EXHIBIT 4.11
DATED AS OF JUNE 14, 2002
EXCHANGE AGREEMENT
AMONG
NETIA HOLDINGS S.A.,
NETIA TELEKOM S.A.,
NETIA SOUTH, SP. Z.O.O.,
NETIA HOLDINGS B.V.,
NETIA HOLDINGS II B.V.,
NETIA HOLDINGS III B.V.,
AND
CONSENTING CREDITORS
(AS DEFINED HEREIN)
CADWALADER, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
TEL: ▇▇▇ (▇)▇▇ ▇▇▇▇ ▇▇▇▇
FAX: ▇▇▇ (▇)▇▇ ▇▇▇▇ ▇▇▇▇
EXCHANGE AGREEMENT
THIS EXCHANGE AGREEMENT, dated as of June 14, 2002 (this "Exchange
Agreement"), among NETIA HOLDINGS, S.A, a Polish joint-stock company (the
"Company"), NETIA TELEKOM S.A. ("Telekom"), NETIA SOUTH, sp. z.o.o.("South"),
Netia Holdings B.V. ("BV I"), Netia Holdings II B.V. ("BV II"), Netia Holdings
III B.V. ("BV III"), (collectively, the "Company Group"), such holders of the
Old Notes (as defined herein) as execute this Exchange Agreement (the
"Consenting Noteholders"), ▇▇ ▇▇▇▇▇▇ Chase Bank ("JPMC") and, provided that it
has Executed (as defined below) this Exchange Agreement on or before the
Deadline (as defined below), ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Services, Inc. ("▇▇▇▇▇▇▇").
The Consenting Noteholders, JPMC and, provided that it has Executed (as defined
below) this Exchange Agreement on or before the Deadline, ▇▇▇▇▇▇▇ are sometimes
hereinafter collectively referred to as the "Consenting Creditors".
W I T N E S S E T H:
WHEREAS BV I and BV II have issued notes as follows (collectively the
"Old Notes"):
BV I: US$200 million 10.25% Senior Notes due 2007
US$193.550 million 11.25% Senior Discount Notes due 2007
DM207.062 million 11% Senior Discount Notes due 2007
BV II: US$100 million 13.125% Senior Notes due 2009
(euro)100 million 13.5% Senior Notes due 2009
(euro)200 million 13.75% Senior Notes due 2010
WHEREAS each of the Consenting Noteholders has a beneficial interest
in one or more Old Notes, and each of JPMC and ▇▇▇▇▇▇▇ have claims against one
or more members of the Company Group.
WHEREAS the Company has provided a guarantee in respect of each of
the Old Notes under the terms of the applicable indenture (the "Old Notes
Guarantee(s)"),
WHEREAS, inter alia, the Company, Telekom, South, JPMC and the
Consenting Noteholders have entered into a Restructuring Agreement dated as of
March 5, 2002 (the "Restructuring Agreement"),
WHEREAS, pursuant to the Restructuring Agreement, on 12 March 2002
the shareholders of the Company resolved to issue up to 317,682,740 class H
shares (the "Restructuring Shares") to the Consenting Creditors at a
subscription price equivalent to the par value of 1 zloty per share,
WHEREAS BV I has also agreed to issue to the Consenting Creditors
(euro)50m of Senior Secured 10% Notes due 2008 (the "New Notes") on the terms
set out in the Term Sheet at Appendix 1 of Exhibit A to the Restructuring
Agreement,
WHEREAS, the Company has agreed to allot to the Consenting Creditors,
and the Consenting Creditors have severally agreed to subscribe for, on the
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terms set out in this Exchange Agreement, a number of Restructuring Shares and
New Notes to be calculated in accordance with Schedule 1 hereto,
WHEREAS the Company and the Consenting Creditors have agreed that the
subscription price for the Restructuring Shares and the New Notes may be paid in
the manner and in accordance with the terms set out in this Exchange Agreement,
AND WHEREAS the Company, the Consenting Noteholders and JPMC have
agreed, pursuant to Clause 1.6 of the Restructuring Agreement, to enter into
this Exchange Agreement to implement the terms of the restructuring set out in
the Restructuring Agreement,
NOW, THEREFORE, in consideration of the premises and the mutual (as
the case may be) covenants and agreements hereinafter contained, the parties
hereby agree as follows:
1 DEFINITIONS
Capitalized terms used in this Exchange Agreement and not defined shall
have the respective meanings ascribed to them in the Restructuring
Agreement.
2 SUBSCRIPTION
2.1 The Company agrees to deliver (directly or indirectly through a trustee
acting on behalf of the Consenting Creditors (the "Trustee")) to each of
the Consenting Creditors a number of Restructuring Shares to be calculated
in accordance with Schedule 1 hereto.
2.2 BV I agrees to deliver (directly or indirectly through the Trustee) to each
of the Consenting Creditors a number of New Notes to be calculated in
accordance with Schedule 1 hereto.
2.3 The Consenting Creditors agree to subscribe (directly or indirectly through
the Trustee) for a respective number of Restructuring Shares and New Notes
each to be calculated in accordance with Schedule 1 hereto.
2.4 Each of (i) the Consenting Noteholders agrees to transfer its claims
against members of the Company Group in respect of the Old Notes Guarantee
and the Old Notes and (ii) JPMC and, provided that it has Executed this
Exchange Agreement on or before the Deadline, ▇▇▇▇▇▇▇ agrees to transfer
its claims against members of the Company Group in respect of the Currency
Swaps (collectively, the "Claims") to the Trustee. The amount payable by
the Trustee (i) to the Company in respect of the subscription price for the
Restructuring Shares and (ii) in respect of the subscription price for the
New Notes and the amount payable respectively by the Company, BV I and/or
BV II under the Claims (whether payable now or at a future date and whether
fully or partially reduced following the Polish and Dutch proceedings or
not) shall be set off against one another in full discharge of each party's
obligations to the other in respect thereof.
2.5 The Company, Telekom and South agree that, upon issue of the New Notes,
they will:
(a) execute joint and several full and unconditional guarantees of all
obligations of BV I under the New Notes in favour of all holders of
the New Notes in a form reasonably satisfactory to the holders of the
New Notes; and
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(b) grant security interests in their respective assets, to the extent
permitted by law, to secure performance by BV I of its obligations in
respect of the New Notes in a form reasonably satisfactory to the
holders of the New Notes.
3 COMPOSITION PROCEEDINGS
3.1 Provided that, prior to 5pm New York time on June 14, 2002 (the "Deadline")
this Exchange Agreement is Executed by holders of in excess of 99% by value
of all the claims against the Company then held by all holders of Old
Notes, and by JPMC and by ▇▇▇▇▇▇▇:
(a) if the Company and the Committee mutually so agree, the Company shall
seek the earliest withdrawal or discontinuance of any Polish
arrangement proceedings or Dutch composition proceedings reasonably
available to it, without obtaining any reduction of debt; and
(b) the Consenting Noteholders, JPMC and ▇▇▇▇▇▇▇ shall act to procure the
dismissal or discontinuance of any Polish arrangement proceedings or
Dutch composition proceedings.
3.2 If, by the Deadline, this Exchange Agreement has not been Executed by
holders of in excess of 99% by value of all the claims against the Company
then held by all holders of Old Notes, and by JPMC and by ▇▇▇▇▇▇▇:
(a) the Company agrees to continue Polish arrangement proceedings in
accordance with the Method of Implementation set out in Schedule 2
hereto; and
(b) BV I, BV II and BV III agree to commence Dutch composition proceedings
in accordance with the Method of Implementation set out in Schedule 2
hereto and in particular to propose in those proceedings the
cancellation of all debt in exchange for the New Notes to be issued by
BV I; and
(c) the Consenting Creditors agree to vote in favour, as applicable, of
the Polish plans and Dutch akkoords that will be proposed in the
Polish arrangement proceedings and Dutch composition proceedings in
accordance with the Method of Implementation set out in Schedule 2
hereto.
4 CLOSING
Upon the terms and subject to the conditions contained herein and in the
Restructuring Agreement and the schedules hereto and thereto:
4.1 The Consenting Creditors will exchange (directly or indirectly through the
Trustee) their claims against the Company Group, as applicable, for
Restructuring Shares and New Notes in the respective amounts set forth in
Schedule 1 attached hereto. The Restructuring Shares and New Notes will be
issued to the Consenting Creditors (directly or indirectly through the
Trustee) as soon as possible after the withdrawal, discontinuance or
closing of the Polish arrangement proceedings or the relevant order for the
approval of the Polish arrangement proceedings becomes final and
unappealable.
4.2 Each member of the Company Group and the Consenting Creditors agree that
the Consenting Creditors shall retain their full claims under the Old
Notes, the Old Note Guarantees and/or the Currency Swaps, as applicable,
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until the following: (i) the withdrawal, discontinuance or closing of the
Polish arrangement proceedings or the relevant order for the approval of
the Polish arrangement proceedings becomes final and unappealable, and (ii)
simultaneously therewith, such Consenting Creditors (directly or indirectly
through the Trustee) subscribe for the Restructuring Shares and are
allotted and obtain rights to receive the same, and, whether simultaneously
with such subscription and allotment or not, the allotment of the New
Notes.
4.3 Each member of the Company Group and the Consenting Creditors agree that,
following the unconditional allotment of valid Restructuring Shares and New
Notes, whether following Polish arrangement proceedings and/or Dutch
composition proceedings or not, save in respect of the Restructuring
Shares, the New Notes and their associated guarantees and security, there
shall be no remaining obligations owed to the Consenting Creditors by the
Company, Telekom, South, BV I, BV II or BV III.
5 REPRESENTATIONS AND WARRANTIES OF THE CONSENTING CREDITORS
Each of the Consenting Creditors, severally and not jointly, hereby
represents and warrants that:
5.1 Authorisation of the Exchange Agreement
They and, if applicable, their duly authorised attorney acting on their
behalf, have all requisite power, authority and, if applicable, legal
capacity to execute and deliver this Exchange Agreement and each other
agreement, document, instrument or certificate contemplated by this
Exchange Agreement or to be executed by them in connection with the
consummation of the transactions contemplated by this Exchange Agreement
and to consummate the transactions contemplated hereby and thereby. The
execution, delivery and performance by them of this Exchange Agreement has
been, and of such other agreement, document, instrument or certificate will
be, duly authorised by all necessary corporate or other organisational
action on behalf of the Consenting Creditors. This Exchange Agreement has
been, and such other agreement, document, instrument or certificate will
be, duly and validly executed and delivered by them and (assuming the due
authorization, execution and delivery by the other parties hereto and
thereto) this Exchange Agreement constitutes and such other agreement,
document, instrument and certificate will constitute legal, valid and
binding obligations of the Consenting Creditors enforceable against them in
accordance with their respective terms, subject to applicable bankruptcy,
insolvency, reorganisation, moratorium, procedural and similar laws
affecting creditors' rights and remedies generally, and subject, as to
enforceability, to general principles of equity, including principles of
commercial reasonableness, good faith and fair dealing (regardless of
whether enforcement is sought in a proceeding at law or in equity).
5.2 Ownership of Old Notes
Each Consenting Noteholder (or a client for which it has investment
discretion) is the record or beneficial owner, with the power to vote and
dispose free and clear of all liens, of that number of Old Notes set forth
on the Consenting Noteholder's signature page to this Exchange Agreement.
No Consenting Noteholder is the record owner or the holder of any
beneficial interest in any Old Note not listed on its signature page
attached hereto.
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5.3 Ownership of Shares
Each Consenting Noteholder severally and not jointly, hereby represents,
warrants and agrees that it does not beneficially own, and will not acquire
any beneficial interest in, any ordinary shares of the Company until the
closing of the Polish arrangement proceedings provided however that nothing
in this clause shall affect the activities of any other Businesses (as
defined below) operated by or within the Consenting Noteholder or
Businesses operated by entities controlled by, or under common control
with, the Consenting Noteholder. For the purposes of this clause 5.3,
"Businesses" shall mean entities which may own, hold or manage accounts
that hold, manage or beneficially own the Company's ordinary shares on
behalf of persons other than the Consenting Noteholder.
5.4 Consents of Third Parties
Except as contemplated by this Exchange Agreement and the Restructuring
Agreement, no consent, waiver, approval, Order or authorisation of, nor
notification to, any person or Governmental Body is required on the part of
such person in connection with the execution and delivery of this Exchange
Agreement or the compliance by such person with any provision hereof.
5.5 1933 Act Representations
(a) Each of the Consenting Creditors is either an "accredited investor"
within the meaning of Regulation D under the 1933 Act or is not a "US
Person" within the meaning of Regulation S under the 1933 Act.
(b) No Consenting Creditor, nor its affiliates, nor any person acting on
its or their behalf, has engaged or will engage in connection with the
issue of the Restructuring Shares or the New Notes in (i) any general
solicitation or general advertising within the meaning of Rule 502(c)
under the 1933 Act or (ii) any directed selling efforts within the
meaning of Rule 903 under the 1933 Act, unless such solicitation,
advertising or selling effort is then allowed under the 1933 Act.
6 REPRESENTATIONS AND WARRANTIES OF THE COMPANY GROUP
Each company in the Company Group hereby represents and warrants that:
6.1 Authorisation of the Exchange Agreement
Each company in the Company Group has full corporate power and authority to
execute and deliver this Exchange Agreement and to consummate the
transactions contemplated hereby. Subject to the approval of this Exchange
Agreement and the transactions contemplated hereby by the Supervisory Board
of the Company, (i) the execution, delivery and performance by each company
in the Company Group of this Exchange Agreement has been duly authorised by
all necessary corporate or other organisational action on behalf of such
company and (ii) this Exchange Agreement has been duly executed and
delivered by each company in the Company Group, as applicable, and
(assuming the due authorisation, execution and delivery by the other
parties hereto) this Exchange Agreement constitutes legal, valid and
binding obligations of such company, enforceable against such company in
accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganisation, moratorium, procedural and similar laws affecting
creditors' rights and remedies generally, and subject, as to
enforceability, to general principles of equity, including principles of
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commercial reasonableness, good faith and fair dealing (regardless of
whether enforcement is sought in a proceeding at law or in equity).
6.2 Consents of Third Parties
Except as contemplated by this Exchange Agreement and the Restructuring
Agreement, no consent, waiver, approval, Order or authorisation of, nor
notification to, any person or Governmental Body is required on the part of
such person in connection with the execution and delivery of this Exchange
Agreement or the compliance by such person with any provision hereof.
6.3 Ownership of Old Notes
No company in the Company Group:
(a) owns outright or has any beneficial interest in the Old Notes at the
date of this Exchange Agreement; nor
(b) has entered into discussions in respect of the Old Notes with any
holder of the Old Notes, save as may have been necessary in order to
execute this Exchange Agreement and the Restructuring Agreement.
6.4 1933 Act Representations
(a) In reliance by the Company and BV I of the representations and
warranties set forth in Section 5.4 hereof, the transactions specified
herein will be exempt from the registration requirements of the 1933
Act.
(b) Neither the Company, nor its affiliates, nor any person acting on its
or their behalf has engaged or will engage in connection with the
issue of the Restructuring Shares or the New Notes in (i) any general
solicitation or general advertising within the meaning of Rule 502(c)
under the 1933 Act or (ii) any directed selling efforts within the
meaning of Rule 903 under the 1933 Act, unless such solicitation,
advertising or selling effort is then allowed under the 1933 Act.
7 1933 ACT TRANSFER RESTRICTIONS
Each of the Consenting Creditors, severally and not jointly, hereby
represents, warrants and agrees that:
7.1 Restrictions
(a) The Consenting Creditors understand and agree that the Restructuring
Shares and New Notes that each of them will be acquiring have not been
registered under the 1933 Act and that, accordingly, such
Restructuring Shares and New Notes will not be transferable except as
permitted under various exemptions contained in the 1933 Act or upon
satisfaction of the registration and prospectus delivery requirements
of the 1933 Act. The Consenting Creditors acknowledge that the
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Consenting Creditors must bear the economic risk of their respective
investments in the Restructuring Shares and New Notes for an
indefinite period of time since the Restructuring Shares and New Notes
have not been registered under the 1933 Act and therefore cannot be
sold unless they are subsequently registered or an exemption from
registration is available.
(b) The Consenting Creditors represent and warrant to the Company that the
Consenting Creditors are acquiring the Restructuring Shares and New
Notes for investment purposes only, and not with a view to, or for
resale in connection with, any distribution thereof within the United
States within the meaning of the 1933 Act.
(c) The Consenting Creditors are acquiring Restructuring Shares and New
Notes pursuant to an exemption or exemptions from registration of the
Restructuring Shares and New Notes under the 1933 Act.
(d) The Consenting Creditors agree with the Company as follows:
(i) If the Company delivers certificates evidencing the Restructuring
Shares and New Notes for which the Consenting Creditors have
agreed to subscribe, such certificates and each certificate
issued on transfer thereof or in exchange therefor will, to the
extent permitted by law, bear the following legend:
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, OR ANY
STATE OR OTHER SECURITIES LAW, AND MAY NOT BE SOLD, TRANSFERRED,
ASSIGNED OR HYPOTHECATED UNLESS (I) THERE IS AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND SUCH SALE, TRANSFER, ASSIGNMENT
OR HYPOTHECATION IS REGISTERED PURSUANT TO, EXEMPT FROM OR NOT SUBJECT
TO ANY OTHER APPLICABLE SECURITIES LAWS COVERING SUCH SECURITIES, (II)
THE SALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION IS MADE OUTSIDE THE
UNITED STATES PURSUANT TO REGULATION S PROMULGATED PURSUANT TO SUCH
ACT, (III) THE SALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION IS MADE IN
ACCORDANCE WITH RULE 144A, IF AVAILABLE, UNDER SUCH ACT, (IV) THE
SALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION IS MADE IN ACCORDANCE WITH
RULE 144, IF AVAILABLE, UNDER SUCH ACT AND THE COMPANY RECEIVES
EVIDENCE SATISFACTORY TO THE COMPANY THAT THE PROVISIONS OF THIS RULE
HAVE BEEN COMPLIED WITH OR (V) THE SALE, TRANSFER, ASSIGNMENT OR
HYPOTHECATION IS MADE IN ACCORDANCE WITH ANOTHER EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT AND THE COMPANY RECEIVES AN
OPINION OF COUNSEL FOR THE HOLDER OF THESE SECURITIES, REASONABLY
SATISFACTORY TO THE COMPANY, STATING THAT SUCH SALE, TRANSFER,
ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE REGISTRATION AND
PROSPECTUS DELIVERY REQUIREMENTS OF SUCH ACT."
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(ii) The certificates representing such Restructuring Shares and New
Notes, and each certificate issued in transfer thereof or in
exchange therefor, will also bear any legend required under any
other applicable securities law.
(iii) The Consenting Creditors consent to the Company making a
notation on its records or giving instructions to the National
Depository of Securities or any custodian or transfer agent of
the Restructuring Shares in order to implement the restrictions
on transfer of the Restructuring Shares set forth in this Section
7.1(d).
7.2 Removal of Restrictions
Any legend shall be removed or lifted and the Company shall issue a
certificate without such legend to the holder of such Restructuring Share
or New Note upon request if (a) the transfer of such Restructuring Share or
New Note has been registered under the 1933 Act and such transfer is
registered pursuant to, exempt from or not subject to any other applicable
securities laws, (b) such Restructuring Share or New Note is sold outside
the United States pursuant to Regulation S, (c) such Restructuring Share or
New Note is sold under Rule 144A or Rule 144, if available, promulgated
under the 1933 Act and with respect to transfers under Rule 144, the
Company receives evidence satisfactory to the Company that provisions of
Rule 144 have been complied with, or (d) such holder provides the Company
with an opinion of counsel (which may be internal counsel) stating that a
public sale or transfer of such Restructuring Share or New Note may be made
without registration under the 1933 Act.
8 INDENTURE AMENDMENTS
Each of the Consenting Noteholders hereby consents (i) to indenture
amendments as and when necessary to confirm the ability of persons holding
the ultimate beneficial interests in the Notes to vote or cause the voting
of their interests in the Notes in the Polish arrangement proceedings and
the Dutch composition proceedings and (ii) to the further indenture
amendments substantially as described in Schedule 3 hereto.
9 LISTING OF THE NEW NOTES
The Company and BV I agree to use their commercial best efforts to take
such steps as may be reasonably required to effect a listing of the New
Notes on the Luxembourg Stock Exchange as soon as practicable following the
issue thereof pursuant to this Exchange Agreement.
10 ENTIRE AGREEMENT
10.1 This Exchange Agreement and the Restructuring Agreement (including the
schedules and exhibits hereto and thereto) and the other instruments duly
executed by one or more parties thereto represent the entire understanding
and agreement between the parties hereto with respect to the subject matter
hereof and thereof. Except as supplemented by the terms of this Exchange
Agreement, the Restructuring Agreement remains in full force and effect in
accordance with its terms. Notwithstanding anything to the contrary herein,
this Exchange Agreement and the terms of the restructuring contained herein
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shall be subject to the termination and return of rights provisions set
forth in Article II of the Restructuring Agreement.
10.2 The Company and the Consenting Creditors agree that the Committee may in
accordance with the powers set out in Clause 6.2(a) of the Restructuring
Agreement (if a majority of its members so direct) execute such further
agreements or documents (including amendments to this Exchange Agreement)
as are in the opinion of the Committee required to give effect to the
Restructuring Agreement and this Exchange Agreement.
11 GOVERNING LAW
THIS EXCHANGE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE WHOLLY PERFORMED IN SUCH STATE WITHOUT GIVING
EFFECT TO ANY CHOICE OR CONFLICT OF LAW PROVISION OR RULE THAT WOULD CAUSE
THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW
YORK.
12 HEADINGS
The section headings of this Exchange Agreement are for reference purposes
only and are to be given no effect in the construction or interpretation of
this Exchange Agreement.
13 SEVERABILITY
If any provision of this Exchange Agreement is invalid or unenforceable,
the balance of this Exchange Agreement shall remain in effect.
14 CONSTRUCTION
The parties hereto have participated jointly in the negotiation and
drafting of this Exchange Agreement. In the event an ambiguity or question
of intent or interpretation arises, this Exchange Agreement shall be
construed as if drafted jointly by the parties and no presumption or burden
of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any of the provisions of this Exchange Agreement.
15 INCORPORATION OF SCHEDULES
The Schedules identified in this Exchange Agreement are incorporated herein
by reference and made a part hereof.
16 COUNTERPARTS; FACSIMILE SIGNATURES
This Exchange Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original, and all of which shall
constitute one and the same document. This Exchange Agreement may be
executed by facsimile signatures. This Exchange Agreement has been executed
in two language versions, English and Polish, one counterpart of each for
the parties hereto. In the event of any discrepancy between the two
agreement language versions, the English version shall prevail.
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17 EXECUTION
For the purposes of this Exchange Agreement, "Executed" shall mean:
(a) in the case of holders of the Old Notes, delivery of a signed version
of this Exchange Agreement in electronic form or by courier, to:
Bondholder Communications Group
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇ ▇▇▇ ▇▇▇▇
Fax: (▇▇▇) ▇▇▇ ▇▇▇ ▇▇▇▇
e-mail: ▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
to be received by Bondholder Communications Group prior to 5pm New
York time on June 14, 2002; and
(b) in the case of JPMC and ▇▇▇▇▇▇▇, delivery of a signed version of this
Exchange Agreement to the Company in accordance with clause 6.11 of
the Restructuring Agreement.
[SIGNATURES BEGIN ON NEXT PAGE]
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[EXCHANGE AGREEMENT SIGNATURE PAGE]
IN WITNESS WHEREOF, the parties hereto have caused this Exchange
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first written above.
NETIA HOLDINGS S.A.
By: /S/ KJELL ▇▇▇ ▇▇▇▇
-------------------------------------
Name: Kjell ▇▇▇ ▇▇▇▇
Title: Member of the Management Board
By: /S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chief Financial Officer
NETIA SOUTH SP. Z O.O.
By: /S/ KJELL ▇▇▇ ▇▇▇▇
-------------------------------------
Name: Kjell ▇▇▇ ▇▇▇▇
Title: Member of the Management Board
By: /S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chief Financial Officer
NETIA TELEKOM S.A.
By: /S/ KJELL ▇▇▇ ▇▇▇▇
-------------------------------------
Name: Kjell ▇▇▇ ▇▇▇▇
Title: Member of the Management Board
By: /S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chief Financial Officer
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[EXCHANGE AGREEMENT SIGNATURE PAGE]
NETIA HOLDINGS B.V.
By: /S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Person
NETIA HOLDINGS II B.V.
By: /S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Person
NETIA HOLDINGS III B.V.
By: /S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Person
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[EXCHANGE AGREEMENT SIGNATURE PAGE]
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ BANK
By: /S/ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
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[FORM OF EXCHANGE AGREEMENT SIGNATURE PAGE]
The undersigned hereby authorizes this Exchange Agreement Signature
Page (or a photocopy hereof, which shall be valid for all purposes) to be
attached to the Exchange Agreement dated as of June 14, 2002, or counterparts
thereof.
___________________________________ _______________________________________
Print name of Consenting Noteholder Signature of Consenting Noteholder, if
an individual
___________________________________ By:____________________________________
Record Address of Consenting Noteholder If an entity, signature of authorized
person signing on such Consenting
Noteholder's behalf
___________________________________ Name: _________________________________
City, State and Postal Code Print name of authorized person
___________________________________ Title:_________________________________
Country Title of authorized person
The Consenting Noteholder shall also complete the following:
INSERT FACE AMOUNT OF NOTES OF EACH
CHECK BOX OF SERIES OF NOTES OWNED: SERIES OWNED:
---------------------------------------------------------------------------- -------------------------------------------------------
$200,000,000 aggregate principal amount of 10.25% Senior Dollar Notes due
2007
---------------------------------------------------------------------------- -------------------------------------------------------
$193,550,000 aggregate principal amount at maturity of 11.25% Senior
Discount Notes due 2007
---------------------------------------------------------------------------- -------------------------------------------------------
DM 207,062,000 aggregate principal amount at maturity of 11% Senior
Discount Notes due 2007
---------------------------------------------------------------------------- -------------------------------------------------------
EUR 100,000,000 aggregate principal amount of 13.5% Senior Euro Notes due
2009
---------------------------------------------------------------------------- -------------------------------------------------------
$100,000,000 aggregate principal amount of 13.125% Senior Dollar Notes due
2009
---------------------------------------------------------------------------- -------------------------------------------------------
EUR 200,000,000 aggregate principal amount of 13.75% Senior Euro Notes due
2010
---------------------------------------------------------------------------- -------------------------------------------------------
15
SCHEDULE 1
18 RESTRUCTURING SHARES
18.1 The Company shall deliver (directly or indirectly through the Trustee) to
the Consenting Creditors (other than JPMC) Restructuring Shares in
accordance with the following formula:
P = (288,455,928 X Y)/H
where,
P= the number of Restructuring Shares to be delivered to the Consenting
Creditors (other than JPMC) (rounded down)
Y= the amount of such Consenting Creditor's claim against the Company
H= the total claims against the Company held by the holders of all Old
Notes and ▇▇▇▇▇▇▇.
18.2 The Company shall deliver (directly or indirectly through the Trustee) to
JPMC 29,226,812 Restructuring Shares.
19 NEW NOTES
19.1 BV I shall deliver (directly or indirectly through the Trustee) to the
holders of Old Notes (i.e., the creditors of BV I, BV II and BVIII other
than JPMC) and ▇▇▇▇▇▇▇ New Notes in accordance with the following formula:
P = (45,400,000 X Y)/H
where,
P= the face value in Euro of the New Notes to be delivered to the holder of
Old Notes or ▇▇▇▇▇▇▇ (rounded down)
Y= the amount of such holder's or ▇▇▇▇▇▇▇'▇ claim against the Company
H= the total claims against the Company held by the holders of all Old
Notes and ▇▇▇▇▇▇▇.
19.2 BV I shall deliver (directly or indirectly through the Trustee) to
JPMC(euro)4,600,000 face amount of New Notes.
20 MISCELLANEOUS
20.1 All claims in foreign currencies shall be expressed in U.S. dollars based
on the noon buying rate in New York City for cable transfers in such
foreign currencies as certified for customs purposes by the Federal Reserve
Bank of New York on the final date on which claims may be registered with
the Polish court in the Polish arrangement proceeding for the Company.
16
SCHEDULE 2
RESTRUCTURING OF NETIA HOLDINGS S.A.
METHOD OF IMPLEMENTATION
21 In general:
(a) Polish plans of arrangement are followed by Dutch composition plans.
(b) Separate Polish arrangement proceedings are held with respect to the
Company, South and Telekom.
(c) Separate Dutch composition proceedings are held with respect to BV I,
BV II and BV III.
22 In the Polish arrangement proceeding for the Company, creditors of the
Company will receive an instalment obligation (i.e., a zero coupon,
unsecured zloty-denominated obligation of the Company, payable in six
yearly instalments beginning in year 2007) constituting approximately 8.7%
of such creditor's original claim. The reduction of the creditors' claims
will be effected through court approval of the arrangement plan (currently
scheduled for on or about July 31, 2002).
23 In the Polish arrangement proceedings for Telekom and South, the creditors
of each will receive reduced obligations.
24 In the Dutch composition proceedings, BV I, BV II or a newly incorporated
subsidiary of the Company will offer an aggregate nominal amount of
(euro)50 million of New Notes (the terms of which are described more fully
in the Restructuring Agreement) to the creditors of BV I, BV II and BV III.
(i) Each creditor will receive in relation to the size of their
claim their pro rata portion of the New Notes (less the
portion to be issued to JPMC).
(ii) The New Notes will be guaranteed by the Company, Telekom and
South and the Company, Telekom and South will, to the extent
permitted by law, grant security interests in favour of the
holders of the New Notes.
(iii) The guarantees and, to the extent permitted by law, the
security interests will be entered into following the close
of the Polish arrangement proceedings for the Company,
Telekom and South.
25 A Section 304 proceeding is concluded in New York to affirm the Dutch and
Polish proceedings.
26 The series H shares will be available to the Consenting Creditors having
Executed the Exchange Agreement by the Deadline.
27 On the date of registration (currently scheduled by September 12, 2002),
the series H shares will be deposited in the National Deposit of Securities
and the creditors entitled to such shares may obtain the registered
depositary certificates (for a creditor to trade in the shares, the shares
will have to be registered in such creditor's investment account opened
with a Polish brokerage house). Immediately after subscription and prior to
the registration by the court of the series H shares, the creditors may
trade on the Warsaw Stock Exchange their rights to receive the H shares
once the rights to receive such shares have been registered by the National
Deposit of Securities.
17
SCHEDULE 3
INDENTURE AMENDMENTS
The following is a summary of the Indenture Amendments to certain covenants and
other provisions of the Indentures governing the Notes. Capitalized terms used
but not defined in the following summary have the meanings assigned to them in
the applicable Indenture.
The Indenture Amendments constitute a single proposal and a Consenting
Noteholder must consent to the Indenture Amendments in their entirety and may
not consent selectively with respect to certain Indenture Amendments.
The Indenture Amendments will be effected by Supplemental Indentures, which will
be executed at or promptly following the Deadline set forth in the Exchange
Agreement. Although the Supplemental Indentures will be executed at or promptly
following the Deadline set forth in the Exchange Agreement, other than as set
forth in the next sentence, the Indenture Amendments will not become operative
until the claims of the Consenting Noteholders offered to the Company in
exchange for the Restructuring Shares or the New Notes have been accepted by the
Company. Any amendments to the Indentures to confirm the ability of persons
holding the ultimate beneficial interests in the Notes to vote or cause the
voting of their interests in the Notes in the Polish arrangement proceedings and
the Dutch composition proceedings shall take effect immediately upon execution
of each Supplemental Indenture in accordance with the underlying Indenture.
Upon the Indenture Amendments becoming operative, in substance the clauses
indicated below will be deleted from the Indentures and the provisions in the
form of the underlined clauses below will be added to the Indentures.
I. THE INDENTURE AMENDMENTS WITH RESPECT TO THE 1997 INDENTURES.
1 Delete the following subsections and ADD Intentionally omitted. under
SECTION 501. EVENTS OF DEFAULT:
Section 501(iii)(E)
Section 501(iv)
Section 501(v)
2 Delete all subsections and ADD: Intentionally omitted. under each of the
following Sections:
SECTION 1009. LIMITATION ON INDEBTEDNESS.
SECTION 1010. LIMITATION ON RESTRICTED PAYMENTS.
SECTION 1011. LIMITATION ON ISSUANCES AND SALES OF CAPITAL
STOCK OF RESTRICTED SUBSIDIARIES.
SECTION 1012. LIMITATION ON TRANSACTIONS WITH AFFILIATES.
18
SECTION 1013. LIMITATION ON LIENS.
SECTION 1014. LIMITATION ON ISSUANCES OF GUARANTEES OF
INDEBTEDNESS BY SUBSIDIARIES.
SECTION 1017. LIMITATION ON DIVIDENDS AND OTHER PAYMENT
RESTRICTIONS AFFECTING RESTRICTED SUBSIDIARIES.
SECTION 1018. LIMITATION ON INVESTMENTS IN UNRESTRICTED
SUBSIDIARIES.
SECTION 1019. BUSINESS OF HOLDINGS.
II. THE INDENTURE AMENDMENTS WITH RESPECT TO THE 1999 INDENTURES AND THE 2000
INDENTURE.
1 Delete the following subsections and ADD Intentionally omitted. under
SECTION 4.1. EVENTS OF DEFAULT:
Section 4.1(iii)(E)
Section 4.1(iv)
Section 4.1(v)
2 Delete all subparagraphs and ADD: Intentionally omitted. under each of the
following Sections:
SECTION 9.9 LIMITATION ON INDEBTEDNESS
SECTION 9.10 LIMITATION ON RESTRICTED PAYMENTS
SECTION 9.11 LIMITATION ON ISSUANCES AND SALES OF CAPITAL
STOCK OF RESTRICTED SUBSIDIARIES
SECTION 9.12 LIMITATION ON TRANSACTIONS WITH AFFILIATES
SECTION 9.13 LIMITATION ON LIENS
SECTION 9.14 ISSUANCES OF GUARANTEES OF INDEBTEDNESS BY
SUBSIDIARIES
SECTION 9.17 LIMITATION ON DIVIDENDS AND OTHER PAYMENT
RESTRICTIONS AFFECTING RESTRICTED SUBSIDIARIES
SECTION 9.18 LIMITATION ON INVESTMENTS IN UNRESTRICTED
SUBSIDIARIES
SECTION 9.19 PERMITTED BUSINESS
20