Exhibit 10.1
Execution Copy
AMENDMENT NO. 1 TO THE
SENIOR SECURED DEBT FACILITY AGREEMENT
dated 9 November 2001
between
HUNGAROTEL TAVKOZLESI KONCESSZIOS RESZVENYTARSASAG
RABA-COM TAVKOZLESI KONCESSZIOS RESZVENYTARSASAG
PAPA ES TERSEGE TAVKOZLESI KONCESSZIOS RESZVENYTARSASAG
KNC KELET-NOGRAD COM TAVKOZLESI KONCESSZIOS RESZVENYTARSASAG
as Borrowers
and
HTCC TANACSADO RESZVENYTARSASAG
HUNGARIAN TELEPHONE AND CABLE CORP.
as Guarantors
and
CITIBANK INTERNATIONAL PLC
as Facility Agent
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in respect of the
EUR 130,000,000 Senior Secured Debt Facility Agreement
dated 11 April 2000
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Ormai es Tarsai
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TRANSNATIONAL LEGAL SERVICES
THIS AMENDMENT NO. 1 TO THE SENIOR SECURED DEBT FACILITY AGREEMENT (the
"Agreement") is dated 9 November 2001 and is made between:
(1) HUNGAROTEL TAVKOZLESI KONCESSZIOS RESZVENYTARSASAG acting in its
capacity as borrower;
(2) RABA-COM TAVKOZLESI KONCESSZIOS RESZVENYTARSASAG acting in its capacity
as borrower;
(3) PAPA ES TERSEGE TAVKOZLESI KONCESSZIOS RESZVENYTARSASAG acting in its
capacity as borrower;
(4) KNC KELET-NOGRAD COM TAVKOZLESI KONCESSZIOS RESZVENYTARSASAG acting in
its capacity as borrower,
(the parties detailed at (1) to (4) inclusive above each a "Borrower"
and together, the "Borrowers");
(5) HTCC TANACSADO RESZVENYTARSASAG acting in its capacity as guarantor;
(6) HUNGARIAN TELEPHONE AND CABLE CORP. acting in its capacity as
guarantor;
(the parties detailed at (5) and (6) inclusive above each a "Guarantor"
and together, the "Guarantors"); and
(7) CITIBANK INTERNATIONAL PLC acting in its capacity as facility agent
(the "Facility Agent"),
(the parties detailed at (1) to (7) inclusive above each a "Party" and
together, the "Parties").
BACKGROUND
(A) By the Senior Secured Debt Facility Agreement (as defined below)
certain financial institutions made available to the Borrowers a
facility in an amount of one hundred and thirty million euro (EUR
130,000,000) on the terms and conditions provided for in such Senior
Secured Debt Facility Agreement and for the purposes mentioned in such
Senior Secured Debt Facility Agreement.
(B) A breach of the financial covenant provided for under paragraph (d) of
Clause 20.1 (Financial Conditions of the Group) and Schedule 10 (EBITDA
Variance Table) of the Senior Secured Debt Facility Agreement has
occurred.
(C) Pursuant to the Waiver Request No. 1 Letter (as defined below), the
Lenders have been requested to give their consent to the amendment of
certain provisions of the Senior Secured Debt Facility Agreement, on
the basis as provided for in this Agreement.
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IT IS AGREED as follows:
1. Definitions and Interpretations
1.1 Definitions
In this Agreement (including the Background above):
"Additional Finance Documents" means this Agreement, the Fee No. 2
Letter and the Waiver Request No. 1 Letter.
"Effective Date" means the date of this Agreement.
"Escrow Accounts" means, at any time, the escrow accounts denominated
in euro or HUF, as appropriate, opened and maintained at such time by
the Facility Agent for the purposes of this Agreement.
"Fee No. 2 Letter" means the letter dated on or about the date of this
Agreement from the Facility Agent to the Obligors, setting out the
waiver fee, in the amount previously agreed with the Obligors, arising
in relation to the execution of this Agreement and referred to in
Clause 7 (Payment of Fees, Costs and Expenses).
"Senior Secured Debt Facility Agreement" means the senior secured debt
facility agreement dated 11 April 2000 made between: (1) Hungarotel
Tavkozlesi Koncesszios Reszvenytarsasag as Borrower; (2) Raba-Com
Tavkozlesi Koncesszios Reszvenytarsasag as Borrower; (3) Papa es
Tersege Tavkozlesi Koncesszios Reszvenytarsasag as Borrower; (4) KNC
Kelet-Nograd Tavkozlesi Koncesszios Reszvenytarsasag as Borrower; (5)
Hungarian Telephone and Cable Corp. as Guarantor; (6) HTCC Tanacsado
Reszvenytarsasag as Guarantor; (7) Citibank N.A. and Westdeutsche
Landesbank Girozentrale as Arrangers; (8) Citibank International plc as
Facility Agent, (9) Citibank Rt. as Security Agent; and (10) the
financial institutions defined therein as Original Lenders.
"Waiver Request No. 1 Letter" means the letter dated 25 October 2001
signed for and on behalf of Hungarian Telephone and Cable Corp.,
pursuant to which the Lenders have, inter alia, been requested to give
their consent to the amendment to the Senior Secured Debt Facility
Agreement on the basis provided for in this Agreement.
1.2 Defined terms in the Senior Secured Debt Facility Agreement
In this Agreement (including the Background above) all terms and
expressions shall, in the absence of contrary intention or unless
otherwise defined in this Agreement, have the meanings attributed to
such terms and expressions in the Senior Secured Debt Facility
Agreement (including by reference to any other document), mutatis
mutandis.
1.3 Incorporation of provisions in the Senior Secured Debt Facility
Agreement The provisions of Clause 1.2 (Construction), Clause 30
(Notices), Clause 31 (Calculations and Certificates), Clause 32
(Partial Invalidity), Clause 33 (Remedies and Waivers), Clause 34
(Amendments and Waivers), Clause 35 (Counterparts), Clause 36
(Governing Law), and Clause 37 (Enforcement) of the Senior Secured Debt
Facility Agreement shall be deemed to be incorporated into and apply to
this Agreement, mutatis mutandis, with each reference to "this
Agreement" in the above provisions of the Senior Secured Debt Facility
Agreement to be constructed as a reference to this Agreement.
2. The Effective Date
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This Agreement shall come into full force and effect on the date of
this Agreement.
3. Amendments to the Senior Secured Debt Facility Agreement
With effect from the Effective Date, the Parties agree to amend the
Senior Secured Debt Facility Agreement as follows:
(a) by the addition of the following new definitions to Clause 1.1
(Definitions), as follows:
'"Amendment No. 1 to the Senior Secured Debt Facility
Agreement" means the amendment agreement dated 9 November 2001
made between: (1) Hungarotel Tavkozlesi Koncesszios
Reszvenytarsasag as Borrower; (2) Raba-COM Tavkozlesi
Koncesszios Reszvenytarsasag as Borrower; (3) Papa es Tersege
Tavkozlesi Koncesszios Reszvenytarsasag Borrower; (4) KNC
Kelet-Nograd COM Tavkozlesi Koncesszios Reszvenytarsasag as
Borrower; (5) HTCC Tanacsado Reszvenytarsasag as Guarantor;
(6) Hungarian Telephone and Cable Corp. as Guarantor; and (7)
Citibank International plc acting in its capacity as Facility
Agent.
"Fee No. 2 Letter" means the letter dated on or about the date
of the Amendment No. 1 to the Senior Secured Debt Facility
Agreement from the Facility Agent to the Obligors, setting out
the waiver fee, in the amount previously agreed with the
Obligors, arising in relation to the execution of the
Amendment No. 1 to the Senior Secured Debt Facility Agreement
and referred to in Clause 7 (Payment of Fees, Costs and
Expenses) of the Amendment No. 1 to the Senior Secured Debt
Facility Agreement.
"Trigger No. 2 Date" means the first date on which, for the
then two (2) preceding financial quarter years of the Group,
the ratio, calculated on the basis of the financial statements
set out in the relevant 10K Document and/or 10Q Documents in
respect of such financial quarter years, of the aggregate
amount of all indebtedness (including, for the purpose of
these calculations, the amount of twenty five million dollars
(USD 25,000,000) being the amount of principal outstanding
under the Notes, subject to adjustment in the event of any
prepayment of the Notes) of each member of the Group
(excluding any indebtedness arising between members of the
Group) to EBITDA (calculated, in each case, on the basis of
the four (4) previous financial quarter years) was less than
three point five to one (3.5:1).
"Waiver No. 1 Costs" means the aggregate of all fees, costs
and expenses of the Obligors (including without limitation,
the amounts payable by the Obligors pursuant to the Fee No. 2
Letter and the fees, costs and expenses of external legal
counsel of the Finance Parties and of the Obligors), directly
related to the matters provided for in the Amendment No. 1 to
the Senior Secured Debt Facility Agreement.
"Waiver Request No. 1 Letter" means the letter dated 25
October 2001 signed for and on behalf of Hungarian Telephone
and Cable Corp., pursuant to which the Lenders have, inter
alia, been requested to give their consent to the amendment to
the Senior Secured Debt Facility Agreement on the basis
provided for in this Agreement.
(b) by the replacement of the text "...Schedule 10: EBITDA
Variance Table..." in the contents pages with "...Schedule 10:
[intentionally left blank]...";
(c) by the amendment of the definition of "Senior Finance
Documents" in Clause 1.1 (Definitions) in the Senior Secured
Debt Facility Agreement, as follows:
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'"Senior Finance Documents" means, at any time, each of this
Agreement, as amended pursuant to the Amendment No. 1 to the
Senior Secured Debt Facility Agreement, the Amendment No. 1 to
the Senior Secured Debt Facility Agreement, each Fee Letter,
the Fee No. 2 Letter, each Hedging Document, each Security
Agreement, the Subordination and Trust Deed, the Waiver No. 1
Request Letter and any other document, notice, instrument or
agreement entered into or delivered pursuant to any of the
foregoing and any other document, notice, instrument or
agreement at such time designated as such in writing jointly
by the Facility Agent, the Security Agent and the Obligors,
and "Senior Finance Document" means any and each such
document, notice, instrument or agreement.';
(d) by the amendment of the definition of "Trigger Date" in Clause
1.1 (Definitions), by the replacement of the text "three point
five to one (3.5:1)..." with ...two point five to one
(2.5:1)...";
(e) by the amendment of paragraph (a) of Clause 9.6
(Adjustments to Margin), as follows:
(i) by the replacement of the text "...one point six zero
per cent. per annum (1.60% p.a.)..." in sub-paragraph
(i) with "...one point seven five per cent. per annum
(1.75% p.a.)...";
(ii) by the replacement of the text "...one point three
five per cent. per annum (1.35% p.a.)..." in
sub-paragraph (ii) with "...one point five zero per
cent. per annum (1.50% p.a.)..."; and
(iii) by the replacement of the text "...one point one five
per cent. per annum (1.15% p.a.)..." in sub-paragraph
(iii) with "...one point three zero per cent. per
annum (1.30% p.a.)...";
(f) by amending paragraph (c) of Clause 20.1 (Financial condition
of the Group), as follows:
(i) by replacing the text "...30 June 2001..." in the
first paragraph with "...30 June 2002..."; and
(ii) by adding to the end of the definition of "B" the
following text "... Provided that for the purposes of
determining the EBITDA for the Group as at 30 June
2002 and as at 30 September 2002 only, the effect on
the EBITDA of the Group of the Waiver No. 1 Costs are
to be excluded...";
(g) by the amendment of paragraph (d) of Clause 20.1 (Financial
condition of the Group), as follows:
"(d) the EBITDA of the Group for the preceding four (4)
quarter financial years of Hungarian Telephone and
Cable Corp. taken in aggregate but excluding the
effect on the EBITDA of the Group of the Waiver No. 1
Costs, expressed in forint, shall not, as at 31
December 2001, be less than the value of seven
billion seven hundred and twenty five million forints
(HUF 7,725,000,000)."
(h) by the replacement of the text "...Trigger Date..." in Clause
22.22 (Ownership of Hungarian Telephone and Cable Corp.) and
in Clause 22.23 (Technical and Management Support) with
"...Trigger No. 2 Date..."; and
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(i) by the amendment of Schedule 10 (EBITDA Variance Table) as
follows:
"SCHEDULE 10 [intentionally left blank]".
5. Cancellation and Possible Reinstatement of Facility B
(a) The Borrowers jointly hereby unconditionally and irrevocably agree to
cancel an amount of one million euro (EUR 1,000,000) of Facility B with
immediate effect and the Facility Agent, acting on the instructions of
the Majority Lenders, confirms its agreement to such cancellation and
to:
(i) the fifteen (15) Business Days' prior notice; and
(ii) the minimum amount of two million five hundred thousand euro
(EUR 2,500,000),
provided for in paragraph (b) of Clause 8.3 (Voluntary cancellation) of
the Senior Secured Debt Facility Agreement, being reduced accordingly.
(b) The Borrowers jointly hereby unconditionally and irrevocably agree to
cancel an amount of four million euro (EUR 4,000,000) of Facility B
with effect from and including 22 April 2002 and the Facility Agent,
acting on the instructions of the Majority Lenders, confirms its
agreement to such cancellation being effective on such date.
(c) The Parties agree that the Obligors may at any time after 31 May 2002,
by written notice to the Facility Agent, request that up to five
million euro (EUR 5,000,000) of Facility B (having been cancelled
pursuant to paragraphs (a) and (b) of this Clause 5) be reinstated in
whole or in part (and if in part in integral multiples of one million
euro (EUR 1,000,000)), with the earliest date on which such requested
reinstatement is to become effective to be 30 June 2002. Each of the
Obligors accepts and agrees that each of the Lenders shall have an
absolute and unrestricted discretion when deciding whether or not to
agree to such requested reinstatement in respect of such Lender's
participation in the proposed reinstated amount of Facility B (and on
the terms and conditions for any such reinstatement), with any such
decision made by the Lenders and communicated to the Obligors in
writing by the Facility Agent, to be final Provided that any Lender
that elects to participate in the proposed reinstatement of Facility B
may make a reinstated Facility B Commitment in an amount greater than
the Facility B Commitment it undertook under the terms of the Senior
Secured Debt Facility Agreement, as set out in Schedule 1 (The Original
Lenders) of the Senior Secured Debt Facility Agreement, such that those
Lenders that do elect to reinstate Facility B may make an aggregate
reinstated Facility B Commitment of up to five million euro (EUR
5,000,000).
6. Undertakings of the Obligors
(a) Each of the Obligors unconditionally and irrevocably agrees and
undertakes, on the basis of joint and several liability, to procure and
ensure that on or before 21 November 2001, an amount in euro of five
million eight hundred and seventy two thousand two hundred and sixty
three euro (EUR 5,872,263) (comprising three million three hundred and
sixty five thousand three hundred and eighty five euro (EUR 3,365,385)
of principal and two million five hundred and six thousand eight
hundred and seventy eight euro (EUR 2,506,878) of interest) and an
amount in forint of seven hundred and fifty seven million two hundred
and ninety eight thousand one hundred and forty six forints (HUF
757,298,146) (comprising four hundred and twenty million one hundred
and ninety four thousand two hundred and thirty one forints (HUF
420,194,231) of principal and three hundred and thirty seven million
one hundred and three thousand nine hundred and fifteen
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forints (HUF 337,103,915) of interest) which are the euro and forint
amounts respectively that are due to be paid by the Borrowers to the
Finance Parties on 31 December 2001 in respect of principal and on 28
December 2001 in respect of interest, arising pursuant to the Senior
Secured Debt Facility Agreement, shall be deposited into Escrow
Account(s) and hereby unconditionally and irrevocably instructs and
directs the Facility Agent to forward such amount to the relevant
Finance Parties on 31 December 2001, in accordance with and as provided
for in the Senior Secured Debt Facility Agreement. Each of the Obligors
unconditionally and irrevocably agrees and undertakes, on the basis of
joint and several liability, to procure and ensure that: (A) on no
later than the date of this Agreement, adequate funds are held by the
Obligors in bank accounts held with Postabank es Takarekpenztar Rt. to
fund the deposits provided for above; and (B) irrevocable bank transfer
instructions are given to Postabank es Takarekpenztar Rt. for the
transfer of the amounts provided for above to the relevant Escrow
Accounts.
(b) Each of the Obligors unconditionally and irrevocably agrees and
undertakes, on the basis of joint and several liability, to procure and
ensure that during the period between 1 May 2002 and 12 May 2002
(inclusive), an amount in euro of four million two hundred and six
thousand seven hundred and thirty one euro (EUR 4,206,731) and an
amount in forint of five hundred and twenty five million two hundred
and forty two thousand seven hundred and eighty nine forints (HUF
525,242,789) which are the euro and forint amounts respectively that
are due to be paid by the Borrowers to the Finance Parties on 30 June
2002 in respect of principal arising pursuant to the Senior Secured
Debt Facility Agreement, shall be deposited into Escrow Account(s),
together with the related amounts of interest due to be paid by the
Borrowers to the Finance Parties on 30 June 2002 and hereby
unconditionally and irrevocably instructs and directs the Facility
Agent to forward such principal and interest amounts to the relevant
Finance Parties on 30 June 2002, in accordance with and as provided for
in the Senior Secured Debt Facility Agreement.
(c) Each of the Obligors unconditionally and irrevocably agrees and
undertakes, on the basis of joint and several liability, to procure and
ensure that on or before 21 November 2001, an amount in euro of four
million two hundred and six thousand seven hundred and thirty one euro
(EUR 4,206,731) and an amount in forint of five hundred and twenty five
million two hundred and forty two thousand seven hundred and eighty
nine forints (HUF 525,242,789), being five per cent (5%) of each of the
Facility A Euro Commitment and of the Facility A HUF Commitment
respectively on the date of the signing of the Senior Secured Debt
Facility Agreement, shall be deposited into Escrow Account(s) and
hereby unconditionally and irrevocably instructs and directs the
Facility Agent to forward such amount to the relevant Finance Parties
on 31 December 2001 as being a voluntary prepayment by the Borrowers
made pursuant to Clause 8.4 (Voluntary prepayment of Facility A Loans)
of the Senior Secured Debt Facility Agreement
Provided that it is expressly agreed that, notwithstanding paragraph
(c) of Clause 8.4 (Voluntary prepayment of Facility A Loans), the
prepayment to be made by the Obligors pursuant to this paragraph (c)
shall be applied so as to satisfy the obligations of the Borrowers
under Clause 7.1 (Repayment of Facility A Loans) of the Senior Secured
Debt Facility Agreement in inverse order of maturity such that if the
obligation to make the prepayment pursuant to this paragraph (c) is
duly discharged then the payment of principal to be made by the
Obligors pursuant to Clause 7.1 (Repayment of Facility A Loans) of the
Senior Secured Debt Facility Agreement on 31 December 2007 shall become
five per cent. (5%) of the Total Facility A Loan outstanding
immediately following the making of the Facility A Loans, rather than
the percentage of ten per cent. (10%) which was the original percentage
provided for in Clause 7.1 (Repayment of Facility A Loans) of the
Senior Secured Debt Facility Agreement (subject to any future
adjustment(s) made in respect of any further prepayments made pursuant
to Clause 8.4 (Voluntary prepayment of Facility A Loans))
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Provided Further that it is agreed that the prepayment contemplated by
this paragraph (c) shall be deemed to discharge the obligations of the
Obligors to make a mandatory prepayment using fifty per cent. (50%) of
the Group's Excess Cashflow arising in the 2001 financial year, as
contemplated by Clause 8.2 (Mandatory prepayment) of the Senior Secured
Debt Facility Agreement.
The Facility Agent, acting on the instructions of the Majority Lenders,
confirms its agreement to the prepayment contemplated by this paragraph
(c) and to:
(i) the twenty (20) Business Days' prior notice; and
(ii) to the prepayment by the Obligors being in an amount which is
not an integral multiple of one million euro (EUR 1,000,000),
provided for in paragraph (a) of Clause 8.4 (Voluntary prepayment of
Facility A Loans) of the Senior Secured Debt Facility Agreement, being
reduced or amended accordingly.
Each of the Obligors unconditionally and irrevocably agrees and
undertakes, on the basis of joint and several liability, to procure and
ensure that: (A) on no later than the date of this Agreement, adequate
funds are held by the Obligors in bank accounts held with Postabank es
Takarekpenztar Rt. to fund the deposits provided for in this paragraph
(c) above; and (B) irrevocable bank transfer instructions are given to
Postabank es Takarekpenztar Rt. for the transfer of the amounts
provided for above to the relevant Escrow Accounts.
(d) Each of the Obligors unconditionally and irrevocably agrees and
undertakes, on the basis of joint and several liability, to procure and
ensure that on 22 April 2002, being the last day of the Interest Period
in respect of the Facility B Loan currently outstanding, such Facility
B Loan is repaid in full, together with all accrued interest on that
Facility B Loan Provided that in agreeing and undertaking to repay such
Facility B Loan as set out above, the Obligors have done so in reliance
on paragraph (c) of Clause 5 (Cancellation and Possible Reinstatement
of Facility B).
(e) The Parties have agreed that all interest arising on monies deposited
into the Escrow Accounts shall be for the account of the Obligors and
shall, in the absence of an Event of Default which is continuing, be
paid to the Obligors on the same date as the relevant monies are
forwarded to the relevant Finance Parties.
7. Payment of Fees, Costs and Expenses
Each of the Obligors hereby unconditionally and irrevocably agrees and
undertakes, on the basis of joint and several liability, to procure and
ensure that payment is made in full to the Facility Agent (in its
capacity acting for and on behalf of each of the Lenders) (or to such
person(s) as the Facility Agent shall require) of the waiver fee
arising from and pursuant to the Fee No. 2 Letter and the fees, costs
and expenses previously agreed with the Obligors, including without
limitation those of the external legal counsel to the Finance Parties.
8. Repeating Representations
Each Obligor makes the representations and warranties set out in Clause
18 (Representations) of the Senior Secured Debt Facility Agreement to
each Finance Party on the date of this Agreement by reference to the
facts and circumstances existing on the date of this Agreement, other
than those representations and warranties set out in paragraphs (a) to
(c) inclusive of Clause 18.10 (No misleading information), in Clause
18.24 (Corporate chart) and in paragraph (a) of Clause 18.26
(Subordinated Financial Indebtedness) which shall be made by reference
to the facts and circumstances existing on the date of the Senior
Secured Debt Facility Agreement and each
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Obligor acknowledges that the Facility Agent, acting on behalf of each
of the Finance Parties, has entered into this Agreement in reliance of
those representations and warranties Provided that there shall be no
misrepresentation by any Obligor(s) in respect of those matters
expressly provided for in this Agreement or otherwise notified to the
Facility Agent prior to the date of this Agreement Provided Further
that insofar as such representations and warranties relate to the
Senior Secured Debt Facility Agreement, they shall be deemed to be made
with reference to the Senior Secured Debt Facility Agreement, as
amended pursuant to this Agreement.
9. Continuation of the Senior Secured Debt Facility Agreement
The Senior Secured Debt Facility Agreement shall continue in full force
and effect, save as expressly amended or deemed to have been amended by
this Agreement, and nothing in this Agreement shall constitute a
failure by any Finance Party to exercise, nor any delay by any Finance
Party in exercising, any right or remedy under the Senior Secured Debt
Facility Agreement.
AS WITNESS the hands of the duly authorised representatives of the Parties the
day and year first before written.
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The Obligors
HUNGAROTEL TAVKOZLESI KONCESSZIOS RESZVENYTARSASAG - as Obligor
Signature(s):
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Raba-COM Tavkozlesi Koncesszios Reszvenytarsasag - as Obligor
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Papa es Tersege Koncesszios Reszvenytarsasag - as Obligor
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KNC Kelet-Nograd COM Tavkozlesi Koncesszios Reszvenytarsasag - as Obligor
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HUNGARIAN TELEPHONE AND CABLE CORP. - as Obligor
Signature(s):
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HTCC TANACSADO RESZVENYTARSASAG - as Obligor
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The Facility Agent
CITIBANK INTERNATIONAL PLC - as Facility Agent (acting on behalf of each of the
Finance Parties)
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