EXHIBIT 4.15
Dated 23 December 2002
NETIA HOLDINGS B.V.
and
THE GUARANTORS
named herein
and
THE BANK OF NEW YORK
and
ING BANK ▇▇▇▇▇▇ ▇.▇.
PAYING, REGISTRAR AND
TRANSFER AGENCY AGREEMENT
relating to 10% Senior Secured Notes due 2008
Ref: AMS/ARYB
TABLE OF CONTENTS
PAGE
1 DEFINITIONS..........................................................................................2
2 APPOINTMENTS.........................................................................................3
3 AUTHENTICATION; TRANSFER AND EXCHANGE OF GLOBAL NOTES................................................3
4 PAYMENT BY THE ISSUER................................................................................4
5 NOTIFICATION IN THE EVENT OF NON-PAYMENT.............................................................5
6 PAYMENT BY THE PAYING AGENTS.........................................................................5
7 REPAYMENT AND EARLY REDEMPTION.......................................................................7
8 CANCELLATION OF NOTES................................................................................7
9 ISSUE OF REPLACEMENT DEFINITIVE REGISTERED NOTES.....................................................8
10 DUTIES OF THE TRANSFER AGENT IN RESPECT OF TRANSFERS................................................10
11 DUTIES OF THE REGISTRAR.............................................................................11
12 DOCUMENTS AND DEFINITIVE REGISTERED NOTES FOR THE TRANSFER AGENT....................................12
13 INFORMATION AND REGULATIONS CONCERNING THE NOTES....................................................15
14 REMUNERATION........................................................................................16
15 PAYING AGENTS.......................................................................................16
16 MISCELLANEOUS.......................................................................................17
17 CHANGES IN AGENTS...................................................................................19
18 NOTICES.............................................................................................20
19 GOVERNING LAW AND JURISDICTION......................................................................22
20 COUNTERPARTS........................................................................................22
21 CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999........................................................22
SCHEDULE REGULATIONS CONCERNING THE TRANSFER AND REGISTRATION OF NOTES IN DEFINITIVE FORM.....................25
THIS AGREEMENT is made on 23 December 2002
BETWEEN:
(3) NETIA HOLDINGS B.V., with corporate seat in Amsterdam and whose office
address is at ▇▇▇▇▇▇▇▇▇▇ ▇▇▇-▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ (the
"ISSUER");
(4) NETIA HOLDINGS S.A., whose registered office is at ▇▇. ▇▇▇▇▇▇▇▇ ▇▇, ▇▇-▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇; NETIA TELEKOM S.A., whose registered office is at ▇▇.
▇▇▇▇▇▇▇▇ ▇▇, ▇▇-▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇; NETIA SOUTH SP. Z O.O., whose
registered office is at ▇▇. ▇▇▇▇▇▇▇▇ ▇▇, ▇▇-▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ (each a
"Guarantor" and, together, the "GUARANTORS");
(5) THE BANK OF NEW YORK, acting through its London Branch at ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, as principal paying agent and transfer agent
(the "PRINCIPAL PAYING AGENT");
(6) THE BANK OF NEW YORK, whose registered office is at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as paying and transfer agent (the "U.S. PAYING
AGENT");
(7) THE BANK OF NEW YORK (LUXEMBOURG) S.A., whose registered office is at ▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, as paying agent and transfer agent
(the "LUXEMBOURG PAYING AGENT");
(8) THE BANK OF NEW YORK, acting through its London Branch at ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, as registrar (the "REGISTRAR");
(9) THE BANK OF NEW YORK, acting through its London Branch at ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, as trustee for the persons for the time
being the holders of the Notes referred to below (the "TRUSTEE", which
expression shall include its successors as such trustee or joint trustee);
and
(10) ]ING BANK ▇▇▇▇▇▇ ▇.▇., whose registered office is at ▇▇. ▇▇▇▇▇▇▇▇ ▇▇,▇▇-▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, as security agent (the "SECURITY AGENT").
WHEREAS:
(A) The Issuer has agreed to issue 10% Senior Secured Notes due 2008 (the
"NOTES") in an aggregate principal amount at the date hereof of up to
(euro)50,000,000.
(B) The Notes are constituted by an indenture (the "INDENTURE") dated 23
December 2002 and made between the Issuer, the Guarantors and the Trustee.
(C) The Notes will be in registered form in denominations of (euro)1,000 and
integral multiples thereof without coupons attached.
(D) The Security Agent will act as security agent in Poland in respect of the
Notes.
NOW IT IS HEREBY AGREED as follows:
1 DEFINITIONS
1.1 Terms defined or construed in the Notes or the Indenture shall, unless the
context otherwise requires, have the same meanings when used herein. In
addition:
"BUSINESS DAY" means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in the city of New York,
New York, the city of London, England and Warsaw, Poland are authorised or
obligated by law or executive order to close and which is a day on which
the TARGET system is operating
2
"DEFINITIVE REGISTERED NOTE" means a Definitive Registered Note for a Note
in definitive form, in or substantially in the form set out in Exhibit A of
the Indenture and issued or to be issued (as the case may be) in the name
of a holder of Notes;
"PAYING AGENT" means, as the context requires, the Principal Paying Agent,
the Luxembourg Paying Agent and/or the U.S. Paying Agent;
"PROCEEDINGS" has the meaning set out in Clause 20.2;
"REGISTER" has the meaning set out in Clause 11.2;
"REGULATIONS" has the meaning set out in Clause 14.2; and
"REGULATION S" means Regulation S under the U.S. Securities Act of 1933, as
amended;
"TARGET SYSTEM" means the Trans-European Automated Real-Time Cross
Settlement Express Transfer (TARGET) System or any successor thereto.
"TRANSFER AGENT" means, as the context requires, the Principal Paying
Agent, the Luxembourg Paying Agent and/or the U.S. Paying Agent.
1.2 References in this Agreement to "PRINCIPAL PAYING AGENT", "PAYING AGENT",
"TRANSFER AGENT", "REGISTRAR", "SECURITY AGENT" and "AGENTS" shall mean and
include each Principal Paying Agent, Paying Agent, Transfer Agent,
Registrar, Security Agent and Agent from time to time appointed to exercise
the powers and undertake the duties hereby conferred and imposed upon the
Principal Paying Agent, Paying Agent, Transfer Agent, Registrar, Security
Agent and Agents and notified to the Holders in accordance with Clause 17.
1.3 The Principal Paying Agent, Paying Agent, Transfer Agent, Security Agent
and Registrar are collectively referred to as the "AGENTS". ------
1.4 References in this Agreement to principal and/or interest shall include any
premium payable pursuant to the Indenture and any Additional Amounts
payable pursuant to Section 9.23 of the Indenture or any undertakings given
pursuant to the Indenture in addition to, or in substitution for, Section
9.23 of the Indenture.
2 APPOINTMENTS
2.1 Each of the Issuer and the Guarantors hereby appoints, on the terms and
subject to the conditions of this Agreement, the Agents (except in the case
of the Security Agent) as its agents to perform the services described
herein, and the Agents (except in the case of the Security Agent) hereby
accept their appointment as such agents.
2.2 The Trustee hereby appoints, on the terms and subject to the conditions of
this Agreement, the Security Agent to perform the services described in
this Agreement and the Security Agent hereby accepts its appointment as the
Security Agent.
2.3 Except in Clause 18, references to the Agents are to them acting solely
through their respective specified offices.
2.4 The obligations of the Agents are several and not joint.
3 AUTHENTICATION; TRANSFER AND EXCHANGE OF GLOBAL NOTES
3.1 Global Notes
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Immediately before issue, the Issuer shall deliver the Global Notes
executed by the Issuer to or to the order of the Registrar for
authentication together with information as to identities of the Holders,
their respective entitlements to the Notes and their respective account
details at Euroclear, Clearstream Banking and DTC. The Registrar (or its
agent on its behalf) shall, after authenticating the Global Notes (in
accordance with Section 2.2 of the Indenture), deliver the Global Notes to
the Common Depositary and the DTC Nominee. If the principal amount of the
Notes is increased from time to time following a Payment-in-Kind Election
pursuant to Section 9.1 of the Indenture on a date after the date of this
Agreement, the Principal Paying Agent and the Registrar shall act to the
extent set forth in Section 9.1 of the Indenture and the Registrar shall
make (or cause to be made) the appropriate endorsements to Schedule A of
the Global Notes set forth at the back of the relevant Global Note to
represent the increased aggregate principal amount of the Notes thereunder.
3.2 Transfers or Exchange of Interests Between Global Notes and of Beneficial
Interests
The transfers or exchanges of an interest in a Global Note and of any
Beneficial Interest will be subject to the restrictions set forth in
Section 2.7 of the Indenture and, if applicable, the Regulations. The
Transfer Agents and the Registrar shall act in any such transfer or
exchange to the extent set forth in Section 2.7 of the Indenture and such
transfers or exchanges shall be effected in accordance with the applicable
procedures of Euroclear or Clearstream Banking and DTC, or their respective
successors, as applicable.
3.3 Exchange of Global Notes for Notes in Definitive Form
To the extent that the circumstances set forth in Section 2.7(e)(i) or (ii)
of the Indenture have occurred, the Transfer Agents and the Registrar shall
act in the exchange of a relevant Global Note for Definitive Notes to the
extent set forth in Section 2.7(e) of the Indenture.
4 PAYMENT BY THE ISSUER
4.1 Payment to the Principal Paying Agent
Unless the Issuer has notified the Principal Paying Agent that, in
accordance with Section 9.3 of the Indenture it will act as its own paying
agent, in order to provide for the payment due in respect of the Notes, the
Issuer, failing whom the Guarantors, shall unconditionally pay or procure
to be paid to the Principal Paying Agent or, in the case of the DTC
Restricted Global Note where the Holder has not elected to receive Euros in
accordance with Section 2.15 of the Indenture, to the U.S. Paying Agent,
for immediate value within the time period set forth in Section 2.15 of the
Indenture, an amount sufficient (together with any funds then held by the
Principal Paying Agent which are available for such purpose) to pay the
amount due in respect of the Notes. In the case of a DTC Restricted Global
Note where the Holder has not elected to receive Euros, the U.S. Paying
Agent will convert any payments in U.S. dollars prior to payment in
accordance with the provisions of Section 2.15 of the Indenture.
4.2 Notification of Payment
Unless the Issuer has notified the Principal Paying Agent that, in
accordance with Section 9.3 of the Indenture it will act as its own paying
agent, the Issuer shall on or before 10 a.m. (London time) on the second
Business Day prior to each due date for payment in respect of the Notes
procure that the bank through which such payment is to be made will send to
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the Principal Paying Agent confirmation that it has received from the
Issuer an irrevocable instruction to make the relevant payment (by tested
telex or authenticated SWIFT MT-100-Message).
5 NOTIFICATION IN THE EVENT OF NON-PAYMENT
The Principal Paying Agent shall forthwith notify the Trustee, the other
Paying Agents, the Issuer and the Guarantors (a) if it has not by the time
specified for its receipt received the confirmation referred to in Clause
4.2, or (b) if it has not by the relevant date specified in Clause 4.1
received unconditionally the full amount in Euros required for the payment,
or (c) if it receives unconditionally the full amount of any sum due in
respect of the Notes after the relevant date specified in Clause 4.1.
The Principal Paying Agent shall, at the expense of the Issuer and the
Guarantors, forthwith upon receipt of any amount as described in
subparagraph (c), cause notice of that receipt to be published under
Section 1.6 of the Indenture.
6 PAYMENT BY THE PAYING AGENTS
6.1 Payment
Only upon the receipt by the Principal Paying Agent from the Issuer or the
Guarantors of the full amount in respect of any payment falling due, will
the Paying Agent pay or cause to be paid on behalf of the Issuer on and
after each due date therefor the amounts due in respect of the Notes and
will be entitled to claim any amounts so paid from the Principal Paying
Agent. The Paying Agent shall make payment of interest, as due, to the
Holder(s) appearing on the Register on the record date for such payment. If
any payment provided for in Clause 4.1 is made late but otherwise in
accordance with this Agreement the Paying Agent will nevertheless make such
payments in respect of the Notes upon receipt of such payment from the
Principal Paying Agent. However, unless and until the full amount of any
such payment has been made to the Principal Paying Agent the Paying Agent
will not be bound to make such payments.
6.2 Reimbursement of Paying Agent
The Principal Paying Agent will on demand promptly reimburse the Paying
Agent from moneys made available for such purpose by the Issuer or the
Guarantors, as the case may be, for payments in respect of the Notes
properly made by the Paying Agent in accordance with this Agreement.
6.3 Method of Payment to Principal Paying Agent
All sums payable to the Principal Paying Agent hereunder will be paid in
Euros in immediately available funds, to such account with such bank as the
Principal Paying Agent may from time to time notify to the Issuer and the
Guarantors.
6.4 Surrender of Definitive Registered Notes to Paying Agent
The Registrar and Paying Agents shall accept surrender of Definitive
Registered Notes from Holders as a condition precedent to payment of
principal in accordance with the Indenture. At close of business on the
second Business Day before the due date for payment in respect of Notes,
and, if Definitive Registered Notes are surrendered later than that, on any
Business Day thereafter on which Definitive Registered Notes are
surrendered, the Paying Agent will notify the Registrar and the Principal
5
Paying Agent of the numbers of the Definitive Registered Notes surrendered
to it at that time. The Principal Paying Agent will cancel Definitive
Registered Notes surrendered to it and dispose of, or forward to the
Issuer, the cancelled Definitive Registered Notes in accordance with
Section 2.12 of the Indenture.
6.5 Fees and expenses of the Agents
The Principal Paying Agent will account to each of the other Agents (other
than the Security Agent) for their fees and relevant costs and expenses in
respect of the services performed by them under this Agreement promptly
after receipt thereof from the Issuer or the Guarantors and following
payment thereof to the Principal Paying Agent by the Issuer or, as the case
may be, the Guarantors, the Issuer and the Guarantors shall have no
responsibility for any such payments.
6.6 Trustee's Requirements Regarding Agents
At any time (a) after a Default or an Event of Default shall have occurred
and shall be continuing or the Notes shall otherwise have become due and
repayable (b) the Trustee shall have received any money which it proposes
to pay under Section 4.6 of the Indenture to the Holders or (c) the Trustee
has released the Deposited Amount from the Deposit Account to the Principal
Paying Agent to be held pending a redemption of the Notes in accordance
with Section 10 of the Indenture, the Trustee may:
6.6.1 by notice in writing to the Issuer, the Guarantors, the Principal
Paying Agent, the other Paying Agent, the Registrar and the Transfer
Agent require the Principal Paying Agent, the other Paying Agent, the
Registrar and the Transfer Agent pursuant to this Agreement:
(i) to act thereafter as Principal Paying Agent, Paying Agent,
Registrar and Transfer Agent respectively of the Trustee in
relation to payments to be made by or on behalf of the Trustee
under the provisions of the Indenture mutatis mutandis on the
terms provided in this Agreement (save that the Trustee's
liability under any provisions thereof for the indemnification,
remuneration and payment of out-of-pocket expenses of the Paying
Agents, the Registrar, the Security Agent and Transfer Agent
shall be limited to the amounts for the time being held by the
Trustee on the trusts of the Indenture and available for such
purpose) and thereafter to hold all Notes and all sums, documents
and records held by them in respect of Notes on behalf of the
Trustee; or
(ii) to deliver up all Notes and all sums, documents and records held
by them in respect of Notes to the Trustee or as the Trustee
shall direct in such notice provided that such notice shall be
deemed not to apply to any documents or records which the
relative Paying Agent, the Registrar, the Security Agent or the
Transfer Agent is obliged not to release by any law or
regulation; and/or
6.6.2 by notice in writing to each of the Issuer and the Guarantors require
it to make all subsequent payments in respect of the Notes to or to
the order of the Trustee and not to the Principal Paying Agent.
6.7 Notice of change of the Trustee
6
The Issuer shall forthwith give notice to the Principal Paying Agent of any
change in the person or persons comprising the Trustee.
6.8 Supplemental Agreement
The Issuer and the Guarantors shall enter into an appropriate agency
agreement supplemental to this Agreement with any Agent not a party to this
Agreement. This Agreement and any agreement supplemental thereto shall
implement the provisions of the Indenture that relate to each Agent. The
Issuer shall promptly notify the Trustee and the Holders of the name and
address and of any change in name and address of any Agent. If the Issuer
fails to maintain a Registrar or Paying Agent, the Trustee shall act as
such on behalf of the Issuer and shall be entitled to appropriate
compensation in accordance with the provisions of Section 5.7 of the
Indenture.
7 REPAYMENT AND EARLY REDEMPTION
7.1 Repayment
Any money deposited with the Trustee or any Paying Agent, or then held by
the Issuer or Parent, in trust for the payment of the principal of (or
premium, if any) or interest on any Note and remaining unclaimed for two
years after such principal, premium or interest has become due and payable
shall be paid to the Issuer or Parent upon receipt of a written request
signed by a member of the Board of Directors or the Management Board and
delivered to the Trustee, or (if then held by the Issuer or Parent) shall
be discharged from such trust; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Issuer cause to be published once, in London's Financial
Times and, for so long as the Notes remain listed on the Luxembourg Stock
Exchange, the Luxemburger Wort, notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30
days from the date of such publication, any unclaimed balance of such money
then remaining will be repaid to the Issuer. Subject to Clause 15, the
Principal Paying Agent shall not, however, be otherwise required or
entitled to repay to the Issuer or the Guarantors any sums received by it
under this Agreement.
7.2 Early Redemption - Deposit of Redemption Price
In the event of the Issuer electing to redeem all or some of the Notes in
accordance with Article 10, at least one Business Day before the Redemption
Date (or, if such due date is not a Business Day, on the immediately
preceding Business Day), the Issuer shall unconditionally pay or procure to
be paid to the Principal Paying Agent or if applicable, the U.S. Paying
Agent, money sufficient to pay the Redemption Price of and accrued interest
and Additional Amounts on all Notes to be redeemed on that date in
accordance with Section 10.5 of the Indenture, other than Notes or portions
thereof called for redemption on that date which have been delivered by the
Issuer to the Trustee for cancellation.
8 CANCELLATION OF NOTES
8.1 Cancellation by the Principal Paying Agent
All Notes which are redeemed shall be cancelled by, in the case of Notes in
definitive form, the removal of the relevant Holder's name from the
Register by the Registrar and, unless otherwise instructed in writing by
the Issuer or the Guarantors, cancellation by the Principal Paying Agent of
the corresponding Definitive Registered Notes pursuant to Section 2.12of
7
the Indenture or, if instructed by the Issuer or the Guarantors, sending
the corresponding Definitive Global Note to the Issuer or the Guarantors
(as applicable), and, in the case of Book-Entry Interests in a Global Note,
the appropriate amendment of such Global Note by the Principal Paying
Agent.
8.2 Cancellation by the Issuer
If the Issuer or the Guarantors or any of their respective Subsidiaries
purchases any Notes, the Issuer or, as the case may be, the Guarantors,
shall forthwith cancel them or procure their cancellation (by appropriate
amendment of the Global Notes if the Notes are represented thereby) and
send the Definitive Registered Notes (if in definitive form) to the
Principal Paying Agent for cancellation pursuant to Section 2.12 of the
Indenture.
8.3 Cancelled Definitive Registered Notes
Each Paying Agent shall (unless it is itself the Principal Paying Agent)
give all relevant details for the purpose of sub-Clause 8.4 to, and shall
forward Definitive Registered Notes surrendered to it promptly to the
Principal Paying Agent for cancellation pursuant to Section 2.12 of the
Indenture.
8.4 Certification of Payment Details
Subject to receipt of the information described in sub-Clause 8.3, the
Principal Paying Agent shall as soon as reasonably possible, and in any
event within one month after the end of the calendar quarter during which
any redemption, payment or purchase (as the case may be) takes place
furnish the Issuer, the Guarantors, the Trustee and the Registrar with a
Certificate stating (as applicable) (1) the aggregate amounts paid in
respect of Notes redeemed, (2) the aggregate principal amount of the Notes
purchased and cancelled and (3) the Definitive Registered Note numbers of
such Notes (unless the Notes are represented by the Global Notes).
8.5 Records
Subject to receipt of the relevant information, the Principal Paying Agent
shall keep a full and complete record of all Notes and of their redemption,
payment, cancellation, despatch, destruction and replacement (as
appropriate) and shall make such record available at all reasonable times
to the Issuer, the Guarantors, the Trustee and the other Agents.
8.6 Identifying Numbers
The Registrar shall notify the Principal Paying Agent of the identifying
numbers of the Definitive Registered Notes which are issued and the same
shall form the basis of the records to be kept by the Principal Paying
Agent.
8.7 Inspection
Each of the Issuer and the Trustee, whenever it deems it necessary (acting
reasonably), may inspect any Notes or Definitive Registered Notes held by
the Principal Paying Agent, and any books and records maintained by the
Principal Paying Agent under this Agreement during normal business hours
and on giving reasonable notice.
9 ISSUE OF REPLACEMENT DEFINITIVE REGISTERED NOTES
9.1 Stocks of Definitive Registered Notes
8
From time to time after such time (if ever) as Notes may be transferred
into names other than those of the holders of the Global Notes, the Issuer
will, if Notes in definitive form are issued, cause a sufficient quantity
of additional blank Definitive Registered Notes (other than the Global
Notes) to be available, upon request, to the Registrar at its specified
office for the purpose of delivering replacement Definitive Registered
Notes as provided below. The Issuer will promptly notify the Trustee and
the Registrar if the member of the board of directors or authorised
representative of the Issuer whose manual or facsimile signature appears on
such stocks of replacement Definitive Registered Notes ceases to be so
authorised. In such circumstances the Issuer will promptly, properly and
validly appoint a replacement member of the board of directors or
authorised representative and promptly deliver to the order of the
Registrar, such number of replacement Definitive Registered Notes as it may
reasonably request, duly signed manually or in facsimile by such
replacement authorised officer. Upon receipt of such replacement Definitive
Registered Notes, the Registrar or its agent will be deemed to have been
authorised by the Issuer to destroy any previous replacement Definitive
Registered Notes and will notify the Issuer of such destruction.
9.2 Replacement
The Registrar will authenticate and deliver or cause to be authenticated
and delivered any replacement Definitive Registered Notes which the Issuer
may determine to issue or deliver in place of Definitive Registered Notes
which have been mutilated, defaced, lost, stolen or destroyed in accordance
with the provisions of Section 2.8 of the Indenture. The Registrar will
inform the Issuer upon receiving any request from a Holder for the issue of
a replacement Definitive Registered Note.
9.3 Conditions of replacement
The Registrar will verify, in the case of an allegedly lost, stolen,
destroyed or wrongfully taken Definitive Registered Note in respect of
which the identifying number is known or believed to be known, that the
Note in respect of which such Definitive Registered Note is issued has not
been redeemed, converted or purchased and, in each case, cancelled and the
Registrar shall not deliver or cause to be delivered any replacement
Definitive Registered Note unless and until the applicant therefor shall
have:
9.3.1 paid such expenses, taxes and duties as may be incurred in connection
therewith and complied with any further requirements of the Trustee,
Registrar, Principal Paying Agent or Issuer permitted pursuant to
Section 2.8 of the Indenture;
9.3.2 furnished the Registrar with such evidence (including evidence as to
the identifying number of the Definitive Registered Note in question
if known), security and indemnity as the Issuer and the Registrar may
reasonably require; and
9.3.3 surrendered to the Registrar any mutilated or defaced Definitive
Registered Note to be replaced.
9.4 Cancellation of replaced Definitive Registered Notes
The Registrar shall pass to the Principal Paying Agent any mutilated or
defaced Definitive Registered Notes replaced by it pursuant to this Clause
and shall furnish the Issuer, the Guarantors, the Registrar and the
Principal Paying Agent with a Certificate, stating the identifying numbers
of the Definitive Registered Notes, and the nominal amount of the Notes
represented by them, and, unless otherwise instructed in writing by the
Issuer or the Guarantors, the Principal Paying Agent shall destroy such
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cancelled Definitive Registered Notes in accordance with Section 2.12 of
the Indenture and furnish the Issuer, the Guarantors, the Registrar and the
Principal Paying Agent with a Certificate confirming such destruction and
containing information specified in Clause 9.5.
9.5 Notification
The Registrar shall, on delivering any replacement Definitive Registered
Note, forthwith inform the Issuer, the Guarantors, and each of the other
Agents (except the Security Agent), of the identifying number of such
replacement Definitive Registered Note and (if known) of the numbers of the
relevant Notes in place of which such replacement Definitive Registered
Note has been delivered.
9.6 Records
The Registrar shall keep a full and complete record of all replacement
Definitive Registered Notes delivered and shall make such record available
at all reasonable times to the Issuer, the Guarantors, the Trustee and the
Principal Paying Agent.
9.7 Notice of presentation of replaced Definitive Registered Notes
Whenever any Definitive Registered Note alleged to have been lost, stolen
or destroyed in replacement for which a new Definitive Registered Note has
been issued shall be surrendered or delivered to an Agent (except the
Security Agent) prior to payment or for exchange, the Agent shall
immediately send notice thereof to the Issuer, the Guarantors, the
Registrar, the Trustee and the Principal Paying Agent.
10 DUTIES OF THE TRANSFER AGENT IN RESPECT OF TRANSFERS
The Transfer Agent shall perform such duties as are set out herein and in
the Indenture and, in performing those duties, shall act in accordance with
the Indenture and the provisions of this Agreement. The Transfer Agent
will:
10.1 receive requests for the transfer of Notes, inform the Registrar, forward
the deposited Definitive Registered Note(s) to the Registrar and assist in
the issue of a new Definitive Registered Note in accordance with the
Regulations referred to in Clause 14 and in particular forthwith notify the
Registrar of (1) the name and address of the holder of the Note, (2) the
identifying number of the relevant Notes, (3) (where the full principal
amount of the Note in respect of which a Definitive Registered Note was
issued is not to be transferred) the principal amount (which must be an
authorised denomination) transferred, and (4) the name, address and account
for payments (if any) of the transferee to be entered on the Register;
10.2 maintain in safe custody all Notes held by it hereunder and shall ensure
that all Notes held by it are issued or delivered by it only in accordance
with the Indenture and the provisions of this Agreement;
10.3 provided that it has not received notice from the Principal Paying Agent
that the relevant funds have not been received, shall accept surrender and
effect repayment of Notes on their due date for repayment;
10.4 keep the Registrar and (if requested) the Principal Paying Agent informed
of all transfers; and
10.5 carry out such other acts as may be necessary to give effect to the
Indenture and the provisions of this Agreement.
10
11 DUTIES OF THE REGISTRAR
11.1 The Registrar
The Registrar shall maintain a register (the "REGISTER") at its specified
office (or such other city as may be agreed between the Issuer and the
Trustee) in accordance with Section 2.3 of the Indenture and the
Regulations. The Register shall show the amount of the Notes and the date
of issue and all subsequent cancellations, transfers, changes of ownership
and exchanges in respect thereof and the names and addresses of the holders
of the Notes. The Registrar shall at all reasonable times during office
hours make the Register available to the Issuer, Guarantors, the Trustee,
the other Agents or any person authorised by any of them for inspection and
for the taking of copies thereof or extracts therefrom and the Registrar
shall deliver to such persons all such lists of holders of Notes, their
addresses, registered accounts, holdings and other details as they may
request. The Register will include a record of the identifying number of
each Definitive Registered Note which is issued.
11.2 Transfers
The Registrar will receive requests for the transfer of Notes and will also
receive Definitive Registered Notes deposited with the Transfer Agents for
transfer, effect the necessary entries, authenticate and issue new
Definitive Registered Note(s) in accordance with the Regulations referred
to in Clause 14 and deliver new Definitive Registered Note(s) to the
Transfer Agent.
11.3 The Registrar shall, so long as any Note is outstanding:
11.3.1 effect exchanges of the Global Note or part thereof for Definitive
Registered Notes, keep record of all exchanges (which exchanges shall
not be effective until recorded in the Register) and ensure that the
Principal Paying Agent is notified forthwith after any exchange;
11.3.2 register all transfers of Notes (which transfer shall not be
effective until recorded in the Register);
11.3.3 receive any document in relation to or affecting the title to any of
the Notes including all forms of transfer, forms of exchange,
probates, letters of administration and power of attorney;
11.3.4 maintain a proper record of the details of all documents received by
itself or the Transfer Agent;
11.3.5 prepare all such lists of holders of the Notes as may be required by
the Issuer or the Principal Paying Agent in accordance with the
Indenture or this Agreement;
11.3.6 subject to applicable laws and regulations, at all reasonable times
during office hours and upon reasonable notice make the Register
available to the Issuer, Guarantors, the Trustee and the Principal
Paying Agent or any person authorised by any of them and the holder of
any Notes for inspection and for the taking of copies or extracts;
11.3.7 comply with the proper and reasonable requests of the Issuer with
respect to the maintenance of the Register and give to the Principal
Paying Agent and the Transfer Agent such information as may be
reasonably required by them for the proper performance of their
respective duties;
11
11.3.8 forthwith, and in any event within three business days of the
relevant request (or such longer period as may be required to comply
with any applicable fiscal or other regulations), issue, upon receipt
by it of, or receipt by it of notification from the Transfer Agent of
delivery to it of, Definitive Registered Notes for transfer or the
Global Note for exchange (or part exchange) into Definitive Registered
Notes, duly dated and completed Notes in the name of the registered
holders and deliver the Notes at its specified office or at the
specified office of the Transfer Agent or (at the risk of the relevant
registered holders) send the Notes to such address as the registered
holder may request.
11.4 Notes shall be dated:
11.4.1 in the case of a Note issued in exchange for all or part of the
Global Note, the date of issue of the relevant Global Note;
11.4.2 in the case of a Note issued to the transferor upon transfer in part
of a Note, the same date as the date of the Note transferred; or
11.4.3 in the case of a Note issued in replacement of a lost, stolen,
mutilated, defaced or destroyed Note, with the same date in
replacement of which it is issued.
11.5 Miscellaneous
The Registrar will carry out such other acts as may be necessary to give
effect to the Indenture and the other provisions of this Agreement. The
Registrar will comply with proper and reasonable requests of the Issuer and
the Guarantors with respect to the maintenance of the Register and give to
them such information with respect thereto as may be reasonably required by
them for the performance of their respective duties under this Agreement
and the Indenture.
12 DUTIES OF THE SECURITY AGENT
12.1 Subject to sub-clause 12.2, the Security Agent will provide the following
services to the Trustee pursuant to its appointment under this Agreement,
subject to such modifications as shall be agreed in writing between the
Security Agent and the Trustee from time to time. No consent from the other
parties to this Agreement shall be required for such modifications to take
effect. The Security Agent shall:
12.1.1 upon instructions received from the Trustee , represent the Trustee,
in its capacity as pledgee, in any matters related to the filing of
any Security Documents with the Polish courts;
12.1.2 upon instructions received from the Trustee, make any
representations to local and government authorities with respect to
any action the Trustee as pledgee may be directed to undertake, as may
be agreed between the Security Agent and the Trustee;
12.1.3 upon instructions received from the Trustee in writing, arrange the
appointment of other Polish entities to facilitate any action that the
Trustee in its capacity as pledgee is directed to take, including:
(i) appointing local property or other agents to arrange for the sale
of land, buildings and, where relevant, any other Collateral,
and/or
12
(ii) stockbrokers/investment banks to facilitate the sale of Pledged
Shares or other financial assets;
12.1.4 upon instruction received from the Trustee, the Security Agent will
make a pre-selection of professional firms operating on the Polish
market specializing in activities mentioned in items (i) and (ii)
above according to the criteria specified by the Trustee and provide
this pre-selection in the form of a list to the Trustee. The Trustee
will instruct the Security Agent which entity from the list it wishes
the Security Agent to instruct and the Security Agent will appoint
such entity to carry out the actions required by the Trustee;
12.1.5 upon instructions received from the Trustee, in connection with the
exercise of rights under sub-clause 12.1.3(i), the Security Agent
shall apply for consent from the Ministry of Internal Affairs and
Administration;
12.1.6 upon instructions received from the Trustee, assist the Trustee:
(i) in establishing any further pledges in respect of new Collateral;
(ii) in entering into any Intercreditor Deed as contemplated by the
Indenture; and
(iii) in the enforcement of Collateral after an uncured Event of
Default has occurred on instructions by the Trustee; and
12.1.7 the duties connected with the enforcement of the Collateral will,
upon instructions received from the Trustee and the provision by the
Trustee of any appropriate power of attorney or authorisation (if
applicable), include:
(i) collecting cash from banks accounts; and
(ii) launching and assisting in execution proceedings .
12.2 Without prejudice to any of sub-clauses 17.3, 17.4, 17.5 or any other
provisions in this Agreement relating to the exclusion of liability of
Agents, the scope of the Security Agent's duties hereunder and under any
Security Document shall be limited as follows:
12.2.1 any action to be taken (including without limitation pledging or
re-pledging), will be taken by the Security Agent only after the
Security Agent's legal counsel, at the cost of the Issuer, has
confirmed that any document to be entered into is or will be when
executed, valid, legal, binding and enforceable in accordance with its
terms and does not compromise the position of the Trustee as pledgee
and trustee for the Noteholders;
12.2.2 the Security Agent in acting hereunder shall not incur any liability
in respect of any action taken or omitted in reliance upon any
instruction from the Trustee or the written advice of a reputable law
firm delivered in good faith on the basis of applicable law or any
official information in writing or any decision from any governmental
authority competent to give such information or decision;
12.2.3 the Security Agent will have no responsibility for the
enforceability of Security Documents. The form of all agreements that
the Security Agent is expected to conclude will be substantially in
the forms agreed in the Exhibits to the Indenture and presented to the
13
Security Agent (as drafted by the legal counsel to the other
counterparties) a reasonable time before they are asked to sign such
agreements;
12.2.4 the Security Agent shall not be responsible for the selection of the
assets being made subject to any Security Documents;
12.2.5 the Security Agent shall not become the owner of any Collateral;
12.2.6 the Security Agent assumes no obligations towards the Holders
pursuant to this Agreement and its duties are owed solely to the
Trustee;
12.2.7 the Security Agent shall be entitled to rely on, and shall be
protected in acting upon, and shall be entitled to treat as genuine
and as the document it purports to be, any instruction, letter, paper
or other document furnished to it by the Trustee and believed by the
Security Agent, acting reasonably, to be genuine and to have been
signed and presented by the proper person or persons; and
12.2.8 the Security Agent shall not be under any obligation to take any
action under any agreement which it expects will result in any
expense, the payment of which within a reasonable time is not, in its
opinion, assured to it (or has not been covered in advance by a
security deposit in the amount sufficient to cover each action which
the Security Agent is instructed to carry out before the action is
taken), provided that: (i) it shall notify the relevant party of its
intention not to take such action and (ii) it has not otherwise been
provided with sufficient funds to cover such expenses.
12.3 Each of the Trustee and the Security Agent agree with the other that, upon
the receipt by one of them of any notice, documents or information relating
to the performance of the Security Agents services under this Agreement, it
will promptly upon receipt thereof either provide the other with a copy of
such notice or document or communicate such information by such other
appropriate means.
13 DOCUMENTS AND DEFINITIVE REGISTERED NOTES FOR THE TRANSFER AGENT
13.1 Supply of Definitive Registered Notes
From time to time after such time (if ever) as Notes may be transferred
into names other than those of the holders of the Global Notes, the Issuer
will deliver to the Transfer Agent promptly after receiving a request from
the Transfer Agent:
13.1.1 a supply of blank Definitive Registered Notes sufficient to meet the
Transfer Agent's anticipated requirements for Definitive Registered
Notes upon effecting the transfers required by the holders of the
Global Notes; and
13.1.2 from time to time, so long as any Note is outstanding, sufficient
additional blank Definitive Registered Notes as may be required for
the performances of the Transfer Agent's duties.
13.2 Safekeeping of Definitive Registered Notes
The Transfer Agent shall maintain in safe custody all Definitive Registered
Notes and blank Definitive Registered Notes delivered to and held by it and
shall ensure that Definitive Registered Notes are issued only in accordance
with the Indenture (including the provisions of the Global Notes) and the
provisions of this Agreement.
14
13.3 The Transfer Agent shall perform such duties as are set out herein and in
the Indenture and, in performing those duties, shall act in accordance with
the Indenture and the provisions of this Agreement.
13.4 When Notes are presented by a Holder to the Transfer Agent with a request
to register the transfer of the Notes or to exchange such Notes for an
equal principal amount of Notes of other authorised denominations, the
Transfer Agent shall register the transfer or make the exchange as
requested only if the Notes are presented or surrendered for registration
of transfer or exchange and are endorsed or accompanied by a written
instrument of transfer in form satisfactory to the Transfer Agent duly
executed by such Holder or by his attorney, duly authorised in writing. In
the case of a transfer of part only of a Note, a new Note shall be issued
to the transferee in respect of the part transferred and a further new Note
in respect of the balance of the holding not transferred shall be issued to
the transferor. Each new Note to be so issued shall be available for
delivery within three business days of receipt by the Transfer Agent or any
Paying Agent at its specified office of the relevant Note and the form of
transfer.
13.5 The Transfer Agent shall:
13.5.1 if appropriate, charge to the holder of a Note presented for
transfer (a) the costs and expenses (if any) of the Registrar in
delivering Notes issued on such transfer other than by ordinary
uninsured mail and (b) a sum sufficient to cover any stamp duty, tax
or other governmental charge that may be imposed in relation to the
transfer and, in each case, account to the Registrar for those
charges; and
13.5.2 carry out other acts as may be necessary to give effect to the
Indenture and the other provisions of this Agreement.
13.6 Information
Within seven days of any request therefor by the Issuer or the Guarantors
or any Agent, so long as any of the Notes are outstanding, the Transfer
Agent shall certify to the Issuer, the Guarantors and the relevant Agent
the number of blank Definitive Registered Notes held by it hereunder.
14 INFORMATION AND REGULATIONS CONCERNING THE NOTES
14.1 Provision of Information
The Transfer Agent will give to the other Agents such further information
with regard to their activities hereunder as may reasonably be required by
them for the proper carrying out of their respective duties.
14.2 Regulations
The Issuer may from time to time with the prior written approval of the
Registrar and the Trustee promulgate regulations (the "REGULATIONS"), in
accordance with the terms of the Indenture and applicable law, concerning
the carrying out of transfers and registration and the forms and evidence
to be provided. All such transfers will be made subject to the Regulations.
The initial Regulations are set out in the Schedule hereto. The Agents
(except the Security Agent) agree to comply with such Regulations as they
may be amended from time to time.
15
15 REMUNERATION
15.1 Fees
The Issuer (failing whom the Guarantors) will, in respect of the services
to be performed by the Agents under this Agreement, pay to the Principal
Paying Agent the commissions, fees and expenses of the Agents as separately
agreed in writing with the Principal Paying Agent and neither the Issuer
nor the Guarantors need concern itself with the apportionment of such
moneys as between the Agents, except in the case of the Security Agent
where such commissions, fees and expenses will be paid directly to the
Security Agent and as agreed to between Netia Holdings S.A. and the
Security Agent.
15.2 Costs
The Issuer (failing whom the Guarantors) will pay to the Principal Paying
Agent all reasonable out-of-pocket expenses (including, without limitation,
reasonable advertising, postage and insurance expenses and the reasonable
fees and expenses of legal advisers) properly incurred by any Agent in
connection with its services properly performed under this Agreement or in
connection with the investigation or defence of any claims arising out of
any action taken or omitted in connection with this Agreement promptly upon
receipt from the Principal Paying Agent of notification of the amount of
such expenses together with the relevant invoices and/or receipts, except
in the case of the Security Agent where such expense will be paid directly
to the Security Agent and as agreed to between Netia Holdings S.A. and the
Security Agent).
15.3 Stamp duties
The Issuer (failing whom the Guarantors) will pay or reimburse all stamp,
transaction and other taxes, fees or duties, if any, to which this
Agreement may be subject. 16 PAYING AGENTS
16.1 Repayments
The Issuer or the Guarantors (as the case may be) at any time may require
the Principal Paying Agent or the Paying Agent to pay all money held by it
to the Trustee and account for any funds disbursed and the Trustee may at
any time during the continuance of any payment default under the Notes,
upon written request to the Principal Paying Agent or the Paying Agent,
require such Paying Agent to pay all money held by it to the Trustee and to
account for any funds disbursed. Upon making such payment such Paying Agent
shall have no further liability for the money delivered to the Trustee. The
Trustee may at any time require the Security Agent to pay all money
received by it which relates to the enforcement of the Security Documents
to the Trustee and account for any funds disbursed.
16.2 Use of moneys
Each of the Principal Paying Agent, the Paying Agent and the Security Agent
shall be entitled to deal with moneys paid to it by the Issuer or the
Guarantors for the purposes of this Agreement in the same manner as other
moneys paid to a banker by its customers and shall not be liable to account
to the Issuer or the Guarantors for any interest thereon. No Agent shall
exercise any right of set-off or lien or similar claim over moneys paid to
it or under this Agreement. All payments to be made by either Paying Agent
hereunder shall be made without charging any commission or fee to the
Holders or any of them.
16
17 MISCELLANEOUS
17.1 Publication of notices
On behalf and at the request of the Issuer, the Principal Paying Agent will
promptly cause to be mailed and published any notices (in the form provided
to the Principal Paying Agent by the Issuer, the Guarantors or the Trustee
or the Security Agent, as the case may be) required to be given by the
Issuer, the Guarantors or the Trustee or the Security Agent in accordance
with the Indenture, save as set out herein. The Principal Paying Agent
shall promptly send by mail and by fax to the Issuer, the Guarantors, the
Trustee and the Agents two copies of every notice given to the Holders in
accordance with the Indenture.
17.2 Notices to the Trustees
Upon each occasion that the Issuer or the Guarantors gives to the Trustee
any notice in connection with the Notes, the Issuer or the Guarantors shall
at the same time give a similar notice to the Principal Paying Agent
(unless the Principal Paying Agent is also the Trustee).
17.3 No implicit duties
The Agents shall be obliged to perform such duties, and only such duties,
as are herein and in the Indenture specifically set forth and no implied
duties or obligations shall be read into this Agreement or the Indenture
against any of them. None of the Agents shall be under any obligation to
take any action hereunder which may involve it in any expense or liability,
the payment of which within a reasonable time is not, in its reasonable
opinion, ensured to it.
17.4 No agency or trust
In acting hereunder and in connection with the Notes, the Agents (except
the Security Agent) shall act solely as agents of the Issuer and the
Guarantors (or, where a notice given by the Trustee pursuant to Clause 6.6
shall not have been withdrawn and, in the case of the Security Agent at all
times, the Trustee) and will not thereby assume any obligations towards, or
relationship of agency or trust for, any of the Holders.
17.5 Taking of advice
Any of the Agents may consult with legal or other professional advisers
satisfactory to it, and the opinion of such advisers shall be full and
complete protection in respect of any action taken, omitted or suffered
hereunder in good faith and in accordance with the opinion of such
advisers.
17.6 Liability
The Agents shall be protected and shall incur no liability for or in
respect of any action taken, omitted or suffered in reliance upon any
instruction, request or order from the Issuer, the Guarantors or the
Trustee, as the case may be, or any Note, Definitive Registered Note, form
of transfer, resolution, direction, consent, Definitive Registered Note,
Security Document, affidavit, statement, telex, facsimile transmission or
other paper or document believed by it in good faith to be genuine and to
have been delivered, signed or sent by the proper party or parties.
17
17.7 Indemnity by the Issuer
The Issuer (failing whom the Guarantors on a several basis) will indemnify
each of the Agents against any losses, liabilities, costs, expenses,
claims, actions and demands (including, but not limited to, the reasonable
fees and expenses of its legal advisers and agents) which it may incur or
which may be made against it as a result of or in connection with its
appointment or the exercise or non-exercise by it or its powers,
discretions and duties, except such as may result from the breach by it of
the terms of this Agreement or its own wilful misconduct, wilful default,
negligence or bad faith or that of its directors, officers, employees or
agents.
17.8 Entitlement to treat holder as owner
Except as ordered by a court of competent jurisdiction or required by law
or otherwise instructed by the Issuer or the Guarantors with the approval
of the Trustee, each of the Agents may (to the fullest extent permitted by
applicable laws) deem and treat the holder of any Note or of a particular
principal amount of the Notes as the absolute owner of such Note or
principal amount, as the case may be, for all purposes (whether or not such
Note or principal amount shall be overdue and notwithstanding any notice of
ownership, trust or any interest, in it, or any notice or loss or theft
thereof or any writing thereon) and no Agent shall be affected by any
notice to the contrary.
17.9 Copies of documents
So long as any of the Notes remains outstanding the Issuer shall provide
the Agents with a sufficient number of copies of the Indenture and of each
of the documents which are provided to the Trustee or which are required to
be made available by the Dutch composition plans ("akkoorden") as amended
on 28 October 2002, by stock exchange regulations or are stated in the
offering circular dated 27 September 2002 relating to the Notes to be
available and, subject to being provided with such copies, each of the
Agents (except the Security Agent) will procure that such copies shall be
available at its specified office for examination by Holders and that
copies thereof will be furnished to Holders upon request.
17.10 Acquisition of Notes
Any Agent and its respective officers, directors and employees, in an
individual capacity or any other capacity may become the owner of, or
acquire any interest in, any Notes, with the same rights that it or they
would have if it were not appointed hereunder, and may engage or be
interested in any financial or other transaction with the Issuer or the
Guarantors and may act on, or as depositary, trustee or Agent for, any
committee or body of holders of Notes or other obligations of the Issuer,
the Guarantors or any other person as freely as if it were not appointed
hereunder.
17.11 Merger
Any corporation into which any Agent may be merged or converted or any
corporation with which any Agent may be consolidated or any corporation
resulting from any merger, exchange or consolidation to which any Agent
shall be a party shall, to the extent permitted by applicable law, be the
successor Agent under this Agreement without the execution or filing of any
paper or any further act on the part of any of the parties hereto. Notice
of any such merger, exchange or consolidation shall forthwith be given to
the Issuer, the Guarantors, the Trustee and the Holders by the successor
Agent.
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18 CHANGES IN AGENTS
18.1 Appointment and termination of appointment
18.1.1 The Issuer and the Guarantors may appoint further or other Agents.
Each of the Issuer and the Guarantors agrees that, for so long as any
Note is outstanding (as defined in the Indenture) if any European
Union Directive on the taxation of savings implementing the
conclusions of the ECOFIN Council meeting of 26-27 November 2000 or
any law implementing or complying with, or introduced in order to
conform to, such Directive is introduced, there will at all times be a
Paying Agent in a Member State of the European Union that will not be
obliged to withhold or deduct tax pursuant to any such Directive or
law. Each of the Issuer and the Guarantors further agrees that, where
each of the Relevant Taxing Jurisdictions requires tax to be withheld
or deducted from payments under the Notes, its Subsidiary Guarantee or
the Indenture, they will appoint a Paying Agent in a jurisdiction
which does not require tax to be withheld or deducted from any such
payment.
18.1.2 The Issuer and the Guarantors may also terminate the appointment of
any Agent (other than the Security Agent) at any time subject to the
prior written approval of the Trustee. Such termination shall be
effective by giving:
(i) to the Trustee; and
(ii) to the Agent whose appointment is to be terminated (with a copy,
where applicable, to the Principal Paying Agent or the Registrar
(as the case may be)),
at least 60 days' written notice to that effect. The Trustee may, by
giving at least 60 days' written notice to the Security Agent,
terminate the appointment of the Security Agent. However, no such
notice relating to the termination of the appointment of the Principal
Paying Agent, the Security Agent or the Registrar shall take effect
until a new Principal Paying Agent, Security Agent or, as the case may
be, Registrar approved in writing by the Trustee has been appointed on
terms approved in writing by the Trustee. The Issuer and the
Guarantors shall procure that there are at all times such Agents as
required by the Indenture. The termination of the appointment of any
Agent shall not take effect (1) until notice thereof shall have been
given to the Holders in accordance with Section 1.6 of the Indenture
(2) within the period commencing 30 days immediately preceding any due
date for a payment in respect of the Notes and ending 15 days after
such date.
18.2 Resignation
Any Agent may resign its appointment hereunder at any time by giving to the
person(s) referred to in sub-Clause 18.1.2 and (except in the case of the
Security Agent) the Issuer at least 60 days' written notice to that effect,
provided that (i) in the case of the resignation of the Principal Paying
Agent, the Security Agent or the Registrar, no such resignation shall take
effect until a new Principal Paying Agent, Security Agent or Registrar is
approved in writing by the Trustee, (ii) no such resignation shall take
effect unless upon the expiry of the notice period there are Agents as
required by Clause 18.1, (iii) no such resignation shall take effect until
notice thereof shall have been given to the Holders in accordance with
Section 1.6 of the Indenture and (iv) no such notice shall be given so as
to expire within a period commencing 45 days immediately preceding any due
date for a payment in respect of the Notes and ending 15 days after such
date.
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18.3 Delivery of Records by Principal Paying Agent on Termination
If the appointment of the Principal Paying Agent hereunder is terminated or
the Principal Paying Agent resigns its appointment hereunder, the Principal
Paying Agent shall, on the date on which such termination or resignation
takes effect, pay to the successor Principal Paying Agent the amounts held
by it in respect of Notes which have not been presented for payment and any
other amounts held by it in respect of the Notes and shall deliver to the
successor Principal Paying Agent Definitive Registered Notes surrendered to
it but not yet destroyed and all records concerning Notes and the
Definitive Registered Notes maintained by the Principal Paying Agent
pursuant to this Agreement, but shall have no other duties or
responsibilities hereunder.
18.4 Delivery of Records by Registrar on Termination
If the appointment of the Registrar is terminated or the Registrar resigns
its appointment hereunder, the Registrar shall, on the date on which such
termination or resignation takes effect, deliver to the successor
Registrar, the Register, all Definitive Registered Notes and blank
Definitive Registered Notes held by it and all other records concerning the
Notes maintained by it pursuant to this Agreement, but shall have no other
duties or responsibilities hereunder.
18.5 Delivery of Records by Agents on Termination
If the appointment of any Agent is terminated or any Agent resigns its
appointment hereunder, such Agent shall, on the date on which such
termination or resignation takes effect, deliver to any successor Agent or,
if none, the Principal Paying Agent (and in the case of the Security Agent
to the Trustee) any records concerning the Notes maintained by it pursuant
to this Agreement, but shall have no other duties or responsibilities
hereunder.
18.6 Change of office
If any Agent (except the Security Agent) shall change its specified office,
it shall give to the Issuer, the Guarantors, the Principal Paying Agent and
the Trustee not less than 30 days' prior written notice to that effect
giving the address of the new specified office. As soon as practicable
thereafter, the Principal Paying Agent shall give to the Holders, on behalf
of and at the expense of the Issuer, failing whom the Guarantors, notice of
such change and the address of the new specified office in accordance with
Section 1.6 of the Indenture. If the Security Agent shall change its
specified office, it shall give to the Trustee not less than 30 days' prior
written notice to that effect giving the address of the new specified
office.
19 NOTICES
Any communication shall be by letter sent by pre-paid registered post or
courier or by facsimile transmission:
to the Issuer: ▇▇. ▇▇▇▇▇▇▇▇ ▇▇
▇▇-▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
Attention: Ewa Don-▇▇▇▇▇▇▇
Tel: ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
20
to Netia Holdings S.A.: ▇▇. ▇▇▇▇▇▇▇▇ ▇▇
▇▇-▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile: ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
Telephone: + ▇▇ ▇▇ ▇▇▇ ▇▇▇▇
to Netia Telekom S.A.: ▇▇. ▇▇▇▇▇▇▇▇ ▇▇
▇▇-▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile: ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
Telephone: + ▇▇ ▇▇ ▇▇▇ ▇▇▇▇
to Netia South Sp. z o.o: ▇▇. ▇▇▇▇▇▇▇▇ ▇▇
▇▇-▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile: ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
Telephone: + ▇▇ ▇▇ ▇▇▇ ▇▇▇▇
to the Trustee, the Principal Paying The Bank of New York
Agent, the Paying Agent, the Registrar 48th Floor
and the Transfer Agent: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Attention: Global Trust Services
Facsimile: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
Telephone: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
to the Security Agent ING Bank ▇▇▇▇▇▇ ▇.▇.
Plac Trzech Krzyzy 10/1
00-950 Warsaw
Attention: Neon - Security Agent
Facsimile: ▇▇▇ ▇▇ ▇▇▇ ▇▇ ▇▇/76/74
Telephone: ▇▇▇ ▇▇ ▇▇▇ ▇▇ ▇▇
Any notice or demand sent by post as provided in this Clause shall be
deemed (unless any relevant part of the postal service is affected by
industrial action) to have been given, made or served three days (in the
case of inland post) or seven days (in the case of overseas post) after
despatch and any notice sent by fax as provided in this Clause shall be
deemed to have been given, made or served 24 hours after despatch and
receipt of confirmation of error-free transmission (if received during
business hours and, if not, on the next business day in the place of
receipt). Subject thereto, neither the non-receipt of, nor the time of
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receiving, any such confirmation of a notice given by fax as is referred to
above shall invalidate or affect such notice or the time at which it is
deemed as provided above to have been given. Any communication not by
letter shall be confirmed by letter provided that non-receipt of such
letter shall not invalidate the notice given.
Any of the parties named above may change its address for the purpose of
this Clause by giving notice of such change to the other parties to this
Agreement.
20 GOVERNING LAW AND JURISDICTION
20.1 Governing Law
This Agreement shall be governed by and construed in accordance with
English Law.
20.2 Jurisdiction
The courts of England are to have jurisdiction to settle any disputes which
may arise out of or in connection with this Agreement and accordingly any
litigation or proceedings arising out of or in connection with this
Agreement ("PROCEEDINGS") may be brought in such courts. The Issuer and the
Guarantors each hereby irrevocably submits for all purposes for or in
connection with this Agreement to the jurisdiction of the courts of England
and waives any objection to Proceedings in such courts whether on the
ground of venue or on the ground that the Proceedings have been brought in
an inconvenient forum. These submissions are for the benefit of the Trustee
and each of the Agents and shall not limit the right of any of them to take
Proceedings in any other court of competent jurisdiction nor shall the
taking of Proceedings in any one or more jurisdictions preclude the taking
of Proceedings in any other jurisdiction (whether concurrently or not).
20.3 SERVICE OF PROCESS: Each of the Issuer and the Guarantors irrevocably
appoints WG&M Secretaries Limited of ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇ as its authorised agent for service of process in England
regarding Proceedings in the courts of England. If for any reason such
agent shall cease to be such agent for the service of process, each of the
Issuer and the Guarantors shall forthwith appoint a new agent for service
of process in England and deliver to the Principal Paying Agent a copy of
the new agent's acceptance of that appointment within 30 days. Nothing
shall affect the right to serve process in any other manner permitted by
law.
21 COUNTERPARTS
This Agreement may be executed in counterparts which when taken together
shall constitute one and the same instrument.
22 CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
A person who is not a party to this Agreement has no rights under the
Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ to enforce any term of this
Agreement.
22
IN WITNESS whereof the parties hereto have executed this Agreement as of the
date first above written.
NETIA HOLDINGS B.V.
By: /S/ EWA DON-▇▇▇▇▇▇▇
-----------------------
Name: Ewa Don-▇▇▇▇▇▇▇
Title:Vice President, Legal
NETIA HOLDINGS S.A. NETIA HOLDINGS S.A.
By: /S/ ▇▇▇▇▇▇▇▇ MADALSKI By: /S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------- ---------------------
Name: ▇▇▇▇▇▇▇▇ Madalski Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chief Executive Officer Title: Chief Financial Officer
NETIA TELEKOM S.A. NETIA TELEKOM S.A.
By: /S/ ▇▇▇▇▇▇▇▇ MADALSKI By: /S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------- ---------------------
Name: ▇▇▇▇▇▇▇▇ Madalski Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chief Executive Officer Title: Chief Financial Officer
NETIA SOUTH Sp. z o.o. NETIA SOUTH Sp. z o.o.
By: /S/ ▇▇▇▇▇▇▇▇ MADALSKI By: /S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------- ---------------------
Name: ▇▇▇▇▇▇▇▇ Madalski Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chief Executive Officer Title: Chief Financial Officer
THE BANK OF NEW YORK
(as Principal Paying Agent)
By: /S/ ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Vice President
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THE BANK OF NEW YORK
(as Paying Agent and Transfer Agent)
By: /S/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Vice President
THE BANK OF NEW YORK (LUXEMBOURG) S.A.
(as Luxembourg Paying Agent and Transfer Agent)
By: /S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ By: /S/ ▇▇▇ ▇▇▇▇▇▇▇
-------------------------------- -------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: ▇▇▇ ▇▇▇▇▇▇▇
Title: Deputy General Manager Title: Managing Director
THE BANK OF NEW YORK
(as Registrar)
By: /S/ ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Vice President
THE BANK OF NEW YORK
(as Trustee)
By: /S/ ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Vice President
ING BANK ▇▇▇▇▇▇ ▇.▇.
(as Security Agent)
By: /S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By: /S/ PRZEMYSLAW CISZECKI
-------------------------------- ----------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: Przemyslaw Ciszecki
Title: Commercial Proxy Title: Commercial Proxy
24
SCHEDULE
REGULATIONS CONCERNING THE
TRANSFER AND REGISTRATION OF NOTES IN DEFINITIVE FORM
1 The Issuer shall at all times ensure that the Registrar maintains in
London, or at such other place in the United Kingdom as the Trustee may
agree, a register showing the amount of the Notes in definitive form from
time to time outstanding and the dates of issue and all subsequent
transfers and changes of ownership thereof and the names and addresses of
the holders of the Notes in definitive form. The Issuer, the Guarantors,
Trustee and the Holders of the Notes in definitive form or any of them and
any person authorised by it or any of them may at all reasonable times
during office hours inspect the register and take copies of or extracts
from it. The register may be closed by the Issuer for such periods at such
times (not exceeding in total 30 days in any one year) as it may think fit.
2 Each Note in definitive form shall have an identifying serial number which
shall be entered on the register.
3 The Notes in definitive form are transferable by execution of the form of
transfer endorsed thereon under the hand of the transferor or, where the
transferor is a corporation, under its common seal or under the hand of two
of its directors duly authorised in writing.
4 The Notes in definitive form to be transferred must be delivered for
registration to the specified office of the Registrar or the Transfer Agent
with the form of transfer endorsed thereon duly completed and executed and
must be accompanied by such documents, evidence and information as may be
required pursuant to the Conditions and such other evidence as the Issuer
may reasonably require to prove the title of the transferor or his right to
transfer the Notes in definitive form and, if the form of transfer is
executed by some other person on his behalf or in the case of the execution
of a form of transfer on behalf of a corporation by its directors, the
authority of that person or those persons to do so.
5 The executors or administrators of a deceased holder of Notes in definitive
form (not being one of several joint holders) and in the case of the death
of one or more of several joint holders the survivor or survivors of such
joint holders shall be the only person or persons recognised by the Issuer
as having any title to such Notes in definitive form.
6 Any person becoming entitled to Notes in definitive form in consequence of
the death or bankruptcy of the holder of such Notes in definitive form may
upon producing such evidence that he holds the position in respect of which
he proposes to act under this paragraph or of his title as the Issuer shall
require be registered himself as the holder of such Notes in definitive
form or, subject to the preceding paragraphs as to transfer, may transfer
such Notes in definitive form. The Issuer shall be at liberty to retain any
amount payable upon the Notes in definitive form to which any person is so
entitled until such person shall be registered as aforesaid or shall duly
transfer the Notes in definitive form.
7 Unless otherwise requested by him, the holder of Notes in definitive form
of any series shall be entitled to receive only one Note in definitive form
in respect of his entire holding of such series.
8 The joint holders of Notes in definitive form of any series shall be
entitled to one Note in definitive form only in respect of their joint
holding of such series which shall, except where they otherwise direct, be
delivered to the joint holder whose name appears first in the register of
the holders of Notes in definitive form in respect of such joint holding.
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9 Where a holder of Notes in definitive form has transferred part only of his
holding of any series there shall be delivered to him without charge a Note
in definitive form in respect of the balance of such holding.
10 The Issuer shall make no charge to the Holders for the registration of any
holding of Notes in definitive form or any transfer thereof or for the
issue thereof or for the delivery thereof at the specified office of the
Registrar or of the Transfer Agent or by post to the address specified by
the Holder. If any Holder entitled to receive a Note in definitive form
wishes to have the same delivered to him otherwise than at the specified
office of the Registrar or of the Transfer Agent, such delivery shall be
made, upon his written request to the Registrar or the Transfer Agent, at
his risk and (except where sent by post to the address specified by the
Holder) at his expense.
11 The holder of a Note in definitive form may (to the fullest extent
permitted by applicable laws) be treated at all times, by all persons and
for all purposes as the absolute owner of such Note in definitive form
notwithstanding any notice any person may have of the right, title,
interest or claim of any other person thereto. The Issuer, the Guarantors
and the Trustee shall not be bound to see to the execution of any trust to
which any Note in definitive form may be subject and no notice of any trust
shall be entered on the register. The holder of a Note in definitive form
will be recognised by the Issuer and the Guarantors as entitled to such
Note in definitive form free from any equity, set-off or counterclaim on
the part of the Issuer or the Guarantors against the original or any
intermediate holder of such Note in definitive form.
26