EX-4.2
4
m08150orexv4w2.htm
EX-4.2
Exhibit 4.2
LOAN AGREEMENT
between
MOBIFON S.A.
and
NORDIC INVESTMENT BANK
Dated 27 August 2002
LOAN AGREEMENT
AGREEMENT, dated 27 August 2002 between MOBIFON
S.A., a joint stock company organised and existing under the
laws of Romania (the “Borrower”), and NORDIC
INVESTMENT BANK (“NIB”).
ARTICLE I —
DEFINITIONS
Section 1.01 Definitions
Wherever used in this Agreement, including the
Schedules and Exhibits, unless the context otherwise requires,
the following terms have the following meanings:
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“ABN Working Capital Agreement”
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means the Working Capital Agreement dated
February 19, 1999 between the Borrower and ABN AMRO Bank
Romania S.A. pursuant to which ABN AMRO Bank Romania S.A. has
agreed to make available to the Borrower a credit facility of up
to $10,000,000 on the terms and conditions thereof as
subsequently modified from time to time.
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“Acknowledgement and Non-Disturbance
Agreement”
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means the agreement between Avrig 35 S.A., HVB
Bank Romania S.A., Rhombus Asset Management Inc., F & C
International B.V., the Borrower and the Senior Lenders with
respect to, inter alia, the Lease Agreement dated
October 4, 1999 between Avrig 35 S.A. as lessor and the
Borrower as lessee.
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“Affiliate”
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means, with respect to any person, any other
person directly or indirectly controlling, controlled by, or
under common control with such person.
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“Agency Agreement”
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means the agency agreement between NIB, EBRD,
EDC, the Agent and the Borrower setting out, inter alia, the
obligations of the Agent in respect of the NIB Loan, the EBRD
Loan and the EDC Loan.
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“Agent”
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means ABN AMRO Bank N.V. or such other financial
institution as EBRD may notify to the Borrower from time to time
as being the agent for EDC, EBRD and NIB under the Agency
Agreement.
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“Assignment of Receivables”
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means the instrument pursuant to which the
Borrower assigns all of its right, title, interest and benefit
in and claims relating to accounts receivable to the Secured
Parties for the purpose of securing, inter alia, the obligations
of the Borrower hereunder, in form and substance satisfactory to
NIB.
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“Assignment of Subordinated Debt”
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means the instrument pursuant to which the right,
title, interest and benefit of the holder of any Permitted High
Yield Back to Back Debt in and to such Permitted High Yield Back
to Back Debt is pledged and/or assigned to the Senior Lenders,
for the purpose of securing, inter alia, the obligations of the
Borrower hereunder, in accordance with Section 3.09(f) and
Section 5.07(h), in form and substance satisfactory to NIB.
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“Auditors”
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means such firm of independent accountants as the
Borrower may from time to time appoint as its auditors in
accordance with Section 5.05(c).
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“Authorised Signatory”
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means, in relation to the Borrower, any person
who is duly authorised (in such manner as may be reasonably
acceptable to NIB) and in respect of whom NIB has received a
certificate signed by the Chief Executive Officer or another
Authorised Signatory of the Borrower setting out the name and
signature of such person and confirming such person’s
authority to act.
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“Available Cash Balance”
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means, at any time, the difference between
(a) the USD Equivalent Amount of the aggregate balance at
such time of all Cash and Cash Equivalents and (b) the
Minimum Cash Balance.
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“Base Case Financial Forecast”
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means the financial projections of the Borrower
approved by the Borrower by a certificate of an Authorised
Signatory addressed to the Senior Lenders dated the date hereof.
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“Borrower Accounts”
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means all bank accounts of the Borrower, other
than the Employee Personal Guarantee Accounts.
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“Borrower Power of Attorney”
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means the power of attorney granted by the
Borrower to the Senior Lenders in respect of the Financing
Agreements in form and substance satisfactory to the Senior
Lenders.
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“Business Day”
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means a day (other than a Saturday or Sunday) on
which commercial banks and foreign exchange markets are open for
the transaction of general business in the interbank market for
Dollars in London, England, on which commercial banks and
foreign exchange markets settle payments in Dollars in New York
and on which the Trans-European Automated Real-Time Gross
Settlement Express Transfer (TARGET) System is open.
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“Capital Expenditure”
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means any expenditure which should be treated as
a capital expenditure in the Financial Statements of the
Borrower in accordance with Generally Accepted Accounting
Principles.
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“Cash and Cash Equivalents”
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means, at any time, the sum of:
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(a) cash
in the Borrower Accounts, including demand and term deposits
with maturity of not more than 90 days;
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(b) cash
in safe; and
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(c) Permitted
Treasury Instruments.
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“Charter”
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means, in respect of any company, corporation,
partnership, enterprise, governmental agency or other entity,
its founding act, articles of incorporation and bylaws,
memorandum and articles of association, contract of association,
constitutive act, statutes or similar instrument, as applicable,
and in respect of the Borrower includes, without limitation, the
Contract of Association and the Statutes.
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“Citibank Working Capital Agreement”
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means the Working Capital Agreement between
Citibank Romania S.A. and the Borrower dated March 25, 1999
pursuant to which Citibank Romania S.A. has agreed to make
available to the Borrower a credit facility of up to $10,000,000
on the terms and conditions thereof, as subsequently modified
from time to time.
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“ClearWave”
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means ClearWave N.V., a corporation organized and
existing under the laws of the Netherlands.
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“ClearWave Holdings”
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means ClearWave Holdings BV, a corporation
organized and existing under the laws of the Netherlands.
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“ClearWave’s Majority Shareholder”
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means
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(i) Telesystem
International Wireless Inc., a corporation organised and
existing under the laws of Canada, and
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(ii) any
Recognised Telecommunications Operator which acquires pursuant
to Section 4.02(b) of the Share Retention and Subordination
Deed (either directly or indirectly) an Economic Interest or a
Controlling Interest of more than 50% in ClearWave.
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“Compliance Certificate”
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means a certificate substantially in the form of
Schedule B.
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“Conditional Discharge”
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has the meaning set out in Section 4.01(p)
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“Conditional Discharge Escrow Agent”
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means counsel to the Senior Lenders, acting
pursuant to the Conditional Discharge Escrow Instructions as
agent on behalf of the Senior Lenders, the EKN Lenders and the
other parties having the benefit of the Existing Security for
the purpose of holding in escrow the Conditional Discharge
delivered in accordance with Section 4.01(p) until receipt
of the Existing Loans Repayment Confirmations.
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“Conditional Discharge Escrow
Instructions”
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means the letter of instructions from, inter
alia, the Senior Lenders and the EKN Lenders to the
Conditional Discharge Escrow Agent instructing the Conditional
Discharge Escrow Agent with respect to the holding and release
of the Conditional Discharge, in form and substance satisfactory
to NIB.
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“Contract of Association”
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means the contract of association of the Borrower
dated November 22, 1996, as amended by additional acts
approved prior to the date hereof and registered in the Trade
Register in Bucharest, Romania, among the Shareholders regarding
inter alia the establishment and shareholdings of the Borrower.
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“Controlled Affiliate”
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means, with respect to any person, any Affiliate
of such person which meets each of the following conditions:
(i) such person owns (directly or indirectly through a
Subsidiary in which such person owns an Economic Interest and a
Controlling Interest of not less than 75%) an
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Economic Interest in such Affiliate of not less
than 75%, (ii) such person owns (directly or indirectly
through a Subsidiary in which such person owns an Economic
Interest and a Controlling Interest of not less than 75%) a
Controlling Interest in such Affiliate of not less than 75%,
(iii) such person at all times maintains and exercises
Management Control over such Affiliate, and (iv) such
Affiliate owns (directly or indirectly) an Economic Interest or
a Controlling Interest in the Borrower.
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“Controlling Interest”
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means a percentage legal and beneficial ownership
interest held by a person in the aggregate of all voting rights
exercisable in respect of the share capital of another person.
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“Controlling Shareholders”
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means
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(1) ClearWave,
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(2) Vodafone,
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(3) any Joint Affiliate, and
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(4) any
Recognised Telecommunications Operator which acquires pursuant
to Section 4.01(c) of the Share Retention and Subordination
Deed (either directly or indirectly) (i) an Economic
Interest or a Controlling Interest of more than 50% in the
Borrower or, (ii) in the case of a transfer, sale or
assignment by Vodafone, Vodafone’s entire Economic Interest
and Controlling Interest in the Borrower.
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“Cooperation Agreement”
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means the agreement dated November 29, 1996
between TIWC and Vodafone Europe (formerly Airtouch Europe B.V.)
entitled “Romanian GSM Co-operation Agreement” in
respect of shareholdings in the Borrower.
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“Curative Equity”
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has the meaning set out in Section 5.10(a).
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“Current Assets”
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means the aggregate (as of the date of
calculation) of the Borrower’s cash, marketable securities,
trade and other receivables and inventories realisable within
one year from such date of calculation and any other items which
are “current assets” under Generally Accepted
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Accounting Principles.
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“Current Liabilities”
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means the aggregate (as of the date of
calculation) of all liabilities of the Borrower falling due on
demand or within one year, including the portion of Long-term
Debt falling due within one year.
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“Debt”
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means, with respect to any person, all
obligations or liabilities of such person, whether incurred as
principal or surety and whether present, future, actual or
contingent, for the payment or repayment of money including
without limitation payables and accrued expenses and including,
without limitation:
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(a) any
amounts payable by such person under capital leases or similar
arrangements over their respective periods;
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(b) any
credit to such person from a supplier of goods or under any
installment purchase or other similar arrangement; and
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(c) any
liabilities and obligations of third parties to the extent that
they are guaranteed by such person or such person has otherwise
assumed or become liable for the payment of such liabilities or
obligations or to the extent that they are secured by any Lien
upon property owned by such person whether or not such person
has assumed or become liable for the payment of such liabilities
or obligations.
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“Declared Amount”
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has the meaning ascribed thereto in
Section 7.02.
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“Default Interest Period”
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means, with respect to any amount overdue under
this Agreement, a period commencing on the day on which such
payment becomes due or, as the case may be, on the last day of
the previous Default Interest Period with respect to such
overdue amount, and ending on a Business Day selected by NIB,
acting reasonably.
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“Deferred Distribution Amount”
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means, in respect of each Financial Year, the
positive amount, if any, by which
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(i) the
aggregate of all Distributions which the Borrower is permitted
to make in respect of such Financial Year in accordance with
Sections 6.01(a)(3)(A) and 6.01(a)(3)(B),
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exceeds
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(ii) the
amount of Distributions which the Borrower is permitted to make
in accordance with Romanian law in such Financial Year as
notified by the Borrower to NIB pursuant to Section 5.13(l).
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“Disbursement”
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means the disbursement of any portion of the NIB
Loan from time to time pursuant to Section 3.03 or, as the
context may require, the principal amount thereof from time to
time outstanding in the Loan Currency.
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“Distribution”
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has the meaning set out in Section 6.01.
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“Distribution Test Period”
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has the meaning set out in Section 6.01(a)(3)(A).
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“Dollars’ and “$”’
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means the lawful currency of the United States of
America.
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“EBITDA”
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means, with respect to any period of calculation,
earnings before interest, tax, depreciation and amortisation,
calculated as (for such period of calculation) the sum of:
(1) the net income (or deficit) of the Borrower (less
extraordinary gains plus extraordinary losses) for such period;
plus (2) translation losses less translation gains for such
period; plus (3) income tax and provisions for income tax
for such period; plus (4) Net Interest Expense for such
period; plus (5) all amounts in respect of depreciation and
amortisation for such period, all calculated in accordance with
Generally Accepted Accounting Principles.
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“EBRD”
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means the European Bank for Reconstruction and
Development.
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“EBRD A Loan”
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means the “A Loan” as defined in the
EBRD Loan Agreement.
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“EBRD B Loan”
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means the “B Loan” as defined in the
EBRD Loan Agreement.
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“EBRD Loan”
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means the loan to be provided by EBRD to the
Borrower pursuant to the EBRD Loan Agreement.
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“EBRD Loan Agreement”
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means the loan agreement date on or about the
date hereof between EBRD and the Borrower.
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“Economic Interest”
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means a percentage legal and beneficial ownership
interest held by a person in the aggregate of all classes of the
issued and outstanding share capital of another person.
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“EDC”
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means Export Development Canada.
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“EDC Loan”
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means the loan to be provided by EDC to the
Borrower pursuant to the EDC Loan Agreement.
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“EDC Loan Agreement”
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means the loan agreement dated on or about the
date hereof between EDC and the Borrower.
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“EKN Lenders”
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means, collectively, all financial institutions
which are parties, as lenders, to the Existing EKN Loan
Agreement on the date hereof.
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“Electronic Archive”
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means the Romanian electronic registry of
security interests in personal property established and
organised pursuant to the Romanian Security Law.
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“Employee Personal Guarantee Accounts”
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means the bank accounts of the Borrower which
from time to time are required under Romanian law to be opened
in connection with the granting of guarantees by employees of
the Borrower which are involved in controlling inventory, which
accounts are held with banks in Romania which are duly
authorized under Romanian law to hold such accounts.
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“Euro”
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means the lawful currency of the member states of
the European Union that adopt the single currency in accordance
with the Treaty Establishing the European Community, as amended
by the Treaty on European Union.
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“Event of Default”
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means any one of the events or occurrences
specified in Section 7.01.
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“Excess Cash Flow”
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means, with respect to any period of calculation,
the greater of
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(i) zero;
and
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(ii) the
Borrower’s EBITDA for such period:
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(a) less
the aggregate, calculated as at the end of such period of
calculation, of all Capital Expenditures and UMTS License Costs
paid in such period of calculation (other than any Capital
Expenditures and UMTS License Costs funded from proceeds of the
Tranche II Loan) during such period of calculation;
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(b) less
the increase (or plus the decrease) in Working Capital of the
Borrower during such period of calculation;
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(c) less
all income taxes paid by the Borrower during such period of
calculation; and
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(d) less
the Borrower’s Total Financial Debt Service (other than in
respect of the Existing Loans) plus the interest received by the
Borrower on its Current Assets, in each case during such period
of calculation.
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“Excess Cash Mandatory Repayment Date”
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has the meaning set out in Section 3.09(d).
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“Existing EBRD Loan Agreement”
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means the amended and restated loan agreement
dated January 20, 1999 between the Borrower and EBRD, as
amended.
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“Existing EDC Loan Agreement”
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means the amended and restated loan agreement
dated January 20, 1999 between the Borrower and EDC, as
amended.
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“Existing EKN Loan Agreement”
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means the credit facility agreement dated
January 20, 1999, as amended, between the EKN Lenders, ABN
AMRO Bank N.V., as arranger, facility agent and security agent
for the EKN Lenders and the Borrower pursuant to which the EKN
Lenders have provided to the Borrower a credit facility in an
aggregate principal amount of $65,000,000.
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“Existing Loan Agreements”
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means, collectively, the Existing NIB Loan
Agreement, the Existing EBRD Loan Agreement, the Existing EDC
Loan Agreement, the Existing EKN Loan Agreement and the Existing
Subordinated Loan Agreement.
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“Existing Loans”
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means the loans made to the Borrower under the
Existing Loan Agreements.
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“Existing Loans Indebtedness”
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means the aggregate principal amount of the
Existing Loans from time to time outstanding and all interest,
expenses, fees and other amounts owing to the Senior Lenders and
the EKN Lenders under the Existing Loan Agreements and the
Financing Agreements (as defined in the Existing NIB Loan
Agreement).
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“Existing Loans Repayment
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means the confirmations provided by UBS AG
Confirmations” (London Branch) (as agent on behalf of the
Senior Lenders) and ABN AMRO Bank N.V. (as agent on behalf of,
inter alia, the EKN Lenders) to the Borrower and the Conditional
Discharge Escrow Agent pursuant to which such agents confirm
receipt of payment representing full repayment of the Existing
Loans Indebtedness, which confirmations shall be in the form of
Annexes A and B to the Conditional Discharge Escrow Instructions.
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“Existing Loans Repayment Date”
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means the date on which the “Payment
Time” (as defined in the Conditional Discharge Escrow
Instructions) occurs.
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“Existing NIB Loan Agreement”
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means the amended and restated loan agreement
dated January 20, 1999, between the Borrower and NIB, as
amended.
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“Existing Security”
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means the security created pursuant to the
Security Documents (as defined in the Existing NIB Loan
Agreement) to secure, inter alia, the Borrower’s
obligations to the Senior Lenders under the Existing Loan
Agreements and the other Financing Agreements (as defined in the
Existing NIB Loan Agreement).
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“Existing Security Discharge Date”
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means the date on which the Existing Security has
been fully discharged to the satisfaction of the Senior Lenders.
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“Existing Subordinated Loan Agreement”
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means the amended and restated subordinated loan
agreement between the Borrower and EBRD
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dated January 28, 1999 pursuant to which
EBRD made available to the Borrower, subject to the terms and
conditions therein, $10 million in subordinated debt.
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“Financial Debt”
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means any Debt for, or in respect of:
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(a) moneys
borrowed, including without limitation, in the case of the
Borrower, any Permitted High Yield Back to Back Debt but
excluding Permitted Quasi Equity;
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(b) any
amount raised by acceptance under any acceptance credit facility;
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(c) any
amount raised pursuant to any note purchase facility or the
issue of bonds, notes, debentures, loan stock or any similar
instrument;
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(d) any
amount raised pursuant to any issue of shares which are
expressed to be redeemable at the option of the holder;
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(e) the
amount of any liability in respect of any lease or hire-purchase
contract which would, in accordance with generally accepted
accounting principles in the relevant jurisdiction be treated as
a finance or capital lease or which otherwise is in substance a
financing lease;
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(f) the
amount of any liability in respect of any advance or deferred
purchase agreement if one of the primary reasons for entering
into such agreement is to raise finance;
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(g) any
receivables sold or discounted (other than on a non-recourse
basis);
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(h) any
agreement or option to reacquire an asset if one of the primary
reasons for entering into such agreement or option is to raise
finance;
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(i) any
Debt for or in respect of any credit facility or financial
accommodation;
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(j) any
guarantee, indemnity, bond, standby letter of credit or any
other instrument issued in connection with the performance of
any contract or other obligation;
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(k) any
amount raised under any other transaction (including any forward
sale or purchase agreement) which, in accordance with generally
accepted accounting principles in the relevant jurisdiction, has
the commercial effect of a borrowing; and
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(l) the
amount of any liability in respect of any guarantee or indemnity
for any of the items referred to in paragraphs
(a) - (k) above.
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“Financial Statements”
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means the financial statements (including a
balance sheet, income statement, cash flow statement and
statement of changes in equity, and notes thereon) of the
Borrower prepared in accordance with Generally Accepted
Accounting Principles if prepared in Dollars and in accordance
with RAS if prepared in Lei.
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“Financial Year”
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means the period commencing each year on
January 1, and ending on the following December 31, or
such other period as the Borrower may, with NIB’s consent,
from time to time designate as the accounting year of the
Borrower.
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“Financing Agreements”
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means, collectively:
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(a) this
Agreement;
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(b) the
EBRD Loan Agreement;
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(c) the
EDC Loan Agreement;
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(d) the
Agency Agreement;
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(e) the
Security Documents;
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(f) the
Security Sharing and Intercreditor Agreement;
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(g) the
Share Retention and Subordination Deed;
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(h) the
Borrower Power of Attorney;
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(i) each
Shareholder Power of Attorney;
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(j) the
Acknowledgement and Non Disturbance Agreement;
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(k) the
Disbursement applications referred to in Section 3.03; and
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(l) any
other agreements entered into between the Borrower or any other
party, on the one hand, and any of the Senior Lenders or the
Agent, on the other hand, and notices, certificates and
applications issued by the Borrower or any other party to any of
the Senior Lenders, in connection with this Agreement or any of
the other Financing Agreements or the transactions contemplated
by this Agreement or any of the other Financing Agreements.
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“Free Cash Flow”
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means, for any period of calculation, EBITDA
minus income tax paid, minus increases (or plus decreases) in
Working Capital during such period minus all Capital
Expenditures and UMTS License Costs for such period.
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“Generally Accepted Accounting
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means accounting principles as generally
Principles” accepted in the United States of America with
respect to the preparation of financial statements, as
consistently applied.
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“GSM”
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means the global system for wireless mobile
communications as defined by the International
Telecommunications Union.
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“GSM License”
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means the license for provision in Romania of GSM
telecommunications services as granted on November 29, 1996
to the Borrower by the Ministry as amended and restated on
December 16, 1998, which license terminates no earlier than
November 29, 2011, as such license may be further amended,
supplemented, restated, novated or assigned from time to time.
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“Hedge Provider”
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means any financial institution which is a
counterparty under any Hedging Agreement with the Borrower.
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“Hedging Agreements”
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means any agreements entered into by the Borrower
for the purpose of interest rate or currency hedging, which are
permitted under Section 6.04, which comply with the Hedging
Plan and which are based on ISDA documentation.
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“Hedging Plan”
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means the plan of the Borrower with respect to
interest rate and currency hedging, which plan is agreed to by
the Senior Lenders.
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“High Yield Related Prepayment
Proportion”
| |
means, at any time, with respect to any Permitted
High Yield Back to Back Debt, the proportion, expressed as a
percentage, of (a) the aggregate amount of principal of any
Senior Loan prepaid or required to be prepaid pursuant to
Section 3.09(f) of this Agreement, Section 3.10(f) of
the EBRD Loan Agreement or Section 3.09(f) of the EDC Loan
Agreement in connection with the issuance of such Permitted High
Yield Back to Back Debt, divided by (b) the aggregate
principal amount of all Senior Loans outstanding immediately
prior to such prepayment.
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“Immovables Hypothec”
| |
means an instrument, in form and substance
acceptable to NIB, pursuant to which the Borrower grants to the
Secured Parties a first ranking hypothec over immovable tangible
assets of the Borrower as set forth in Section 5.07(c),
together with the title deeds for such assets.
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“Insurance Assignment”
| |
means the instrument between the Borrower and the
Secured Parties pursuant to which the Borrower’s rights,
interests, and benefits in the insurance relating to the
Borrower’s assets and business are assigned to the Secured
Parties, for the purpose of securing, inter alia, the
obligations of the Borrower hereunder, which instrument shall be
in form and substance satisfactory to NIB.
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“Interest Determination Date”
| |
means, for any Interest Period, the date two
Business Days prior to the first day of such Interest Period.
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“Interest Payment Date”
| |
means January 14, April 14,
July 14 and October 14 in any year; provided, however,
that, if any Interest Payment Date would otherwise fall on a day
which is not a Business Day, such Interest Payment Date shall be
changed to the
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next succeeding Business Day.
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“Interest Period”
| |
means, (i) for any Disbursement, the period
commencing on the date of such Disbursement and ending on the
next Interest Payment Date and each period of three months
thereafter commencing on an Interest Payment Date and ending on
the next Interest Payment Date, provided that, if such
Disbursement takes place less than 15 Business Days prior to the
next Interest Payment Date, the first Interest Period for such
Disbursement shall commence on the date of such Disbursement and
end on the Interest Payment Date following the next Interest
Payment Date.
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“Joint Affiliate”
| |
means any person that owns (directly or
indirectly) any Economic Interest or Controlling Interest in the
Borrower and that meets each of the following conditions:
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(a) the
Controlling Shareholders own (directly or indirectly through
their Controlled Affiliates) an Economic Interest of not less
than 75% in such person;
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(b) the
Controlling Shareholders own (directly or indirectly through
their Controlled Affiliates) a Controlling Interest of not less
than 75% in such person; and
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(c) the
Controlling Shareholders (directly or indirectly through their
Controlled Affiliates) at all times maintain and exercise
Management Control over such person.
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“Law”
| |
means any law, code, statute, treaty, ordinance,
decree, order, rule, regulation, norms or other such
governmental, legislative, or judicial determination.
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“Lei”
| |
means the lawful currency of Romania.
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“LIBOR”
| |
means, for each Interest Period, the offered rate
per annum for deposits in Dollars which appears on Telerate Page
3750 as of 11:00 a.m., London time, on the relevant
Interest Determination Date for the period which is closest to
the duration of
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such Interest Period (or, if two periods are
equally close to the duration of such Interest Period, the
average of the two relevant rates); provided that:
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(a) if,
for any reason, LIBOR cannot be determined at such time by
reference to Telerate Page 3750, LIBOR for such Interest Period
shall be the rate per annum which NIB determines to be the
arithmetic mean (rounded upward, if necessary, to the nearest
1/16%) of the offered rates per annum for deposits in Dollars in
an amount comparable to the portion of the NIB Loan made in
Dollars scheduled to be outstanding during such Interest Period
for a period equal to such Interest Period which are advised to
NIB by the London offices of ABN AMRO Bank N.V., Deutsche Bank
and Rabobank; and
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(b) if
NIB determines that deposits in Dollars are not being offered in
the London interbank market in such amounts or for such period,
LIBOR for such Interest Period shall be the cost to NIB
(expressed as a rate per annum) of funding the portion of the
NIB Loan made in Dollars scheduled to be outstanding during such
Interest Period from whatever sources it selects.
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“Licenses”
| |
means the GSM License and, at all times from and
after the acquisition by the Borrower of the UMTS License, the
UMTS License.
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“Lien”
| |
means any mortgage, pledge, charge, privilege,
priority, hypothecation, encumbrance, assignment, lien,
attachment, set-off or other security interest of any kind or
any other agreement or arrangement having the effect of
conferring security upon or with respect to, or any segregation
of or other preferential arrangement with respect to, any
present or future assets, revenues or rights, including, without
limitation, any designation of loss payees or beneficiaries or
any similar arrangement under any insurance policy.
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“Loan Currency”
| |
means the currency in which the NIB Loan is made,
being Dollars.
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|
“Long-term Debt”
| |
means, as of any date and with respect to any
person, any Debt of such person all or part of which, or the
final payment of which, is due more than one year after such
date.
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“Major Leases”
| |
means the lease agreements listed in
Schedule A hereto and any other lease agreements entered
into by the Borrower pursuant to which the Borrower obtains and
occupies land or premises other than any other Site Agreement.
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“Management Control”
| |
means the right or capacity, whether exercised or
not, of a person to directly or indirectly exercise control or
direction over the management, board of directors or assembly of
shareholders (or similar such governing bodies) of another
person by virtue of the person holding a Controlling Interest in
the other person of more than 50% provided such Controlling
Interest held by the person is sufficient, if exercised, to
allow such direct or indirect control or direction of the other
person.
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“Margin”
| |
means three and one-half percent (3.5%) per
annum, as adjusted in accordance with Section 3.06(d).
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|
“Margin Determination Date”
| |
has the meaning set out in Section 3.06(d).
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“Material Agreements”
| |
means the agreements listed in Schedule A
hereto and any other agreement entered into by the Borrower
after the date hereof which satisfies the criteria specified in
Section 2.02(g).
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“Minimum Cash Balance”
| |
means, at any time, the USD Equivalent Amount of
the greater of (a) Total Financial Debt Service of the
Borrower for the period commencing at such time and ending
183 days thereafter; and (b) $10,000,000.
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“Ministry”
| |
means the Ministry of Communications and
Information Technology of Romania and any successor thereto, and
any other Romanian governmental or administrative authority that
has the powers to regulate the telecommunications sector in
Romania.
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“Net Interest Expense”
| |
means (for the period of calculation) the
interest charges accrued during such period on the Financial
Debt of the Borrower (including imputed interest on any capital
lease obligations), less the interest income accrued by the
Borrower on its Current Assets.
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“Network”
| |
means the Borrower’s GSM network and (at all
times from and after the date the Borrower acquires the UMTS
License) the Borrower’s UMTS network.
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“NIB”
| |
means Nordic Investment Bank.
|
| |
|
“NIB Loan”
| |
means the aggregate of the Tranche I NIB Loan and
the Tranche II NIB Loan.
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“Offshore Accounts Charge”
| |
means the instrument pursuant to which the
Borrower grants to the Secured Parties and the Working Capital
Lenders a charge over certain roaming revenues in offshore
accounts, for the purpose of securing, inter alia, the
obligations of the Borrower hereunder, which instrument shall be
in form and substance satisfactory to NIB.
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“Operating Shareholders”
| |
means, collectively, (i) the Controlling
Shareholders, (ii) any Controlled Affiliates of the
Controlling Shareholders that own an Economic Interest or a
Controlling Interest in the Borrower from time to time (directly
or indirectly through Controlled Affiliates of such parties or
through a Joint Affiliate) and (iii) ClearWave’s
Majority Shareholder and any Controlled Affiliates of
ClearWave’s Majority Shareholder that own an Economic
Interest or a Controlling Interest in ClearWave from time to
time.
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“Orange Romania”
| |
means Orange Romania S.A., a company organised
and existing under the laws of Romania.
|
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|
“Orange Romania Interconnection
Agreement”
| |
means the agreement between Orange Romania and
the Borrower, dated 12 May 1999, as amended by additional acts
dated 28 May 1999 and 9 October 2000.
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“Permitted High Yield Back to Back Debt”
| |
has the meaning set out in the Share Retention
and Subordination Deed.
|
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“Permitted Liens”
| |
means the Liens referred to in Section 6.03(1)
through (5).
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“Permitted Quasi Equity”
| |
has the meaning set out in the Share Retention
and Subordination Deed.
|
| |
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“Permitted Treasury Instruments”
| |
means investments of the Borrower in:
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(a) investment
grade debt securities; and
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(b) securities
issued by central Romanian governmental or state issuers under
the supervision of the National Bank of Romania (other than any
local, municipal or district bodies or authorities);
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in each case with residual maturity of 90 days or
less, provided that such securities are held by the Borrower
with reputable financial institutions solely for the purpose of
giving temporary employment to the Borrower’s cash
resources.
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“Potential Event of Default”
| |
means any event which, with the giving of notice,
the passage of time or the making of any determination, or any
combination thereof, would become an Event of Default.
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“Project”
| |
means the continued design, construction,
equipping, operation (and placing into operation of), and the
provision of working capital for, the Borrower’s Network
located in Romania as contemplated under the terms of the
Licenses and includes the acquisition of the UMTS License.
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“Project Agreements”
| |
means:
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(a) the
Borrower’s Charter;
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(b) the
Cooperation Agreement;
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(c) the
Licenses;
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(d) the
Orange Romania Interconnection Agreement;
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(e) the
Romtelecom Interconnection Agreement;
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(f) each
Working Capital Facility Agreement;
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(g) each
Hedging Agreement;
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(h) each
agreement or instrument pursuant to which the Borrower incurs
Subordinated Debt; and
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(i) any
other agreement entered into by the Borrower after the date
hereof identified by NIB (following consultation with the
Borrower) as a Project Agreement from time to time.
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“Public Offering”
| |
means, in respect of any person, any offering of
newly issued equity securities of such person where such equity
securities are (i) listed, or to be listed following such
offering, on any internationally recognised stock exchange,
including (in case of the Borrower) the Bucharest stock
exchange, or (ii) sold pursuant to a prospectus under
Canadian securities laws or pursuant to a registration statement
under the United States Securities Act of 1933.
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“Public Secondary Sale”
| |
means, in respect of any person, any offering and
sale by holders of equity securities in such person of any such
equity securities where such equity securities are
(i) listed, or to be listed following such offering, on any
internationally recognised stock exchange, including (in case of
equity securities of the Borrower) the Bucharest stock exchange,
or (ii) sold pursuant to a prospectus under Canadian
securities laws or pursuant to a registration statement under
the United States Securities Act of 1933.
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“Quarter Dates”
| |
means 31 March, 30 June, 30 September and 31
December in any year.
|
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“Quarterly Period”
| |
means each successive period of three calendar
months commencing on the day after a Quarter Date and ending on
the next following Quarter Date.
|
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“RAS”
| |
means accounting standards generally accepted in
Romania including the International Accounting Standards
promulgated by the International Accounting Standards Committee
as adjusted by Order No. 94 of 2001 of the Ministry of
Finance of Romania, consistently applied.
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“Recognised Telecommunications Operator”
| |
has the meaning set out in the Share Retention
and Subordination Deed.
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“Romanian Security Law”
| |
means the law of Romania relating to security
interests in personal property enacted under Title VI of Law
Number 99/1999 as the same may be supplemented, amended,
modified, republished or re-enacted from time to time.
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“Romtelecom”
| |
means S.N.T. Romtelecom S.A., the national
telecommunications service provider in Romania.
|
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“Romtelecom Interconnection Agreement”
| |
means the interconnection agreement dated
August 6, 1997 entered into between the Borrower and
Romtelecom, in respect of the interconnection between the
Borrower’s Network and Romtelecom’s network as amended
by additional acts dated 12 March 1998, 2 May 1999 and 30 July
1999, and any ministerial decrees, ordinances or orders issued
after the date hereof, in respect of such interconnection in
form and substance acceptable to NIB.
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“Secured Parties”
| |
means the Senior Lenders and each person which is
a Hedge Provider from time to time.
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“Security”
| |
means the security created or agreed to be
created pursuant to the Security Documents to secure, inter
alia, all amounts owing to the Senior Lenders under the
Financing Agreements.
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“Security Agreement Over Accounts”
| |
means the Security Agreement Over Accounts
between the Secured Parties, the Borrower and such Working
Capital Lenders, Collection Banks and Claims Agents (in each
case as defined therein) as may be parties thereto in such
capacity from time to time in respect of the Borrower Accounts
held with banks in Romania, securing, inter alia, the
obligations of the Borrower hereunder, which agreement shall be
in form and substance satisfactory to NIB.
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“Security Agreement Over Movables”
| |
means the instrument pursuant to which the
Borrower grants to the Secured Parties a security interest in
all of the Borrower’s tangible and intangible movable
assets including, without limitation, the Borrower’s
enterprise and all of the Borrower’s present and future
intangible assets and contractual rights and claims (including
without limitation accounts receivable) and tangible movable
assets (including without limitation all of the Borrower’s
equipment, machinery, raw materials, inventory and work in
progress) together with the annexes, notices and
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acknowledgements and consents in the forms
attached thereto, which instrument shall be in form and
substance satisfactory to NIB.
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“Security Agreement Over Shares”
| |
means the instrument pursuant to which the
Shareholders grant a security interest in favour of the Secured
Parties over issued and outstanding shares of the Borrower, and
any supplements, amendments, or additional security instruments
entered into pursuant thereto, together with the original share
certificates representing all such shares, for the purpose of
securing, inter alia, the obligations of the Borrower hereunder,
which instrument shall be in form and substance satisfactory to
NIB.
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“Security Documents”
| |
means:
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(a) the
Security Agreement Over Movables;
|
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(b) the
Insurance Assignment;
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(c) the
Security Agreement Over Shares;
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(d) the
Security Agreement Over Accounts and any other instrument
pursuant to which the Borrower grants to the Secured Parties and
Working Capital Lenders a security interest in the Borrower
Accounts;
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(e) each
Immovables Hypothec;
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(f) the
Offshore Accounts Charge;
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(g) the
Assignment of Receivables;
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(h) any
Assignment of Subordinated Debt; and
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(i) any
other present or future agreement or instrument to which the
Borrower or any Shareholder is a party, confirming or evidencing
any security interest, guarantee, covenant, indemnification or
other assurance against financial loss in respect of all or any
of the Borrower’s obligations hereunder or under any
Financing Agreement whether now existing or arising in the
future and whether fixed, prospective or contingent.
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“Security Sharing and Intercreditor
Agreement”
| |
means the security sharing and intercreditor
agreement dated on or about the date hereof entered into between
the Senior Lenders and any Hedge Provider and Working Capital
Lender which may become party to it from time to time, and any
other party thereto from time to time providing for, inter alia,
sharing of the Security and any other security interest created
in favour of the parties thereto (from time to time) to secure
any amounts owing by the Borrower to such parties.
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“Senior Debt to EBITDA Ratio”
| |
means, for any period of calculation, the result
of the aggregate principal amount of the Senior Loans
outstanding as of the last day of such period divided by EBITDA
for such period.
|
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“Senior Debt Service”
| |
means the aggregate, for any period of
calculation, of all scheduled repayments of principal and all
interest and fees (other than fees payable in connection with
the entering into of the Senior Loan Agreements) paid or due and
owing in such period under or in respect of the Senior Loans.
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“Senior Debt Service Coverage Ratio”
| |
means the result of Free Cash Flow in any period
of calculation divided by Senior Debt Service for such period of
calculation.
|
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“Senior Lenders”
| |
means, collectively, NIB, EBRD and EDC.
|
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“Senior Loans”
| |
means, collectively, the NIB Loan, the EBRD Loan
and the EDC Loan or, as the context may require, the aggregate
principal amount thereof from time to time outstanding.
|
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“Senior Loan Agreements”
| |
means, collectively, this Agreement, the EBRD
Loan Agreement and the EDC Loan Agreement.
|
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“Share Retention and Subordination Deed”
| |
means the agreement between the Borrower, the
Operating Shareholders and the Senior Lenders pursuant to which
the Operating Shareholders agree, inter alia, (i) to
certain restrictions on their ability to effect changes in their
equity interest in, or transfer shares in the capital of, the
Borrower without the prior written consent of the Senior
Lenders, and (ii) to subordinate the payment of any amounts
payable by the Borrower to them to all amounts payable by the
Borrower to the Senior Lenders, which agreement shall be in form
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| |
and substance satisfactory to NIB.
|
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“Shareholders’ Equity”
| |
means the aggregate of (i) the
shareholders’ equity of the Borrower, calculated in
accordance with Generally Accepted Accounting Principles,
(excluding, for the purposes of such calculation comprehensive
income adjustments to the shareholders’ equity of the
Borrower made in accordance with Financial Accounting Standard
133 and amendments thereto as issued from time to time by the
Financial Accounting Standards Board of the United States), and
(ii) the principal amount of all Permitted Quasi Equity.
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“Shareholder Power of Attorney”
| |
means the power of attorney granted by each
Shareholder to the Senior Lenders in respect of the Financing
Agreements, in form and substance satisfactory to the Senior
Lenders.
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|
“Shareholders”
| |
means Vodafone Europe, ClearWave Holdings, Deraso
Holding B.V., Dargate Limited, Devaynes Holdings Limited, ▇▇▇▇▇
Enterprises Limited and Commercial Capital Emerging Markets
Limited, their successors and permitted assigns and any other
person at any time owning shares in the capital of the Borrower.
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“Sites”
| |
means all land or buildings in Romania over which
the Borrower holds, as the case may be, an ownership interest,
freehold interest, leasehold interest, easement, concession,
right of use or other right or interest in connection with the
operation of the Borrower’s Network.
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“Site Agreement”
| |
means each lease agreement, easement agreement,
concession or use agreement, or other contract entered into by
the Borrower creating the right of the Borrower to occupy and
utilise a Site for the purpose of operation of the
Borrower’s Network.
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“Statutes”
| |
means the statutes of the Borrower dated
November 22, 1996, as amended by additional acts approved
prior to the date hereof and registered in the Trade Register in
Bucharest, Romania, among the Shareholders, regarding, inter
alia, the establishment and shareholdings of the Borrower.
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“Subordinated Debt”
| |
means Permitted High Yield Back to Back Debt or
Permitted Quasi Equity.
|
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“Subsidiary”
| |
means, with respect to any entity, any other
entity over 50% of whose capital is owned, directly or
indirectly, by such entity or which is otherwise effectively
controlled by such entity.
|
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“Telerate Page 3750”
| |
means the display of London Interbank offered
rates of major banks for deposits in Dollars designated as page
3750 on the Dow ▇▇▇▇▇ Telerate Service (or such other page as
may replace page 3750 on the Dow ▇▇▇▇▇ Telerate Service for the
purpose of displaying London Interbank offered rates for
deposits in Dollars).
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“TIWC”
| |
means Telesystem International Wireless
Corporation N.V., a corporation organised and existing under the
laws of the Netherlands.
|
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“Total Financial Debt”
| |
means, at any time, the aggregate of all amounts
of principal due and owing at such time under or in respect of
(i) the Senior Loans, (ii) Permitted High Yield Back
to Back Debt of the Borrower and (iii) any other Financial
Debt of the Borrower other than the Existing Loans Indebtedness.
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“Total Financial Debt Service”
| |
means the aggregate (for any period of
calculation) of all scheduled repayments of principal and all
interest and fees (other than the fees payable in connection
with the entering into of the Senior Loan Agreements) paid or
due and owing in such period under or in respect of the
Borrower’s Total Financial Debt.
|
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“Total Financial Debt Service
| |
means, for any period of calculation, the
Coverage Ratio” result of Free Cash Flow for such period
divided by Total Financial Debt Service for such period.
|
| |
|
“Total Financial Debt to EBITDA Ratio”
| |
means, for any period of calculation, the result
of the aggregate principal amount of the Total Financial Debt
outstanding as of the last day of such period divided by EBITDA
for such period.
|
| |
|
“Total Financial Debt to Equity Ratio”
| |
means, at any time, the result of Total Financial
Debt at such time, divided by Shareholders’ Equity at such
time.
|
| |
|
“Tranche I Commitment Period”
| |
means the period commencing on the date of this
Agreement and terminating on the earlier of (i) the date
which is 90 days after the date of this Agreement and (ii)
the date the obligation of NIB
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|
| |
to make Disbursements hereunder terminates in
accordance with the terms of this Agreement.
|
| |
|
“Tranche I EBRD Loan”
| |
means the maximum principal amount of the loan
provided by EBRD to the Borrower pursuant to
Section 3.01(1) of the EBRD Loan Agreement or, as the
context may require, the principal amount thereof from time to
time outstanding.
|
| |
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“Tranche I EDC Loan”
| |
means the maximum principal amount of the loan
provided by EDC to the Borrower pursuant to Section 3.01(1)
of the EDC Loan Agreement or, as the context may require, the
principal amount thereof from time to time outstanding.
|
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|
“Tranche I Loan”
| |
means the aggregate of the Tranche I NIB Loan,
the Tranche I EBRD Loan and the Tranche I EDC Loan.
|
| |
|
“Tranche I NIB Loan”
| |
means the maximum principal amount of the loan
provided for in Section 3.01(1) or, as the context may
require, the principal amount thereof from time to time
outstanding.
|
| |
|
“Tranche II Commitment Period”
| |
means the period commencing on the date of this
Agreement and terminating on the earlier of
(i) December 31, 2003 and (ii) the date the
obligation of NIB to make Disbursements hereunder terminates in
accordance with the terms of this Agreement.
|
| |
|
“Tranche II EBRD Loan”
| |
means the maximum principal amount of the loan
provided by EBRD to the Borrower pursuant to
Section 3.01(2) of the EBRD Loan Agreement or, as the
context may require, the principal amount thereof from time to
time outstanding.
|
| |
|
“Tranche II EDC Loan”
| |
means the maximum principal amount of the loan
provided by EDC to the Borrower pursuant to Section 3.01(2)
of the EDC Loan Agreement or, as the context may require, the
principal amount thereof from time to time outstanding.
|
| |
|
“Tranche II Loan”
| |
means the aggregate of the Tranche II NIB Loan,
the Tranche II EBRD Loan and the Tranche II EDC Loan.
|
| |
|
“Tranche II NIB Loan”
| |
means the maximum principal amount of the loan
provided for in Section 3.01(2) or, as the context may
require, the principal amount thereof from
|
| | |
|
| |
time to time outstanding.
|
| |
|
“UMTS”
| |
means the universal mobile telecommunications
system known as International Telecommunications Union standard
IMT-2000.
|
| |
|
“UMTS License”
| |
means the license for the provision in Romania of
UMTS telecommunications services that may be granted to the
Borrower by the Ministry, as such license may be amended,
supplemented, restated, novated or assigned from time to time.
|
| |
|
“UMTS License Compliance”
| |
occurs upon achievement by the Borrower of all
material terms and conditions of the UMTS License.
|
| |
|
“UMTS License Costs”
| |
means license fees and other expenses paid or
payable by the Borrower in connection with the acquisition of
the UMTS License.
|
| |
|
“USD Equivalent Amount”
| |
means, in respect of any amount denominated in
any currency, the equivalent, in Dollars, of such amount
calculated by reference to the rate of exchange available to NIB
on the international foreign exchange market (and notified to
the Borrower) two (2) Business Days prior to the date of
determination.
|
| |
|
“Vodafone”
| |
means at any time
|
| |
|
| |
(i) any
Controlled Affiliate of Vodafone Group Plc that owns directly an
Economic Interest or a Controlling Interest in the Borrower or
in a Joint Affiliate, or
|
| |
|
| |
(ii) if
the combined Economic Interest or Controlling Interest in the
Borrower owned (directly or indirectly) by Vodafone Group Plc or
one or more Controlled Affiliates of Vodafone Group Plc or a
Joint Affiliate is greater than the Economic Interest and
Controlling Interest of ClearWave in the Borrower at such time,
Vodafone Group Plc and any Controlled Affiliate of Vodafone
Group Plc that owns directly an Economic Interest or a
Controlling Interest in the Borrower or in a Joint Affiliate.
|
| |
|
“Vodafone Europe”
| |
means Vodafone Europe B.V., a corporation
organized and existing under the laws of the
|
| | |
|
| |
Netherlands.
|
| |
|
“Vodafone Technical”
| |
means Vodafone Technical Services, a corporation
organized and existing under the laws of the State of California
in the United States of America, and an Affiliate of Vodafone.
|
| |
|
“Working Capital”
| |
means the amount by which Current Assets
(excluding Cash and Cash Equivalents, deferred and future income
tax assets, income tax receivables/recoverables and assets
arising out of derivative financial instruments) exceed Current
Liabilities (excluding Financial Debt, accrued income taxes
payable, deferred or future income tax liabilities, accrued
interest payable, accrued dividends payable, other accruals with
respect to Distributions and liabilities arising out of
derivative financial instruments).
|
| |
|
“Working Capital Facility”
| |
means any working capital facility provided by a
Working Capital Lender to the Borrower on terms and conditions
acceptable to NIB acting reasonably, including without
limitation the facilities provided under (i) the ABN
Working Capital Agreement and (ii) the Citibank Working
Capital Agreement provided that the available limits under all
such Working Capital Facilities shall not exceed in the
aggregate $20 million.
|
| |
|
“Working Capital Facility Agreement”
| |
means any agreement entered into between the
Borrower and a Working Capital Lender for provision of a Working
Capital Facility.
|
| |
|
“Working Capital Lender”
| |
means any provider (which in each case shall be a
financial institution that is not an Affiliate of the Borrower
or any Shareholder) of a Working Capital Facility acceptable to
NIB pursuant to documentation to be provided by the Borrower to
NIB and containing terms and conditions consistent with this
Agreement and the other Financing Agreements.
|
Section 1.02 Interpretation
| |
| (a) |
In this Agreement, unless the
context otherwise requires, words denoting the singular include
the plural and vice versa, words denoting persons include
corporations, partnerships, companies, firms and other legal
persons and references to a person includes its successors and
permitted assigns.
|
| |
| (b) |
In this Agreement, a reference to a specified
Article, Section, Schedule or Exhibit shall be construed as a
reference to that specified Article or Section of, or Schedule
or Exhibit to, this Agreement.
|
| |
| (c) |
In this Agreement, a reference to an agreement
shall be construed as a reference to such agreement as it may be
amended, varied, supplemented, novated or assigned from time to
time.
|
| |
| (d) |
In this Agreement, the headings and the Table of
Contents are inserted for convenience of reference only and
shall not affect the interpretation of this Agreement.
|
| |
| (e) |
In this Agreement, “control”
(including, with correlative meanings, the terms
“controlled by” and “under common control
with”), as used with respect to any person, means the
possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of such
person, whether through the ownership of voting shares, by
contract or otherwise.
|
| |
| (f) |
In this Agreement, “continuing” in
relation to an Event of Default, shall be construed as a
reference to an Event of Default which has not been waived in
accordance with the terms hereof and, in relation to a Potential
Event of Default, one which has not been remedied within the
relevant grace period or waived in accordance with the terms
hereof.
|
| |
| (g) |
In this Agreement 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
succeeding calendar month save that:
|
| | |
| | (i) |
if any such numerically corresponding day is not
a Business Day, such period shall end on the immediately
succeeding Business Day to occur in that next succeeding
calendar month or, if none, it shall end on the immediately
preceding Business Day; and
|
| | |
| | (ii) |
if there is no numerically corresponding day in
that next succeeding calendar month, that period shall end on
the last Business Day in that next succeeding calendar month;
|
| |
| |
(and references to “months” shall be
construed accordingly).
|
| |
| (h) |
In this Agreement, a “successor” shall
be construed so as to include an assignee or successor in title
of such party and any person who under the laws of its
jurisdiction of incorporation or domicile has assumed the rights
and obligations of such party under this Agreement or to which,
under such laws, such rights and obligations have been
transferred.
|
| |
| (i) |
In this Agreement, “tax” shall be
construed so as to include any tax, levy, impost, duty or other
charge of a similar nature (including any penalty or interest
payable in connection with any failure to pay or any delay in
paying any of the same).
|
| |
| (j) |
In this Agreement, “VAT” shall be
construed as a reference to value added tax including any
similar tax which may be imposed in place thereof from time to
time.
|
| |
| (k) |
In this Agreement, “winding-up”,
“dissolution” or “administration” of a
company or corporation shall be construed so as to include any
equivalent or analogous proceedings under the law of the
jurisdiction in which such company or corporation is
incorporated or any jurisdiction in which such company or
corporation carries on business including the seeking of
liquidation, winding-up, reorganization, dissolution,
administration, arrangement, adjustment, protection or relief of
debtors.
|
| |
| (l) |
In this Agreement, a “wholly-owned
Subsidiary” of a company or corporation shall be construed
as a reference to any company or corporation which has no other
shareholders or members except that other company or corporation
and that other company’s or corporation’s wholly-owned
subsidiaries or persons acting on behalf of that other company
or corporation or its wholly-owned subsidiaries.
|
| |
| (m) |
In this Agreement, a statute or treaty shall be
construed as a reference to such statute or treaty as the same
may have been, or may from time to time be, amended or, in the
case of a statute, re-enacted.
|
| |
| (n) |
In this Agreement, a “holding company”
of a company or a corporation shall be construed as a reference
to any company or corporation of which the first-mentioned
company or corporation is a subsidiary.
|
ARTICLE II — REPRESENTATIONS AND
WARRANTIES
Section 2.01 Representations
Regarding the Project
The Borrower represents and warrants as of the
date hereof that the forecasts, projections and calculations in
the Base Case Financial Forecast have been prepared by the
Borrower in good faith giving due and careful consideration to
all relevant factors and based on assumptions which were
reasonable at the time that such forecasts, projections and
calculations were prepared, up to and including the date of this
Agreement, and there has been nothing since the date such
forecasts, projections and calculations were prepared that would
make them or the information contained in the Base Case
Financial Forecast unreasonable or misleading.
Section 2.02 Representations
Regarding the Borrower
The Borrower represents and warrants as follows:
| |
| (a) |
Incorporation. The
Borrower is a joint stock company duly organized and validly
existing under the laws of Romania and registered with all
relevant registration bodies in Romania and has full power to
own the properties which it owns or will own for the purposes of
the Project and to carry out the businesses which it carries out
or will carry out for the purposes of the Project.
|
| |
| (b) |
Conduct of Business and Subsidiaries.
The Borrower conducts no business
other than the implementation and operation of the Project and
has no Subsidiaries.
|
| |
| (c) |
Share Capital. The
Borrower has an authorised and issued capital of 200,279,767
shares with a nominal value of 10,000 Lei each. The following is
a list of all
|
| |
|
shareholders in the Borrower, with their
respective shareholdings, as of the date of this Agreement:
|
| | | | | | | | | |
| | |
| | Borrower’s Shareholding Structure |
| |
|
| | Percentage of | | |
| | Shareholding | | Number of Shares |
| |
| |
|
|
ClearWave Holdings
| | | 63.541 | % | | | 127,260,860 | |
|
Vodafone Europe
| | | 20.1 | % | | | 40,256,233 | |
|
Deraso Holding B.V
| | | 14.4 | % | | | 28,840,286 | |
|
Dargate Limited
| | | 0.9 | % | | | 1,802,516 | |
|
Devaynes Holdings Limited
| | | 0.526 | % | | | 1,052,631 | |
|
▇▇▇▇▇ Enterprises Limited
| | | 0.276 | % | | | 552,632 | |
|
Commercial Capital Emerging Markets Limited
| | | 0.257 | % | | | 514,609 | |
| | | |
| | | |
| |
|
Total
| | | 100.0 | % | | | 200,279,767 | |
| | | |
| | | |
| |
| |
| |
All of the shares listed above have been validly
issued and are fully paid. The only issued shares of the
Borrower are registered shares. There are no options, warrants
or instruments convertible into shares or other agreements
relating to the existing shares of the Borrower or for the
issuance of additional shares of any class or description of the
Borrower, except for any stock option plan identified in
Section 6.06. No person has any right (other than as a
shareholder) to share in the profits of the Borrower.
|
| |
| (d) |
Officers. As of the
date of this Agreement, the Chairman of the Board and Chief
Executive Officer of the Borrower is ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, the
President and Chief Operating Officer of the Borrower is ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, the Senior Vice President and Chief Financial
Officer of the Borrower is ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and the Vice
President of Finance and Logistics of the Borrower is ▇▇▇▇▇
▇▇▇▇▇▇▇▇.
|
| |
| (e) |
Financial Statements.
The balance sheet of the Borrower as
at December 31, 2001 and the related income statement, cash flow
statement and statement of changes in equity of the Borrower for
the Financial Year ending on that date, and the management
report thereon, certified by the Auditors, present a true and
fair view of the financial condition of the Borrower as of the
date of such balance sheet and for the period covered by such
income statement, cash flow statement and statement of
shareholders’ equity and were prepared in accordance with
Generally Accepted Accounting Principles. The Borrower had, as
of the date of such balance sheet, no material contingent
obligations, liabilities for taxes or unusual forward or long
term commitments not disclosed by, or reserved against, in such
balance sheet. Since the date of such balance sheet, the
Borrower has not suffered any material adverse change in its
business, operations or financial condition, incurred any
substantial or unusual loss or liability or undertaken or agreed
to undertake any substantial or unusual obligation except under
the Financing Agreements, Project Agreements and other Material
Agreements.
|
| |
| (f) |
Title to Assets. The
Borrower has good and marketable legal title to all moveable
property of every kind whatsoever to which the Security
Agreement Over Movables
|
| |
|
applies. The Borrower does not own any immovable
property. The Borrower’s assets are not subject to any Lien
and the Borrower is not subject to any contract, arrangement or
law, whether conditional or unconditional, pursuant to which any
Lien on its assets may be created, except for Permitted Liens.
|
| |
| (g) |
Material Agreements.
As of the date hereof, the Borrower is
not a party to, or committed to enter into, any agreement, other
than the Financing Agreements, the Project Agreements, the
Existing Loan Agreements or any other of the Material Agreements:
|
| | |
| | (1) |
that involves the payment of more than $2,500,000
(or the equivalent thereof in other currencies) per year or in
the aggregate more than $5,000,000 (or the equivalent thereof in
other currencies) over the term of such agreement; or
|
| |
| | (2) |
that is material to the Borrower’s ability
to carry on its business as presently conducted, to carry out
the Project or to satisfy its obligations under this Agreement.
|
| |
| (h) |
Compliance with Law.
The Borrower is not materially in
violation of any Law presently in effect. To the best of the
Borrower’s knowledge, and except as already disclosed in
writing to NIB, no Law has been proposed or is expected which
may have a material adverse effect on the Project, the
Borrower’s business, operations or financial condition or
the ability of the Borrower to perform any of its obligations
under any Financing Agreement or Project Agreement. All tax
returns and reports of the Borrower required by law to be filed
have been duly filed and all tax assessments, fees and other
governmental charges upon the Borrower, its properties and its
income, which are due and payable, have been paid, other than
those currently payable without penalty or interest. Neither the
Borrower nor any of its officers, directors or authorised
employees, agents or representatives has paid, promised to pay
or offered to pay, or authorised the payment of, any commission,
bribe, pay-off or kickback related to the Project or the
Borrower’s business that violates any applicable Law or
entered into any agreement pursuant to which any such
commission, bribe, pay-off or kickback may or will at any time
be paid.
|
| |
| (i) |
No Default. The
Borrower is not in default under any Material Agreement or other
material obligation or duty by which it or any of its properties
or assets is bound, and there exists no Event of Default and no
Potential Event of Default.
|
| |
| (j) |
Environmental Compliance.
The Borrower and its businesses,
operations, assets, equipment, property, leaseholds and other
facilities are in compliance with the provisions of all
applicable material environmental, health and safety laws. The
Borrower has been issued with, or has applied for, all material
required permits, licenses, certificates and approvals relating
to, and has received no material complaint, order, directive,
claim, citation or notice from any governmental authority or
other person with respect to, air emissions, discharges to
surface water or ground water, noise emissions, solid or liquid
waste disposal, the use, generation, storage, transportation or
disposal of toxic or hazardous substances or wastes or other
environmental, health or safety matters. To the knowledge of the
Borrower (having made all reasonable enquiries), there is no
contamination on any Site and each is suitable for the
implementation of the Project.
|
| |
| (k) |
Litigation. The
Borrower is not engaged in, or, to the best of its knowledge,
threatened by, any litigation, arbitration or administrative
proceeding, the outcome of which might have a material adverse
effect on the Project, the Borrower’s business, operations
or financial condition or the ability of the Borrower to perform
any of its obligations under any Financing Agreement or Project
Agreement.
|
| |
| (l) |
Project. The
Borrower has obtained all material governmental or regulatory
licenses, approvals, consents, notarizations, permits, rulings,
filings or registrations at any local, regional, municipal,
republic or other levels of government required for the
implementation and completion of the Project and the carrying on
of the business of the Borrower as presently conducted or as
contemplated thereby, and all such licenses, approvals,
consents, filings, permits, rulings, notarizations and
registrations were made or obtained and remain valid as at the
date hereof and the Borrower has no reason to believe at the
date hereof that such licenses, approvals, consents, permits,
rulings, notarizations, filings or registrations will be
rescinded, cancelled or suspended.
|
| |
| (m) |
Head Office. The
Borrower’s head office and the office at which it keeps its
records concerning the Financing Agreements, Project Agreements
and other Material Agreements is at Bucharest, Romania.
|
| |
| (n) |
Insurance. The
factual information contained in all written information
supplied by or at the direction of the Borrower to its insurers
(or otherwise made available to such insurers) in connection
with the Borrower’s business and the Project, as updated
from time to time, to the best of the Borrower’s knowledge
after due inquiry, is true and accurate in all material respects
as of the date hereof and the Borrower is not aware of any facts
or circumstances that have not been disclosed to those insurers
that might reasonably be expected, if so disclosed, to adversely
affect the nature or extent of the coverage to be provided under
the insurance.
|
Section 2.03 Representations
Regarding the Agreements
The Borrower represents and warrants as follows:
| |
| (a) |
Corporate Power. The
Borrower has the corporate power to carry on its business, own
its property and assets and to enter into and perform the
Financing Agreements, Project Agreements and other Material
Agreements to which it is a party.
|
| |
| (b) |
Due Authorization; Enforceability; No
Conflict. The Financing Agreements and
Project Agreements to which the Borrower is a party have been
duly authorised by the Borrower. This Agreement has been duly
executed by the Borrower and this Agreement constitutes, and the
other Financing Agreements and Project Agreements to which the
Borrower is a party, as or when executed and delivered,
constitute or will constitute valid and legally binding
obligations of the Borrower, enforceable in accordance with
their respective terms. The making of the Financing Agreements,
Project Agreements and other Material Agreements and the
compliance with the terms thereof:
|
| | |
| | (1) |
will not result in the violation of the
Borrower’s Charter or any provision contained in any Law
applicable to the Borrower;
|
| | |
| | (2) |
will not conflict with or result in the breach of
any provision of, or require any consent under, or result in the
imposition of any Lien under, any agreement or instrument to
which the Borrower is a party or by which the Borrower or any of
its assets is bound; and
|
| |
| | (3) |
will not constitute a default or an event which,
with the giving of notice, the passage of time or the making of
any determination, or any combination thereof, would constitute
a default under any such agreement or instrument.
|
| |
| (c) |
Governmental Approvals.
No governmental licenses, approvals,
consents, rulings, permits, filings or registrations are
required for the due execution, delivery or performance by the
Borrower of any Financing Agreement, Project Agreement, or the
validity or enforceability thereof other than (i) any
licenses, approvals, consents, filings and registrations which
have been made or obtained and remain valid as of the date
hereof, (ii) any licenses, authorizations, consents or
approvals of the National Bank of Romania which the Borrower is
in the process of obtaining, and (iii) any immaterial
licenses, approvals, consents, filings and registrations which
the Borrower is in the process of obtaining and which have been
identified by the Borrower to NIB in writing prior to the date
hereof, and the Borrower has no reason to believe that such
licenses, approvals, consents, filings or registrations will be
rescinded, cancelled or suspended or, in the case of paragraph
(ii) or (iii), not obtained.
|
| |
| (d) |
Ranking. This
Agreement constitutes a direct, unconditional and secured
obligation of the Borrower and the Debt incurred by the Borrower
hereunder ranks and will rank in priority of payment senior to
all other present and future indebtedness of the Borrower other
than (i) the EBRD Loan, the EDC Loan, any Working Capital
Facility and any Debt owed to a Hedge Provider with respect to
which the Debt incurred by the Borrower hereunder ranks at least
pari passu and (ii) at any time prior to the
Existing Loans Repayment Date, the Existing Loans Indebtedness.
|
| |
| (e) |
Security. Each
Security Document will, when executed and delivered, constitute
a valid security interest in and Lien on the collateral covered
by such Security Document, securing payment of all principal,
interest and other amounts payable to the Senior Lenders under
the Financing Agreements and upon registration with the relevant
registries as required under applicable law shall be perfected
and shall rank senior to all other Liens on such collateral
other than Permitted Liens. The Borrower is not a party to any
other security agreement or instrument creating or purporting to
create a Lien on such collateral other than Permitted Liens. The
Security is not subject to avoidance or loss of priority on
liquidation of the Borrower or in bankruptcy, composition or
other insolvency proceedings relating to the Borrower.
|
| |
| (f) |
Project and Material Agreements.
Each of the Project Agreements and
Material Agreements is in full force and effect without
modification from the description thereof set forth in
Section 1.01 (without the application of
Section 1.02(c)). There has occurred no breach, and no
event which with the giving of notice, the passage of time or
the making of any determination, or any combination thereof,
would constitute a breach of any of the Project Agreements or
Material Agreements.
|
| |
| (g) |
Taxes. There is no
stamp or other tax or charge of Romania or any political
subdivision or taxing authority thereof or of any taxing
authority, federation or
|
| |
|
association of which Romania is a member to be
imposed on or by virtue of the execution, delivery or
performance of any Financing Agreement or necessary to ensure
the legality, validity, enforceability or admissibility in
evidence thereof in Romania other than:
|
| | |
| | (1) |
A registration charge payable in respect of the
security interest granted in the Borrower’s enterprise
under the Security Agreement Over Movables in the Trade Register
in Bucharest;
|
| |
| | (2) |
Registration charges payable in respect of
registrations of the Security in the Electronic Archive;
|
| |
| | (3) |
A legalisation fee payable in respect of the
legalisation of the Financing Agreements;
|
| |
| | (4) |
Fees payable in respect of certification of
translations into Romanian or English of Financing Agreements;
|
| |
| | (5) |
A registration fee payable in respect of
registration of any Immovables Hypothecs in the relevant
immovable registry;
|
| |
| | (6) |
registration charges payable in respect of the
registration of the Security with the Romanian State Office for
Patents and Trade Marks; and
|
| |
| | (7) |
A registration charge payable on each updating of
the Schedules and Annexes to the Security Agreement Over
Movables, the Security Agreement Over Shares, and the Security
Agreement Over Accounts .
|
Section 2.04 Acknowledgement
and Warranty
The Borrower acknowledges that it has made the
representations and warranties contained in Sections 2.01,
2.02 and 2.03 with the intention of inducing NIB to enter into
this Agreement, that the repetition of such representations and
warranties will induce NIB to make Disbursements hereunder, and
that NIB has entered into this Agreement on the basis of, and in
full reliance on, each of such representations and warranties.
The Borrower warrants that it has no knowledge of any additional
facts or matters the omission of which makes any of such
representations and warranties misleading or which would or
might reasonably be expected to affect the judgement of a
prospective lender regarding lending to the Borrower.
ARTICLE III — BANK
LOAN
Section 3.01 Amount and
Currency
Subject to the terms and conditions of this
Agreement, NIB agrees to lend to the Borrower an amount, in
Dollars, not to exceed in the aggregate $35,000,000, consisting
of:
| | |
| | (1) |
the Tranche I NIB Loan in an amount not to exceed
$27,766,666; and
|
| |
| | (2) |
the Tranche II NIB Loan in an amount not to
exceed $7,233,334.
|
Section 3.02 Purpose
| |
| (a) |
The Borrower shall utilize all proceeds from the
Tranche I NIB Loan towards prepayment of the Existing Loans
Indebtedness, and to pay the fees payable by the Borrower in
connection with the Senior Loan Agreements and the
Borrower’s and the Senior Lenders’ costs incurred in
connection with the Senior Loan Agreements and the other
Financing Agreements.
|
| |
| (b) |
The Borrower shall use all proceeds from the
Tranche II NIB Loan towards Capital Expenditures associated with
the Project, (other than in connection with the Borrower’s
UMTS Network) or for the payment of the UMTS License Costs by
the Borrower.
|
| |
| (c) |
As of the date hereof, the total amount of
principal owing under the Existing Loan Agreements is
$211,196,367.47 and the amount of principal owing under each of
the Existing Loan Agreements is:
|
| | | | | |
| Existing Loan Agreement | | Amount |
|
| |
|
|
Existing NIB Loan Agreement
| | $ | 22,676,978.00 | |
|
Existing EBRD Loan Agreement
| | $ | 114,996,138.01 | |
|
Existing EDC Loan Agreement
| | $ | 26,777,699.00 | |
|
Existing EKN Loan Agreement
| | $ | 36,745,551.46 | |
|
Existing Subordinated Loan Agreement
| | $ | 10,000,000.00 | |
Section 3.03 Disbursements
| |
| (a) |
Subject to Section 3.04 and Article IV,
the Tranche I NIB Loan shall be disbursed by NIB in one
Disbursement on a Business Day during the Tranche I Commitment
Period upon request of the Borrower. The Borrower may request
the Disbursement of the Tranche I NIB Loan by submitting to NIB
an original application for such Disbursement, in the form of
Exhibit A and in substance satisfactory to NIB, at least
five (5) Business Days prior to the proposed date of such
Disbursement. Such application shall, unless NIB otherwise
agrees, be irrevocable and binding on the Borrower.
|
| |
| (b) |
Subject to Section 3.04 and Article IV,
the Tranche II NIB Loan shall be disbursed by NIB from time to
time on any Business Day during the Tranche II Commitment Period
in one or more Disbursements upon request of the Borrower. The
Borrower may request a Disbursement of the Tranche II NIB Loan
by submitting to NIB an original application for such
Disbursement, in the form of Exhibit A and in substance
satisfactory to NIB, at least eight (8) Business Days prior
to the proposed date of such Disbursement. Such application
shall, unless NIB otherwise agrees, be irrevocable and binding
on the Borrower.
|
| |
| (c) |
Disbursements (other than a Disbursement of the
entire undisbursed amount of the Tranche I NIB Loan or of the
Tranche II NIB Loan) shall be made in amounts of no less than
$1,000,000 and integral multiples of $200,000.
|
| |
| (d) |
Disbursements shall be made in compliance with
Section 4.01, Section 4.02 and Section 4.03.
|
Section 3.04 Suspension and
Cancellation
| |
| (a) |
From time to time, NIB may, by notice to the
Borrower, suspend or cancel the right of the Borrower to further
Disbursements:
|
| | |
| | (1) |
if no disbursements under the Senior Loan
Agreements have been made by the date which is 90 days
after the date hereof, or such other date as may be agreed by
the parties hereto;
|
| |
| | (2) |
if an Event of Default (or for the purposes of
suspension only, a Potential Event of Default) has occurred and
is continuing; or
|
| |
| | (3) |
if EBRD has suspended or cancelled the right of
the Borrower to further Disbursements (as defined in the EBRD
Loan Agreement) or EDC has suspended or cancelled the right of
the Borrower to further Disbursements (as defined in the EDC
Loan Agreement).
|
| |
| |
Upon the giving of such notice, the right of the
Borrower to further Disbursements shall be suspended or
cancelled as indicated in the notice. The exercise by NIB of the
right of suspension shall not preclude NIB from exercising its
right of cancellation as provided in this Section 3.04, either
for the same or another reason, and shall not limit any other
rights of NIB under the Financing Agreements.
|
| |
| (b) |
The Borrower shall have the right at any time, on
not less than 30 days’ prior notice to NIB, to cancel
in whole or in part any undisbursed portion of the Tranche II
NIB Loan, provided that:
|
| | |
| | (1) |
the Borrower shall cancel at the same time pro
rata undisbursed amounts under the Tranche II EBRD Loan and
Tranche II EDC Loan on the basis of initially applicable amounts
available under the Tranche II EBRD Loan and Tranche II EDC Loan
less any amounts previously cancelled of the initially
applicable Tranche II NIB Loan, Tranche II EBRD Loan and Tranche
II EDC Loan;
|
| |
| | (2) |
the Borrower shall pay to NIB at the same time
all accrued commitment charges on the portion of the Tranche II
NIB Loan to be cancelled and all other amounts due hereunder;
|
| |
| | (3) |
NIB is satisfied, acting reasonably, that
adequate financing will remain available to the Borrower
following such cancellation to enable the Borrower to complete
the Project; and
|
| |
| | (4) |
in the case of partial cancellations of
undisbursed portions of the Tranche II NIB Loan, the Tranche II
EBRD Loan and the Tranche II
|
| | |
| | |
EDC Loan such cancellations shall be in an
aggregate amount of $2,000,000, and integral multiples of
$1,000,000 thereafter.
|
| |
| |
Any such notice of cancellation by the Borrower
shall be irrevocable and binding on the Borrower. Amounts of the
Tranche II NIB Loan which are cancelled by the Borrower may not
be reinstated.
|
| |
| (c) |
The Borrower shall pay to NIB on the date of
cancellation a cancellation fee of one eighth of one per cent
(0.125%) of the principal amount of the NIB Loan to be
cancelled. On termination of the Tranche I Commitment Period,
the Borrower shall be deemed to have cancelled any then
undisbursed portion of the NIB Loan and shall pay to NIB on the
date of such termination the cancellation fee specified above.
On termination of the Tranche II Commitment Period, the Borrower
shall be deemed to have cancelled any then undisbursed portion
of the Tranche II NIB Loan and shall pay to NIB on the date of
such termination the cancellation fee specified above.
|
Section 3.05 Charges and
Commissions
| |
| (a) |
The Borrower shall pay to NIB during the Tranche
I Commitment Period a commitment charge at the rate of one-half
of one percent (0.5%) per annum on so much of the Tranche I NIB
Loan as has not, from time to time, been disbursed to the
Borrower or cancelled. The Borrower shall pay to NIB during the
Tranche II Commitment Period a commitment charge at the rate of
one percent (1%) per annum on so much of the Tranche II NIB Loan
as has not, from time to time, been disbursed to the Borrower or
cancelled. The commitment charges on the Tranche I NIB Loan and
the Tranche II NIB Loan shall accrue from day to day, from the
date of this Agreement. The commitment charges shall be
calculated on the basis of the actual number of days elapsed in
the relevant period and a 360-day year and shall be due and
payable in arrears on each Interest Payment Date (even though no
interest may be payable on such date), or such earlier date of
cancellation as may be requested by NIB or the Borrower pursuant
to Section 3.04.
|
| |
| (b) |
The charges and commissions referred to in this
Section 3.05 are exclusive of any value added or other tax
which might be chargeable in connection with such charges or
commissions. If any such value added or other tax becomes
chargeable, the Borrower shall pay such value added or other tax
to NIB at the same time that the relevant charge or commission
becomes due and payable.
|
Section 3.06 Interest
| |
| (a) |
Except as provided in this Section 3.06 the
Borrower shall pay interest on the principal amount of each
Disbursement of the NIB Loan from time to time outstanding
during each Interest Period for such Disbursement at a rate
equal to the sum of the Margin and LIBOR for such Interest
Period.
|
| | |
| | (1) |
accrue from and including the first day of an
Interest Period to but excluding the last day of such Interest
Period;
|
| | |
| | (2) |
be calculated on the basis of the actual number
of days elapsed and a 360-day year; and
|
| |
| | (3) |
be due and payable on the Interest Payment Date
which is the last day of the relevant Interest Period.
|
| |
| (c) |
On each Interest Determination Date, NIB shall
determine the interest rate(s) applicable during the relevant
Interest Period and promptly give notice thereof to the
Borrower. Each determination by NIB of the interest rate
applicable to any portion of the NIB Loan shall be final,
conclusive and binding upon the Borrower unless shown by the
Borrower to the satisfaction of NIB that any such determination
has involved clerical error.
|
| |
| (d) |
On December 31, 2003 and on each Quarter
Date thereafter (each such date, the “Margin Determination
Date”) the Margin under this Section 3.06 for the
Interest Period following such Margin Determination Date shall
be adjusted such that it equals the “Adjusted Margin”
identified in the table below if the Total Financial Debt to
EBITDA Ratio, calculated as of the Margin Determination Date by
reference to the Quarterly Period ending on the Margin
Determination Date and the preceding 3 Quarterly Periods, is the
ratio identified next to such Adjusted Margin in the table below:
|
| | | | | |
| Total Financial Debt to EBITDA Ratio | | Adjusted Margin |
|
| |
|
|
greater than 2.00
| | | 3.50 | % |
|
greater than 1.50 but less than or equal to 2.00
| | | 3.25 | % |
|
greater than 1.00 but less than or equal to 1.50
| | | 3.00 | % |
|
equal to or less than 1.00
| | | 2.50 | % |
| |
| |
provided that if the Total Financial Debt Service
Coverage Ratio of the Borrower calculated by reference to the
Quarterly Period ending on the Margin Determination Date and the
preceding 3 Quarterly Periods:
|
| | |
| | (i) |
falls below 1.40, the Margin for the Interest
Period next following the Margin Determination Date shall be the
greater of the Margin calculated in accordance with the
preceding paragraph and 3.25%; and
|
| | |
| | (ii) |
falls below 1.25, the Margin for the Interest
Period next following the Margin Determination Date shall be the
greater of the Margin calculated in accordance with the
preceding paragraph and 4.00%.
|
Section 3.07 Default
Interest
| |
| (a) |
If the Borrower fails to pay when due any amount
payable by it under this Agreement, the overdue amount shall
bear interest at a rate equal to the sum of:
|
| | |
| | (1) |
2.0% per annum;
|
| |
| | (2) |
the Margin applicable on the first day of the
Default Interest Period; and
|
| | |
| | (3) |
the interest rate per annum offered in the London
interbank market on the date two Business Days prior to the
first day of the relevant Default Interest Period (or, at
NIB’s option, on the first day of such Default Interest
Period) for a deposit in Dollars of an amount comparable to the
overdue amount for a period equal to the relevant Default
Interest Period or, if NIB determines that deposits in the Loan
Currency are not being offered in the London interbank market,
in such amounts or for such period, the cost to NIB (expressed
as a rate per annum) of funding the overdue amount from whatever
sources it selects.
|
| |
| (b) |
Default interest shall:
|
| | |
| | (1) |
accrue from day to day from the due date to the
date of actual payment, after as well as before judgement, if
any;
|
| |
| | (2) |
be calculated on the basis of the actual number
of days elapsed and a 360-day year;
|
| |
| | (3) |
be compounded at the end of each Default Interest
Period; and
|
| |
| | (4) |
be due and payable forthwith upon demand.
|
| |
| (c) |
Each determination by NIB of the interest rates
applicable to overdue amounts and of Default Interest Periods
shall be final, conclusive and binding upon the Borrower unless
shown by the Borrower to the satisfaction of NIB that any such
determination has involved clerical error.
|
Section 3.08 Repayment
| |
| (a) |
The Borrower shall repay the NIB Loan on the
following dates and in the following amounts (and the percentage
to be repaid identified in the table below in each case shall be
the percentage of the maximum amount of the NIB Loan disbursed
to the Borrower hereunder):
|
| | | | | |
| | Percentage of |
| | NIB Loan |
| Date Payment Due | | to be repaid |
|
| |
|
|
14 January 2004
| | | 2.5 | % |
|
14 April 2004
| | | 2.5 | % |
|
14 July 2004
| | | 2.5 | % |
|
14 October 2004
| | | 2.5 | % |
|
14 January 2005
| | | 3.75 | % |
|
14 April 2005
| | | 3.75 | % |
|
14 July 2005
| | | 3.75 | % |
|
14 October 2005
| | | 3.75 | % |
|
14 January 2006
| | | 5 | % |
|
14 April 2006
| | | 5 | % |
|
14 July 2006
| | | 5 | % |
|
14 October 2006
| | | 5 | % |
|
14 January 2007
| | | 6.25 | % |
|
14 April 2007
| | | 6.25 | % |
|
14 July 2007
| | | 6.25 | % |
|
14 October 2007
| | | 6.25 | % |
|
14 January 2008
| | | 7.5 | % |
|
14 April 2008
| | | 7.5 | % |
|
14 July 2008
| | | 7.5 | % |
|
14 October 2008
| | | 7.5 | % |
| | | |
| |
|
Total
| | | 100.0 | % |
| | | |
| |
| |
| (b) |
From time to time while the NIB Loan is being
disbursed, Disbursements shall be allocated by NIB for repayment
on each of the dates set forth above in amounts which are pro
rata to the amounts of the respective installments of the
NIB Loan set forth above opposite those dates (with NIB
adjusting those allocations as necessary so as to achieve whole
numbers in each case).
|
| |
| (c) |
The dates for payment of principal of the NIB
Loan are intended to coincide with Interest Payment Dates. If
any Interest Payment Date is affected by the proviso to the
definition of “Interest Payment Date”, then the
corresponding date for payment of principal shall be changed to
coincide with such Interest Payment Date.
|
Section 3.09 Mandatory
Prepayment
| |
| (a) |
Proceeds of Permitted High Yield Back to Back
Debt. The Borrower shall forthwith
make the following prepayments of the Senior Loans out of the
net proceeds received by the Borrower from the issuance of any
Permitted High Yield Back to Back Debt (in each case, on a
pro rata basis and in the manner contemplated by
Section 3.09(e)):
|
| | |
| | (i) |
in the event that, following such issuance, the
aggregate amount of Permitted High Yield Back to Back Debt is
equal to or less than $100,000,000, 25% of such Permitted High
Yield Back to Back Debt;
|
| | |
| | (ii) |
in the event that, following such issuance, the
aggregate amount of Permitted High Yield Back to Back Debt is
greater than $100,000,000 and equal to or
|
| |
| |
less than $200,000,000, the sum of (x)
$25,000,000 and (y) 50% of the Permitted High Yield Back to
Back Debt that exceeds $100,000,000; and
|
| | |
| | (iii) |
in the event that, following such issuance, the
aggregate amount of Permitted High Yield Back to Back Debt is
greater than $200,000,000, the sum of (x) $75,000,000, and
(y) 100% of such Permitted High Yield Back to Back Debt in
excess of $200,000,000;
|
| |
| |
provided that in the event that,
contemporaneously with the prepayment required under this
Section 3.09(a), the Borrower makes or is required to make
a prepayment under Section 3.09(f) of this Agreement or
Section 3.10(f) of the EBRD Loan Agreement or
Section 3.09(f) of the EDC Loan Agreement, the amount that
the Borrower is required to prepay under this
Section 3.09(a) shall be equal to the amount calculated in
accordance with paragraphs (i), (ii) and (iii) above,
as applicable, less the High Yield Related Prepayment Proportion
of such amount.
|
(b) Proceeds of Public Offering;
Public Secondary Sale.
| | |
| | (i) |
Public Offering. If,
following a Public Offering by the Borrower, there is a change
in the percentage of the share capital of the Borrower in
respect of which NIB holds a security interest under the
Security Agreement Over Shares, the Borrower shall apply all
proceeds obtained by the Borrower from such Public Offering to
immediately prepay that percentage of the principal amount
outstanding under the Senior Loans as is identified in the table
below under the heading “Percentage of Senior Loans to be
Prepaid” next to the applicable percentage of the
Borrower’s aggregate share capital in respect of which NIB
holds a security interest under the Security Agreement Over
Shares (provided that such percentage shall be of the aggregate
amount of share capital of the Borrower issued and outstanding
after such Public Offering takes place), which is identified in
the table below under “Percentage of Share Capital
Secured”, on a pro rata basis (in the manner
contemplated in Section 3.09(e)):
|
| | | | | |
| | Percentage of Senior Loans |
| Percentage of Share Capital Secured | | to be Prepaid |
|
| |
|
|
Greater than 75%
| | | 0 | % |
|
65% to 75%
| | | 25 | % |
|
55% to 64.9%
| | | 50 | % |
|
50.1% to 54.9%
| | | 70 | % |
| | |
| | (ii) |
Public Secondary
Sale. If (1) any Shareholder
proposes to sell, transfer, convey or assign any shares in the
capital of the Borrower which are subject to the Security
pursuant to a Public Secondary Sale, and (2) such
Shareholder requires a release of the Security in respect of any
or all of such shares in compliance with the terms of the Share
Retention and Subordination Deed (if applicable) and the
Security Agreement Over Shares, then the Borrower shall provide
to NIB notice of such proposed transfer which notice shall
include a
|
| |
| |
request for such a release, and shall prepay that
percentage of the principal amount outstanding under the Senior
Loans as is identified in the table in Section 3.09(b)(i)
under the heading “Percentage of Senior Loans to be
Prepaid” next to the applicable percentage of the
Borrower’s aggregate issued and outstanding share capital
in respect of which NIB holds a security interest under the
Security which is identified in the table in
Section 3.09(b)(i) under “Percentage of Share Capital
Secured” (provided that such percentage shall be determined
after giving effect to such release of Security under
Section 4.05 of the Share Retention and Subordination Deed
and Section 4.4 of the Security Agreement Over Shares), on
a pro rata basis (in the manner contemplated in
Section 3.09(e)), provided that notwithstanding anything to
the contrary in the Financing Agreements, NIB shall not be
obligated to release or discharge any Security in respect of
shares in the capital of the Borrower pursuant to
Section 4.05 of the Share Retention and Subordination Deed
or Section 4.4 of the Security Agreement Over Shares unless
the Borrower has made the prepayment required under this
Section 3.09(b)(ii) in respect of the transfer of such
shares.
|
| | |
| | (iii) |
Stock Option Plan.
For the purposes of Section 3.09(i) and (ii), any issuance
of shares to employees of the Borrower pursuant to stock option
plans permitted under Section 6.06(a) shall be deemed to
constitute a Public Offering or a Public Secondary Sale, as
applicable.
|
| |
| (c) |
Long Term Debt Repayment.
The Borrower shall prepay the principal amount outstanding
under the Senior Loans immediately upon and in an amount pro
rata (based on then outstanding amounts under the Senior
Loans and any other Long-term Debt referred to in this
Section 3.09(c)) to any prepayment, repurchase, or early
redemption by the Borrower of any other Long-term Debt (which
has been consented to by NIB pursuant to Section 6.02) of the
Borrower (other than in respect of any Working Capital Facility
or the Existing Loans) or any repayment of any such Long-term
Debt pursuant to any provision of any agreement or note which
provides directly or indirectly for acceleration of repayment in
time or amount, in the manner contemplated in
Section 3.09(e).
|
| |
| (d) |
Excess Cash. On the
fourteenth (14th) day after the end of each Quarterly Period
(the “Excess Cash Mandatory Prepayment Date”), the
Borrower shall prepay the principal amount outstanding of the
Senior Loans on a pro rata basis (in the manner
contemplated in Section 3.09(e)),
|
| | |
| | (i) |
if the Senior Debt Service Coverage Ratio
calculated by reference to such Quarterly Period and the 3
preceding Quarterly Periods is less than 1.40, in an amount
equal to the lesser of
|
| |
| |
(A) 100% of the Excess Cash Flow
calculated by reference to such Quarterly Period and the three
preceding Quarterly Periods; and
|
| |
| |
(B) the Available Cash Balance,
calculated at the end of such Quarterly Period; and
|
| | |
| | (ii) |
if the Senior Debt Service Coverage Ratio
calculated by reference to such Quarterly Period and the 3
preceding Quarterly Periods is equal to
|
| |
| |
or greater than 1.40 but less than 1.70, in an
amount equal to the lesser of
|
| |
| |
(C) 50% of the Excess Cash Flow
calculated by reference to such Quarterly Period and the three
preceding Quarterly Periods; and
|
| |
| |
(D) the Available Cash Balance,
calculated at the end of such Quarterly Period;
|
| |
| |
provided, for greater certainty, that for
purposes of this Section 3.09(d) Curative Equity shall not be
taken into account in calculating EBITDA for purposes of
determining Excess Cash Flow and Senior Debt Service Coverage
Ratio.
|
| |
| (e) |
Pro Rata. Any prepayment
under this Section 3.09 shall be made and applied on
(i) a pro rata basis between the Senior Lenders in
proportion to their respective principal amounts of Senior Loans
outstanding under the Senior Loan Agreements immediately prior
to such prepayment, and (ii) with respect to the NIB Loan, on a
pro rata basis between the Tranche I NIB Loan and
the Tranche II NIB Loan then outstanding in proportion to the
respective principal amounts thereof outstanding immediately
prior to such prepayment and (iii) shall be applied to the
outstanding repayment instalments of the NIB Loan in inverse
order of maturity.
|
| |
| (f) |
Assignment of Subordinated
Financial debt. The Borrower shall provide notice to NIB at
least 30 days prior to incurring any Permitted High Yield
Back to Back Debt, identifying in such notice (i) the
anticipated principal amount of such Permitted High Yield Back
to Back Debt and (ii) if the aggregate principal amount of all
Permitted High Yield Back to Back Debt (including the Permitted
High Yield Back to Back Debt identified in such notice) exceeds
$150,000,000, whether or not an Assignment of Subordinated Debt
will be provided in respect of all Permitted High Yield Back to
Back Debt. If such notice does not specify that such Assignment
of Subordinated Debt will be provided, then NIB will notify the
Borrower within 15 days of receipt of the Borrower’s
notice hereunder whether it requires the Borrower to prepay the
NIB Loan at the time of incurring such Permitted High Yield Back
to Back Debt. If NIB specifies in such notice that it requires
the Borrower to prepay the NIB Loan at the time of incurring
such Permitted High Yield Back to Back Debt, then, unless an
Assignment of Subordinated Debt in respect of all Permitted High
Yield Back to Back Debt, is provided to NIB contemporaneously
with the Borrower incurring such Permitted High Yield Back to
Back Debt, the Borrower shall prepay, contemporaneously with
incurring such Permitted High Yield Back to Back Debt, the
entire principal amount outstanding under the NIB Loan and will
pay at such time all accrued interest and other amounts in
respect thereof.
|
| |
| (g) |
Other Amounts; No Reduction.
The Borrower shall pay to NIB, at the same time as any
mandatory prepayment is made under this Section 3.09, all
accrued interest and other amounts payable on the principal
amount of the NIB Loan to be so prepaid and all other amounts
due hereunder in respect of such mandatory prepayment, including
without limitation any unwinding costs, which may arise as
provided under Section 3.14. Amounts of the NIB Loan
prepaid by the Borrower under this Section 3.09 may not be
reborrowed and the commitment of NIB to make the Tranche I NIB
Loan and the Tranche II NIB Loan available hereunder, and
the amount of the Tranche I NIB
|
| |
| |
Loan and the Tranche II NIB Loan respectively,
shall be permanently reduced by such prepaid amounts.
|
| |
| (h) |
Prepayment Fee. The
Borrower shall pay NIB on the prepayment date an administration
charge equal to one eighth of one percent (0.125%) of the
principal amount of the NIB Loan to be prepaid under this
Section 3.09.
|
Section 3.10 Voluntary
Prepayment
| |
| (a) |
The Borrower shall have the right
at any time, on not less than 20 Business Days’ prior
notice to NIB to prepay on any Interest Payment Date all or any
part of the principal amount of the Senior Loans then
outstanding; provided that:
|
| | |
| | (1) |
the Borrower shall pay to
NIB at the same time all accrued interest and other amounts
payable on the principal amount of the NIB Loan to be prepaid
and all other amounts due hereunder in respect of such
prepayment, including without limitation any unwinding costs,
which may arise as provided under Section 3.14; and
|
| | |
| | (2) |
in the case of a partial prepayment:
|
| | |
| | (i) |
the USD Equivalent Amount of such prepayment
shall be not less than $10,000,000 (and integral multiples of
$5,000,000);
|
| |
| | (ii) |
the amount of such prepayment shall be applied
and allocated as follows:
|
| |
| |
(A) first to outstanding repayment
instalments of the EBRD B Loan, in inverse order of
maturity, until such time as the outstanding principal amount of
the EBRD B Loan is reduced to zero (0), and
|
| |
| |
(B) second, to the outstanding
repayment instalments of the EBRD A Loan, NIB Loan and the EDC
Loan, on a pro rata basis in proportion to the respective
principal amounts outstanding immediately prior to such
prepayments under the EBRD A Loan, the NIB Loan and the EDC
Loan, in inverse order of maturity,
|
| |
| |
provided that NIB at its sole discretion upon
10 Business Days’ written notice to the Borrower may
require that such prepayment be allocated and applied instead
between the NIB Loan and the Senior Loans provided by any other
Senior Lender(s) that delivered a similar notice to the Borrower
with a copy to NIB within such 10 Business Day period, such
allocation to be made on a pro rata basis based on the
principal amounts outstanding under the NIB Loan and such other
Senior Loans immediately prior to such prepayment, in each case
in inverse order of maturity. If NIB delivers such notice to the
Borrower, the prepayment charge payable pursuant to
Section 3.10(b) in respect of such prepayment shall be
payable at the
|
| |
| |
rate identified in Section 3.10(b)(ii) of
the EBRD Loan Agreement.
|
| | |
| | (3) |
Any such notice of prepayment by the Borrower
shall be irrevocable and binding on the Borrower and, upon
delivery of such notice, the Borrower shall be obligated to
prepay the NIB Loan in accordance with the terms thereof.
|
| |
| (b) |
The Borrower shall pay to NIB on
the date of prepayment of the NIB Loan under this
Section 3.10 an administration charge equal to,
|
| | |
| | (A) |
one per cent (1.0%) of the
principal amount of the NIB Loan to be prepaid, if the
prepayment occurs on or before 31 December 2004, or
|
| | |
| | (B) |
one half of one percent (0.5%) of
the principal amount of the NIB Loan to be prepaid, if the
prepayment occurs after 31 December 2004 but on or before
31 December 2005; or
|
| | |
| | (C) |
one eighth of one percent (0.125%)
of the principal amount of the NIB Loan to be prepaid if the
prepayment occurs at any time after 31 December 2005.
|
| |
| (c) |
The Borrower shall not prepay all
or any part of the NIB Loan except at the times and the manner
expressly provided for in this Agreement.
|
| |
| (d) |
Amounts of the NIB Loan prepaid by
the Borrower under this Section 3.10 may not be reborrowed
and the commitment of NIB to make the NIB Loan available
hereunder shall be permanently reduced by such prepaid amounts.
|
| |
| (e) |
Any prepayment under this
Section 3.10 shall be made on a pro rata basis
between the Tranche I NIB Loan and the Tranche II NIB Loan.
|
Section 3.11 Payments
| |
| (a) |
Subject to Section 3.11(b)
all payments of principal, interest, charges, commissions, fees,
expenses and any other amounts due to NIB under this Agreement
shall be made, without set-off or counterclaim, in Dollars.
|
| |
| (b) |
All payments in respect of costs
and expenses of NIB due to NIB under this Agreement shall be
made in the currency in which such costs and expenses were
invoiced. All payments of charges payable under Section 3.05
shall be made, without set-off or counterclaim, in Dollars.
|
| |
| (c) |
All payment of principal,
interest, charges, commissions, fees, expenses and any other
amounts due to NIB under this Agreement shall be made for value
on the due date, to such account and in such place as NIB may
from time to time designate by not less than four
(4) Business Days’ notice to the Borrower.
|
| |
| (d) |
The sums to be disbursed by NIB to
the Borrower hereunder shall be payable in Dollars, for value,
unless otherwise agreed by the Borrower and NIB, on the value
date requested by the Borrower in its Disbursement application
and to such
|
| |
| |
correspondent account in New York City as the
Borrower may designate in its Disbursement application (with
instructions to transfer such sums, at the Borrower’s risk
and expense, to such account as the Borrower may designate in
its Disbursement application).
|
| |
| (e) |
If the due date for any payment
under this Agreement would otherwise fall on a day which is not
a Business Day, then such payment shall instead be due on the
next succeeding Business Day.
|
| |
| (f) |
NIB shall have the right, to the
fullest extent permitted by law, to set off any amount owed by
NIB to the Borrower, whether or not matured, against any amount
then due and payable by the Borrower under any Financing
Agreement, whether or not NIB has demanded payment by the
Borrower of such amount and regardless of the currency or place
of payment of either such amount. NIB shall have the right, to
the fullest extent permitted by law, to deduct from the proceeds
of any Disbursement any charges, commissions, fees, expenses and
other amounts then due and payable by the Borrower to NIB under
any Financing Agreement and the credit advice of NIB shall
reflect such deduction.
|
Section 3.12 Insufficient
Payments
| |
| (a) |
If NIB at any time receives less
than the full amount then due and payable to it under this
Agreement, NIB shall have the right to allocate and apply such
payment in any way or manner and for such purpose or purposes
under this Agreement as NIB in its sole discretion determines,
notwithstanding any instruction that the Borrower may give to
the contrary.
|
| |
| (b) |
The Borrower shall indemnify NIB
against any losses resulting from a payment being received, or a
claim being filed or an order or judgement being given,
hereunder in a currency or place other than the currency and
place specified in Section 3.11(a), (b) and (c). The
Borrower shall pay such additional amount as is necessary to
enable NIB to receive, after conversion to such currency at a
market rate and transfer to such place, the full amount due to
NIB hereunder in the currency and at the place specified in
Section 3.11(a),(b) and (c).
|
Section 3.13 Taxes
| |
| (a) |
The Borrower shall pay or cause to
be paid all present and future taxes, duties, fees, royalties,
deductions, imposts and other charges of whatsoever nature,
together with any interest thereon and penalties with respect
thereto, now or at any time hereafter levied or imposed by
Romania or the Government of Romania, or by any department,
agency, political subdivision or taxing or other authority
thereof or therein, or by any organization of which Romania is a
member, or by any jurisdiction out of which or through which
payments hereunder are made, on or in connection with the
payment of any amounts due to NIB under this Agreement.
|
| |
| (b) |
All payments of principal,
interest and other amounts due to NIB under this Agreement shall
be made free and clear of, and without deduction or withholding
for or on account of, any taxes, duties, fees, royalties,
deductions, imposts, or charges, provided, however, that, in the
event that the Borrower is prevented by operation of law or
otherwise from making such payments free and clear of such
deductions or
|
| |
| |
withholdings, the principal, interest or other
amount (as the case may be) due under this Agreement shall be
increased to such amount as may be necessary to remit to NIB the
full amount it would have received had such payment been made
without such deductions or withholdings.
|
Section 3.14 Unwinding
Costs
| |
| (a) |
If, for any reason (including,
without limitation, an acceleration pursuant to
Section 7.02, 7.03 or 7.04), any portion of the NIB Loan
which is subject to a variable interest rate in accordance with
Section 3.06(a) becomes due and payable on a date other
than the last day of an Interest Period, the Borrower shall pay
to NIB on demand the amount, if any, by which:
|
| | |
| | (1) |
the interest which would
have accrued on such portion of the NIB Loan from the date on
which such portion of the NIB Loan has become due and payable to
the last day of the then current Interest Period applicable to
such portion of the NIB Loan at a rate equal to LIBOR, in each
case for such Interest Period;
|
| | |
| | (2) |
the interest which NIB would
be able to obtain if it were to place an amount equal to such
portion of the NIB Loan on deposit with a leading bank in the
London interbank market, for the period commencing on the date
on which such portion of the NIB Loan has become due and payable
and ending on the last day of the then current Interest Period.
|
| |
| (b) |
If any overdue amount is paid on a
date other than the last day of a Default Interest Period, the
Borrower shall pay to NIB on demand the amount, if any, by which:
|
| | |
| | (1) |
the interest which would
have accrued on such overdue amount from the date of receipt of
such overdue amount to the last day of the then current Default
Interest Period at a rate equal to the rate specified in
Section 3.07(a)(3) for such Default Interest Period;
|
| | |
| | (2) |
the interest which NIB would be able to obtain if
it were to place an amount equal to such overdue amount on
deposit with a leading bank in the London interbank market, for
the period commencing on the date of receipt of such overdue
amount and ending on the last day of the then current Default
Interest Period.
|
| |
| (c) |
A certificate of NIB as to any
amount payable under this Section 3.14 shall be final,
conclusive and binding on the Borrower unless shown by the
Borrower to the satisfaction of NIB to contain clerical error.
|
Section 3.15 Increased
Costs
The Borrower shall, from time to time on demand
of NIB, reimburse NIB for any net incremental costs to NIB of
making or maintaining, or committing to make, the NIB Loan which
result from the introduction of, or any change in, any
applicable law or any applicable guideline or policy (including
guidelines or policies which, if not having the force of law, are
customarily complied with by banks or
international financial institutions), or any change in the
interpretation or application thereof by any governmental or
regulatory authority charged with the administration thereof
subsequent to the date of this Agreement. A certificate of NIB
as to the amount of such net incremental costs shall be final,
conclusive and binding on the Borrower unless shown by the
Borrower to the satisfaction of NIB to contain clerical error.
Section 3.16 Illegality
Notwithstanding anything in this Agreement, if it
is or becomes unlawful in any applicable jurisdiction for NIB to
make, maintain or fund the NIB Loan, then:
| |
| (1) |
upon request by NIB, the Borrower shall, on the
next Interest Payment Date or such earlier date as NIB may
specify, prepay that portion of the principal amount of the NIB
Loan which NIB notifies to the Borrower as being affected by
such change, together with all accrued interest and other
amounts payable thereon; and
|
| |
| (2) |
upon notice from NIB, the right of the Borrower
to Disbursement of any portion of the NIB Loan which NIB
notifies to the Borrower as being affected by such change and
which has not theretofore been disbursed shall terminate
immediately.
|
Section 3.17 Loan
Account
NIB shall open and maintain on its books a Dollar
account in the Borrower’s name showing the Disbursements
and repayments thereof and the computation and payment of
interest, charges, commissions, fees and other amounts due and
sums paid hereunder in respect of the NIB Loan. In the absence
of manifest error, such accounts shall be final, conclusive and
binding on the Borrower as to the amount at any time due from
the Borrower.
ARTICLE IV — CONDITIONS
PRECEDENT
Section 4.01 Tranche I NIB
Loan Disbursement
The obligation of NIB to make the Disbursement of
the Tranche I NIB Loan shall be subject to the prior
fulfillment, in form and substance satisfactory to NIB, of the
following conditions precedent:
| |
| (a) |
Financing Agreements. NIB
shall have received duly executed and (where appropriate)
legalized originals of the following agreements:
|
| | |
| | (1) |
this Agreement;
|
| |
| | (2) |
the EBRD Loan Agreement;
|
| |
| | (3) |
the EDC Loan Agreement;
|
| |
| | (4) |
the Agency Agreement;
|
| |
| | (5) |
the Share Retention and Subordination Deed;
|
| |
| | (6) |
the Borrower Power of Attorney;
|
| | |
| | (7) |
the Shareholder Power of Attorney, executed by
each Shareholder; and
|
| |
| | (8) |
the Security Sharing and Intercreditor Agreement.
|
| |
| (b) |
Other Agreements. NIB shall
have received copies, certified by an officer of the Borrower,
of the following agreements:
|
| | |
| | (1) |
the Licenses;
|
| |
| | (2) |
the Romtelecom Interconnection Agreement;
|
| |
| | (3) |
the Cooperation Agreement;
|
| |
| | (4) |
any Working Capital Facility Agreement currently
in effect;
|
| |
| | (5) |
the Contract of Association;
|
| |
| | (6) |
the Orange Romania Interconnection Agreement;
|
| |
| | (7) |
the Hedging Agreements, if any; and
|
| |
| | (8) |
other agreements identified by NIB from the
agreements listed on Schedule A hereto.
|
| |
| (c) |
Security. The Security
shall have been validly created and constitute a first ranking
security interest (subject only, where applicable, to the
Existing Security) in a manner satisfactory to NIB and NIB shall
have received duly executed originals of the following Security
Documents, together with any document, recording, filing,
notification, registration, notarization or other evidence
required, in the opinion of NIB, for the creation, validity,
perfection or priority of the Liens of NIB in or under such
Security Documents:
|
| | |
| | (1) |
the Security Agreement Over Movables;
|
| |
| | (2) |
the Insurance Assignment;
|
| |
| | (3) |
the Security Agreement Over Shares;
|
| |
| | (4) |
the Security Agreement Over Accounts;
|
| |
| | (5) |
the Assignment of Receivables; and
|
| |
| | (6) |
the Offshore Accounts Charge.
|
| |
| (d) |
Charters. NIB shall have
received certified copies of the Charters (and, if relevant,
certificates of registration and good standing) of the Borrower
and, at the request of NIB, any other parties to the Financing
Agreements, each as amended to date.
|
| |
| (e) |
Corporate Authorizations.
NIB shall have received certified copies of all corporate
(including, if required, shareholder) authorizations and
approvals necessary for the due execution, delivery and
performance of the Financing Agreements, and any other documents
in implementation thereof, by the Borrower, the Shareholders
and, at the request of NIB, any other parties thereto and for
the transactions contemplated
|
| |
| |
thereby, including the authorizations of the
persons signing the Financing Agreements to sign such documents
and to bind the respective parties thereby.
|
| |
| (f) |
Specimen Signatures. NIB
shall have received:
|
| | |
| | (1) |
a certificate of incumbency and authority of the
Borrower substantially in the form of Exhibit B; and
|
| |
| | (2) |
a certificate of an appropriate officer of each
Shareholder and, at the request of NIB, any other party to the
Financing Agreements, certifying the specimen signature of each
person authorised to sign, on behalf of such party, the
Financing Agreements to be entered into and performed by such
party or, if agreed by NIB, in place of such certificate, a copy
of the power of attorney authorising each person to sign, on
behalf of such Shareholder or other party, the Financing
Agreements to be entered into and performed by such party.
|
| |
| (g) |
Governmental and Other
Approvals. NIB shall have received copies, certified by an
officer of the Borrower, of all governmental, creditors’
and other licenses, approvals, consents, filings and
registrations necessary for the execution, delivery and
performance of the Financing Agreements by the Borrower, the
Shareholders and, at the request of NIB, any other parties
thereto and for the transactions contemplated thereby,
including, without limitation:
|
| | |
| | (1) |
the borrowing by the Borrower under the Senior
Loan Agreements;
|
| |
| | (2) |
the creation of the Security;
|
| |
| | (3) |
the carrying out of the Project;
|
| |
| | (4) |
the remittance to NIB in the Loan Currency of all
monies payable in respect of the Financing Agreements; and
|
| |
| | (5) |
the carrying on of the business of the Borrower
as it is presently carried on and as it is contemplated to be
carried on.
|
| |
| (h) |
Insurance. NIB shall have
received original insurance certificates from the
Borrower’s insurer or insurance broker showing that all
insurance policies and endorsements required pursuant to
Section 5.04 are in full force and effect.
|
| |
| (i) |
Auditors Letter. NIB shall
have received a copy of a letter to the Auditors from the
Borrower substantially in the form of Exhibit C.
|
| |
| (j) |
Process Agent Appointments.
NIB shall have received written confirmation from the agents
for service of process appointed by the Borrower, each of the
Shareholders, TIWC, ClearWave’s Majority Shareholder,
ClearWave and Vodafone Technical pursuant to the Financing
Agreements of their acceptances of such appointments.
|
| |
| (k) |
Legal Opinions. NIB shall
have received the following legal opinions, addressed to NIB and
regarding such matters incident to the transactions contemplated
by the Financing Agreements and Project Agreements as NIB
reasonably requests:
|
| | |
| | (1) |
the opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ Diculescu Kingston
▇▇▇▇▇▇▇▇, special Romanian counsel to the Borrower;
|
| |
| | (2) |
the opinion of Loyens & Loeff, special Dutch
counsel to TIWC, ClearWave, ClearWave Holdings and Vodafone
Europe;
|
| |
| | (3) |
the opinion of Fasken, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP,
special Canadian counsel to ClearWave’s Majority
Shareholder;
|
| |
| | (4) |
the opinion of Stoica & Associates, special
Romanian counsel to the Senior Lenders;
|
| |
| | (5) |
the opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, special
English counsel to the Senior Lenders;
|
| |
| | (6) |
the opinion of Antis Triantafyllides & Sons,
special Cyprus counsel to the Borrower;
|
| |
| | (7) |
the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, special Dutch
counsel to Deraso Holding B.V.
|
| |
| (l) |
Fee Letter. EBRD and NIB
shall have entered into a letter agreement with respect to the
fees payable to NIB in connection with the NIB Loan.
|
| |
| (m) |
Financial Plan. NIB shall have
received the Base Case Financial Forecast and a certificate of
an Authorised Signatory of the Borrower approving such Base Case
Financial Forecast in form and substance satisfactory to NIB.
|
| |
| (n) |
Use of Proceeds. The
proceeds of such Disbursement shall be needed and used by the
Borrower solely for the purposes identified in
Section 3.02(a) and NIB shall have received such evidence
as to the proposed utilization of the proceeds of such
Disbursement as NIB reasonably requests.
|
| |
| (o) |
Disbursement Pro Rata. NIB
shall not be obligated to make the Tranche I NIB Loan
Disbursement in any amount other than an amount such that on the
date of such Disbursement the respective aggregate amounts
disbursed or to be disbursed on such date under the Tranche I
EBRD Loan, the Tranche I EDC Loan and the Tranche I NIB Loan,
shall be in the following proportions: 230:35:35.
|
| |
| (p) |
Conditional Discharges. The
Conditional Discharge Escrow Agent shall have received the
Conditional Discharge Escrow Instructions and the following
conditional discharge instrument (the “Conditional
Discharge”) duly executed by all parties thereto (other
than by EBRD, which will execute the Conditional Discharge at
the time and in the manner specified in the Conditional
Discharge Escrow Instructions), to be held by the Conditional
Discharge Escrow Agent and to be irrevocably released from
escrow immediately upon delivery to the Conditional Discharge
Escrow Agent of the Existing Loans Repayment Confirmations and
the dating of the Conditional Discharge by the Conditional
Discharge Escrow Agent:
|
| |
| |
a discharge and release in respect of the
Existing Security under, inter alia, the following
instruments (each as defined in the Existing NIB Loan Agreement):
|
| | |
| | (A) |
Enterprise Mortgage;
|
| |
| | (B) |
Share Pledge (including without
limitation the Guarantee and Share Pledge Agreement dated
January 28, 1999, July 24, 2000 and September 28,
2001);
|
| |
| | (C) |
Accounts Agreement;
|
| |
| | (D) |
Borrower’s Negative Covenant
Agreement; and
|
| |
| | (E) |
All Shareholder Negative
Covenant Agreements,
|
| |
| | (F) |
Insurance Assignment; and
|
| |
| | (G) |
Offshore Accounts Pledge
|
| |
| |
executed by, inter alia, the Borrower, the
Senior Lenders and the EKN Lenders, all in form and substance
satisfactory to NIB.
|
Section 4.02 First Tranche
II NIB Loan Disbursement
The obligation of NIB to make the first
Disbursement of the Tranche II NIB Loan shall be subject to the
prior fulfilment, in form and substance satisfactory to NIB, of
the following conditions precedent:
| |
| (a) |
Tranche I NIB Loan. NIB
shall have made the Disbursement of the entire Tranche I NIB
Loan and all conditions precedent set forth in Section 4.01
shall be satisfied.
|
| |
| (b) |
Existing Loans Indebtedness and
Existing Security.
|
| | |
| | (1) |
The Existing Loans Indebtedness shall have been
repaid in full and NIB shall have received the Existing Loans
Repayment Confirmations.
|
| |
| | (2) |
The Conditional Discharge shall have become fully
effective and unconditional and shall have been released from
escrow and delivered to NIB, and the Existing Security shall
have been fully released and discharged, and all registrations
and other steps required to be made in connection with such
release and discharge (including without limitation all
applicable registrations in the Electronic Archive, the Trade
Register, the Shareholders Register of the Borrower and any
other applicable registries) shall have been made in a manner
satisfactory to NIB such that the Security granted to secure the
Senior Loan Agreements shall have become first ranking in all
respects in a manner satisfactory to NIB.
|
| |
| (c) |
Legal Opinions. NIB shall
have received the following legal opinions, addressed to NIB and
regarding such matters with respect to the discharge of the
Existing Security, and the ranking of the Security, as NIB
reasonably requests:
|
| | |
| | (1) |
the opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ Diculescu Kingston
▇▇▇▇▇▇▇▇, special Romanian counsel to the Borrower; and
|
| | |
| | (2) |
the opinion of Stoica & Associates, special
Romanian counsel to the Senior Lenders.
|
Section 4.03 All
Disbursements
The obligation of NIB to make any Disbursement
shall also be subject to the fulfillment, in form and substance
satisfactory to NIB, of the conditions that, on the date of the
Borrower’s application for such Disbursement and on the
date of such Disbursement:
| |
| (a) |
Continuing Validity of
Documents. All agreements, documents and instruments
delivered to NIB pursuant to Section 4.01 and/or
Section 4.02, as applicable, shall be in full force and
effect and unconditional (except for this Agreement having
become unconditional, if that is a condition of any such
agreement, and except to any extent that such agreements,
documents and instruments have been amended or replaced by other
agreements, documents or instruments, in each case acceptable to
NIB).
|
| |
| (b) |
Representations and Warranties.
The representations and warranties made or confirmed by the
Borrower in the Financing Agreements and Project Agreements
shall be true on and as of such dates with the same effect as
though such representations and warranties had been made on and
as of such dates. To any extent that such representations and
warranties cannot be confirmed by the Borrower as being true as
of such dates, the Borrower shall provide the further
information necessary to make the representations and warranties
true as of such dates in light of such further information, and
such further information shall be in form and content acceptable
to NIB.
|
| |
| (c) |
No Default. No Event of
Default or Potential Event of Default shall have occurred and be
continuing or shall, in the reasonable opinion of NIB, result
from such Disbursement or be imminent and the Borrower shall
not, as a result of such Disbursement, be in violation of its
Charter or any provision contained in any material agreement or
instrument to which the Borrower is a party (including this
Agreement) or by which the Borrower is bound, or any law
applicable to the Borrower.
|
| |
| (d) |
No Material Adverse Change.
Nothing shall have occurred which, in the reasonable opinion
of NIB, might have a material adverse effect on the Project, the
Borrower’s business, operations or financial condition or
the ability of the Borrower to perform any of its obligations
under any Financing Agreement or Project Agreement.
|
| |
| (e) |
Use of Proceeds. In respect
of any Disbursement of the Tranche II NIB Loan, the proceeds of
such Disbursement shall be needed and used by the Borrower
solely for the purposes of Capital Expenditures incurred or paid
for after the date of this Agreement or for payment of the UMTS
License Costs in connection with the Project and NIB shall have
received such evidence as to the proposed utilisation of the
proceeds of such Disbursement and the utilisation of the
proceeds of any prior Disbursement as NIB reasonably requests.
|
| |
| (f) |
Disbursement Application.
NIB shall have received an original of the Borrower’s
timely application for such disbursement substantially in the
form of Exhibit A.
|
| |
| (g) |
Disbursements Pro Rata. NIB
shall not be obligated to make a Disbursement under the Tranche
II NIB Loan other than in an amount such that on the date of such
|
| |
| |
Disbursement the respective aggregate amounts
disbursed and to be disbursed on such date under the Tranche II
EBRD Loan, the Tranche II EDC Loan and the Tranche II NIB Loan
shall be in the following proportions: 230:35:35.
|
| |
| (h) |
Failure of EBRD/ EDC
Disbursement. In the event that any Disbursement is made by
NIB and corresponding pro rata amounts are not so
disbursed pursuant to subsection 4.03(g) by EBRD or EDC, then
the Borrower shall be obligated to remit to NIB the amount of
such Disbursement immediately upon being notified by NIB in such
regard, along with any interest accruing thereon during the
period that the Borrower held such amount.
|
| |
| (i) |
Fees and Expenses. All fees
and expenses due and payable pursuant to Sections 3.05 and
5.12 and the fee letter agreement identified in Section 4.01(l)
at the time of the Disbursement shall have been paid in full.
|
| |
| (j) |
No Objection Letter. With
respect to any Disbursement, if the aggregate amount of such
Disbursement and all prior Disbursements exceeds $30,000,000,
NIB shall have received a “no objection letter” from
the Ministry of Finance of Romania.
|
ARTICLE V — AFFIRMATIVE
COVENANTS
Unless NIB otherwise agrees in writing:
Section 5.01 Project
Implementation and Use of Proceeds
The Borrower shall carry out the Project in
accordance with the Licenses and cause the proceeds of the
Senior Loans to be applied exclusively in the manner provided in
Sections 3.02, 4.01(n) and 4.03(e).
Section 5.02 Maintenance
and Continuity of Business and Compliance with
Obligations
The Borrower shall maintain its corporate
existence in compliance with all applicable laws. The Borrower
shall conduct its business with due diligence and efficiency, in
accordance with sound engineering, financial and business
practices and in compliance with all applicable laws, and shall
comply with all agreements to which it is a party or by which it
or any of its properties or assets is bound.
Section 5.03 Environment,
Health and Safety
The Borrower shall conduct its business with due
regard to the environment, health and safety. The Borrower shall
carry out the Project in accordance with environmental standards
in effect from time to time in Romania and with environmental
standards existing in the European Union on the date hereof (or,
in the event that such standards do not exist in the European
Union, as set forth in the World Bank’s Environmental
Guidelines or any publication of the World Bank replacing its
Environmental Guidelines).
Section 5.04 Insurance
The Borrower shall maintain, at a minimum,
liability, property damage, business interruption,
contractor’s all-risks and public liability insurance
against loss, damage and third party liability in a manner and
with insurers satisfactory to NIB. NIB shall be named, in
accordance with the Insurance Assignment, as loss
payee (except with respect to third party liability insurance)
and additional insured under the relevant insurance policies and
the interests of NIB shall be noted thereon.
Section 5.05 Accounting
| |
| (a) |
The Borrower shall maintain an
accounting and cost control system and management information
system satisfactory to NIB.
|
| |
| (b) |
The Borrower shall maintain books
of account and other records adequate to present a true and fair
view of the financial condition of the Borrower and the results
of its operations in conformity with Generally Accepted
Accounting Principles and RAS.
|
| |
| (c) |
The Borrower shall maintain as its
auditors a firm of independent accountants acceptable to NIB.
The Borrower shall authorise, by a letter substantially in the
form of Exhibit C, the Auditors to communicate directly
with NIB at any time regarding the Borrower’s accounts and
operations.
|
Section 5.06 Continuing
Governmental and Other Approvals
The Borrower shall obtain and maintain in force
(or, where appropriate, renew) all governmental, corporate,
creditors’, shareholders’ and other necessary
licenses, approvals, consents, filings, permits, rulings and
registrations required for the purposes described in
Sections 4.01(e) and 4.01(g). The Borrower shall perform
and observe all the conditions and restrictions contained in, or
imposed on the Borrower by, such licenses, approvals, consents,
filings and registrations.
Section 5.07 Security
| |
| (a) |
General. The Borrower shall
create, perfect, maintain and, as appropriate, renew the
Security in a manner satisfactory to NIB.
|
| |
| (b) |
Existing Security. The
Borrower shall, immediately upon receipt of the Existing Loans
Repayment Confirmations and a copy of the executed Conditional
Discharge, cooperate with, and assist, NIB and its counsel in
discharging and releasing the Existing Security in a manner
satisfactory to NIB, such that the Security shall become first
ranking in priority and the Borrower shall take such other steps
and actions as may be necessary or advisable to ensure that the
Security becomes first ranking in a manner satisfactory to NIB.
|
| |
| (c) |
Immovables. Each time that
the Borrower acquires immovable tangible assets, in one or in a
series of related transactions, having an aggregate value in
excess of $3,000,000, the Borrower shall immediately notify NIB
and shall (i) as soon as possible but in any event within
thirty days, provide to NIB an Immovables Hypothec with respect
to such immovable tangible assets shall apply for registration
of such Immovables Hypothec in the appropriate registers (and
deliver to NIB such register’s acknowledgment of such
application being made) and (ii) shall take all steps to
ensure such registration takes place as soon as possible, all in
order to provide in favour of the Secured Parties a first
priority security interest with respect to such immovable
tangible assets.
|
| |
| (d) |
Movables. Each six months
after the date hereof, the Borrower shall provide to NIB an
updated current list of all of the Borrower’s movable
assets, tangible and intangible, including lists of Material
Agreements in compliance with Section 4.1(e) of the
Security Agreement Over Movables, and shall forthwith take any
other steps and actions necessary or advisable to ensure that
the Secured Parties have a first ranking security interest
(subject only to Permitted Liens) in respect of all of the
Borrower’s movable assets, tangible and intangible present
and future, under the Security Agreement Over Movables in
accordance with all requirements of Romanian law.
|
| |
| (e) |
Shares. The Borrower shall
take any action required of it in order that at all times 100%
of the shares (and votes associated therewith) of the Borrower
shall be effectively subject to the Security Agreement Over
Shares, subject to Section 4.05 of the Share Retention and
Subordination Deed and Section 4.4 of the Security
Agreement Over Shares. The Borrower shall sign and register such
documents and take such other steps as are necessary including
without limitation complying with its obligations under the
Security Agreement Over Shares to update the list of shares in
respect of which a security interest is granted pursuant to the
Security Agreement Over Shares and to ensure that the Security
Agreement Over Shares applies in respect of any shares of the
Borrower held by the Shareholders from time to time as necessary
to comply with the foregoing requirement that at all times 100%
of the total shares (and votes associated therewith) of the
Borrower remain subject to the Security Agreement Over Shares
subject to Section 4.05 of the Share Retention and
Subordination Deed and Section 4.4 of the Security
Agreement Over Shares.
|
| |
| (f) |
Accounts. The Borrower
shall ensure that at all times all payments made to the Borrower
(including under any Project Agreement) are deposited in
Borrower Accounts in respect of which the Secured Parties and
Working Capital Lenders have a pledge or other security interest
pursuant to the Security Agreement Over Accounts or, in respect
of Borrower Accounts held in banks outside of Romania, such
other Security Document as may be in form and substance
satisfactory to NIB.
|
| |
| (g) |
Roaming Revenues. To the
extent the Borrower has any Lien in respect of any Deposit (as
defined in the Offshore Accounts Charge), whether pursuant to
the Cibernet Financial Net Settlement Regulations dated
March 14, 1997 or otherwise, such Lien in favour of the
Borrower shall in all respects be subordinate and postponed to
the Security and the Borrower will take no action in respect of
such Lien except any action specifically requested by the Senior
Lenders.
|
| |
| (h) |
Assignment of Subordinated
Debt. If the Borrower delivers a notice to NIB pursuant to
Section 3.09(f) in respect of any Permitted High Yield Back
to Back Debt, and if the aggregate principal amount of all
Permitted High Yield Back to Back Debt (including the Permitted
High Yield Back to Back Debt identified in such notice) exceeds
$150,000,000, and if
|
| | |
| | (i) |
the Borrower specifies in such notice that an
Assignment of Subordinated Debt will be provided to NIB in
respect of all of the Borrower’s Permitted High Yield Back
to Back Debt, or
|
| |
| | (ii) |
the Borrower specifies in such notice that such
Assignment of Subordinated Debt will not be provided to NIB or
does not specify in such notice whether
|
| |
| |
such Assignment of Subordinated Debt will be
provided to NIB, NIB requires in a notice delivered under
Section 3.09(f) that the Borrower prepay in full the NIB Loan
and the Borrower fails to make such prepayment contemporaneously
with incurring the Permitted High Yield Back to Back Debt,
|
| |
| |
then the Borrower shall ensure that NIB is
provided with an Assignment of Subordinated Debt in respect of
all of the Borrower’s Permitted High Yield Back to Back
Debt prior to or contemporaneously with, and as a condition to,
the Borrower incurring the Permitted High Yield Back to Back
Debt identified in the notice delivered by the Borrower under
Section 3.09(f).
|
| |
| (i) |
Acknowledgement and Non-disturbance Agreement.
The Borrower shall ensure that the
Acknowledgement and Non-disturbance Agreement is entered into
and a fully executed original thereof is delivered to NIB as
soon as practicable and in any event within 30 days of the
date hereof.
|
Section 5.08 Taxes
| |
| (a) |
The Borrower shall pay when due all of its taxes,
rates, charges and assessments, including without limitation any
taxes, rates, charges and assessments against any of its
properties, other than taxes, rates, charges or assessments
which are being contested in good faith and by proper
proceedings and as to which adequate reserves have been set
aside for the payment thereof. The Borrower shall make timely
filings of all tax returns and governmental reports required to
be filed or submitted under any applicable law.
|
| |
| (b) |
The Borrower shall pay all taxes (including stamp
taxes), duties, fees or other charges payable on, or in
connection with, the execution, issue, delivery, registration,
legalisation or notarization of any Financing Agreement, any
Project Agreement or any other document related to this
Agreement. Upon notice from NIB, the Borrower shall pay to NIB,
or reimburse NIB for, an amount equal to any such taxes, duties,
fees or other charges levied on or paid by NIB.
|
Section 5.09 Project
Agreements
The Borrower shall maintain all Project
Agreements to which the Borrower is a party in full force and
effect without material modification and perform its obligations
under, and not commit any breach of or default under, any such
Project Agreement. The Borrower shall promptly upon any proposed
amendment of a Project Agreement, provide a copy of such
amendment to NIB.
Section 5.10 Financial
Ratios
| |
| (a) |
The Borrower shall ensure that its financial
condition shall be such that:
|
| | |
| | (i) |
Total Financial Debt to EBITDA
Ratio Subject to Section 5.10(b), the
Total Financial Debt to EBITDA Ratio shall be less than or equal
to 2.00.
|
| | |
| | (ii) |
Senior Debt to EBITDA
Ratio Subject to Section 5.10(b),
from the date hereof up to and including 31 December 2004, the
Senior Debt to EBITDA
|
| |
| |
Ratio shall be less than or equal to 1.50 and on
each Quarter Date, after 31 December 2004 the Senior Debt to
EBITDA Ratio shall be less than or equal to 1.25;
|
| | |
| | (iii) |
Total Financial Debt Service Coverage
Ratio Subject to Section 5.10(b),
the Total Financial Debt Service Coverage Ratio shall be equal
to or greater than 1.25;
|
| |
| | (iv) |
Senior Debt Service Coverage
Ratio Subject to Section 5.10(b), the
Senior Debt Service Coverage Ratio shall be equal to or greater
than 1.40; and
|
| | |
| | (v) |
Total Financial Debt to Equity
Ratio Subject to Section 5.10(b), from
the date hereof to and including 31 December 2003, the Total
Financial Debt to Equity Ratio shall be equal to or less than
2.00 and on each Quarter Date after 31 December 2003, the Total
Financial Debt to Equity Ratio shall be equal to or less than
1.75;
|
| |
| |
provided that the Borrower may cure any actual or
anticipated breach of its covenants under this
Section 5.10(a) by providing additional shareholder funding
in the form of equity or Permitted Quasi Equity (such funding
referred to as “Curative Equity”), which Curative
Equity must be contributed prior to or within 30 days after
the date of the breach, provided that such cure shall be used:
|
| | |
| | (A) |
in aggregate, not more than four times;
|
| |
| | (B) |
not more than two times in any calendar year; and
|
| |
| | (C) |
not in each of any two consecutive Quarterly
Periods.
|
| |
| |
For purposes of determining compliance with this
Section 5.10(a), the amount of any Curative Equity
permitted hereunder shall be included as a positive number in
the determination of EBITDA as of the date on which such
Curative Equity is contributed.
|
| |
| |
The financial covenants set out in this
Section 5.10 shall be tested on each Quarter Date by
reference to the Financial Statements as of such date and each
Compliance Certificate delivered pursuant to Section 5.13.
The period of calculation in respect of which each of the ratios
identified in paragraphs (a)(i) to (iv) above is to be
calculated shall be each Quarterly Period and the immediately
preceding three Quarterly Periods.
|
| |
| |
All accounting expressions which are not
otherwise defined herein shall be construed in accordance with
Generally Accepted Accounting Principles.
|
Section 5.11 Further
Documents
The Borrower shall execute all such other
documents and instruments and do all such other acts and things
as NIB may reasonably determine are necessary or desirable to
give effect to the provisions of the Financing Agreements and
the Project Agreements and to cause the
Financing Agreements to be duly registered,
legalised, notarised and stamped in any applicable jurisdiction.
Without limiting the generality of the foregoing, the Borrower
shall promptly provide to NIB certified translations into
Romanian or into English, as applicable, of any such documents
and instruments, or of any of the Financing Agreements, as
requested by NIB from time to time. The Borrower hereby
irrevocably appoints and constitutes NIB as the Borrower’s
true and lawful attorney with right of substitution (in the name
of the Borrower or otherwise) to execute such documents and
instruments and to do such acts and things (if the Borrower
fails to do so within such reasonable period of time as may be
specified by NIB) in the name of and on behalf of the Borrower
in order to carry out the provisions hereof.
Section 5.12 Costs and
Expenses
| |
| (a) |
The Borrower shall, whether or not any
Disbursement is made, pay to NIB or as NIB may direct, within
30 days of NIB furnishing to the Borrower the invoice
therefor, all reasonable out-of-pocket costs and expenses
(including, without limitation, travel expenses and the fees and
expenses of outside counsel to the Senior Lenders and the Agent
and all other financial, accounting, engineering, environmental,
insurance and other consulting fees and expenses) incurred by
the Senior Lenders and the Agent in connection with the
following three matters:
|
| | |
| | (1) |
the assessment, preparation, negotiation and
arrangement of the NIB Loan by NIB;
|
| |
| | (2) |
the preparation, review, negotiation, execution
and, where appropriate, registration, legalization and
notarization, as applicable, of the Financing Agreements, the
Project Agreements, the other Material Agreements, and the
Security and any other documents related thereto; and
|
| |
| | (3) |
the giving of any legal opinions hereunder.
|
| |
| (b) |
In addition, the Borrower shall pay to NIB or as
NIB may direct, on demand, all further fees, costs and expenses
(including, without limitation, legal fees and expenses)
incurred by NIB (in each case as may be set forth in an invoice
along with any supporting documentation):
|
| | |
| | (1) |
in the administration of the Financing Agreements;
|
| |
| | (2) |
in the determination of whether there has
occurred an Event of Default or Potential Event of Default;
|
| |
| | (3) |
in respect of the preservation or enforcement of
any of its rights under any Financing Agreement and the
collection of any amount owing to NIB; and
|
| |
| | (4) |
in connection with the assessment, preparation,
review, negotiation, execution and, where appropriate,
registration and notarization of any amendment to or waiver of
any Financing Agreement, any Project Agreement, any other
Material Agreement, or any other document related thereto.
|
Section 5.13 Furnishing of
Information
| |
| (a) |
As soon as available but, in any event, within
45 days after the end of each Quarterly Period of each
Financial Year, the Borrower shall furnish to NIB:
|
| | |
| | (1) |
two copies of the Borrower’s complete
unaudited Financial Statements for such Quarterly Period
prepared in Dollars in accordance with Generally Accepted
Accounting Principles and in Lei in accordance with RAS and in
each case in a form satisfactory to NIB and, if requested by
NIB, certified by an Authorized Signatory of the Borrower;
|
| |
| | (2) |
a management discussion and analysis of results
for such Quarterly Period, including a report on any factors
materially and adversely affecting or which might materially and
adversely affect the Borrower’s business, operations or
financial condition or a statement that there are no such
factors;
|
| |
| | (3) |
a report, in a form satisfactory to NIB, acting
reasonably, on the implementation and progress of the Project,
including;
|
| | |
| | (i) |
at all times from and after the date on which the
Borrower obtains the UMTS License and until such time as the
Borrower achieves UMTS License Compliance, a statement regarding
the progress of the Borrower in meeting the conditions of the
UMTS License (including without limitation, the coverage of the
services provided by the Borrower’s UMTS Network and the
coverage requirements imposed by the Ministry, if any), and
identifying any cases of non-compliance with the UMTS License
and any fines or penalties paid or imposed in respect thereof;
|
| | |
| | (ii) |
the ▇▇▇▇-to-market valuation of all hedging and
similar derivative transactions outstanding on the last day of
such Quarterly Period;
|
| | |
| | (iii) |
a list of all hedging and similar derivative
transactions outstanding as of the last day of such Quarterly
Period with a notional amount whose USD Equivalent Amount is at
least $20,000,000 entered into by the Borrower in such Quarterly
Period;
|
| | |
| | (4) |
a statement of all transactions, including
without limitation in respect of any Subordinated Debt, and
transfers between the Borrower and each of its Affiliates or
Shareholders (or Affiliates thereof) during such Quarterly
Period with a value in excess of $100,000 or the equivalent
thereof in other currencies at then current rates of exchange or
a statement that there were no such transactions; and
|
| |
| | (5) |
a Compliance Certificate, signed by an Authorized
Signatory of the Borrower, certifying that the Borrower was in
compliance with the
|
| | |
| | |
financial covenants contained in Section 5.10 as
of the end of such Quarterly Period or, as the case may be,
detailing any non-compliance.
|
| |
| (b) |
As soon as available but, in any event, within
120 days after the end of each Financial Year, the Borrower
shall furnish to NIB:
|
| | |
| | (1) |
two copies of the Borrower’s complete
Financial Statements for such Financial Year, together with a
report of the Auditors thereon, as prepared in Dollars in
accordance with Generally Accepted Accounting Principles in a
form satisfactory to NIB;
|
| |
| | (2) |
two copies of the Financial Statements for such
Financial Year prepared in Lei in accordance with RAS, with the
censors report thereon, in a form satisfactory to NIB;
|
| |
| | (3) |
a management letter from the Auditors commenting
on, among other matters, the adequacy of the Borrower’s
financial control procedures and accounting systems;
|
| |
| | (4) |
a Compliance Certificate, signed by the Auditors,
certifying that the Borrower was in compliance with the
financial covenants contained in Section 5.10 as of the end
of such Financial Year or, as the case may be, detailing any
non-compliance; and
|
| |
| | (5) |
a report, in form and scope satisfactory to NIB,
on environmental, health and safety issues arising in relation
to the Borrower and the Project during such Financial Year.
|
| |
| (c) |
Within 30 days after the effective date of
any new or renewed liability, property damage, business
interruption, contractor’s all-risks and public liability
insurance policy, the Borrower shall furnish to NIB an original
certificate from the Borrower’s insurer or insurance broker
indicating the properties insured, amounts and risks covered,
names of the loss payees (including NIB), beneficiaries and
assignees, name of the insurer and any special features of the
new or renewed insurance policy.
|
| |
| (d) |
Within 9 days after the end of each calendar
month, the Borrower shall furnish to NIB monthly management
accounts of the Borrower in the form to be agreed between the
Borrower and NIB, which shall include Financial Statements and
information regarding number of subscribers to the services
provided by the Borrower’s Network minutes of use thereof
and average revenue per user.
|
| |
| (e) |
The Borrower shall provide to NIB at least
30 days prior to incurring any Subordinated Debt notice of
such Subordinated Debt, identifying the person providing such
Subordinated Debt, the principal amount of such Subordinated
Debt and the principal terms thereof.
|
| |
| (f) |
The Borrower shall promptly inform NIB of:
|
| | |
| | (1) |
any proposed material change in the nature or
scope of the Project or the business or operations of the
Borrower;
|
| | |
| | (2) |
any claim made by the Borrower under any
insurance policy in an amount in excess of $1 million;
|
| |
| | (3) |
any event or condition (including, without
limitation, any pending or threatened litigation, arbitration or
administrative proceeding and any damage to or destruction of
Project facilities) which might have a material adverse effect
on the Project, the Borrower’s business, operations or
financial condition or the ability of the Borrower to perform
any of its obligations under any Financing Agreement or Project
Agreement; and
|
| |
| | (4) |
any communication by or with the Borrower or any
Controlling Shareholder with or from the Ministry that is
material in respect of each License, UMTS License Compliance and
other compliance with the conditions of each License.
|
| |
| (g) |
Within 15 days of receipt of any
communication from the Ministry that is material and adverse in
respect of UMTS License Compliance, the Borrower shall provide
to NIB a detailed compliance remediation plan for the resolution
of any compliance related issues identified in such
communication, which plans shall include, inter alia, an
identification of the UMTS License Compliance deficiencies, and
a description of actions required to remedy the same, including
detailed geographical and financial breakdowns; such compliance
remediation plans shall be updated on a monthly basis within
15 days after the end of each month.
|
| |
| (h) |
Immediately upon receipt by the Borrower of a
certificate or other communication from the Ministry evidencing
UMTS License Compliance, the Borrower shall furnish a copy of
such certificate or communication to NIB.
|
| |
| (i) |
Immediately upon the occurrence of any Event of
Default or Potential Event of Default, the Borrower shall give
NIB notice thereof specifying the nature of such Event of
Default or Potential Event of Default and any steps the Borrower
is taking to remedy the same.
|
| |
| (j) |
Immediately upon the occurrence of any incident
or accident relating to the Borrower or the Project likely to
have a material adverse effect on the environment, health or
safety, the Borrower shall give NIB notice thereof specifying
the nature of such incident or accident and any steps the
Borrower is taking to remedy the same. Without limiting the
generality of the foregoing, an incident or accident is likely
to have a material adverse effect on the environment, health or
safety if any applicable law requires notification of such
incident or accident to any governmental authority, such
incident or accident involves fatality or multiple serious
injuries requiring hospitalization or such incident or accident
has become public knowledge whether through media coverage or
otherwise.
|
| |
| (k) |
The Borrower shall furnish to NIB with respect to
each Financial Year the Borrower’s proposed one-year budget
including capital expenditure plan within 30 days of its
approval by the board of directors of the Borrower and in any
event within 30 days after the end of each Financial Year.
|
| | |
| | (1) |
within 90 days after the end of each
Financial Year, provide to NIB a certificate of an Authorised
Signatory confirming (A) the amount of Distributions which
the Borrower was permitted to make in accordance with Romanian
law in respect of such Financial Year and (B) the Deferred
Distribution Amount applicable in respect of the next Financial
Year; and
|
| |
| | (2) |
within 9 days of each Quarter Date, provide
to NIB a statement confirming the calculation of the amount
calculated pursuant to Section 6.01(a)(3)(C) in respect of
the Distribution Test Period ending on such Quarter Date.
|
| |
| (m) |
As soon as available but, in any event, within
9 days of each Quarter Date, the Borrower shall provide to
NIB a statement of its Cash and Cash Equivalents and calculation
of Excess Cash Flow and Available Cash Balance as at such
Quarter Date and the proposed distribution thereof in accordance
with the terms of this Agreement.
|
| |
| (n) |
The Borrower shall furnish promptly to NIB such
other information as NIB may from time to time reasonably
request. The Borrower shall permit representatives of NIB
(including, without limitation, any consultants engaged by NIB)
to visit the head office of the Borrower during normal business
hours, with prior notice, or any of the other premises where the
business of the Borrower is conducted or where the
Borrower’s Network is located and to have access to the
books of account and records of the Borrower.
|
Section 5.14 Procurement
The Borrower shall use procurement methods which
ensure a sound selection of goods and services at fair market
value and which ensure that the Borrower is making its capital
investments in a cost effective manner.
Section 5.15 License
Compliance
| |
| (a) |
The Borrower shall be at all times in full
compliance with all terms and conditions of the GSM License.
|
| |
| (b) |
The Borrower shall, at all times after obtaining
the UMTS License, achieve and maintain UMTS License Compliance.
|
Section 5.16 Repayment of
Existing Loans Indebtedness; Conditional
Discharges
The Borrower shall take all steps and actions to
ensure that the Existing Loans Indebtedness is repaid on the
date of first Disbursement of the Tranche I NIB Loan hereunder,
and that simultaneously with such repayment, the Existing Loans
Repayment Confirmations are delivered to the Conditional
Discharge Escrow Agent and the Conditional Discharge is released
from escrow.
ARTICLE VI — NEGATIVE
COVENANTS
Unless NIB otherwise agrees in writing:
Section 6.01 Distributions
| |
| (a) |
Except as expressly provided herein, the Borrower
shall not pay any dividend, or make any distribution on its
share capital, or purchase, redeem or otherwise acquire any
shares of capital of the Borrower or any option over the same,
or make any payment of principal or interest on any Permitted
Quasi Equity (any such action referred to as a
“Distribution”). Notwithstanding the foregoing, the
Borrower may make a Distribution (other than a principal payment
on Permitted Quasi Equity) but only provided that:
|
| | |
| | (1) |
at the time of making such Distribution no Event
of Default or Potential Event of Default has occurred and is
continuing, and no Event of Default or Potential Event of
Default shall occur immediately following such Distribution;
|
| |
| | (2) |
on the date of such Distribution and immediately
thereafter the Borrower shall be in full compliance with the
covenants set out in Section 5.10(a), provided that
notwithstanding the proviso to Section 5.10(a), for
purposes of this Section 6.01(a)(2) Curative Equity shall
not be taken into account in determining compliance with
Section 5.10(a);
|
| |
| | (3) |
Distributions shall not, at any time, exceed in
aggregate the sum of:
|
| | |
| | (x) |
Excess Cash Flow (calculated by reference to the
four consecutive and complete Quarterly Periods ending on the
last day of the Quarterly Period immediately preceding the date
on which the Distribution is to take place, (such period is
referred to as the “Distribution Test Period”)), less
|
| | |
| | (i) |
the aggregate amount of all mandatory prepayments
paid or payable pursuant to Section 3.09(d) on the four
(4)Excess Cash Mandatory Prepayment Dates occurring on or prior
to the date on which the Distribution is to take place, and
|
| | |
| | (ii) |
the aggregate amount of Distributions out of
Excess Cash Flow made within the 3 consecutive and complete
Quarterly Periods ending on the last day of the Quarterly Period
immediately preceding the date on which the Distribution is to
take place; or
|
| | |
| | (y) |
the Available Cash Balance, calculated at the end
of such Quarterly Period, less the aggregate amount of all
mandatory prepayments payable pursuant to Section 3.09(d)
out of such Available Cash Balance;
|
| | |
| | (B) |
the amount of net proceeds received by the
Borrower in the Distribution Test Period from the issuance of
Permitted High Yield Back to Back Debt less (i) the amount
of the mandatory prepayments payable or paid to the Senior
Lenders in respect of
|
| | |
| | |
such net proceeds under Section 3.09(a) and
(ii) the aggregate amount of Distributions made in respect
of such net proceeds during the Distribution Test Period; and
|
| |
| | (C) |
in respect of each Quarterly Period of each
Financial Year, from and after the Quarterly Period ending on 31
March 2003, the positive amount, if any, by which
|
| | |
| | (i) |
the Deferred Distribution Amount calculated by
reference to the end of the previous Financial Year,
|
exceeds
| | |
| | (ii) |
the aggregate amount, if any, paid as
Distributions under this Section 6.01(a)(3)(C) in respect
of such Deferred Distribution Amount;
|
provided that
| | |
| | (x) |
Distributions made in respect of any Distribution
Test Period shall be deemed to be made (1) first, out of
the applicable Deferred Distribution Amount, if any,
(2) second, out of the proceeds of Permitted High Yield
Back to Back Debt pursuant to Section 6.01(a)(3)(B), if
any, and (3) third, out of Excess Cash Flow pursuant to Section
6.01(a)(3)(A), if any, and
|
| |
| | (y) |
the amount calculated pursuant to
Section 6.01(a)(3)(C) in respect of any Quarterly Period
shall be included in Distributions only to the extent the
Borrower is in compliance with Romanian law requirements with
respect to permitted Distributions in the Financial Year in
which such Quarterly Period occurs.
|
| | |
| | (4) |
Distributions shall occur not earlier than
fifteen (15) days after the end of each Quarterly Period
and not later than thirty (30) days after the end of each
Quarterly Period, provided that
|
| | |
| | (A) |
the first Distribution after the date hereof may,
at the option of the Borrower take place (subject to the other
terms of this Section 6.01) either on or after 15 September
2002 but prior to 30 September 2002 or on or after 15 October
2002 but prior to 30 October 2002, and
|
| |
| | (B) |
the second Distribution after the date hereof
may, at the option of the Borrower take place (subject to the
other terms of this Section 6.01) on or after 15 December
2002 but prior to 30 December 2002 or on or after 15 January
2003 but prior to 30 January 2003;
|
| | |
| | (5) |
on the date of such Distribution and immediately
thereafter the USD Equivalent Amount of the Cash and Cash
Equivalents less the USD Equivalent Amount of the amounts paid
or payable to the Senior
|
| | |
| | |
Lenders on such date in connection with the
Senior Loans, if any, shall be greater than or equal to the
Minimum Cash Balance;
|
| |
| | (6) |
neither of the following events has occurred on
or prior to the date of such Distribution:
|
| | |
| | (A) |
the creditors of any Operating Shareholder have
exercised any pledge or other security interest they may have in
or over any of the share capital, cash or accounts receivable of
such Operating Shareholder, or
|
| |
| | (B) |
any Operating Shareholder has ceased to
constitute a going concern or an Event of Default under
Section 7.01(f) has occurred and is continuing with respect
to any Operating Shareholder provided that for purposes of this
Section 6.01(6)(B), Section 7.01(f) hereof shall be
read to include all Operating Shareholders irrespective of
whether they are also Shareholders;
|
| | |
| | (7) |
no Distributions may occur in a Quarterly Period
in which (a) the amount of Senior Loans to be prepaid under
Section 3.09(d)(i) is less than the amount identified in
Section 3.09(d)(i)(A) or (b) the amount of Senior
Loans to be prepaid under Section 3.09(d)(ii) is less than
the amount identified in Section 3.09(d)(ii)(A).
|
| |
| (b) |
The Borrower shall not make any payments to any
Operating Shareholder, or any Affiliate of any Operating
Shareholder, other than (i) Distributions permitted under
Section 6.01(a), and (ii) payments made to an
Operating Shareholder in the ordinary course of business, on
ordinary commercial terms, on the basis of arm’s length
arrangements and involving an ordinary commercial price, whether
under the Technical Services Agreements (as defined in the Share
Retention and Subordination Deed) or otherwise, provided such
payments do not exceed in the aggregate for all such persons
$3,500,000 in any Financial Year.
|
Section 6.02 Financial
Debt
| |
| (a) |
The Borrower shall not incur, assume or permit to
exist any Financial Debt except:
|
| | |
| | (1) |
prior to the Existing Loans Repayment Date, the
Existing Loans;
|
| |
| | (2) |
the Senior Loans;
|
| |
| | (3) |
any Working Capital Facilities (but only in an
aggregate available amount not to exceed $20,000,000) (or the
equivalent thereof in other currencies at then current rates of
exchange);
|
| |
| | (4) |
subject to compliance with Section 3.09(f)
and Section 5.07(h), Permitted High Yield Back to Back Debt;
|
| |
| | (5) |
Financial Debt incurred under guarantees of loans
of employees of the Borrower, which guarantees are issued
pursuant to and in accordance with an employee loan guarantee
plan, which plan (i) shall not permit
|
| |
| |
the aggregate obligations of the Borrower under
guarantees issued pursuant to such plan to exceed $2,000,000 and
(ii) the incurrence of such Financial Debt shall otherwise
be on terms satisfactory to NIB, acting reasonably;
|
| | |
| | (6) |
any interest rate or currency hedging or similar
derivative transaction permitted under Section 6.04;
|
| |
| | (7) |
any indebtedness in connection with a conditional
sales contract, hire purchase agreement or other instrument
pursuant to which financing of the purchase price of equipment
or another tangible asset is provided by a supplier to the
Borrower, provided that such financing has a maturity of no
longer than 180 days; and
|
| |
| | (8) |
any indebtedness to the Government of Romania or
any governmental authority, arising in connection with deferred
payment arrangements in respect of the acquisition of the UMTS
License.
|
| |
| (b) |
The Borrower shall not enter into
any agreement or arrangement to guarantee or, in any way or
under any condition, to become obligated for all or any part of
any financial or other obligation of another person, except in
the ordinary course of business and only up to an aggregate
amount of $2,000,000.
|
| |
| (c) |
The Borrower shall not pay any
principal, interest or any other amount in respect of Permitted
High Yield Back to Back Debt, other than interest payments
permitted pursuant to Section 2.01(b)(iv) of the Share
Retention and Subordination Deed provided that:
|
| | |
| | (1) |
at the time of such payment, no Event of Default
or Potential Event of Default has occurred and is continuing,
and no Event of Default or Potential Event of Default shall
occur immediately following such payment; and
|
| |
| | (2) |
at the time of such payment and immediately
thereafter the Borrower shall be in full compliance with the
covenants set out in Section 5.10(a).
|
Section 6.03 Liens
The Borrower shall not create or permit to exist
any Lien on any property, revenues or other assets, present or
future, of the Borrower, except:
| | |
| | (1) |
at any time prior to the Existing Security
Discharge Date, the Existing Security;
|
| |
| | (2) |
the Security;
|
| |
| | (3) |
any tax or other non-consensual Lien arising by
operation of law or other statutory Lien arising in the ordinary
course of business, provided that such Lien (other than a Lien
for a sum which is not yet delinquent) is discharged within
60 days after the date it is created or, if the validity or
amount of such Lien or the sum secured by such Lien
|
| |
| |
is being contested in good faith and by proper
proceedings and adequate reserves have been set aside for the
payment of such sum, within 60 days after final
adjudication;
|
| | |
| | (4) |
any Lien on the Borrower Accounts and offshore
roaming revenues to the extent required to secure the Working
Capital Facilities; and
|
| |
| | (5) |
rights of any Hedge Provider providing hedging
facilities pursuant to a Hedging Agreement in relation to the
NIB Loan, the EBRD Loan or the EDC Loan, to share in the
Security on a pari passu basis with the Senior Lenders,
such sharing to be on terms and conditions otherwise acceptable
to NIB, provided that such Hedge Provider shall become a party
to the Security Sharing and Intercreditor Agreement and the
Security Documents provided that the amount of such proceeds
cannot exceed in the aggregate for all such Hedge Providers and
hedging facilities $30 million.
|
provided, however, that the aggregate of the debt
secured by the Liens securing indebtedness to Working Capital
Lenders shall only be permissible to the extent necessary to
secure on a first priority basis (subject to the Existing
Security) such debt up to an amount not exceeding in aggregate
$20 million and provided further that such Working Capital
Lenders shall have no further entitlement to security, including
under the Security, and that the Working Capital Lenders become
parties to the Security Sharing and Intercreditor Agreement on
terms satisfactory to the Senior Lenders.
Section 6.04 Derivative
Transactions
The Borrower shall not enter into any interest
rate or currency swap, interest rate cap or collar, forward rate
agreement or other interest rate, currency or commodity hedge or
similar derivative transaction, other than any interest rate or
currency hedging against interest rate or currency risks
directly arising out of the Senior Loans or in connection with
vendor invoices of the Borrower in the ordinary course of
business on terms consistent with the Hedging Plan and with
counterparts which have a Standard & Poor’s Rating
Services credit rating of their long-term unsecured debt of at
least “A”, or is otherwise of credit quality
acceptable to NIB. The Borrower shall promptly inform NIB of any
hedging transaction entered into with respect to the Senior
Loans when entered into and shall promptly furnish to NIB a copy
of the Hedging Agreement related thereto.
Section 6.05 Arm’s
Length Transactions
The Borrower shall not enter into any transaction
with any person except in the ordinary course of business, on
ordinary commercial terms and on the basis of arm’s-length
arrangements, or enter into any transaction whereby the Borrower
would pay more than the ordinary commercial price for any
purchase or would receive less than the full ex-works commercial
price (subject to normal trade discounts) for its products or
services.
Section 6.06 Profit-sharing
and Management Arrangements
| |
| (a) |
The Borrower shall not enter into
any partnership, profit-sharing or royalty agreement or other
similar arrangement whereby the Borrower’s income or
profits are, or might be, shared with any other person, other
than Shareholders under conditions expressly
|
| |
| |
set forth in the Project Agreements or Financing
Agreements, and other than (1) any stock option plan of the
Borrower, which (i) only permits the purchase of shares or
exercise of options in conjunction with or after a Public
Offering or a Public Secondary Sale of the Borrower,
(ii) caps the number of shares to be issued under such plan
at no greater than 5% of the total issued and outstanding share
capital of the Borrower at the relevant time, (iii) applies only
to employees of the Borrower at specified seniority levels and
specified consultants of the Borrower and (iv) is otherwise
acceptable to NIB, or (2) any compensation arrangement
applicable to persons identified in paragraph (1)(iii) above,
and acceptable to NIB that has, in substance, the same effect
and restrictions as to value as a stock option plan identified
in paragraph (1) above.
|
| |
| (b) |
The Borrower shall not enter into
any management contract or similar arrangement whereby its
business or operations are managed by any other person, other
than with Shareholders under the conditions detailed in the
Project Agreements.
|
Section 6.07 Investments
| | |
| | (1) |
The Borrower shall not form or have any
Subsidiary.
|
| |
| | (2) |
The Borrower shall not make or permit to exist
loans or advances to, or deposits (other than bank deposits in
Dollars, Euro or Lei with maturity of less than 90 days
made in the ordinary course of business with reputable banks)
with, other persons or investments in any person or enterprise;
provided, however, that the Borrower may invest cash balances in
the Borrower Accounts in excess of the Minimum Cash Balance in
Permitted Treasury Investments.
|
| |
| | (3) |
The Borrower shall ensure that at all times the
representation and warranty contained in Section 2.02(b) is
true and correct.
|
Section 6.08 Project
Agreements
The Borrower shall not terminate, amend or grant
any waiver in respect of any material provision of any Project
Agreement to which it is a party or consent to any assignment of
any Project Agreement by any other party thereto.
Section 6.09 Changes in
Business and Capital
| |
| (a) |
The Borrower shall not make
changes, or permit changes to be made, to the nature of its
present and presently contemplated business or operations or
change the nature or scope of the Project. The Borrower shall
not carry out any business or activity other than businesses or
activities substantially related to the Project.
|
| |
| (b) |
The Borrower shall not make
changes, or permit changes to be made, to its capital other than
(i) pursuant to Distributions permitted under Section 6.01,
(ii) contributions of equity or Permitted Quasi Equity and
(iii) share repurchases permitted under Section 4.04 of the
Share Retention and Subordination Deed, subject in the case of
(iii) to Section 4.05 of the Share Retention and
Subordination Deed and Section 4.4 of the Security
Agreement Over Shares.
|
Section 6.10 Prepayment of
Long-term Debt
The Borrower shall not (whether voluntarily or
involuntarily) make any prepayment, repurchase or early
redemption of any Long-term Debt or make any repayment of any
Long-term Debt pursuant to any provision of any agreement or
note which provides directly or indirectly for acceleration of
repayment in time or amount, unless in any such case it shall
contemporaneously make a proportionate prepayment of the
principal amount then outstanding of the NIB Loan in accordance
with the provisions of Section 3.09 (except that there
shall be no minimum amount or notice period for such prepayment).
Section 6.11 Sale of
Assets; Merger
| |
| (a) |
The Borrower shall not sell,
transfer, lease or otherwise dispose of all or a substantial
part (as determined by NIB in its reasonable discretion) of its
assets (whether in a single transaction or in a series of
transactions, related or otherwise).
|
| |
| (b) |
The Borrower shall not undertake
or permit any merger, consolidation or reorganization.
|
Section 6.12 Shareholders
Register
The Borrower shall not record any entry in the
shareholders register of the Borrower of any kind whatsoever
including, without limitation, in respect of any security
interest in any of the share capital of the Borrower, transfer
of shares or issuance of shares (a) without providing to
NIB at least five (5) Business Days prior notice in respect of
such entry and within five (5) Business Days after such entry is
made a copy of the shareholders register of the Borrower
reflecting such entry, and (b) without certifying to NIB in
such notice that after such entry is made, 100% of the share
capital of the Borrower, subject to Section 4.05 of the
Share Retention and Subordination Deed and Section 4.4 of
the Security Agreement Over Shares, shall be subject to the
Security Agreement Over Shares.
Section 6.13 Public
Offering or Public Secondary Sale
No shares in the share capital of the Borrower
shall be sold in a Public Offering or Public Secondary Sale
unless:
| |
| (a) |
if no prepayment is made under
Section 3.09(b), more than 75% of the share capital of the
Borrower is subject to the Security after giving effect to such
Public Offering or Public Secondary Sale; and
|
| |
| (b) |
if a prepayment as required under
Section 3.09(b) is made, such percentage of shares in the
capital of the Borrower as is required under
Section 3.09(b) is subject to the Security.
|
ARTICLE VII — EVENTS OF
DEFAULT
Section 7.01 Events of
Default
Each of the following events and occurrences
shall constitute an Event of Default under this Agreement:
| |
| (a) |
Payments. The Borrower
fails to pay when due any principal of or interest on, the NIB
Loan as required by this Agreement.
|
| |
| (b) |
Covenants. The Borrower or
any other party (other than the Senior Lenders, or the Agent)
repudiates or fails to perform in a timely manner any of its
obligations under any Financing Agreement (other than the
Security Sharing and Intercreditor Agreement), such repudiation
or such failure to perform any such obligation is not referred
to elsewhere in this Section 7.01 and, if capable of
remedy, such repudiation or such failure to perform has
continued for (1) a period of 30 days in respect of a
breach of Section 5.10(a) of any of the Senior Loan
Agreements, or (2) a period of 15 days in respect of
all other breaches, in each case after the earlier of the date
upon which (i) the Borrower has become aware of the same or
(ii) notice thereof has been given to the Borrower by NIB.
|
| |
| (c) |
Project Agreements. Any
party (other than the Senior Lenders) fails to perform in a
timely manner any of its obligations under any Project
Agreement, the failure to perform such obligation is not
referred to elsewhere in this Section 7.01 and, if capable
of remedy, such failure to perform has continued for a period of
30 days after the earlier of the date upon which
(i) the Borrower has become aware of the same, and (ii)
notice thereof has been given to the Borrower by NIB, and, in
either case, such failure to perform has a material adverse
effect on the ability of the Borrower to perform any of its
obligations under this Agreement.
|
| |
| (d) |
Representations. Any
representation or warranty made or confirmed by the Borrower or
any Shareholders or Operating Shareholders in any Financing
Agreement or Project Agreement was false or misleading when made
or confirmed.
|
| |
| (e) |
Nationalisation. Any
government or governmental authority condemns, nationalises,
seizes or otherwise expropriates all or any substantial or
significant part of the property or other assets of the Borrower
or of its share capital, or assumes custody or control of such
property or other assets or of the business or operations of the
Borrower or of its share capital, or acquires majority ownership
of the Borrower, or takes any action for the dissolution or
disestablishment of the Borrower or any action that would
prevent the Borrower or its officers from carrying on the
Borrower’s business or operations or a substantial part
thereof.
|
| |
| (f) |
Bankruptcy. A decree or
order by a court is entered against (i) the Borrower,
(ii) ClearWave, or (iii) any Operating Shareholder
which is a Shareholder or which is a holder of Permitted High
Yield Back to Back Debt (any such party referred to in
Subparagraph (i), (ii) or (iii), a “Relevant
Person”) adjudging any Relevant Person bankrupt or
insolvent or ordering the winding up or liquidation of its
affairs; or a petition is filed seeking reorganization,
administration, arrangement, adjustment, composition or
liquidation of or in respect of any Relevant Person under any
applicable law (unless, if such petition is filed by a party
other than the Borrower or any Operating Shareholder, is not
consented to by the Borrower or any Operating Shareholder, and
is, in the opinion of NIB acting reasonably, frivolous or
vexatious, such petition is vacated or discharged within
90 days (in case of a petition filed in Romania) or 30 days
(in case of a petition filed in any jurisdiction other than
Romania) of such filing); or a receiver, administrator,
liquidator, assignee, trustee, sequestrator, secured creditor or
other similar official is appointed over or in respect of any
Relevant Person or any substantial part of its property or
assets or any Relevant
|
| |
| |
Person institutes proceedings to be adjudicated
bankrupt or insolvent, or consents to the institution of
bankruptcy or insolvency proceedings against it, or files a
petition or answer or consent seeking reorganization,
administration, relief or liquidation under any applicable law,
or consents to the filing of any such petition or to the
appointment of a receiver, administrator, liquidator, assignee,
trustee, sequestrator, secured creditor or other similar
official of any Relevant Person or of any substantial part of
its property, or makes an assignment for the benefit of
creditors, or admits in writing its inability to pay its debts
generally as they become due; or any other event occurs which
under any applicable law would have an effect analogous to any
of the events listed in this Section.
|
| |
| (g) |
Financial Debt. Any
Financial Debt of the Borrower (other than the NIB Loan) which
exceeds $1,000,000 or any Financial Debt of any holder of
Permitted High Yield Back to Back Debt in excess of $50,000,000
is not paid when due; or a default of any nature occurs under
any agreement pursuant to which there is outstanding any such
Financial Debt, such default continues beyond any original
applicable period of grace and the holder of such Financial Debt
is entitled to accelerate such Financial Debt; or any such
Financial Debt becomes prematurely due and payable or is placed
on demand.
|
| |
| (h) |
Adverse Change. Any
circumstance or event occurs which, in the reasonable opinion of
NIB, is likely to have a material adverse effect on the Project,
the business, operations or financial condition of the Borrower,
or the ability of the Borrower to perform any of its obligations
under any Financing Agreement.
|
| |
| (i) |
Termination or Adverse
Amendment of the Licenses. Either License is terminated or
amended by the Ministry in a manner which, in NIB’s sole
discretion, has a material adverse effect on the ability of the
Borrower to perform any of its obligations under this Agreement,
or, if the Ministry gives notice of its intention to so
terminate or amend either License, the earlier to occur of
(i) such termination or amendment or (ii) the date which is
90 days from the date on which the Ministry gives notice of
such intention..
|
| |
| (j) |
Interconnection Agreements.
The Romtelecom Interconnection Agreement or the Orange Romania
Interconnection Agreement terminates or expires and is not
renewed, or is amended or renewed in a manner that has a
material adverse effect on the ability of the Borrower to
perform any of its obligations under this Agreement, unless
prior to such termination or non-renewal alternative
arrangements in respect of the matters to which the Romtelecom
Interconnection Agreement or the Orange Romania Interconnection
Agreement, as applicable, relates have been made which are
satisfactory to NIB acting reasonably.
|
| |
| (k) |
Judgement. A final
judgement or order for the payment of money in excess of
$5,000,000 (or its equivalent in other currencies at then
current rates of exchange) is rendered against the Borrower or
its properties and such judgement or order shall continue
unsatisfied or unstayed for a period of 15 consecutive days.
|
| |
| (l) |
Security Agreement Over
Shares. Subject to Section 4.05 of the Share Retention
and Subordination Deed and Section 4.4 of the Security
Agreement Over Shares, at any time the following condition fails
to be met, and such failure has continued for a period of
30 days after notice thereof has been given to the Borrower
by NIB: 100%
|
| |
| |
of the shares in the capital of the Borrower
shall remain effectively subject to the security interest in
favour of the Senior Lenders pursuant to the Security Agreement
Over Shares.
|
| |
| (m) |
Illegality. At any time it is or
becomes unlawful for the Borrower to perform or comply with any
or all of its obligations under any of the Project Agreements or
any of the obligations of the Borrower under any of the Project
Agreements are not or cease to be legal, valid, binding and
enforceable.
|
| |
| (n) |
Change in Control. At any time
ClearWave’s Majority Shareholder or any Controlling
Shareholder is in breach of Section 4.01, 4.02 or 4.03 of
the Share Retention and Subordination Deed.
|
Section 7.02 Acceleration
and Cancellation
Upon the occurrence of an Event of Default, at
any time thereafter, NIB may by notice to the Borrower:
| |
| (a) |
declare all or any portion of the
principal of and accrued interest on, the NIB Loan (together
with any other amounts accrued or payable under this Agreement
the “Declared Amount”) to be immediately due and
payable whereupon the same shall become so due and payable, or
declare all or any part of the Declared Amount to be due and
payable on demand by NIB without any presentment, demand or
protest of any kind, all of which are hereby expressly waived by
the Borrower; and/or
|
| |
| (b) |
declare that any undrawn portion
of the NIB Loan shall be cancelled, whereupon the same shall be
cancelled.
|
Section 7.03 Disbursements
Due on Demand
If, pursuant to Section 7.02 NIB declares
all or any part of the Declared Amount to be due and payable on
demand of NIB then, and at any time thereafter, NIB may by
notice to the Borrower:
| |
| (a) |
require repayment of all or such
part of the Declared Amount on such date as it may specify in
such notice (whereupon the same shall become due and payable on
the date specified together with accrued interest thereon and
any other sums then owed by the Borrower hereunder) or withdraw
its declaration with effect from such date as it may specify;
and/or
|
| |
| (b) |
select as the duration of any
Interest Period which begins whilst such declaration remains in
effect a period of six months or less.
|
Section 7.04 Automatic
Acceleration
If the Borrower becomes voluntarily or
involuntarily dissolved or bankrupt (however such bankruptcy may
be evidenced), the principal of, and all accrued interest on,
the NIB Loan (together with any other amounts accrued or payable
under this Agreement) shall thereupon become immediately due and
payable (anything in this Agreement to the contrary
notwithstanding) without any presentment, demand, protest or
notice of any kind, all of which are hereby expressly waived by
the Borrower.
ARTICLE VIII —
MISCELLANEOUS
Section 8.01 Term of
Agreement
This Agreement shall continue in force until the
date that the obligation of NIB to make Disbursements hereunder
has terminated in accordance with the terms hereof or, if later,
until all moneys payable hereunder have been fully paid in
accordance with the provisions hereof; provided that the
indemnities and warranties of the Borrower shall survive
repayment of the NIB Loan and termination of this Agreement.
Section 8.02 Entire
Agreement; Amendment and Waiver
This Agreement and the documents referred to
herein constitute the entire obligation of the parties hereto
with respect to the subject matter hereof and shall supersede
any prior expressions of intent or understandings with respect
to this transaction. Any amendment to, waiver by NIB of any of
the terms or conditions of or consent given by NIB under, this
Agreement (including, without limitation, this
Section 8.02) shall be in writing, signed by NIB and, in
the case of an amendment, by the Borrower. In the event that NIB
waives a condition to any Disbursement, the Borrower shall, by
receiving the proceeds of such Disbursement, be deemed to have
agreed to all of the terms and conditions of such waiver.
Section 8.03 Notices
| |
| (a) |
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, letter or, subject to Section 8.03(d),
electronic mail.
|
| |
| (b) |
Addresses. The address, fax
number or e-mail address (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:
|
| |
| |
For the Borrower:
|
| |
| |
MobiFon S.A.
City Business Centre
3 ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇ ▇▇▇, ▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
|
| |
| |
Attention: Chief Financial Officer
Fax: (40)
(▇▇) ▇▇▇-▇▇▇▇
E-mail: To be notified by the Borrower
|
| |
| |
For NIB:
|
| |
| |
Nordic ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
| |
| |
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇/ ▇▇▇ ▇▇▇▇▇▇▇▇▇
Fax: ▇▇▇ ▇ ▇▇▇ ▇▇▇▇
E-mail: To be notified by NIB
|
| |
| |
or any substitute address, fax number or e-mail
address or department or officer as the Borrower may notify to
NIB (or NIB may notify to the Borrower if a change is made by
NIB) by not less than five Business Days’ notice.
|
| |
| (c) |
Delivery. 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, 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) |
if by way of e-mail, when a delivery receipt is
received by the sender confirming that the e-mail has been
delivered to the recipient’s correct e-mail address;
|
| |
| |
and, if a particular department or officer is
specified as part of its address details provided under
Section 8.03(b), if addressed to that department or officer.
|
| |
| |
Any notice delivered in accordance with this
Section 8.03 after 4:00 p.m. on a Business Day, or on a day
which is not a Business Day, will be deemed to have been
delivered at 10:00 a.m. on the next Business Day.
|
| |
| (d) |
Limitation on use of electronic
mail. Electronic mail may only be used
for communications to be made under or in connection with the
following Sections of this Agreement:
|
| | |
| | (i) |
Section 5.13(a)(1), (2), (3) and (4);
|
| |
| | (ii) |
Section 5.13(d);
|
| |
| | (iii) |
Section 5.13(e);
|
| |
| |
(iv) Section 5.13(k);
|
| |
| |
(v) Section 5.13(l)(2); and
|
| |
| |
(vi) Section 5.13(m).
|
| |
| |
If the Borrower supplies NIB with Financial
Statements pursuant to Section 5.13 by e-mail, the Borrower
shall supply a hard copy of those Financial Statements within 5
Business Days to NIB if NIB notifies the Borrower that it
requires a hard copy of those Financial Statements.
|
| | |
| | (1) |
Except as provided below, the Borrower may
deliver any information identified in Section 8.03(d) to
NIB by posting it on to an electronic website if:
|
| | |
| | (i) |
NIB and the Borrower agree;
|
| |
| | (ii) |
NIB designates an electronic website for this
purpose;
|
| |
| | (iii) |
both the Borrower and NIB are aware of the
address of and any relevant password specifications for the
website; and
|
| |
| |
(iv) the information posted is in a
format agreed between the Borrower and NIB.
|
| | |
| | (2) |
Notwithstanding the above, the Borrower must
supply to NIB in paper form a copy of any information posted on
the website:
|
| | |
| | (i) |
if so requested to do so by NIB; and
|
| |
| | (ii) |
if so required by a governmental requirement.
|
| |
| |
In both cases within ten (10) Business Days
of receipt of the request.
|
| | |
| | (3) |
The Borrower must promptly upon becoming aware of
its occurrence, notify NIB if:
|
| | |
| | (i) |
the website cannot be accessed;
|
| |
| | (ii) |
the website or any information on the website is
infected by any electronic virus or similar software;
|
| |
| | (iii) |
the relevant password specification for the
website is changed; or
|
| |
| |
(iv) any information is posted on the
website or amended after being posted.
|
| |
| |
In the circumstances in paragraphs (i) or
(ii) above occur, the Borrower must supply any information
required under this Agreement in paper form.
|
Section 8.04 English
Language
All documents to be furnished or communications
to be given or made under this Agreement shall be in the English
language or, if in another language, shall be accompanied by a
translation into English certified by the Borrower, which
translation shall be the governing version between the Borrower
and NIB.
Section 8.05 Financial
Calculations
All financial calculations to be made under, or
for the purposes of this Agreement shall be made in accordance
with Generally Accepted Accounting Principles and, except as
otherwise required to conform to the definitions contained in
Article I or any other provisions of this
| |
| |
Agreement, shall be made using the then most
recently issued quarterly Financial Statements which the
Borrower is required to furnish to NIB from time to time under
Section 5.13(a); provided, however, that:
|
| | |
| | (1) |
if the relevant quarterly Financial Statements
should be in respect of the last quarter of a Financial Year
then, at NIB’s option, such calculations may instead be
made from the audited Financial Statements for the relevant
Financial Year; and
|
| |
| | (2) |
if there should occur any material adverse change
in the financial condition of the Borrower after the end of the
period covered by the relevant Financial Statements, then such
material adverse change shall also be taken into account in
calculating the relevant figures.
|
Section 8.06 Rights,
Remedies and Waivers
| |
| (a) |
The rights and remedies of NIB in
relation to any misrepresentations or breach of warranty on the
part of the Borrower shall not be prejudiced by any
investigation by or on behalf of NIB into the affairs of the
Borrower, by the execution or the performance of this Agreement
or by any other act or thing which may be done by or on behalf
of NIB in connection with this Agreement and which might, apart
from this Section, prejudice such rights or remedies.
|
| |
| (b) |
No course of dealing or waiver by
NIB in connection with any condition of disbursement under this
Agreement shall impair any right, power or remedy of NIB with
respect to any other condition of disbursement or be construed
to be a waiver thereof.
|
| |
| (c) |
No action of NIB in respect of any
Disbursement shall affect or impair any right, power or remedy
of NIB in respect of any other Disbursement. Without limiting
the foregoing, the right of NIB to require compliance with any
condition under this Agreement which may be waived by NIB in
respect of any Disbursement is, unless otherwise notified to the
Borrower by NIB, expressly preserved for the purposes of any
subsequent Disbursement.
|
| |
| (d) |
No course of dealing and no delay
in exercising, or omission to exercise, any right, power or
remedy accruing to NIB upon any default under this Agreement or
any other agreement shall impair any such right, power or remedy
or be construed to be a waiver thereof or an acquiescence
therein. No single or partial exercise of any such right, power
or remedy shall preclude any other or further exercise thereof
or the exercise of any other right, power or remedy. No action
of NIB in respect of any such default, or acquiescence by it
therein, shall affect or impair any right, power or remedy of
NIB in respect of any other default.
|
| |
| (e) |
The rights and remedies provided
in this Agreement and the other Financing Agreements are
cumulative and not exclusive of any other rights or remedies,
whether provided by applicable law or otherwise.
|
Section 8.07 Indemnification
| |
| (a) |
The Borrower assumes full liability for, and
agrees to and shall indemnify and hold harmless NIB and its
officers, directors, employees, agents and servants against and
from any and all liabilities, obligations, losses, damages
(compensatory, punitive or otherwise), penalties, claims,
actions, taxes, duties, suits, costs and expenses (including,
without limitation, reasonable legal counsel’s fees and
expenses and costs of investigation including, where applicable,
VAT) of whatsoever kind and nature (as the same is described in
a notice provided by NIB to the Borrower in respect thereof)
including, without prejudice to the generality of the foregoing,
those arising in contract or tort (including, without
limitation, negligence) or by strict liability or otherwise,
which are imposed on, incurred by or asserted against NIB or any
of its officers, directors, employees, agents or servants
(whether or not also indemnified by any other person under any
other document) and which in any way relate to or arise out of,
whether directly or indirectly:
|
| | |
| | (1) |
any of the transactions contemplated by any
Financing Agreement, Project Agreement, or other Material
Agreement or the execution, delivery or performance thereof;
|
| |
| | (2) |
the operation or maintenance of the
Borrower’s facilities or the ownership, control or
possession thereof by the Borrower; or
|
| |
| | (3) |
the exercise by NIB of any of its rights and
remedies under any of the Financing Agreements;
|
| |
| |
provided that NIB shall not have any right to be
indemnified hereunder for its own recklessness or wilful
misconduct.
|
| |
| (b) |
The Borrower acknowledges that NIB is entering
into this Agreement and has acted solely as a lender, and not as
an advisor, to the Borrower. The Borrower represents and
warrants that, in entering into the Financing Agreements, it has
engaged, and relied upon advice given to it by, its own legal,
financial and other professional advisors and it has not relied
on and will not hereafter rely on any advice given to it by NIB.
|
| |
| (c) |
If any sum (a “Sum”) due from the
Borrower under this Agreement or any order, judgment or award
given or made in relation hereto has to be converted from the
currency (the “First Currency”) in which such Sum is
payable into another currency (the “Second Currency”)
for the purpose of:
|
| | |
| | (i) |
making or filing a claim or proof against the
Borrower;
|
| |
| | (ii) |
obtaining an order, judgment, award or decision
in any court, arbitral proceedings or other tribunal; or
|
| |
| | (iii) |
enforcing any order, judgment, award or decision
given or made in relation hereto,
|
| |
| |
the Borrower shall indemnify NIB for any Sum
which is due to NIB from and against any loss suffered or
incurred as a result of any discrepancy between (a) the
rate of
|
| |
| |
exchange used for such purpose to convert such
Sum from the First Currency into the Second Currency and
(b) the rates of exchange available to NIB at the time of
receipt of such Sum.
|
(d) Set-off:
| | |
| | (i) |
Contractual Set-off.
The Borrower authorizes NIB to apply any amounts owed by NIB to
the Borrower in satisfaction of any sum due and payable from the
Borrower to NIB hereunder but unpaid. For this purpose, NIB is
authorized to purchase with the moneys standing to the credit of
any such account such other currencies as may be necessary to
effect such application;
|
| |
| | (ii) |
Set-off not
Mandatory. NIB shall not be obliged to
exercise any right given to it by Section 8.07(d)(i).
|
Section 8.08 Governing
Law
This Agreement shall be governed by and construed
in accordance with the laws of England.
Section 8.09 Arbitration
and Jurisdiction
| |
| (a) |
Any dispute, controversy or claim arising out of
or relating to this Agreement, or the breach, termination or
invalidity hereof, shall be settled by arbitration in accordance
with the UNCITRAL Arbitration Rules as at present in force.
There shall be one arbitrator and the appointing authority shall
be the London Court of International Arbitration. The seat and
place of arbitration shall be London, England and the English
language shall be used throughout the arbitral proceedings. The
parties hereby waive any rights under the Arbitration ▇▇▇ ▇▇▇▇
to appeal any arbitration award to, or to seek determination of
a preliminary point of law by, the Courts of England. The
arbitral tribunal shall not be authorised to take or provide,
and the Borrower agrees that it shall not seek from any judicial
authority, any interim measures of protection or pre-award
relief against NIB, any provisions of UNCITRAL Arbitration Rules
notwithstanding. The arbitral tribunal shall have authority to
consider and include in any proceeding, decision or award any
further dispute properly brought before it by NIB or the
Borrower insofar as such dispute arises out of any Financing
Agreement, but, subject to the foregoing, no other parties or
other disputes shall be included in, or consolidated with, the
arbitral proceedings. In any arbitral proceeding, the
certificate of NIB as to any amount due to NIB under any
Financing Agreement shall be prima facie evidence of such amount.
|
| |
| (b) |
Notwithstanding Section 8.09(a), this
Agreement and the other Financing Agreements, and any rights of
NIB arising out of or relating to this Agreement or any other
Financing Agreement, may, at the option of NIB, be enforced by
NIB in the courts of Romania or in any other courts having
jurisdiction. For the benefit of NIB, the Borrower hereby
irrevocably submits to the non-exclusive jurisdiction of the
courts of England with respect to any dispute, controversy or
claim arising out of or relating to this Agreement or any other
Financing Agreement, or the breach, termination or invalidity
hereof or thereof. The Borrower hereby irrevocably designates,
appoints and empowers The Law Debenture Corporate Services
Limited at its registered office (being, on the date hereof, at
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
|
| |
| |
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇) to act as its
authorised agent to receive service of process and any other
legal summons in England for purposes of any such action or
proceeding. The Borrower hereby irrevocably consents to the
service of process or any other legal summons out of such courts
by mailing copies thereof by registered airmail postage prepaid
to its address specified herein. The Borrower covenants and
agrees that, so long as it has any obligations under this
Agreement, it shall maintain a duly appointed agent to receive
service of process and any other legal summons in any legal
action or proceeding brought by NIB in England in respect of any
Financing Agreement and shall keep NIB advised of the identity
and location of such agent. Nothing herein shall affect the
right of NIB to commence legal actions or proceedings against
the Borrower in any manner authorised by the laws of any
relevant jurisdiction. The commencement by NIB of legal actions
or proceedings in one or more jurisdictions shall not preclude
NIB from commencing legal actions or proceedings in any other
jurisdiction, whether concurrently or not. The Borrower
irrevocably waives any objection it may now or hereafter have on
any grounds whatsoever to the laying of venue of any legal
action or proceeding and any claim it may now or hereafter have
that any such legal action or proceeding has been brought in an
inconvenient forum.
|
Section 8.10 Privileges and
Immunities of NIB
Nothing in this Agreement shall be construed as a
waiver, renunciation or other modification of any immunities,
privileges or exemptions of NIB accorded under the Agreement
among Denmark, Finland, Iceland, Norway and Sweden regarding
Nordic Investment Bank dated October 23, 1998 and the
Agreement for Financial Cooperation between the Romanian
Government and NIB dated August 26, 1998, international
convention or any applicable law.
Section 8.11 Waiver of
Sovereign Immunity
The Borrower represents and warrants that this
Agreement and the incurring by the Borrower of NIB Loan are
commercial rather than public or governmental acts and that the
Borrower is not entitled to claim immunity from legal
proceedings with respect to itself or any of its assets on the
grounds of sovereignty or otherwise under any law or in any
jurisdiction where an action may be brought for the enforcement
of any of the obligations arising under or relating to this
Agreement. To the extent that the Borrower or any of its assets
has or hereafter may acquire any right to immunity from set-off,
legal proceedings, attachment prior to judgement, other
attachment or execution of judgement 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.
Section 8.12 Successors and
Assigns; Third Party Rights.
| |
| (a) |
Binding Agreement.
This Agreement shall be binding upon
and enure to the benefit of each party hereto and its or any
subsequent successors and transferees.
|
| |
| (b) |
No Assignments and Transfers by the Borrower.
The Borrower shall not be entitled to
assign or transfer all or any of its rights, benefits and
obligations hereunder.
|
| |
| (c) |
Assignments and Transfers.
NIB may, at any time, (i) assign
any of its rights and benefits hereunder, or (ii) transfer
by novation any of its rights, benefits and obligations
hereunder, provided that in respect of transfers (save in the
case of any
|
| |
| |
transfer (a) to any subsidiary or holding
company of NIB, (b) after the occurrence of the final
Disbursement hereunder, the suspension or cancellation of the
NIB Loan, or an Event of Default or Potential Event of Default,
or (c) which occurs after the end of the Tranche II
Commitment Period) and subject as provided in
Section 8.12(d), no such assignment or transfer may be made
without the prior written consent of the Borrower, such consent
not to be unreasonably withheld or delayed.
|
| |
| (d) |
Deemed Consent. Any
consent required to be given by a party under
Section 8.12(c) shall be deemed to have been given unless
such party shall have notified the requesting party to the
contrary within five (5) Business Days of the request for such
consent.
|
| |
| (e) |
Third Party Rights.
Except as provided in
Section 8.12(a) or 8.12(b), a person who is not a party to
this Agreement may not enforce any of its terms under the
Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇.
Notwithstanding any term of this Agreement, the consent of any
third party is not required for any variation (including any
release or compromise of any liability under) or termination of
this Agreement.
|
Section 8.13 Disclosure
NIB may disclose such documents, information and
records regarding the Borrower and this transaction (including,
without limitation, copies of any Financing Agreements and
Project Agreements) as NIB deems appropriate in connection with
any dispute involving the Borrower or any other party to a
Financing Agreement, for the purpose of preserving or enforcing
any of NIB’s rights under any Financing Agreement or
collecting any amount owing to NIB or in connection with any
proposed sale, transfer, assignment, novation or other disposal
contemplated by Section 8.12.
Section 8.14 Counterparts
This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same agreement.
IN WITNESS WHEREOF,
the parties hereto, acting through their duly authorised
representatives, have caused this Agreement to be signed in
their respective names as of the date first above written.
MOBIFON S.A.
| | | |
|
By:
| |
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
and Chief Financial Officer
|
NORDIC INVESTMENT BANK
| | | |
|
By:
| |
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
|
| | | |
|
By:
| |
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
|
Exhibit A — Form of Disbursement
Application — NIB Loan
[To Be Typed on Letterhead of the Borrower]
[Date]
Nordic ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇/ ▇▇▇ ▇▇▇▇▇▇▇▇▇
Fax: ▇▇▇ ▇ ▇▇▇ ▇▇▇▇
Subject:
Disbursement
Application
No. 1
Sir/ Madam:
| |
| 2. |
Please refer to the loan agreement dated 27
August 2002 (the “Loan Agreement”) between MobiFon
S.A. (the “Borrower”) and Nordic Investment Bank
(“NIB”).
|
| |
| 3. |
Expressions defined in the Loan Agreement shall
bear the same meanings herein.
|
| |
| 4. |
We hereby request the following Disbursement of
the [Tranche I NIB Loan]/[Tranche II NIB Loan] in accordance
with the provisions of the Loan Agreement:
|
| | | | | |
|
Amount (in figures and words):
| | |
| |
| | | |
| |
|
Value Date:
| | [As soon as possible, on a date selected |
|
by
| | NIB in its discretion, but not later than]2 |
| | | | 3 | |
| | | | | |
|
Payment Instructions (Borrower’s Banking
Details):
| | | | |
|
Borrower’s Account Name:
| |
| | |
|
Borrower’s Account Number:
| |
| | |
|
Borrower’s Bank Name:
| |
| | |
|
Borrower’s Bank Address:
| |
| | |
| |
|
Borrower’s Bank Correspondent
Details:
| | | | |
|
Correspondent’s Name:4
| |
| | |
|
Correspondent’s Address:
| |
| | |
| | |
| | |
|
Borrower’s Bank’s Account Name:
| |
| | |
| |
| 1 |
Each application must be numbered in series.
|
| |
| 2 |
If the disbursement is required for a specific
value date, this bracketed language may be deleted.
|
| |
| 3 |
This date must not be earlier than 8 Business
Days (except in respect of the Disbursement of the Tranche I NIB
Loan, in which case 5 Business Days) after the date the
disbursement application is delivered to NIB.
|
| |
| 4 |
Name of bank in country of Loan Currency.
|
| | | | | |
|
Borrower’s Bank’s Account Name:
| |
| | |
|
Reference:
| |
| | |
| |
| 5. |
For the purposes of Section 4.03(b) of the
Loan Agreement, we hereby represent and warrant that:
|
| | |
| | (a) |
all agreements, documents and instruments
delivered to NIB pursuant to Section 4.01 of the Loan
Agreement are in full force and effect and unconditional (except
for the Loan Agreement having become unconditional, if that is a
condition of any such agreement);
|
| | |
| | (b) |
the representations and warranties made by the
Borrower in the Financing Agreements and Project Agreements are
true on and as of the date hereof with the same effect as though
such representations and warranties had been made on and as of
the date hereof;
|
| | |
| | (c) |
no Event of Default or Potential Event of Default
has occurred and is continuing or is imminent;
|
| | |
| | (d) |
the Borrower will not, as a result of such
Disbursement, be in violation of its Charter, any provision
contained in any material agreement or instrument to which the
Borrower is a party (including the Loan Agreement) or by which
the Borrower is bound or any law applicable to the Borrower;
|
| | |
| | (e) |
nothing has occurred which might have a material
adverse effect on the Project, the Borrower’s business,
operations or financial condition or the ability of the Borrower
to perform any of its obligations under any Financing Agreement
or Project Agreement; and
|
| | |
| | (f) |
the proceeds of such Disbursement are needed by
the Borrower for the purposes set out in [Section 4.01(n).]
[In case of a Tranche I NIB Loan Disbursement]
[Section 4.03(e)] [In case of a Tranche II NIB Loan
Disbursement].
|
| |
| 6. |
For the purpose of Section 4.03(g) we hereby
represent and warrant that, upon giving effect to such
Disbursement, and any concurrent disbursements under the EBRD
Loan and the EDC Loan, the total Disbursements under the NIB
Loan shall remain pro rata as among the NIB Loan,
the EBRD Loan, and the EDC Loan.
|
| |
| 7. |
The representations and warranties made in
paragraphs 4 and 5 above on this date will continue to be true
on and as of the date of such Disbursement with the same effect
as though such representations and warranties had been made on
and as of the date of such Disbursement. If any such
representation or warranty is no longer true on or prior to or
as of the date of such Disbursement, we shall immediately notify
NIB and shall, upon demand by NIB, repay any amount which has
been or is disbursed by NIB in respect of such Disbursement.
|
Yours faithfully,
MOBIFON S.A.
By:
Authorised Representative5
| |
| 5 |
As named in the Certificate of Incumbency and
Authority.
|
Exhibit B — Form of Certificate of
Incumbency and Authority
[To Be Typed on Letterhead of the Borrower]
[Date]
Nordic ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇/ ▇▇▇
▇▇▇▇▇▇▇▇▇
Fax: 358 9 622 1504
Subject:
Certificate
of Incumbency and Authority6
Sir/ Madam:
With reference to the loan agreement dated 27
August 2002 (the “Loan Agreement”) between MobiFon
S.A. (the “Borrower”) and Nordic Investment Bank
(“NIB”), I, the undersigned [President] [Chairman of
the Board of Directors] [Chief Executive Officer] of the
Borrower, duly authorised by its Board of Directors, hereby
certify that the following are the names, offices and true
specimen signatures of the persons, any one of whom is and will
continue to be (until NIB has received actual written notice
from the Borrower that they or any of them no longer continue to
be) authorised, on behalf of the Borrower, individually:
| |
| 1. |
to sign the Loan Agreement, any Disbursement
applications, certifications, letters or other documents to be
provided under the Loan Agreement and any other agreements to
which NIB and the Borrower may be party in connection therewith;
and
|
| |
| 2. |
to take any other action required or permitted to
be taken by the Borrower under the Loan Agreement or any other
agreement to which NIB and the Borrower may be party in
connection therewith:
|
| | | | | |
|
NAME
| |
OFFICE | |
SPECIMEN SIGNATURE |
|
| |
| |
|
|
| |
| |
|
|
| |
| |
|
|
| |
| |
|
| |
| 6 |
Designation may be changed by the Borrower at any
time by providing a new Certificate of Incumbency and Authority
to NIB.
|
IN WITNESS WHEREOF,
I have signed my name on the date first above written.
Yours faithfully,
MOBIFON S.A.
| | | |
|
By:
| |
Name:
Title: [President]
[Chairman of the Board of Directors]
[Chief Executive Officer]
|
Exhibit C — Form of Letter to
Auditors
[To Be Typed on Letterhead of the Borrower]
[Date]
[Name of Auditors] [Address]
Sir/ Madam:
We hereby authorise and request you to give to
Nordic Investment Bank (“NIB”) all such information as
it may reasonably request with regard to our Financial
Statements, both audited and unaudited, which we have agreed to
furnish to NIB under the terms of the loan agreement dated 27
August, 2002 (the “Loan Agreement”) between ourselves
and NIB. For your information, we enclose a copy of the Loan
Agreement.
We authorise you to send our audited accounts to
NIB to enable us to satisfy the reporting requirements set forth
in Section 5.13 of the Loan Agreement. When submitting the
same to NIB, you are also requested to send, at the same time, a
copy of your full report on such accounts in a form acceptable
to NIB.
For our records, please ensure that you send to
us a copy of every letter which you receive from NIB immediately
upon receipt and a copy of each reply made by you immediately
upon the issue thereof.
Yours faithfully,
MOBIFON S.A.
| | | |
|
By:
| |
Authorised
Representative
|
Enclosure: Loan Agreement
cc: Nordic ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇/ ▇▇▇
▇▇▇▇▇▇▇▇▇
Fax: 358
9 622 1504
Subject:
SCHEDULE A — LIST OF MATERIAL
AGREEMENTS
Agreements
| |
| 1. |
The Financing Agreements.
|
| |
| 2. |
The Project Agreements.
|
| |
| 3. |
Any Site Agreements.
|
| |
| 4. |
Any Handset Agreements.
|
| |
| 5. |
The SIM Card Agreements.
|
| |
| 6. |
Any Roaming Agreements.
|
| |
| 7. |
Lease Agreements with all lessors and in respect
of all Major Leases identified in Annex A-1 to this
Schedule A.
|
| |
| 8. |
The following Interconnection Agreements:
|
Interconnection
Agreements & Amendments
| | | | | |
| Operator | | Dated |
|
| |
|
|
Romtelecom
| | | 6-Aug-97 | |
|
Additional Act no.1
| | | 12-Mar-98 | |
|
Additional Act no.2
| | | 2-May-99 | |
|
Additional Act no.3
| | | 30-Jul-99 | |
|
Orange (Mobil Rom)
| | | 12-May-99 | |
|
Additional Act no.1
| | | 28-May-99 | |
|
Additional Act no.2
| | | 9-Oct-00 | |
|
TELEMOBIL SA
| | | 31-Mar-01 | |
|
Additional Act no.1
| | | 20-Mar-02 | |
|
Additional Act no.2
| | | 9-Aug-02 | |
|
Cosmorom SA
| | | 20-Mar-00 | |
|
Additional Act no.1
| | | 12-Apr-01 | |
| |
| 9. |
All agreements identified in Annex A-2 to this
Schedule A;
|
| |
| 10. |
Amendments to the License Regarding Installation
and Operation of Public GSM Communication Network in Romania
dated June 4, 1998 and September 17, 1998 (Romanian
original and English translation);
|
| |
| 11. |
Certificate of investor dated May 19, 1998
issued to MobiFon S.A. by the Ministry of
Privatization — Department of Foreign Investment
Promotion;
|
| |
| 12. |
Other agreements identified as Material
Agreements by NIB from time to time after the date of this
Agreement in consultation with the Borrower.
|
Corporate Documents
| |
| 1. |
Additional Act to the Contract of Association of
MobiFon S.A. — authenticated by public notary on
February 20, 1997 — authentication minutes
no.106/1997;
|
| |
| 2. |
Additional Act to the Contract of Association of
MobiFon S.A. — authenticated by public notary on
August 29, 1997 — authentication minutes
no.81/1997;
|
| |
| 3. |
Additional Act to the Contract of Association and
Statutes of MobiFon S.A. — authenticated by public
notary on September 16, 1997 — authentication
minutes no.980/1997;
|
| |
| 4. |
Additional Act to the Contract of Association and
Statutes of MobiFon S.A. — authenticated by public
notary on October 09, 1997 — authentication
minutes no.5089/1997;
|
| |
| 5. |
Additional Act to the Contract of Association and
Statutes of MobiFon S.A. — authenticated by public
notary on January 22, 1998 — authentication
minutes no.359/1998;
|
| |
| 6. |
Additional Act to the Contract of Association and
Statutes of MobiFon S.A. — authenticated by public
notary on February 26, 1998 — authentication
minutes no.1091/1998;
|
| |
| 7. |
Additional Act to the Contract of Association and
Statutes of MobiFon S.A. — authenticated by public
notary on April 7, 1998 — authentication minutes
no.1975/1998;
|
| |
| 8. |
Additional Act to the Contract of Association and
Statutes of MobiFon S.A. — authenticated by public
notary on May 11, 1998 — authentication minutes
no.2619/1998;
|
| |
| 9. |
Additional Act to the Contract of Association and
Statutes of MobiFon S.A. — authenticated by public
notary on May 11, 1998 — authentication minutes
no.2620/1998;
|
| |
| 10. |
Additional Act to the Contract of Association and
Statutes of MobiFon S.A. — authenticated by public
notary on May 11, 1998 — authentication minutes
no.2621/1998;
|
| |
| 11. |
Additional Act to the Contract of Association and
Statutes of MobiFon S.A. — authenticated by public
notary on September 11, 1998 — authentication
minutes no.6110/1998;
|
| |
| 12. |
Additional Act to the Contract of Association and
Statutes of MobiFon S.A. — authenticated by public
notary on October 15, 1998 — authentication
minutes no.6748/1998;
|
| |
| 13. |
Additional Act to the Contract of Association and
Statutes of MobiFon S.A. — authenticated by public
notary on December 15, 1998 — authentication
minutes no.7779/1998;
|
| |
| 14. |
Additional Act to the Contract of Association and
Statutes of MobiFon S.A. — authenticated by public
notary on October 16, 1998 — authentication
minutes no.6776/1998;
|
| |
| 15. |
Additional Act to the Contract of Association and
Statutes of MobiFon S.A. — authenticated by public
notary on December 10, 1998 — authentication minutes
no.7703/1998;
|
| |
| 16. |
Additional Act to the Contract of Association and
Statutes of MobiFon S.A. — authenticated by public
notary on December 15, 1998 — authentication
minutes no.7778/1998;
|
| |
| 17. |
Additional Act to the Contract of Association and
Statutes of MobiFon S.A. — authenticated by public
notary on March 9, 1999 — authentication minutes
no.1180/1999;
|
| |
| 18. |
Additional Act to the Contract of Association and
Statutes of MobiFon S.A. — authenticated by public
notary on June 11, 1999 — authentication minutes
no.2978/1999;
|
| |
| 19. |
Additional Act to the Contract of Association and
Statutes of MobiFon S.A. — authenticated by public
notary on June 11, 1999 — authentication minutes
no.2977/1999;
|
| |
| 20. |
Additional Act to the Contract of Association and
Statutes of MobiFon S.A. — authenticated by public
notary on August 24, 1999 — authentication
minutes no.4393/1999;
|
| |
| 21. |
Additional Act to the Contract of Association and
Statutes of MobiFon S.A. — authenticated by public
notary on November 19, 1999 — authentication
minutes no.5863/1999;
|
| |
| 22. |
Additional Act to the Contract of Association and
Statutes of MobiFon S.A. — authenticated by public
notary on June 11, 1999 — authentication minutes
no.2977/1999;
|
| |
| 23. |
Additional Act to the Contract of Association and
Statutes of MobiFon S.A. — authenticated by public
notary on August 24, 1999 — authentication
minutes no.4393/1999;
|
| |
| 24. |
Additional Act to the Contract of Association and
Statutes of MobiFon S.A. — authenticated by public
notary on December 08, 1999 — authentication
minutes no.6174/1999;
|
| |
| 25. |
Additional Act to the Contract of Association and
Statutes of MobiFon S.A. — authenticated by public
notary on December 08, 1999 — authentication
minutes no.6173/1999;
|
| |
| 26. |
Additional Act to the Contract of Association and
Statutes of MobiFon S.A. — authenticated by public
notary on December 08, 1999 — authentication
minutes no.6172/1999;
|
| |
| 27. |
Additional Act to the Contract of Association and
Statutes of MobiFon S.A. — authenticated by public
notary on December 08, 1999 — authentication
minutes no.6175/1999;
|
| |
| 28. |
Additional Act to the Contract of Association of
MobiFon S.A. — authenticated by public notary on
June 8, 2000 — authentication minutes
no.2701/2000;
|
| |
| 29. |
Additional Act to the Contract of Association of
MobiFon S.A. — authenticated by public notary on
June 8, 2000 — authentication minutes
no.2702/2000;
|
| |
| 30. |
Additional Act to the Contract of Association and
Statutes of MobiFon S.A. — authenticated by public
notary on April 05, 2001 — authentication minutes
no.1413/2001;
|
| |
| 31. |
Additional Act to the Contract of Association and
Statutes of MobiFon S.A. — authenticated by public
notary on April 05, 2001 — authentication minutes
no.1414/2001;
|
| |
| 32. |
Additional Act to the Contract of Association and
Statutes of MobiFon S.A. — authenticated by public
notary on February 12, 2001 — authentication
minutes no.488/2001;
|
| |
| 33. |
Additional Act to the Contract of Association and
Statutes of MobiFon S.A. — authenticated by public
notary on February 12, 2001 — authentication
minutes no.489/2001;
|
| |
| 34. |
Additional Act to the Contract of Association and
Statutes of MobiFon S.A. — authenticated by public
notary on April 05, 2001 — authentication minutes
no.1412/2001;
|
| |
| 35. |
Additional Act to the Contract of Association and
Statutes of MobiFon S.A. — authenticated by public
notary on July 27, 2001 — authentication minutes
no.4254/2001
|
| |
| 36. |
Additional Act to the Contract of Association and
Statutes of MobiFon S.A. — authenticated by public
notary on July 27, 2001 — authentication minutes
no.4255/2001;
|
| |
| 37. |
Additional Act to the Contract of Association and
Statutes of MobiFon S.A. — authenticated by public
notary on November 8, 2001 — authentication
minutes no.6248/2001;
|
| |
| 38. |
Additional Act to the Contract of Association and
Statutes of MobiFon S.A. — authenticated by public
notary on November 8, 2001 — authentication
minutes no.6249/2001;
|
| |
| 39. |
Additional Act to the Contract of Association and
Statutes of MobiFon S.A. — authenticated by public
notary on January 23, 2002 — authentication
minutes no.236/2002;
|
| |
| 40. |
Additional Act to the Contract of Association of
MobiFon S.A. — authenticated by public notary on
March 5, 2002 — authentication minutes
no.875/2002;
|
| |
| 41. |
Additional Act to the Contract of Association and
Statutes of MobiFon S.A. — authenticated by public
notary on April 24, 2002 — authentication minutes
no.1803/2002;
|
| |
| 42. |
Additional Act to the Contract of Association and
Statutes of MobiFon S.A. — authenticated by public
notary on July 25, 2002 — authentication minutes
no.3420/2002;
|
| |
| 43. |
Additional Act to the Contract of Association and
Statutes of MobiFon S.A. — authenticated by public
notary on July 25, 2002 — authentication minutes
no.3421/2002.
|
ANNEX A-1 TO SCHEDULE A — MAJOR
LEASES
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | Rent/month as per | | |
| | Loc. | | | | | | Date of | | Termination | | Option | | Contract | | Total |
| Town | | Name | | Landlord | | Duration (years) | | contract | | date | | (years) | | w/o VAT | | (entire duration) |
|
| |
| |
| |
| |
| |
| |
| |
| |
|
|
Bacau
| | | MSC nou | | | | Delta Intensive Trade | | | | 10 | | | | 1-Jul-02 | | | | 1-Jul-12 | | | | 5 | | | $ | 9,600 | | | | 1,152,000 | |
|
Cluj
| | | ▇▇▇ #▇ | | | | Compania de Informatica Aplicata SA | | | | 20 | | | | 1-Jan-98 | | | | 31-Dec-18 | | | | | | | $ | 7,850 | | | | 1,554,300 | |
|
Timisoara
| | | ▇▇▇ #▇ | | | | Inst. Chimie | | | | 25 | | | | 8-Sep-97 | | | | 7-Sep-22 | | | | | | | $ | 2,500 | | | | 607,500 | |
|
Brasov
| | | RSO | | | | SIF Transilvania Brasov | | | | 5 | | | | 19-Jul-99 | | | | 18-Jul-04 | | | | | | | $ | 6,887 | | | | 168,732 | |
|
Brasov
| | | MSC Brasov | | | | Delta Intensive Trade | | | | 10 years and 5 months | | | | 1-Jul-01 | | | | 26-Nov-11 | | | | | | | $ | 11,820 | | | | 1,539,844 | |
|
Brasov
| | | Call Center | | | | Delta Intensive Trade | | | | 10 years and 4 months | | | | 1-Aug-01 | | | | 26-Nov-11 | | | | | | | $ | 15,000 | | | | 1,984,500 | |
|
Constanta
| | | RSO | | | | Com Auto srl | | | | 5 | | | | 1-Jan-99 | | | | 31-Dec-04 | | | | | | | $ | 9,432 | | | | 282,960 | |
|
Craiova
| | | RSO | | | | Marex srl | | | | 5 | | | | 1-May-99 | | | | 30-Apr-04 | | | | | | | $ | 4,950 | | | | 108,900 | |
|
Bucharest
| | | Connex Center | | | | Avrig 35 SA | | | | 7 | | | | 5-Dec-01 | | | | 1-Dec-10 | | | | 2 | | | $ | 173,200 | | | | 14,029,000 | |
|
Bucharest
| | | MSC | | | | DBC - Delta Trade Intensive | | | | | | | | | | | | 30-Oct-07 | | | | | | | $ | 80,912 | | | | 5,865,152 | |
|
Bucharest
| | | Wareh | | | | DBC 2 | | | | | | | | | | | | 30-Oct-07 | | | | | | | $ | 82,400 | | | | 5,928,172 | |
|
Bucharest
| | | CS | | | | Paneuro International | | | | 2 | | | | 15-Mar-00 | | | | 15-Mar-04 | | | | 1 | | | $ | 14,000 | | | | 287,000 | |
|
Bucharest
| | | MSC | | | | Avrig 35 SA | | | | 10 | | | | 5-Oct-99 | | | | 4-Oct-09 | | | | | | | $ | 342,052 | | | | 32,634,945 | |
|
Bucharest
| | | Wareh | | | | Comautosport SA | | | | 3 | | | | 16-Apr-01 | | | | 15-Apr-04 | | | | | | | $ | 16,952 | | | | 364,468 | |
|
Bucharest
| | | CS | | | | Piaston Romania | | | | 3 years 6 months | | | | 25-Apr-01 | | | | 25-Oct-04 | | | | | | | $ | 9,000 | | | | 252,000 | |
|
Bucharest
| | | AO | | | | CBC - NOVA TRADE | | | | | | | | 1-Jun-02 | | | | 31-Dec-03 | | | | | | | $ | 181,208 | | | | 3,261,744 | |
ANNEX A-2 TO SCHEDULE A — MATERIAL
AGREEMENTS
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | Value | | |
| No. | | Contract No. | | Supplier | | Contract Date | | Contract Description | | Period | | (USD) | | Comments |
|
| |
| |
| |
| |
| |
| |
| |
|
| | 1 | | |
Contract — signed only in Romanian
| | | ADVANTAGE SOFTWARE FACTORY | | | | 21-Dec-02 | | | Implementation contract for Collection System | | | 02.09.2003 | | | | 550,000 | | | | Fixed value in contract | |
| | 2 | | |
Supply contract FN00-207 & Amendament
| | | Breezecom / ALVARION | | | | 8-Apr-00 | | | | Frame contract | | | | 5/8/2003 | | | | 4,100,000 | | | | Payments value -ytd | |
| | | | | | | | Contract Implementare | | | | | | | | | | | | | | | | | | | | | |
| | 3 | | | | | | AMDOCS | | | | 9-Jul-02 | | | | Billing System+Licente | | | | 4,600,000 | | | Fixed value in contract | | | | |
| | 4 | | |
Telecommunication Service Provider Agreement
| | | CISCO SYSTEMS | | | | 5-Jun-01 | | | | Frame contract | | | | 12-Oct-06 | | | | 4,079,360 | | | | Payments value -ytd | |
| | | | |
Supply and Installation Contract of CMG
| | | | | | | | | | | | | | | | | | | | | | | | |
| | 5 | | |
Products
| | | CMG | | | | 25-Jul-97 | | | | Frame contract | | | | 2,981,298 | | | Payments value -ytd | | | | |
| | | | |
Voice Messaging System Purchase Order &
| | | | | | | | | | | | | | | | | | | | | | | | |
| | 6 | | |
License Agreement
| | | COMVERSE (ex EFRAT | ) | | | 16-Apr-97 | | | | Frame contract | | | | 8,402,014 | | | Payments value -ytd | | | | |
| | 7 | | |
GSM System Service Contract
| | | ERICSSON Radio System AB | | | | 1-Feb-97 | | | | Frame contract | | | | Dec-06 | | | | 266,018,723 | | | | Payments value -ytd | |
| | | | |
Amendament nr.3/06.08.2001 to the GSM
| | | | | | | | | | | | | | | | | | | | | | | | |
| | 8 | | |
System Service Contract
| | | ERICSSON Radio System AB | | | | 2-Mar-97 | | | | Support contract | | | | 2,070,268 | | | | | | | | | |
| | 9 | | |
Implementation Contract
| | | ERICSSON ROMANIA SRL | | | | 12-Oct-01 | | | | One time order | | | | 20-Jul-02 | | | | 1,787,392 | | | | Payments value ytd | |
| | 10 | | |
Act Adit No 5 to the Agreement no.0906/2000
| | | GTS ROMANIA SRL | | | | 9-Apr-02 | | | | Frame contract | | | | 9-Nov-02 | | | | 2,496,000 | | | | Payments value ytd | |
| | | | |
Supply contract (Hard & soft) - signed only
| | | | | | | | | | | | | | | | | | | | | | | | |
| | 11 | | |
in Romanian
| | | HEWLETT PACKARD ROMANIA SRL | | | | 9-Jul-01 | | | | Frame contract | | | | 2,278,702 | | | Payments value ytd | | | | |
| | 12 | | |
Country Transaction Document for Romania
| | | IBM ROMANIA | | | | 29-Mar-01 | | | | Frame contract | | | | 1,265,151 | | | Payments value ytd | | | | |
| | | | |
Framework contractor agreement no.CS99005 -
| | | | | | | | | | | | | | | | | | | | | | | | |
| | 13 | | |
signed only in Romanian
| | | IMSAT Bucuresti | | | | 8-Feb-99 | | | | Frame Contract | | | | 1,277,707 | | | Payments value ytd | | | | |
| | 14 | | |
Supply contract ▇-▇ ▇/▇▇ & ▇▇▇▇▇▇▇▇▇▇ ▇,▇
| | | ▇▇▇▇▇ TELECOM GmbH | | | | 26-May-98 | | | | Frame contract | | | | 31-Dec-02 | | | | 1,300,000 | | | | Payments value -ytd | |
| | 15 | | |
Supply contract no. M42417
| | | MITSUI & CO ltd | | | | 9-Nov-01 | | | | Frame contract | | | | 31-Dec-02 | | | | 2,264,360 | | | | Payments value -ytd | |
| | 16 | | |
Supply contract FN00-205
| | | NERA NETWORKS | | | | 4-Aug-00 | | | | Frame contract | | | | 11-Jun-02 | | | | 2,157,114 | | | | Payments value -ytd | |
| | 17 | | |
Supply contract FN01-238
| | | ▇▇▇▇▇ CORPORATION | | | | 11-Jun-01 | | | | Frame contract | | | | 31-Dec-02 | | | | 2,197,285 | | | | Payments value -ytd | |
| | | | |
MULTISERVICE Network Equipment
| | | | | | | | | | | | | | | | | | | | | | | | |
| | | | |
Purchase Agreement and thereof the
| | | | | | | | | | | | | | | | | | | | | | | | |
| | 18 | | |
amendments from no. 1-7
| | | NORTEL NETWORKS IRELAND | | | | 28-Nov-00 | | | | Frame contract | | | | 31-Dec-02 | | | | 25,935,272 | | | | Payments value ytd | |
| | 19 | | |
Agreement
| | | SAS INSTITUTE GMBH | | | | 12-Jul-01 | | | | DW Contract | | | | | | | | 787,850 | | | | Fixed value in contract | |
| | 20 | | |
Supply Agreement
| | | SEMA UK LTD | | | | 18-Jul-01 | | | | CRM Contract | | | | | | | | 2,124,987 | | | | Fixed value in contract | |
| | 21 | | |
Agreement for the Supply of Systems
| | | SCHLUMBERGER SEMA | | | | 11-Jun-02 | | | | One Order Contract | | | | | | | | 941,440 | | | | Fixed value in contract | |
| | | | |
Agreement for the supply of CABS 2000
| | | | | | | | | | | | | | | | | | | | | | | | |
| | 22 | | |
1802/CG/RC/CW
| | | SEMA GROUP UK LTD | | | | 4-Apr-97 | | | | CABS 2000 Billing System | | | | | | | | 15,713,551 | | | | Payments value ytd | |
| | | | |
CABS 2000 Support Agreement & Business
| | | | | | | | | | | | | | | | | | | | | | | | |
| | 23 | | |
Support Services Agreement
| | | SEMA GROUP UK LTD | | | | 4-Apr-97 | | | | Support Contract | | | | | | | | 903,768 | | | | Payments value ytd | |
| | 24 | | |
IN System Equipment and Services Contract
| | | SIEMENS | | | | 25-Oct-00 | | | | Frame contract | | | | | | | | 13,915,662 | | | | Payments value ytd | |
| | | | |
Ammendment 1 of IN System Equipment and
| | | | | | | | | | | | | | | | | | | | | | | | |
| | | | |
Services Contract
| | | SIEMENS | | | | 25-Oct-01 | | | | GPRS Frame Contract | | | | | | | | 2,208,054 | | | | Payments value ytd | |
| | | | |
Amend. no 2
| | | SIEMENS | | | | 23-Oct-01 | | | | Frame contract | | | | | | | | 834,855 | | | | Payments value ytd | |
| | | | |
Addendum, Continuation to Maintenance and
| | | | | | | | | | | | | | | | | | | | | | | | |
| | 25 | | |
Support Contract from 07.12.2000
| | | SICAP LTD | | | | 27-Jun-02 | | | | Contract suport tehnic | | | | 01.01.2004 | | | | 380,600 | | | | Payments value ytd | |
| | 26 | | |
SICAP Addendum
| | | SICAP LTD | | | | 11-Jan-02 | | | | One Order Contract | | | | | | | | 638,000 | | | | Fixed value in contract | |
| | 27 | | |
Contract (International signalling)
| | | SWISSCOM | | | | 21-May-99 | | | | Frame contract | | | | not specified | | | | 1,408,691 | | | | | |
| | | | |
Maintenance & Support Contract for SICAP
| | | | | | | | | | | | | | | | | | | | | | | | |
| | 28 | | |
Modules
| | | SICAP LTD | | | | 26-Apr-01 | | | | Frame contract | | | | | | | | 4,912,214 | | | | Payments value ytd | |
| | | | |
VODAFONNE GLOBAL PLATFORM and
| | | | | | | | | | | | | | | | | | | | | | | | |
| | 29 | | |
Internet Portal Services Agreement
| | | INTERNET SERVICES | | | | 26-Jul-01 | | | | Frame contract | | | | | | | | 1,152,848 | | | | Payments value ytd | |
| | 30 | | |
Amendment to Supply Agreement of 06.05.1999
| | | Nokia Corporation | | | | 19-Jun-02 | | | | Frame contract | | | | 1 year | | | | 10,424,973 | | | | | |
| | 31 | | |
Distributorship Agreement
| | | Ericsson Mobile Communications | | | | 16-Dec-97 | | | | Frame contract | | | | no | | | | 5,637,435 | | | | | |
| | 32 | | |
GSM Mobile Telephone Supply Agreement
| | | Siemens AE | | | | 7-Aug-01 | | | | Frame contract | | | | 1 year | | | | 8,190,222 | | | | | |
| | | | |
Amendment to Purchase Agreement of
| | | | | | | | | | | | | | | | | | | | | | | | |
| | 33 | | |
01.01.2000
| | | Schlumberger Systems | | | | 19-Feb-02 | | | | Frame contract | | | | 1 year | | | | 6,941,450 | | | | | |
| | | | |
contract for media services - Agency of
| | | | | | | | | | | | | | | | | | | | | | | | |
| | 34 | | |
Record - signed only in Romanian
| | | BV ▇▇▇▇▇▇ Advertising | | | | 25-Feb-02 | | | | Frame contract | | | | 1 year | | | | 3,411,471 | | | | | |
| 1,11,
13,35 | |
Contracts that must be translated in English
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SCHEDULE B
FORM OF COMPLIANCE CERTIFICATE
To: Nordic Investment Bank
Date:
Dear Sirs,
We refer to the loan agreement dated, 27 August
2002 (the “Loan Agreement”) between Mobifon S.A. (the
“Borrower”) and Nordic Investment Bank
(“NIB”) as lender.
Terms defined in the Loan Agreement shall bear
the same meaning herein.
We confirm that:
[Insert details of financial conditions to be
certified.]
| | | | | |
|
[Signed:
| |
Director
| |
Director
|
or
for and on behalf of
[name of Auditors of the Borrower]