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EXHIBIT 10.17
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PTC INTERNATIONAL FINANCE II S.A.
(a private company with limited liability
incorporated under the laws of Luxembourg)
PTC INTERNATIONAL FINANCE (HOLDING) B.V.
(a private company with limited liability
incorporated under the laws of The Netherlands)
POLSKA TELEFONIA CYFROWA SP. Z O.O.
(a company incorporated as a limited liability company
under the laws of the Republic of Poland)
*300,000,000 11 1/4% SENIOR SUBORDINATED GUARANTEED NOTES DUE 2009
$150,000,000 11 1/4% SENIOR SUBORDINATED GUARANTEED NOTES DUE 2009
PURCHASE AGREEMENT
Dated: November 16, 1999
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TABLE OF CONTENTS
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SECTION 1. Representations and Warranties..............................
(a) Representations and Warranties of the Issuer, the Guarantor
and Holdings................................................
(i) Similar Offerings................................
(ii) Offering Memorandum.............................
(iii) Independent Accountants.........................
(iv) Financial Statements.............................
(v) No Material Adverse Change in Business...........
(vi) Incorporation....................................
(vii) Good Standing....................................
(viii) Capitalization..................................
(ix) Authorization of Agreement.......................
(x) Authorization of the Indentures..................
(xi) Authorization of Notes...........................
(xii) Authorization of the Escrow Agreements...........
(xiii) Authorization of the Registration Rights
Agreement.......................................
(xiv) Authorization of the Guarantees..................
(xv) Authorization of the Security Agreements.........
(xvi) Authorization of the Limited Recourse
Guarantees.......................................
(xvii) Description of the Indentures, the Notes, the
Escrow Agreements, the Registration Rights Agreement, the
Security Agreements, the Guarantees and the
Limited Recourse Guarantees......................
(xviii) Absence of Defaults and Conflicts...............
(xix) Absence of Labor Dispute.........................
(xx) Absence of Proceedings...........................
(xxi) Possession of Intellectual Property..............
(xxii) Absence of Further Requirements..................
(xxiii) Possession of Licenses and Permits..............
(xxiv) Title to Property................................
(xxv) No Withholding Tax................................
(xxvi) Tax Returns......................................
(xxvii) Investment Company Act...........................
(xxviii) PFIC Status......................................
(xxix) Internal Controls................................
(xxx) No Additional Documents...........................
(xxxi) Insurance........................................
(xxxii) Taxes on Subsidiary Indebtedness.................
(xxxiii) Rule 144A Eligibility............................
(xxxiv) General Solicitation..............................
(xxxv) No Substantial U.S. Market Interest or Directed
Selling Efforts...................................
(xxxvi) No Registration Required..........................
(xxxvii) No Stabilization.................................
(xxxviii) Forward-Looking Statement........................
(xxxix) Luxembourg Listing................................
(x1) Submission to Jurisdiction.......................
(xli) No Liquidation...................................
(xlii) Offering Material...............................
(xliii) Year 2000.......................................
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PAGE
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(xlv) No Sales Except in Accordance with the Dutch
Securities Act...................................
(b) Officer's Certificates......................................
SECTION 2. Sale and Delivery to Initial Purchasers; Closing............
SECTION 3. Covenants of the Issuer, the Guarantor and Holdings.........
(a) Offering Memorandum.........................................
(b) Notice and Effect of Material Events........................
(c) Amendment to Offering Memorandum and Supplements............
(d) Qualification of Notes for Offer and Sale...................
(e) No General Solicitation.....................................
(f) Rating of Notes.............................................
(g) Luxembourg Stock Exchange Approval..........................
(h) DTC and Euroclear...........................................
(i) Investment Company..........................................
(j) Use of Proceeds.............................................
(k) Directed Selling Efforts....................................
(l) Press Releases..............................................
(m) Regulation M................................................
(n) Restriction on Sale of Notes................................
(o) PORTAL......................................................
(p) Restriction on Resale of Notes..............................
SECTION 4. Payment of Expenses.........................................
(a) Expenses....................................................
(b) Termination of Agreement....................................
SECTION 5. Conditions of Initial Purchasers' Obligations...............
(a) Offering Memorandum.........................................
(b) Opinions of Counsel for the Issuer and the Guarantor........
(i) Opinion of Issuer's U.S. Counsel.................
(ii) Opinion of Guarantor's Polish Counsel...........
(iii) Opinion of Holdings's Netherlands Counsel.......
(iv) Opinion of Issuer's Luxembourg Counsel...........
(c) Opinion of United States Counsel for the Initial
Purchasers..................................................
(d) Officers' Certificate.......................................
(e) Accountants' Comfort Letter.................................
(f) Bring-Down Comfort Letter...................................
(g) Luxembourg Listing..........................................
(h) Clearance and Settlement....................................
(i) Maintenance and Rating......................................
(j) PORTAL......................................................
(k) Additional Documents........................................
(l) Termination of Agreement....................................
SECTION 6. Subsequent Offers and Resales of the Notes..................
(a) Initial Purchasers' Obligations.............................
(i) Offers and Sales only to Qualified Institutional
Buyers or non-U.S. Persons.......................
(ii) No General Solicitation.........................
(iii) Purchases by Non-Bank Fiduciaries...............
(iv) Subsequent Purchaser Notification................
(v) Restrictions on Transfer.........................
(vi) Actions Regarding Other Offerings................
(vii) Restrictions Under United Kingdom Securities
Regulations......................................
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(viii) No Sales of the Notes in Poland.................
(ix) Compliance with Applicable Laws..................
(b) Covenants of the Issuer, the Guarantor and Holdings.........
(i) Due Diligence....................................
(ii) Integration.....................................
(iii) Rule 144A Information...........................
(c) Resale Pursuant to Rule 903 of Regulation S, Rule 144A or
Other Exemption.............................................
SECTION 7. Indemnification.............................................
(a) Indemnification of Initial Purchasers.......................
(b) Indemnification of Issuer, Guarantor, Holdings and their
Directors and Officers......................................
(c) Actions Against Parties; Notification.......................
(d) Settlement Without Consent if Failure to Reimburse..........
SECTION 8. Contribution................................................
SECTION 9. Representations, Warranties and Agreements to Survive
Delivery....................................................
SECTION 10. Termination of Agreement....................................
(a) Termination; General........................................
(b) Liabilities.................................................
SECTION 11. Default by One or More of the Initial Purchasers............
SECTION 12. Notices.....................................................
SECTION 13. Parties.....................................................
SECTION 14. Governing Law And Time......................................
SECTION 15. Agent for Service; Submission to Jurisdiction; Waiver of
Immunities..................................................
SECTION 16. Judgment Currency...........................................
SECTION 17. Counterparts................................................
SECTION 18. Effect of Headings..........................................
Schedule A Initial Purchasers
Schedule B Pricing Terms
Exhibit A Form of Euro Registration Rights Agreement
Exhibit A-1 Form of Dollar Registration Rights Agreement
Exhibit B Form of Opinion of U.S. Counsel
Exhibit C Form of Polish Law Opinion of Company's Counsel
Exhibit D Form of Opinion of Holders' Netherlands Counsel
Exhibit E Form of Opinion of Issuer's Luxembourg Counsel
Exhibit F Form of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Comfort Letter
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PTC INTERNATIONAL FINANCE II S.A.
(a private company with limited liability
incorporated under the laws of Luxembourg)
PTC INTERNATIONAL FINANCE (HOLDING) B.V.
(a private company with limited liability
incorporated under the laws of The Netherlands)
POLSKA TELEFONIA CYFROWA SP. Z O. O.
(a company incorporated as a limited liability company
under the laws of the Republic of Poland)
*300,000,000 11 1/4% Senior Subordinated Guaranteed Notes Due 2009
$150,000,000 11 1/4% Senior Subordinated Guaranteed Notes Due 2009
PURCHASE AGREEMENT
To: ▇▇▇▇▇▇▇ ▇▇▇▇▇ International November 16, ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Salomon Brothers International Limited
Victoria Plaza
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
Ladies and Gentlemen:
PTC International Finance II S.A., a company with limited liability
incorporated under the laws of Luxembourg (the "Issuer"), PTC International
Finance (Holding) B.V. ("Holdings"), a company incorporated under the laws of
The Netherlands and Polska Telefonia Cyfrowa Sp. z o.o., a limited liability
company under the laws of the Republic of Poland (the "Guarantor"), pursuant to
this agreement (the "Agreement") each hereby confirm their agreement with
▇▇▇▇▇▇▇ ▇▇▇▇▇ International and Salomon Brothers International Limited
(collectively, the "Initial Purchasers", which term shall also include any
initial purchaser substituted as hereinafter provided in Section 11 hereof),
with respect to the issue and sale by the Issuer and the purchase by the Initial
Purchasers (the "Offering"), acting severally and not jointly, of the respective
principal amounts set forth in Schedule A hereto of *300,000,000 aggregate
principal amount of the Issuer's 11 1/4 % Senior Subordinated Guaranteed Notes
due 2009 (the "Euro Notes") and of $150,000,000 aggregate principal amount of
the Issuer's 11 1/4% Senior Subordinated Guaranteed Notes due 2009 (the "Dollar
Notes" and, along with the Euro Notes, the "Notes"). The Euro Notes are to be
issued pursuant to an indenture dated as of November 23, 1999 (the "Euro Notes
Indenture") among the Issuer, the Guarantor, Holdings and State Street Bank and
Trust Company, as trustee (the "Euro Notes Trustee"), and the Dollar Notes are
to be issued pursuant to an indenture dated as of November 23, 1999 (the "Dollar
Notes Indenture" and, along with the Euro Notes Indenture, the "Indentures")
among the Issuer, the Guarantor, Holdings and State Street Bank and Trust
Company, as trustee (the "Dollar Notes Trustee" and, together with the Euro
Notes Trustee, the "Trustees"). The obligations of the Issuer under the Euro
Notes Indenture and the Euro Notes will be fully and unconditionally guaranteed
pursuant to a guarantee (the "Euro Notes Guarantee") made by the Guarantor. The
obligations of the Issuer under the Dollar Notes Indenture and the Dollar Notes
will be fully and unconditionally guaranteed pursuant to a guarantee (the
"Dollar Notes Guarantee", and, together with the Euro Notes Guarantee, the
"Guarantees") made by the Guarantor. Notes issued in book-entry form pursuant to
Rule 144A (as defined below) and Dollar Notes issued in book-entry
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form pursuant to Regulation S (as defined below) will be deposited with the
relevant Trustee as custodian for, and registered in the name of Cede & Company
as nominee of, The Depository Trust Company ("DTC") pursuant to a letter
agreement, to be dated as of the Closing Time (as defined in Section 2(b)
hereof) (the "DTC Agreement"), among the Issuer, the Guarantor, the relevant
Trustee and DTC. Euro Notes issued in book-entry form pursuant to Regulation S
will be deposited with the relevant Trustee as common depositary for, and
registered in the name of a nominee of, Euroclear and Cedelbank.
The holders of Notes will be entitled to the benefits of a Registration
Rights Agreement, in substantially the form attached hereto as Exhibit A and A-1
with such changes as shall be agreed to by the parties hereto (the "Registration
Rights Agreement"), pursuant to which the Issuer and the Guarantor will agree to
file a registration statement (the "Registration Statement") with the United
States Securities and Exchange Commission (the "Commission") registering the
Notes or the Exchange Notes referred to in the Registration Rights Agreement
under the Securities Act of 1933, as amended (the "Securities Act").
Concurrently with the closing of the offering of the Notes, Holdings will
deposit in accounts (the "Escrow Accounts") pursuant to escrow agreements (the
"Escrow Agreements"), each to be entered into by Holdings in favor of the
relevant Trustee for the benefit of the holders of the relevant Notes, an amount
in cash, European government securities or U.S. government securities that,
together with the interest received thereon, will be sufficient to pay when due
the first five interest payments on the Notes. The Notes will be secured by a
first priority security interest in the Escrow Accounts granted pursuant to
security agreements (the "Security Agreements") each made by Holdings in favour
of State Street Bank and Trust Company as collateral agent (the "Collateral
Agent") for the benefit of the Euro Notes Trustee or the Dollar Notes Trustee,
as the case may be. Holdings will also provide guarantees (the "Limited Recourse
Guarantees") of the Issuer's obligations under the Notes, the recourse under
which will be limited to amounts deposited in the Escrow Accounts.
The Issuer will advance all of the net proceeds from the issue and sale of
the Notes to Holdings who, following its purchase of European government
securities or U.S. government securities as referred to above and/or the deposit
of cash and any such purchased securities in the Escrow Accounts, will advance
the remainder of such net proceeds to the Guarantor. The advances by the Issuer
of such net proceeds to Holdings and by Holdings of the remainder of such net
proceeds to the Guarantor will each be made against the issuance by Holdings and
the Guarantor of intercompany notes.
The Issuer, the Guarantor and Holdings understand that the Initial
Purchasers propose to make an offering of the Notes on the terms and in the
manner set forth herein and in reliance upon an exemption from the registration
requirements of the Securities Act, and agree that the Initial Purchasers may
resell, subject to the conditions set forth herein, all or a portion of the
Notes to purchasers ("Subsequent Purchasers") at any time on or after the date
of this Agreement. The Notes are to be offered and sold to the Initial
Purchasers without being registered under the Securities Act, in reliance upon
exemptions therefrom. Pursuant to the terms of the Notes and the Indentures,
investors that acquire Notes may only resell or otherwise transfer such Notes if
such Notes are hereafter registered under the Securities Act or if an exemption
from the registration requirements of the Securities Act is available (including
the exemption afforded by Rule 144A ("Rule 144A") or Regulation S ("Regulation
S") of the rules and regulations promulgated under the Securities Act by the
Commission).
The Issuer, the Guarantor and Holdings have prepared and delivered to each
Initial Purchaser copies of a preliminary offering memorandum dated November 1,
1999 (the "Preliminary Offering Memorandum") and have prepared and will deliver
to each Initial Purchaser promptly upon its being completed copies of a final
offering memorandum dated November 16, 1999 (the "Final Offering Memorandum"),
each for use by such Initial Purchaser in connection with its solicitation of
purchases of, or Offering of, the Notes. "Offering Memorandum" means, with
respect to any date or time referred to in this Agreement, the most recent
offering memorandum (whether the Preliminary Offering Memorandum or the Final
Offering Memorandum, or any amendment or supplement to either such document),
which has been prepared and delivered by the Issuer, the Guarantor and Holdings
to the Initial Purchasers in connection with their solicitation of purchases of,
or the Offering of, the Notes.
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SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) Representations and Warranties of the Issuer, the Guarantor and
Holdings. Each of the Issuer, the Guarantor and Holdings jointly and severally
represents and warrants to each Initial Purchaser as of the date hereof and as
of the Closing Time referred to in Section 2(b) hereof, and agrees with each
Initial Purchaser, as follows:
(i) Similar Offerings. The Guarantor and its affiliates, as such
term is defined in Rule 501(b) of Regulation D under the
Securities Act ("Affiliates"), have not, directly or indirectly,
solicited any offer to buy, sold or offered to sell or otherwise
negotiated in respect of, and will not, directly or indirectly,
solicit any offer to buy or offer to sell or otherwise negotiate
in respect of, in the United States or to any United States
citizen or resident, any security which is or would be integrated
with the sale of the Notes in a manner that would require the
Notes to be registered under the Securities Act.
(ii) Offering Memorandum. The Offering Memorandum does not, and at
the Closing Time will not, contain any untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; provided that this representation, warranty
and agreement shall not apply to statements in or omissions from
the Offering Memorandum made in reliance upon and in conformity
with information furnished to the Issuer, the Guarantor or
Holdings in writing by any Initial Purchaser expressly for use in
the Offering Memorandum.
(iii) Independent Accountants. The accountants who certified the
financial statements and supporting schedules thereto included
in the Offering Memorandum are independent certified public
accountants with respect to the Guarantor, Holdings and the
Issuer (Holdings, PTC International Finance B.V. and the Issuer
each being a "Subsidiary" and collectively the "Subsidiaries")
within rule 101 of the AICPA's Code of Professional Conduct and
its interpretations and rulings.
(iv) Financial Statements. The financial statements, together with
the related schedules and notes, included in the Offering
Memorandum present fairly the financial position of the Guarantor
and the Subsidiaries at the dates indicated and the statement of
operations, stockholders' equity and cash flows of the Guarantor
and its consolidated subsidiaries for the periods specified; said
financial statements have been prepared in conformity with
International Accounting Standards ("IAS") applied on a
consistent basis throughout the periods involved. The selected
financial data and the summary financial information included in
the Offering Memorandum present fairly the information shown
therein and have (other than "Subscribers at End of Period" and
"Monthly Churn Rate") been compiled on a basis consistent with
that of the audited financial statements included in the Offering
Memorandum.
(v) No Material Adverse Change in Business. Since the respective
dates as of which information is given in the Offering
Memorandum, except as otherwise stated therein, (A) there has
been no material adverse change in the condition, financial or
otherwise, in the earnings, business affairs or business
prospects of the Guarantor and the Subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of
business (a "Material Adverse Effect"), (B) there have been no
transactions entered into by the Guarantor or any of the
Subsidiaries, other than those arising in the ordinary course of
business, which are material with respect to the Guarantor and
the Subsidiaries considered as one enterprise, and (C) there has
been no dividend or distribution of any kind declared, paid or
made by either the Issuer or the Guarantor on any class of its
capital stock.
(vi) Incorporation. The Issuer has been duly incorporated and is
validly existing as a legal entity in the form of a private
company with limited liability ("societe anonyme") under the laws
of Luxembourg, with full corporate power and authority to own its
material properties, to conduct its business as described in the
Offering Memorandum and to enter into and perform its obligations
under this Agreement, the Registration Rights Agreement, the
Indentures and the Notes. Holdings has been duly incorporated and
is validly existing as a legal entity in the form of a private
company
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with limited liability ("besloten vennootschap met beperkte aansprake
lijkheid") under the laws of the Netherlands with full corporate power
and authority to own its material properties, to conduct its business
as described in the Offering Memorandum and to enter into and perform
its obligations under this Agreement, the Indentures, the Escrow
Agreements, the Security Agreement, and the Limited Recourse
Guarantees. The Guarantor has been duly organized and is validly
existing as a limited liability company ("spolka z ograniczona
odpowiedzialnoscia") under the laws of the Republic of Poland, with
full power and authority to own its material properties and conduct
its business as described in the Offering Memorandum and to enter into
and perform its obligations under this Agreement, the Registration
Rights Agreement, the Indentures and the Guarantees. Neither the
Issuer nor Holdings nor the Guarantor is in liquidation, bankruptcy,
administration or receivership nor has any petition been presented for
the winding up of the Issuer, the Guarantor or Holdings.
(vii) Good Standing. Each of the Issuer, the Guarantor and Holdings is
duly qualified as a foreign corporation to transact business and
is in good standing in every jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure to so qualify or to be in good standing would not result
in a Material Adverse Effect. The Issuer has no subsidiaries, and
is the only subsidiary of Holdings. Holdings and PTC International
Finance B.V. are the only subsidiaries of the Guarantor. The
Guarantor has no subsidiaries other than Holdings, PTC
International Finance B.V. and the Issuer.
(viii) Capitalization. The authorized, issued and outstanding capital
stock of the Issuer is as set forth in the Offering Memorandum
under the heading "The Issuer", the authorized, issued and
outstanding capital stock of the Guarantor is as set forth in the
Offering Memorandum under the heading "Capitalization". The shares
of issued and outstanding capital stock of each of the Issuer, the
Guarantor and Holdings have been duly authorized and validly
issued and are fully paid and non-assessable; none of the
outstanding shares of capital stock of the Issuer, the Guarantor
or Holdings was issued by them in violation of the preemptive or
other similar rights of any securityholder of the Issuer, the
Guarantor or Holdings; there are no outstanding securities
convertible into or exchangeable for, or warrants, rights or
options to purchase from the Issuer, the Guarantor or Holdings,
shares of common stock or any other class of capital stock. Except
as otherwise disclosed in the Offering Memorandum, all of the
issued shares of each Subsidiary are owned directly or indirectly
by the Guarantor, free and clear of all liens, encumbrances,
equities or claims.
(ix) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by each of the Issuer, the
Guarantor and Holdings.
(x) Authorization of the Indentures. Each of the Indentures has been
duly authorized by each of the Issuer, the Guarantor and Holdings
and at the Closing Time, will have been duly executed and delivered
by each of the Issuer, the Guarantor and Holdings and (assuming the
due authorization, execution and delivery in accordance with its
terms by the relevant Trustee) will constitute a valid and binding
agreement of each of the Issuer, the Guarantor and Holdings,
enforceable against each of them in accordance with its terms,
except as may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting creditors'
rights generally and is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in
equity or at law).
(xi) Authorization of Notes. The Euro Notes and Dollar Notes have been
duly authorized by the Issuer and, at the Closing Time, will have
been duly executed by the Issuer and, when authenticated, issued
and delivered in the manner provided for in the relevant
Indentures, and delivered against payment of the purchase price
therefor as provided in this Agreement will be duly and validly
issued and will constitute legal, valid and binding obligations of
the Issuer, enforceable against the Issuer in accordance with
their terms, except as may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting
creditors' rights generally and is subject to general principles
of equity
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(regardless of whether enforcement is considered in a proceeding in
equity or at law), and will be in the form contemplated by, and
entitled to the benefits of, the Indentures and the Registration
Rights Agreement.
(xii) Authorization of the Escrow Agreements. Each of the Escrow
Agreements have been duly authorized by Holdings and, at the
Closing Time, will have been duly executed and delivered by
Holdings and will constitute a legal, valid and binding agreement
of Holdings enforceable in accordance with its terms, except as
may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting creditors'
rights generally and is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding
in equity or at law).
(xiii) Authorization of the Registration Rights Agreement. The
Registration Rights Agreement has been duly authorized and, at the
Closing Time, will have been duly executed and delivered by each
of the Issuer and the Guarantor and will constitute a legal, valid
and binding agreement of each of the Issuer and the Guarantor,
enforceable against each of the Issuer and the Guarantor in
accordance with its terms, except as may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws
affecting creditors' rights generally and is subject to general
principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law) and except that
any rights to indemnification and contribution may be limited by
U.S. Federal securities laws and U.S. public policy
considerations.
(xiv) Authorization of the Guarantees. Each of the Guarantees has been
duly authorized and, at the Closing Time, will have been duly
executed and delivered by the Guarantor and will constitute a
legal, valid and binding agreement of the Guarantor, enforceable
against the Guarantor in accordance with its terms, except as may
be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting creditors'
rights generally and is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in
equity or at law).
(xv) Authorization of the Security Agreements. The Security Agreements
have been duly authorized and, at Closing Time, will have been duly
executed and delivered by Holdings and will each constitute a
legal, valid and binding agreement of Holdings, enforceable against
Holdings in accordance with their terms, except as may be limited
by bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or
similar laws affecting creditors' rights generally and is subject
to general principles of equity (regardless of whether enforcement
is considered in a proceeding in equity or at law).
(xvi) Authorization of the Limited Recourse Guarantees. Each of the
Limited Recourse Guarantees has been duly authorized and, at the
Closing Time, will have been duly executed and delivered by
Holdings and will constitute a valid and binding agreement of
Holdings, enforceable against Holdings in accordance with its
terms, except as may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting
creditors' rights generally and is subject to general principles of
equity (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(xvii) Description of the Indentures, the Notes, the Escrow Agreements,
the Registration Rights Agreement, the Security Agreements, the
Guarantees and the Limited Recourse Guarantees. The Indentures,
the Notes, the Escrow Agreements, the Registration Rights
Agreement, the Security Agreements, the Guarantees and the Limited
Recourse Guarantees will conform in all material respects to the
respective statements relating thereto contained in the Offering
Memorandum and will be in substantially the respective forms
previously delivered to the Initial Purchasers.
(xviii) Absence of Defaults and Conflicts. Except as otherwise set forth
in the Offering Memorandum, the (A) issuance and sale of the Notes
to the Initial Purchasers by the Issuer pursuant to this
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Agreement, (B) execution, delivery and performance of the Registration
Rights Agreement by each of the Issuer And the Guarantor, (C)
execution, delivery and performance of this Agreement, and the
Indentures by each of the Issuer, the Guarantor and Holdings, (D) the
execution, delivery and performance of the Guarantees by the
Guarantor, (E) the execution, delivery and performance of the Escrow
Agreements, the Security Agreements and the Limited Recourse
Guarantees by Holdings, (F) compliance by each of the Issuer, the
Guarantor and Holdings with all the provisions hereof and thereof, and
(G) consummation of the transactions contemplated hereby and thereby
by each of the Issuer, the Guarantor and Holdings do not require any
consent, authorization, approval or order of, or filing or
registration with or notice to, any court, regulatory body, central
bank, administrative agency or other governmental body (except as many
be required under blue sky laws of the various states of the United
States and those consents, authorizations, approvals, orders, filing,
registrations or notices which have been obtained or made, as the case
may be, or may be obtained or made, as the case may be, pursuant to
the Registration Rights Agreement) and do not conflict with, or
constitute a breach or a violation of any of the terms or provisions
of, or a default under, the memorandum or articles of association or
other constitutive documents of the Issuer, the Guarantor or Holdings,
or any material debenture, note or other evidence of indebtedness or
any material indenture, agreement, or other instrument to which they
may be party or by which they may be bound or to which any of their
respective properties is subject or any law, statute, rule,
regulation, judgment or decree applicable to any of them.
(xix) Absence of Labor Dispute. No labor dispute with the employees of
the Guarantor or the Subsidiaries exists or, to the knowledge of
the Guarantor or the Subsidiaries, is imminent and neither the
Guarantor nor the Subsidiaries is aware of any existing or imminent
labor disturbance by the employees of any of their principal
suppliers, manufacturers, customers or contractors, which, in
either case, may reasonably be expected to result in a Material
Adverse Effect. Other than agreements with individual employees,
there are no general or individual labor agreements or
arrangements, or customs or practices of the Guarantor or the
Subsidiaries and there has been no proposal to establish any such
agreement, arrangement, custom or practice which could reasonably
be expected to result in a Material Adverse Effect.
(xx) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or by any court or governmental
agency or body, domestic or foreign, now pending, or, to the
knowledge of the Issuer, the Guarantor or Holdings, threatened,
against or affecting the Guarantor or any of the Subsidiaries, or
to which the Guarantor or any of the Subsidiaries is a party, which
might reasonably be expected to result in a Material Adverse
Effect, or which might reasonably be expected to adversely affect
the properties or assets of the Guarantor or any of the
Subsidiaries in a manner that is material and adverse to the
Guarantor and the Subsidiaries considered as one enterprise or the
consummation of this Agreement, the Indentures, the Notes, the
Escrow Agreements, the Registration Rights Agreement, the Security
Agreements, the Guarantees and the Limited Recourse Guarantees or
the performance by the Issuer, the Guarantor or Holdings of their
obligations hereunder or thereunder. The aggregate of all pending
legal or governmental proceedings to which the Guarantor or any
Subsidiary is a party or of which any of their respective property
or assets is the subject which are not described in the Offering
Memorandum, including ordinary routine litigation incidental to the
business, could not reasonably be expected to result in a Material
Adverse Effect.
(xxi) Possession of Intellectual Property. The Guarantor and the
Subsidiaries own or possess, or can acquire on reasonable terms,
adequate patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks, trade names or other
intellectual property (collectively, "Intellectual Property")
necessary to carry on the business now operated by them, and
neither the Guarantor nor any of the Subsidiaries has received any
notice or is otherwise aware of any infringement of or conflict
with asserted rights of others with respect to any Intellectual
Property or of any facts or circumstances which would render any
Intellectual Property
11
invalid or inadequate to protect the interest of the Guarantor or any
of the Subsidiaries therein, and which infringement or conflict (if
the subject of any unfavorable decision, ruling or finding) or
invalidity or inadequacy, singly or in the aggregate, would result in
a Material Adverse Effect.
(xxii) Absence of Further Requirements. Except for permits that have
been obtained, no filing with, or authorization, approval,
consent, license, order, registration, qualification or decree of,
any court or governmental authority or agency is necessary or
required (A) for the performance by the Issuer, the Guarantor or
Holdings of their respective obligations hereunder, in connection
with the offering, issuance or sale of the Notes hereunder or the
consummation of the Offering or any of the other transactions
contemplated by this Agreement, the Indentures, the Escrow
Agreements, the Registration Rights Agreement, the Security
Agreements, the Guarantees, the Limited Recourse Guarantees or the
Offering Memorandum, or (B) to permit the Issuer, the Guarantor or
Holdings to (1) effect payments of principal of and premium and
interest on the Notes and, if issued, the Exchange Notes referred
to in the Registration Rights Agreement, or (2) perform their
other obligations under the Indentures.
(xxiii) Possession of Licenses and Permits. The Guarantor and the
Subsidiaries possess such permits, licenses, approvals,
concessions, consents and other authorizations (including, without
limitation, all permits required for the operation of the business
of the Guarantor and the Subsidiaries by the Republic of Poland)
(collectively, "Governmental Licenses") issued by the appropriate
federal, state, local or foreign regulatory agencies or bodies,
other governmental authorities or self regulatory organizations
necessary to conduct the business now operated by them except for
such Governmental Licenses the failure of which to obtain,
maintain or possess by the Guarantor and its Subsidiaries would
not have a Material Adverse Effect; the Guarantor and the
Subsidiaries are in compliance with the terms and conditions of
all such Governmental Licenses, except where the failure to so
comply would not, singly or in the aggregate, have a Material
Adverse Effect; all of the Governmental Licenses are valid and in
full force and effect, except when the invalidity of such
Governmental Licenses or the failure of such Governmental Licenses
to be in full force and effect would not have a Material Adverse
Effect; and neither the Guarantor nor any of the Subsidiaries has
received any notice of proceedings relating to the revocation or
modification of any such Governmental Licenses which, singly or in
the aggregate, if the subject of an unfavorable decision, ruling
or finding, would result in a Material Adverse Effect.
(xxiv) Title to Property. The Guarantor or the Subsidiaries have good and
marketable title to all real property owned by the Guarantor or the
Subsidiaries, as the case may be, and good title to all other
properties owned by them, in each case, free and clear of all
mortgages, pledges, liens, security interests, claims, restrictions
or encumbrances of any kind except such as (A) are described in the
Offering Memorandum or (B) do not, singly or in the aggregate,
materially affect the value of such property and do not interfere
with the use made and proposed to be made of such property by the
Guarantor or any of the Subsidiaries; and all of the leases and
subleases material to the business of the Guarantor and the
Subsidiaries, considered as one enterprise, and under which the
Guarantor or any of the Subsidiaries holds properties described in
the Offering Memorandum, are in full force and effect, and neither
the Guarantor nor any of the Subsidiaries has any notice of any
material claim of any sort that has been asserted by anyone adverse
to the rights of the Guarantor or any of the Subsidiaries under any
of the leases or subleases mentioned above, or affecting or
questioning the rights of such Guarantor or any Subsidiary to the
continued possession of the leased or subleased premises under any
such lease or sublease.
(xxv) No Withholding Tax. Except as disclosed in the Offering
Memorandum, under current laws and regulations (and interpretations
thereof) of the Republic of Poland, The Netherlands and Luxembourg
and any political subdivision thereof, all payments due or made on
the Guarantees or the Limited Recourse Guarantees to holders of
Notes or Exchange Notes (as defined in the Indentures) who are
non-residents of the Republic of Poland, Luxembourg or The
Netherlands and do not have a branch, agency or permanent
establishment nor carry on any trade in the Republic of Poland,
Luxembourg or The Netherlands to which the holding of Notes or
Exchange Notes is
12
attributable, will not be subject to income, withholding or other
taxes under laws and regulations of the Republic of Poland, Luxembourg
or The Netherlands or any political subdivision or taxing authority
thereof or therein and will otherwise be free and clear of any other
tax, duty, withholding or deduction in the Republic of Poland,
Luxembourg and The Netherlands or any political subdivision or taxing
authority thereof or therein or without the necessity of obtaining any
governmental authorization in the Republic of Poland, Luxembourg and
The Netherlands or any political subdivision or taxing authority
thereof or therein.
(xxvi) Tax Returns. All income and franchise tax returns of the Guarantor
and any of the Subsidiaries, required to be filed by the applicable
laws of Luxembourg, The Netherlands, Poland and any other
jurisdiction in which the Guarantor and its Subsidiaries conduct
their business have been filed and all material taxes shown by such
returns or otherwise assessed, which are due and payable, have been
paid, except assessments against which appeals have been or will be
promptly taken and as to which adequate reserves have been
provided. Each of the Guarantor and the Subsidiaries has filed all
other tax returns that are required to have been filed by it
pursuant to applicable law except insofar as the failure to file
such returns could not have a Material Adverse Effect, and has paid
all taxes due pursuant to such returns or pursuant to any
assessment received by the Guarantor and the Subsidiaries, except
for such taxes, if any, as are being contested in good faith and by
appropriate proceedings and as to which adequate reserves have been
provided. The charges, accruals and reserves on the books of the
Guarantor or any of the Subsidiaries, as the case may be, in
respect of any income and corporation tax liability for any years
not finally determined are adequate to meet any assessments or
re-assessments for additional income tax for any years not finally
determined, except to the extent of any inadequacy that would not
have a Material Adverse Effect.
(xxvii) Investment Company Act. Neither the Issuer nor the Guarantor nor
Holdings is, and upon the issuance and sale of the Notes and the
issuance of the Guarantees and the Limited Recourse Guarantees as
herein contemplated and the application of the net proceeds from
the issuance and sale of the Notes as described in the Offering
Memorandum will not be, an "investment company" as such terms are
defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act").
(xxviii) PFIC Status. Neither the Issuer nor the Guarantor nor Holdings
believes that it is, nor do any of them expect to become, (A)
passive foreign investment companies within the meaning of Section
1296 of the Internal Revenue Code of 1986, as amended (the
"Code"), or (B) foreign personal holding companies within the
meaning of Section 552 of the Code.
(xxix) Internal Controls. The Issuer, the Guarantor and Holdings maintain
a system of internal accounting controls sufficient to provide
reasonable assurances that (A) transactions are executed in
accordance with management's general or specific authorization; (B)
transactions are recorded as necessary to permit preparation of
financial statements in conformity with IAS and to maintain
accountability of assets; (C) access to assets is permitted only in
accordance with management's general or specific authorization; and
(D) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is
taken with respect to any differences.
(xxx) No Additional Documents. There are no contracts or documents of a
character that would be required to be described in the Offering
Memorandum, if it were a prospectus filed as part of a registration
statement on Form F-1 under the Securities Act, that are not
described as would be so required. All such contracts so described
in the Offering Memorandum to which the Guarantor or any of the
Subsidiaries is party have been duly authorized, executed and
delivered by the Guarantor or the relevant Subsidiary and
constitute valid and binding agreements of the Guarantor or such
Subsidiary.
(xxxi) Insurance. The Guarantor and the Subsidiaries have insurance
covering their respective properties, operations, personnel and
businesses, which insurance the Guarantor believes to be
appropriate and is in amounts and insures against such losses or
risks as are customary in the
13
industry in which the Guarantor and the Subsidiaries operate. None of
the Guarantor or any of the Subsidiaries has received notice from any
insurer or agent of such insurer that capital improvements or other
expenditures are required or necessary to be made in order to continue
such insurance except such notices as are not reasonably likely to
have a Material Adverse Effect.
(xxxii) Taxes on Subsidiary Indebtedness. Except as described in the
Offering Memorandum, as of the date hereof, no material income,
stamp or other taxes or levies, imposts, deductions, charges,
compulsory loans or withholdings whatsoever are or will be, under
applicable law in the Republic of Poland, under applicable law in
The Netherlands or under applicable law in Luxembourg, imposed,
assessed, levied or collected by the Republic of Poland, The
Netherlands or Luxembourg, or any political subdivision or taxing
authority thereof or therein or on or in respect of principal,
interest, premiums, penalties or other amounts payable under any
indebtedness (A) of the Guarantor held by the Issuer pursuant to
the Guarantees or (B) of Holdings held by the Issuer pursuant to
the Limited Recourse Guarantees.
(xxxiii) Rule 144A Eligibility. The Notes are eligible for resale pursuant
to Rule 144A under the Securities Act and will not be, at the
Closing Time, of the same class as securities held on a national
securities exchange registered under Section 6 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") or quoted in
a U.S. automated inter-dealer quotation system.
(xxxiv) General Solicitation. None of the Issuer, its Affiliates or any
person acting on its or their behalf (other than the Initial
Purchasers and their respective Affiliates and any person acting on
their behalf, as to whom the Issuer makes no representation) has
engaged, in connection with the offering of the Notes, in any form
of general solicitation or general advertising within the meaning
of Rule 502(c) of the Securities Act or in any manner involving a
public offering within the meaning of Section 4(2) of the
Securities Act.
(xxxv) No Substantial U.S. Market Interest or Directed Selling
Efforts. With respect to those Notes sold in reliance on
Regulation S, (A) neither the Issuer nor the Guarantor nor Holdings
reasonably believes there is "substantial U.S. market interest" (as
such term is defined in Regulation S) in the Notes at the
commencement of the Offering, (B) none of the Issuer, the
Guarantor, Holdings, their Affiliates or any person acting on its
or their behalf (other than the Initial Purchasers and their
respective Affiliates and anyone acting on their behalf, as to whom
the Issuer, the Guarantor and Holdings make no representation) has
engaged in any directed selling efforts (as that term is defined in
Regulation S) in the United States, and (C) each of the Issuer and
its Affiliates and any person acting on its or their behalf (other
than the Initial Purchasers and their respective Affiliates and
anyone acting on their behalf, as to whom the Issuer makes no
representation) has complied with the offering restrictions
requirement of Regulation S.
(xxxvi) No Registration Required. Subject to compliance by the Initial
Purchasers with the representations and warranties set forth in
Section 2 hereof and the procedures set forth in Section 6 hereof,
it is not necessary in connection with the offer, sale and delivery
of the Notes to the Initial Purchasers, and to each Subsequent
Purchaser in the manner contemplated by this Agreement and the
Offering Memorandum to register the Notes under the Securities Act
or to qualify the Indentures under the Trust Indenture Act of 1939,
as amended (the "1939 Act").
(xxxvii) No Stabilization. Except as described in the Offering Memorandum,
none of the Issuer, the Guarantor or Holdings or any of their
officers, directors or controlling persons has taken or will take,
directly or indirectly, any action designed to, or that might be
reasonably expected to, cause or result in stabilization or
manipulation of the price of the Notes to facilitate the sale or
resale of the Notes.
(xxxviii) Forward-Looking Statement. No forward-looking statement (within
the meaning of Section 27A of the Securities Act and Section 21E
of the Exchange Act) contained in the Preliminary Offering
Memorandum or the Offering Memorandum has been made or reaffirmed
without a reasonable basis or has been disclosed other than in
good faith.
14
(xxxix) Luxembourg Listing. Application has been made to list the Notes on
the Luxembourg Stock Exchange and, in connection therewith, the
Issuer has caused to be prepared and submitted to the Luxembourg
Stock Exchange a listing application with respect to the Notes (the
"Listing Application"). The Listing Application (A) complies in all
material respects with the requirements of the Luxembourg Stock
Exchange and (B) has been submitted to the Luxembourg Stock
Exchange. There is no requirement of the Luxembourg Stock Exchange
to deliver any document other than the Offering Memorandum to
prospective purchasers or purchasers of Notes from the Initial
Purchasers in connection with the offer and sale by the Initial
Purchasers of the Notes.
(x1) Submission to Jurisdiction. Each of the Issuer, the Guarantor and
Holdings has the power to submit, and pursuant to this Agreement,
the Indentures, the Registration Rights Agreement, the Escrow
Agreement, the Security Agreements, the Guarantees, the Limited
Recourse Guarantees and the Notes, as applicable, has legally,
validly, effectively and irrevocably submitted to the non-
exclusive jurisdiction of the New York courts and has validly and
irrevocably appointed CT Corporation System as its authorized agent
for the purpose described in Section 14.09 of each of the
Indentures.
(xli) No Liquidation. No proceedings have been commenced for the
purposes of, and no judgment has been rendered for, the
liquidation, bankruptcy or winding-up of the Guarantor or any of
the Subsidiaries.
(xlii) Offering Material. The Issuer has not distributed and, prior to
the later to occur of (A) the Closing Time and (B) completion of
the distribution of the Notes, will not distribute any offering
material in connection with the offering and sale of the Notes
other than the Offering Memorandum, any preliminary Offering
Memorandum, or other materials, if any, permitted by the
Securities Act and approved by the Initial Purchasers.
(xliii) Year 2000. The Guarantor has reviewed its operations and that of
the Subsidiaries to evaluate the extent to which their respective
businesses or operations will be affected by the Year 2000
Problem. The Year 2000 problem means any significant risk that
computer hardware or software applications used by the Guarantor
and the Subsidiaries will not, in the case of dates or time
periods occurring after December 31, 1999, function at least as
effectively as in the case of dates or time periods occurring
prior to January 1, 2000. As a result of such review, (A) the
Guarantor has no reason to believe, and does not believe, that (1)
there are any issues related to their preparedness to address the
Year 2000 Problem that are of a character required to be described
or referred to in the Offering Memorandum which have not been
accurately described in the Offering Memorandum and (2) except as
otherwise disclosed in the Offering Memorandum, the Year 2000
Problem will have a Material Adverse Effect or result in any
material loss or interference with the business or operations of
the Guarantor and the Subsidiaries, taken as a whole; and (B) the
Guarantor reasonably believes, after due inquiry, that, except as
otherwise disclosed in the Offering Memorandum, the suppliers,
vendors, customers or other material third parties used or served
by the Guarantor and the Subsidiaries which are material to the
earnings, business affairs or business prospects of the Guarantor
and the Subsidiaries, taken as a whole, are addressing or will
address the Year 2000 Problem in a timely manner, except to the
extent that a failure to address the Year 2000 Problem by any
supplier, vendor, customer or material third party would not have
a Material Adverse Effect.
(xliv) Collateral. Upon the acquisition by the relevant Collateral Agent
of a security entitlement in an Escrow Account, in accordance with
the terms of the relevant Escrow Agreement, the pledge of and grant
of a security interest in the Collateral (as defined in the
relevant Escrow Agreement) securing the payment of the Obligations
(as defined in the relevant Escrow Agreement) in favor of the
Collateral Agent will constitute a first priority perfected
security interest in such Collateral, enforceable as such against
all creditors of Holdings, the Issuer or the Guarantor (and any
persons purporting to purchase any of the Collateral from Holdings,
the Issuer or the Guarantor).
(xlv) No Sales Except in Accordance with the Dutch Securities Act. None
of the Issuer, the Guarantor or Holdings (A) has offered or sold
nor shall they offer or sell any Notes, whether directly or
indirectly,
15
as part of the Offering or at any time thereafter, to any individual
or legal entity anywhere in the world other than to individuals or
legal entities who or which trade or invest in securities in the
conduct of their profession or business within the meaning of the
Exemption Regulation of 21 December 1995 (as amended) issued pursuant
to The Netherlands' Securities Markets Supervision ▇▇▇ ▇▇▇▇ ("Wet
Toezicht Effectenverkeer 1995", hereinafter the "Dutch Securities
Act") (which includes banks, brokers, securities institutions,
insurance companies, pension funds, investment institutions, other
institutional investors and other parties, including treasury
departments of commercial enterprises and finance companies of groups,
which are regularly active in the financial markets in a professional
manner) and (B) has mentioned and will mention upon making any offer
of the Notes and in all offer advertisements, publications and other
documents in which an offer of the Notes is made or a forthcoming
offer is announced that the offer is exclusively made to the said
individuals or legal entities. It is understood that these
restrictions shall cease to apply if Holdings becomes the obligor with
respect to the Notes and the Securities Board of The Netherlands
(Stichting Toezicht Effectenverkeer) shall have granted a dispensation
(ontheffing) to a registration statement filed with the Commission in
connection with an exchange offer for the Notes.
(b) Officer's Certificates. Any certificate signed by any Management or
Supervisory board member, officer or authorized representative of the Guarantor
or any of the Subsidiaries delivered to the Initial Purchasers or to counsel for
the Initial Purchasers shall be deemed a representation and warranty by the
Issuer, the Guarantor or Holdings, as the case may be, to each Initial Purchaser
as to the matters covered thereby.
SECTION 2. SALE AND DELIVERY TO INITIAL PURCHASERS; CLOSING.
(a) On the basis of the representations and warranties herein contained
and subject to the terms and conditions herein set forth, the Issuer agrees to
sell to each Initial Purchaser, severally and not jointly, and each Initial
Purchaser, severally and not jointly, agrees to purchase from the Issuer, at the
price set forth in Schedule B, the aggregate principal amount of Notes set forth
in Schedule A opposite the name of such Initial Purchasers plus any additional
principal amount of Notes which such Initial Purchasers may become obligated to
purchase pursuant to the provisions of Section 11 hereof.
(b) Payment of the purchase price for the Notes shall be made at the
offices of ▇▇▇▇▇▇▇▇ Chance, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇, or at such other place as shall be agreed upon by the Initial
Purchasers, the Issuer and the Guarantor, at 9:00 A.M. (London time) on the
fifth business day after the date hereof (unless postponed in accordance with
the provisions of Section 11), or such other time not later than ten business
days after such date as shall be agreed upon by the Initial Purchasers, the
Issuer and the Guarantor (such time and date of payment and delivery being
herein called the "Closing Time").
Payment shall be made to the Issuer by wire transfer of immediately
available funds to a bank account designated by the Issuer or the Guarantor,
against delivery to the Initial Purchaser for the respective accounts of the
Initial Purchasers of certificates for the Notes to be purchased by them. Each
of ▇▇▇▇▇▇▇ ▇▇▇▇▇ International and Salomon Brothers International Limited,
individually and not as representative of the Initial Purchasers, may (but shall
not be obligated to) make payment of the purchase price for the Notes to be
purchased by any Initial Purchaser whose funds have not been received by the
Closing Time, but such payment shall not relieve such Initial Purchaser from its
obligations hereunder.
Qualified Institutional Buyer. Each Initial Purchaser hereby represents
and warrants to, and agrees with, the Issuer that it is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act (a
"Qualified Institutional Buyer").
Denominations; Registration. Certificates for the Notes shall be in such
denominations (*1,000 or $1,000, as the case may be, principal amount at
maturity or integral multiples thereof), and registered in such names as the
Initial Purchasers may request in writing at least two full business days before
the Closing Time. The Notes, which may be in temporary form, will be made
available for examination and packaging by the Initial Purchasers in The City of
London not later than 5:00 P.M. on the last business day prior to the Closing
Time.
16
SECTION 3. COVENANTS OF THE ISSUER, THE GUARANTOR AND HOLDINGS. Each of
the Issuer, the Guarantor and Holdings covenants with each Initial Purchaser as
follows:
(a) Offering Memorandum. The Issuer or the Guarantor, as promptly as
possible, will furnish to each Initial Purchaser, without charge,
such number of copies of the Preliminary Offering Memorandum, the
Final Offering Memorandum and any amendments and supplements thereto
as such Initial Purchaser may reasonably request.
(b) Notice and Effect of Material Events. The Issuer, the Guarantor or
Holdings will immediately notify each Initial Purchaser and confirm
such notice in writing, of (i) any filing made by the Issuer, the
Guarantor or Holdings of information relating to the Offering with
any securities exchange or any other regulatory body in the United
States, Luxembourg or any other jurisdiction, and (ii) prior to the
completion of the placement of the Notes by the Initial Purchasers,
of any material changes in or affecting the earnings or business
affairs or business prospects of the Guarantor or any of the
Subsidiaries which (x) make any statement in the Offering Memorandum
false or misleading in any material respect, or (y) are not disclosed
in the Offering Memorandum. In such event or if during such time any
event shall occur as a result of which it is necessary, in the
opinion of any of the Issuer, Guarantor, Holdings, the Initial
Purchasers or legal counsel for the Issuer, Guarantor or Holdings or
for the Initial Purchasers, to amend or supplement the Offering
Memorandum in order that the Offering Memorandum not include any
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in
the light of the circumstances then existing or, if, in the opinion
of the Initial Purchasers' legal counsel or legal counsel for the
Issuer, the Guarantor or Holdings, it is necessary to amend or
supplement the Offering Memorandum to comply with applicable law, the
Issuer will forthwith amend or supplement, at its own expense, the
Offering Memorandum by preparing and furnishing to each Initial
Purchaser an amendment or amendments of, or a supplement or
supplements to, the Offering Memorandum (in form and substance
satisfactory in the reasonable opinion of counsel for the Initial
Purchasers) so that, as so amended or supplemented, the Offering
Memorandum will not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances then existing,
not misleading or so that such Offering Memorandum as so amended or
supplemented will comply with applicable law, as the case may be, and
furnish each Initial Purchaser such number of copies as such Initial
Purchaser may reasonably request and each Initial Purchaser shall
forthwith furnish such amendment or supplement to each party to which
it has sold or intends to sell the Notes.
(c) Amendment to Offering Memorandum and Supplements. The Issuer or the
Guarantor will advise each Initial Purchaser as soon as possible of
any proposal to amend or supplement the Offering Memorandum and will
not effect such amendment without the Initial Purchasers' prior
written consent. Neither the consent of the Initial Purchasers, nor
the Initial Purchasers' delivery of any such amendment or supplement,
shall constitute a waiver of any of the conditions set forth in
Section 5 hereof.
(d) Qualification of Notes for Offer and Sale. The Issuer, the Guarantor
and Holdings will use their reasonable efforts, in cooperation with
the Initial Purchasers, to qualify the Notes for offering and sale
under the applicable securities laws of such countries, states of the
United States and other jurisdictions as the Initial Purchasers may
designate and will maintain such qualifications in effect as long as
required for the sale of the Notes. The Issuer, the Guarantor and
Holdings will file such statements and reports as may be required by
the laws of each jurisdiction in which the Notes have been qualified
as above provided. The Issuer, the Guarantor and Holdings will also
supply such information as is necessary for the determination of the
legality of the Notes for investment under the laws of such
jurisdictions as the Initial Purchasers may reasonably request.
(e) No General Solicitation. Except in connection with the Exchange
Notes as contemplated in the Registration Rights Agreement, neither
the Issuer nor the Guarantor nor Holdings (i) will solicit or to
cause any of their Affiliates or any person acting on its or their
behalf (other than the Initial Purchasers
17
and their respective Affiliates and any person acting on their behalf,
as to whom the Issuer, the Guarantor and Holdings make no
representation) to solicit any offer to buy or offer to sell the Notes
by means of any form of general solicitation or general advertising
(within the meaning of Rule 502(c) of the Securities Act) or in any
manner involving a public offering within the meaning of Section 4(2) of
the Securities Act and (ii) will not, and will not request their
Affiliates to, offer, sell or solicit offers to buy or otherwise
negotiate in respect of any Security (as defined in the Securities Act)
the offering of which security could be integrated with the sale of the
Notes in a manner that would require the registration of any of the
Notes under the Securities Act.
(f) Rating of Notes. The Issuer, the Guarantor and Holdings shall take
all reasonable action necessary to enable Standard & Poors Ratings
Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. ("S&P"), and
▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's") to provide their
respective credit ratings of the Notes.
(g) Luxembourg Stock Exchange Approval. The Issuer, the Guarantor and
Holdings will use their best efforts to effect the listing of the
Notes and the Exchange Securities on the Luxembourg Stock Exchange.
(h) DTC and Euroclear. The Issuer, the Guarantor and Holdings will
cooperate with the Initial Purchasers and use their best efforts to
permit the Notes to be eligible for clearance and settlement through
the facilities of DTC and/or Euroclear and/or Cedelbank, as the case
may be.
(i) Investment Company. Neither the Issuer nor the Guarantor nor
Holdings will become an open-end investment company, a unit
investment trust or a face-amount certificate company required to be
registered under the Investment Company Act, and neither will any of
them become a closed-end investment company required to be
registered, but not registered, thereunder.
(j) Use of Proceeds. The Issuer, the Guarantor and Holdings will each
use the net proceeds received by it from the sale of the Notes in the
manner specified in the Offering Memorandum under "Use of Proceeds."
(k) Directed Selling Efforts. Neither the Issuer nor the Guarantor nor
Holdings will engage nor cause any of their Affiliates or any person
acting on its or their behalf (other than the Initial Purchaser, and
any of their Affiliates, or any person acting on their behalf) to
engage in any directed selling efforts (as such term is defined under
Regulation S) in the United States with respect to the Notes, and the
Issuer, the Guarantor and Holdings will comply and request such
affiliate and such other person acting on its or their behalf (except
as aforesaid) to comply with the offering restrictions requirement of
Regulation S.
(l) Press Releases. Neither the Issuer nor the Guarantor nor Holdings
will issue any press release or other communication directly or
indirectly or hold any press conference with respect to the Guarantor
or any of the Subsidiaries, the condition, financial or otherwise
(except for routine oral marketing communications in the ordinary
course of business and consistent with past practice), or the
earnings, business affairs or business prospects of the Guarantor or
any of the Subsidiaries, without the prior consent of the Initial
Purchasers, unless (i) in the period beginning prior to the Closing
Time and for 45 days subsequent to the Closing Time, in the judgment
of the Guarantor or the Issuer and its respective legal counsel, and
after notification to the Initial Purchasers, such press release or
communication is required by law or except as issued in accordance
with Rule 135c of the Securities Act and (ii) during the period
beginning 46 days subsequent to the Closing Time and ending 90 days
subsequent to the Closing Time, in the judgment of the Guarantor or
the Issuer and its respective legal counsel, and after notification
to the Initial Purchasers, except as issued in accordance with the
Securities Act.
(m) Regulation M. In connection with the offering of the Notes, until the
Initial Purchasers shall have notified the Issuer of the completion of
the resale of the Notes, neither the Issuer nor the Guarantor nor
Holdings will cause their affiliated purchasers (as defined in
Regulation M under the Exchange Act) to, either alone or with one or
more other persons, bid for or purchase, for any account in which it
or
18
any of its affiliated purchasers has a beneficial interest, any Notes,
or attempt to induce any person to purchase any Notes; and neither the
Issuer nor the Guarantor nor Holdings will cause their affiliated
purchasers to, make bids or purchase for the purpose of creating actual,
or apparent, active trading in or of raising the price of the Notes.
(n) Restriction on Sale of Notes. During a period of 180 days from the
date of the Offering Memorandum, neither the Issuer nor the Guarantor
nor Holdings will, without the prior written consent of the Initial
Purchasers, directly or indirectly, issue, sell, offer or agree to
sell, grant any option for the sale of, or otherwise dispose of, any
other debt securities of the Issuer, the Guarantor or Holdings or
securities of the Issuer, the Guarantor or Holdings that are
convertible into, or exchangeable for, the Notes or such other debt
securities.
(o) PORTAL. The Issuer, the Guarantor and Holdings will use their best
efforts to permit the Notes to be designated PORTAL securities in
accordance with the rules and regulations adopted by the National
Association of Securities Dealers, Inc. ("NASD") relating to trading
in the PORTAL Market.
(p) Restriction on Resale of Notes. Neither the Issuer nor the Guarantor
nor Holdings will, nor will they permit any of their Affiliates under
their control, resell any Notes that have been acquired by any of
them.
SECTION 4. PAYMENT OF EXPENSES. (a) Expenses. Each of the Issuer, the
Guarantor and Holdings, jointly and severally, whether or not any sale of the
Notes is consummated, shall pay all expenses incident to the performance of
their obligations under this Agreement including (i) the preparation, printing
and filing of the Offering Memorandum (including financial statements) and each
amendment or supplement thereto, (ii) the preparation, printing and delivery to
the Initial Purchasers of this Agreement, any Agreement among Initial
Purchasers, the Indentures, the Registration Rights Agreement, the Escrow
Agreements, the Security Agreements, the Guarantees, the Limited Recourse
Guarantees and such other documents as may be required in connection with the
offering, purchase, sale, issuance or delivery of the Notes, (iii) the
preparation, issuance and delivery of the certificates for the Notes to the
Initial Purchasers, including any charges of DTC, Euroclear or Cedelbank in
connection therewith, (iv) the fees and disbursements of the counsel,
accountants and other advisors of the Issuer, the Guarantor and Holdings, (v)
the qualification of the Notes under the securities laws in accordance with the
provisions of Section 3(d) hereof, including filing fees and the reasonable fees
and disbursements of counsel for the Initial Purchasers in connection therewith
and in connection with the preparation, printing and delivery of the Blue Sky
Survey, any supplement thereto and any Legal Investment Survey, (vi) the fees
and expenses of the Trustees, registrars and paying agents, including the fees
and disbursements of counsel for such persons in connection with the Indentures
and the Notes; (vii) any fees payable to rating agencies in connection with the
rating of the Notes; (viii) the filing fees incident to, and the reasonable
disbursements of United States counsel to the Initial Purchasers in connection
with, the review by the NASD with respect to the initial and continued
designation of the Notes as PORTAL securities under the PORTAL Market Rules
pursuant to NASD Rule 5322 and (ix) any fees charged by the Luxembourg Stock
Exchange in connection with the listing of the Notes on the Luxembourg Stock
Exchange and expenses incurred with respect to documentation prepared relating
thereto.
(b) Termination of Agreement. If this Agreement is terminated by the
Initial Purchasers in accordance with the provisions of Section 5 or 10(a)(i),
the Issuer, the Guarantor and Holdings shall reimburse the Initial Purchasers
for all their reasonable out-of-pocket expenses, including the reasonable fees
and disbursements of counsel for the Initial Purchasers.
SECTION 5. CONDITIONS OF INITIAL PURCHASERS' OBLIGATIONS. The obligations
of the Initial Purchasers hereunder are subject to the accuracy of the
representations and warranties of the Issuer, the Guarantor and Holdings
contained in Section 1 hereof or in certificates of any Management or
Supervisory board member, officer of the Issuer, the Guarantor or Holdings
delivered pursuant to the provisions hereof, to the performance in all material
respects by the Issuer, the Guarantor and Holdings of their covenants and other
obligations hereunder, and to the following further conditions:
19
(a) Offering Memorandum. The Offering Memorandum (and any amendments or
supplements thereto) shall have been printed and copies distributed to the
Initial Purchasers as promptly as practicable on or following the date of this
Agreement or at such other date and time as to which the Initial Purchasers may
agree.
(b) Opinions of Counsel for the Issuer and the Guarantor. (i) Opinion of
Issuer's U.S. Counsel. At the Closing Time, the Initial Purchasers shall have
received the favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇▇▇
Chance, U.S. counsel for the Issuer, the Guarantor and Holdings, in form and
substance satisfactory to counsel for the Initial Purchasers together with
signed or reproduced copies of such letter for each of the other Initial
Purchasers, to the effect set forth in Exhibit B hereto and to such further
effect as counsel to the Initial Purchasers may reasonably request.
(ii) Opinion of Guarantor's Polish Counsel. At the Closing Time, the
Initial Purchasers shall have received the favorable opinion, dated
as of the Closing Time, of ▇▇▇▇▇▇▇▇ Chance, Polish counsel for the
Guarantor in form and substance satisfactory to counsel for the
Initial Purchasers, together with signed or reproduced copies of
such letter for each of the other Initial Purchasers, to the effect
set forth in Exhibit C hereto and to such further effect as counsel
to the Initial Purchasers may reasonably request.
(iii) Opinion of Holdings's Netherlands Counsel. At the Closing Time, the
Initial Purchasers shall have received the favorable opinion, dated
as of the Closing Time, of ▇▇▇▇▇▇▇▇ Chance, Netherlands counsel to
Holdings, in form and substance satisfactory to counsel for the
Initial Purchasers together with signed or reproduced copies of such
letter for each of the other Initial Purchasers, to the effect set
forth in Exhibit D hereto and to such further effect as counsel to
the Initial Purchasers may reasonably request.
(iv) Opinion of Issuer's Luxembourg Counsel. At the Closing Time, the
Initial Purchasers shall have received the favorable opinion, dated as
of the Closing Time, of ▇▇▇▇▇ & ▇▇▇▇▇▇, Luxembourg counsel to the
Issuer, in form and substance satisfactory to counsel for the Initial
Purchasers together with signed or reproduced copies of such letter
for each of the other Initial Purchasers, to the effect set forth in
Exhibit E hereto and to such further effect as counsel to the Initial
Purchasers may reasonably request.
(c) Opinion of United States Counsel for the Initial Purchasers. At the
Closing Time, the Initial Purchasers shall have received the favorable opinion,
dated as of the Closing Time, of Shearman & Sterling, U.S. counsel for the
Initial Purchasers, together with signed or reproduced copies of such letter for
each of the other Initial Purchasers, with respect to certain of the matters set
forth in Exhibit B hereto.
(d) Officers' Certificate. At the Closing Time, there shall not have
been, since the date hereof or since the respective dates as of which
information is given in the Offering Memorandum, any material adverse change in
the condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Guarantor and the Subsidiaries considered as one
enterprise, and the Initial Purchasers shall have received a certificate from
each of an authorized representative of each of the Issuer, Holdings and members
of the relevant Supervisory or Management Board authorized to sign on behalf of
the Guarantor and of the chief operating officer or chief financial officer of
the Guarantor respectively, dated as of the Closing Time, to the effect that (i)
there has been no such material adverse change, (ii) the representations and
warranties in Section 1 hereof are true and correct with the same force and
effect as though expressly made at and as of the Closing Time, and (iii) each of
the Issuer, the Guarantor and Holdings has complied on all material respects
with all agreements and satisfied in all material respects all conditions on its
part to be performed or satisfied at or prior to the Closing Time.
(e) Accountants' Comfort Letter. At the time of the execution of this
Agreement, the Initial Purchasers shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. z
o.o. a letter dated such date, in form and substance satisfactory to the Initial
Purchasers, together with signed or reproduced copies of such letter for each of
the other Initial Purchasers to the effect set forth in Exhibit F hereto
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to initial purchasers with respect to the
financial statements and certain financial information contained in the Offering
Memorandum.
20
(f) Bring-Down Comfort Letter. At the Closing Time, the Initial
Purchasers shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. z o.o. a letter, dated
as of the Closing Time, to the effect that they reaffirm the statements made in
the letter furnished pursuant to subsection (e) of this Section, except that the
specified date referred to shall be a date not more than three business days
prior to Closing Time.
(g) Luxembourg Listing. At the Closing Time, the Notes shall have been
approved for listing on the Luxembourg Stock Exchange.
(h) Clearance and Settlement. (i) DTC shall have approved the forms of
the Rule 144A Global Securities (as defined in the Indentures) and (ii) ▇▇▇▇▇▇
Guaranty Trust Company of New York, Brussels office, as operator of the
Euroclear system and Cedelbank shall have accepted the Regulation S Global
Securities (as defined in the Indentures) for clearance.
(i) Maintenance and Rating. At the Closing Time, the Notes shall be rated
at least B2 by Moody's and B+ by S&P and the Issuer or the Guarantor shall have
delivered to the Initial Purchasers a letter dated the Closing Time, from each
such rating agency, or other evidence satisfactory to the Initial Purchasers,
confirming that the Notes have such ratings; and since the date of this
Agreement, there shall not have occurred a downgrading in the rating assigned to
the Notes or debt securities of the Guarantor or any Subsidiary by any
"nationally recognized substantial rating agency", as that term is defined by
the Commission for purposes of Rule 436(g)(2) under the Securities Act, and no
such securities rating agency shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of the
Notes or any debt securities of the Guarantor or any Subsidiary.
(j) PORTAL. At the Closing Time, the Notes shall have been designated as
eligible for trading on PORTAL.
(k) Additional Documents. At the Closing Time, counsel for the Initial
Purchasers shall have been furnished with such documents and opinions as they
may require for the purpose of enabling them to pass upon the issuance and sale
of the Notes as herein contemplated, or in order to evidence the accuracy of any
of the representations or warranties, or the fulfillment of any of the
conditions herein contained, and all proceedings taken by the Issuer, the
Guarantor and Holdings in connection with the issuance and sale of the Notes as
herein contemplated shall be satisfactory in form and substance to the Initial
Purchasers and their counsel.
(l) Termination of Agreement. If any condition specified in this Section
shall not have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the Initial Purchasers by notice to the Issuer,
the Guarantor and Holdings at any time at or prior to the Closing Time and such
termination shall be without liability of any party to any other party except as
provided in Section 4 and except that Sections 1, 7, 8 and 9 and shall survive
any such termination and remain in full force and effect.
SECTION 6. SUBSEQUENT OFFERS AND RESALES OF THE NOTES.
(a) Initial Purchasers' Obligations. Each of the Initial Purchasers, the
Issuer, the Guarantor and Holdings hereby establish and agree to observe the
following procedures in connection with the offer and sale by the Initial
Purchasers of the Notes:
(i) Offers and Sales only to Qualified Institutional Buyers or non-U.S.
Persons. Offers and sales of the Notes will be made only by the
Initial Purchasers or their respective Affiliates who are qualified
to do so in the jurisdictions in which such offers or sales are made.
Each such offer or sale shall only be made to persons whom the
offeror or seller reasonably believes to be Qualified Institutional
Buyers or to non-U.S. persons acquiring the securities in an offshore
transaction in compliance with Regulation S.
(ii) No General Solicitation. No general solicitation or general
advertising (within the meaning of Rule 502(c) under the Securities
Act) will be used in the United States in connection with the
offering or sale of the Notes.
(iii) Purchases by Non-Bank Fiduciaries. In the case of a non-bank
Subsequent Purchaser of a Note acting as fiduciary for one or more
third parties, in connection with an offer and sale to such
purchaser
21
pursuant to clause (b) above, each third party shall, in the judgment of
the applicable Initial Purchaser, be a Qualified Institutional Buyer or
a non-U.S. Person outside the United States.
(iv) Subsequent Purchaser Notification. Each Initial Purchaser will take
reasonable steps to inform, and cause each of its U.S. Affiliates to
take reasonable steps to inform, persons acquiring Notes from such
Initial Purchaser or Affiliate, as the case may be, in the United
States that the Notes (A) have not been and will not be registered
under the Securities Act, (B) are being sold to them without
registration under the Securities Act in reliance on Rule 144A or in
accordance with another exemption from registration under the
Securities Act, as the case may be, and (C) may not be offered, sold
or otherwise transferred prior to (1) the date which is two years (or
such shorter period of time as permitted by Rule 144(k) under the
Securities Act or any successor provision thereunder) after the later
of the date of original issue of the Notes, and (2) such later date,
if any, as may be required under applicable laws except (x) to the
Issuer, (y) outside the United States in accordance with Rule 904 of
Regulation S, or (z) inside the United States in accordance with (I)
Rule 144A to a person whom the seller and any person acting on behalf
of the seller reasonably believes is a Qualified Institutional Buyer
that is purchasing such Notes for its own account or for the account
of a Qualified Institutional Buyer to whom notice is given that the
offer, sale or transfer is being made in reliance on Rule 144A under
the Securities Act or (II) pursuant to another available exemption
from registration under the Securities Act (it being understood that
delivery of the Final Offering Memorandum to such persons shall
constitute such reasonable steps).
(v) Restrictions on Transfer. Each of the Notes will bear, to the extent
applicable, the legend contained under "Notices to Investors" in the
Offering Memorandum for the time period and upon the other terms
stated therein, except after the Notes are resold pursuant to a
registration statement effective under the Securities Act. Following
the sale of the Notes by the Initial Purchasers to Subsequent
Purchasers pursuant to the terms hereof, the Initial Purchasers shall
not be liable or responsible to Holdings, the Guarantor or the Issuer
for any losses, damages or liabilities suffered or incurred by
Holdings, the Guarantor or the Issuer, including any losses, damages
or liabilities under the Securities Act, arising from or relating to
any resale or transfer of any Note.
(vi) Actions Regarding Other Offerings. Each Initial Purchaser
understands that no action has been or will be taken in any
jurisdiction (including Luxembourg) that would permit a public
offering of Notes, or possession or distribution of the Offering
Memorandum or any other offering or publicity materials relating to
the Notes, in any country or jurisdiction where action for that
purpose is required.
(vii) Restrictions Under United Kingdom Securities Regulations. Each
Initial Purchaser represents, warrants and agrees that (x) it has not
offered or sold and prior to the expiration of the period six months
after the date of issue of the Notes will not offer to sell in the
United Kingdom, by means of any document, any Notes to persons in the
United Kingdom except to persons whose ordinary activities involve
them in acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of their businesses or otherwise
in circumstances which have not resulted and will not result in an
offer to the public in the United Kingdom within the meaning of the
Public Offers of Securities Regulations 1995; (y) it has complied and
will comply with all applicable provisions of the Public Offers of
Securities Regulations 1995 and the Financial Services ▇▇▇ ▇▇▇▇ with
respect to anything done by it in relation to the Notes in, from or
otherwise involving the United Kingdom; and (z) it has only issued or
passed on, and will only issue or pass on to any person, in the
United Kingdom, any document received by it in connection with the
issue of the Notes to a person who is of a kind described in Article
11(3) of the Financial Services ▇▇▇ ▇▇▇▇ (Investment
Advertisements)(Exemptions) Order 1996 or is a person to whom such
document may otherwise lawfully be issued or passed on.
(viii) No Sales of the Notes in Poland. Each Initial Purchaser represents
warrants and agrees that it has not offered or sold and will not
offer or sell any Notes in the Republic of Poland except under
circumstances that do not constitute a public offering or
distribution under the laws and regulations of the Republic of
Poland.
22
(ix) Compliance with Applicable Laws. Each Initial Purchaser represents,
warrants and agrees that it will comply with all applicable laws and
regulations in each jurisdiction in which it acquires, offers, sells
or delivers the Notes or has in its possession or distributes the
Preliminary Offering Memorandum, the Final Offering Memorandum or any
offering or publicity material relating to the Notes.
(b) Covenants of the Issuer, the Guarantor and Holdings. Each of the
Issuer, the Guarantor and Holdings covenants with each Initial Purchaser as
follows:
(i) Due Diligence. In connection with the original distribution of the
Notes, the Issuer, the Guarantor and Holdings agree that, prior to
any offer or resale of the Notes by the Initial Purchasers, the
Initial Purchasers and counsel for the Initial Purchasers shall have
the right to make reasonable inquiries into the business and legal
matters of the Guarantor and the Subsidiaries. The Issuer, Guarantor
and Holdings also agree to provide answers to each prospective
Subsequent Purchaser of Notes who so requests concerning the
Guarantor and the Subsidiaries (to the extent that such information
is available or can be acquired and made available to prospective
Subsequent Purchasers without unreasonable effort or expense and to
the extent the provision thereof is not prohibited by applicable law)
and the terms and conditions of the offering of the Notes, as
provided in the Offering Memorandum.
(ii) Integration. The Issuer, the Guarantor and Holdings agree that they
will not and will cause their Affiliates not to solicit any offer to
buy or make any offer or sale of, or otherwise negotiate in respect
of, securities of the Issuer of any class if, as a result of the
doctrine of "integration" referred to in Rule 502 under the
Securities Act, such offer or sale would render invalid (for the
purpose of (i) the sale of the Notes by the Issuer to the Initial
Purchasers, (ii) the resale of the Notes by the Initial Purchasers
to Subsequent Purchasers, or (iii) the resale of the Notes by such
Subsequent Purchasers to others) the exemption from the registration
requirements of the Securities Act provided by Section 4(2) thereof
or by Rule 144A or by Regulation S thereunder or otherwise.
(iii) Rule 144A Information. Each of the Issuer, the Guarantor and
Holdings agree that, in order to render the Notes eligible for
resale pursuant to Rule 144A under the Securities Act, while any of
the Notes remain outstanding, it will make available, upon request,
to any holder of Notes or prospective purchasers of Notes the
information specified in Rule 144A(d)(4), unless it furnishes
information to the Commission pursuant to Section 13 or 15(d) of the
Exchange Act (such information, whether made available to holders or
prospective purchasers or furnished to the Commission, is herein
referred to as "Additional Information"). For a period of two years
after the Closing Time, each of the Issuer, the Guarantor and
Holdings will make available upon request copies of all Additional
Information, together with such other documents, reports and
information as shall be furnished by it to the holders of the Notes.
(c) Resale Pursuant to Rule 903 of Regulation S, Rule 144A or Other
Exemption. Each Initial Purchaser understands that the Notes have not been and
will not be registered under the Securities Act and may not be offered or sold
within the United States except pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the Securities Act.
Each Initial Purchaser severally represents and agrees that it has not offered
or sold, and will not offer or sell, any Notes constituting part of its
allotment within the United States except in accordance with Rule 903 of
Regulation S under the Securities Act or Rule 144A under the Securities Act or
another applicable exemption under the Securities Act. Accordingly, neither such
Initial Purchaser, its Affiliates nor any persons acting on its behalf have
engaged or will engage in any directed selling efforts with respect to Notes and
the Initial Purchasers, their Affiliates and any person acting on their behalf
have complied and will comply with the offering restriction requirements of
Regulation S. Each Initial Purchaser agrees that, at or prior to confirmation of
a sale of Notes (other than a sale of Notes pursuant to Rule 144A or pursuant to
Section 6(a)(i)(B) hereof), it or its Affiliates will have sent to each
distributor, dealer or person receiving a selling concession, fee or other
remuneration that purchases Notes from it or through it during the restricted
period a confirmation or notice to substantially the following effect:
"The Notes covered hereby have not been registered under the United States
Securities Act of 1933, as amended (the "Securities Act") and may not be
offered or sold within the United States or to or for the account or
benefit of U.S. persons (i) as part of their distribution at any time and
(ii) otherwise until 40 days
23
after the later of the date upon which the offering of the Notes commenced
and the date of closing, except in either case in accordance with
Regulation S or another exemption from the registration requirements of the
Securities Act. Terms used above have the meaning given to them by
Regulation S."
Terms used in the above paragraph have the meanings given to them by Regulation
S.
SECTION 7. INDEMNIFICATION. (a) Indemnification of Initial
Purchasers. Each of the Issuer, the Guarantor and Holdings, jointly and
severally, agrees to indemnify and hold harmless each Initial Purchaser and each
person, if any, who controls such Initial Purchaser within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in any
Preliminary Offering Memorandum or the Final Offering Memorandum (or
any amendment or supplement thereto), or the omission or alleged
omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid
in settlement of any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or of
any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
that (subject to Section 7(d) below) any such settlement is effected
with the written consent of the Issuer, the Guarantor or Holdings;
and
(iii) against any and all expense whatsoever, as incurred (including the
fees and disbursements of counsel chosen by the Initial Purchasers),
reasonably incurred in investigating, preparing or defending against
any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any
such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Issuer, the
Guarantor or Holdings by any Initial Purchaser expressly for use in the Offering
Memorandum (or any amendment or supplement thereto) provided, further, that each
of the Issuer, the Guarantor and Holdings will not be liable to the Initial
Purchasers or any person controlling such Initial Purchasers with respect to any
such untrue statement or alleged untrue statement or omission or alleged
omission made in any Preliminary Offering Memorandum to the extent that each of
the Issuer, the Guarantor and Holdings shall sustain the burden of proving that
any such loss, liability, claim, damage or expense resulted from the fact that
the Book-Running Manager sold securities to a person to whom such Initial
Purchaser failed to send or give, at or prior to the written confirmation of the
sale of such Notes, a copy of the Final Offering Memorandum (as amended or
supplemented) if the Issuer, the Guarantor or Holdings has previously furnished
copies thereof to such Initial Purchaser (as and to the extent required by law
in order to allow for distribution of the Final Offering Memorandum in a timely
manner) and the loss, liability, claim, damage or expense of the Initial
Purchasers resulted from an untrue statement or omission or alleged untrue
statement or omission of a material fact contained in or omitted from such
Preliminary Offering Memorandum (as amended or supplemented) which was corrected
in the Final Offering Memorandum (as amended or supplemented).
(b) Indemnification of Issuer, Guarantor, Holdings and their Directors and
Officers. Each Initial Purchaser agrees to indemnify and hold harmless the
Issuer, the Guarantor, Holdings, their respective directors and each person, if
any, who controls the Issuer, the Guarantor or Holdings within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act against any
and all loss, liability, claim, damage and expense described in the indemnity
contained in subsection (a) of this Section, as incurred, but only with respect
to untrue statements or omissions, or alleged untrue statements or omissions,
made in the Offering Memorandum (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished
24
to the Issuer, the Guarantor or Holdings by such Initial Purchaser expressly for
use in the Offering Memorandum (or any amendment or supplement thereto).
(c) Actions Against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this Section
7. In the case of parties indemnified pursuant to Section 7(a) above, counsel to
the indemnified parties shall be selected by the Initial Purchasers, and, in the
case of parties indemnified pursuant to Section 7(b) above, counsel to the
indemnified parties shall be selected by the Issuer, the Guarantor or Holdings.
An indemnifying party may participate at its own expense in the defense of any
such action; provided, however, that counsel to the indemnifying party shall not
(except with the consent of the indemnified party) also be counsel to the
indemnified party. Except as expressly provided in this Section 7, in no event
shall the indemnifying parties be liable for fees and expenses of more than one
counsel (in addition to any local counsel, limited to one law firm per country)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under this
Section 7 or Section 8 hereof (whether or not the indemnified parties are actual
or potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
(d) Settlement Without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel in accordance with the
requirements of this Section 7, such indemnifying party agrees that it shall be
liable for any settlement of the nature contemplated by Section 7(a)(ii)
effected without its written consent if (i) such settlement is entered into more
than 45 days after receipt by such indemnifying party of the aforesaid request,
(ii) such indemnifying party shall have received notice of the terms of such
settlement at least 30 days prior to such settlement being entered into, and
(iii) such indemnifying party shall not have reimbursed such indemnified party
in accordance with such request prior to the date of such settlement.
SECTION 8. CONTRIBUTION. If the indemnification provided for in Section 7
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Issuer, the
Guarantor and Holdings on the one hand and the Initial Purchasers on the other
hand from the offering of the Notes pursuant to this Agreement or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Issuer, the Guarantor
and Holdings on the one hand and of the Initial Purchasers on the other hand in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Issuer, the Guarantor and Holdings on
the one hand and the Initial Purchasers on the other hand in connection with the
offering of the Notes pursuant to this Agreement shall be deemed to be in the
same respective proportions as the total net proceeds from the offering of the
Notes pursuant to this Agreement (before deducting expenses) received by the
Issuer, the Guarantor and Holdings and the total underwriting discount received
by the Initial Purchasers bear to the aggregate initial offering price of the
Notes.
The relative fault of the Issuer, the Guarantor and Holdings on the one
hand and the Initial Purchasers on the other hand shall be determined by
reference to, among other things, whether any such untrue or alleged untrue
25
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Issuer, the Guarantor or Holdings or
by the Initial Purchasers and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Issuer, the Guarantor, Holdings and the Initial Purchasers agree that
it would not be just and equitable if contribution pursuant to this Section 8
were determined by pro rata allocation (even if the Initial Purchasers were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to above in
this Section 8. The aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above in this Section
8 shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 8, no Initial Purchaser
shall be required to contribute any amount in excess of the amount by which the
total price at which the Notes underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such Initial
Purchaser has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 8, each person, if any, who controls an
Initial Purchaser within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act shall have the same rights to contribution as
such Initial Purchaser, and each director of the Issuer, the Guarantor and
Holdings and each person, if any, who controls the Issuer, the Guarantor or
Holdings within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act shall have the same rights to contribution as the Issuer, the
Guarantor or Holdings. The Initial Purchasers' respective obligations to
contribute pursuant to this Section 8 are several in proportion to the principal
amount of Notes set forth opposite their respective names in separate letters in
Schedule A hereto and not joint.
SECTION 9. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Guarantor or any Subsidiary, as
the case may be, submitted pursuant hereto shall remain operative and in full
force and effect, regardless of any investigation made by or on behalf of the
Initial Purchasers or controlling person, or by or on behalf of the Issuer,
Guarantor or Holdings and shall survive delivery of the Notes to the Initial
Purchasers.
SECTION 10. TERMINATION OF AGREEMENT. (a) Termination; General. This
Agreement shall be subject to termination in the absolute discretion of the
Initial Purchasers by notice given to the Guarantor prior to delivery of and
payment for the Notes, if prior to such time (i) trading in securities generally
on any of the New York Stock Exchange, the American Stock Exchange or the NASDAQ
National Market System shall have been suspended or limited or minimum prices
shall have been established on any such exchange, (ii) a banking moratorium
shall have been declared by the Republic of Poland, U.S. Federal or New York
State authorities, (iii) there has occurred a material adverse change in the
currency exchange rate or exchange controls between the Polish zloty and the
U.S. dollar, which change makes it, in the judgment of the Initial Purchasers,
impracticable to proceed with the offering or delivery of the Notes as
contemplated in the Final Offering Memorandum (exclusive of any supplement
thereto) or would be likely to prejudice materially dealings in the Notes in the
secondary market or (iv) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States, any member state of the European
Union, or the Republic of Poland of a national emergency or war or other
calamity or crisis the effect of which on financial markets is such as to make
it, in the judgment of the Initial Purchasers, impracticable or inadvisable to
proceed with the offering or delivery of the Notes as contemplated by the Final
Offering Memorandum.
26
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 7, 8 and 9 hereof shall survive such termination and remain in full force and
effect.
SECTION 11. DEFAULT BY ONE OR MORE OF THE INITIAL PURCHASERS. If one or
more of the Initial Purchasers shall fail at the Closing Time to purchase the
Notes which it or they are obligated to purchase under this Agreement (the
"Defaulted Securities"), the remaining Initial Purchaser shall have the right,
within 24 hours thereafter, to make arrangements for the non-defaulting Initial
Purchaser, or any other Initial Purchasers, to purchase all, but not less than
all, of the Defaulted Securities in such amounts as may be agreed upon and upon
the terms herein set forth; if, however, the Initial Purchasers shall not have
completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
aggregate principal amount of the Notes to be purchased hereunder, the
non-defaulting Initial Purchaser shall be obligated to purchase the full amount
thereof, or
(b) if the number of Defaulted Securities exceeds 10% of the aggregate
principal amount of the Notes to be purchased hereunder, this Agreement shall
terminate without liability on the part of the non-defaulting Initial Purchaser.
No action taken pursuant to this Section shall relieve any defaulting
Initial Purchaser from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement, either the Initial Purchasers or the Issuer shall have the right
to postpone the Closing Time for a period not exceeding seven days in order to
effect any required changes in the Offering Memorandum or in any other documents
or arrangements. As used herein, the term "Initial Purchaser" includes any
person substituted for an Initial Purchaser under this Section 11.
SECTION 12. NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the Initial
Purchasers shall be directed to ▇▇▇▇▇▇▇ ▇▇▇▇▇ International Limited at Ropemaker
Place, ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, facsimile no. (▇▇▇) ▇▇▇ ▇▇▇-▇▇▇▇,
attention of ▇▇▇▇▇▇▇ ▇▇▇▇▇, with a copy to ▇▇▇▇▇▇▇ ▇▇▇▇▇, Legal Department,
facsimile no. (▇▇▇) ▇▇▇ ▇▇▇-▇▇▇▇ and to Salomon Brothers International Limited
at Victoria Plaza, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, facsimile no.
(+44) 171-721 2000, attention of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇; notices to the Issuer, the
Guarantor or Holdings shall be directed to Polska Telefonia Cyfrowa Sp. z o.o.,
Al. ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇-▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, facsimile no (▇▇▇) ▇▇-▇▇▇-▇▇▇▇
attention of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Chief Financial Officer.
SECTION 13. PARTIES. This Agreement shall inure to the benefit of and be
binding upon the Initial Purchasers, the Issuer, the Guarantor and Holdings, and
their respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Initial Purchasers, the Issuer, the Guarantor, Holdings and their
respective successors and the controlling persons and officers and directors
referred to in Sections 7 and 8 hereof and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Initial Purchasers and the Issuer, the Guarantor,
Holdings and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Notes from any
Initial Purchaser shall be deemed to be a successor by reason merely of such
purchase.
SECTION 14. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED
TIMES OF DAY REFER TO LONDON TIME.
27
SECTION 15. AGENT FOR SERVICE; SUBMISSION TO JURISDICTION; WAIVER OF
IMMUNITIES. Each of the Issuer, the Guarantor and Holdings agrees that any
suit, action or proceeding against the Issuer, the Guarantor or Holdings,
brought by any Initial Purchaser, the directors, officers, employees and agents
of any Initial Purchaser, or by any person who controls any Initial Purchaser,
arising out of or based upon this Agreement or the transactions contemplated
hereby may be instituted in any state or federal court in the Borough of
Manhattan, City of New York, New York, and waives any objection which it may nor
or hereafter have to the laying of venue of any such proceeding, and irrevocably
submits to the non-exclusive jurisdiction of such courts in any suit, action or
proceeding. Each of the Issuer, the Guarantor and Holdings has appointed CT
Corporation System, with offices on the date hereof at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇, as its authorized agent (the "Agent"), upon whom process may be
served in any suit, action or proceeding arising out of or based upon this
Agreement or the transactions contemplated herein which may be instituted in any
state or federal court in the Borough of Manhattan, City of New York, New York,
by any Initial Purchaser, the directors, officers, employees and agents of any
Initial Purchaser, or by any person, if any, who controls any Initial Purchaser,
and expressly accepts the non-exclusive jurisdiction of any such court in
respect of any such suit, action or proceeding. Each of the Issuer, the
Guarantor and Holdings hereby represents and warrants that the Agent has
accepted such appointment and has agreed to act as said agent for service of
process, and each of the Issuer, the Guarantor and Holdings agree to take any
and all action, including the filing of any and all documents that may be
necessary to continue such appointment in full force and effect as aforesaid.
Service of process upon the Agent shall be deemed, in every respect, effective
service of process upon the Issuer, the Guarantor and Holdings. Notwithstanding
the foregoing, any action involving the Guarantor arising out of or based upon
this Agreement may be instituted by any Initial Purchaser, the directors,
officers, employees and agents of any Initial Purchaser, or by any person who
controls any Initial Purchaser, in any court of competent jurisdiction in The
Netherlands, the Republic of Poland or in Luxembourg.
To the extent that the either of the Issuer, the Guarantor or Holdings has
or hereafter may acquire any immunity from jurisdiction of any court or from any
legal process (whether through service of notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) with respect to itself
or its property, it hereby irrevocably waives such immunity in respect of its
obligations under the above-referenced documents.
SECTION 16. JUDGMENT CURRENCY. Each of the Issuer, the Guarantor and
Holdings agrees to indemnify each Initial Purchaser, the officers, directors and
agents of such Initial Purchaser and each person, if any, who controls such
Initial Purchaser within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act against any loss incurred by any of them as a
result of any judgment or order being given or made for any amount due under
this Agreement and such judgment or order being expressed and paid in a currency
(the "Judgment Currency") other than United States dollars and as a result of
any variation as between (i) the rate of exchange at which the United States
dollar amount is converted into the Judgment Currency for the purpose of such
judgment or order and (ii) the spot rate of exchange in the City of New York at
which any such person on the date of payment of such judgment or order is able
to purchase United States dollars with the amount of the Judgment Currency
actually received by such person. The foregoing indemnity shall continue in full
force and effect notwithstanding any such judgment or order as aforesaid. The
term "spot rate of exchange" shall include any premiums and costs of exchange
payable in connection with the purchase of, or conversion into, United States
dollars.
SECTION 17. COUNTERPARTS. This Agreement may be executed in one or more
counterparts and when a counterpart has been executed by each party, all such
counterparts taken together shall constitute one and the same agreement.
SECTION 18. EFFECT OF HEADINGS. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
28
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Issuer a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement between
the Initial Purchasers, the Issuer, the Guarantor and Holdings in accordance
with its terms.
Very truly yours,
PTC INTERNATIONAL FINANCE II S.A.,
By:
--------------------------------------
Name:
Title:
PTC INTERNATIONAL FINANCE (HOLDING)
B.V.,
By:
--------------------------------------
Name:
Title:
POLSKA TELEFONIA CYFROWA SP. Z O.O.,
By:
--------------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
By:
--------------------------------------
Name:
Title:
SALOMON BROTHERS INTERNATIONAL LIMITED
By:
--------------------------------------
Name:
Title:
29
SCHEDULE A
PRINCIPAL PRINCIPAL
AMOUNT OF AMOUNT OF
NAME OF INITIAL PURCHASER EURO NOTES DOLLAR NOTES
------------------------- ------------ ------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ International................................. E165,000,000 $ 82,500,000
Salomon Brothers International Limited...................... 135,000,000 67,500,000
------------ ------------
Total....................................................... E300,000,000 $150,000,000
============ ============
30
SCHEDULE B
PTC INTERNATIONAL FINANCE II S.A.
*300,000,000 11 1/4% SENIOR SUBORDINATED NOTES DUE 2009
$150,000,000 11 1/4% SENIOR SUBORDINATED NOTES DUE 2009
1. The purchase price to be paid by the Initial Purchasers for the Notes
shall be 98.528% of the principal amount thereof. The Guarantor will pay the
Initial Purchasers *8,250,000 in commission in connection with the sale of the
Euro Notes and $4,125,000 in commission in connection with the sale of the
Dollar Notes.
2. The interest rate on the Euro Notes shall be 11 1/4% per annum;
interest will be payable semi-annually on June 1 and December 1. The interest
rate on the Dollar Notes shall be 11 1/4% per annum; interest will be payable
semi-annually on June 1 and December 1.
3. The Notes will mature on December 1, 2009.
4. The redemption price supplied in the Offering Memorandum (and
correspondingly in the Indentures) with respect to redemptions of Notes from the
proceeds of Equity Offerings shall be 111 1/4% of the principal amount thereof.
5. The redemption prices supplied in the Offering Memorandum (and
correspondingly in the Indentures) relating to the Notes shall be:
REDEMPTION
YEAR PRICE
---- ----------
2004........................................................ 105.625%
2005........................................................ 103.750%
2006........................................................ 101.875%
2007(and thereafter)........................................ 100.000%
31
SCHEDULE B
PTC INTERNATIONAL FINANCE II S.A.
*300,000,000 11 1/4% SENIOR SUBORDINATED NOTES DUE 2009
$150,000,000 11 1/4% SENIOR SUBORDINATED NOTES DUE 2009
1. The purchase price to be paid by the Initial Purchasers for the Notes
shall be 98.528% of the principal amount thereof. The Guarantor will pay the
Initial Purchasers *8,250,000 in commission in connection with the sale of the
Euro Notes and $4,125,000 in commission in connection with the sale of the
Dollar Notes.
2. The interest rate on the Euro Notes shall be 11 1/4% per annum;
interest will be payable semi-annually on June 1 and December 1. The interest
rate on the Dollar Notes shall be 11 1/4% per annum; interest will be payable
semi-annually on June 1 and December 1.
3. The Notes will mature on December 1, 2009.
4. The redemption price supplied in the Offering Memorandum (and
correspondingly in the Indentures) with respect to redemptions of Notes from the
proceeds of Equity Offerings shall be 111 1/4% of the principal amount thereof.
5. The redemption prices supplied in the Offering Memorandum (and
correspondingly in the Indentures) relating to the Notes shall be:
REDEMPTION
YEAR PRICE
---- ----------
2004........................................................ 105.625%
2005........................................................ 103.750%
2006........................................................ 101.875%
2007(and thereafter)........................................ 100.000%
