired
by way of vendor financings permitted under Clause
19.26 (Financial Indebtedness) where the payment terms
exceed 180 days; provided, however, that no such
Security Interest shall extend to cover any property
other than the assets being acquired and that, in the
case of vendor financings, the aggregate fair market
value of such assets, as determined based on the
purchase price (net of taxes) set forth on the invoice
therefor, acquired by way of all such vendor
financings does not exceed the Euro Equivalent of(euro)
50,000,000 at any time;
(B) any rights by way of reservation or retention of title
to secure only Financial Indebtedness or other
obligations incurred to acquire goods which are
acquired by or supplied to the Borrower or any other
member of the Group in the ordinary course of its
business after the Signing Date; provided, however,
that no such Security Interest shall extend to cover
any property other than the goods being acquired;
so long as the amount of the Financial Indebtedness incurred
before, on or after the Signing Date which is secured by the
Security Interests referred to in sub-Clauses (A) and (B)
above would not cause the limit on Financial Indebtedness
set forth therefor in Clause 19.26(a) (Financial
Indebtedness) to be breached;
(vi) any Security Interest securing any New Facility pursuant to
security documentation in form and substance satisfactory to
the Agent, acting on the instruction of the Majority Banks;
provided that:
(A) such Security Interest shall effectively rank pari
passu with the Security Interests granted under the
Security Documents;
(B) the Security Interest shall not extend to or cover any
assets not subject to the Security Interests granted
under the Security Documents;
(C) the secured creditors under any such New Facility
shall have entered into the Collateral Sharing
Intercreditor Agreement; and
(D) the security agent under any such New Facility shall be
satisfactory to the Agent and the Security Agent,
acting reasonably;
(vii) any Security Interest in any escrow accounts pledged to
high yield bondholders and in amounts on deposit thereon;
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(viii) any Security Interest in (a) any escrow accounts (and
amounts on deposit therein) established for the purpose of
supporting obligations under a QTE Lease, so long as the
aggregate fair market value of the assets which are the
subject of such leases at the time such leases are entered
into as determined by an independent market consultant
approved by the Agent does not exceed the Euro Equivalent
of(euro) 100,000,000 at such time or (b) any single purpose
accounts (and amounts on deposit therein) in the name of an
Issuer or any other finance subsidiary through which
payments within 5 Business Days of high yield bond interest
are made, provided that the aggregate amount on deposit
therein shall not exceed at any time the amount of the next
payment of high yield bond interest;
(ix) any Security Interests in favour of a vendor over assets
acquired by way of vendor financings where the payment terms
do not exceed 180 days; provided, however, that no such
Security Interest shall extend to cover any property other
than the assets being acquired;
(x) any Security Interest securing indebtedness incurred to
refinance other indebtedness permitted to be secured by any
Security Interests permitted under paragraphs (b)(i) to (v)
above provided that the replacement Security Interest does
not cover any assets other than the original assets subject
to the original Security Interest and that the aggregate
principal amount secured thereby is not increased; and
(xi) any Security Interest over cash collateral in relation to
letters of credit, guarantees or bonds which are permitted
to be issued under Clause 19.26(b) (Financial Indebtedness)
so long as the aggregate amount of such cash collateral does
not exceed (euro) 15,000,000 at any time.
19.9 Transactions Similar to Security
The Borrower shall not, and shall procure that no other member of the
Group will sell, transfer or otherwise dispose of any of its assets on
terms whereby it is or may be leased to or re-acquired or acquired by a
member of the Group or any of its related entities in circumstances where
the transaction is entered into primarily as a method of raising finance
or of financing the acquisition of an asset other than:
(a) in connection with Finance Leases permitted in accordance with
Clause 19.26(a) (Financial Indebtedness);
(b) in connection with QTE Leases permitted in accordance with Clause
19.26(a) (Financial Indebtedness); or
(c) any goods acquired in the ordinary course of the Borrower's
business which are transferred upon acquisition back to the
vendor thereof in relation to the financing of the acquisition
price thereof so long as the amount of the Financial Indebtedness
incurred in relation to the financing of the acquisition would
not cause any limit on Financial Indebtedness contained in Clause
19.26 (Financial Indebtedness) to be breached and that Financial
Indebtedness is incurred after the Signing Date,
provided that, in relation to any Finance Lease or QTE Lease, such
security interest relates solely to the assets which are the subject
matter of such lease.
19.10 Disposals
(a) The Borrower shall not, and shall procure that no other member of
the Group will, either in a single transaction or in a series of
transactions whether related or not and whether voluntarily or
involuntarily, sell, transfer, grant or lease or otherwise
dispose of any of its assets.
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(b) Paragraph (a) does not apply to:
(i) disposals made in the ordinary course of trading of the
disposing entity;
(ii) disposals of non core assets of the Group on terms no less
favourable to the Group than arm's-length terms where the
consideration is received in Cash;
(iii) disposals of assets which are surplus, obsolete or
redundant plant and equipment on terms no less favourable to
the Group than on arm's length terms where the consideration
is received in Cash;
(iv) disposals of assets in exchange for other assets comparable
or superior as to type, value and quality;
(v) disposals of assets to become the subject of a Finance Lease
permitted pursuant to Clause 19.26(a)(iv) (Financial
Indebtedness) for fair value;
(vi) disposals of assets to become the subject of a QTE Lease
pursuant to Clause 19.26(a)(v) (Financial Indebtedness) for
fair value; or
(vii) disposal of assets on arm's length terms for Cash not
otherwise permitted pursuant to (i) to (vi) (inclusive)
above,
(A) the Net Proceeds of which, in the case of any single
transaction or series of related transactions do not
exceed the Euro Equivalent of(euro) 500,000; and
(B) the Euro Equivalent of the Net Proceeds of which when
aggregated with the Euro Equivalent of the Net
Proceeds of all other such disposals in any annual
Accounting Period do not exceed (euro) 5,000,000.
This provision is intended to operate notwithstanding the
invalidity or unenforceability of any provision of a Security
Document restricting disposals.
19.11 Pari passu ranking
The Borrower shall procure that its obligations under the Senior
Finance Documents, do rank and will rank at least pari passu (save by
reason of and to the extent of the security afforded thereto by the
Security Documents or any documents evidencing security under the New
Facility) with all its other present and future unsecured and
unsubordinated obligations, other than obligations which are
mandatorily preferred by law applying to companies generally.
19.12 Loans and guarantees
(a) The Borrower will not, and will procure that no other member of
the Group will:
(i) make any loans, provide credit, enter into any hire
purchase, rental, finance or operating lease as lessor or
otherwise enter into transactions where third parties incur
Financial Indebtedness in its favour; or
(ii) give any guarantee to or for the benefit of any person,
other than loans or guarantees:
(A) arising under the Transaction Documents;
(B) between one member of the Group and another member of
the Group so long as the business of such member of
the Group is solely related to the
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Borrower's Telecom Business where the requirements
of Clause 19.32 (Security and bank accounts) in
relation to the giving of guarantees and security
by the relevant members of the Group have been
complied with;
(C) the aggregate Euro Equivalent of which does not exceed
(euro) 20,000,000 outstanding at any time;
(D) arising in the ordinary course of business of the
relevant member of the Group; or
(E) loans to employees the aggregate Euro Equivalent of
which does not exceed (euro) 10,000,000 outstanding at
any time.
(b) The Borrower will not, and will procure that none of its
Subsidiaries will, agree to change the interest rates set forth
in any of the Onlending Agreement between PTC International
Finance B.V. and the Borrower dated 1 July, 1997, the Onlending
Agreement between PTC International Finance II S.A and PTC
International Finance (Holding) B.V. or the Onlending Agreement
between International Finance (Holding) B.V. and the Borrower,
each dated 23 November, 1999 or any other onlending agreement
entered into between any members of the Group from time to time
in accordance with the terms hereof without the consent of the
Majority Banks, except in order to ensure that at the end of the
discount or zero-coupon periods, as applicable, of the bonds
issued pursuant to the High Yield Debt Documents, the proceeds of
which are on-lent under the terms of the relevant onlending
agreement, the amount of the proceeds (with any capitalised
interest) on-lent from the respective issuer to the Borrower is
equal to the nominal value of the respective bonds.
19.13 Operating Leases
The Borrower will not, and will procure that no other member of the Group
will, after the Signing Date enter into any operating lease as lessee of
or in respect of equipment, machinery or plant (other than any motor
vehicles) if the equipment, machinery or plant concerned is of such
importance in the business of the Group taken as a whole that such
business would be materially and adversely affected were the leases for
such equipment, machinery or plant to be terminated early and the right
to possession of the equipment, machinery or plant lost to the Group.
19.14 Treasury transactions
(a) The Borrower will enter into such hedging transactions as are
required in accordance with the Hedging Policy and may enter into
such other hedging transactions as are generally envisaged by the
spirit of the Hedging Policy but otherwise it will not, and will
procure that none of its Subsidiaries will, enter into any
interest rate swap, cap, ceiling, collar or floor or any currency
swap, futures, foreign exchange or commodity contract or option
(whether over the counter or exchange traded) or any similar
treasury transaction.
(b) The Borrower will use all reasonable endeavours to agree with the
Agent, acting on behalf of the Majority Banks, an updated Hedging
Policy on an annual basis.
(c) The Agent, at the request of the Borrower, shall designate any
hedging transaction or documents evidencing a hedging line of
credit with a Bank, which is in accordance with the Hedging
Policy, as a "Senior Finance Document" with its obligations to
that Bank secured by the Security Documents.
19.15 Receivables disposals
The Borrower will not, and will procure that no other member of the
Group will, sell, transfer or otherwise dispose of any of its
receivables other than:
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(a) the discounting of bills or notes in the ordinary course of
trading;
(b) the sale of bad debts to a Subsidiary or in the ordinary course
of business on arm's length terms on either a recourse or
non-recourse basis where the seller receives Cash on completion
of the sale; or
(c) a discount to a subscriber in the ordinary course of business.
19.16 Acquisitions and Investments
The Borrower will not, and will procure that no other member of the
Group will:
(a) make any Acquisition; or
(b) make any investment with Cash,
other than:
(i) a Permitted Investment;
(ii) capital expenditures in the Telecom Business of any Obligor;
and
(iii) an investment in a Subsidiary or Affiliate of the Borrower,
so long as the business of such Subsidiary or Affiliate is
related to the Borrower's Telecom Business; provided that
the aggregate amount of investments in Subsidiaries and
Affiliates that are not Obligors shall not exceed the Euro
Equivalent of (euro) 50,000,000 at any time.
19.17 Restricted Distributions
Except as provided in Clause 19.18 (Permitted Distributions), the
Borrower will not and will procure that no other member of the Group
(other than by any member of the Group in favour of the Borrower or
another member of the Group which is directly or indirectly wholly
owned by the Borrower) will:
(a) make or resolve to make any distribution, dividend, Restricted
Payment or other payment (in cash or in kind) on or in respect of
any share capital, Reserve Capital or equivalent of a member of
the Group;
(b) make or resolve to make (whether in cash, property, securities or
otherwise) any redemption, repurchase, defeasance, retirement,
return or repayment of any of its share capital or equivalent of
a member of the Group (other than by way of a reduction of share
capital without any payment to shareholders);
(c) make or resolve to make any redemption, repurchase, defeasance,
repayment, prepayment or payment (in cash or in kind) of the
principal of, or interest (whether or not capitalised) or other
amount on or in respect of Subordinated Debt or any
sub-participation or cash collateral arrangement in respect of
any Subordinated Debt;
(d) make or resolve to make any other transfer of assets to any
Shareholder or other Restricted Person; or
(e) exercise any right of set-off in respect of any Subordinated
Debt.
19.18 Permitted Distributions
(a) Any member of the Group may make or resolve to make a Permitted
Distribution of the type referred to in clause (a) or (b) of the
definition of "Permitted Distribution" so long as before
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and after giving effect to such Permitted Distribution, the ratio
of Senior Debt of the Group to EBITDA of the Group (calculated
based on the financial statements of the Borrower most recently
available and giving pro forma effect to such Permitted
Distribution) shall be less than 3.0:1.0.
(b) So long as no Event of Default shall have occurred and be
continuing, the relevant Issuer, holding company of an Issuer or
the Borrower may make any payment due by it under the High Yield
Debt Documents if:
(i) in the case of a payment by the relevant Issuer to the
relevant trustee, a Payment Blockage Notice (as defined in
the applicable High Yield Debt Documents) does not apply to
that payment; or
(ii) in the case of the payment by the Borrower or a holding
company of an Issuer to the relevant Issuer, the payment to
the trustee which such payment is to fund is not subject to
a Payment Blockage Notice (as defined in the applicable High
Yield Debt Documents).
(c) Without prejudice to sub-Clause 19.18(d), so long as no Event of
Default shall have occurred and be continuing, the Borrower or
any member of the Group may make payments of interest in respect
of any transaction described in paragraph (e) of the definition
of Subordinated Debt.
(d) Unless a Default has occurred and is continuing, the whole or any
part of the Subordinated Debt may be repaid, replaced,
substituted or refinanced by way of an equity contribution,
Reserve Capital or other Subordinated Debt; provided that in the
case of such other Subordinated Debt, the maturity date of such
other Subordinated Debt is no earlier than 12 months after the
Final Repayment Date.
19.19 Certification of Payment Amounts
Where any Permitted Distribution, other than pursuant to the High Yield
Debt Documents, is proposed to be made pursuant to Clause 19.18
(Permitted Distributions) the Borrower shall, prior to making such
payment, provide to the Agent not less than 10 Business Days before the
proposed date for the Distribution, a certificate signed by an authorised
signatory of the Borrower showing:
(a) the date and amount of such proposed Distribution;
(b) such calculations in reasonable detail as are necessary to show
how the payment figure was arrived at and that the provisions in
Clause 19.18 (Permitted Distributions) have been complied with;
and
(c) all calculations required under Clause 21 (Financial
Undertakings) calculated before and after giving effect to such
proposed Distribution.
19.20 Share Capital
The Borrower will not and will procure that no member of the Group will:
(a) other than in the case of the Borrower, issue any Excluded Share
Capital;
(b) issue any new share capital or grant any option over any shares
to any person except:
(i) in the case of any Subsidiary of the Borrower, shares issued
to another member of the Group, where a Security Agent or
the Banks already have security over the shares of the
issuer of any such new shares in which case the new share
capital or option may be issued or granted once the relevant
Security Agent or the Agent has confirmed to the Borrower
that the member of the Group to whom such new shares are to
be issued
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has provided security over such shares to a Security Agent
and/or the Finance Parties to the reasonable satisfaction of
Security Agent and the Agent have obtained whatever
certificates, corporate authorities or opinions they may
deem necessary; and
(ii) the Borrower may issue new share capital in consideration of
cash or a contribution in kind by any Shareholder of any
Shareholder Loan or any Reserve Capital, provided that
promptly after the issuance thereof, the Borrower shall
notify the Finance Parties as to the number of shares issued
and the identity of the person to which such shares were
issued; or
(c) undertake an initial public offering without giving prior written
notice to the Banks through the Agent.
19.21 Intellectual Property Rights
The Borrower will, and will procure that each of its Subsidiaries will:
(a) promptly make such registrations and pay such fees and similar
amounts as are necessary to keep those registered Intellectual
Property Rights owned by the Group which are material to the
conduct of the business of the Group taken as a whole from time
to time;
(b) not infringe in carrying on its business any Intellectual
Property Rights of any third party in any way which would have a
Material Adverse Effect;
(c) promptly take such steps as are necessary and commercially
reasonable (including, without limitation, the institution of
legal proceedings) to prevent third parties infringing those
Intellectual Property Rights referred to in paragraph (a) above
and (without prejudice to paragraph (a) above) take such other
steps as are reasonably practicable to maintain and preserve its
interests in those rights;
(d) promptly upon being required to do so by the Agent or a Security
Agent, comply with all proper instructions of the Agent or a
Security Agent which the Agent or a Security Agent is entitled to
give under the Security Documents in respect of its Intellectual
Property Rights referred to in paragraph (a) above;
(e) not sell, transfer, lease, licence on an exclusive basis or
otherwise dispose of all or any part of its interest in any of
the Intellectual Property Rights referred to in paragraph (a)
above (whether in a single transaction or in a series of
transactions whether related or not and whether voluntarily or
involuntarily) save:
(i) as effected pursuant to any of the Security Documents; or
(ii) for any licence arrangements in respect of those rights
entered into with members of the Group for so long as they
remain members of the Group; or
(iii) for any licence arrangements in respect of those rights
entered into with any third party, where those licence
arrangements are entered into on arms' length terms and in
the ordinary course of business and which do not materially
and adversely affect the interests of the Banks under the
Senior Finance Documents; and
(f) not permit any registration of any of the Intellectual Property
Rights referred to in paragraph (a) above to be abandoned,
cancelled or to lapse or to be liable to any claim of abandonment
for non-use or otherwise.
19.22 Environmental Matters
The Borrower will and will procure that each other member of the Group
will:
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(a) (i) obtain all requisite Environmental Licences required for the
carrying on of its business as currently conducted, (ii) comply
with the terms and conditions of all such Environmental Licences
applicable to it and (iii) comply with all other applicable
Environmental Laws, in each case where failure to do so would
have a Material Adverse Effect;
(b) promptly upon receipt of the same, notify the Agent and the
Security Agent of any Environmental Claim pending or threatened
against any member of the Group which if decided against that
member of the Group would be reasonably likely to have a Material
Adverse Effect;
(c) not use, dispose of, generate, store, transport, dump, release,
deposit, bury or emit at, on, from or under any premises (whether
or not owned, leased, occupied or controlled by any member of the
Group and including any offsite waste management or disposal
location utilised by any member of the Group) any Dangerous
Substance in circumstances where this would be reasonably likely
to result in a liability on any member of the Group which would
have a Material Adverse Effect.
The Borrower shall supply to the Agent in sufficient copies for all the
Banks, if the Agent so requests, within 60 days after the end of each
annual Accounting Period, a report, in form and scope satisfactory to the
Agent, on environmental, health and safety issues arising in relation to
the Borrower or its Telecom Business during such annual Accounting
Period, including compliance by the Borrower with Environmental Laws, any
violations thereof and fines and remedial action relating thereto, public
complaints and environmental emergencies.
19.23 Insurance
The Borrower shall, and shall procure that each other member of the Group
will maintain insurance with financially sound and reputable insurers
with respect to its assets of an insurable nature against such risks and
in such amounts as are normally maintained by persons carrying on the
same or a similar class of business and will provide the Agent details of
such insurances, promptly after each renewal and such other times as the
Agent may reasonably request.
19.24 Change of Business
The Borrower and the Group shall conduct at all times only the Telecom
Business.
19.25 Mergers
The Borrower will not, and will procure that no other member of the Group
will, enter into any merger, amalgamation, reconstruction or
consolidation with any other person or business other than:
(a) a conversion by the Borrower into a joint stock company (Spolka
Akcyjna);
(b) a merger where the Borrower or the relevant Subsidiary is the
surviving legal entity; or
(c) a merger where the Borrower or the relevant Subsidiary is not the
surviving legal entity but the surviving legal entity of such
merger assumes the obligations of the Borrower or the relevant
Subsidiary,
in each case where the Majority Banks are satisfied, in their reasonable
opinion, that (i) the net assets of the Borrower or its Subsidiary or
their successor (as the case may be) are no less than those of the
Borrower or its Subsidiary immediately prior to the merger and (ii) the
most recent Business Plan (updated to reflect the merger or conversion)
demonstrates that the resulting entity will be able to comply with all of
the obligations of the Borrower or the relevant Subsidiary under the
Senior Finance Documents to at least the same extent as the Borrower or
the relevant Subsidiary would have been able to do.
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19.26 Financial Indebtedness
(a) The Borrower will not, and will procure that no member of the
Group will, incur or permit to subsist any Financial Indebtedness
other than:
(i) indebtedness under the Senior Finance Documents;
(ii) any existing Financial Indebtedness set forth in Schedule K
and any refinancing of any such Financial Indebtedness
marked by an asterisk in Schedule K; provided that the
principal amount of such refinancing Financial Indebtedness
does not exceed the principal amount being refinanced and
the obligor of the new Financial Indebtedness remains the
same as the obligor of the refinanced Financial
Indebtedness;
(iii) Financial Indebtedness incurred in accordance with the
Hedging Policy and pursuant to any (a) Hedging Agreement in
effect as of the date hereof and set forth in Schedule L,
intended to hedge against interest rate or foreign exchange
rate fluctuations, (b) Hedging Agreement intended to hedge
against interest rate or foreign exchange rate fluctuations
relating to any Financial Indebtedness under the Senior
Finance Documents, (c) Hedging Agreement intended to hedge
against interest rate or foreign exchange rate fluctuations
relating to any interest amounts payable under any High
Yield Debt Documents and (d) Hedging Agreement intended to
hedge against any foreign exchange rate fluctuations
relating to the principal outstanding under any High Yield
Debt Documents; provided that any such Hedging Agreement as
is described in this sub-clause (d) is unsecured and
subordinated to the Financial Indebtedness under the Senior
Finance Documents;
(iv) Financial Indebtedness consisting of vendor financings where
the payment terms exceed 180 days so long as the aggregate
amount outstanding thereunder does not at any time exceed
the Euro Equivalent of (euro) 50,000,000;
(v) during the UMTS Pre-Approval Period:
(A) (x) Subordinated Debt (other than Shareholder Loans)
of an Obligor (and any Subordinated Debt of the
Borrower incurred from the onlending of such
Subordinated Debt of the Obligor) so long as
after giving pro forma effect thereto, the
Borrower will be in compliance with its
undertakings contained in Clause 21 (Financial
Undertakings); and
(y) Financial Indebtedness incurred pursuant to any
New Facility; provided that before and after
giving effect to the incurrence of such New
Facility, no Default shall have occurred and be
continuing;
in either case for the purpose of funding the UMTS Licence
Initial Instalments provided that:
(aa) the maximum aggregate principal amount of
the Financial Indebtedness referred to in
(x) and (y) above shall not, at any time,
exceed (euro) 100,000,000 (or the Euro
Equivalent thereof, if incurred in
another currency); and
(bb) immediately following the application of
any such Financial Indebtedness in payment
of any UMTS Licence Initial Instalment the
aggregate principal amount of all
Financial Indebtedness (other than
Shareholder Loans)
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incurred (whether hereunder or otherwise)
for the purpose of financing such UMTS
Licence Initial Instalment and all
previous UMTS Licence Initial Instalments
shall not exceed an amount equal to the
lower of (i)(euro) 250,000,000 (or Euro
Equivalent thereof, if incurred in another
currency) and (ii) 2/3 of the Euro
Equivalent of the aggregate amount of
such UMTS Licence Initial Instalment and
all previous UMTS Licence Initial
Instalments;
(B) Subordinated Debt of an Obligor so long as such
Subordinated Debt is zero-coupon or the payment of
interest on such Subordinated Debt is secured with
cash on deposit in an escrow account and the period
during which such Subordinated Debt is zero coupon or
the interest thereon is escrowed extends beyond the
Final Repayment Date and so long as the proceeds
thereof are used for general corporate purposes other
than UMTS Expenditures;
(C) Financial Indebtedness of an Obligor consisting of
Shareholder Loans, the proceeds of which are used (i)
to purchase the UMTS Licence or (ii) for general
corporate purposes other than UMTS Expenditures;
(vi) during the UMTS Approved Period:
(A) Subordinated Debt of an Obligor (and any Subordinated
Debt of the Borrower incurred from the onlending of
such Subordinated Debt of the Obligor) so long as after
giving pro forma effect thereto, the Borrower will be
in compliance with its undertakings contained in Clause
21 (Financial Undertakings);
(B) Financial Indebtedness consisting of:
(x) Financial Indebtedness incurred pursuant to any
New Facility; provided that before and after
giving effect to the incurrence of such New
Facility, no Default shall have occurred and be
continuing;
(y) Financial Indebtedness or other obligations
incurred pursuant to QTE Leases (and (without
double-counting) any letter of credit issued in
connection therewith) in an aggregate amount
not exceeding the Euro Equivalent of (euro)
100,000,000 and Finance Leases;
provided that the aggregate principal amount outstanding
(or, in the case of QTE Leases and letters of credit
referred to in sub-Clause (y) above, upon defeasance in
accordance to the terms thereof, the residual amount
thereof) of all such Financial Indebtedness or other
obligations incurred in accordance with this sub-Clause (B)
and any amounts incurred pursuant to sub-Clause (v)(A)(y)
above during the UMTS Pre-Approval Period does not, at any
time, exceed the Additional Debt Amount;
(vii) during the UMTS Prepayment Period:
(A) Subordinated Debt of an Obligor (and any Subordinated
Debt of the Borrower incurred from the onlending of
such Subordinated Debt of the Obligor) so long as after
giving pro forma effect thereto, the Borrower will be
in compliance with its undertakings contained in Clause
21 (Financial Undertakings);
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(B) Financial Indebtedness consisting of vendor financings
where the payment terms exceed 180 days, so long as the
aggregate amount outstanding thereunder does not at
any time exceed the Euro Equivalent of (euro)
75,000,000;
(viii) during the UMTS Exclusion Period;
(A) Subordinated Debt of an Obligor consisting of
Shareholder Loans; and
(B) Subordinated Debt (other than Shareholder Loans) of an
Obligor (and any Subordinated Debt of the Borrower
incurred from the onlending of such Subordinated Debt
of the Obligor) so long as such Subordinated Debt is
zero-coupon or the payment of interest on such
Subordinated Debt is secured with cash on deposit in
an escrow account and the period during which such
Subordinated Debt is zero-coupon or the interest
thereon is escrowed extends beyond the Final
Repayment Date and so long as the proceeds thereof are
used for general corporate purposes other than UMTS
Expenditures; and
(ix) Indebtedness under the Main Facility Senior Finance
Documents, so long as the aggregate principal amount
outstanding thereunder does not exceed the Euro Equivalent
of (euro) 550,000,000.
(b) The Borrower may not, and shall procure that none of its
Subsidiaries will, incur or permit to subsist any indebtedness by
the issue of any letters of credit, bank guarantees, bonds for
the performance of bids, tenders or contracts or similar
instruments other than:
(i) letters of credit, bank guarantees, performance bonds or
similar instruments with tenors not exceeding one year
incurred by a member of the Group in the ordinary course of
its business or issued in support of Financial Indebtedness,
the aggregate principal amount of which does not exceed the
Euro Equivalent of (euro) 15,000,000; or
(ii) letters of credit, bonds or guarantees in connection with
the leasehold interests of the Borrower in property which is
required for the Borrower's business where the amount of the
letters of credit, bonds or guarantees does not exceed 6
months rent for the leasehold interest in respect of which
the letter of credit, bond or guarantee is issued.
(c) Notwithstanding the foregoing, any Financial Indebtedness,
letters of credit, bank guarantees, performance bonds or similar
instruments incurred during a period in which it was permitted
under this Agreement to be incurred shall be deemed to be
permitted in any subsequent period if it would not otherwise have
been permitted to be incurred under this Agreement during such
subsequent period.
19.27 Arm's-length Terms
The Borrower will not, and will procure that no other member of the Group
will, incur any liability to or for the benefit of, or enter into any
arrangement with any Restricted Person (other than in relation to
Subordinated Debt) or other person owned in whole or in part, either
directly or indirectly, by a Shareholder or which are on terms no worse
to the Group than on an arm's length basis in the ordinary course of
business and, in respect of agreements entered into after the Signing
Date, where there have been bona fide negotiations relating to such
terms.
19.28 Compliance with Laws
The Borrower will, and will procure that each of its Subsidiaries will,
comply in all respects with all applicable material laws, rules,
regulations and orders of any governmental authority, having jurisdiction
over it or any of its assets the failure to comply with which would be
reasonably likely to have a Material Adverse Effect.
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19.29 Auditors
The Borrower will instruct the Auditors to discuss the Group's and/or any
Group member's financial position with the Agent on request from the
Agent at the expense of the Borrower (following consultation with the
Borrower and not more than once in each annual Accounting Period) up to
an amount in each case, of US$1,500 except that such limit shall not
apply if a Default subsists and has not been waived. The Agent will
inform the Banks of the results of any such discussions.
19.30 The Pledge Law
(a) The Borrower shall procure that the Security Documents referred
to in Schedule D are duly authorised and executed (unless
otherwise specified in Schedule E), and the security is
registered promptly (unless otherwise specified in Schedule E)
with the requisite court to the extent required by the Pledge Law
and all fees are paid in connection with such registration at the
time of or before registration; provided, however that the Asset
Pledge shall be executed by the Borrower and be held in escrow by
the Security Agent until the date of deregistration of the Polish
asset pledge made by the Borrower in favor of Citibank
International plc and Citibank (Poland) S.A. (the "CITIBANK
PLEDGE").
(b) The Borrower shall procure that appropriate application for the
registration of the documents referred to in paragraph (a) above
are lodged promptly after the deregistration of the Citibank
Pledge.
(c) The Borrower shall procure that all pledges of collateral under
the facility agreement dated 17th December, 1997 between the
Borrower, the arrangers named therein, the banks named therein,
Citibank International plc as Facility A Agent and Security
Agent, Citibank (Poland) S.A. as Facility B Agent and Security
Agent and Citibank N.A. as Co-ordinator shall be deleted from the
register of pledges maintained by the Warsaw court promptly after
the initial Utilisation hereunder.
(d) The Borrower shall execute a notarial deed in favour of the
Finance Parties under which it will submit to execution with
respect to the obligation to repay the Advances pursuant to Art.
777 Sec. 1.5 of the Polish Code of Civil Procedure, and a
notarial deed in favour of the Security Agent with respect to the
obligation to surrender PTC's movables pursuant to Art. 777 Sec.
1.4 of the Polish Code of Civil Procedure no later than the
Business Day immediately following the first Utilisation.
19.31 Principal Members of the Group
The Borrower will procure that all Principal Members of the Group
become Guarantors and grant security over their assets in accordance
with the terms of this Agreement.
19.32 Security and Bank Accounts
(a) The Borrower will procure that where the Borrower or another
member of the Group creates or acquires a Subsidiary after the
Signing Date:
(i) the Holding Company of that Subsidiary gives to the Security
Agent security over all of the shares in the Subsidiary; and
(ii) that Subsidiary, if it constitutes a Principal Member of the
Group, gives a guarantee of all amounts outstanding under
the Senior Finance Documents;
in each case, in such form as the Agent may reasonably require
and any person who provides the security or guarantees provides
the Security Agent with such corporate authorities, certificates,
evidence of registrations and opinions as the Security Agent may
require in each case simultaneously with the creation or
acquisition of the Subsidiary.
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(b) The Borrower will, upon the acquisition of any material assets or
property not yet subject to the Security Documents, give security
to the Security Agent, to the extent it is legally able to, over
such assets or property, and will procure that each Subsidiary
that constitutes a Principal Member of the Group give security to
the Security Agent, to the extent it is legally able to, over all
or substantially all of its assets, in each case on such terms
and in such form as the Agent may reasonably require (subject,
however, to any exceptions contained in the Security Documents in
the agreed form on the Signing Date) and will procure that any
person who provides the security provides the Security Agent with
such corporate authorities, certificates, evidence of
registrations and opinions as the Security Agent may require as
soon as practicable after the acquisition of such assets or
property or after it has become aware that the Subsidiary has
become a Principal Member of the Group, as the case may be.
(c) The Borrower will use all reasonable endeavours to assist the
Finance Parties in any enforcement proceedings in the event that
the security created, if any, over any of the Shares is enforced.
(d) The Borrower will procure that each member of the Group will
maintain all its bank accounts:
(i) in the case of any account other than the collection account
for subscriber receivables, with a Bank or any bank or other
financial institution in London, Poland or Amsterdam with
(or the Holding Company of which has) a long-term debt
rating of at least (a) "BBB-" from S&P and "Baa3" from
▇▇▇▇▇'▇ in any amount or (b) "BB" from S&P and "Ba" from
▇▇▇▇▇'▇ in such amounts as agreed between the Agent and the
Borrower from time to time, or
(ii) in the case of the collection account for subscriber
receivables, a Bank or any bank or other financial
institution in Poland, with a long-term debt rating of at
least (a) "BBB -" from S&P and "Baa3" from ▇▇▇▇▇'▇ in any
amount or (b) "BB" from S&P and "Ba" from ▇▇▇▇▇'▇ in such
amounts as agreed between the Agent and the Borrower,
and the Agent is reasonably satisfied that there are first
priority Security Interests created by the Security Documents
over such accounts (other than over those accounts subject to the
Bank Account Side Letter) and such bank has agreed to waive its
rights of set off over such account.
19.33 UMTS Licence
(a) The Borrower shall not borrow, and shall not permit any members
of the Group to borrow, more, in the aggregate, than the Euro
Equivalent of the lesser of(euro) 250,000,000 and 662/3 per cent.
of the UMTS Licence Initial Instalments by way of Subordinated
Debt (other than Shareholder Loans) and Senior Debt for the
purpose of funding UMTS Licence Initial Instalments. The Borrower
shall not make, or permit any member of the Group to make, any
payments (other than those described in the previous sentence)
related to the UMTS Licence Initial Instalments unless such UMTS
Licence Initial Instalments are funded by the Shareholders
pursuant to capital contributions or Shareholder Loans.
(b) (i) During the UMTS Pre-Approval Period and (ii) during the UMTS
Exclusion Period, the Borrower shall furnish to the Agent in
sufficient copies for each of the Banks a certificate on each
March 31, June 30, September 30 and December 31 occurring during
the UMTS Pre-approval Period and on the date falling three months
from the date of the first day of the UMTS Exclusion Period and
every three months thereafter, setting forth all amounts spent on
purchasing the UMTS Licence and UMTS Expenditures of the Group
and the equivalent amount in capital contributions or Shareholder
Loans to the Group and demonstrating compliance with Clause
19.26(a) (Financial Indebtedness).
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19.34 UMTS Expenditure
The Borrower will not, and will procure that no other member of the Group
will, incur any UMTS Expenditure during (a) the UMTS Pre-Approval Period,
other than for an amount of up to the Euro Equivalent of (euro)
25,000,000 in aggregate and (b) the UMTS Exclusion Period, unless such
UMTS Expenditures are funded through capital contributions or Shareholder
Loans.
20. SYSTEM UNDERTAKINGS
20.1 Network
The Borrower will procure that the Network is designed, constructed,
completed, operated and run in a safe, efficient and business-like
manner in accordance with:
(a) the requirements of each Licence;
(b) requirements relating thereto in any Material Contract;
(c) all applicable Polish laws and regulations; and
(d) reasonable and prudent industry standards applicable in Poland,
which, in the case of paragraphs (b) and (c) above, are material to the
Network or which, if a member of the Group does not so design, construct,
complete, operate or run, may have a Material Adverse Effect.
20.2 Material Contracts
(a) Subject to paragraph (b) below, the Borrower will, and will cause
each of its Subsidiaries to, comply with all of its obligations
under the Material Contracts to which it is a party where failure
so to comply is reasonably likely to have a Material Adverse
Effect.
(b) (i) Save in the circumstances identified in paragraph (ii)
below, the Borrower will not, and will not permit any of
its Subsidiaries to, give any consent under or agree to
waive amend or terminate any Material Contract where to do
so in the case of a waiver or amendment is reasonably
likely to have a Material Adverse Effect.
(ii) For the avoidance of doubt, the provisions of
sub-paragraph (i) above and paragraph (c) below shall
not prohibit the Borrower from terminating, or permitting
any of its Subsidiaries to terminate, any Material Contract
provided that such Material Contract is replaced by an
agreement on substantially the same or better terms.
(c) The Borrower will, and will cause each of its Subsidiaries to,
maintain and in good faith enforce in a manner it reasonably
considers appropriate its rights under the Material Contracts and
on applicable terms, regulations and authorisations to the extent
necessary in order to ensure:
(i) its compliance with its obligations under the Senior Finance
Documents; and
(ii) if material to the interests of the Finance Parties under
the Senior Finance Documents, the performance by the other
parties thereto of their obligations under the Material
Contracts.
(d) The Borrower will, and will cause its Subsidiaries to, perform
its obligations under all material leases, permissions, consents,
approvals, licences, easements, rights of way and any other
rights if failing to do so is reasonably likely to have a
Material Adverse Effect.
(e) The Borrower will promptly provide the Agent for distribution to
the Banks at intervals of no more than 3 months' duration, notice
(together with such details as the Agent may reasonably
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request) of any interconnection agreements or Licences entered
into by any of the Group since the date of this Agreement, or if
later, the date on the Borrower last provided notice pursuant to
this Clause 20.2(e).
(f) If the Agent notifies the Borrower that as a result of the
enforcement of the security created over the Borrower's business
and assets pursuant to the terms of this Agreement all or
substantially all of the business or assets of the Borrower are
to be transferred to another company, the Borrower will use all
reasonable endeavours to ensure that the Material Contracts and
any other rights necessary for the operation and maintenance of
the Network are transferred to such other company.
20.3 Operations
The Borrower will procure that it has at all times available to it
operating and maintenance personnel trained to operate and maintain the
Network properly and efficiently within all manufacturers' material
guidelines and specifications and to respond to emergency conditions.
20.4 Maintenance and Reinstatement
The Borrower will keep and use all reasonable endeavours to keep or
will procure that the Network and, without limitation, all assets
forming part of the Network are kept in good and efficient operating
condition and that material defects, imperfections and other faults are
promptly remedied and made good and that repairs, renewals,
replacements, additions and improvements thereto required to such end
are promptly made.
20.5 Power to Remedy
(a) In case of default by the Borrower in complying with Clause 20.4
(Maintenance and reinstatement), the Borrower will permit the
Agent or its agents and contractors to enter facilities relating
to the Network and to comply with or object to any notice served
on the Borrower in respect of the Network and to effect such
repairs or insurance or generally do such things or pay all
reasonable and properly incurred costs, charges and expenses as
are reasonably necessary to prevent or remedy any breach of that
Clause or to comply with or object to any notice.
(b) The Borrower will indemnify and keep the Agent indemnified
against all losses, costs, charges and expenses properly incurred
in connection with the exercise of the powers contained in this
Clause 20.5 unless the same arises as a result of any gross
negligence or wilful misconduct on the part of the Agent or its
officers, employees, directors, agents or contractors.
21. FINANCIAL UNDERTAKINGS
21.1 Senior Debt to EBITDA
The Borrower will procure that the amount of Senior Debt of the Group
will not at any time during the period from each date (the "DETERMINATION
DATE") which falls two Business Days after the date on which the Agent
receives the Accounts in respect of a quarterly Accounting Period
referred to in the table below up to but excluding the next Determination
Date exceed the amount of EBITDA of the Group for the Ratio Period ending
on the last day of each quarterly Accounting Period referred to in the
table below multiplied by the multiplier set opposite such quarterly
Accounting Period in the table below:
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ACCOUNTING PERIOD MULTIPLIER
Each quarterly Accounting Period ending on or after 4.0
the 31st December, 2000 but before 31st December,
2003
Each quarterly Accounting Period ending on or after 3.5
31st December, 2003 but before 31st December, 2004
Each quarterly Accounting Period ending on or after 3.0
31st December, 2004 and thereafter
21.2 EBITDA to Interest Expense on Senior Debt
The Borrower will procure that the ratio of EBITDA to Interest Expense
on Senior Debt, in each case of the Group on a consolidated basis, for
each Ratio Period ending:
(a) on or after 31st December, 2000 but before 31st December, 2002
will not be less than 2.5:1; and
(b) on or after 31st December, 2002 will not be less than 3.0:1.
21.3 EBITDA to Interest Expense on Total Debt
The Borrower will procure that the ratio of EBITDA to Interest Expense
on Total Debt, in each case of the Group on a consolidated basis, for
each Ratio Period ending:
(a) on or after 31st December, 2000 but before 31st December, 2001
will not be less than 1.50:1; and
(b) on or after 31st December, 2001 but before 31st December, 2002
will not be less than 1.75:1; and
(c) on or after 31st December, 2002 but before 31st December, 2003
will not be less than 2.00:1; and
(d) on or after 31st December, 2003 but on or before 31st December,
2004 will not be less than 2.25:1; and
(e) on or after 31st December, 2004 will not be less than 2.50:1.
21.4 Calculation
(a) All the terms used in this Clause 21 are to be calculated
substantially in accordance with the Accounting Principles and
where applicable on the basis of information supplied pursuant to
Clause 19.2 (Financial information and Business Plan).
(b) Any amount outstanding in a currency other than Zloty is to be
taken into account at its Zloty Equivalent calculated on the
basis of the National Bank of Poland's fixing rate applicable on
the day the relevant amount falls to be calculated.
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22. DEFAULT
22.1 Events of Default
Each of the events set out in Clause 22.2 (Non-payment) to 22.20
(Material adverse change) is an Event of Default (whether or not caused
by any reason outside the control of the Borrower or of any other
person).
22.2 Non-Payment
The Borrower does not pay on the due date any amount payable by it under
any Senior Finance Document at the place and in the funds expressed to be
payable, except for any such amount which is unpaid due to technical
delays in the transmission of funds which are beyond the control of the
Borrower and which is paid in full within three Business Days of the due
date for payment.
22.3 Breach of Obligations
(a) There is any breach of the provisions of Clauses 19.4
(Notification of Default), 19.8 (Negative Pledge), 19.9
(Transactions similar to security), 19.33 (UMTS Licence), 19.34
(UMTS Expenditure) or 21 (Financial undertakings).
(b) There is any breach of the provisions of Clauses 19.10
(Disposals), 19.11 (Pari passu ranking), 19.16 (Acquisitions and
investments), 19.17 (Restricted distributions), 19.20 (Share
capital), 19.24 (Change of business), 19.25 (Mergers), 19.26
(Financial Indebtedness) or 19.30 (The Pledge Law) and either (i)
such breach is unremedied for 14 days after the earlier of (A)
the Borrower becoming aware of such breach and (B) receipt by the
Borrower of written notice from the Agent requiring the failure
to be remedied, or (ii) the Majority Banks (acting reasonably)
notify the Borrower that in their opinion such breach cannot or
is not likely to be remedied within 14 days from the date of such
notice.
(c) Any Obligor or any Shareholder fails to comply with any other
provision of any Senior Finance Document and, if such default is
capable of remedy within such period, within 30 days after the
earlier of the Obligor or Shareholder becoming aware of such
default and receipt by the Obligor or Shareholders and (if
different) the Borrower of written notice from the Agent
requiring the failure to be remedied, that Obligor or
Shareholders fails to cure such default.
22.4 Misrepresentation/Breach of Warranty
Any representation, warranty or statement made or repeated by the
Borrower, any Obligor or any other party to a Senior Finance Document
(other than a Finance Party), in any Senior Finance Document or in any
certificate or statement delivered by or on behalf of any Obligor, other
member of the Group or other party to a Senior Finance Document (other
than a Finance Party), under any Senior Finance Document, is incorrect in
any respect which is material when made or deemed to be made or repeated
by reference to the facts and circumstances then subsisting.
22.5 Cross-default
(a) Any amount in respect of Financial Indebtedness of a member of
the Group is not paid when due; or
(b) an event of default howsoever described (or any event which with
the giving of notice, lapse of time or any combination of the
foregoing would constitute such an event of default) occurs under
any document relating to Financial Indebtedness of a member of
the Group; or
(c) any Financial Indebtedness of a member of the Group becomes
prematurely due and payable or is placed on demand as a result of
an event of default (howsoever described) under the document
relating to that Financial Indebtedness; or
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(d) any commitment for, or underwriting of, any Financial
Indebtedness of a member of the Group is cancelled or suspended
as a result of an event of default (howsoever described) under
the document relating to that Financial Indebtedness; or
(e) any Security Interest securing Financial Indebtedness over any
asset of a member of the Group becomes enforceable,
and the aggregate of all such Financial Indebtedness as described in
paragraphs (a) to (e) above of all members of the Group exceeds the Euro
Equivalent of (euro) 10,000,000.
22.6 Invalidity
(a) Any of the Senior Finance Documents ceases to be in full force
and effect or ceases to constitute the legal, valid and binding
obligation of any Obligor or other party to it (other than a
Finance Party) enforceable in accordance with its terms subject
to applicable insolvency and other laws affecting creditors'
rights generally.
(b) Any Security Document fails, after the first Utilisation (or in
the case of those Security Documents listed at subclauses (i),
(ii), (iii) and (iv) of paragraph 25 of Schedule E, after the
date such Security Documents are required to be delivered to the
Security Agent in accordance with the terms of the Senior Finance
Documents (including, without limitation, to the extent required
by the terms of the Senior Finance Documents, Registered Share
Pledges pledging at least 51% of the Shares in favour of the
Security Agent), to provide first priority security in favour of
the Security Agent and/or the Banks over the assets over which
security is intended to be given by that Security Document other
than where (i) such an event can be remedied, (ii) the Borrower
is diligently taking steps to remedy such event and (iii) such
event is remedied in a manner reasonably acceptable to the
Majority Banks within 30 days after notice from the Agent to the
Borrower requiring such event to be remedied.
(c) It shall be unlawful for any Obligor or any other party (other
than a Finance Party) to perform any of its obligations under any
of the Senior Finance Documents which if not performed would in
the reasonable opinion of the Majority Banks be materially
adverse to the Banks.
22.7 Insolvency
(a) A Principal Member of the Group is declared insolvent by a court
of competent jurisdiction, is unable to pay its debts as they
fall due or admits inability to pay its debts as they fall due;
or
(b) a Principal Member of the Group suspends making payments on all
or any class of its debts or announces an intention to do so, or
a moratorium is declared in respect of any of its indebtedness;
or
(c) a Principal Member of the Group, by reason of financial
difficulties, begins negotiations with one or more of its
creditors with a view to the readjustment or rescheduling of any
of its indebtedness.
22.8 Insolvency proceedings
(a) Any formal proposal by a Principal Member of the Group to its
creditors or a petition is made or resolution passed with a view
to a composition, general assignment of all assets of any
Principal Member of the Group or arrangement with any creditors
of any Principal Member of the Group unless the terms thereof
have been previously approved by the Majority Banks; or
(b) (i) a meeting of any Principal Member of the Group is convened
by at least 10% of its shareholders or its management board
or directors for the purpose of voting on any resolution
for (or to petition for) its winding-up or for its
administration and either (A) the Majority Banks (acting in
good faith) consider that such meeting is not being
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convened for frivolous or vexatious purposes or (B) the
Borrower is not able to demonstrate to the reasonable
satisfaction of the Majority Banks that such resolution or
petition is unlikely to be passed or made at such meeting;
or
(ii) any such resolution is passed; or
(c) any person presents a petition for the winding-up or for the
administration of any Principal Member of the Group as a result
of a claim for an amount exceeding the Euro Equivalent of (euro)
10,000,000 and either (i) the Majority Banks consider (acting
reasonably) that such petition is not frivolous or vexatious or
(ii) the same is not being contested in good faith; or
(d) an order for the winding-up or administration of any Principal
Member of the Group is made; or
(e) any other action is taken with a view to the administration,
custodianship, liquidation, winding-up or dissolution of any
Principal Member of the Group or any other insolvency proceedings
involving any Principal Member of the Group and either (i) the
Majority Banks (acting in good faith) consider such action is not
frivolous or vexatious or (ii) the same is not being contested in
good faith, other than in each case:
(i) in connection with a solvent winding-up of a Subsidiary of
the Borrower, other than the Issuers the terms of which have
been approved by the Majority Banks; or
(ii) in connection with a solvent winding-up of an Issuer where
arrangements have been made for the Borrower to assume the
obligations under the relevant High Yield Debt Documents on
similar terms (mutatis mutandis) as at the Signing Date or
on such other terms as are satisfactory to the Majority
Banks (acting reasonably).
22.9 Appointment of Receivers and Managers
(a) Any liquidator, official receiver, judicial custodian, compulsory
manager, receiver, administrative receiver, administrator or the
like is appointed in respect of any Principal Member of the Group
or any part of its assets; or
(b) a resolution of the board of directors of a Principal Member of
the Group is passed for the appointment of a liquidator, trustee
in bankruptcy, judicial custodian, compulsory manager, receiver,
administrative receiver, administrator or the like; or
(c) any other steps are taken to enforce any Security Interest or any
part of the assets of any Principal Member of the Group in
respect of a sum owed of at least the Euro Equivalent of (euro)
10,000,000, other than in each case:
(i) in connection with a solvent winding-up of a Subsidiary of
the Borrower other than the Issuers, the terms of which have
been approved by the Majority Banks; or
(ii) in connection with a solvent winding-up of an Issuer where
arrangements have been made for the Borrower to assume the
obligations under the relevant High Yield Debt Documents on
similar terms (mutatis mutandis) as at the Signing Date or
on such other terms as are satisfactory to the Majority
Banks (acting reasonably).
22.10 Creditors' Process
Any attachment, sequestration, distress or execution affects any asset
the value of which in aggregate exceeds the Euro Equivalent of
(euro) 10,000,000 of a Principal Member of the Group and is not
discharged within 30 days.
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22.11 Analogous Proceedings
There occurs, in relation to a member of the Group, any event anywhere
which, in the opinion of the Majority Banks, appears to correspond with
any of those mentioned in Clauses 22.7 (Insolvency) to 22.10 (Creditors'
process) (inclusive).
22.12 Cessation of Business
Any Principal Member of the Group (other than an Issuer where
arrangements have been made for the Borrower to assume the obligations
under the relevant High Yield Debt Documents on similar terms (mutatis
mutandis) as at the Signing Date or on such other terms as are
satisfactory to the Majority Banks (acting reasonably)) ceases or
threatens to cease to carry on all or a substantial part of its principal
business.
22.13 Rescission of Agreements
Any member of the Group or any Shareholder party to a Senior Finance
Document rescinds any Senior Finance Document in whole or in part.
22.14 Ownership of the Borrower
(a) There is a change of ownership of any of the Shares during the
Restricted Period without the consent of the Majority Banks if
after giving effect to such transfer:
(i) Deutsche Telekom A.G., Deutsche Telekom MobilNet GmbH and/or
T-Mobile International A.G. cease to own, either directly or
indirectly, and legally and beneficially, at least 25.01% of
the Shares; or
(ii) Elektrim S.A. and/or Elektrim Telekomunikacja Sp. z o.o.
cease to own, either directly or indirectly, and legally and
beneficially, at least 25.01% of the Shares.
(b) There is a change of ownership of any of the Shares after the
Restricted Period without the consent of the Majority Banks if
(i) after giving effect to such transfer, Deutsche Telekom A.G.,
Deutsche Telekom MobilNet GmbH, T-Mobile International A.G.
and/or another internationally recognised cellular operator of
comparable standing and comparable credit rating cease to own,
either directly or indirectly, and legally and beneficially, at
least 25.01% of the Shares or (ii) any person or two or more
persons acting in concert other than Deutsche Telekom A.G.,
Deutsche Telekom MobilNet GmbH, T-Mobile International A.G.,
MediaOne International B.V., Elektrim S.A. and/or Elektrim
Telekomunikacja Sp. z o.o., Vivendi S.A. or any wholly owned
Subsidiary of the foregoing shall own, either directly or
indirectly, and legally and beneficially, through any contract,
arrangement, understanding, relationship or otherwise, (x) voting
power which includes the power to vote, or to direct the voting
of, and/or (y) investment power which includes the power to
dispose of or to direct the disposition of Shares representing
25% or more of the combined voting power of all voting interests
of the Borrower.
(c) Any Shareholder creates, incurs, assumes or suffers to exist any
lien, security interest or other charge or encumbrance of any
kind, or any other type of preferential arrangement on the Shares
to secure any Financial Indebtedness (other than under the Senior
Finance Documents) of any member of the Group.
22.15 Proceedings
(a) There is current or pending any litigation, dispute, arbitration,
administrative, regulatory or other proceedings or enquiry
concerning or involving any Principal Member of the Group which,
if adversely determined, is reasonably likely to have a Material
Adverse Effect.
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(b) Any judgment or order for an amount which is greater than the
Euro Equivalent of (euro) 10,000,000 is made against any
Principal Member of the Group which is material in the context of
the operations of the business of the Principal Member of the
Group, is not subject to an appeal and which is not satisfied
within 20 days of the passing of such judgment or order.
22.16 High Yield Debt Documents
An Issuer or the Borrower fails to comply with any of the material
provisions of, or its material obligations under, the High Yield Debt
Documents.
22.17 Loss of Licences, Breach of Material Contracts, Shareholders' Agreement
(a) Any Licence is:
(i) terminated, suspended or revoked or does not remain in full
force and effect or otherwise expires and is not renewed
prior to its expiry (in each case, without replacement by
Licence(s) having substantially equivalent effect) except
where the Borrower is contesting the same in good faith by
appropriate proceedings and is lawfully able to continue its
business and operations; or
(ii) modified in a manner which is reasonably likely to have a
Material Adverse Effect or breached in any material respect;
or
(b) any event occurs which is reasonably likely to give rise to the
revocation, termination or suspension of any Licence (without
replacement) in such circumstance where the Borrower is unable to
demonstrate to the reasonable satisfaction of the Majority Banks
within 30 days of such event occurring that either (i) such
termination, suspension or revocation will not occur or (ii) if
it does occur, it will be contested in good faith by appropriate
proceedings and the Borrower will be lawfully able to continue
its operations while such termination, suspension or revocation
is being contested; or
(c) any other Material Contract, Shareholder Loan or Transaction
Document is varied, breached, cancelled, suspended, withdrawn,
revoked or terminated in a manner or circumstances which would
have a Material Adverse Effect; or
(d) any of the rights of the Shareholders under the Shareholders'
Agreement are reduced or diminished in a manner which could or
would be prejudicial to the Finance Parties or the Shareholders'
Agreement is cancelled, suspended or terminated (unless replaced
by an agreement in substantially the same terms) or materially
amended in a manner that would result in a Material Adverse
Effect; provided, however that, if so requested by the Borrower,
the Majority Banks shall confirm within 14 days after such
request whether such amendment would result in a Material Adverse
Effect.
22.18 Government Action
Any governmental action, including nationalisation, expropriation or
imposition of exchange controls is taken which, in the reasonable
opinion of the Majority Banks, would have a Material Adverse Effect.
22.19 [Intentionally Omitted]
22.20 Material Adverse Change
Any event or series of events occurs which is likely to have a Material
Adverse Effect.
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22.21 Acceleration
On and at any time after the occurrence of an Event of Default the
Agent may, and shall if so directed by the Majority Banks, by notice to
the Borrower do any or all of the following:
(a) cancel all or any part of the Tranche A Total Commitments and/or
the Tranche B Total Commitments; and/or
(b) demand that all or part of the Advances outstanding, together
with accrued interest and any or all other amounts accrued under
the Senior Finance Documents, be immediately due and payable,
whereupon they shall become immediately due and payable; and/or
(c) demand that all or part of the Advances are repayable on demand,
whereupon they shall immediately become repayable on demand by
the Agent acting on the instructions of the Majority Banks;
and/or
(d) enforce or instruct the Security Agent to enforce all or part of
the security constituted under or pursuant to the Security
Documents or enforce any other right held by it.
23. GUARANTEES
23.1 Guarantee
In consideration of the Finance Parties entering into the Senior
Finance Documents each Guarantor (jointly and severally with the other
Guarantors) irrevocably and unconditionally:
(a) guarantees to each Finance Party as principal obligor the
performance by each other Obligor of all its obligations under
the Senior Finance Documents and the payment when due by each
other Obligor of all sums payable under the Senior Finance
Documents;
(b) undertakes with each Finance Party that if any other Obligor
fails to pay any of the indebtedness referred to in Clause
23.1(a) (Guarantee) on its due date it will pay that sum on
demand; and
(c) indemnifies each Finance Party on demand against all losses,
damages, costs and expenses incurred by such Finance Party
arising as a result of any obligation of any Obligor under the
Senior Finance Documents being or becoming unenforceable, invalid
or illegal.
23.2 Guarantors as Principal Debtors
As between each Guarantor and the Finance Parties but without affecting
the obligations of the Borrower, each Guarantor shall be liable under
Clause 23.1 (Guarantee) as if it were the sole principal debtor and not
merely a surety. Accordingly, its obligations thereunder and any
liability deriving therefrom shall not be discharged or affected by any
circumstance which would so discharge or affect such obligations or
liability of such Guarantor were the sole principal debtor including:-
(a) any time, indulgence, waivers or consents given to any Obligor or
any other person;
(b) any amendment, variation or modification to any Senior Finance
Document or any other security or guarantee or any increase in
the amount of the Facilities;
(c) the making or absence of any demand on any Obligor or any other
person for payment or performance of any other obligations, or
the application of any moneys at any time received from any
Obligor or any other person;
(d) the enforcement, perfecting or protecting of or absence of
enforcement, perfecting or protecting of any security, guarantee
or undertaking (including, without limitation, all or any of the
obligations and liabilities of any Obligor);
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(e) the release, taking, giving or abstaining from taking of any
security, guarantee or undertaking (including, without
limitation, the Senior Finance Documents);
(f) the insolvency, winding-up, administration, receivership or the
commencement of any other insolvency procedure under the laws of
any relevant jurisdiction in relation to any Obligor, any Finance
Party or any other person or the making of any arrangement or
composition with or for the benefit of creditors by any other
Obligor, any Finance Party or any other person;
(g) any amalgamation, merger or change in constitution in relation to
any Obligor, any Finance Party or any other person;
(h) the illegality, invalidity or unenforceability of or any defect
in any provision of any Finance Document or any security,
obligations or liabilities arising or expressed to arise
thereunder;
(i) any Finance Party ceasing or refraining from giving credit or
making loans or advances to or otherwise dealing with any Obligor
or any other person or any other security, guarantee or
undertaking; or
(j) any other circumstance which, but for this provision, might
operate to release or otherwise exonerate the Guarantor from its
obligations hereunder.
23.3 Other Guarantors
It is specifically acknowledged and agreed that the Finance Parties may
from time to time make any arrangement, compromise, waiver or other
dealing with any Obligor in relation to any guarantee or other
obligations under the Senior Finance Documents which such Finance Parties
may think fit and no such arrangement, compromise, waiver or other
dealing shall exonerate or discharge any other Obligor from its
obligations under the Senior Finance Documents.
23.4 Guarantors' Obligations Continuing
Each Obligor's obligations under this Agreement are and will remain in
full force and effect by way of continuing security until no sum remains
to be lent or remains payable under this Agreement. Furthermore, those
obligations are additional to, and not instead of, any security or other
guarantee or indemnity at any time existing in favour of any person,
whether from that Obligor or otherwise and each Obligor waives any right
it may have to require any Finance Party to enforce any such security,
guarantee or indemnity before claiming against it.
23.5 Exercise of Guarantors' Rights
So long as any sum remains payable or capable of becoming payable under
the Senior Finance Documents:
(a) any right of an Obligor (by reason of performance of any of its
obligations hereunder), to be indemnified by any other Obligor or
to take the benefit of or enforce any security or other guarantee
or to receive any payment from any other Obligor shall be
exercised and enforced by such Obligor and shall only be
exercised and enforced by such Obligor in such manner and on such
terms as the Agent may require; and
(b) any amount received or recovered by such Obligor as a result of
any exercise of any such right shall be held in trust for the
Finance Parties and immediately paid to the Agent.
23.6 Avoidance of Payments
Each Obligor shall on demand indemnify the Agent and each Finance Party
against any funding or other cost, loss, expense or liability sustained
or incurred by it as a result of it being required for any reason to
refund all or part of any amount received or recovered by it from such
Obligor in respect of any sum payable by any Obligor under any Senior
Finance Document.
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23.7 Suspense Accounts
Any amount received or recovered by any Finance Party (otherwise than as
a result of a payment by a Borrower to the Agent) in respect of any sum
due and payable by any Borrower under this Agreement may be placed in a
suspense account and kept there for so long as the recipient thinks fit.
Amounts deposited in any such account shall accrue interest at the
Agent's usual rate for deposits of a similar amount and nature from time
to time and interest accrued shall be credited to such account.
23.8 Primary Obligations
As a separate and alternative stipulation, each Obligor unconditionally
and irrevocably agrees that any sum expressed to be payable by any
Obligor under this Agreement but which is for any reason (whether or not
now existing and whether or not now known or becoming known to any party
to this Agreement) not recoverable from such Obligor on the basis of a
guarantee shall nevertheless be recoverable from it as if it were the
sole principal debtor and shall be paid by it to the Agent on demand.
23.9 Further Guarantors
The Borrower will:
(a) procure that any person that becomes Principal Member of the
Group (other than the Borrower) which is not a Guarantor shall
(unless prohibited by law) become a Guarantor by delivering an
Accession Document duly executed by it and by the Borrower to the
Agent within 10 Business Days after such person becomes a
Principal Member of the Group pursuant to the terms of this
Agreement;
(b) procure that any Principal Member of the Group (other than the
Borrower) which enters into an Accession Document shall within 10
Business Days thereafter execute such Security Documents (in
favour of the Security Agent for the benefit of the Finance
Parties) as the Agent shall reasonably require; and
(c) procure that there shall be delivered to the Agent with the
original executed Accession Document and any such Security
Documents such evidence of the due execution of the Accession
Document and such Security Documents as the Agent shall require
together with a legal opinion reasonably satisfactory to the
Agent.
24. INDEMNITIES
24.1 Currency Indemnity
(a) If a Finance Party receives an amount in respect of an Obligor's
liabilities under the Senior Finance Documents or if that
liability is converted into a claim, proof, judgment or order in
a currency other than the currency (the "CONTRACTUAL CURRENCY")
in which the amount is expressed to be payable under the relevant
Senior Finance Document:
(i) such Obligor shall indemnify that Finance Party as an
independent obligation against any loss or liability arising
out of or as a result of the conversion;
(ii) if the amount received by that Finance Party, when converted
into the contractual currency at a market rate in the usual
course of its business is less than the amount owed in the
contractual currency, such Obligor shall forthwith on demand
pay to that Finance Party an amount in the contractual
currency equal to the deficit; and
(iii) such Obligor shall forthwith on demand pay to the Finance
Party concerned any exchange costs and Taxes payable in
connection with any such conversion.
(b) Each Obligor waives any right it may have in any jurisdiction to
pay any amount under the Senior Finance Documents in a currency
other than that in which it is expressed to be payable.
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24.2 Other Indemnities
The Borrower shall forthwith on demand indemnify each Finance Party
against any loss or liability which that Finance Party incurs as a
consequence of:
(a) the occurrence of any Default including a breach by a Shareholder
which is not an Obligor of a Senior Finance Document to which
such Shareholder is a party;
(b) the operation of Clause 22.21 (Acceleration);
(c) any payment of principal or an overdue amount being received from
any source otherwise than on the last day of a relevant Interest
Period or Designated Interest Period (as defined in Clause 10.3
(Default interest)) relative to the amount so received;
(d) an Advance (or part of an Advance) not being prepaid in
accordance with a notice of prepayment or (other than by reason
of negligence or default by that Finance Party) an Advance not
being made after the Borrower has delivered a Request;
(e) any act or omission by the Borrower which invalidates the
Insurances (as defined in the Asset Pledge);
(f) the design, manufacture, testing, maintenance, repair,
refurbishment, condition, service, overhaul, modification,
change, loss, damage, removal or storage of any of the Movables
(as defined in the Asset Pledge) or any part thereof;
(g) the transfer, ownership, delivery, non-delivery, import, export,
possession, use, operation, registration, non-registration,
leasing or sub-leasing of any of the Movables (as defined in the
Asset Pledge) or any part thereof;
(h) the retaking of possession of any of the Movables (as defined in
the Asset Pledge) or any part thereof and entering upon any
premises for this purpose (including the exercise of the Security
Agent's powers set forth in Clause 6.4 of the Asset Pledge); or
(i) the exercise or purported exercise of any rights, powers or
discretions vested in the Security Agent pursuant to the Asset
Pledge, any Ordinary Share Pledge and/or any Registered Share
Pledge.
The Borrower's liability in each case includes any loss or expense on
account of funds borrowed, contracted for or utilised to fund any amount
payable under any Senior Finance Document, any amount repaid or prepaid
or any Advance.
25. AGENT, SECURITY AGENT, LEAD ARRANGERS, ARRANGERS AND BANKS
25.1 Appointment and duties of the Agent and the Security Agent
(a) Subject to Clause 25.15(f) (Resignation of Agent and Security
Agent), each Finance Party (other than the Agent and the Security
Agent, respectively) irrevocably appoints the Agent to act as its
agent and the Security Agent to act as its security agent under
and in connection with the Senior Finance Documents.
(b) Each Party irrevocably authorises the Agent and the Security
Agent on its behalf to perform the duties and to exercise the
rights, powers and discretions that are specifically delegated to
it under or in connection with the Senior Finance Documents,
together with any other incidental rights, powers and
discretions.
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(c) The Agent and the Security Agent have only those duties which are
expressly specified in this Agreement and in the Security
Documents and Collateral Sharing Intercreditor Agreement,
respectively. Those duties are solely of a mechanical and
administrative nature.
25.2 Role of the Lead Arrangers and Arrangers
Except as specifically provided in this Agreement, neither the Lead
Arrangers nor the Arrangers have any obligations of any kind to any other
Party under or in connection with any Senior Finance Document.
25.3 Relationship
The relationship between the Agent and the Security Agent, on the one
hand, and the other Finance Parties, on the other hand, is that of agent
and principal only. Nothing in this Agreement constitutes the Agent or
the Security Agent as fiduciary for any other Party or any other person
and neither the Agent nor the Security Agent need keep any moneys paid to
it for a Party segregated from its assets or be liable to account for
interest on those moneys.
25.4 Majority Banks' Instructions
(a) Each of the Agent and, subject to the terms of the Collateral
Sharing Intercreditor Agreement, the Security Agent will be fully
protected if it acts in accordance with the instructions of the
Majority Banks in connection with the exercise of any right,
power or discretion or any matter not expressly provided for in
the Senior Finance Documents. Any such instructions given by the
Majority Banks will be binding on all the Banks. In the absence
of such instructions, each of the Agent and the Security Agent
may act as it considers to be in the best interests of the Banks.
(b) Neither the Agent nor the Security Agent is authorised to act on
behalf of a Bank (without first obtaining that Bank's consent) in
any legal or arbitration proceedings relating to any Senior
Finance Document.
25.5 Delegation
The Agent and the Security Agent may act under the Senior Finance
Documents through their respective personnel and agents.
25.6 Responsibility for Documentation
None of the Agent, the Security Agent, the Lead Arrangers or the
Arrangers are responsible to any other Party for:
(a) the execution, genuineness, validity, enforceability or
sufficiency of any Senior Finance Document or any other document;
(b) the collectability of amounts payable under any Senior Finance
Document; or
(c) the accuracy of any statements (whether written or oral) made in
or in connection with any Senior Finance Document.
25.7 Default
(a) Neither the Agent nor the Security Agent is obliged to monitor or
enquire as to whether or not a Default has occurred. Neither the
Agent nor the Security Agent will be deemed to have knowledge of
the occurrence of a Default. However, if the Agent or the
Security Agent receives notice from a Party referring to this
Agreement, describing the Default and stating that the event is a
Default, it shall promptly notify the Banks.
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(b) Each of the Agent or the Security Agent may require the receipt
of security satisfactory to it, whether by way of payment in
advance or otherwise, against any liability or loss which it will
or may incur in taking any proceedings or action arising out of
or in connection with any Senior Finance Document before it
commences those proceedings or takes that action.
25.8 Exoneration
(a) Without limiting paragraph (b) below, neither the Agent nor the
Security Agent will be liable to any other Party for any action
taken or not taken by it under or in connection with any Senior
Finance Document, unless caused by its gross negligence or wilful
misconduct.
(b) No Party may take any proceedings against any officer, employee
or agent of the Agent or the Security Agent in respect of any
claim it might have against the Agent or the Security Agent or in
respect of any act or omission of any kind (including gross
negligence or wilful misconduct) by that officer, employee or
agent in relation to any Senior Finance Document.
25.9 Reliance
Each of the Agent and the Security Agent may:
(a) rely on any notice or document believed by it to be genuine and
correct and to have been signed by, or with the authority of, the
proper person;
(b) rely on any statement made by a director or employee of any
person regarding any matters which may reasonably be assumed to
be within his knowledge or within his power to verify; and
(c) engage, pay for and rely on legal or other professional advisers
selected by it (including those in its employment and those
representing a Party other than itself).
25.10 Credit Approval and Appraisal
Without affecting the responsibility of the Borrower for information
supplied by it or on its behalf in connection with any Senior Finance
Document, each Bank confirms that it:
(a) has made its own independent investigation and assessment of the
financial condition and affairs of the Borrower and its related
entities in connection with its participation in this Agreement
and has not relied exclusively on any information provided to it
by the Agent, the Security Agent, any of the Lead Arrangers or
any of the Arrangers in connection with any Senior Finance
Document; and
(b) will continue to make its own independent appraisal of the
creditworthiness of the Borrower and its related entities while
any amount is or may be outstanding under the Senior Finance
Documents or any Commitment is in force.
25.11 Information
(a) The Agent shall promptly forward to the person concerned or make
available for his inspection the original or a copy of any
document which is delivered to the Agent by a Party for that
person.
(b) The Agent shall promptly supply a Bank with a copy of each
document received by the Agent under Clause 4.1 (Conditions
precedent to first Utilisation), upon the request and at the
expense of that Bank.
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(c) Except where this Agreement specifically provides otherwise, the
Agent is not obliged to review or check the accuracy or
completeness of any document it forwards to or makes available
for inspection by another Party.
(d) Except as provided above, neither the Agent nor the Security
Agent has a duty:
(i) either initially or on a continuing basis to provide any
Bank with any credit or other information concerning the
financial condition or affairs of the Borrower or of its
related entities, whether coming into its possession before,
on or after the date of this Agreement; or
(ii) unless specifically requested to do so by a Bank in
accordance with a Senior Finance Document, to request any
certificates or other documents from the Borrower.
25.12 The Agent, the Security Agent, the Lead Arrangers and the Arrangers
individually
(a) If it is also a Bank, each of the Agent, the Security Agent, the
Lead Arrangers and the Arrangers has the same rights and powers
under this Agreement as any other Bank and may exercise those
rights and powers as though it were not the Agent, the Security
Agent, the Lead Arrangers or the Arrangers as the case may be.
(b) Each of the Agent, the Security Agent, the Lead Arrangers and the
Arrangers may:
(i) carry on any business with the Borrower or its related
entities;
(ii) act as agent for, or in relation to any financing involving,
the Borrower or its related entities; and
(iii) retain any profits or remuneration in connection with its
activities under this Agreement or in relation to any of the
foregoing.
(c) In acting as the Agent or the Security Agent, as the case may be,
the agency division of the Agent or the Security Agent, as the
case may be, will be treated as a separate entity from its other
divisions and departments. Any information acquired by the Agent
or the Security Agent, as the case may be, which, in its opinion,
is acquired by it otherwise than in its capacity as the Agent or
the Security Agent may be treated as confidential by the Agent or
the Security Agent and will not be deemed to be information
possessed by the Agent or the Security Agent in its capacity as
such.
(d) The Borrower irrevocably authorises each of the Agent and the
Security Agent to disclose to the other Finance Parties any
information which, in the opinion of the Agent or the Security
Agent, as the case may be, is received by it in its capacity as
Agent or the Security Agent.
25.13 Indemnities
(a) Without limiting the liability of the Borrower under the Senior
Finance Documents, each Bank shall forthwith on demand indemnify
the Agent and the Security Agent for that Bank's proportion of
any liability or loss incurred by the Agent or the Security
Agent, as the case may be, in any way relating to or arising out
of its acting as Agent or Security Agent, as the case may be,
except to the extent that the liability or loss arises from the
gross negligence or wilful misconduct of the Agent or Security
Agent, as the case may be.
(b) A Bank's proportion of the liability set out in paragraph (a)
above at any time will be the proportion which its participation
in the Euro Equivalent of Utilisations bears to all such
Utilisations outstanding on the date of the demand. However, if
there are no Utilisations outstanding on the date of demand or
the Default Date has occurred, then the proportion will be the
proportion which its Commitment bears to the Total Commitments
or, if the Total
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Commitments have then been cancelled, bore to the Total
Commitments immediately before being cancelled.
25.14 Compliance
(a) Each of the Agent and the Security Agent may refrain from doing
anything which might, in its opinion, constitute a breach of any
law or regulation or be otherwise actionable at the suit of any
person, and may do anything which, in its opinion, is necessary
or desirable to comply with any law or regulation of any
jurisdiction.
(b) Without limiting paragraph (a) above, neither the Agent nor the
Security Agent need disclose any information relating to the
Borrower or any of its related entities if the disclosure might,
in the reasonable opinion of the Agent or the Security Agent,
constitute a breach of any law or regulation or any duty of
secrecy or confidentiality or be otherwise actionable at the suit
of any person.
25.15 Resignation of the Agent and the Security Agent
(a) Notwithstanding its irrevocable appointment, the Agent or the
Security Agent may resign by giving notice to the Banks and the
Borrower, in which case the Agent or the Security Agent, as the
case may be, may, with the prior written consent of the Borrower
(such consent not to be unreasonably withheld), and subject, in
the case of the Security Agent, to Clause 25.17 (Security Agent
as Administrator) and the Collateral Sharing Intercreditor
Agreement, forthwith appoint one of its Affiliates as successor
Agent or Security Agent or, failing that, the Majority Banks,
subject, in the case of the Security Agent, to Clause 25.17
(Security Agent as Administrator) and the Collateral Sharing
Intercreditor Agreement, may appoint a successor Agent or
Security Agent with the prior written consent of the Borrower
(such consent not to be unreasonably withheld or delayed).
(b) If the appointment of a successor Agent or Security Agent is to
be made by the Majority Banks but they have not, within 30 days
after notice of resignation, appointed a successor Agent or
Security Agent which accepts the appointment, the Agent or
Security Agent may, subject, in the case of the Security Agent,
to Clause 25.17 (Security Agent as Administrator) and the
Collateral Sharing Intercreditor Agreement, appoint a successor
Agent or Security Agent.
(c) The resignation of an Agent or Security Agent and the appointment
of any successor Agent or Security Agent will both become
effective only upon the successor Agent or Security Agent
notifying all the Parties that it accepts its appointment. On
giving the notification, the successor Agent or Security Agent
will succeed to the position of the Agent or Security Agent in
respect of the relevant Facility and the term "AGENT" or
"SECURITY AGENT" will mean the successor Agent or Security Agent,
as the case may be. (d) The retiring Agent or Security Agent
shall make available to the successor Agent or Security Agent
such documents and records and provide such assistance as the
successor Agent or Security Agent may reasonably request for the
purposes of performing its functions as the Agent or Security
Agent under the Senior Finance Documents.
(e) Upon its resignation becoming effective, this Clause 25 shall
continue to benefit the retiring Agent or Security Agent in
respect of any action taken or not taken by it under or in
connection with the Senior Finance Documents while it was the
Agent or Security Agent, and, subject to paragraph (d) above, it
shall have no further obligations under any Senior Finance
Document.
(f) The Majority Banks may, by notice to the Agent or Security Agent,
subject, in the case of the Security Agent, to Clause 25.17
(Security Agent as Administrator) and the Collateral Sharing
Intercreditor Agreement, require it to resign in accordance with
paragraph (a) above. In this
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event, the Agent or the Security Agent shall resign in
accordance with paragraph (a) above but it shall not be
entitled to appoint one of its Affiliates as successor Agent
or Security Agent.
25.16 Banks
(a) The Agent may treat each Bank as a Bank, entitled to payments
under this Agreement and as acting through its Facility Office(s)
unless it has received not less than five Business Days' prior
notice from that Bank to the contrary.
(b) The Agent may at any time, and shall if requested to do so by the
Majority Banks, convene a meeting of the Banks.
25.17 Security Agent as Administrator
(a) Each Finance Party irrevocably authorises the Security Agent to
act as administrator of a registered pledge to secure all debts
of the Obligors hereunder by way of a registered pledge or other
Security Interests established over the Borrower's assets and the
Shareholders' assets and enter into such intercreditor
arrangements as contemplated by the Security Documents in the
Security Agent's name but for the account of the Finance Parties.
(b) The Security Agent in its capacity as administrator or otherwise
under the Security Documents:
(i) is not liable for any failure, omission or defect in
perfecting or registering the security constituted or
created by any Security Document in the absence of wilful
misconduct or gross negligence on the part of the Security
Agent; and
(ii) may accept without enquiry such title as any Obligor may
have to any asset secured by any Security Document.
(c) Each Finance Party hereby irrevocably appoints the Security Agent
as its attorney to enter into the Security Documents and the
Collateral Sharing Intercreditor Agreement on its behalf.
(d) Notwithstanding anything to the contrary contained in any Senior
Finance Document, with respect to any Security located in
Luxembourg or subject to a Security Document governed by
Luxembourg law, the Security Agent shall be the Group Security
Agent (as defined in the Collateral Sharing Intercreditor
Agreement).
26. FEES
26.1 Commitment Fee
(a) The Borrower will pay to the Agent in Euro for distribution among
the Tranche A Banks pro rata to the aggregate of their respective
Tranche A Commitments a commitment fee in respect of Tranche A
computed at a rate per annum equal to 50% of the Applicable
Margin in effect from time to time on the daily undrawn balance
of the Tranche A Commitments.
(b) The Borrower will pay to the Agent in Zloty for distribution
among the Tranche B Banks pro rata to the aggregate of their
respective Tranche B Commitments a commitment fee in respect of
Tranche B computed at a rate per annum equal to 50% of the
Applicable Margin in effect from time to time on the daily
undrawn balance of the Tranche B Commitments.
(c) Commitment fees from the Signing Date shall be calculated in
accordance with paragraphs (a) and (b) above and shall be payable
quarterly in arrears.
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26.2 Front-end Fee
The Borrower shall pay to the Agent for the account of the Lead
Arrangers a front-end fee in the amount and on the dates agreed in the
relevant Fee Letter.
26.3 Agency Fees
The Borrower shall pay to the Agent and the Security Agent for their
own account agency fees in the amounts and on the dates agreed in the
relevant Fee Letter.
26.4 VAT and Other Taxes
Any fee referred to in this Clause 26 is exclusive of any value added
tax or any other Tax which might be chargeable in connection with that
fee. If any value added tax or other Tax is so chargeable, it shall be
paid by the Borrower at the same time as it pays the relevant fee or if
no VAT invoice has then been received, then within 7 Business Days of
receiving a relevant VAT invoice.
27. EXPENSES
27.1 Initial and Special Costs
The Borrower shall forthwith on demand pay the Agent, the Security
Agent and each Lead Arranger the amount of all reasonable costs and
expenses (including legal fees) incurred by any of them in connection
with:
(a) the negotiation, preparation, printing and execution of:
(i) this Agreement and any other documents referred to in this
Agreement; and
(ii) any other Senior Finance Document executed after the date of
this Agreement; and
(iii) the syndication of each Tranche;
(b) any amendment, waiver, consent or suspension of rights (or any
proposal for any of the foregoing) requested by or on behalf of
the Borrower and relating to a Senior Finance Document or a
document referred to in any Senior Finance Document.
27.2 Enforcement Costs
The Borrower shall forthwith on demand pay to each Finance Party the
amount of all costs and expenses (including legal fees and costs of
valuations) incurred by it in connection with the enforcement of, or
the preservation of any rights under, any Senior Finance Document.
28. STAMP DUTIES
The Borrower shall pay, and forthwith on demand indemnify each Finance
Party against any liability it incurs in respect of, any stamp,
registration and similar Tax which is or becomes payable in connection
with the entry into, performance or enforcement of any Senior Finance
Document.
29. AMENDMENTS AND WAIVERS
29.1 Procedure
(a) Subject to Clause 29.2 (Exceptions), any term of the Senior
Finance Documents may be amended or waived or any action
consented to with the agreement of the Borrower and the
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Majority Banks. The Agent may effect, on behalf of the Finance
Parties, an amendment, consent or waiver to which they or the
Majority Banks have agreed.
(b) The Agent shall promptly notify the other Parties of any
amendment or waiver effected under paragraph (a) above, and any
such amendment or waiver shall be binding on all the Parties.
29.2 Exceptions
(a) Any amendment, waiver, variation, modification or consent of, or
action with respect to, any term of the Senior Finance Documents
shall require the consent of the Borrower and each of the Banks
if it relates to:
(i) the definition of "MAJORITY BANKS" in Clause 1.1 (Defined
terms);
(ii) an extension of the date for, or a decrease in an amount or
a change in the currency of, any payment to any Bank under
the Senior Finance Documents (including the Applicable
Margin (other than in accordance with the terms of this
Agreement), any fee payable under Clause 26.1 (Commitment
fee) and any amount payable pursuant to Clause 7
(Repayment));
(iii) an increase in any Bank's Commitment;
(iv) any release of a Security Document or a Guarantor;
(v) a term of a Senior Finance Document which expressly requires
the consent of that Bank;
(vi) Clause 2.2 (Nature of Bank's rights and obligations), Clause
30.2 (Transfers by Banks), Clause 30.1 (Transfer by an
Obligor), Clause 31 (Set-off and redistribution), Clause
38.1 (Arbitration) or this Clause 29; or
(vii) the definition of "UMTS APPROVAL BANKS" in Clause 1.1
(Defined Terms).
(b) An amendment or waiver that affects the rights and/or obligations
of the Agent or the Security Agent may not be effected without
the agreement of the Agent or the Security Agent, as applicable.
29.3 Waivers and remedies cumulative
The rights of each Finance Party under the Senior Finance Documents:
(a) may be exercised as often as necessary;
(b) are cumulative and not exclusive of its rights under the general
law; and
(c) may be waived only in writing and specifically.
Delay in exercising or non-exercise of any such right is not a waiver
of that right.
29.4 Remedies cumulative
The rights and remedies of each of the Finance Parties in this
Agreement may be exercised as often as necessary and are cumulative and
not exclusive of any rights or remedies provided by law.
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30. CHANGES TO PARTIES
30.1 Transfers by an Obligor
No Obligor may assign, transfer, novate or dispose of any of, or any
interest in, its rights and/or obligations under the Senior Finance
Documents.
30.2 Transfers by Banks
(a) A Bank (the "EXISTING BANK") may at any time assign or transfer
any of its rights and/or obligations under this Agreement and the
Collateral Sharing Intercreditor Agreement to another bank or
financial institution (the "NEW BANK") with, in the case of any
bank or financial institution other than a Bank or an Affiliate
of such Existing Bank, the prior written consent of the Borrower,
such consent not to be unreasonably withheld or delayed; provided
that:
(i) such assignment and/or transfer shall be in the amount of
(euro) 5,000,000 and an integral multiple of (euro)
1,000,000, in the case of an assignment and/or transfer
under Tranche A and in the amount of the Zloty Equivalent of
(euro) 3,000,000 and an integral multiple of (euro) 500,000,
in the case of an assignment and/or transfer under Tranche
B, except in the case of an assignment or transfer which has
the effect of reducing the participation of the relevant
Bank to zero; and
(ii) if the Borrower fails to respond to a request for such
consent within 10 Business Days after such request, the
Borrower shall be deemed to have given its consent under
this Clause 30.2(a).
(b) A transfer and/or assignment of obligations will be effective
only if the New Bank confirms to the Agent and the Borrower that
it undertakes to be bound by the terms of this Agreement and the
Collateral Sharing Intercreditor Agreement as a Bank in form and
substance satisfactory to the Agent or executes a Transfer
Certificate and serves the attached notice on the Borrower and
the Agent. On the transfer and/or assignment becoming effective
in this manner the Existing Bank shall be relieved of its
obligations under this Agreement and the Collateral Sharing
Intercreditor Agreement to the extent that they are transferred
and/or assigned to the New Bank.
(c) Nothing in this Agreement restricts the ability of a Bank to
sub-contract an obligation if that Bank remains liable under this
Agreement and the Collateral Sharing Intercreditor Agreement for
that obligation.
(d) On each occasion an Existing Bank assigns and/or transfers any of
its Tranche A Commitment and/or its Tranche B Commitment and/or
rights and/or obligations under this Agreement and the Collateral
Sharing Intercreditor Agreement to any bank or financial
institution other than an Affiliate of such Existing Bank, the
New Bank shall, on the date the assignment or transfer takes
effect, pay to the Agent for its own account a fee of (euro)
1,500, in the case of a transfer and/or assignment under Tranche
B and (euro) 5,000 in the case of a transfer and/or assignment
under Tranche A.
(e) An Existing Bank is not responsible to a New Bank for:
(i) the execution, genuineness, validity, enforceability or
sufficiency of any Senior Finance Document or any other
document;
(ii) the collectability of amounts payable under any Senior
Finance Document; or
(iii) the accuracy of any statements (whether written or oral)
made in or in connection with any Senior Finance Document.
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(f) Each New Bank confirms to the Existing Bank and the other Finance
Parties that it:
(i) has made its own independent investigation and assessment of
the financial condition and affairs of the Obligors and
their related entities in connection with its participation
in this Agreement and has not relied exclusively on any
information provided to it by the Existing Bank in
connection with any Senior Finance Document; and
(ii) will continue to make its own independent appraisal of the
creditworthiness of the Obligors and their related entities
while any amount is or may be outstanding under this
Agreement or any Commitment is in force.
(g) Nothing in any Senior Finance Document obliges an Existing Bank
to:
(i) accept a re-transfer from a New Bank of any of the
Commitment and/or rights and/or obligations assigned,
transferred or novated under this Clause; or
(ii) support any losses incurred by the New Bank by reason of the
non-performance by the Borrower of its obligations under the
Senior Finance Documents or otherwise.
(h) Any reference in this Agreement to a Bank includes a New Bank but
excludes a Bank if no amount is or may be owed to or by it under
this Agreement and its Commitment has been cancelled or reduced
to nil.
(i) If at any time any Bank assigns or transfers any of its rights,
benefits and obligations hereunder or transfers its Facility
Office and at the time of such assignment or transfer there
arises an obligation on the part of the Borrower under Clause 14
(Taxes) or Clause 16 (Increased costs)(other than a payment in
respect of the Bank Guarantee Fund) to pay to such Bank or its
assignee or transferee any amount in excess of the amount the
Borrower would have then been obliged to pay but for such
assignment or transfer, then the Borrower shall not be obliged to
pay the amount of such excess.
30.3 Procedure for Transfers
A transfer and/or assignment may be effected if the Existing Bank and
the New Bank deliver to the Agent a duly completed certificate,
substantially in the form of Schedule C (a "TRANSFER CERTIFICATE").
30.4 Reference Banks
If a Reference Bank (or, if a Reference Bank is not a Bank, the Bank of
which it is an Affiliate) ceases to be a Bank, the Agent shall (in
consultation with the Borrower) appoint another Bank or an Affiliate of
a Bank to replace that Reference Bank.
30.5 Register
The Agent shall keep a register of all the Parties and shall supply any
other Party (at that Party's expense) with a copy of the register on
request.
31. SET-OFF AND REDISTRIBUTION
31.1 Set-off
Each Finance Party may (but shall not be obliged to) set off against any
obligation of any Obligor due and payable by it to or for the account of
such Finance Party under this Agreement and not paid on the due date or
within any applicable grace period any moneys held by such Finance Party
for the account of such Obligor at any office of such Finance Party
anywhere and in any currency, whether or not matured. Such Finance Party
may effect such currency exchanges as are appropriate to implement the
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set-off and any usual charges in relation to such currency exchanges
shall be paid by such Obligor. Any Finance Party which has set off shall
give prompt notice of that fact to the relevant Obligor.
31.2 Application of Payments
(a) If the Agent receives a payment insufficient to discharge all the
amounts then due and payable by the Borrower under the Senior
Finance Documents, the Agent shall, subject, however, to the
terms of the Collateral Sharing Intercreditor Agreement, apply
that payment towards the obligations of the Borrower under the
Senior Finance Documents in the following order (after converting
the payment into the currency necessary to make payment of the
relevant amounts due in the currencies in which they are due at
the Agent's Spot Rate of Exchange):
(i) FIRST, to the reimbursement of the Security Agent for all of
the amounts advanced by it to preserve, maintain and protect
the Security in the event of a Default under the Senior
Finance Documents;
(ii) SECOND, to the reimbursement of the Security Agent for all
amounts expended by it in obtaining and disposing of the
Security (including, without limitation, reasonable legal
fees, trustees' fees and other expenses of collection and
enforcement of remedies);
(iii) THIRD, in or towards payment of any unpaid fees, costs and
expenses of the Agent under the Senior Finance Documents
(including, without limitation, amounts advanced by the
Agent on behalf of any other Finance Party under the Senior
Finance Documents) pro rata between the amounts of such
unpaid fees, costs and expenses;
(iv) FOURTH, in or towards payment pro rata to the relevant
proportions of any accrued interest and fees due to each
Bank but unpaid under the Senior Finance Documents ;
(v) FIFTH, in or towards payment pro rata to the relevant
proportions of any principal due to each Bank but unpaid
under the Senior Finance Documents (including any amounts
due pursuant to a Hedging Document designated as such
pursuant to Clause 19.14(c) (Treasury Transactions)); and
(vi) SIXTH, in or towards payment pro rata to the relevant
proportions of any other sum due but unpaid under the Senior
Finance Documents.
(b) For the purposes of paragraph (a) above, "THE RELEVANT
PROPORTIONS" means the proportion which the Euro Equivalent of
the amount of each Bank's actual participations in the amounts
that have fallen due in the same class as set out in paragraph
(a) above bears to the Euro Equivalent of the aggregate amount of
all such amounts that have fallen due at that time.
(c) The Agent shall, if so directed by all the Banks, vary the order
set out in sub-paragraphs (a)(ii) to (iv) above and it shall
without any legal commitment use reasonable endeavours to notify
the Borrower of any such variation.
(d) Paragraphs (a), (b) and (c) above will override any appropriation
made by an Obligor or a Shareholder.
(e) For the purposes of this Clause 31.2 any Euro Equivalent shall be
calculated as at the date 2 Business Days prior to the date the
Agent makes any relevant application. Not earlier than 20 days
after the Default Date, all of the Banks may give notice to the
Agent and the Borrower requiring that all amounts outstanding in
Optional Currencies shall be converted into Euro. If the Banks
give such a notice, such amounts outstanding in Optional
Currencies will be converted into Euro at the Agent's Spot Rate
of Exchange on the date that such notice is received by the Agent
and thereafter the Borrower will repay the amounts outstanding in
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Optional Currencies to all Banks in Euro by reference to the
amount in Euro as calculated by the Agent.
31.3 Redistribution and Loss Sharing
(a) If any amount owing by an Obligor to a Bank is discharged by the
proceeds on enforcement of security being allocated to that Bank
in priority to other Banks (pursuant to Polish law or otherwise)
or otherwise by enforcement of security, that Bank shall pay over
that amount to the Group Security Agent (as defined in the
Collateral Sharing Intercreditor Agreement) in accordance with
the terms of the Collateral Sharing Intercreditor Agreement.
(b) If any amount owing by an Obligor to a Bank (the "RECOVERING
BANK") is discharged by payment, set-off or by any other manner
(other than under the circumstances described in subclause (a)
above) other than (w) through the Agent in accordance with Clause
13 (Payments), (x) in accordance with the applicable priority at
the relevant time set out in Clause 31.2 (Application of
payments) or (y) in accordance with a guarantee from an affiliate
of such Bank (a "RECOVERY"), then:
(i) the recovering Bank shall, within three Business Days,
notify details of the recovery to the Agent;
(ii) that Agent shall determine whether the recovery is in excess
of the amount which the recovering Bank would have received
had the recovery been received by the Agent and distributed
in accordance with Clause 13 (Payments) and the applicable
priorities at the relevant time set out in Clause 31.2
(Application of payments);
(iii) subject to Clause 31.5 (Exceptions), the recovering Bank
shall, within three Business Days of demand by the Agent,
pay to the Agent an amount (the "REDISTRIBUTION") equal to
the excess in the currency in which the recovering Bank made
the recovery;
(iv) that Agent shall treat the redistribution as if it were a
payment by the Borrower under Clause 13 (Payments) and,
after converting the redistribution into the currencies
necessary to make payments of amounts due to the Banks in
the currency in which they are due at the Agent's Spot Rate
of Exchange, it shall pay the redistribution to the Banks
(other than the recovering Bank) in accordance with Clause
31.2 (Application of payments); and
(v) after payment of the full redistribution, the recovering
Bank will be subrogated to the portion of the claims paid
under paragraph (iv) above and the Borrower will owe the
recovering Bank a debt which is equal to the redistribution,
immediately payable and of the type originally discharged.
31.4 Reversal of Redistribution
If after the operation of Clause 31.3 (Redistribution and loss sharing):
(a) a recovering Bank must subsequently return a recovery, or an
amount measured by reference to a recovery, to an Obligor; and
(b) the recovering Bank has paid a redistribution in relation to that
recovery,
each Bank shall, within three Business Days of demand by the recovering
Bank through the Agent reimburse the recovering Bank all or the
appropriate portion of the redistribution paid to that Bank together with
interest on the amount to be returned to the recovering Bank for the
period whilst it held the redistribution. Thereupon, the subrogation in
Clause 31.3(b)(v) (Redistribution and loss sharing) will operate in
reverse to the extent of the reimbursement.
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31.5 Exceptions
A recovering Bank is not obliged to share with any other Bank under
Clause 31.3 (Redistribution and loss sharing) any amount which the
recovering Bank has received or recovered as a result of taking legal
proceedings, if the other Bank had an opportunity to participate in those
legal proceedings but did not do so or did not take separate legal
proceedings.
32. DISCLOSURE OF INFORMATION
(a) A Bank may disclose to one of its Affiliates or any person with
whom it is proposing to enter, or has entered into, any kind of
transfer, participation or other agreement in relation to this
Agreement:
(i) a copy of any Senior Finance Document; and
(ii) any information which that Bank has acquired under or in
connection with any Senior Finance Document;
so long as in all cases, any recipient thereof has previously
agreed in writing to keep the content of such Senior Finance
Document or such information confidential and not to disclose it
to any other person.
(b) Subject to sub-Clause (a) above, the parties will keep
confidential the Senior Finance Documents and all information
that they acquire under or in connection with the Senior Finance
Documents save that such information may be disclosed:
(i) if so required by law or regulation or if requested by any
regulator with jurisdiction over any Finance Party or any
affiliate of any Finance Party;
(ii) if it comes into the public domain (other than as a result
of a breach of this Clause 32);
(iii) to auditors, professional advisers or rating agencies; or
(iv) in connection with any legal proceedings.
The provisions of this Clause 32 shall supersede any undertakings with
respect to confidentiality previously given by any Finance Party in
favour of any Obligor.
33. SEVERABILITY
If a provision of any Senior Finance Document is or becomes illegal,
invalid or unenforceable in any jurisdiction, that shall not affect:
(a) the validity or enforceability in that jurisdiction of any other
provision of the Senior Finance Documents; or
(b) the validity or enforceability in other jurisdictions of that or
any other provision of the Senior Finance Documents.
34. COUNTERPARTS
Each Senior Finance Document may be executed in any number of
counterparts, and this has the same effect as if the signatures on the
counterparts were on a single copy of the Senior Finance Document.
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35. NOTICES
35.1 Communications in Writing
Any communication to be made under or in connection with the Senior
Finance Documents shall be made in writing and, unless otherwise stated,
may be made by fax or letter or (to the extent that the relevant party
has specified such address pursuant to Clause 35.2 (Addresses)) by
e-mail.
35.2 Addresses
(a) The address and fax number, and (if so specified) e-mail address,
and, where appropriate, web site (and the department or officer,
if any, for whose attention the communication is to be made) of
each party for any communication or document to be made or
delivered under or in connection with the Senior Finance
Documents is:
(i) in the case of the Borrower, that identified with its name
below;
(ii) in the case of each Bank or any other Obligor, that notified
in writing to the Agent on or prior to the date on which it
becomes a party; and
(iii) in the case of the Agent or the Security Agent, that
identified with its name below,
or any substitute address, fax number, e-mail address, web site
or department or officer, or initial e-mail address as the party
may notify to the Agent (or the Agent may notify to the other
parties, if a change is made by the Agent) by not less than five
Business Days' written notice.
(b) The address, e-mail address and facsimile number of the Borrower
are:
Al. ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇-▇▇▇ ▇▇▇▇▇▇ ▇
▇▇▇▇▇▇
Tel: ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
Facsimile: ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
Email: ▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇.▇▇
▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇.▇▇
Attn: Finance Director/Group Treasurer
or such other as the Borrower may notify to the Agent by not
less than five Business Days' notice.
(c) The address, e-mail address and facsimile number of the Agent
are:
Deutsche Bank Luxembourg S.A.
▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Tel: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇/294
Facsimile: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇
Email: ▇▇▇▇▇▇.▇▇▇▇▇@▇▇.▇▇▇
Attn: International Loans & Agency Services, Project
Finance
or such other as the Agent may notify to the other Parties by
not less than five Business Days' notice.
(d) the address, email address and facsimile number of the Security
Agent are:
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Deutsche Bank Polska S.A.
Plac ▇▇▇▇▇▇▇▇▇▇ 12/14/16
▇▇-▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
Tel: ▇▇▇ ▇▇ ▇▇▇▇▇▇▇
Facsimile: ▇▇▇ ▇▇ ▇▇▇▇▇▇▇
Email: ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇@▇▇.▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ (Collateral Unit)
or such other as the Security Agent may notify to the other
Parties by not less than five Business Days' notice.
35.3 Delivery
(a) Any communication or document made or delivered by one person to
another under or in connection with the Senior Finance Documents
will only be effective:
(i) if by way of fax or e-mail, when received in legible form;
or
(ii) if by way of letter, when it has been left at the relevant
address or five Business Days after being deposited in the
post postage prepaid in an envelope addressed to it at that
address; or
(iii) where reference in such communication is to a web site,
when the delivery of the letter, fax or, as the case may be
e-mail referring the addressee to such web site is
effective;
and, if a particular department or officer is specified as part
of its address details provided under Clause 35.2 (Addresses), if
addressed to that department or officer.
(b) Any communication or document to be made or delivered to an Agent
will be effective only when actually received by such Agent and
then only if it is expressly marked for the attention of the
department or officer identified with such Agent's signature
below (or any substitute department or officer such Agent shall
specify for this purpose).
(c) All notices from or to an Obligor shall be sent through the
Agent.
(d) Any communication or document made or delivered to any Obligor in
accordance with this Clause will be deemed to have been made or
delivered to each of the Obligors.
35.4 Notification of address, fax number and e-mail address
Promptly upon receipt of notification of an address, fax number or (as
the case may be) e-mail or change of address, fax number or e-mail
pursuant to Clause 35.2 (Addresses) or changing its own address, fax
number or e-mail, the Agent shall notify the other parties.
36. EVIDENCE AND CALCULATIONS
36.1 Accounts
Accounts maintained by a Finance Party in connection with this
Agreement are prima facie evidence of the matters to which they relate.
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36.2 Certificates and Determinations
Any certification or determination by a Finance Party of a rate or
amount under the Senior Finance Documents is, in the absence of
manifest error, prima facie evidence of the matters to which it
relates.
36.3 Calculations
Interest and the fees payable under Clause 26.1 (Commitment Fee) (in
relation to Tranche A), accrue from day to day and are calculated on
the basis of the actual number of days elapsed and a year of 360 days,
or in the case of fees payable under Clause 26.1 (Commitment Fee) (in
relation to Tranche B) and interest payments under Tranche B, 365 days.
37. LANGUAGE
(a) Any notice given under or in connection with any Senior Finance
Document shall be in English.
(b) All other documents provided under or in connection with any
Senior Finance Document shall be:
(i) in English; or
(ii) if not in English, accompanied by a certified English
translation and, in this case, the English translation shall
prevail unless the document is a statutory or other official
document.
(c) Counterparts of this Agreement shall be executed in both the
English and the Polish languages. In the event of any
inconsistency between the English text and the Polish text, the
English text shall prevail.
38. JURISDICTION
38.1 Submission
For the benefit of each Finance Party, the Obligors agree that the courts
of England have jurisdiction to settle any disputes in connection with
any Senior Finance Document and accordingly submits to the jurisdiction
of the English courts.
38.2 Service of Process
Without prejudice to any other mode of service, the Borrower:
(a) irrevocably appoints ▇▇▇▇▇▇▇▇ Chance Secretaries Limited as its
agent for service of process in relation to any proceedings
before the English courts in connection with any Senior Finance
Document; and
(b) agrees that failure by a process agent to notify the Borrower of
the process will not invalidate the proceedings concerned; and
(c) consents to the service of process relating to any such
proceedings by prepaid posting of a copy of the process to its
address for the time being applying under Clause 35.2 (Addresses
for notices).
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38.3 Forum Conveniens and Enforcement Abroad
The Borrower:
(a) waives objection to the English courts on grounds of inconvenient
forum or otherwise as regards proceedings in connection with a
Senior Finance Document; and
(b) agrees that a judgment or order of an English court in connection
with a Senior Finance Document is conclusive and binding on it
and may be enforced against it in the courts of any other
jurisdiction.
38.4 Non-exclusivity
Nothing in this Clause 38 limits the right of a Finance Party to bring
proceedings against an Obligor in connection with any Senior Finance
Document:
(a) in any other court of competent jurisdiction; or
(b) concurrently in more than one jurisdiction.
38.5 Arbitration
Notwithstanding Clauses 38.1 (Submission) to 38.4 (Non-exclusivity):
(a) all the Parties agree that if all the Banks so require; and
(b) for the benefit of each Bank, the Borrower agrees if a Bank so
requires,
any dispute arising out of or in connection with a Senior Finance
Document (including any question regarding its existence, validity or
termination) shall be referred to and finally resolved by arbitration
under the Rules of the London Court of International Arbitration (the
"Rules") which rules are deemed to be incorporated by reference into
this Clause 38.5. The Tribunal shall consist of a sole arbitrator
agreed upon by the Borrower, the Agent and the Banks in writing
(subject to the Rules) or, if not so agreed within 21 days of the Banks
or a Bank requiring the dispute to be referred to arbitration, a sole
arbitrator appointed in accordance with the Rules. The place of any
such arbitration shall be London and the language English.
39. WAIVER OF IMMUNITY
The Borrower irrevocably and unconditionally:
(a) agrees that if a Finance Party brings proceedings in any
jurisdiction against it or its assets in relation to a Senior
Finance Document, no immunity from those proceedings (including,
without limitation, suit, attachment prior to judgment, other
attachment, the obtaining of judgment, execution or other
enforcement) will be claimed by or on behalf of itself or with
respect to its assets;
(b) waives any such right of immunity which it or its assets now has
or may subsequently acquire to the fullest extent permitted by
the laws of such jurisdiction; and
(c) consents generally in respect of any such proceedings to the
giving of any relief or the issue of any process in connection
with those proceedings, including, without limitation, the
making, enforcement or execution against any assets whatsoever
(irrespective of its use or intended use) of any order or
judgment which may be made or given in those proceedings.
In furtherance of the foregoing the Borrower represents and warrants that
this Agreement and the incurring by the Borrower of the Tranches are
commercial rather than public or governmental acts and
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that the Borrower is not entitled to claim immunity from legal
proceedings with respect to itself or any of its assets on the grounds of
sovereignty or otherwise under any law or in any jurisdiction where an
action may be brought for the enforcement of any of the obligations
arising under or relating to this Agreement. To the extent that the
Borrower or any of its assets has or hereafter may acquire any right to
immunity from set-off, legal proceedings, attachment prior to judgment,
other attachment or execution of judgment on the grounds of sovereignty
or otherwise, the Borrower hereby irrevocably waives such rights to
immunity in respect of its obligations arising under or relating to this
Agreement.
40. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
English law.
41. THIRD PARTIES
A person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ to enforce or to enjoy the
benefit of any terms of this Agreement.
IN WITNESS WHEREOF the parties to this Agreement have caused this Agreement to
be duly executed on the date first written above.
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SCHEDULE A
BANKS
BANK TRANCHE A TRANCHE B ZLOTY
COMMITMENT COMMITMENT LIMIT
(EURO) (EURO) PLN
----------------------------- ---------- ---------- -----
TRANCHE A BANKS
Deutsche Bank Luxembourg S.A. (euro) 45,000,000
Dresdner Bank Luxembourg S.A. 50,000,000
TOTAL TRANCHE A COMMITMENTS: (euro) 95,000,000
TRANCHE B BANKS
Deutsche Bank Polska S.A. (euro) 5,000,000 PLN19,402,000
TOTAL TRANCHE B COMMITMENTS: (euro) 5,000,000
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SCHEDULE B
GUARANTORS
PTC International Finance B.V.
PTC International Finance (Holding) B.V.
PTC International Finance II S.A.
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SCHEDULE C
FORM OF TRANSFER CERTIFICATE
DATED [ ]
BETWEEN
(1) [ ] (the "TRANSFEROR") of [ ]; and
(2) [ ] (the "TRANSFEREE") of [ ].
POLSKA TELEFONIA CYFROWA SP. Z O.O.
(euro) 100,000,000 CREDIT AGREEMENT DATED 20 FEBRUARY, 2001
NOW IT IS HEREBY AGREED as follows:
1. DEFINITIONS AND INTERPRETATIONS
1.1 Definitions
"CREDIT AGREEMENT" means the facility agreement dated 20 February, 2001
between Polska Telefonia Cyfrowa Sp. z o.o., the Guarantors as defined
therein, the Arrangers as defined therein, the Banks as defined therein,
Deutsche Bank AG London, Deutsche Bank Polska S.A. and Dresdner Bank
Luxembourg, S.A. as Lead Arrangers, Deutsche Bank Luxembourg, S.A., as
Agent, and Deutsche Bank Polska S.A., as Security Agent.
"EFFECTIVE DATE" means [ ].
"TRANSFERRED ADVANCES" means a principal amount of the following
Utilisations:
[describe Advances, amount, Interest Periods, Tranche etc].
"TRANSFERRED COMMITMENT" means [so far as concerns Tranche A (euro) [ ]] ,
and so far as concerns Tranche B,(euro) [ ]].
["TRANSFERRED ZLOTY LIMIT" means [ ].]
1.2 Interpretation
In this Transfer Certificate terms defined in the Credit Agreement shall,
unless otherwise defined herein or the context otherwise requires, have
the same meaning.
2. ASSIGNMENT AND TRANSFER
With effect on and from the Effective Date:
(a) the Transferor hereby assigns and transfers to the Transferee its
rights to and obligations in relation to the Transferred Advances,
[and] the Transferred Commitments [and the Transferred Zloty
Limit](1) under the Credit Agreement together with its obligations
in relation to the Transferred Commitments and all rights and
benefits under the Senior Finance Documents relevant thereto; and
-------------
(1) N.B. - Use only for Tranche B during Availability Period
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(b) the Transferee will become a party to the Collateral Sharing
Intercreditor Agreement as a Supplemental Bank Finance Party.
3. NOTICE OF TRANSFER
The parties hereto agree that a notice of transfer in the form of the
Annexure shall, following execution of this Agreement, be sent to the
Borrower and the Agent.
4. APPLICABLE LAW
This Transfer Certificate shall be governed by and construed with English
law.
5. TRANSFEREE REPRESENTATIONS
The Transferee hereby:
(a) represents to the Agent that on the Effective Date, in relation to
the Tranches, it is either:
(i) not resident in the United Kingdom for United Kingdom tax
purposes; or
(ii) a bank as defined in section 840A of the Income and
Corporation Taxes Act 1988 and resident in the United
Kingdom; and
beneficially entitled to the principal and interest payable by the
Agent to it under this Agreement and, if it is able to make those
representations on the Effective Date, shall forthwith notify the
Agent if either representation ceases to be correct;
(b) confirms that it has received from the Transferor a copy of the
Credit Agreement together with such other documents and information
as it has requested in connection with this Transfer Certificate;
(c) without affecting the responsibility of any Obligor for information
supplied by it or on its behalf in connection with any Senior
Finance Document, the Transferee confirms that it:
(i) has made its own independent investigation and assessment of
the financial condition and affairs of the Obligors and their
related entities in connection with its participation in the
Credit Agreement and has not relied exclusively on any
information provided to it by the Agent, the Security Agent,
any Lead Arranger or any Arranger in connection with any
Senior Finance Document; and
(ii) will continue to make its own independent appraisal of the
creditworthiness of the Obligors and their related entities
while any amount is or may be outstanding under the Senior
Finance Documents or any Commitment is in force; and
(d) represents and warrants to the Transferor and all other parties to
the Credit Agreement that it has the power to become a party to the
Credit Agreement and the Collateral Sharing Intercreditor Agreement
as a "Bank" and a "Supplemental Bank Finance Party", respectively,
on the terms herein and therein set out and has taken all necessary
steps to authorise execution and delivery of this Transfer
Certificate.
6. TRANSFEREE COVENANTS
The Transferee hereby undertakes with the Transferor and all other
parties to the Credit Agreement that:
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(a) it will perform in accordance with its terms all those obligations
which, by the terms of the Credit Agreement, will be assumed by it
following delivery of this Transfer Certificate to the Agent; and
(b) it will comply with its obligations under the Collateral Sharing
Intercreditor Agreement as a Supplemental Bank Finance Party.
7. EXCLUSION OF TRANSFEROR'S LIABILITIES
Neither the Transferor nor any other Finance Party makes any
representation or warranty or assumes any responsibility with respect to:
(a) the execution, genuineness, validity, enforceability or sufficiency
of any Senior Finance Document or any other document;
(b) the collectability of amounts payable under any Senior Finance
Document; or
(c) the accuracy of any statements (whether written or oral) made in or
in connection with any Senior Finance Document.
8. NOVATION
Upon receipt of this Transfer Certificate by the Agent the Transferee
will become a party to the Credit Agreement and the Collateral Sharing
Intercreditor Agreement, on and with effect from the Effective Date in
substitution for the Transferor with respect to those rights and
obligations which by the terms of the Credit Agreement, the Collateral
Sharing Intercreditor Agreement and this Transfer Certificate are
assumed by the Transferee and the Transferor is accordingly released
from all such obligations.
IN WITNESS whereof the parties hereto have entered into this Transfer
Certificate on the date stated at the head of this Transfer Certificate.
TRANSFEROR
[ ]
By:
TRANSFEREE
[ ]
By:
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*[BORROWER
POLSKA TELEFONIA CYFROWA SP. Z O.O.
By:]
[Without prejudice to the foregoing execution of this Transfer Certificate by
the parties hereto, [Name of Transferee] hereby expressly and specifically
confirms its agreement with the granting of jurisdiction to English courts
provided for in the Credit Agreement, the Collateral Sharing Intercreditor
Agreement and in any other Senior Finance Documents, for the purpose of Article
1 of the Protocol annexed to the Convention on the Jurisdiction and the
Enforcement of Judgments in Civil and Commercial Matters signed at Brussels on
27 September, 1968, as amended.
For [Name of Transferee]
By:________________________
Name:
Title:]**
------------------------
* Required in the event of a transfer to Transferee that is not a Bank or
an Affiliate of the Transferor; provided, however, that the Borrower's
consent shall not be required if the Borrower fails to respond to a
request for its consent within 10 Business Days after the date of this
Transfer Certificate, the Borrower shall be deemed to have given its
consent.
** Required in the event of a transfer to Transferee that is incorporated in
Luxembourg.
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ANNEXURE
NOTICE OF TRANSFER TO BORROWER AND AGENT
To: POLSKA TELEFONIA CYFROWA SP. Z O.O. (the "BORROWER")
DEUTSCHE BANK LUXEMBOURG, S.A.
DEUTSCHE BANK POLSKA S.A.
[ ] (the "TRANSFEROR") and [ ]
(the "TRANSFEREE") hereby give notice that pursuant to the terms of a transfer
certificate dated [ ], (the "TRANSFER CERTIFICATE") a copy of which is enclosed,
made between the Transferor and the Transferee relating to a facility agreement
dated 20 February, 2001 (the "CREDIT AGREEMENT") between the Borrower, Deutsche
Bank AG London Branch, Deutsche Bank Polska S.A. and Dresdner Bank Luxembourg,
S.A. as Lead Arrangers, the Arrangers named therein, the Banks named therein,
Deutsche Bank Luxembourg, S.A. as Agent, and Deutsche Bank Polska S.A., as
Security Agent, the Transferor has, with effect from [ ] (the "EFFECTIVE DATE")
effected the transfer stated in the Transfer Certificate. The Transferee agrees,
with effect from the Effective Date, to be bound by the terms and conditions of
the Senior Finance Documents as if it had been an original party to the Credit
Agreement as a Bank with a participation in the Utilisations equal to the
Transferred Advances, [and] with the Transferred Commitments [and with the Zloty
Limit(2)] stated in the Transfer Certificate.
Dated [ ]
By:
By:
(2) N.B. - Use only for Tranche B during Availability Period
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SCHEDULE D
SECURITY DOCUMENTS
1. The Asset Pledge.
2. Registration of security over Intellectual Property Rights of the Borrower
at the Patent Office in Poland.
3. Pledge agreements in respect of the receivables of each of the Issuers and
PTC International Finance (Holding) B.V. in the agreed form signed by
relevant Issuer and PTC International Finance (Holding) B.V. in favour of
Deutsche Bank Polska S.A. as Security Agent:
(a) Deed of Pledge of Accounts Receivable of PTC International Finance
(Holding) B.V. and PTC International Finance B.V.; and
(b) Deed of Pledge of Accounts Receivable of PTC International Finance
II S.A.
4. Subordination Agreements in the agreed form:
(a) signed by the Borrower and PTC International Finance (Holding) B.V.
in favour of Deutsche Bank Polska S.A. as Security Agent;
(b) signed by PTC International Finance (Holding) B.V. and PTC
International Finance II S.A. in favour of Deutsche Bank Polska
S.A. as Security Agent; and
(c) signed by PTC International Finance B.V. and the Borrower in favour
of Deutsche Bank Polska S.A. as Security Agent.
5. Pledge over the shares of each Issuer and PTC International Finance
(Holding) B.V. in the agreed form executed by the Borrower in favour of
Deutsche Bank Polska S.A. as Security Agent:
(a) Share Pledge Agreement over the shares of PTC International Finance
B.V. and PTC International Finance (Holding) B.V. from the Borrower
in favour of Deutsche Bank Polska S.A. and
(b) Share Pledge Agreement over the shares of PTC International Finance
II S.A. from PTC International Finance (Holding) B.V. in favour of
Deutsche Bank Polska S.A.
6. A Pledge over cash in the agreed form in respect of the moneys held on
bank accounts established after the date hereof in favour of Deutsche Bank
Polska S.A. as Security Agent.
7. Mortgages over any real property having a fair market value in excess of
(euro) 3,000,000 as determined by an independent market consultant
approved by the Agent owned by the Borrower or any of its Subsidiaries in
the agreed form.
8. Ordinary Share Pledges.
9. Registered Share Pledges.
10. The Bank Account Side Letter.
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SCHEDULE E
DOCUMENTARY CONDITIONS PRECEDENT
THE BORROWER
1. Documents, dated no earlier than 30 days prior to the date of this
Agreement, necessary for demonstrating the capability and authorisation of
the Borrower to execute and perform this Agreement including:
(a) notarised copy of the Borrower's Limited Liability Company
Agreement;
(b) an original or notarised copy of the Borrower's extract from the
commercial register not older than one month; and
(c) originals or notarised copies of all other documents demonstrating
changes in any circumstances attested to by the documents referred
to in this paragraph if such circumstances have any influence on
the capability or authorisation of the Borrower to execute or
perform the Senior Finance Documents.
2. (a) A copy of a resolution of the management board of the Borrower
approving the terms of, and the transactions contemplated by, the
Senior Finance Documents.
(b) A copy of a resolution of the supervisory board of the Borrower
approving the terms of, and the transactions contemplated by, the
Senior Finance Documents.
(c) A copy of a resolution of the management board of the Borrower to
the effect that they have in good faith determined that any
encumbrance or restriction contained in the Subordination Agreement
dated as of 23rd November 1999 between PTC International Finance
(Holding) B.V. and PTC International Finance II, S.A., as amended
and re-executed as of the date hereof, are no less favourable in
any material respect, taken as a whole, to the holders of each of:
(i) the $253,203,000 10-3/4% senior subordinated guaranteed
discount notes due 2007 issued by PTC International Finance B.V.,
(ii) the $150,000,000 11-1/4% senior subordinated guaranteed notes
due 2009 issued by PTC International Finance II S.A. and (iii)
the(euro) 300,000,000 11-1/4% senior subordinated guaranteed notes
due 2009 issued by PTC International Finance II S.A. than those
encumbrances and restrictions contained in such Subordination
Agreement prior to such amendment and re-execution, as required by
Section 4.11(a)(v) of each of the indentures referred to in clauses
(a) and (f) of the High Yield Debt Documents.
3. A specimen of the signature of each person authorised to sign the
Senior Finance Documents on behalf of the Borrower and to sign and/or
despatch all documents and notices to be signed and/or despatched by
the Borrower under or in connection with the Senior Finance Documents.
4. (a) A certificate of a member of the management board of the Borrower
certifying that the incurrence of Utilisations will be permitted in
accordance with Sections 4.09 and 4.16 of each of the indentures
dated 23rd November, 1999 between PTC International Finance II
S.A., PTC International Finance (Holding) B.V., the Borrower and
State Street Bank and Trust Company, as trustee (the "1999
INDENTURES") and the indenture dated 1st July, 1997 between PTC
International Finance B.V., the Borrower, and The Bank of New York
as trustee (the "1997 INDENTURE").
(b) A certificate of an authorised signatory of the Borrower
certifying:
(i) that each of PTC International Finance B.V., PTC
International Finance II S.A. and PTC International Finance
(Holding) B.V. is a "Restricted Subsidiary" as defined in
each of the 1999 Indentures and the ▇▇▇▇ ▇▇▇▇▇▇▇▇▇; and
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(ii) that each copy document delivered under paragraphs 1, 2 and 3
above is correct, complete and in full force and effect as at
a date no earlier than the date of this Agreement.
PTC INTERNATIONAL FINANCE B.V.
5. A copy of the constitutional documents of PTC International Finance B.V.
6. A copy of a resolution of the board of directors of PTC International
Finance B.V. approving the terms of, and the transactions contemplated by,
the Senior Finance Documents to which it is a party.
7. A specimen of the signature of each person authorised to sign the
documents referred to in paragraph 6 above on behalf of PTC International
Finance B.V. and to sign and/or despatch all documents and notices to be
signed and/or despatched by PTC International Finance B.V. under or in
connection with those documents.
8. A certificate of an authorised signatory of PTC International B.V.
certifying that each copy document delivered under paragraphs 5, 6 and 7
above is correct, complete and in full force and effect as at a date no
earlier than the date of this Agreement.
PTC INTERNATIONAL FINANCE II S.A.
9. A copy of the constitutional documents of PTC International Finance II
S.A.
10. A copy of a resolution of the board of directors of PTC International
Finance II S.A. approving the terms of, and the transactions contemplated
by, the Senior Finance Documents to which it is a party.
11. A specimen of the signature of each person authorised to sign the
documents referred to in paragraph 10 above on behalf of PTC International
Finance II S.A. and to sign and/or despatch all documents and notices to
be signed and/or despatched by PTC International Finance II S.A. under or
in connection with those documents.
12. A certificate of an authorised signatory of PTC International Finance II
S.A. certifying that each copy document delivered under paragraphs 9, 10
and 11 above is correct, complete and in full force and effect as at a
date no earlier than the date of this Agreement.
PTC INTERNATIONAL FINANCE (HOLDING) B.V.
13. A copy of the constitutional documents of PTC International Finance
(Holding) B.V.
14. A copy of a resolution of the board of directors of PTC International
Finance (Holding) B.V. approving the terms of, and the transactions
contemplated by, the Senior Finance Documents to which it is a party.
15. A specimen of the signature of each person authorised to sign the
documents referred to in paragraph 14 above on behalf of PTC International
Finance (Holding) B.V. and to sign and/or despatch all documents and
notices to be signed and/or despatched by PTC International Finance
(Holding) B.V. under or in connection with those documents.
16. A certificate of an authorised signatory of PTC International Finance
(Holding) B.V. certifying that each copy document delivered under
paragraphs 13, 14 and 15 above is correct, complete and in full force and
effect as at a date no earlier than the date of this Agreement.
MISCELLANEOUS
17. Legal opinions from each of:
(a) Shearman & Sterling;
(b) Soltysinski, ▇▇▇▇▇▇▇ & Szlezak;
(c) ▇▇▇▇▇ Dutilh; and
(d) Elvinger, Hoss & Prussen.
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18. The Fee Letters duly executed in the agreed form.
19. National Bank of Poland permit for the Borrower to borrow and repay
Utilisations and all other amounts payable under the Senior Finance
Documents in the currency in which they are due.
20. The Business Plan in the agreed form.
21. The Hedging Policy in the agreed form.
22. Certified copies of the GSM Licence, the DCS-1800 Licence, the UMTS
Licence and the supply agreements referred to in paragraphs (c), (d) and
(e) of the definition of "Material Contracts" in Clause 1.1 (Defined
terms).
23. Certified copies of the duly executed interconnection agreements with
Telekomunikacja Polska Spo(3)ka Akcyjna, Polkomtel S.A. and PTK Centertel
in form and substance reasonably satisfactory to the Agent.
24. Evidence of the irrevocable acceptance of the person appointed as process
agent under Clause 38.2 (Service of process) to act as agent for service
of process.
25. Execution of each Security Document listed in Schedule D by the Obligors
party thereto other than (i) mortgages, (ii) the Ordinary Share Pledges,
(iii) pledges over cash in respect of moneys held on bank accounts and
(iv) the Registered Share Pledges which shall be in the agreed form.
26. Collateral Sharing Intercreditor Agreement duly executed in the form set
forth at Schedule M.
27. A copy of any other governmental or other authorisation, approval or other
document, opinion or assurance, including without limitation a document
evidencing approval by the Shareholders, necessary or desirable in
connection with the entry into and performance of, and the transactions
contemplated by, any Senior Finance Document or for the validity and
enforceability of any Senior Finance Document.
28. [intentionally omitted]
29. A search in respect of each member of the Group at the register of pledges
maintained by the Warsaw court, the Central Registry of Treasury Pledges
in Poland, the Commercial Register of the Chamber of Commerce and Industry
of Amsterdam, and the Greffe de la 2e section du Tribunal d'Arrondissement
de et a Luxembourg showing, inter alia, no Security Interests over any of
its assets (other than any permitted under this Agreement) and no
appointment of a receiver, liquidator or administrator or the presentation
of any petition in respect of any of the same.
30. Evidence that the insurances required to be taken out in accordance with
Clause 19.23 (Insurance) of this Agreement have been taken out and are in
full force and effect in the form of a confirmation in the agreed form
from the relevant insurers.
31. An instruction to the Agent that all fees payable in accordance with
the Fee Letters and all other fees, costs and expenses (including,
without limitation, legal fees and all costs of registration, property
transfers, security or otherwise) details of which are known at the
Signing Date may be deducted from the first Advance under this
Agreement.
32. Evidence reasonably satisfactory to the Agent that the facility agreement
dated 17th December, 1997 between the Borrower, the arrangers named
therein, the banks named therein, Citibank International plc as Facility A
Agent and Security Agent, Citibank (Poland) S.A. as Facility B Agent and
Security Agent and Citibank N.A. as Co-ordinator will be repaid and
cancelled, all pledges of collateral thereunder will be promptly deleted
from the register of pledges maintained by the Warsaw court and Citibank
International plc as Facility A Agent and Citibank (Poland) S.A. as
Facility B Agent will issue final and unconditional acknowledgements of
discharge of all obligations secured by such pledges by way of a payoff
letter in the agreed form and releases in the agreed form.
33. A compliance certificate in the form set forth at Schedule J.
34. The executed Side Letter from Elektrim S.A. to the Agent.
35. A side letter from the Shareholders to the Agent, in the agreed form,
providing that the Shareholders notify the Agent upon a pledge of the
Shares by any Shareholders.
36. Certified executed copies of each of the Main Facility Senior Finance
Documents.
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SCHEDULE F
EXISTING SECURITY INTERESTS
NAME OF COMPANY PROPERTY CHARGED DATE OF CREATION
-------------------- --------------------------- ----------------------------------------
1. Polska Telefonia Assets of Polska Telefonia 15 April 1998
Cyfrowa Sp. z o.o. Cyfrowa Sp. z o.o.
Shares and future shares in
2. Elektrim S.A. Polska Telefonia Cyfrowa Sp. 14 September 1998 (pledge over shares and
z o.o. future shares)
21 April 1998 (pledge over shares)
(on 12 June 2000 Elektrim S.A. was entered
as a pledgor in the Register of Pledges)
Shares and future shares in
3. BRE Bank S.A. Polska Telefonia Cyfrowa Sp.
z o.o. 13 May 1999 (pledge over future shares)
(on 24 September 1999 Elektrim S.A.
submitted an application to change the
entry in the Register of Pledges)
Shares and future shares in 7 April 1998 (pledge over shares)
4. Carcom Warszawa Sp. Polska Telefonia Cyfrowa Sp.
z o.o. z o.o. 29 May 1999 (pledge over future shares)
Shares and future shares in Registered pledge agreement was signed on
5. De Te Mobil Polska Telefonia Cyfrowa Sp. 30 January 1998 but the pledges have not
z o.o. been registered yet
Shares and future shares in Registered pledge agreement was signed on
6. Elektrim Autoinvest Polska Telefonia Cyfrowa Sp. 15 January 1998 but the pledges have not
S.A. z o.o. been registered yet
Shares and future shares in The registered pledge agreement was signed
7. ▇▇▇▇▇▇▇ Holding S.A. Polska Telefonia Cyfrowa Sp on 15 January 1998 but the pledge over shares
z o.o. has not been registered yet. On 24
September 1999 Elektrim S.A. submitted an
application to change the entry in the
DESCRIPTION OF CHARGE PERSONS ENTITLED TO THE
CHARGE
--------------------- ------------------------
Registered Pledge Citibank (Poland) S.A.
Registered Pledge Citibank (Poland) S.A.
Registered Pledge Citibank (Poland) S.A.
Registered Pledge Citibank (Poland) S.A.
Registered Pledge Citibank (Poland) S.A.
Registered Pledge Citibank (Poland) S.A.
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Register of Pledges.
The pledge over future shares was
registered on 24 June 1998. On 24 September
1999 Elektrim S.A. submitted an application
to change the entry in the Register of
Pledges.
Shares and future shares in 2 July 1998 (pledge over shares)
8. Polpager Sp. z o.o. Polska Telefonia Cyfrowa Sp.
z o.o. 28 October 1998 (pledge over future shares)
16 March 1999 (pledge over shares)
(On 24 September 1999 Elektrim S.A.
submitted an application to change the
Shares and future shares in entry in the Register of Pledges.)
9. TUiR ▇▇▇▇▇ ▇.▇. Polska Telefonia Cyfrowa Sp.
z o.o. 6 January 1999 (pledge over new shares)
(Elektrim S.A. was entered as a pledgor in
the Register of Pledges)
Shares and future shares in The registered pledge agreement was signed
▇▇.▇▇▇▇▇ One (US West Polska Telefonia Cyfrowa Sp. on 29 January 1998 but the pledges have not
International B.V.) z o.o. been registered yet
18 May 2000
11.Drugi Polski Fundusz Future shares in Polska (On 24 September 1999 Elektrim S.A.
Rozwoju BRE Telefonia Cyfrowa Sp. z o.o. submitted an application to change the
entry in the Register of Pledges.)
12.PTC International Present and future accounts 17.12.97
Finance B.V. receivable
13.Polska Telefonia Present and future shares in PTC 17.12.97
Cyfrowa Sp. z o.o. International Finance B.V.
14.Polska Telefonia
Cyfrowa Sp. z o.o. Deposit moneys 17.12.97
and PTC International
Registered Pledge Citibank (Poland) S.A.
Registered Pledge Citibank (Poland) S.A.
Registered Pledge Citibank (Poland) S.A.
Registered Pledge Citibank (Poland) S.A.
First priority right Citibank N.A.
of pledge
First right of pledge Citibank N.A.
Charge and assignment Citibank (Poland) S.A.
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Finance
15.PTC International Accounts 17.12.97
Finance B.V.
16.PTC International Present and future shares in PTC 23.11.99
Finance (Holding) International Finance II S.A.
B.V.
17.PTC International Present and future accounts 23.11.99
Finance (Holding) receivable
B.V.
18.PTC International Receivables 24.11.99
Finance (Holding)
B.V.
19.PTC International All monies and present and future 24.11.99
Finance II S.A. assets in the account
20.PTC International Accounts receivable 23.11.99
Finance II S.A.
Present and future shares in PTC
21.Polska Telefonia International Finance (Holding) 23.11.99
Cyfrowa Sp. z o.o. B.V.
First right of pledge Citibank N.A.
Pledge Citibank N.A
First priority right Citibank N.A.
of pledge
First priority right Citibank N.A.
of pledge
Pledge Citibank N.A.
Pledge Citibank N.A.
First priority right Citibank N.A.
of pledge
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SCHEDULE G
ADDITIONAL COSTS RATE
1. The Additional Costs Rate shall be:
for all Banks, the rate determined by the Agent to be equal to the
arithmetic mean (rounded upwards, if necessary, to four decimal places) of
the rates notified by each of the Banks in accordance with its respective
status weighted in proportion to the percentage participation of that Bank
in the related Advance to the Agent as the rate resulting from the
application (as appropriate) of the following formulae:
in relation to Sterling Advances:
XL + S(▇-▇) + (E x 0.01)
------------------------
100 - (X+S)
in relation to other Advances:
E x 0.01
--------
300
where, in each case, on the day of application of a formula:
X is the percentage of Eligible Liabilities (in excess
of any stated minimum) by reference to which that
Bank is required under or pursuant to the Bank of
England Act 1998 to maintain cash ratio deposits with
the Bank of England;
L is the percentage rate of interest (excluding the
Applicable Margin and any amounts compensated under
the Additional Costs Rate) payable for the relevant
Interest Period on the Advance;
E is the rate of charge being payable by that Bank to
the Financial Services Authority ("FSA") pursuant to
paragraph 2.02 or 2.03 (as the case may be) of the
Fees Regulations (but where, for this purpose, the
figures at paragraph 2.02(b) and 2.03(b) of the Fees
Regulations shall be deemed to be zero) and expressed
in pounds per (pound)1 million of the Fee Base of
that Lender;
S is the level of interest bearing Special Deposits,
expressed as a percentage of Eligible Liabilities,
which that Bank is required to maintain by the Bank
of England (or other United Kingdom governmental
authorities or agencies); and
D is the percentage rate per annum payable by the Bank
of England to that Bank on Special Deposits.
(X, L, S and D shall be expressed in the formula as numbers and not
as percentages. A negative result obtained from subtracting D from L
shall be counted as zero).
2. For the purposes of this Schedule G:-
"ELIGIBLE LIABILITIES" and "SPECIAL DEPOSITS" have the meanings given to
those terms under or pursuant to the Bank of ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ or by the
Bank of England (as may be appropriate), on the day of the application of
the formula;
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"FEE BASE" has the meaning given to that term for the purposes of, and
shall be calculated in accordance with, the Fees Regulations;
"FEES REGULATIONS" means, as appropriate, either:
(a) the Banking Supervision (Fees) Regulations 1998; or
(b) such regulations as from time to time may be in force, relating to
the payment of fees for banking supervision in respect of periods
subsequent to 31 March 1999.
3. The Additional Costs Rate shall be calculated at or about 11.00 a.m. on
the first day of each Interest Period and for the duration of such
Interest Period and shall be payable on the date on which interest is
payable in respect of the relevant Advance in accordance with the terms of
this Agreement.
4. Each Bank shall determine the Additional Costs Rate by application of the
relevant formula set out in paragraph 1 above on the first day of each
Interest Period and shall notify the Agent of such determination as soon
as it has been made. Promptly upon receipt of notifications from each of
the Banks, the Agent shall calculate the Additional Costs Rate for the
purposes of this Agreement as a weighted average of the Banks' Additional
Cost Rates (weighted in proportion to the percentage participation of each
Bank in the relevant Advance) expressed as a percentage rate per annum.
5. In the event that there is any change in applicable law or regulation, or
the interpretation thereof, by any agency of any state, or in the nature
of any request or requirement by the Financial Services Authority, the
Bank of England, or other applicable banking or regulatory authority, the
effect of which is to impose, modify or deem applicable any fees or any
reserve, special deposit, liquidity or similar requirements against assets
held by, or deposits in, or for the account of, or advances by the Banks,
or in any other respect whatsoever, the Agent shall be entitled to vary
the formula set forth in paragraph 1 above so as (but only so as) to
restore the Banks' position - in terms of overall return to the Banks - to
that which prevailed before such change became necessary. The Agent shall
notify the Borrower of any such necessary variation to the formula and the
formula, as so varied, shall be the formula for the purposes of this
Agreement with effect from the date of notification.
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SCHEDULE H
FORM OF REQUEST FOR AN ADVANCE
To: Deutsche Bank Luxembourg, S.A., as Agent.
From: POLSKA TELEFONIA CYFROWA SP. Z O.O.
Date: [ ]
POLSKA TELEFONIA CYFROWA SP. Z O.O.
(EURO)100,000,000 FACILITY AGREEMENT DATED 20 FEBRUARY, 2001
1. We wish to borrow an Advance as follows:-
(a) Tranche: [A/B]
(b) Utilisation Date: [ ]
(c) Currency/Amount: [ ]
(d) Interest Period: [ ]
(e) Payment instructions: [ ].
(f) [Original Euro Amount: [ ].]*
2. We confirm that the Advance referred to in this Request will be repaid on
the date and in accordance with the terms set out in the Facility
Agreement.
3. We confirm that each condition specified in Clause 4.2 (Conditions
Precedent to each Utilisation) is satisfied on the date of this Request.
[4. We confirm that the proceeds of the Advance referred to in this Request
will be used for the purpose set forth in Clause 3.1 (d)(Purpose).]**
By:
POLSKA TELEFONIA CYFROWA SP. Z O.O.
Authorised Signatory
* Tranche A only
** Include when applicable
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SCHEDULE I
ACCESSION DOCUMENT
THIS ACCESSION AGREEMENT is made [ ]
BETWEEN:-
(1) (No. ) (the "NEW GUARANTOR");
(2) POLSKA TELEFONIA CYFROWA SP. Z O.O., (No. ) (the "BORROWER");
(3) DEUTSCHE BANK LUXEMBOURG, S.A. in its capacity as Agent under the Credit
Agreement.
WHEREAS:-
(A) This Agreement is entered into in connection with a facility agreement
(the "CREDIT AGREEMENT") dated 20 February, 2001 and made between, inter
alia, the Borrower, the Guarantors named therein, Deutsche Bank AG London,
Deutsche Bank Polska S.A. and Dresdner Bank Luxembourg, S.A. as Lead
Arrangers, the Arrangers named therein, Deutsche Bank Luxembourg, S.A., as
Agent, and Deutsche Bank Polska S.A., as Security Agent.
(B) This Agreement has been entered into to record the admission of the New
Guarantor as a Guarantor under the Credit Agreement.
NOW IT IS HEREBY AGREED AS FOLLOWS:-
1. DEFINITIONS
Terms defined in the Credit Agreement shall have the same meaning when
used in this Agreement.
2. ADMISSION OF NEW GUARANTOR
2.1 The New Guarantor agrees to become a Guarantor under the Credit Agreement
and agrees to be bound by the terms of the Credit Agreement as if it had
been named as a Guarantor thereunder.
2.2 The New Guarantor thereby confirms the appointment of the Borrower as its
agent on the terms provided for in the Credit Agreement in relation to
Obligors.
2.3 The New Guarantor confirms that its address details for notices the Credit
Agreement are as follows:-
Address:
Facsimile:
Telex:
Attention of:
2.4 By their signature below the parties to this Agreement (other than the New
Guarantor) confirm their acceptance of the New Guarantor as a Guarantor
for the purpose of the Credit Agreement.
3. GOVERNING LAW AND SUBMISSION TO JURISDICTION
The provision of Clauses 38 (Jurisdiction), 39 (Waiver of Immunity) and
40 (Governing Law) shall apply to this Accession Agreement as though
set out in full herein, mutatis mutandis.
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IN WITNESS whereof the parties have caused this Agreement to be duly executed on
the date first written above.
NEW GUARANTOR
[Name]
--------------------------------------
By:
BORROWER
POLSKA TELEFONIA CYFROWA SP. Z O.O.
--------------------------------------
By:
AGENT
DEUTSCHE BANK LUXEMBOURG, S.A.
--------------------------------------
By:
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SCHEDULE J
FORM OF COMPLIANCE CERTIFICATE
DATED AS OF _________________
The undersigned hereby certifies that [s]he is a member of the
management board of Polska Telefonia Cyfrowa Sp. z o.o. (the "BORROWER") and
that as such [s]he is authorized to execute this certificate on behalf of the
Borrower. With reference to the facility agreement dated as of 20 February, 2001
(the "CREDIT AGREEMENT"; terms defined therein and not otherwise defined herein
being used herein as therein defined) among the Borrower, the guarantors party
thereto from time to time, Deutsche Bank AG London, Deutsche Bank Polska S.A.
and Dresdner Bank Luxembourg, S.A., as Lead Arrangers, the Arrangers party
thereto, Deutsche Bank Luxembourg, S.A. as Agent, Deutsche Bank Polska S.A. as
Security Agent and the Banks party thereto from time to time, the undersigned
further certifies, represents and warrants as follows:
(a) attached to this Certificate as Annex A are the calculations
necessary to confirm compliance with the covenants contained
in Clauses 21.1, 21.2 and 21.3 (Financial Undertakings) of the
Credit Agreement as of _________________.
(b) the consolidated financial statements of the Borrower and its
Subsidiaries (the "GROUP") for the quarterly period ended
_______________ attached hereto as Annex B are complete and
correct and present fairly, in accordance with the accounting
standards set forth in Clause 19.7 (Accounting Standards) of
the Credit Agreement, the financial position of the Group as
at the end of such quarterly accounting period, and the
results of operations and cash flows for such quarterly
period, and for the elapsed portion of the fiscal year ended
with the last day of such quarterly period; and
(c) no Default is outstanding.
POLSKA TELEFONIA CYFROWA SP. Z O.O.
By
---------------------------------------
Title
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ANNEX A TO COMPLIANCE CERTIFICATE
SENIOR DEBT TO EBITDA
RATIO PERIOD ENDED:
---------
Borrowings under any Senior Debt facility
Overdrafts
▇▇▇▇-to-market value of Hedging Agreements in respect of Senior Debt
Negative ▇▇▇▇-to-market value of Hedging Agreements in respect of
Interest payments in relation to any Financial Indebtedness incurred
pursuant to the High Yield Debt Documents
Finance Leases
QTE Lease obligations
Letters of credit and bank guarantees
Any other Senior Debt
TOTAL SENIOR DEBT
Net income before Extraordinary Items
Interest Payable
Income Taxes
Amortisation and depreciation
Consolidated losses arising as a result of having Financial Indebtedness in a
currency which appreciated against the Zloty (without double-counting)
SUBTOTAL:
---------
Less:
Handset costs and other subscriber acquisition costs, whether or not
capitalised, to the extent not already deducted in determining net income
Interest Receivable
Consolidated gains arising as a result of having Financial Indebtedness in a
currency which depreciated against the Zloty (without double-counting)
SUBTOTAL:
---------
EBITDA FOR THE RATIO PERIOD
Senior Debt to EBITDA ratio
PERMITTED LEVEL (TO DEC 2003 - NOT MORE THAN 4:1) 4.00:1
IN COMPLIANCE ( YES / NO )
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EBITDA TO INTEREST EXPENSE ON SENIOR DEBT
Interest accrued on Senior Debt
less Interest Receivable
less unrealised foreign exchange losses to the extent included as Interest plus
unrealised foreign exchange gains to the extent deducted as Interest
INTEREST EXPENSE ON SENIOR DEBT
EBITDA FOR THE RATIO PERIOD
EBITDA to Interest Expense on Senior Debt ratio
PERMITTED LEVEL : (TO DEC 2002 - NOT LESS THAN 2.5:1) 2.5:1
IN COMPLIANCE ( YES / NO )
EBITDA TO INTEREST EXPENSE ON TOTAL DEBT
Interest accrued on all debt
less Interest Receivable
less Interest accrued covered by amounts deposited in escrow
less Interest accrued in respect of GSM Licence, DCS-1800 Licence and
UMTS Licence indebtedness
less nrealised foreign exchange losses to the extent included as Interest
less Interest accrued in respect of QTE Leases covered by amounts deposited in
escrow
Plus unrealised foreign exchange gains to the extent included as Interest
INTEREST EXPENSE ON TOTAL DEBT
EBITDA FOR THE RATIO PERIOD
EBITDA to Interest Expense on Total Debt ratio
PERMITTED LEVEL : (TO DEC 2001 - NOT LESS THAN 1.5:1) 1.5:1
IN COMPLIANCE ( YES / NO )
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SCHEDULE K
EXISTING FINANCIAL INDEBTEDNESS OF THE BORROWER AND ITS SUBSIDIARIES
DESCRIPTION OF DEBT CERTIFICATE FINAL MATURITY
GRANTOR/COUNTERPARTY DEBT ISSUER/BORROWER INDEBTEDNESS NUMBER/FACILITY
AGREEMENT NUMBER
--------------------- --------------------- ------------------------ ------------------------- ---------------
N/A PTC International 10 3/4% Senior N/A July 1, 2007
Finance B.V. Subordinated Guaranteed
Discount Notes
N/A PTC International 11 1/4% Senior N/A December 1, 2009
Finance II S.A. Subordinated Guaranteed
Discount Notes
▇▇▇▇▇▇ PTC Sp. z o.o. Finance lease of N/A (Finance Lease March, 2012
headquarters Agreement of 23 April 1997)
Ministry of PTC Sp. z o.o. Licence GSM 900 - the 2/96/GSM2 March 31, 2001
Communications remaining instalment
Ministry of PTC Sp. z o.o. Licence GSM 1800 - 498/99 September 30,
Communications remaining instalments 2002
Ministry of PTC Sp. z o.o. Licence UMTS 2/UMTS issued December 20, September 30,
Communications 2000 2022
*BRE BANK SA PTC Sp. z o.o. Overdraft limit 02/162/98/Z/VV N/A
*CITIBANK (Poland) SA PTC Sp. z o.o. Overdraft & Guarantee Framework Agreement No. N/A
Limit 145/98
*CITIBANK (Poland) SA PTC Sp. z o.o. Credit Card Limit Agreement of April, 2000 N/A
OUTSTANDING FACILITY LIMIT
PRINCIPAL AMOUNT
AS OF 31 DECEMBER 2000
/NEGATIVE ▇▇▇▇-TO-
MARKET VALUE AS OF 31
DECEMBER 2000
------------------------ --------------
USD 253 million at final N/A
maturity
Euro 300 million and USD N/A
150 million at final
maturity
USD 53.6 million (value N/A
of future lease payments
as of 31 December 2000)
Euro 56 100 000 N/A
Euro 33 431 000 N/A
Euro 650 000 000 N/A
PLN 25 950 222.67 PLN 30 000 000
Guarantee: PLN 6 303 DEM 11 350 000
159.65 as of 31 December
2000
Overdraft: PLN 10 392
199.26 as of 31 December
2000
97 675.09 PLN as of ▇▇ ▇▇▇ ▇ ▇▇▇ ▇▇▇
December 2000
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DESCRIPTION OF DEBT CERTIFICATE FINAL MATURITY
GRANTOR/COUNTERPARTY DEBT ISSUER/BORROWER INDEBTEDNESS NUMBER/FACILITY
AGREEMENT NUMBER
--------------------- --------------------- ------------------------ ------------------------- ---------------
*ING BARINGS PTC Sp. z o.o. Guarantee Limit N/A N/A
*Deutsche Bank Polska PTC Sp. z o.o. Short Term Facility N/A N/A
S.A. Limit
ING Barings PTC Sp. z o.o. Guarantee issued in GO/03337 January 31, 2001
favour of ▇▇▇▇▇▇ ▇▇.
z o.o. with respect to
finance lease payments
N/A PTC Sp. z o.o. Unconditional N/A July 1, 2007
Guarantee issued in
favour of holders of
10 3/4% Senior
Subordinated Guaranteed
Discount Notes
N/A PTC Sp. z o.o. Unconditional and N/A December 1, 2009
Irrevocable Guarantee
issued in favour of
holders of 11 1/4% Senior
Subordinated Guaranteed
Discount Notes
PTC Sp. z o.o. NDF Buy EUR 10 000 N/A
Citibank 000.00 April 2, 2001
PTC Sp. z o.o. NDF Buy EUR 10 000 N/A
Citibank 000.00 April 2, 2001
PTC Sp. z o.o. NDF Buy EUR 10 000 N/A
ING 000.00 April 2, 2001
OUTSTANDING FACILITY LIMIT
PRINCIPAL AMOUNT
AS OF 31 DECEMBER 2000
/NEGATIVE ▇▇▇▇-TO
-MARKET VALUE AS OF 31
DECEMBER 2000
------------------------ --------------
6 413 055.10 PLN as of USD 3 500 000
31 December 2000
N/A Euro 5 000 000, out of
which Euro 2 000 000
represents overdraft limit
PLN4,950,664.28 N/A
N/A
USD 253 million N/A
Euro 300 million and N/A
USD 150 million
N/A
PLN 5 404 500.00
N/A
PLN 5 397 500.00
N/A
PLN 5 396 500.00
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DESCRIPTION OF DEBT CERTIFICATE FINAL MATURITY
GRANTOR/COUNTERPARTY DEBT ISSUER/BORROWER INDEBTEDNESS NUMBER/FACILITY
AGREEMENT NUMBER
--------------------- --------------------- ------------------------ ------------------------- ---------------
PTC Sp. z o.o. NDF Buy EUR 10 000 N/A
Citibank 000.00 April 2, 2001
PTC Sp. z o.o. NDF Buy EUR 10 000 N/A
ING 000.00 April 2, 2001
▇▇▇▇▇▇▇ ▇▇▇▇▇ PTC Sp. z o.o. NDF Buy EUR 6 100 000.00 N/A April 2, 2001
PTC Sp. z o.o. Forward Buy EUR 16 875 N/A
Citibank 000.00 (SWAP) June 1, 2001
PTC Sp. z o.o. Forward Buy EUR 8 437 N/A
ING 500.00 (SWAP) June 1, 2001
OUTSTANDING FACILITY LIMIT
PRINCIPAL AMOUNT
AS OF 31 DECEMBER 2000
/NEGATIVE ▇▇▇▇-TO
-MARKET VALUE AS OF 31
DECEMBER 2000
------------------------ --------------
N/A
PLN 5 408 500.00
▇/▇
▇▇▇ ▇ ▇▇▇ ▇▇▇.▇▇
▇▇▇ 2 983 815.00 N/A
N/A
PLN 11 107 125.00
N/A
PLN 4 738 078.13
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SCHEDULE L
EXISTING HEDGING AGREEMENTS
ISDA Agreements concluded with:
Dresdner Bank AG dated 19 September 2000;
▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Services, INC dated 15 March 2000;
ABN AMRO Bank NV dated 15 March 2000; and
Citibank NA dated 5 May 2000.
Quasi ISDA Agreements concluded with Polish banks:
BRE Bank SA dated 22 March 2000;
Citibank (Poland) SA dated 6 March 2000; and
ING Bank NV (Oddzial Warszawa) dated 6 March 2000.
Other hedging agreements concluded with Polish banks:
ABN AMRO Bank (Polska) SA dated 15 March 2000.
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SCHEDULE M
COLLATERAL SHARING INTERCREDITOR AGREEMENT
THIS COLLATERAL SHARING INTERCREDITOR AGREEMENT (this "AGREEMENT") is made
on ____________ .
BETWEEN:
(1) The Finance Parties listed in Schedule I hereto; and
(2) DEUTSCHE BANK POLSKA S.A., as Group Security Agent for the Finance Parties
(each as defined below).
WHEREAS:
A. POLSKA TELEFONIA CYFROWA SP. Z O.O., a company registered in the
Commercial Register of the District Court in Warsaw under number 45740 (the
"COMPANY") has entered into (a) that certain (euro)550,000,000 Facility
Agreement dated on or about 16 February, 2001 (the "MAIN FACILITY AGREEMENT")
between (i) the Company, as Borrower, (ii) the other Obligors (as defined below)
party thereto, as Guarantors, (iii) the Banks referred to therein, (iv) Deutsche
Bank AG London, Deutsche Bank Polska S.A., Dresdner Bank Luxembourg S.A. and the
European Bank for Reconstruction and Development, as Lead Arrangers, (v)
Deutsche Bank Luxembourg S.A., as Agent, and (vi) Deutsche Bank Polska S.A., as
Security Agent, and (b) that certain (euro)100,000,000 Facility Agreement dated
on or about 16 February, 2001 (the "SUPPLEMENTAL FACILITY AGREEMENT") between
(i) the Company, as Borrower, (ii) the other Obligors party thereto, as
Guarantors, (iii) the Banks referred to therein, (iv) Deutsche Bank AG London,
Deutsche Bank Polska S.A. and Dresdner Bank Luxembourg S.A., as Lead Arrangers,
(v) Deutsche Bank Luxembourg S.A., as Agent, and (vi) Deutsche Bank Polska S.A.,
as Security Agent.
B. In connection with the Main Facility Agreement, each of the Obligors
granted to the Main Bank Finance Parties (as defined below) a security interest
in all of its rights, title and interest in the Security (as defined below), for
the purpose, among other things, of securing and providing for the repayment of
all amounts owing from time to time under or in connection with the Main
Facility Agreement.
C. In connection with the Supplemental Facility Agreement, each of the
Obligors granted to the Supplemental Bank Finance Parties (as defined below) a
security interest in all of its rights, title and interest in the Security, for
the purpose, among other things, of securing and providing for the repayment of
all amounts owing from time to time under or in connection with the Supplemental
Facility Agreement.
D. It is anticipated that the Company and the other Obligors may incur
additional financial indebtedness to third parties, and to the extent that such
additional financial indebtedness is Additional Secured Indebtedness (as defined
below), the lenders of such Additional Secured Indebtedness will share in the
Security.
E. It is further anticipated that the Company and the other Obligors
may, from time to time, enter into certain interest rate and/or currency swap
agreements with certain Main Bank Finance Parties or Supplemental Bank Finance
Parties or their respective affiliates (such Main Bank Finance Parties,
Supplemental Bank Finance Parties and affiliates being, collectively, the
"HEDGING BANKS"), and to the extent that such swap agreements are Secured Swap
Agreements (as defined below) the relevant Hedging Banks will share in the
Security.
F. In order to determine the rights and responsibilities of the Main
Bank Finance Parties, the Supplemental Bank Finance Parties, the Secured Swap
Finance Parties (as defined below), the Additional Finance Parties (as defined
below), the Representatives (as defined below) and the Group Security Agent with
respect to the Security, and in consideration therefor, the parties have entered
into this Agreement.
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IT IS AGREED as follows:
1. INTERPRETATION
1.1 Definitions: In this Agreement, unless the context otherwise requires, the
following expressions have the following meanings:
"AGENTS" means (a) the Agent (as defined in the Main Facility Agreement),
(b) the Agent (as defined in the Supplemental Facility Agreement), (c) the
person(s), if any, designated to act as facility agent, administrative
agent or paying agent or in a similar capacity under the Additional
Secured Indebtedness Finance Documents and (d) the person(s), if any,
designated to act as facility agent, administrative agent or paying agent
or in a similar capacity under the Secured Swap Finance Documents.
"AGENT'S SPOT RATE OF EXCHANGE" means:
(a) when converting an amount into Euro, the Group Security Agent's
spot rate of exchange for the purchase of Euro in the Brussels
foreign exchange market with the relevant currency at or about
11.00 a.m. (Brussels time) on a particular day; and
(b) when converting an amount of Euro into any other currency, the
Group Security Agent's spot rate of exchange for the purchase of
such other currency in the Brussels foreign exchange market with
Euro at or about 11.00 a.m. (Brussels time) on a particular day.
"BUSINESS DAY" means a day (other than a Saturday, Sunday or public
holiday) which is a day on which banks are open for business in London,
Luxembourg and Warsaw.
"DEFAULT" means any event of default under any Finance Document, and any
event which with the giving of notice or the lapse of time, or both, or
the making of any determination or the fulfilment of any condition
provided for in the relevant agreement would constitute such an event of
default.
"FINANCE DOCUMENTS" means:
(a) when designated "MAIN BANK", the Senior Finance Documents as
defined in the Main Facility Agreement;
(b) when designated "SUPPLEMENTAL BANK", the Senior Finance Documents
as defined in the Supplemental Facility Agreement;
(c) when designated "ADDITIONAL SECURED INDEBTEDNESS", the agreements
and instruments for the time being evidencing the Additional
Secured Indebtedness and governing the terms thereof;
(d) when designated "SECURED SWAP", the Secured Swap Agreements and the
other agreements and instruments for the time being entered into in
connection therewith and governing the terms thereof; and
(e) without any such designation, the Main Bank Finance Documents, the
Supplemental Bank Finance Documents, the Additional Secured
Indebtedness Finance Documents and the Secured Swap Finance
Documents.
"FINANCE PARTIES" means:
(a) when designated "MAIN BANK", the Finance Parties (as defined in the
Main Facility Agreement) that have executed this Agreement or
acceded to this Agreement pursuant to a Transfer Certificate
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(as defined in the Main Facility Agreement) or by executing,
together with the Group Security Agent, a Finance Party Accession
Agreement;
(b) when designated "SUPPLEMENTAL BANK", the Finance Parties (as
defined in the Supplemental Facility Agreement) that have executed
this Agreement or acceded to this Agreement pursuant to a Transfer
Certificate (as defined in the Supplemental Facility Agreement) or
by executing, together with the Group Security Agent, a Finance
Party Accession Agreement;
(c) when designated "ADDITIONAL", the lenders from time to time (and/or
their agent(s)) under the Additional Secured Indebtedness Finance
Documents that have acceded to this Agreement by executing,
together with the Group Security Agent, a Finance Party Accession
Agreement;
(d) when designated "SECURED SWAP", the Hedging Banks from time to time
(and/or their agent(s)) that enter into Secured Swap Agreements
with the Company in their capacity as swap counterparties under the
Secured Swap Agreements and that have acceded to this Agreement by
executing, together with the Group Security Agent, a Finance Party
Accession Agreement; and
(e) without any such designation, the Main Bank Finance Parties, the
Supplemental Bank Finance Parties, the Additional Finance Parties
and the Secured Swap Finance Parties.
"FINANCE PARTY ACCESSION AGREEMENT" means an accession agreement
substantially in the form set out in Schedule II hereto.
"GROUP" means the Company and its subsidiaries.
"GROUP SECURITY AGENT" means Deutsche Bank Polska S.A. acting in its
capacity as trustee and/or agent in relation to the Security Documents and
in relation to this Agreement on behalf of the Finance Parties, or such
other person as may from time to time be appointed pursuant to Clause 8.9.
"INDEBTEDNESS" means:
(a) when designated "MAIN BANK", all Obligations now or hereafter due,
owing or incurred to the Main Bank Finance Parties (or any of them)
by any Obligor under or in respect of the Main Bank Finance
Documents (or any of them);
(b) when designated "SUPPLEMENTAL BANK", all Obligations now or
hereafter due, owing or incurred to the Supplemental Bank Finance
Parties (or any of them) by any Obligor under or in respect of the
Supplemental Bank Finance Documents (or any of them);
(c) when designated "ADDITIONAL SECURED", all Obligations now or
hereafter due, owing or incurred to the Additional Finance Parties
(or any of them) by any Obligor under or in respect of indebtedness
incurred pursuant to and in accordance with Clause
19.26(a)(v)(A)(y) or 19.26(a)(vi)(B)(x) of the Main Facility
Agreement and Clause 19.26(a)(v)(A)(y) or 19.26(a)(vi)(B)(x) of the
Supplemental Facility Agreement and secured by Security Interests
permitted pursuant to, and granted in accordance with, Clause
19.8(b)(vi) of the Main Facility Agreement and Clause 19.8(b)(vi)
of the Supplemental Facility Agreement;
(d) when designated "SECURED SWAP" all Obligations now or hereafter
due, owing or incurred to the Secured Swap Finance Parties (or any
of them) by any Obligor under or in respect of Secured Swap
Agreements or under or in respect of Secured Swap Finance Documents
in connection therewith; and
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(e) without any such designation, the Main Bank Indebtedness and/or the
Supplemental Bank Indebtedness and/or the Additional Secured
Indebtedness and/or the Secured Swap Indebtedness, as the context
requires.
"MAJORITY FINANCE PARTIES" means, at any time, the Finance Parties whose
Proportionate Interests aggregate at least fifty-one per cent (51%) of all
the Proportionate Interests.
"NET SWAP AMOUNTS" means, at any time, (a) with respect to a Secured Swap
Finance Party, the net amount (if any) owing by any Obligor under all
Secured Swap Agreements with that Secured Swap Finance Party which have
been terminated at such time, and (b) with respect to all Secured Swap
Finance Parties, the sum of the Net Swap Amounts for all Secured Swap
Finance Parties (and, for the avoidance of doubt, the parties confirm that
the Net Swap Amounts for all Secured Swap Finance Parties is not reduced
by any net amount owed by a Secured Swap Finance Party to any Obligor
under the Secured Swap Agreements with that Secured Swap Finance Party),
as such "Net Swap Amounts" are calculated by the Group Security Agent (any
such calculation being conclusive, absent manifest error).
"OBLIGATIONS" means, with respect to any person, all liabilities and
obligations in any currency of such person of any kind, including, without
limitation, any liability of such person on any claim, whether or not the
right of any creditor to payment in respect of such claim is reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured, disputed,
stayed or otherwise affected by any bankruptcy or insolvency or similar
proceeding. Without limiting the generality of the foregoing, the
Obligations of any Obligor under the Finance Documents include, without
limitation, the obligation to pay principal, interest, reimbursement
obligations, letter of credit commissions, charges, expenses, fees,
attorney's fees and disbursements, indemnity and other amounts payable by
such Obligor under any Finance Document or any extensions or renewals
thereof, whether or not owed alone or jointly with any other person,
whether owed as principal or surety, whether current or otherwise and
whether or not from time to time decreased or extinguished and later
increased, created or incurred, and all or any portion of such obligations
or liabilities that are paid, to the extent all or any part of such
payment is avoided or recovered directly or indirectly from the Group
Security Agent or any Finance Party as a preference, invalid transfer or
otherwise.
"OBLIGORS" means the Company and each other member of the Group which has
undertaken (or in the future undertakes) Obligations to a Finance Party
pursuant to one or more of the Finance Documents.
"PROPORTIONATE INTEREST" of a Finance Party means, as of any time at which
such interest shall be determined, a fraction, the numerator of which is
the Obligations representing outstanding principal, actual, but not
contingent, reimbursement obligations in respect of letters of credit
and/or bank guarantees and Net Swap Amounts owing to such Finance Party at
such time, and the denominator of which is the aggregate Obligations
representing outstanding principal, actual, but not contingent,
reimbursement obligations in respect of letters of credit and/or bank
guarantees and Net Swap Amounts owing to all Finance Parties at such time.
Any Obligations denominated in a currency other than Euros will, for the
purposes of this definition, be translated into Euros at the Agent's Spot
Rate of Exchange on the Business Day prior to the date on which the
Proportionate Interests are to be determined.
"REPRESENTATIVES" means (a) the Security Agent (as defined in the Main
Facility Agreement), (b) the Security Agent (as defined in the
Supplemental Facility Agreement), (c) the person(s) designated as agent
and/or trustee with respect to security under the Additional Secured
Indebtedness Finance Documents, provided if at any time an Additional
Finance Party shall not have appointed an agent and/or trustee, the
Additional Finance Party shall be the Representative for itself, and (d)
the persons(s) designated as agent and/or trustee with respect to security
under the Secured Swap Finance Documents, provided if at any time a
Secured Swap Finance Party shall not have appointed an agent and/or
trustee, the Secured Swap Finance Party shall be the Representative for
itself.
"SECURED SWAP AGREEMENT" means any interest rate or foreign exchange
hedging agreement or arrangement entered into in accordance with Clause
19.14(a) of the Main Facility Agreement and Clause
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19.14(a) of the Supplemental Facility Agreement and secured by Security
Interests permitted pursuant to, and granted in accordance with, Clauses
19.14(c) and 19.8(b)(ii) of the Main Facility Agreement and Clauses
19.14(c) and 19.8(b)(ii) of the Supplemental Facility Agreement.
"SECURITY" means any property or assets in which a Security Interest is
granted in accordance with the terms of the Security Documents.
"SECURITY DOCUMENTS" means (a) the Security Documents (as defined in the
Main Facility Agreement), (b) the Security Documents (as defined in the
Supplemental Facility Agreement), and (c) all other documents creating,
evidencing or granting a Security Interest in favour of the Finance
Parties (or any of them) in respect of the Obligations of any Obligor
under the Finance Documents (or any of them). For the avoidance of doubt,
"SECURITY DOCUMENTS" shall not include any guarantee from an affiliate of
a Finance Party.
"SECURITY INTEREST" means any mortgage, pledge, lien, charge, assignment
for the purpose of providing security, hypothecation or other security
interest.
"TRANSFEROR" has the meaning assigned to it in Clause 5.1.
"TRANSFEREE" has the meaning assigned to it in Clause 5.1.
1.2 Construction: In this Agreement, unless the context otherwise requires:
(a) a reference to any party hereto is, where relevant, deemed to be a
reference to or to include, as appropriate, that party's respective
permitted assignees, transferees and successors in title;
(b) references to Clauses, and Schedules are references to,
respectively, clauses of and schedules to this Agreement and
references to this Agreement include the Schedules;
(c) a reference to (or to any specified provision of) any agreement,
deed or other instrument is to be construed as a reference to that
agreement, deed or other instrument or that provision as amended to
date and as from time to time amended, varied, supplemented,
restated or novated but excluding for this purpose any amendment,
variation, supplement or modification which is contrary to any
provision of this Agreement;
(d) a reference to a statute or statutory instrument is to be construed
as a reference to that statute or statutory instrument as the same
may have been, or may from time to time hereafter be, amended or
re-enacted;
(e) a time of day is a reference to London time;
(f) the index to and the headings in this Agreement are inserted for
convenience only and are to be ignored in construing this
Agreement;
(g) words importing the plural shall include the singular and vice
versa;
(h) a "person" includes any person, firm, company, corporation,
government, state or agency of a state or any other undertaking
(within the meaning of Section 259(1) of the Companies Act 1985) or
other entity or association (whether or not having separate legal
personality), or any two or more of the foregoing;
(i) "subsidiary" means, with respect to any person, any corporation or
other person more than fifty per cent. (50%) of whose securities or
other ownership interests having ordinary voting power for the
election of directors or similar representatives (other than
securities having such power only by
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reason of the happening of a contingency) are, as of the date of
determination thereof, directly or indirectly owned by such person
or one or more of such person's subsidiaries; and
(j) "affiliate" means in relation to any person (i) any person (other
than a subsidiary) which, directly or indirectly, is in control of,
is controlled by, or is under common control with such person, or
(ii) any person who is a director or officer (A) of such person,
(B) of any subsidiary of such person or (C) of any person described
in Clause (i) above.
2. PURPOSE AND RANKING
2.1 Purpose: The principal purpose of this Agreement is that:
(a) each Finance Party holding Security shall hold it for the benefit
of the Group Security Agent and all the Finance Parties, pro rata
in accordance with their respective Proportionate Interests from
time to time; and
(b) enforcement of the Security or amendment to Finance Documents
adversely affecting the Security shall only be undertaken with the
consent of the Majority Finance Parties.
2.2 No Prohibition of Finance Parties: Except as expressly provided to the
contrary in this Agreement or any Finance Document to which it is a party,
any Finance Party may:
(a) demand or receive payment, prepayment or repayment of, or any
distribution in respect of (or on account of), any of the
Indebtedness in cash or in kind or apply any money or property in
discharge of any Indebtedness;
(b) discharge any of the Indebtedness by set-off or any right of
combination of accounts;
(c) subject to Clause 2.3, amend, vary, waive or release any term of
any of the Finance Documents of which it is the holder or to which
it is a party, provided that any amendment or variation of the
Additional Secured Indebtedness Finance Documents or Secured Swap
Finance Documents not permitted by the provisions of the Main Bank
Finance Documents or the Supplemental Bank Finance Documents as in
effect on the date hereof shall result in the termination of all
further rights and claims of the relevant Additional Finance
Parties (in the case of such an amendment or variation to an
Additional Secured Indebtedness Finance Document) or of the
relevant Secured Swap Finance Parties (in the case of such an
amendment or variation to a Secured Swap Finance Document);
(d) accelerate any of the Indebtedness or otherwise declare any of the
Indebtedness owing to it payable on a Default or otherwise;
(e) enforce the Indebtedness owing to it by execution or otherwise;
(f) petition for (or vote in favour of any resolution for) or initiate
or participate in or support or take any steps with a view to any
insolvency, liquidation, reorganisation, administration or
dissolution proceedings, or any voluntary arrangement or assignment
for the benefit of creditors or any similar proceedings involving
the Obligors, whether by petition, convening a meeting, voting for
a resolution or otherwise; or
(g) otherwise exercise any rights or pursue any remedy for the recovery
of any of the Indebtedness or in respect of any breach of covenant,
misrepresentation or non-observance of any provision of any of the
Finance Documents evidencing or governing Indebtedness owing to it.
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2.3 Limitations on Amendments to Finance Documents: No amendment, variation,
waiver or consent given under or in connection with the Finance Documents
shall:
(a) adversely affect the Security or the rights, preferences or
priorities of the Finance Parties under this Agreement;
(b) release, invalidate or impair any of the Security, or cause or
permit the Security to constitute security for less than all of the
relevant category of Indebtedness arising under or in connection
with the Finance Documents; or
(c) increase the principal amount of the Indebtedness, except as
permitted by the Main Facility Agreement and the Supplemental
Facility Agreement;
unless in each case such amendment, variation, waiver or consent is
approved by the Group Security Agent, acting on the instructions of all of
the Finance Parties.
3. HOLDING OF SECURITY
Where any Security conferred by the Security Documents is held by one
Finance Party as trustee for the benefit of itself and other Finance
Parties, it shall be so held on a pari passu basis, pro rata in accordance
with the respective Proportionate Interests of the relevant Finance
Parties from time to time.
4. ENFORCEMENT OF SECURITY
4.1 Actions of Security Agent and Representatives:
(a) For so long as this Agreement shall be in effect, subject to Clause
2.3, (i) the Group Security Agent shall act in relation to the
Security Documents solely in accordance with the instructions of
the Majority Finance Parties and (ii) each Representative shall act
in relation to the Security Documents solely in accordance with the
instructions of the Group Security Agent (acting on the
instructions of the Majority Finance Parties).
(b) Without limiting the generality of the foregoing, each Finance
Party agrees that, so long as this Agreement shall be in effect,
subject to Clause 2.3, the Majority Finance Parties shall have the
sole and exclusive right to direct the Group Security Agent, and
the Group Security Agent (acting on the instructions of the
Majority Finance Parties) shall have the sole and exclusive right
to direct each Representative, in the administration and
enforcement of all matters in respect of the Security, including
the right to direct the sale, transfer, lease or other disposition
of any Security, the foreclosure or forbearance from foreclosure in
respect of any Security and the acceptance of Security in full or
partial satisfaction of any amount outstanding in respect of any
Indebtedness.
(c) Except as otherwise specified herein, each Representative and each
other Finance Party agrees not to ask, demand, ▇▇▇ for or otherwise
exercise any right or remedy in respect of the Security, or take or
receive from any Obligor or any other person, directly or
indirectly, in cash or other property, whether pursuant to any
judicial or non-judicial enforcement, collection, execution, levy
or foreclosure proceedings or otherwise, including by deed in lieu
of foreclosure, any Security or any part thereof or interest
therein.
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4.2 Assistance: Each Representative and each other Finance Party shall execute
or procure the execution of and deliver to the Group Security Agent such
powers of attorney, proxies, authorisations, assignments or other
instruments as may be reasonably requested by the Group Security Agent to
file any claims or take any action or institute any proceedings that the
Group Security Agent may deem reasonably necessary or desirable for the
collection of any of the Security or otherwise to enforce the rights of
the Group Security Agent or any Representative or any other Finance Party
with respect to any of the Security.
4.3 Turnover: All payments or distributions upon or with respect to the
Security that are received by any Representative or any other Finance
Party other than pursuant to Clause 5 shall be received in trust for the
benefit of the Group Security Agent and the Finance Parties, shall be
segregated from other funds and property held by such Representative or
such other Finance Party, as the case may be, and shall forthwith be paid
over to the Group Security Agent in the same form as so received (with any
necessary endorsement) to be held as part of the Security and applied and
distributed in accordance with Clause 5.
4.4 Inconsistency: In the event that the terms of any Security Document or any
terms relating to Security contained in any other Finance Document are
inconsistent with the terms of this Agreement, the terms of this Agreement
shall be controlling.
5. PROPORTIONATE DIVISION OF PROCEEDS
Any and all proceeds of the Security received by the Group Security Agent
shall be applied as follows:
First, to the reimbursement of the Group Security Agent and
each Representative for all of the amounts advanced by it to
preserve, maintain and protect the Security in the event of a
Default by any Obligor under the Finance Documents;
Second, to the reimbursement of the Group Security Agent and
each Representative for all amounts expended by it in
obtaining and disposing of the Security (including, without
limitation, reasonable legal fees, trustees' fees and other
expenses of collection and enforcement of remedies);
Third, in payment of any unpaid fees, costs and expenses of
the Agents (in their respective capacities as Agents) under
the Finance Documents (including, without limitation, amounts
advanced by any Agent on behalf of any other Finance Party
under the Finance Documents);
Fourth, in payment to the Finance Parties of Obligations of
the Obligors (or any of them) under the Finance Documents (or
any of them) in respect of interest and fees then due and
payable;
Fifth, in payment to the Finance Parties of Obligations of the
Obligors (or any of them) under the Finance Documents (or any
of them) in respect of reimbursement obligations in respect of
letters of credit and/or bank guarantees, principal and Net
Swap Payments then due and payable;
Sixth, in payment to the Finance Parties of all other
undischarged Obligations of the Obligors (or any of them)
under the Finance Documents (or any of them);
Seventh, if any of the Obligations in respect of the
Indebtedness shall remain outstanding or may thereafter mature
or accrue, any and all surplus proceeds shall be held by the
Group Security Agent, in a market rate interest bearing
account, to secure such Obligations accruing thereafter and
such proceeds shall be deemed to be Security hereunder; and
Eighth, any surplus remaining shall be allocated to the
payment of the person or persons legally entitled thereto;
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provided, however, that to the extent such proceeds are insufficient to
reimburse all of the Obligations and other amounts afforded a particular
priority as set forth above, such proceeds shall be distributed to the
Finance Parties pro rata based on such Obligations and other amounts owing
to such Finance Parties, respectively.
6. ADDITIONAL PARTIES
6.1 Assignment and Transfers by the Finance Parties:
(a) A Finance Party, or any successor or assign of such party (in this
capacity the "TRANSFEROR") may assign or otherwise transfer all or
any part of its rights and/or obligations under this Agreement to
any person (a "TRANSFEREE") to whom a Transferor is permitted to
assign or otherwise transfer rights and/or obligations under and in
accordance with the Main Bank Finance Documents, the Supplemental
Bank Finance Documents, the Secured Swap Finance Documents or the
Additional Secured Indebtedness Finance Documents (as the case may
be).
(b) Such assignment or transfer will become effective upon execution by
the Group Security Agent of a Finance Party Accession Agreement (in
substantially the form of Schedule II hereto) or, in the case of a
Transferee that is or is to be a Main Bank Finance Party or
Supplemental Bank Finance Party, a Transfer Certificate (as defined
in the Main Facility Agreement or the Supplemental Facility
Agreement, as the case may be), in either case, duly completed,
executed and delivered to the Group Security Agent by or on behalf
of such Transferee pursuant to which the Transferee agrees to be
bound by all of the terms of this Agreement as if it had originally
been party to this Agreement as a Main Bank Finance Party, a
Supplemental Bank Finance Party, a Secured Swap Finance Party or an
Additional Finance Party (as the case may be) (including, for the
avoidance of doubt, appointing the Group Security Agent as security
agent and trustee under the Security Documents) and, to the extent
permitted by applicable law and the Finance Documents, the
Representative of the Transferee may execute a Finance Party
Accession Agreement on behalf of the Transferee.
6.2 Accession of Finance Parties:
(a) Each Additional Finance Party shall accede to the rights and
obligations specified for Additional Finance Parties herein by duly
completing, executing and delivering to the Group Security Agent a
Finance Party Accession Agreement pursuant to which the Additional
Finance Party agrees to be bound by all the terms of this Agreement
as if it had originally been party to this Agreement as an
Additional Finance Party and, to the extent permitted by applicable
law and the Additional Secured Indebtedness Finance Documents, and
if the Group Security Agent is satisfied it is authorised to do so,
the Representative of an Additional Finance Party may execute a
Finance Party Accession Agreement on behalf of an Additional
Finance Party (including, for the avoidance of doubt, appointing
the Group Security Agent as security agent and trustee under the
relevant Security Documents). Such accession will become effective
upon execution by the Group Security Agent of such Finance Party
Accession Agreement.
(b) Each Secured Swap Finance Party shall accede to the rights and
obligations of a Secured Swap Finance Party herein by duly
completing, executing and delivering to the Group Security Agent a
Finance Party Accession Agreement pursuant to which the Secured
Swap Finance Party agrees to be bound by all the terms of this
Agreement, in its capacity as a Secured Swap Finance Party, as if
it had originally been party to this Agreement as a Secured Swap
Finance Party and, to the extend permitted by applicable law and
the Secured Swap Finance Documents, and if the Group Security Agent
is satisfied it is authorised to do so, the Representative of a
Secured Swap Finance Party may execute a Finance Party Accession
Agreement on behalf of a Secured Swap Finance Party (including, for
the avoidance of doubt, appointing the Group Security Agent as
security agent and trustee under the relevant Secured Documents).
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6.3 Group Security Agent:
(a) Each of the parties to this Agreement (other than the relevant new
Transferee, Secured Swap Finance Party or Additional Finance Party)
hereby irrevocably authorises the Group Security Agent to execute
on its behalf any Finance Party Accession Agreement which has been
duly completed, executed and delivered on behalf of a Transferee, a
Secured Swap Finance Party or an Additional Finance Party.
(b) The Group Security Agent will promptly execute any properly
completed Finance Party Accession Agreement delivered to it.
(c) The Group Security Agent will promptly notify the Representatives
of the receipt and execution by it on their behalf of any Finance
Party Accession Agreement.
6.4 Benefit of Agreement: This Agreement will be binding upon, and ensure for
the benefit of, each party to it and its or any subsequent successor or
assign.
7. REPRESENTATION AND WARRANTIES
Each party to this Agreement (other than the EBRD) hereby represents and
warrants to and for the benefit of each of the other parties to this
Agreement that it has all necessary consents, approvals, authorisations
and legal capacity to enter into this Agreement and the other Finance
Documents to which it is party and all necessary corporate, shareholder
and other action has been taken to ensure that this Agreement and the
other Finance Documents to which it is a party has been validly entered
into by it and creates legal, valid, binding and enforceable obligations
upon it.
8. INFORMATION AND COOPERATION
8.1 Default: Upon any party hereto receiving notice of the occurrence of a
Default, such party will promptly notify the other Representatives and/or
Group Security Agent, as the case may be, in writing of such Default.
8.2 Waiver of Defaults: Upon the waiver or remedy of a Default in accordance
with the Finance Documents, the relevant Representative will promptly
notify the Representatives and/or Group Security Agent, as the case may
be, in writing of such waiver or remedy.
8.3 Consultation: The Group Security Agent shall, so far as practicable in the
circumstances from time to time, consult with the Representatives:
(a) before taking any formal steps to exercise any remedy against any
member of the Group; and
(b) generally with regard to significant matters affecting the rights
of the parties as regulated by this Agreement;
but nothing in this Clause 8.3 or elsewhere in this Agreement will
invalidate or otherwise affect any action or step taken in accordance with
this Agreement but without such consultation.
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8.4 Notification of Breach: Each party to this Agreement will notify the Group
Security Agent of any breach of the provisions of this Agreement promptly
upon such party becoming aware of such breach.
8.5 Other Information: Each Representative and each other Finance Party shall
furnish to the Group Security Agent such information relating to the
Obligations owing to the Finance Parties as the Group Security Agent shall
reasonably request.
9. APPOINTMENT AND DUTIES OF THE GROUP SECURITY AGENT
9.1 Appointment and duties of the Group Security Agent:
(a) Deutsche Bank Polska S.A. is hereby appointed as Group Security
Agent to act as agent and security trustee for the purpose of the
Security Documents and this Agreement and is hereby irrevocably
authorised to exercise such rights, powers and discretions as are
specifically delegated to it by the terms of the Security Documents
and this Agreement, together with all such rights, powers and
discretions as are incidental thereto, and to give a good discharge
for any moneys payable under the Security Documents.
(b) The Group Security Agent shall not have, nor be deemed to have,
assumed any obligations to, or trust or fiduciary relationship
with, any party to this Agreement or any Finance Party other than
those for which specific provision is made by the Security
Documents entered into by it and this Agreement.
(c) The Group Security Agent shall not be or be deemed to be agent or
trustee for any party to this Agreement other than the Finance
Parties.
9.2 The Group Security Agent's Duties: The Group Security Agent shall:
(a) promptly send to the Representatives details of each communication
received by it under this Agreement or under the Security
Documents;
(b) promptly send to each Representative a copy of any legal opinion
delivered to it under this Agreement or any of the Security
Documents and of any document or information received by it
pursuant to this Agreement or any of the Security Documents;
(c) act in accordance with any written instructions given by the
Majority Finance Parties in accordance with this Agreement;
(d) have only those duties, obligations and responsibilities expressly
specified in the Security Documents or this Agreement; and
(e) promptly notify each Representative of the occurrence of any
Default on becoming aware of it.
9.3 The Group Security Agent's Rights: Subject to the provisions of this
Agreement, the Group Security Agent may:
(a) perform any of its duties, obligations and responsibilities under
the Security Documents or this Agreement by or through its
personnel, delegates or agents selected by it with reasonable care
(on the basis that the Group Security Agent may extend the benefit
of any indemnity received by it hereunder to its personnel,
delegates or agents);
(b) refrain from exercising any right, power or discretion vested in it
under the Security Documents or this Agreement until it, where so
required hereunder, has received instructions in accordance with
this Agreement;
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(c) refrain from doing anything which would or might in its reasonable
opinion be contrary to any law, directive or judgment of any court
of any applicable jurisdiction or otherwise render it liable to any
person and may do anything which is in its opinion necessary to
comply with any such law, directive or judgment;
(d) assume that no Default has occurred unless an officer of the Group
Security Agent, while active on the account of the Company,
acquires actual knowledge to the contrary;
(e) refrain from taking any step (or further step) to protect or
enforce the rights of any Finance Party under any of the Security
Documents or this Agreement until it has been indemnified and/or
secured to its satisfaction against any costs, losses, expenses or
liabilities (including legal fees) which it would or might sustain
or incur as a result;
(f) rely on any communication or document reasonably believed by it to
be genuine and correct and assume it to have been communicated or
signed by the person by whom it purports to be communicated and
signed;
(g) rely as to any matter of fact which might reasonably be expected to
be within the knowledge of any person on a statement by or on
behalf of such person;
(h) obtain and pay for such legal or other expert advice or services as
may be reasonably necessary or desirable in connection with the
fulfillment of its duties hereunder and rely on any such advice;
(i) accept without enquiry such title as an Obligor may have to any
asset or assets intended to be the subject of the security created
by the Security Documents; and
(j) hold or deposit any title deeds, Security Documents or any other
documents in connection with any of the assets charged by the
Security Documents with any reputable bankers or banking company or
any company whose business includes undertaking the safe custody of
deeds or documents or with any reputable lawyer or firm of lawyers
and it shall not be responsible for or be required to insure
against any loss incurred in connection with any such holding or
deposit and it may pay all sums required to be paid on account or
in respect of any such deposit.
9.4 Exoneration of the Group Security Agent: Neither the Group Security Agent
nor any of its personnel or agents:
(a) shall be responsible for the adequacy, accuracy or completeness of
any representation, warranty, statement or information in the
Security Documents or this Agreement or any notice or other
document delivered under the Security Documents or this Agreement
by or against the parties other than the Group Security Agent;
(b) shall be responsible for the execution, delivery, validity,
legality, adequacy, enforceability or admissibility in evidence of
any of the Security Documents or this Agreement by the parties
other than the Group Security Agent;
(c) shall be obliged to enquire as to the occurrence or continuation of
a Default or as to the accuracy or completeness of any
representation or warranty made by any person;
(d) shall be responsible for any failure of any Obligor or any of the
Finance Parties duly and punctually to observe and perform their
respective obligations under the Security Documents or this
Agreement;
(e) shall be responsible for the consequences of relying on the advice
of any professional advisers selected by any of them in connection
with the Security Documents or this Agreement;
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(f) shall be liable for acting (or refraining from acting) in what it
believes in good faith to be in the best interests of the Finance
Parties or any of them in circumstances where it has been unable,
or it is not practicable, to obtain instructions in accordance with
this Agreement; or
(g) shall be liable for anything done or not done by it under or in
connection with the Security Documents or this Agreement in each
case, save in the case of its own negligence or willful misconduct.
9.5 The Group Security Agent as Finance Party:
(a) For so long as it is a Finance Party in a capacity other than as
Group Security Agent, the Group Security Agent shall have the same
rights, powers and obligations under the Finance Documents as any
other Finance Party and may exercise those rights and powers as if
it were not also acting as Group Security Agent.
(b) The Group Security Agent may:
(i) retain for its own benefit and without liability to account
any fee or other sum receivable by it for its own account;
and
(ii) accept deposits from, lend money to, provide any advisory,
trust or other services to or engage in any kind of banking
or other business with any party to this Agreement or any
subsidiary or any party (and, in each case, may do so without
liability to account).
9.6 Communications and Information:
(a) The Group Security Agent will not be obligated to transmit to the
Finance Parties any information in any way relating to the Security
Documents or this Agreement which the Group Security Agent may have
acquired otherwise than in its capacity as Group Security Agent.
Notwithstanding anything to the contrary expressed or implied
herein, the Group Security Agent shall not as between itself and
the Finance Parties be bound to disclose to any Finance Party or
other person any information, disclosure of which might in the
opinion of the Group Security Agent result in a breach of any law
or directive or be otherwise actionable at the suit of any person.
(b) In acting as Group Security Agent for the Finance Parties or any of
them, the Group Security Agent's banking division shall be treated
as a separate entity from any other of its divisions (or similar
unit of the Group Security Agent in any subsequent re-organisation)
or affiliates (the "OTHER DIVISIONS") and, in the event that any of
the Other Divisions should act for the Company or any other member
of the Group in a corporate finance or other advisory capacity
("ADVISORY CAPACITY"), any information given by the Company or any
other member of the Group to one of the Other Divisions is to be
treated as confidential and will not be available to the Finance
Parties or the banking division of the Group Security Agent without
the consent of the Company, provided that:
(i) the consent of the Company shall not be required in relation
to any information which the Group Security Agent in its
discretion determines relates to a Default or in respect of
which the Finance Parties to which such information is
disclosed have given a confidentiality undertaking in a form
satisfactory to the Group Security Agent and the relevant
member of the Group acting reasonably; and
(ii) if representatives or employees of the Group Security Agent
receive information in relation to a Default whilst acting in
an Advisory Capacity, they will not be obligated to disclose
such information to representatives or employees of the Group
Security Agent in
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their capacity as Group Security Agent or to any of the
Finance Parties if to do so would breach any rule or
regulation or fiduciary duty imposed upon such persons.
9.7 Non-Reliance on the Group Security Agent: Each Finance Party will be
solely responsible for making its own independent investigation and
appraisal of the business, operations, financial condition,
creditworthiness, status and affairs of the Company and each other member
of the Group and has not relied, and will not at any time rely on the
Group Security Agent:
(a) to provide it with any information relating to the business,
operations, financial condition, creditworthiness, status and
affairs of the Company or any other member of the Group (other than
as is explicitly required by Clause 8.2); or
(b) to check or enquire into the adequacy or completeness of any
information provided by an Obligor under or in connection with any
of the Security Documents or this Agreement (whether or not such
information has been or is at any time circulated to it by the
Group Security Agent); or
(c) to assess or keep under review the business, operations, financial
condition, creditworthiness, status or affairs of the Company or
any other member of the Group.
9.8 Indemnity to the Group Security Agent: Each Finance Party shall on demand
indemnify the Group Security Agent against its Proportionate Interest of
any cost, loss, expense or liability sustained or incurred by the Group
Security Agent in complying with any instructions from the Finance Parties
or otherwise sustained or incurred by it in its capacity as Group Security
Agent for the Finance Parties under or in connection with the Security
Documents or this Agreement or in the performance of its duties,
obligations and responsibilities under the Security Documents or this
Agreement, except to the extent sustained or incurred as a result of the
negligence or wilful misconduct of the Group Security Agent or any of its
personnel.
9.9 Resignation of the Group Security Agent: Appointment of a successor:
(a) The Group Security Agent may, subject to Clause 9.9(d) below,
resign its appointment at any time by giving 30 days' notice to the
Representatives and the Company.
(b) The Group Security Agent may be removed by the Majority Finance
Parties at any time.
(c) A successor Group Security Agent shall be selected:
(i) by the retiring Group Security Agent nominating one of its
affiliates as successor Group Security Agent in its notice of
resignation; or
(ii) if the retiring Group Security Agent makes no such
nomination, by the Majority Finance Parties nominating one of
the Finance Parties as successor Group Security Agent
(following consultation with the Company); or
(iii) if the Majority Finance Parties have failed to nominate a
successor Group Security Agent within 30 days after the date
of the retiring Group Security Agent's notice of resignation,
by the retiring Group Security Agent (following consultation
with the Company) nominating a financial institution of good
standing to be the successor Group Security Agent.
(d) The resignation of the retiring Group Security Agent and the
appointment of the successor Group Security Agent will (subject as
provided in Clause 9.9(g) below) become effective upon the
successor Group Security Agent accepting its appointment as Group
Security Agent in writing at which time:
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(i) the successor Group Security Agent will become bound by all
the obligations of the Group Security Agent and become
entitled to all the rights, privileges, powers, authorities
and discretions of the Group Security Agent hereunder;
(ii) the agency of the retiring Group Security Agent will
terminate but without prejudice to any rights or liabilities
which the retiring Group Security Agent may have accrued or
incurred prior to the termination of its agency; and
(iii) the retiring Group Security Agent will be discharged from any
further liability or obligation under or in connection with
the Security Documents or this Agreement.
(e) The retiring Group Security Agent will co-operate with the
successor Group Security Agent in order to ensure that its
functions are transferred to the successor Group Security Agent and
will promptly make available to the successor Group Security Agent
such documents and records as have been maintained in connection
with this Agreement in order that the successor Group Security
Agent is able to discharge its functions.
(f) The provisions of this Agreement will continue in effect for the
benefit of any retiring Group Security Agent in respect of any
action taken or omitted to be taken by it or any event occurring
before the termination of its agency.
(g) The Group Security Agent's resignation shall not take effect until
all necessary agreements and documents have been entered into in
order to substitute its successor as holder of the Security
Documents and each other party agrees to promptly enter into any
documents reasonably required for this purpose.
9.10 Role of the Group Security Agent: The Group Security Agent shall hold the
benefit of the Security Documents to which it is party as agent and
trustee for itself and the Finance Parties and apply all payments and
other benefits received by it by reason thereof, or otherwise realised
thereunder, in accordance with this Agreement.
9.11 Change of Office of the Group Security Agent: The Group Security Agent may
at any time and from time to time in its sole discretion by written notice
to the Company and each of the other Finance Parties designate a different
office in Poland from which its duties as Group Security Agent will
thereafter be performed.
9.12 Luxembourg Security: Notwithstanding anything to the contrary contained in
any Finance Document, with respect to any Security located in Luxembourg
or subject to a Security Document governed by Luxembourg law, the
Representative acting as security agent under any Security Document shall
be the Group Security Agent.
10. NOTICE
10.1 Communications in Writing: Any communication to be made under or in
connection with this Agreement shall be made in writing and, unless
otherwise stated, may be made by fax or letter or (to the extent that the
relevant party has specified such address pursuant to Clause 10.2 by
e-mail.
10.2 Addresses:
(a) The address and fax number, and (if so specified) e-mail address,
and, where appropriate, web site (and the department or officer, if
any, for whose attention the communication is to be made) of each
party for any communication or document to be made or delivered
under or in connection with this Agreement is:
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(i) in the case of the Company, that identified with its name
below;
(ii) in the case of each Finance Party or any other Obligor, that
notified in writing to the Group Security Agent on or prior
to the date on which it becomes a party; and
(iii) in the case of the Group Security Agent, that identified with
its name below,
or any substitute address, fax number, e-mail address, web site or
department or officer, or initial e-mail address as the party may
notify to the Group Security Agent (or the Group Security Agent may
notify to the other parties, if a change is made by the Group
Security Agent) by not less than five Business Days' written
notice.
(b) The address, facsimile number and e-mail address of the Group
Security Agent are:
Deutsche Bank Polska S.A.
Plac ▇▇▇▇▇▇▇▇▇▇ 12/14/16
▇▇-▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
Tel: ▇▇▇ ▇▇ ▇▇▇▇▇▇▇
Facsimile: ▇▇▇ ▇▇ ▇▇▇▇▇▇▇
Email: ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇@▇▇.▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ (Collateral Unit)
or such other as the Group Security Agent may notify to the other
parties by not less than five Business Days' notice.
10.3 Delivery:
(a) Subject to subclause (b) below, any communication or document made
or delivered by one person to another under or in connection with
this Agreement will only be effective:
(i) if by way of fax or e-mail, when received in legible form; or
(ii) if by way of letter, when it has been left at the relevant
address or five Business Days after being deposited in the
post postage prepaid in an envelope addressed to it at that
address; or
(iii) where reference in such communication is to a web site, when
the delivery of the letter, fax or, as the case may be e-mail
referring the addressee to such web site is effective;
and, if a particular department or officer is specified as part of
its address details provided under Clause 10.2, if addressed to
that department or officer.
(b) Any communication or document to be made or delivered to the Group
Security Agent will be effective only when actually received by
such person.
(c) All notices to an Obligor in relation to the Security, the Security
Documents or the enforcement thereof shall be sent through the
Group Security Agent.
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10.4 Notification of address, fax number and e-mail address: Promptly upon
receipt of notification of an address, fax number or (as the case may be)
e-mail or change of address, fax number or e-mail pursuant to Clause 10.2
or changing its own address, fax number or e-mail, the Group Security
Agent shall notify the other parties.
11. NO IMPLIED WAIVERS
11.1 No Waiver: No failure or delay by any of the Finance Parties in exercising
any right, power or privilege under this Agreement shall operate as a
waiver thereof nor shall any single or partial exercise or any right,
power or privilege preclude any other or further exercise thereof or the
exercise of any other right, power or privilege.
11.2 Cumulative Rights: The rights and remedies of the Finance Parties provided
in this Agreement are cumulative and not exclusive of any rights or
remedies provided by law.
11.3 Waiver in writing: A waiver given or consent granted by the Finance
Parties under this Agreement will be effective only if given in writing
and then only in the instance and for the purpose for which it is given.
12. INVALIDITY OF ANY PROVISION
If any provision of this Agreement is or becomes invalid, illegal or
unenforceable in any respect under any law, the validity, legality and
enforceability of the remaining provisions will not be affected or
impaired in any way.
13. TERMINATION
This Agreement shall terminate upon the latest to occur of (a) the payment
in full in cash of the Indebtedness, (b) the termination of the
commitments, if any, under the Finance Documents and (c) the expiration or
termination of the Secured Swap Finance Documents; provided that Clauses 9
and 15 shall survive any such termination.
14. LANGUAGE
(a) Any notice given under or in connection with this Agreement shall
be in English.
(b) All other documents provided under or in connection with this
Agreement shall be:
(i) in English; or
(ii) if not in English, accompanied by a certified English
translation and, in this case, the English translation shall
prevail unless the document is a statutory or other official
document.
(c) Counterparts of this Agreement shall be executed in both the
English and the Polish languages. In the event of any inconsistency
between the English text and the Polish text, the English text
shall prevail.
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15. GOVERNING LAW AND ARBITRATION
15.1 Governing Law: This Agreement shall be governed by and construed in all
respects in accordance with English law.
15.2 Arbitration
Subject to Clause 15.3, any dispute, controversy or claim arising out of
or in connection with this Agreement, including any question regarding the
existence, validity, interpretation, breach or termination of this
Agreement (a "DISPUTE") shall be finally resolved in accordance with the
UNCITRAL Arbitration Rules as at present in force. The arbitral tribunal
shall consist of a sole arbitrator (the "TRIBUNAL"). The appointing
authority shall be the London Court of International Arbitration. The
place of arbitration shall be London, England and the language shall be
English. Any award of the sole arbitrator shall be binding from the day it
is made and the parties hereby waive any rights to refer any question of
law and any right of appeal on the law and/or merits to any court. The
Tribunal shall not be authorised to take or provide, and the parties
hereto other than the EBRD shall not be authorised to seek from any
judicial authority, any interim measures of protection or pre-award relief
against the EBRD, any provisions of the UNCITRAL Arbitration Rules
notwithstanding. The Tribunal shall have authority to consider and include
in any proceeding, decision or award any further dispute properly brought
before it by the EBRD (but no other party) insofar as such dispute arises
out of this Agreement, but, subject to the foregoing, no other parties or
other disputes shall be included in, or consolidated with, the arbitral
proceedings.
15.3 Submission
Notwithstanding Clause 15.2, a party may, subject to Clause 15.5, before
taking a substantive step in any arbitration proceedings, refer a Dispute
exclusively to the courts of England and each party to this Agreement
hereby submits to the jurisdiction of such courts. However, such
submission to the jurisdiction of the English courts will only be
effective, in so far as EBRD is concerned, if EBRD's consent, pursuant to
Clause 15.5, is obtained prior to the commencement of any such action.
15.4 Forum Conveniens and Enforcement Abroad
All parties to this Agreement:
(a) waive objection to the English courts on grounds of inconvenient
forum or otherwise as regards proceedings in connection with this
Agreement; and
(b) agree that a judgment or order of an English court in connection
with this Agreement is conclusive and binding on it and may be
enforced against it in the courts of any other jurisdiction.
15.5 EBRD Consent
Notwithstanding Clause 15.3, no Dispute may be referred to the courts
of England by any party to this Agreement on behalf of or involving or
including EBRD without the prior written consent of EBRD.
15.6 Non-waiver
Nothing in this Agreement shall be construed as a waiver, renunciation
or other modification of any immunities, privileges or exemptions of
the EBRD accorded under the Agreement Establishing the European Bank
for Reconstruction and Development, international convention or any
applicable law.
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16. COUNTERPARTS
This Agreement may be executed in any number of counterparts and all of
such counterparts taken together shall be deemed to constitute one and
the same instrument.
17. AMENDMENTS TO THIS AGREEMENT
This Agreement may be amended by a written instrument signed by the
Finance Parties or, to the extent signature by a Representative is
capable of binding the relevant Finance Parties, their respective
Representatives.
18. THIRD PARTIES
A person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ to enforce or to enjoy the
benefit of any terms of this Agreement.
IN WITNESS WHEREOF this Agreement has been duly executed by each of the
parties hereto the day and year first above written.
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SCHEDULE I
FINANCE PARTIES
Deutsche Bank Luxembourg S.A., as facility agent under the Main Facility
Agreement
Deutsche Bank Polska S.A., as security agent under the Main Facility Agreement
Banks under the Main Facility Agreement
Bank fur Arbeit und Wirtschaft Aktiengesellschaft
Bank ▇▇▇▇▇▇ Spolka Akcyjna
Bank Zachodni, S.A.
Bayerische Landesbank Girozentrale
BIG Bank ▇▇▇▇▇▇▇ ▇.▇.
BRE Bank S.A.
Citibank (Poland) S.A.
Deutsche Bank Luxembourg S.A.
Deutsche Bank Polska ▇.▇.
▇▇▇▇▇▇▇▇ Bank Luxembourg S.A.
The European Bank for Reconstruction and Development
Industriebank von Japan (Deutschland) Aktiengesellschaft
ING Bank N.V., Warsaw Branch
Kreditanstalt fur Wiederaufbau
Kredyt Bank S.A.
LG PetroBank S.A.
Mizuho Bank Nederland NV
Powszechny Bank Kredytowy S.A. w Warszawie
Westdeutsche Landesbank Girozentrale, London Branch
Wielkopolski Bank Kreditowy S.A.
Deutsche Bank Luxembourg S.A., as facility agent under the Supplemental Facility
Agreement
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Deutsche Bank Polska S.A., as security agent under the Supplemental Facility
Agreement
Banks under the Supplemental Facility Agreement
Deutsche Bank Luxembourg S.A.
Deutsche Bank Polska ▇.▇.
▇▇▇▇▇▇▇▇ Bank Luxembourg S.A.
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SCHEDULE II
FINANCE PARTY ACCESSION AGREEMENT
THIS AGREEMENT is made on
BETWEEN:
(1) [ ] (the "NEW FINANCE PARTY") and
(2) DEUTSCHE BANK POLSKA S.A., in its capacity as Group Security Agent under
the Intercreditor Agreement.
RECITAL:
(A) This Agreement is supplemental to a Collateral Sharing
Intercreditor Agreement dated __ February, 2001 (the "INTERCREDITOR
AGREEMENT") between, amongst others, Polska Telefonia Cyfrowa
Sp. z o.o. and Deutsche Bank Polska S.A. as Group Security Agent.
(B) This Agreement has been entered into to record the accession of the
New Finance Party as a [Main Bank Finance Party] [Supplemental Bank
Finance Party] [Additional Finance Party][Secured Swap Finance
Party] under the Intercreditor Agreement pursuant to the provisions
of Clause [5.1]/[5.2] thereof.
NOW THIS AGREEMENT WITNESSES as follows:
1. DEFINITIONS
Terms defined in the Intercreditor Agreement shall have the same
meaning when used in this Agreement.
2. ACCESSION OF NEW [MAIN BANK FINANCE PARTY] [SUPPLEMENTAL BANK FINANCE
PARTY] [ADDITIONAL FINANCE PARTY][SECURED SWAP FINANCE PARTY]
2.1 The New Finance Party hereby agrees to become, with immediate effect, a
[Main Bank Finance Party] [Supplemental Bank Finance Party] [Additional
Finance Party][Secured Swap Finance Party] and agrees to be bound by all
of the terms of the Intercreditor Agreement as if it had originally been
party thereto as a [Main Bank Finance Party] [Supplemental Bank Finance
Party] [Additional Finance Party][Secured Swap Finance Party] thereunder
including, for the avoidance of doubt, appointing the Group Security Agent
as security agent and trustee under the relevant Security Documents.
2.2 The New Finance Party confirms that its address details for notices in
relation to Clause 9 of the Intercreditor Agreement are as follows:
Address: o
Facsimile: o
Email: o
Attention: o
2.3 By its signature below, the Group Security Agent (for itself and on behalf
of the Obligors and the Finance Parties) confirms the acceptances of the
New Finance Party as a [Main Bank Finance Party] [Supplemental Bank
Finance Party] [Additional Finance Party][Secured Swap Finance Party] for
all purposes under the Intercreditor Agreement in accordance with Clause
5.3 thereof.
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3. LAW
This Agreement shall be governed and construed in all respects in
accordance with English law.
4. COUNTERPARTS
The Agreement may be executed in any number of counterparts and all of
such counterparts taken together shall be deemed to constitute one and the
same instrument.
IN WITNESS whereof this Agreement has been duly executed the day and year first
above written.
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SIGNATORIES TO THE ACCESSION AGREEMENT
The New [Main Bank Finance Party] [Supplemental Bank Finance Party] [Additional
Finance Party][Secured Swap Finance Party][Representative of such person]
By:
---------------------------------
Name:
Title:
The Group Security Agent
DEUTSCHE BANK POLSKA S.A.
By:
---------------------------------
Name:
Title:
[Without prejudice to the foregoing, execution of this Agreement by the parties
hereto, [Main Bank Finance Party] [Supplemental Bank Finance Party] [Additional
Finance Party][Secured Swap Finance Party][Representative of such person] hereby
expressly and specifically confirms its agreement with the granting of
jurisdiction to English courts provided for in this Agreement for the purpose of
Article 1 of the Protocol annexed to the Convention on the Jurisdiction and the
Enforcement of Judgments in Civil and Commercial Matters signed at Brussels on
27 September, 1968, as amended.]*
-----------------------
* required in the event that new party is incorporated in Luxembourg
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GROUP SECURITY AGENT
DEUTSCHE BANK POLSKA S.A.
By:
-------------------------------- ----------------------------
Name:
Title:
SECURITY AGENT FOR THE MAIN BANK FACILITY
DEUTSCHE BANK POLSKA S.A.
for itself and on behalf of the Banks
By:
--------------------------------- ----------------------------
Name:
Title:
AGENT FOR THE MAIN BANK FACILITY
DEUTSCHE BANK LUXEMBOURG S.A.
By:
---------------------------------- ----------------------------
Name:
Title:
SECURITY AGENT FOR THE SUPPLEMENTAL BANK FACILITY
DEUTSCHE BANK POLSKA S.A.
for itself and on behalf of the Banks
By:
--------------------------------- ----------------------------
Name:
Title:
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AGENT FOR THE SUPPLEMENTAL BANK FACILITY
DEUTSCHE BANK LUXEMBOURG S.A.
By:
---------------------------------- -------------------------
Name:
Title:
[AGENT FOR THE NEW FACILITY
NAME OF AGENT BANK
By:
---------------------------------- -------------------------
Name:
Title:]
Without prejudice to the foregoing, execution of this Agreement by the parties
hereto, Deutsche Bank Luxembourg S.A. hereby expressly and specifically confirms
its agreement with the granting of jurisdiction to English courts provided for
in this Agreement for the purpose of Article 1 of the Protocol annexed to the
Convention on the Jurisdiction and the Enforcement of Judgments in Civil and
Commercial Matters signed at Brussels on 27 September, 1968, as amended.
For DEUTSCHE BANK LUXEMBOURG S.A.
By:
---------------------------------- -------------------------
Name:
Title:
Without prejudice to the foregoing, execution of this Agreement by the parties
hereto, Dresdner Bank Luxembourg S.A. hereby expressly and specifically confirms
its agreement with the granting of jurisdiction to English Courts provided for
in this Agreement for the purpose of Article 1 of the Protocol annexed to the
Convention on the Jurisdiction and the Enforcement of Judgments in Civil and
Commercial Matters signed at Brussels on 27 September, 1968, as amended.*
For DRESDNER BANK LUXEMBOURG S.A.
By
---------------------------------- ----------------------------
Name:
Title:
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* Repeat this specific acceptance of jurisdiction clause for any other
party incorporated in Luxembourg.
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154
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SIGNATORIES TO FACILITY AGREEMENT
BORROWER
POLSKA TELEFONIA CYFROWA SP. Z O. O.
By: /s/ ▇. ▇▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
----------------------------------- --------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Management Board Member Management Board Member
GUARANTORS
PTC INTERNATIONAL FINANCE B.V.
By: /s/ N.S. van der Werff /s/ R.W.M. Kluitenberg
--------------------------------- ----------------------------
Name: N.S. van der Werff R.W.M. Kluitenberg
Title: Managing Director Managing Director
ABN AMRO Trust ABN AMRO Trust
Company (Nederland) B.V. Company (Nederland) B.V.
PTC INTERNATIONAL FINANCE (HOLDING) B.V.
By: /s/ N.S. van der Werff /s/ R.W.M. Kluitenberg
--------------------------------- ----------------------------
Name: N.S. van der Werff R.W.M. Kluitenberg
Title: Managing Director Managing Director
ABN AMRO Trust ABN AMRO Trust
Company (Nederland) B.V. Company (Nederland) B.V.
PTC INTERNATIONAL FINANCE II S.A.
By: /s/ G. Ludziak
---------------------------------
Name: ▇▇▇▇▇▇▇▇ Ludziak
Title: Authorised Signatory
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155
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LEAD ARRANGERS
DEUTSCHE BANK AG LONDON, as Lead Arranger
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------- ----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Associate Managing Director
DEUTSCHE BANK POLSKA, S.A., as Lead Arranger
By: /s/ ▇. ▇▇▇▇▇▇▇▇ /s/ Ch. ▇▇▇▇▇▇▇▇
--------------------------------- -----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇ Ch. ▇▇▇▇▇▇▇▇
Title: Prezes Zarzadu Head of Structured Finance
DRESDNER BANK LUXEMBOURG S.A., as Lead Arranger
By: /s/ ▇. ▇▇▇▇▇ /s/ ▇-▇. ▇▇▇▇▇▇
--------------------------------- ----------------------------
Name: Jitka ▇▇▇▇▇ ▇-▇. ▇▇▇▇▇▇
Title: Vice President First Vice President
TRANCHE A BANKS
DEUTSCHE BANK LUXEMBOURG S.A.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------- ----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Authorised Signatory Authorised Signatory
DRESDNER BANK LUXEMBOURG S.A.
By: /s/ ▇. ▇▇▇▇▇ /s/ ▇-▇. ▇▇▇▇▇▇
--------------------------------- ----------------------------
Name: Jitka ▇▇▇▇▇ ▇-▇. ▇▇▇▇▇▇
Title: Vice President First Vice President
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156
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TRANCHE B BANKS
DEUTSCHE BANK POLSKA S.A.
By: /s/ ▇. ▇▇▇▇▇▇▇▇ /s/ Ch. ▇▇▇▇▇▇▇▇
-------------------------------- ------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇ Ch. ▇▇▇▇▇▇▇▇
Title: Prezes Zarzadu Head of Structured Finance
AGENT
DEUTSCHE BANK LUXEMBOURG S.A., as Agent
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------- ------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Authorised Signatory Authorised Signatory
SECURITY AGENT
DEUTSCHE BANK POLSKA S.A., as Security Agent
By: /s/ ▇. ▇▇▇▇▇▇▇▇ /s/ Ch. ▇▇▇▇▇▇▇▇
-------------------------------- ------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇ Ch. ▇▇▇▇▇▇▇▇
Title: Prezes Zarzadu Head of Structured Finance
Without prejudice to the foregoing execution of this Agreement by the parties
hereto, PTC International Finance II S.A. hereby expressly and specifically
confirms its agreement with the granting of jurisdiction to English courts
provided for in this Agreement for the purpose of Article 1 of the Protocol
annexed to the Convention on the Jurisdiction and the Enforcement of Judgments
in Civil and Commercial Matters signed at Brussels on 27 September, 1968, as
amended.
For PTC INTERNATIONAL FINANCE II S.A.
By: /s/ G. Ludziak
---------------------------------
Name: ▇▇▇▇▇▇▇▇ Ludziak
Title: Authorised Signatory
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157
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Without prejudice to the foregoing execution of this Agreement by the parties
hereto, Deutsche Bank Luxembourg S.A. hereby expressly and specifically confirms
its agreement with the granting of jurisdiction to English courts provided for
in this Agreement for the purpose of Article 1 of the Protocol annexed to the
Convention on the Jurisdiction and the Enforcement of Judgments in Civil and
Commercial Matters signed at Brussels on 27 September, 1968, as amended.
For DEUTSCHE BANK LUXEMBOURG S.A.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Authorised Signatory Authorised Signatory
Without prejudice to the foregoing execution of this Agreement by the parties
hereto, Dresdner Bank Luxembourg S.A. hereby expressly and specifically confirms
its agreement with the granting of jurisdiction to English courts provided for
in this Agreement for the purpose of Article 1 of the Protocol annexed to the
Convention on the Jurisdiction and the Enforcement of Judgments in Civil and
Commercial Matters signed at Brussels on 27 September, 1968, as amended.
For DRESDNER BANK LUXEMBOURG S.A.
By: /s/ ▇. ▇▇▇▇▇ /s/ ▇-▇. ▇▇▇▇▇▇
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Name: Jitka ▇▇▇▇▇ ▇-▇. ▇▇▇▇▇▇
Title: Vice President First Vice President
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