EXHIBIT 10.1
CREDIT AGREEMENT
between
ROL HOLDINGS LIMITED
as borrower
and
ZAO CITIBANK
as lender
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Dated as of September 25, 2002
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TABLE OF CONTENTS
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SECTION 1. Amount and Terms of Credit.............................................................................1
1.01. The Commitment.....................................................................................1
1.02. Minimum Amount of Each Borrowing...................................................................1
1.03. Notice of Borrowing................................................................................1
1.04. Disbursement of Funds..............................................................................1
1.05. Evidence of Obligation.............................................................................1
1.06. Interest...........................................................................................2
1.07. Increased Costs, Illegality, etc...................................................................2
SECTION 2. Commitment Commission; Fees; Reductions of Commitment..................................................3
2.01. Commitment Commission; Fees........................................................................3
2.02. Termination of Commitment..........................................................................4
SECTION 3. Prepayments; Payments; Taxes...........................................................................4
3.01. Voluntary Prepayments..............................................................................4
3.02. Mandatory Repayments...............................................................................4
3.03. Method and Place of Payment........................................................................5
3.04. Net Payments.......................................................................................5
SECTION 4. Conditions Precedent to Credit Events on the Initial Borrowing Date....................................6
4.01. Effective Date.....................................................................................6
4.02. Officer's Certificate..............................................................................6
4.03. Opinions of Counsel................................................................................6
4.04. Corporate Documents; Proceedings; etc..............................................................6
4.05. Consummation of the Acquisition....................................................................7
4.06. Adverse Change, Approvals..........................................................................7
4.07. Litigation.........................................................................................7
4.08. Interest Pledge Agreements.........................................................................7
4.09. Buyer Receivables Agreement........................................................................7
4.10. Subordination Agreement............................................................................7
4.11. Parent Guaranty....................................................................................8
4.12. Buyer Surety Agreement.............................................................................8
4.13. Sovintel Receivables Agreement.....................................................................8
4.14. Sovintel Surety Agreement..........................................................................8
4.15. Financial Statements; Pro Forma Financial Statements; Projections..................................8
4.16. Business...........................................................................................8
4.17. Solvency Certificate...............................................................................8
4.18. Fees, etc..........................................................................................9
4.19. Additional Loan Agreement..........................................................................9
SECTION 5. Conditions Precedent to All Credit Events..............................................................9
5.01. Default; Representations and Warranties............................................................9
5.02. Notice of Borrowing................................................................................9
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SECTION 6. Representations, Warranties and Agreements.............................................................9
6.01. Organizational Status..............................................................................9
6.02. Power and Authority...............................................................................10
6.03. No Violation......................................................................................10
6.04. Approvals.........................................................................................10
6.05. Financial Statements; Financial Condition; Undisclosed Liabilities; Projections...................10
6.06. Litigation........................................................................................12
6.07. True and Complete Disclosure......................................................................12
6.08. Use of Proceeds...................................................................................12
6.09. Tax Returns and Payments..........................................................................12
6.10. Interest Pledge Agreements........................................................................13
6.11. Properties........................................................................................13
6.12. Compliance with Statutes, etc.....................................................................13
6.13. Permits...........................................................................................13
6.14. Environmental Matters.............................................................................14
6.15. Labor Relations...................................................................................14
6.16. Intellectual Property, etc........................................................................14
6.17. Licenses..........................................................................................15
6.18. Indebtedness......................................................................................15
6.19. Representations and Warranties in Other Credit Documents..........................................15
SECTION 7. Affirmative Covenants.................................................................................15
7.01. Information Covenants.............................................................................15
7.02. Books, Records and Inspections....................................................................17
7.03. Maintenance of Property; Insurance................................................................18
7.04. Existence; Franchises.............................................................................18
7.05. Compliance with Statutes, etc.....................................................................18
7.06. Compliance with Environmental Laws................................................................18
7.07. End of Fiscal Years; Fiscal Quarters..............................................................18
7.08. Performance of Obligations........................................................................18
7.09. Payment of Taxes..................................................................................19
7.10. Use of Proceeds...................................................................................19
7.11. Corporate Separateness............................................................................19
SECTION 8. Negative Covenants....................................................................................19
8.01. Liens.............................................................................................19
8.02. Consolidation, Merger, Purchase or Sale of Assets, etc............................................20
8.03. Indebtedness......................................................................................21
8.04. Advances, Investments and Loans...................................................................22
8.05. Transactions with Affiliates......................................................................22
8.06. Capital Expenditures..............................................................................23
8.07. Consolidated Debt Service Ratio...................................................................23
8.08. Gearing Ratio.....................................................................................23
8.09. Modification of Memorandum and Articles of Association and Certain Other Agreements,
etc........................................................................................23
8.10. Limitation on Certain Restrictions on Subsidiaries................................................23
8.11. Business; etc.....................................................................................24
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SECTION 9. Events of Default.....................................................................................24
9.01. Payments..........................................................................................24
9.02. Representations, etc..............................................................................24
9.03. Covenants.........................................................................................24
9.04. Default Under Other Agreements....................................................................24
9.05. Bankruptcy, etc...................................................................................25
9.06. Security Documents................................................................................25
9.07. Guaranties........................................................................................25
9.08. Judgments.........................................................................................25
9.09. Material Adverse Change...........................................................................26
SECTION 10. Definitions and Accounting Terms.....................................................................26
10.01. Defined Terms....................................................................................26
SECTION 11. Miscellaneous........................................................................................35
11.01. Payment of Expenses, etc.........................................................................35
11.02. Right of Setoff..................................................................................36
11.03. Notices..........................................................................................36
11.04. Benefit of Agreement; Assignments................................................................36
11.05. No Waiver; Remedies Cumulative...................................................................37
11.06. Calculations; Computations.......................................................................37
11.07. GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL...........................37
11.08. Counterparts.....................................................................................39
11.09. Effectiveness....................................................................................39
11.10. Headings Descriptive.............................................................................39
11.11. Amendment or Waiver; etc.........................................................................39
11.12. Survival.........................................................................................39
11.13. Domicile of Loans................................................................................39
11.14. Register.........................................................................................40
11.15. Confidentiality..................................................................................40
11.16. Languages........................................................................................40
SCHEDULE I Telecom Licenses
SCHEDULE II Existing Indebtedness
SCHEDULE III Existing Liens
SCHEDULE IV Addresses
SCHEDULE 6.01 Notification on Status of Buyer
EXHIBITS
EXHIBIT A Notice of Borrowing
EXHIBIT B Opinions of Russian, New York and Republic of Cyprus Counsels
(Omitted)
EXHIBIT C Officers' Certificate
EXHIBIT D Interest Pledge Agreement
EXHIBIT E Buyer Receivables Agreement
EXHIBIT F Subordination Agreement
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EXHIBIT G Parent Guaranty
EXHIBIT H Buyer Surety Agreement
EXHIBIT I Sovintel Receivables Agreement
EXHIBIT J Sovintel Surety Agreement
EXHIBIT K Solvency Certificate
EXHIBIT L Compliance Certificate
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THIS CREDIT AGREEMENT, dated as of September 25, 2002, is by and
between ROL HOLDINGS LIMITED, a limited liability company organized and existing
under the laws of the Republic of Cyprus, as borrower (the "Borrower"), and ZAO
CITIBANK, a commercial bank organized and existing under the laws of the Russian
Federation, as lender (in such capacity, the "Lender"). All capitalized terms
used herein and defined in Section 10 are used herein as therein defined.
WITNESSETH:
WHEREAS, subject to and upon the terms and conditions set forth herein,
the Lender is willing to make available to the Borrower the credit facility
provided for herein;
NOW, THEREFORE, IT IS AGREED:
SECTION 1. Amount and Terms of Credit.
1.01. The Commitment. Subject to and upon the terms and conditions set
forth herein, the Lender will make one or several advances (each such advance a
"Loan" and, collectively, the "Loans") to the Borrower, which Loans (i) shall be
incurred pursuant to a single or multiple drawings during the Commitment Period,
(ii) shall be denominated and disbursed in Dollars, and (iii) shall be made by
the Lender in an aggregate principal amount not to exceed $30,000,000 (Thirty
Million Dollars) (the "Commitment"). Once repaid, Loans incurred hereunder may
not be reborrowed.
1.02. Minimum Amount of Each Borrowing. The aggregate principal amount
of each Loan shall not be less than the Minimum Borrowing Amount.
1.03. Notice of Borrowing. Whenever the Borrower desires to incur a
Loan hereunder, it shall give the Lender at least five Business Days' prior
notice of each Loan to be incurred hereunder, provided that (in each case) any
such notice shall be deemed to have been given on a certain day only if given
before 1:00 PM (Moscow time) on such day. Each such notice (each a "Notice of
Borrowing"), except as otherwise expressly provided in Section 1.07, shall be
irrevocable and shall be in writing in the form of Exhibit A, appropriately
completed to specify: (i) the aggregate principal amount of the Loan to be
incurred pursuant to such Borrowing and (ii) the date of such Borrowing (which
shall be a Business Day).
1.04. Disbursement of Funds. Subject to and upon the terms and
conditions set forth herein, on the date specified in the Notice of Borrowing,
the Lender will make available the amount of the Loan requested to be made on
such date to the bank account of the Borrower set out immediately below; or to
such other account as may be specified in writing by the Borrower.
ROL Holdings Limited
Account # 4510-4870-6641
ABN AMRO Bank
New York
ABA # 000-000-000
SWIFT: ABNAUS33
1.05. Evidence of Obligation. The Borrower's obligation to pay the
principal of, and interest on, the Loans made by the Lender shall be evidenced
in the records of the
Lender, as may be maintained by the Lender in its ordinary course of business.
The Lender will note in its internal records the amount of each Loan and each
payment made in respect thereof.
1.06. Interest. (a) The Borrower agrees to pay interest in respect of
the unpaid principal amount of each Loan from the date of the Borrowing thereof
until the maturity thereof (whether by acceleration or otherwise) at a rate per
annum which shall be equal to the sum of the Applicable Margin plus LIBOR, each
as in effect from time to time.
(b) Overdue principal and, to the extent permitted by law,
overdue interest in respect of each Loan shall, in each case, bear interest at a
rate per annum equal to the rate which is 3% in excess of the highest rate then
borne by any Loan, and all other overdue amounts payable hereunder and under any
other Credit Document shall bear interest at a rate per annum equal to the rate
which is 3% in excess of the rate applicable to Loans from time to time.
Interest that accrues under this Section 1.06(b) shall be payable on demand.
(c) Accrued (and theretofore unpaid) interest shall be payable
in respect of each Loan (x) quarterly in arrears on each Quarterly Interest
Payment Date, (y) on the date of any repayment or prepayment in full of all
outstanding Loans, and (z) at maturity (whether by acceleration or otherwise)
and, after such maturity, on demand.
1.07. Increased Costs, Illegality, etc. (a) In the event that the
Lender shall have reasonably determined (which determination shall, absent
manifest error, be final and conclusive and binding upon all parties hereto) on
any Interest Determination Date that, by reason of any changes arising after the
date of this Agreement affecting the London interbank market for Dollar
deposits, adequate and fair means do not exist for ascertaining the applicable
interest rate on the basis provided for in the definition of LIBOR, then the
Lender shall promptly give notice to the Borrower of such determination and all
Loans (whether then outstanding, initially being made, or made thereafter) shall
accrue interest at the rate equal to the percentage rate per annum reasonably
determined by the Lender to be that which expresses as a percentage rate per
annum the cost to it of obtaining deposits during a relevant period from
whatever sources it may reasonably select, plus the Applicable Margin, until
such time as the Lender notifies the Borrower that the circumstances giving rise
to such notice by the Lender no longer exist.
(b) (i) If the Lender reasonably determines that after
the Effective Date the introduction of, or any change in, any applicable law or
governmental rule, regulation, order, directive or request (whether or not
having the force of law) concerning capital adequacy, or any change in
interpretation or administration thereof by any Governmental Authority, central
bank or comparable agency, or compliance therewith by the Lender (or its
applicable lending office) will have the effect of increasing the amount of
capital required or expected to be maintained by the Lender or any corporation
controlling the Lender based on the existence of the Commitment hereunder or the
Lender's obligations hereunder, then the Borrower agrees to pay to the Lender,
upon its written demand therefor, such additional amounts as shall be required
to compensate the Lender or such other corporation for the increased cost to the
Lender or such other corporation or the reduction in the rate of return to the
Lender or such other corporation as a result of such increase of capital.
(ii) At any time after the Effective Date that the
Lender shall incur increased costs or reductions in the amounts received or
receivable hereunder with respect to
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the Lender's agreement to make or its making, funding or maintaining any Loan
(other than relating to Taxes which are governed by Section 3.04) because of any
change since the Effective Date in any applicable law or governmental rule,
regulation, order or request (whether or not having the force of law) or in the
interpretation or administration thereof and including the introduction of any
new law or governmental rule, regulation, order or request, such as, but not
limited to, a change in official reserve requirements with respect to the Loans,
the Borrower shall fully reimburse the Lender, upon its first written demand
therefor, for such increased costs or reductions.
(iii) In determining the additional amounts payable
pursuant to this Section 1.07(b), the Lender will act reasonably and in good
faith and will use averaging and attribution methods which are reasonable,
provided that the Lender's determination of compensation owing under this
Section 1.07(b) shall, absent manifest error, be final and conclusive and
binding on the Borrower. The Lender, upon determining that any additional
amounts will be payable pursuant to this Section 1.07(b), will give prompt
written notice thereof to the Borrower, which notice shall show in reasonable
detail the basis for calculation of such additional amounts and contain a
certification by the Lender that, in its reasonable opinion, it has exercised
reasonable efforts to minimize or eliminate such increase.
(c) If, at any time, the making or continuance by the Lender
or its applicable lending office of any Loan has been made (x) unlawful by any
law or governmental rule, regulation or order or (y) impossible by compliance by
the Lender in good faith with any governmental request (whether or not having
force of law), then the Lender shall promptly provide written notice to such
effect to the Borrower. The Lender shall promptly make a determination whether
in its reasonable opinion it would be practicable to change the jurisdiction of
the applicable lending office such that the relevant Loans shall remain
outstanding. If the Lender and the Borrower are unable to agree upon a change in
jurisdiction within 60 days of the date of such notice from the Lender, then the
Borrower shall promptly prepay the Loans in their entirety, without premium or
penalty, upon the expiration of such 60 day period, unless by law the Lender is
required to immediately terminate the Loans.
SECTION 2. Commitment Commission; Fees; Reductions of Commitment.
2.01. Commitment Commission; Fees. (a) The Borrower agrees to pay to
the Lender a commission for opening and maintaining a loan account (the
"Arrangement Fee") equal to 1.00% of the total amount of the Commitment (i.e.,
$30.0 million), (i) of which $30,000 shall be earned by, and payable to, the
Lender within 40 calendar days after the Borrower accepts the Lender's offer of
the Commitment; (ii) $150,000 shall be earned by, and payable to, the Lender
within five calendar days after the Effective Date; and (c) the remaining
$120,000 shall be due and payable by the Borrower on the Initial Borrowing Date,
provided that if the Initial Borrowing Date does not occur, then such amount
shall not be due and payable by the Borrower.
(b) The Borrower agrees to pay to the Lender a commitment
commission (the "Commitment Commission") for the period commencing on the
Effective Date (and including such date) and ending on the Commitment Period
Termination Date (and including such date) (or such earlier date on which the
Commitment has been terminated or the Unutilized Commitment has been reduced to
zero) computed at a rate per annum equal to 1.50% of the Unutilized Commitment
as in effect from time to time. Accrued Commitment
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Commission shall be due and payable quarterly in arrears on each Quarterly
Interest Payment Date and on the date upon which the Commitment is terminated.
(c) The Borrower may by written notice to the Lender (which
notice shall be irrevocable), reduce the amount of the Commitment, including to
zero; provided, however, that such a reduction in the amount of the Commitment
shall not affect the calculation of the Arrangement Fee.
2.02. Termination of Commitment. (a) The Commitment shall terminate in
its entirety (x) on the Commitment Period Termination Date and (y) at any time
after the execution of the Acquisition Agreement and prior to the consummation
of the transactions contemplated by the Acquisition Agreement in the event that
the Acquisition Agreement is terminated.
(b) In addition to any other mandatory commitment reductions
pursuant to this Section 2.02, the Commitment shall terminate in its entirety at
any time that the sum of all Borrowings hereunder equals the Commitment.
SECTION 3. Prepayments; Payments; Taxes.
3.01. Voluntary Prepayments. The Borrower shall have the right to
prepay the Loans in whole or in part on any Quarterly Interest Payment Date on
the following terms and conditions: (i) the Borrower shall give the Lender at
least ten Business Days prior written notice of its intent to prepay a Loan,
which notice (in each case) shall be irrevocable and shall specify the amount of
such prepayment, (ii) each partial prepayment of Loans pursuant to this Section
3.01 shall be in an aggregate principal amount of at least $500,000 or an
integral multiple thereof or such lesser amount as is then outstanding; and
(iii) each prepayment pursuant to this Section 3.01 in respect of any Loans made
pursuant to a Borrowing shall be applied pro rata among such Loans and among the
remaining Scheduled Repayments thereof. In the event the Borrower elects to
prepay a Loan (or any portion thereof) pursuant to this Section 3.01, the
Borrower shall pay to the Lender, upon the Lender's first demand, such amounts
as may be necessary to compensate the Lender for any loss, cost or expense that
the Lender may reasonably incur as a result of such prepayment (including,
without limitation, cost of liquidation or redeployment of deposits or other
funds acquired by the Lender to fund and maintain the Loan), as certified by the
Lender to the Borrower in writing.
3.02. Mandatory Repayments. (a) The Borrower shall pay in four equal
quarterly installments the aggregate principal amount of the Loans outstanding
on the Commitment Period Termination Date (each such repayment, as the same may
be reduced as provided in Section 3.01, a "Scheduled Repayment") beginning with
the date that is 12 months after the Commitment Period Termination Date.
(b) In addition to any other mandatory repayments pursuant to
this Section 3.02, (i) all then outstanding Loans shall be repaid in full on the
Maturity Date and (ii) unless the Lender otherwise agrees in writing (such
agreement not to be unreasonably withheld), all then outstanding Loans shall be
repaid in full on the date that is three (3) Business Days after the date on
which the Parent becomes aware or should have become aware that a Change of
Control has occurred.
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3.03. Method and Place of Payment. Except as otherwise specifically
provided herein, all payments under this Agreement shall be made to the Lender
not later than 1:00 pm (Moscow time) on the date when due and shall be made in
Dollars in immediately available funds. Whenever any payment to be made
hereunder shall be stated to be due on a day which is not a Business Day, the
due date thereof shall be extended to the next succeeding Business Day and, with
respect to payments of principal and interest, interest shall be payable at the
applicable rate during such extension.
3.04. Net Payments.
(a) All payments made by the Borrower hereunder will be made
without setoff, counterclaim or other defense. All such payments will be made
free and clear of, and without deduction or withholding for, any present or
future taxes, levies, imposts, duties, fees, assessments or other charges of
whatever nature now or hereafter imposed by any jurisdiction or by any political
subdivision or taxing authority thereof or therein with respect to such payments
(but excluding, except as provided in the next succeeding sentence, any tax
imposed on or measured by the net income or net profits of the Lender pursuant
to the laws of the jurisdiction in which it is organized or the jurisdiction in
which the principal office or applicable lending office of the Lender is located
or any subdivision thereof or therein) and all interest, penalties, expenses or
similar liabilities with respect to such non-excluded taxes, levies, imposts,
duties, fees, assessments or other charges (all such non-excluded taxes, levies,
imposts, duties, fees, assessments or other charges being referred to
collectively as "Taxes"). If any Taxes are so levied or imposed, the Borrower
agrees to pay the full amount of such Taxes, and such additional amounts as may
be necessary so that every payment of all amounts due under this Agreement,
after withholding or deduction for or on account of any Taxes, will not be less
than the amount provided for herein. The Borrower will furnish to the Lender
within 45 days after the date the payment of any Taxes is due pursuant to
applicable law certified copies of tax receipts evidencing such payment by the
Borrower. The Borrower agrees to indemnify and hold harmless the Lender, and
reimburse the Lender upon its written request (within 30 days of such request),
for the amount of any Taxes so levied or imposed and paid by the Lender whether
or not such Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority, provided such written request is made pursuant to a
certificate setting forth the amount of such indemnification and the basis for
the calculation thereof in reasonable detail, which certificate shall be
delivered to the Borrower and shall be conclusive absent manifest error.
(b) Refund Claim. If, in the reasonable opinion of the
Borrower, any amount has been paid pursuant to subsection (a) of this Section or
Section 11.01 with respect to Taxes or Other Taxes which are not correctly or
legally asserted, then if and to the extent the Lender, in its sole discretion,
considers it reasonable to do so, the Lender will cooperate with the Borrower
(such cooperation to be without expense or liability to the Lender) in seeking
to obtain a refund of such amount; provided, that, the Lender shall not be
required to cooperate in seeking to obtain a refund unless (i) if the Lender
requests in writing, the Borrower has delivered to such Lender an opinion of
independent tax counsel selected by the Borrower and reasonably acceptable to
the Lender to the effect that there is a reasonable possibility of success, (ii)
the Lender has received from the Borrower satisfactory indemnification for any
liability, loss, cost or expense arising out of relating to the effort to obtain
such refund, and (iii) the Borrower shall have indemnified the Lender for the
payment of such Taxes or Other Taxes pursuant to subsection (a) or Section 11.01
or shall have made
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the Lender whole and "grossed up" the Lender pursuant to subsection (a) of this
Section or Section 11.01 with respect to Taxes or Other Taxes. The Lender will
promptly (within 45 days) notify the Borrower of the assertion of any liability
by any taxing authority with respect to Taxes or Other Taxes and any payment by
the Lender of such Taxes or Other Taxes; provided that the failure to give such
notice shall not relieve the Borrower of its obligations hereunder to make
indemnification for any such liability except to the extent that the Borrower
has been prejudiced by such failure and except that the Borrower shall not be
liable for penalties or interest accruing after such 45 day period until such
time as it receives the notice contemplated above, after which time it shall be
liable for interest and penalties accruing after such receipt.
(c) Tax Refunds. If the Lender shall receive a credit or
refund in respect of an overpayment of Taxes or Other Taxes from a taxing
authority with respect to, and actually resulting from, an amount of Taxes or
Other Taxes actually paid to or on behalf of such Lender by the Borrower (a "Tax
Refund"), then such Lender shall promptly notify the Borrower of such Tax Refund
and shall promptly pay to the Borrower the amount so received, credited or
refunded (including any interest and/or penalties credited to or received by the
Lender) with respect to the Tax Refund. In any event, the amount of any Tax
Refund payable by the Lender to the Borrower pursuant to this subsection (c)
shall not exceed the actual amount of cash refunded to, or credits received and
usable by, the Lender from a taxing authority.
(d) Maintenance of Tax Exemptions. The Lender, including an
assignee who becomes a Lender, agrees that it will take all reasonable actions
by all usual means to maintain all exemptions from withholding taxes, if any,
available to it (whether available by treaty, existing administrative waiver, or
otherwise).
SECTION 4. Conditions Precedent to Credit Events on the Initial
Borrowing Date. The obligation of the Lender to make Loans on the Initial
Borrowing Date is subject, at the time of the making of such Loans, to the
fulfillment of the following conditions to the satisfaction of the Lender, or
waiver thereof by the Lender in writing:
4.01. Effective Date. On or prior to the Initial Borrowing Date, the
Effective Date shall have occurred.
4.02. Officer's Certificate. On the Initial Borrowing Date, the Lender
shall have received a certificate, dated the Initial Borrowing Date and signed
on behalf of the Borrower by the Chairman of the Board, the Chief Executive
Officer, the President or any Vice President of the Borrower, certifying on
behalf of the Borrower that all of the conditions in Sections 4.05, 4.06(b),
4.07, 4.14, and 5.01 have been satisfied on such date.
4.03. Opinions of Counsel. On the Initial Borrowing Date, the Lender
shall have received from Xxxxxxxxxx & Xxxxx LLP, Russian and New York counsel to
the Borrower, and Xx. X. Xxxxxxxxxxxxxx & Co., special Republic of Cyprus
counsel to the Borrower, opinions addressed to Citibank, N.A., and its branches
and subsidiaries, and dated the Initial Borrowing Date substantially in the form
of Exhibit B.
4.04. Corporate Documents; Proceedings; etc. On the Initial Borrowing
Date, the Lender shall have received a certificate from each Credit Party, dated
the Initial Borrowing Date, signed by the Chairman of the Board, the Chief
Executive Officer, the President, any Vice President or other duly authorized
officer of such Credit Party, and
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attested to by the Secretary or any Assistant Secretary (or other duly
authorized officer) of such Credit Party, in the form of Exhibit C with
appropriate insertions, together with copies of the certificate or articles of
incorporation and by-laws (or equivalent organizational documents), as
applicable, of such Credit Party and the resolutions of such Credit Party
referred to in such certificate, and each of the foregoing shall be in form and
substance reasonably acceptable to the Lender.
4.05. Consummation of the Acquisition. Prior to the Initial Borrowing
Date, the closing under the Acquisition Agreement shall have occurred and the
Buyer and SFMT-CIS, Inc. collectively shall have validly acquired a 50% interest
in Sovintel all in accordance with applicable law and the terms and conditions
of the Acquisition Agreement.
4.06. Adverse Change, Approvals.
(a) On or prior to the Initial Borrowing Date, nothing shall
have occurred (and the Lender shall not have become aware of any facts or
conditions not previously known) which the Lender shall reasonably determine in
good faith has had, or could reasonably be expected to have, (i) a Material
Adverse Effect or (ii) a material adverse effect on the Transaction.
(b) On or prior to the Initial Borrowing Date, all necessary
governmental and third party approvals and/or consents in connection with the
Credit Documents shall have been obtained and remain in effect (except for those
approvals and consents that are not currently required).
4.07. Litigation. On the Initial Borrowing Date, no litigation by any
entity (private or governmental) shall be pending or, to the best knowledge of
the Borrower, threatened with respect to (i) this Agreement, any other Credit
Document or any other documentation executed in connection herewith; (ii) the
Transaction (provided that in the Lender's good faith determination such
litigation is reasonably likely to materially adversely affect the Transaction);
or (iii) which the Lender shall reasonably determine has had, or could
reasonably be expected to have, a Material Adverse Effect.
4.08. Interest Pledge Agreements. On the Initial Borrowing Date, each
of SFMT Rusnet and Sovinet shall have duly authorized, executed and delivered an
Interest Pledge Agreement substantially in the form of Exhibit D (as amended,
modified or supplemented from time to time, and together, the "Interest Pledge
Agreements") and shall have delivered to the Lender, as Pledgee thereunder, all
of the Pledge Agreement Collateral, if any, referred to therein and then owned
by each of SFMT Rusnet and Sovinet, along with evidence that all other actions
necessary or, in the reasonable opinion of the Lender, desirable, to perfect the
security interests purported to be created by the Interest Pledge Agreements
have been taken and the Interest Pledge Agreements shall be in full force and
effect.
4.09. Buyer Receivables Agreement. On the Initial Borrowing Date, the
Buyer shall have duly authorized, executed and delivered the Conditional
Assignment of Receivables Agreement in the form of Exhibit E (as amended,
modified or supplemented from time to time, the "Buyer Receivables Agreement")
setting forth the terms and conditions of the conditional assignment of the
receivables of the Buyer as provided for therein.
4.10. Subordination Agreement. On the Initial Borrowing Date, each
Credit Party shall have duly authorized, executed and delivered the
Subordination Agreement in the
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form of Exhibit F (as amended, modified or supplemented from time to time, the
"Subordination Agreement") and the Subordination Agreement shall be in full
force and effect.
4.11. Parent Guaranty. On the Initial Borrowing Date, the Parent shall
have duly authorized, executed and delivered a Parent Guaranty in the form of
Exhibit G (as amended, modified or supplemented from time to time, the "Parent
Guaranty").
4.12. Buyer Surety Agreement. On the Initial Borrowing Date, the Buyer
shall have duly authorized, executed and delivered the Buyer Surety Agreement in
the form of Exhibit H (as amended, modified or supplemented from time to time,
the "Buyer Surety Agreement").
4.13. Sovintel Receivables Agreement. On the Initial Borrowing Date,
Sovintel shall have duly authorized, executed and delivered the Sovintel
Conditional Assignment of Receivables Agreement in the form of Exhibit I (as
amended, modified or supplemented from time to time, the "Sovintel Receivables
Agreement") setting forth the terms and conditions of the conditional assignment
of the receivables of Sovintel as provided for therein.
4.14. Sovintel Surety Agreement. On the Initial Borrowing Date,
Sovintel shall have duly authorized, executed and delivered the Sovintel Surety
Agreement in the form of Exhibit J (as amended, modified or supplemented from
time to time, the "Sovintel Surety Agreement").
4.15. Financial Statements; Pro Forma Financial Statements;
Projections.
(a) On or prior to the Initial Borrowing Date, the Lender
shall have received true and correct copies of the historical financial
statements and the Projections referred to in Sections 6.05(a) and (d), which
shall be in form and substance reasonably satisfactory to the Lender.
(b) No later than five Business Days prior to the Initial
Borrowing Date, the Lender shall have received true and correct copies of the
unaudited pro forma consolidated financial statements of the Parent (giving
effect to the Acquisition and any other significant transactions in the case of
said pro forma financial statements) (the "Pro Forma Financials") as at and for
the twelve months ended December 31, 2001, which Pro Forma Financials shall
demonstrate, to the Lender's reasonable satisfaction, that the covenants
described herein shall have been satisfied as of the Initial Borrowing Date and
will be satisfied on a pro forma basis after giving effect to the Transaction.
4.16. Business. Subject to the actions that may be taken pursuant to
Section 8.02, during the period from the Effective Date through the Initial
Borrowing Date, the business of each of the Credit Parties shall have been
operated in the ordinary course and there shall not have been sold any material
assets of such business other than in the ordinary course and consistent with
past practice.
4.17. Solvency Certificate. On the Initial Borrowing Date, the Lender
shall have received a solvency certificate from the chief financial officer or
Chief Accountant (as applicable) of each of the Credit Parties in the form of
Exhibit K.
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4.18. Fees, etc. On or prior to the Initial Borrowing Date, the
Borrower shall have paid to the Lender all costs, fees and expenses and other
compensation contemplated hereby payable to the Lender to the extent then due.
4.19. Additional Loan Agreement. On or prior to the Initial Borrowing
Date, the Borrower, the Buyer and the Lender shall execute a loan agreement (the
"Loan Agreement") under which the Borrower shall lend up to $30,000,000 (Thirty
Million Dollars) to the Buyer. The Loan Agreement shall contain language to the
effect that the Borrower and the Buyer may not assign, sell or otherwise
dispose in any manner of any of their respective rights, interests, benefits or
obligations under the Loan Agreement without the prior written consent of the
Lender.
SECTION 5. Conditions Precedent to All Credit Events. The obligation of
the Lender to make Loans (including Loans made on the Initial Borrowing Date),
is subject, at the time of each such Credit Event (except as hereinafter
indicated), to the fulfillment of the following conditions to the satisfaction
of the Lender, or waiver by the Lender in writing:
5.01. Default; Representations and Warranties. At the time of each such
Credit Event and also after giving effect thereto (i) there shall exist no
Default or Event of Default and (ii) all representations and warranties
contained herein and in the other Credit Documents shall be true and correct in
all material respects with the same effect as though such representations and
warranties had been made on the date of such Credit Event (it being understood
and agreed that any representation or warranty which by its terms is made as of
a specified date shall be required to be true and correct in all material
respects only as of such specified date).
5.02. Notice of Borrowing. Prior to the making of each Loan, the Lender
shall have received a Notice of Borrowing meeting the requirements of Section
1.03.
The acceptance of the benefits of each Credit Event shall constitute a
representation and warranty by the Borrower to the Lender that all of the
conditions specified in Section 4 (with respect to Credit Events on the Initial
Borrowing Date) and in this Section 5 (with respect to Credit Events on or after
the Initial Borrowing Date) and applicable to such Credit Event are satisfied as
of that time. All of the certificates, legal opinions and other documents and
papers referred to in Section 4 and in this Section 5, unless otherwise
specified, shall be delivered to the Lender and shall be in form and substance
satisfactory to the Lender.
SECTION 6. Representations, Warranties and Agreements. In order to
induce the Lender to enter into this Agreement and to make the Loans, the
Borrower makes the following representations, warranties and agreements, in each
case after giving effect to the Transaction, all of which shall survive the
execution and delivery of this Agreement and the making of the Loans, with the
occurrence of each Credit Event on or after the Initial Borrowing Date being
deemed to constitute a representation and warranty that the matters specified in
this Section 6 are true and correct in all material respects on and as of the
Initial Borrowing Date and on the date of each such other Credit Event (it being
understood and agreed that any representation or warranty which by its terms is
made as of a specified date shall be required to be true and correct in all
material respects only as of such specified date).
6.01. Organizational Status. Except as set forth on Schedule 6.01
hereto, each of the Credit Parties (i) is a duly organized and validly existing
corporation, partnership or limited liability company, as the case may be, in
good standing under the laws of the jurisdiction of its organization, (ii) has
the corporate, partnership or limited liability company
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power and authority, as the case may be, to own its property and assets and to
transact the business in which it is engaged and proposes to engage and (iii) is
duly qualified and is authorized to do business and is in good standing in each
jurisdiction where the ownership, leasing or operation of its property or the
conduct of its business requires such qualifications or authorizations except
for failures to be so qualified which, either individually or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect.
6.02. Power and Authority. Each of the Credit Parties has the
corporate, partnership or limited liability company power and authority, as the
case may be, to execute, deliver and perform the terms and provisions of each of
the Credit Documents to which it is party and has taken all necessary corporate,
partnership or limited liability company action, as the case may be, to
authorize the execution, delivery and performance by it of each such Credit
Document. Each of the Credit Parties has duly executed and delivered each of the
Credit Documents to which it is a party, and each of such Credit Documents
constitutes its legal, valid and binding obligation enforceable in accordance
with its terms, except to the extent that the enforceability thereof may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws generally affecting creditors' rights and by equitable
principles (regardless of whether enforcement is sought in equity or at law).
6.03. No Violation. Neither the execution, delivery or performance by
any Credit Party of any Credit Document to which it is a party, nor compliance
by it with the terms and provisions thereof, (i) will contravene any provision
of any law, statute, rule or regulation or any order, writ, injunction or decree
of any court or governmental instrumentality, (ii) will conflict with or result
in any breach of any of the terms, covenants, conditions or provisions of, or
constitute a default under, or result in the creation or imposition of (or the
obligation to create or impose) any Lien (except pursuant to the Security
Documents) upon any of the property or assets of any Credit Party or any of its
Subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust,
credit agreement or loan agreement, or any other material agreement, contract or
instrument, in each case to which any Credit Party or any of its Subsidiaries is
a party or by which it or any of its property or assets is bound or to which it
may be subject, or (iii) will violate any provision of the certificate or
articles of incorporation, certificate of formation, limited liability company
agreement or by-laws (or equivalent organizational documents), as applicable, of
any of the Credit Parties.
6.04. Approvals. No order, consent, approval, license, authorization or
validation of, or filing, recording or registration with (except for (x) those
that have otherwise been obtained or made on or prior to the Effective Date and
which remain in full force and effect on the Effective Date and (y) filings
which are necessary to perfect the security interests created under the Security
Documents, which filings will be made on or before the Initial Borrowing Date),
or exemption by, any Governmental Authority is required to be obtained or made
by, or on behalf of, any Credit Party to authorize, or is required to be
obtained or made by, or on behalf of, any Credit Party in connection with, (i)
the execution, delivery and performance of any Credit Document or (ii) the
legality, validity, binding effect or enforceability of any such Credit
Document.
6.05. Financial Statements; Financial Condition; Undisclosed
Liabilities; Projections.
(a) The audited consolidated balance sheets of the Parent and
its Subsidiaries for its fiscal years ended on December 31, 1999, December 31,
2000 and December 31, 2001, respectively, and the related audited consolidated
statements of income,
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cash flows and shareholders' equity of the Parent and its Subsidiaries for its
fiscal years ended on such dates, copies of which have been furnished to the
Lender prior to the Initial Borrowing Date, present fairly in all material
respects the consolidated financial position of the Parent and its Subsidiaries
at the dates of such balance sheets and the consolidated results of the
operations of the Parent and its Subsidiaries for the periods covered thereby.
All of the foregoing historical financial statements have been prepared in
accordance with U.S. GAAP consistently applied.
(b) On and as of the Initial Borrowing Date and after giving
effect to the Transaction and to all Indebtedness (including the Loans) being
incurred or assumed and Liens created by the Credit Parties in connection
therewith (i) the sum of the assets, at a fair valuation, of (x) the Parent on a
stand-alone basis, (y) the Parent and its Subsidiaries taken as a whole and (z)
the Borrower and its Subsidiaries taken as a whole will exceed their respective
debts, (ii) each (x) of the Parent on a stand-alone basis, (y) the Parent and
its Subsidiaries taken as a whole and (z) the Borrower and its Subsidiaries
taken as a whole have not incurred and do not intend to incur, and do not
believe that they will incur, debts beyond their respective ability to pay such
debts as such debts mature, and (iii) (x) the Parent on a stand-alone basis, (y)
the Parent and its Subsidiaries taken as a whole, and (z) the Borrower and its
Subsidiaries taken as a whole will have sufficient capital with which to conduct
their respective businesses. For purposes of this Section 6.05(b), "debt" means
any liability on a claim, and "claim" means (a) right to payment, whether or not
such a right is reduced to judgment, liquidated, unliquidated, fixed,
contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured,
or unsecured or (b) right to an equitable remedy for breach of performance if
such breach gives rise to a payment, whether or not such right to an equitable
remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed,
undisputed, secured or unsecured. The amount of contingent liabilities at any
time shall be computed as the amount that, in the light of all the facts and
circumstances existing at such time, represents the amount that can reasonably
be expected to become an actual or matured liability.
(c) Except as fully disclosed in the December 31, 2001
financial statements delivered pursuant to Section 6.05(a), there are as of the
Initial Borrowing Date no liabilities or obligations with respect to the Parent,
any of its Subsidiaries or any Credit Party of any nature whatsoever (whether
absolute, accrued, contingent or otherwise and whether or not due) which either
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect. As of the Initial Borrowing Date, the Borrower knows of
no reasonable basis for the assertion against it, any of its Subsidiaries or any
Credit Party of any liability or obligation of any nature whatsoever that is not
fully disclosed in the December 31, 2001 financial statements delivered pursuant
to Section 6.05(a) or referred to in the immediately preceding sentence which,
either individually or in the aggregate, could reasonably be expected to be
material to the Parent or any other Credit Party.
(d) The Projections delivered to the Lender prior to the
Initial Borrowing Date have been prepared in good faith and are based on
reasonable assumptions, and there are no statements or conclusions in the
Projections which are based upon or include information known to the Borrower to
be misleading in any material respect or which fail to take into account
material information known to the Borrower regarding the matters reported
therein. On the Initial Borrowing Date, the Borrower believes that the
Projections are reasonable and attainable, it being recognized by the Lender,
however, that projections as to future events are
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not to be viewed as facts and that the actual results during the period or
periods covered by the Projections may differ from the projected results.
(e) After giving effect to the Transaction (but for this
purpose assuming that the Transaction and the related financing had occurred
prior to December 31, 2001), since December 31, 2001, there has been no Material
Adverse Effect.
6.06. Litigation. There is no litigation by any entity (private or
governmental) pending or, to the best knowledge of the Borrower, threatened (i)
with respect to any Credit Document or (ii) with respect to the Transaction,
which is likely to materially adversely affect the Transaction; or (iii) that
could reasonably be expected, either individually or in the aggregate, to have a
Material Adverse Effect.
6.07. True and Complete Disclosure. All factual information (taken as a
whole) furnished by or on behalf of the Borrower or any other Credit Party in
writing to the Lender (including, without limitation, all information contained
in the Documents) for purposes of or in connection with this Agreement, the
other Credit Documents or any transaction contemplated herein or therein is, and
all other such factual information (taken as a whole) hereafter furnished by or
on behalf of the Borrower or any other Credit Party in writing to the Lender
will be, true and accurate in all material respects on the date as of which such
information is dated or certified and not incomplete by omitting to state any
fact necessary to make such information (taken as a whole) not misleading in any
material respect at such time in light of the circumstances under which such
information was provided.
6.08. Use of Proceeds. All proceeds of the Loans will be used by the
Borrower to finance the Acquisition and to pay the fees and expenses related to
the Transaction.
6.09. Tax Returns and Payments. Each of the Credit Parties has timely
filed or caused to be timely filed (taking into account applicable extensions of
time to file) with the appropriate taxing authority all federal, regional and
local income tax returns and all other material tax returns, domestic and
foreign (the "Returns"), and statements, forms and reports for taxes, required
to be filed by, or with respect to the income, properties or operations of, each
of the Credit Parties. The Returns accurately reflect in all material respects
all liability for taxes of the Credit Parties as a whole for the periods covered
thereby. Each of the Credit Parties has paid all taxes and assessments payable
by it which have become due, other than those that are being contested in good
faith and adequately disclosed and for which adequate reserves have been
established and fully provided for on the financial statements of the Credit
Parties in accordance with U.S. GAAP. There is no material action, suit,
proceeding or claim or, to the best knowledge of the Borrower or any of its
Subsidiaries, investigation now pending, and to the best knowledge of the
Borrower or any of its Subsidiaries, none of the foregoing have been threatened
by any authority regarding any taxes relating to any of the Credit Parties. None
of the Credit Parties has entered into an agreement or waiver or been requested
to enter into an agreement or waiver extending any statute of limitations
relating to the payment or collection of taxes of such Credit Parties, or is
aware of any circumstances that would cause the taxable years or other taxable
periods of any of the Credit Parties not to be subject to the normally
applicable statute of limitations. None of the Credit Parties has incurred, nor
will any of them incur, any material tax liability in connection with the
Transaction or any other transactions contemplated hereby that could reasonably
be expected to have a Material Adverse Effect (it being understood that the
representation contained in
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this sentence does not cover any future tax liabilities of the Credit Parties
arising as a result of the operation of their businesses in the ordinary course
of business).
6.10. Interest Pledge Agreements. Upon execution of the Interest Pledge
Agreements, the security interests created under the Interest Pledge Agreements
in favor of the Lender, as Pledgee, will constitute valid security interests in
the Pledge Agreement Collateral described in the Interest Pledge Agreements,
subject to no security interests of any other Person, and upon completion of the
filings and recordings required under applicable law, the security interests
created in the Pledge Agreement Collateral shall be perfected security interests
in favor of the Lender.
6.11. Properties. Each of the Credit Parties has good and indefeasible
title to all material properties owned by it, including all material property
reflected in the most recent historical balance sheets referred to in Section
6.05(a) (except as sold or otherwise disposed of since the date of such balance
sheet in the ordinary course of business or as permitted by the terms of this
Agreement), free and clear of all Liens, other than Permitted Liens.
6.12. Compliance with Statutes, etc. Each of the Credit Parties is in
compliance with all applicable statutes, regulations and orders of, and all
applicable restrictions imposed by, all governmental bodies, domestic or
foreign, in respect of the conduct of its business and the ownership of its
property (including, without limitation, applicable statutes, regulations,
orders and restrictions relating to environmental standards and controls) except
where non-compliance could not, either individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
6.13. Permits. Including the Telecom Licenses which are addressed in
Section 6.17, each of the Credit Parties has obtained and possesses all material
permits (including occupancy permits), certificates, licenses, consents or
authorizations of any Governmental Authority (each, a "Permit") and has made all
registrations or filings with or notices to any Governmental Authority necessary
for the lawful conduct of its business as presently conducted, or necessary for
the lawful ownership of its properties and assets or the operation of its
business as presently conducted except in each case where failure to obtain or
possess such Permits or to make any such registration, filing or notice could
not be expected to have a Material Adverse Effect. All such Permits are in full
force and effect, except any such Permit, which if not in full force and effect,
could not be expected to have a Material Adverse Effect. Each of the Credit
Parties is in compliance with all such Permits, except in each case where
noncompliance could not be expected to have a Material Adverse Effect. To the
best knowledge of the Borrower, each such Permit can be renewed in the ordinary
course of business by the respective Credit Party. To the extent the Borrower is
required to have any Permit under applicable law, any applications for the
renewal of any such Permit which are due prior to the Effective Date will be
timely made or filed by the respective Credit Party or its appropriate
Subsidiary prior to the Effective Date. No proceeding to modify, suspend,
revoke, withdraw, terminate or otherwise limit any such Permit is pending or, to
the best knowledge of the Borrower or any of its Subsidiaries, threatened and
neither the Borrower nor any of its Subsidiaries knows of any valid basis for
such a proceeding, including, without limitation, in connection with the
transactions contemplated hereby, that could be expected to result in a Material
Adverse Effect. No administrative or governmental action or proceeding has been
taken or, to the best knowledge of the Borrower or any of its Subsidiaries,
threatened, in connection with the expiration, continuance or renewal of any
such Permit and none of the Borrower or its Subsidiaries knows of any valid
basis for such a proceeding that could be expected to have a Material Adverse
Effect.
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6.14. Environmental Matters. (a) Each of the Credit Parties is in
material compliance with all applicable Environmental Laws and the material
requirements of any permits issued under such Environmental Laws, except to the
extent where such noncompliance or failure to fulfill any requirements could not
reasonably be expected to result in a Material Adverse Effect. There are no
pending or, to the best knowledge of the Borrower or any of its Subsidiaries,
threatened Environmental Claims against any of the Credit Parties or any Real
Property owned, leased or operated by the Credit Parties (including any such
claim arising out of the ownership, lease or operation by a Credit Party of any
Real Property formerly owned, leased or operated by a Credit Party but no longer
owned, leased or operated by such Credit Party) that could reasonably be
expected to have a Material Adverse Effect. To the best knowledge of the
Borrower or any of its Subsidiaries, there are no facts, circumstances,
conditions or occurrences with respect to the business or operations of any of
the Credit Parties, or any Real Property owned, leased or operated by any of the
Credit Parties (including any Real Property formerly owned, leased or operated
by a Credit Party but no longer owned, leased or operated by such Credit Party)
or any property adjoining or adjacent to any such Real Property that could be
expected (i) to form the basis of an Environmental Claim against any of the
Credit Parties or any Real Property owned, leased or operated by any of the
Credit Parties or any Subsidiaries of any Credit Party or (ii) to cause any Real
Property owned, leased or operated by any of the Credit Parties to be subject to
any restrictions on the ownership, lease, occupancy or transferability of such
Real Property by a Credit Party under any applicable Environmental Law, which
potential Environmental Claim or restriction could reasonably be expected to
result in a Material Adverse Effect.
(b) To the best knowledge of the Borrower or any of its
Subsidiaries, Hazardous Materials have not at any time been generated, used,
treated or stored on, or transported to or from, or Released on or from, any
Real Property owned, leased or operated by any of the Credit Parties, or any
property adjoining or adjacent to any Real Property, where such generation, use,
treatment, storage, transportation or Release has violated or could be
reasonably expected to give rise to a material Environmental Claim.
6.15. Labor Relations. None of the Credit Parties is engaged in any
unfair labor practice that could reasonably be expected, either individually or
in the aggregate, to have a Material Adverse Effect. There is (i) no unfair
labor practice complaint pending against any of the Credit Parties or, to the
best knowledge of the Borrower or any of its Subsidiaries, threatened against
any of them, before any Governmental Authority, and no grievance or arbitration
proceeding arising out of or under any collective bargaining agreement is now
pending against any of the Credit Parties or, to the best knowledge of the
Borrower or any of its Subsidiaries, threatened against any of them and (ii) no
strike, labor dispute, slowdown or stoppage pending against any of the Credit
Parties or, to the best knowledge of the Borrower or any of its Subsidiaries,
threatened against any of the Credit Parties, except (with respect to any matter
specified in clauses (i) or (ii) above, either individually or in the aggregate)
such as could not reasonably be expected to have a Material Adverse Effect.
6.16. Intellectual Property, etc. Each of the Credit Parties owns or
has the right to use all the patents, trademarks, permits, domain names, service
marks, trade names, copyrights, licenses, franchises, inventions, trade secrets,
proprietary information and know-how of any type, whether or not written
(including, but not limited to, rights in computer programs and databases) and
formulas, or rights with respect to the foregoing, and has obtained assignments
of all leases, licenses and other rights of whatever nature, necessary for
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the present conduct of its business, without any known conflict with the rights
of others which, or the failure to obtain which, as the case may be, could
reasonably be expected, either individually or in the aggregate, to have a
Material Adverse Effect.
6.17. Licenses. Schedule I sets forth a true and complete listing of
all telecommunication licenses (and their details, including the relevant
expiration dates) possessed by the Buyer and Sovintel as of the Effective Date
(the "Telecom Licenses"). Each of the Telecom Licenses is in full force and
effect. Any applications for the renewal of any of the Telecom Licenses, which
are due prior to the Effective Date, will be timely made or filed by either the
Buyer or Sovintel, as appropriate, prior to the Effective Date. No proceeding to
modify, suspend, revoke, withdraw, terminate or otherwise limit any of the
Telecom Licenses is pending or, to the best knowledge of the Borrower or any of
its Subsidiaries, threatened. No administrative or governmental action or
proceeding has been taken or, to the best knowledge of the Borrower or any of
its Subsidiaries, threatened, in connection with the expiration, continuance or
renewal of any of the Telecom Licenses and none of the Borrower, or any of its
Subsidiaries knows of any valid basis for such a proceeding.
6.18. Indebtedness. Schedule II sets forth a true and complete list of
all Indebtedness (including Contingent Obligations) of each of the Credit
Parties in excess of $100,000 as of the Initial Borrowing Date and which is to
remain outstanding after giving effect to the Transaction, in each case showing
the aggregate principal amount thereof and the name of the respective Credit
Party and any Credit Party (or borrower, if not a Credit Party) which directly
or indirectly guarantees such debt.
6.19. Representations and Warranties in Other Credit Documents. All
representations and warranties set forth in the other Credit Documents were true
and correct in all material respects at the time as of which such
representations and warranties were made (or deemed made) and shall be true and
correct in all material respects as of the Initial Borrowing Date as if such
representations or warranties were made on and as of such date (it being
understood and agreed that any such representation or warranty which by its
terms is made as of a specified date shall be true and correct in all material
respects as of such specified date).
SECTION 7. Affirmative Covenants. The Borrower hereby covenants and
agrees that on and after the Effective Date and until the Commitment has
terminated and the Loans (in each case together with interest thereon), Fees and
all other Obligations (other than indemnities described in Section 11.12 which
are not then due and payable) incurred hereunder and thereunder, are paid in
full:
7.01. Information Covenants. The Borrower will furnish, and/or will
cause to be furnished, to the Lender:
(a) Quarterly Financial Statements. Within 60 days after the
close of each of the first three quarterly accounting periods in each fiscal
year of the Parent (i) the consolidated balance sheet of the Parent and its
Subsidiaries as at the end of such quarterly accounting period and the related
consolidated statements of income and retained earnings and statement of cash
flows for such quarterly accounting period and for the elapsed portion of the
fiscal year ended with the last day of such quarterly accounting period, in each
case setting forth comparative figures for the corresponding quarterly
accounting period in the prior fiscal year, all of which shall be certified by
the chief financial officer of the Parent as
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fairly presenting in all material respects in accordance with U.S. GAAP the
financial condition of the Parent and its Subsidiaries as of the dates indicated
and the results of their operations for the periods indicated, subject to normal
year-end audit adjustments and the absence of footnotes, and (ii) management's
discussion and analysis of the important operational and financial developments
during such quarterly accounting period. Within 60 days after the close of each
quarterly accounting period in each fiscal year of the Buyer and Sovintel, the
balance sheet for each of the Buyer and Sovintel, as the case may be, as at the
end of such quarterly accounting period and the related consolidated statements
of income and retained earnings and statement of cash flows for such quarterly
accounting period and for the elapsed portion of the fiscal year ended with the
last day of such quarterly accounting period, in each case prepared in
accordance with Russian accounting standards (being the accounting standards
established by Russian law from time to time) and setting forth comparative
figures for the corresponding quarterly accounting period in the prior fiscal
year, all of which shall be certified by the Chief Accountant or General
Director of the Buyer or Sovintel, respectively, as fairly presenting in all
material respects in accordance with Russian accounting standards the financial
condition of the Buyer and Sovintel, respectively, as of the dates indicated and
the results of their operations for the periods indicated, subject to normal
year-end audit adjustments and the absence of footnotes.
(b) Annual Financial Statements. Within 120 days after the
close of each fiscal year of the Parent, (i) the consolidated balance sheet of
the Parent and its Subsidiaries as at the end of such fiscal year and the
related consolidated statements of income and retained earnings and statement of
cash flows for such fiscal year setting forth comparative figures for the
preceding fiscal year and certified without qualification or going concern
issues by Ernst & Young or other independent certified public accountants of
recognized worldwide standing reasonably acceptable to the Lender prepared in
accordance with U.S. GAAP, and (ii) management's discussion and analysis of the
important operational and financial developments during such fiscal year. Within
120 days after the close of each fiscal year of the Buyer and Sovintel, the
balance sheets for each of the Buyer and Sovintel, as the case may be, as at the
end of such fiscal year and the related statements of income and retained
earnings and statement of cash flows for such fiscal year prepared in accordance
with Russian accounting standards and setting forth comparative figures for the
preceding fiscal year and certified without qualification or going concern
issues by Ernst & Young or other independent certified public accountants of
recognized worldwide standing reasonably acceptable to the Lender prepared in
accordance with Russian generally accepted auditing standards.
(c) Management Letters. Promptly after the Borrower's or any
Credit Party's receipt thereof, a copy of any "management letter" received from
its certified public accountants and management's response thereto.
(d) Budgets. Upon approval by the Parent's Board of Directors,
but in any event not later than 90 days following the first day of each fiscal
year of the Parent, a consolidated budget in form reasonably satisfactory to the
Lender for such fiscal year prepared in detail and for the immediately
succeeding fiscal year setting forth, with appropriate discussion, the principal
assumptions upon which such budget is based.
(e) Officer's Certificates. At the time of the delivery of the
financial statements provided for in Sections 7.01(a), (b) and (c), a compliance
certificate from the chief financial officer of the Parent in the form of
Exhibit L certifying on behalf of the Credit Parties that, (x) to such officer's
best knowledge after due inquiry, no Default or Event of Default has occurred
and is continuing or, if any Default or Event of
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Default has occurred and is continuing, specifying the nature and extent
thereof, which certificate shall set forth in reasonable detail the calculations
required to establish whether the Credit Party was in compliance with the
provisions of Sections 8.02(iv), 8.03(ii), 8.04(iii), 8.04(v), and 8.06 through
8.08, inclusive, at the end of such fiscal quarter or year, as the case may be
and (y) (i) no changes are required to be made to Exhibit 3 of the Buyer
Receivables Agreement or the Sovintel Receivables Agreement and the Annexes of
the Interest Pledge Agreements, in each case so as to make the information set
forth therein accurate and complete as of the date of such certificate, or (ii)
to the extent that such information is no longer accurate and complete as of
such date, list in reasonable detail all information necessary to make all such
Exhibits and Annexes accurate and complete (at which time all such Exhibits and
Annexes, as the case may be, shall be deemed modified to reflect such
information).
(f) Notice of Default, Litigation and Material Adverse Effect.
Promptly, and in any event within three Business Days after any officer of the
Borrower or any of its Subsidiaries obtains knowledge thereof, notice of (i) the
occurrence of any event which constitutes a Default or an Event of Default, (ii)
any litigation or governmental investigation or proceeding pending against any
Credit Party (x) which, either individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect or (y) with respect to
any Credit Document, (iii) the occurrence of any event which constitutes a
default under, or causes the termination of, any material contract of any Credit
Party, including without limitation the Acquisition Agreement, to the extent
such default or termination could reasonably be expected to have a Material
Adverse Effect, provided that any termination of the Acquisition Agreement
(except upon its expiration after fulfillment of the parties' obligations
thereunder) shall be deemed to constitute a Material Adverse Effect, or (iv) any
other event, change or circumstance that has had, or could reasonably be
expected to have, a Material Adverse Effect.
(g) Other Reports and Filings. Promptly after the filing or
delivery thereof, copies of all financial information, proxy materials and
reports, if any, which a Credit Party shall publicly file with the appropriate
governmental body or any successor thereto or deliver to holders (or any
trustee, agent or other representative therefor) of its material Indebtedness
pursuant to the terms of the documentation governing such Indebtedness.
(h) Other Information. From time to time, such other
information or documents (financial or otherwise) with respect to any of the
Credit Parties as the Lender may reasonably request.
7.02. Books, Records and Inspections. The Borrower will, and will use
its best efforts to cause each of the Credit Parties to, keep proper books of
record and accounts in which full, true and correct entries in conformity with
U.S. GAAP and all requirements of law shall be made of all dealings and
transactions in relation to its business and activities. The Borrower will, and
will use its best efforts to cause, each of the Credit Parties to, permit
officers and designated representatives of the Lender to visit and inspect,
under guidance of officers of the respective Credit Party, any of the properties
of such Credit Party, and to examine the books of account of such Credit Party
and discuss the affairs, finances and accounts of such Credit Party with, and be
advised as to the same by, its and their officers and independent accountants,
all upon reasonable prior notice and at such reasonable times and intervals and
to such reasonable extent as the Lender may reasonably request. If a Default or
an Event of Default has occurred and is continuing or if access is necessary to
preserve or protect the Collateral as determined by the Lender, the Borrower
shall, and shall cause each
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of the Credit Parties to, provide such access to the Lender at all times and
without advance notice. Furthermore, so long as any Default or Event of Default
has occurred and is continuing, the Borrower shall, and shall cause each of the
Credit Parties to, provide the Lender with access to information in their
possession regarding their suppliers and customers.
7.03. Maintenance of Property; Insurance. The Borrower will, and will
use its best efforts to cause each of the Credit Parties to, (i) keep all
property necessary to their respective businesses in good working order and
condition, ordinary wear and tear excepted, (ii) maintain with financially sound
and reputable insurance companies insurance on all such property and against all
such risks as is consistent and in accordance with industry practice for
companies similarly situated owning similar properties and engaged in similar
businesses as the Credit Parties and (iii) furnish to the Lender, upon its
request therefor, full information as to the insurance carried.
7.04. Existence; Franchises. The Borrower will, and will use its best
efforts to cause each of the Credit Parties to, do or cause to be done, all
things necessary to preserve and keep in full force and effect its existence and
its material rights, franchises, licenses, permits, copyrights, trademarks and
patents; provided, however, that nothing in this Section 7.04 shall prevent (i)
sales of assets and other transactions by the Borrower or any of its
Subsidiaries not in contravention of Section 8.02 or (ii) the withdrawal by the
Borrower or any of its Subsidiaries of its qualification as a foreign
corporation, partnership or limited liability company, as the case may be, in
any jurisdiction if such withdrawal could not, either individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
7.05. Compliance with Statutes, etc. The Borrower will, and will use
its best efforts to cause each of the Credit Parties to, comply with all
applicable statutes, regulations and orders of, and all applicable restrictions
imposed by, all governmental bodies, domestic or foreign, in respect of the
conduct of its business and the ownership of its property (including applicable
statutes, regulations, orders and restrictions relating to environmental
standards and controls), except to the extent that in the Lender's reasonable
opinion such noncompliance is not likely to result in a Material Adverse Effect.
7.06. Compliance with Environmental Laws. The Borrower will comply, and
will use its best efforts to cause each of the Credit Parties to comply, in all
material respects with all Environmental Laws applicable to, or required by, the
ownership, lease or use of its Real Property now or hereafter owned, leased or
operated by any Credit Party, and will promptly pay or cause to be paid all
costs and expenses incurred in connection with such compliance, and will keep or
cause to be kept all such Real Property free and clear of any Liens imposed
pursuant to such Environmental Laws, except to the extent that in the Lender's
reasonable opinion such noncompliance, failure to pay or imposition of a Lien is
not likely to result in a Material Adverse Effect.
7.07. End of Fiscal Years; Fiscal Quarters. The Borrower will cause (i)
its, and each of its Subsidiaries', fiscal years to end on December 31 of each
year and (ii) its, and each of its Subsidiaries', fiscal quarters to end on
dates which are consistent with a fiscal year end as described above.
7.08. Performance of Obligations. The Borrower will, and will use its
best efforts to cause each of the Credit Parties to, perform all of their
obligations under the terms of each mortgage, indenture, security agreement,
loan agreement or credit agreement and each other agreement, contract or
instrument by which they are bound, except such non-
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performances as could not, either individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect.
7.09. Payment of Taxes. The Borrower will pay and discharge, and will
use its best efforts to cause each of the Credit Parties to pay and discharge,
all taxes, assessments and governmental charges or levies imposed upon it or any
other Credit Party or upon its or any other Credit Party's income or profits or
upon any properties belonging to it or to any other Credit Party, in each case
on a timely basis, and all lawful claims which, if unpaid, might become a Lien
or charge upon any properties of a Credit Party not otherwise permitted under
Section 8.01(i); provided that neither the Borrower nor any of the Credit
Parties shall be required to pay any such tax, assessment, charge, levy or claim
which is being contested in good faith and by proper proceedings if it has
maintained adequate reserves with respect thereto in accordance with U.S. GAAP.
7.10. Use of Proceeds. The Borrower will use the proceeds of the Loans
only as provided in Section 6.08.
7.11. Corporate Separateness. The Borrower will, and will use its best
efforts to cause each of its Subsidiaries and the Credit Parties to, satisfy
customary corporate, limited liability company or partnership formalities, as
the case may be, including the holding of regular board of directors' and
shareholders' meetings or action by directors or shareholders without a meeting
and the maintenance of corporate, limited liability company or partnership, as
the case may be, offices and records. The Borrower shall not, and shall use its
best efforts to ensure that each of its Subsidiaries and each Credit Party does
not, take any action or conduct its affairs in a manner which is likely to
result in the corporate limited liability company or partnership, as the case
may be, existence of the Borrower, any of its Subsidiaries or each Credit Party
being ignored, or in the assets and liabilities of the Borrower, any of its
Subsidiaries or each Credit Party being substantively consolidated with those of
the Borrower and its other Subsidiaries and any other Credit Party in a
bankruptcy, reorganization or other insolvency proceeding.
SECTION 8. Negative Covenants. The Borrower hereby covenants and agrees
that on and after the Effective Date and until the Commitment has terminated and
the Loans (together with interest thereon), Fees and all other Obligations
(other than any indemnities described in Section 11.12 which are not then due
and payable) incurred hereunder and thereunder, are paid in full (unless
otherwise agreed by the Lender in writing):
8.01. Liens. The Borrower will not, and will use its best efforts to
prevent any of the Credit Parties from, creating, incurring, assuming or
suffering to exist any Lien upon or with respect to its or their assets, whether
now owned or hereafter acquired, or selling any such property or assets subject
to an understanding or agreement, contingent or otherwise, to repurchase such
assets (including sales of accounts receivable with recourse to any Credit
Party), or assigning any right to receive income or permitting the filing of any
financing statement or any other similar notice of Lien under any recording,
notice or similar statute; provided that the provisions of this Section 8.01
shall not prevent the creation, incurrence, assumption or existence of the
following (Liens described below are herein referred to as "Permitted Liens"):
(i) inchoate Liens for taxes, assessments or governmental
charges or levies not yet due or Liens for taxes, assessments or governmental
charges or levies being
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contested in good faith and by appropriate proceedings for which adequate
reserves have been established in accordance with U.S. GAAP;
(ii) Liens in respect of property or assets of the Borrower or
any of the Credit Parties imposed by law, which were incurred in the ordinary
course of business and do not secure Indebtedness for borrowed money, such as
carriers', warehousemen's, materialmen's and mechanics' liens and other similar
Liens arising in the ordinary course of business, and (x) which do not in the
aggregate materially detract from the value of the Borrower's or other Credit
Party's property or assets or materially impair the use thereof in the operation
of the business of the Borrower or such Credit Party or (y) which are being
contested in good faith by appropriate proceedings, which proceedings have the
effect of preventing the forfeiture or sale of the property or assets subject to
any such Lien;
(iii) Liens in existence on the Initial Borrowing Date which
are listed, and the property subject thereto described, in Schedule III but only
through the respective date, if any, set forth in such Schedule III for the
removal, replacement and termination of any such Liens, plus renewals,
replacements and extensions of such Liens to the extent set forth on such
Schedule III, provided that (x) the aggregate principal amount of the
Indebtedness, if any, secured by such Liens does not increase from that amount
outstanding at the time of any such renewal, replacement or extension and (y)
any such renewal, replacement or extension does not encumber any additional
assets or properties of the Borrower or any of the Credit Parties;
(iv) Liens created pursuant to the Security Documents; and
(v) Liens on any assets or property of the Borrower or any
other Credit Party, except for the Collateral, provided that the total value of
such property or assets subject to Liens permitted pursuant to this Section
8.01(v) does not exceed $30,000,000 (Thirty Million Dollars) in the aggregate,
and provided further that in no event shall any Liens on any assets or property
of the Borrower consisting of receivables with respect to a contract, agreement
or arrangement be permitted to exist or be incurred.
8.02. Consolidation, Merger, Purchase or Sale of Assets, etc. The
Borrower will not, and will use its best efforts so that none of the Credit
Parties shall, wind up, liquidate or dissolve its affairs or enter into any
transaction of merger or consolidation (when either the Borrower or the Credit
Party is not the surviving entity unless the transaction is between or among
Credit Parties), or convey, sell, lease or otherwise dispose of all or
substantially all of its property or assets, or enter into any sale-leaseback
transactions (except with another Credit Party), or purchase or otherwise
acquire (in one or a series of related transactions) any part of the property or
assets (other than purchases or other acquisitions of inventory, materials,
equipment and supplies in the ordinary course of business) of any Person (or
agree to do any of the foregoing at any future time), except that:
(i) Capital Expenditures by the Credit Parties shall be
permitted to the extent not in violation of Section 8.06;
(ii) each of the Credit Parties may make sales of inventory in
the ordinary course of business;
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(iii) investments may be made to the extent permitted by
Section 8.04;
(iv) the Credit Parties may sell assets (other than the
capital stock or other equity interests of any Subsidiary of a Credit Party), so
long as (w) no Default or Event of Default then exists or would result
therefrom, (x) the respective Credit Party receives at least fair market value,
(y) the consideration received by the respective Credit Party consists solely of
cash and is paid at the time of the closing of such sale and (z) the aggregate
amount of the proceeds received from all assets sold pursuant to this clause
(iv) shall not exceed $500,000 in any fiscal year of the respective Credit
Party;
(v) each of the Credit Parties may lease (as lessee) or
license (as licensee) real or personal property;
(vi) each of the Credit Parties may sell or discount its
accounts receivable without recourse and for cash at fair market value, but only
in connection with the compromise or collection thereof and not as part of any
financing transaction, provided that the aggregate amount of such sales shall
not exceed $500,000 in any fiscal year of the respective Credit Party;
(vii) each of the Credit Parties may grant licenses,
sublicenses, leases or subleases to other Persons not materially interfering
with the conduct of the business of such Credit Party, in each case so long as
no such grant otherwise affects the Lender's security interest in the asset or
property subject thereto;
(viii) the Acquisition shall be permitted in accordance with
the terms of the Acquisition Documents and upon the consummation of the
Acquisition, the Buyer and Sovintel may be merged together regardless of which
entity shall survive, provided that such merger (I) does not otherwise result in
a Default or Event of Default and (II) does not impair any security for the
performance of any term of any Credit Document; and
(ix) the Parent may sell or otherwise dispose of its shares in
MCT Corp., a Delaware corporation, at a fair market price in an arms-length
transaction.
To the extent the Lender waives the provisions of this Section 8.02 with respect
to the sale of any Collateral, or any Collateral is sold as permitted by this
Section 8.02 (other than to a Credit Party), such Collateral shall be sold free
and clear of the Liens created by the Security Documents.
8.03. Indebtedness. The Borrower will not, and will use its best
efforts to prevent the Credit Parties from, contracting, creating, incurring,
assuming or suffering to exist any Indebtedness, except:
(i) Indebtedness incurred pursuant to this Agreement and the
other Credit Documents; and
(ii) Indebtedness in an aggregate principal amount not to
exceed $10,000,000 (Ten Million Dollars) incurred in any single transaction or
series of transactions with any Person or Persons other than another Credit
Party.
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8.04. Advances, Investments and Loans. Except as provided in Section
8.05, the Borrower will not, and will use its best efforts to prevent the Credit
Parties from, directly or indirectly, lending money or extending credit or
making advances to any Person, or purchasing or acquiring any stock, obligations
or securities of, or any other interest in, or making any capital contribution
to, any other Person, or purchasing or owning a futures contract or otherwise
becoming liable for the purchase or sale of currency or other commodities at a
future date in the nature of a futures contract (other than for currency risk
hedging purposes), except that the following shall be permitted:
(i) any Credit Party may acquire and hold accounts receivable
owing to any of them, if created or acquired in the ordinary course of business
and payable or dischargeable in accordance with customary trade terms of the
Credit Party;
(ii) the Credit Parties may acquire and own investments
(including debt obligations) received in connection with the bankruptcy or
reorganization of suppliers and customers and in good faith settlement of
delinquent obligations of, and other disputes with, customers and suppliers
arising in the ordinary course of business;
(iii) the Credit Parties may make loans and advances to their
officers and employees for moving, relocation and travel expenses and other
similar expenditures, in each case in the ordinary course of business in an
aggregate amount not to exceed $1,000,000 (One Million Dollars) at any time
(determined without regard to any write-downs or write-offs of such loans and
advances);
(iv) any Credit Party may make advances to any Person in the
ordinary course of business of such Credit Party; and
(v) any Credit Party may (1) make a capital contribution to,
or otherwise invest or acquire an equity interest in, any other Credit Party;
and (2) invest in LLC Golden Telecom, a Ukrainian limited liability company,
provided that the aggregate amount of all such investments by the Credit Parties
shall not exceed $5,200,000 (Five Million Two Hundred Thousand Dollars) and
invest in any other Person, provided that the aggregate amount of all such
investments by the Credit Parties shall not exceed $2,500,000 (Two Million Five
Hundred Thousand Dollars).
8.05. Transactions with Affiliates. Except as otherwise provided in
Section 8.04, or otherwise permitted in writing by the Lender, the Borrower will
not, and will use its best efforts to prevent the Credit Parties from, entering
into any transaction or series of related transactions with any Affiliate of any
Credit Party, other than in the ordinary course of business and on terms and
conditions substantially as favorable to the Credit Party as would reasonably be
obtained by it at that time in a comparable arm's-length transaction with a
Person other than an Affiliate, except that customary fees may be paid to
non-officer directors of the Credit Parties, provided that the Credit Parties
may make loans to one or more Subsidiaries of a Credit Party if (x) the
aggregate amount of such loans outstanding at any time does not exceed
$10,000,000 (Ten Million Dollars) and (y) any such Subsidiary which receives a
loan in an aggregate amount of $1,000,000 (One Million Dollars) or more shall
execute and deliver, by the last day of the fiscal quarter during which such
Indebtedness is incurred, a guaranty, substantially in the form of the Parent
Guaranty attached hereto as Exhibit G, or a surety agreement, substantially in
the form of the surety agreements to be entered into on the Initial Borrowing
Date by each of the Buyer and Sovintel and attached
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hereto as Exhibits H and J, and, by the same date shall become a party to the
Subordination Agreement. Notwithstanding anything in this Section 8.05 to the
contrary, any existing intercompany Indebtedness existing as of the Effective
Date among the Credit Parties or any of their Subsidiaries may be extended or
renewed (with respect to principal only) or payment of principal in respect
thereof deferred, provided that such extension, renewal or deferral is granted
on substantially the same terms and conditions applicable as of the Effective
Date.
8.06. Capital Expenditures. The Borrower will not, and will not permit
any of the Credit Parties to, make any Capital Expenditures, except that during
the first half or second half of any fiscal year of a Credit Party (taken as one
accounting period), all of the Credit Parties may make Capital Expenditures in
an aggregate amount not exceeding 65% of Consolidated EBITDA of the Parent and
its Subsidiaries for such six month period.
8.07. Consolidated Debt Service Ratio. The Borrower will not permit the
Consolidated Debt Service Ratio for any fiscal year to be less than 2:1.
8.08. Gearing Ratio. The Borrower will not permit the Gearing Ratio at
any time to be greater than 1:2.
8.09. Modification of Memorandum and Articles of Association and
Certain Other Agreements, etc. Unless otherwise agreed to by the Lender in
writing (not to be unreasonably withheld), the Borrower will use its best
efforts to prevent each Credit Party from:
(i) other than as provided for in, or contemplated by, the
Acquisition Documents, or as required by applicable law, amending, modifying or
changing its Memorandum and Articles of Association (including, without
limitation, by the filing or modification of any certificate or articles of
designation), certificate of formation, limited liability company agreement,
charter or by-laws (or the equivalent organizational documents), as applicable,
or any agreement entered into by it with respect to its capital stock or other
equity interests (including any shareholders' agreement), or enter into any new
agreement with respect to its capital stock or other equity interests, unless
such amendment, modification, change or other action contemplated by this clause
(i) could not reasonably be expected to be adverse to the interests of the
Lender in any material respect;
(ii) amending, modifying or changing any term or provision of
the Acquisition Agreement unless such amendment, modification or change is
approved in advance by the Lender; or
(iii) making any voluntary or optional payment or prepayment
in respect of any Indebtedness of any Credit Party, except as otherwise
permitted by this Agreement or between or among Credit Parties that are parties
to the Subordination Agreement, or amending, modifying, or permitting the
amendment or modification of, any provision of any agreement evidencing any such
Indebtedness, except for such amendments or modifications that could not
reasonably be expected to be adverse to the interests of the Lender in any
material respect.
8.10. Limitation on Certain Restrictions on Subsidiaries. The Borrower
will not, and will use its best efforts to prevent the Credit Parties from,
directly or indirectly, creating or otherwise causing or suffering to exist or
becoming effective any encumbrance or restriction on the ability of the Borrower
or any Credit Party to (a) pay dividends or make any
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other distributions on its capital stock or any other interest or participation
in its profits owned by such Credit Party, or pay any Indebtedness owed to such
Credit Party, (b) make loans or advances to such Credit Party or (c) transfer
any of its properties or assets to such Credit Party, except for such
encumbrances or restrictions existing under or by reason of (i) applicable law,
(ii) this Agreement and the other Credit Documents, (iii) customary provisions
restricting subletting or assignment of any lease governing any leasehold
interest of the Credit Parties, (iv) except where the existence of such
provision causes or may be reasonably believed to cause a Material Adverse
Effect, customary provisions restricting assignment of any licensing agreement
(in which a Credit Party is the licensee) or other contract entered into by a
Credit Party in the ordinary course of business, (v) restrictions on the
transfer of any asset pending the close of the sale of such asset, and (vi)
restrictions on the transfer of any asset subject to a Lien permitted by Section
8.01(iii).
8.11. Business; etc. The Borrower will not, and will use its best
efforts to prevent the Credit Parties from, making substantial changes in the
businesses engaged in by each of them as of the Initial Borrowing Date.
SECTION 9. Events of Default. Upon the occurrence of any of the
following specified events (each an "Event of Default"):
9.01. Payments. The Borrower shall (i) default in the payment when due
of any principal of any Loan or (ii) default, and such default shall continue
unremedied for three or more Business Days, in the payment when due of any
interest on any Loan, any Fees or any other amounts owing hereunder or under any
other Credit Document; or
9.02. Representations, etc. Any representation, warranty or statement
made or deemed made by any Credit Party herein or in any other Credit Document
or in any certificate delivered to the Lender pursuant hereto or thereto shall
prove to be untrue in any material respect on the date as of which made or
deemed made, and the fact, circumstance or condition that is the subject matter
of such representation if capable of correction is not corrected to conform with
such representation, warranty or statement within 30 days after the Borrower
becomes aware of such incorrectness; or
9.03. Covenants. Any Credit Party shall (i) default in the due
performance or observance by it of any term, covenant or agreement contained in
Sections 7.01(f), 7.09 or 7.10 or Section 8 or (ii) default in the due
performance or observance by it of any other term, covenant or agreement
contained in this Agreement or in any other Credit Document (other than those
set forth in Section 9.01) and such default described in this clause (ii) shall
continue unremedied for a period of 30 days after written notice thereof to the
defaulting party by the Lender; or
9.04. Default Under Other Agreements. (i) Any Credit Party shall (x)
default in any payment of any Indebtedness (other than the Obligations) beyond
the period of grace, if any, provided in an instrument or agreement under which
such Indebtedness was created or (y) default in the observance or performance of
any agreement or condition relating to any Indebtedness (other than the
Obligations) or contained in any instrument or agreement evidencing, securing or
relating thereto, or any other event shall occur or condition exist, except for
any Indebtedness owed to a supplier by any Credit Party for goods received or
services rendered that is being contested in good faith by appropriate
proceedings, the effect of which default or other event or condition is to
cause, or to permit the holder or holders of such Indebtedness (or a trustee or
agent on behalf of such holder or holders) to cause (determined without regard
to whether any notice is required), any such Indebtedness to
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become due prior to its stated maturity or (ii) any Indebtedness (other than the
Obligations) of any Credit Party shall be declared to be (or shall become) due
and payable, or required to be prepaid other than by a regularly scheduled
required prepayment, prior to the stated maturity thereof, provided that it
shall not be a Default or an Event of Default under this Section 9.04 unless the
aggregate principal amount of all Indebtedness as described in preceding clauses
(i) and (ii) is at least $1,000,000 (One Million Dollars); or
9.05. Bankruptcy, etc. Any Credit Party shall commence a voluntary case
concerning itself under any bankruptcy, insolvency, reorganization or other
similar laws affecting the rights of creditors generally, as now or hereafter in
effect, or any successor thereto; or an involuntary case is commenced against
any Credit Party, and the petition is not controverted within 10 days, or is not
stayed or dismissed within 60 days, after commencement of the case; or a
custodian is appointed for, or takes charge of, all or substantially all of the
property of any Credit Party and the order appointing such custodian is not
stayed or dismissed within 60 days after the issue thereof, or any Credit Party
commences any other proceeding under any reorganization, arrangement, adjustment
of debt, relief of debtors, dissolution, insolvency or liquidation or similar
law of any jurisdiction whether now or hereafter in effect relating to any
Credit Party, or there is commenced against any Credit Party any such proceeding
which remains unstayed or undismissed for a period of 60 days, or any Credit
Party is adjudicated insolvent or bankrupt and such adjudication remains
unstayed or undischarged for a period of 60 days; or any order of relief or
other order approving any such case or proceeding is entered and not stayed or
discharged for a period of 60 days; or any Credit Party suffers any appointment
of any custodian or the like for it or any substantial part of its property to
continue undischarged or unstayed for a period of 60 days; or any Credit Party
makes a general assignment for the benefit of creditors; or any corporate,
limited liability company or similar action is taken by any Credit Party for the
purpose of effecting any of the foregoing; or any Credit Party becomes unable or
admits in writing its inability or fails generally to pay its debts as they
become due; or
9.06. Security Documents. Any of the Security Documents shall cease to
be in full force and effect, or shall cease to give the Lender the Liens,
rights, powers and privileges purported to be created thereby (including,
without limitation, a perfected security interest in, and Lien on, all of the
Collateral, in favor of the Lender, superior to and prior to the rights of all
third Persons (except as permitted by Section 8.01), and subject to no other
Liens (except as permitted by Section 8.01)), or any Credit Party shall default
in the due performance or observance of any term, covenant or agreement on its
part to be performed or observed pursuant to any such Security Document and such
default shall continue beyond the period of grace, if any, specifically
applicable thereto pursuant to the terms of such Security Document; or
9.07. Guaranties. Any Guaranty or any provision thereof shall cease to
be in full force or effect as to any Guarantor, or any Guarantor or any Person
acting for or on behalf of such Guarantor shall deny or disaffirm such
Guarantor's obligations under the Guaranty to which it is a party or any
Guarantor shall default in the due performance or observance of any term,
covenant or agreement on its part to be performed or observed pursuant to the
Guaranty to which it is a party; or
9.08. Judgments. One or more judgments or decrees shall be entered
against any Credit Party involving in the aggregate for such Credit Party a
liability (not paid or fully covered by a reputable and solvent insurance
company) and such judgments and decrees either shall be final and non-appealable
or shall not be vacated, discharged or stayed or
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bonded pending appeal for any period of 30 consecutive days, and the aggregate
amount of all such judgments equals or exceeds $5,000,000 (Five Million
Dollars); or
9.09. Material Adverse Change. Any event or series of events whether
related or not occurs which could reasonably be expected to constitute a
Material Adverse Change;
then, and in any such event, and at any time thereafter, if any Event of Default
shall then be continuing, the Lender may, by written notice to the Borrower,
take any or all of the following actions, without prejudice to the rights of the
Lender to enforce its claims against any Credit Party (provided that, if an
Event of Default specified in Section 9.05 shall occur with respect to the
Borrower, the result which would occur upon the giving of written notice by the
Lender as specified in clauses (i) and (ii) below shall occur automatically
without the giving of any such notice): (i) declare the Commitment terminated,
whereupon the Commitment shall forthwith terminate immediately and any
Commitment Commission shall forthwith become due and payable without any other
notice of any kind; (ii) declare the principal of and any accrued but unpaid
interest in respect of all Loans and Obligations owing hereunder and under any
Security Document to be, whereupon the same shall become, forthwith due and
payable without presentment, demand, protest or other notice of any kind, all of
which are hereby waived by each Credit Party; and (iii) enforce, as Lender, all
of the Liens and security interests created pursuant to the Security Documents.
SECTION 10. Definitions and Accounting Terms.
10.01. Defined Terms. As used in this Agreement, the following terms
shall have the following meanings (such meanings to be equally applicable to
both the singular and plural forms of the terms defined):
"Acquisition" shall mean the acquisition by the Parent, either
directly or indirectly through any Wholly-Owned Subsidiary, of a participatory
interest representing fifty percent (50%) of the outstanding equity interest in
Sovintel from Rostelecom.
"Acquisition Agreement" shall mean that certain Ownership
Interest Purchase Agreement, dated as of March 13, 2002, by and between
Rostelecom, the Buyer and SFMT-CIS, Inc., as amended, modified or supplemented
from time to time, in accordance with the terms hereof and thereof.
"Acquisition Documents" shall mean the Acquisition Agreement
and all other agreements and documents relating to the Acquisition.
"Affiliate" shall mean, with respect to any Person, any other
Person directly or indirectly controlling (including, but not limited to, all
directors and officers of such Person), controlled by, or under direct or
indirect common control with, such Person. For the purposes of Section 8.05, a
Person shall be deemed to control another Person if such Person possesses,
directly or indirectly, the power (i) to vote 25% or more of the securities
having ordinary voting power for the election of directors (or equivalent
governing body) of such Person or (ii) to direct or cause the direction of the
management and policies of such other Person, whether through the ownership of
voting securities, by contract or otherwise; provided, however, that the Lender
(and any Affiliate thereof) shall not be considered an Affiliate of any Credit
Party.
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"Agreement" shall mean this Credit Agreement, as modified,
supplemented, amended, restated (including any amendment and restatement
hereof), extended or renewed from time to time.
"Applicable Margin" shall mean a percentage per annum equal to
4.35%.
"Arrangement Fee" shall have the meaning provided in Section
2.01(a).
"Borrower" shall mean ROL Holdings Limited, a limited
liability company organized and existing under the laws of the Republic of
Cyprus.
"Borrowing" shall mean the borrowing of a Loan on a given
date.
"Business Day" shall mean (i) for all purposes other than as
covered by clause (ii) below, any day except Saturday, Sunday and any day which
shall be in Moscow, the Russian Federation, a legal holiday or a day on which
banking institutions are authorized or required by law or other government
action to close and (ii) with respect to all notices and determinations in
connection with, and payments of principal and interest on, Loans, any day which
is a Business Day described in clause (i) above and which is also a day for
trading by and between banks in U.S. dollar deposits in the London interbank
market.
"Buyer" shall mean OOO TeleRoss, a limited liability company
organized under the laws of the Russian Federation and an Affiliate of the
Borrower.
"Buyer Receivables Agreement" shall have the meaning provided
in Section 4.09.
"Buyer Surety Agreement" shall have the meaning provided in
Section 4.12.
"Capital Expenditures" shall mean, with respect to any Person,
all expenditures by such Person which should be capitalized in accordance with
U.S. GAAP and, without duplication, the amount of capitalized lease obligations
incurred by such Person.
"Change of Control" shall mean, with respect to the Parent,
any Person or group after the date hereof shall become the beneficial owner,
directly or indirectly, of greater than 331/3% of the economic or voting
interests in the Parent, provided that for holders of any economic or voting
interest in the Parent's capital stock as of the Effective Date, the threshold
percentage shall be 50%, and with respect to any other Credit Party, at any time
after the Effective Date, the Permitted Holder shall fail to be the beneficial
owner, directly or indirectly, of 100% of the economic or voting interests in
such Credit Party.
"Collateral" shall mean all property (whether real or
personal) with respect to which any security interests have been granted (or
purported to be granted) pursuant to any Security Document, including, without
limitation, all Pledge Agreement Collateral and the receivables conditionally
assigned under the Buyer Receivables Agreement and the Sovintel Receivables
Agreement.
"Commitment" shall have the meaning provided in Section 1.01.
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"Commitment Commission" shall have the meaning provided in
Section 2.01(b).
"Commitment Period" shall mean the period beginning on the
Effective Date and terminating with and on the Commitment Period Termination
Date.
"Commitment Period Termination Date" shall mean December 6,
2002.
"Consolidated Debt Service Ratio" shall mean for any period
the ratio of Consolidated EBITDA to Consolidated Finance Charges.
"Consolidated EBIT" shall mean, for any period, Consolidated
Net Income for such period before deducting therefrom Consolidated Interest
Expense for such period to the extent that such Consolidated Interest Expense
was deducted in arriving at Consolidated Net Income for such period, and not
taking into account foreign exchange gains and losses for such period, and
provision for taxes based on income that was included in arriving at
Consolidated Net Income for such period and without giving effect (x) to any
extraordinary gains or any extraordinary non-cash losses (except to the extent
that any such extraordinary non-cash losses will require a cash payment in a
future period) and (y) to any gains or losses from sales of assets other than
from sales of inventory in the ordinary course of business.
"Consolidated EBITDA" shall mean, for any period, Consolidated
EBIT for such period, adjusted by adding thereto the amount of all amortization
of intangibles and depreciation that was deducted in arriving at Consolidated
Net Income for such period.
"Consolidated Finance Charges" shall mean, for any period, the
aggregate consolidated amount of the interest (including the interest element of
leasing and hire purchase payments and capitalized interest), commission, fees,
discounts and other finance payments payable by the Parent or any of its
Subsidiaries (including any commission, fees, discounts and other finance
payments payable by them under any interest rate hedging arrangement but
deducting any commission, fees, discounts and other finance payments receivable
by the Parent or any of its Subsidiaries under any interest rate hedging
instrument), the aggregate of scheduled and mandatory payments of any
Indebtedness falling due, and the amount of any cash dividends or distributions
paid or made.
"Consolidated Indebtedness" shall mean, at any time, the
principal amount of all Indebtedness of the Parent and its Subsidiaries at such
time determined on a consolidated basis.
"Consolidated Interest Expense" shall mean, for any period,
the sum of the total consolidated interest expense of the Parent and its
Subsidiaries for such period (calculated without regard to any limitations on
the payment thereof) plus, without duplication, (x) that portion of capitalized
lease obligations of the Parent and its Subsidiaries representing the interest
factor for such period and (y) the "deemed interest expense" (i.e., the interest
expense which would have been applicable if the respective obligations were
structured as on-balance sheet financing arrangements) with respect to all
Indebtedness of the Credit Parties of the type described in clause (viii) of the
definition of Indebtedness contained herein for such period.
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"Consolidated Net Income" shall mean, for any period, the net
income (or loss) of the Credit Parties for such period, determined on a
consolidated basis (after any deduction for minority interests), provided that
(i) in determining Consolidated Net Income, the net income of any other Person
which is not a Subsidiary of the Parent or is accounted for by the Parent by the
equity method of accounting shall be included only to the extent of the payment
of cash dividends or cash distributions by such other Person to the Parent or a
Subsidiary thereof during such period, (ii) the net income of any Subsidiary of
the Parent shall be excluded to the extent that the declaration or payment of
cash dividends or similar cash distributions by such Subsidiary of that net
income is not at the date of determination permitted by operation of its charter
or any agreement, instrument or law applicable to such Subsidiary and (iii) the
net income (or loss) of any other Person acquired by the Parent or a Subsidiary
of the Parent in a pooling of interests transaction for any period prior to the
date of such acquisition shall be excluded.
"Contingent Obligation" shall mean, as to any Person, any
obligation of such Person as a result of such Person's being a general partner
of any other Person, unless the underlying obligation is expressly made
non-recourse as to such general partner, and any obligation of such Person
guaranteeing or intended to guarantee any Indebtedness, leases, dividends or
other obligations ("primary obligations") of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, including, without
limitation, any obligation of such Person, whether or not contingent, (i) to
purchase any such primary obligation or any property constituting direct or
indirect security therefor, (ii) to advance or supply funds (x) for the purchase
or payment of any such primary obligation or (y) to maintain working capital or
equity capital of the primary obligor or otherwise to maintain the net worth or
solvency of the primary obligor, (iii) to purchase property, securities or
services primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such primary
obligation or (iv) otherwise to assure or hold harmless the holder of such
primary obligation against loss in respect thereof; provided, however, that the
term Contingent Obligation shall not include endorsements of instruments for
deposit or collection in the ordinary course of business. The amount of any
Contingent Obligation shall be deemed to be an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
Contingent Obligation is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof (assuming such Person is
required to perform thereunder) as determined by such Person in good faith.
"Consolidated Tangible Net Worth" shall mean at any time,
consolidated net worth of the Parent and its Subsidiaries minus any consolidated
intangible assets of the Parent and its Subsidiaries (including, but not limited
to, goodwill, licenses and other assets of similar nature).
"Credit Documents" shall mean this Agreement and, after the
execution and delivery thereof pursuant to the terms of this Agreement, each
Security Document.
"Credit Event" shall mean the making of any Loan.
"Credit Party" shall mean the Parent, the Borrower, the Buyer,
GTS Finance, SFMT Rusnet, Sovinet, Sovintel and any other Person which executes,
or is required to execute, the Subordination Agreement pursuant to Section 8.05.
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"Default" shall mean any event, act or condition which with
notice or lapse of time, or both, would constitute an Event of Default.
"Documents" shall mean the Credit Documents and the
Acquisition Documents.
"Dollars" and the sign "$" shall each mean freely
transferable lawful money of the United States.
"Effective Date" shall have the meaning provided in Section
11.09.
"Eligible Transferee" shall mean a commercial bank.
"Environmental Claims" shall mean any and all actions, suits,
demands, directives, claims, liens, notices of violation, investigations or
proceedings relating to any Environmental Law or any permit issued, or any
approval given, under any such Environmental Law (hereafter, for the purposes of
this definition, "Claims"), including, without limitation, (a) any and all
Claims by Governmental Authorities for enforcement, cleanup, or other actions or
damages pursuant to any applicable Environmental Law, and (b) any and all Claims
by any third party seeking damages, contribution, indemnification, cost
recovery, or injunctive relief in connection with alleged injury or threat of
injury to health, safety or the environment due to the presence of Hazardous
Materials.
"Environmental Law" shall mean any law, statute, rule,
regulation, ordinance, code, guideline, policy and rule of common law now or
hereafter in effect and in each case as amended, of any Governmental Authority,
and any judicial or administrative interpretation thereof, including any
judicial or administrative order, consent decree or judgment, relating to the
environment, employee health and safety or Hazardous Materials.
"Event of Default" shall have the meaning provided in Section
9.
"Fees" shall mean all amounts payable pursuant to or referred
to in Section 2.01.
"Gearing Ratio" shall mean, at any time, the ratio of
Consolidated Indebtedness to Consolidated Tangible Net Worth.
"Governmental Authority" shall mean any nation or government,
any state, region, or other political subdivision thereof, any central bank (or
similar monetary or regulatory authority) thereof, any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government, and any corporation or other entity owned or
controlled, through stock or capital ownership or otherwise, by any of the
foregoing.
"GTS Finance" shall mean GTS Finance, Inc., a Delaware
corporation and an Affiliate of the Parent.
"Guarantor" shall mean each of the Parent, the Buyer and
Sovintel.
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"Guaranty" shall mean each of the Parent Guaranty, the Buyer
Surety Agreement, the Sovintel Surety Agreement and any other guaranty or surety
agreement entered into pursuant to Section 8.05.
"Hazardous Materials" shall mean any chemical, material or
substance, the exposure to, or Release of which is prohibited, limited or
regulated by any Governmental Authority.
"Indebtedness" shall mean, as to any Person, without
duplication, (i) all indebtedness (including principal, interest, fees and
charges) of such Person for borrowed money or for the deferred purchase price of
property or services, (ii) the maximum amount available to be drawn down under
all letters of credit, bankers' acceptances and similar obligations issued for
the account of such Person and all unpaid drawings in respect of such letters of
credit, bankers' acceptances and similar obligations, (iii) all Indebtedness of
the types described in clause (i), (ii), (iv), (v), (vi) or (vii) of this
definition secured by any Lien on any property owned by such Person, whether or
not such Indebtedness has been assumed by such Person (provided that, if the
Person has not assumed or otherwise become liable in respect of such
Indebtedness, such Indebtedness shall be deemed to be in an amount equal to the
lesser of the amount of the Indebtedness secured by such property and the fair
market value of the property to which such Lien relates as determined in good
faith by such Person), (iv) the aggregate amount of all capitalized lease
obligations of such Person, (v) all obligations of such Person to pay a
specified purchase price for goods or services, whether or not delivered or
accepted, i.e., take-or-pay and similar obligations, (vi) all Contingent
Obligations of such Person, (vii) all obligations under any Interest Rate
Protection Agreement, any Other Hedging Agreement or under any similar type of
agreement and (viii) all monetary obligations of such Person under (x) a
so-called synthetic, off-balance sheet or tax retention lease, or (y) an
agreement for the use or possession of property creating obligations that do not
appear on the balance sheet of such Person but which, upon the insolvency or
bankruptcy of such Person, would be characterized as the indebtedness of such
Person (without regard to accounting treatment). Notwithstanding the foregoing,
Indebtedness shall not include trade payables and accrued expenses or
liabilities incurred by any Person in accordance with customary practices and in
the ordinary course of business of such Person.
"Initial Borrowing Date" shall mean the date occurring on or
after the Effective Date on which the initial Borrowing of the Loans occurs.
"Interest Determination Date" shall mean, with respect to any
Loan, the second Business Day prior to the commencement of any Interest Period
relating to such Loan.
"Interest Pledge Agreements" shall have the meaning provided
in Section 4.08.
"Interest Period" shall mean with respect to any Loan, in the
first instance, the period commencing on and including the date such Loan is
made and, in the case of each subsequent successive Interest Period applicable
to each such Loan, commencing on the last day of the immediately preceding
Interest Period, and, in each such case, ending on the next Quarterly Interest
Payment Date or, if earlier, the Maturity Date.
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"Interest Rate Protection Agreement" shall mean any interest
rate swap agreement, interest rate cap agreement, interest collar agreement,
interest rate hedging agreement or other similar agreement or arrangement.
"Leaseholds" of any Person shall mean all the right, title and
interest of such Person as lessee or licensee in, to and under leases or
licenses of land, improvements and/or fixtures.
"Lender" shall mean ZAO Citibank, as well as any Person that
becomes a "Lender" hereunder pursuant to Section 11.04(a).
"LIBOR" shall mean, in relation to any amount owed by the
Borrower hereunder on which interest for a given period is to accrue, the
percentage rate per annum equal to the offered quotation which appears on the
page of the Telerate Screen which displays an average British Bankers
Association Interest Settlement Rate for dollars (being currently "3750") for
such period at or about 11:00 am (London time) on the Quotation Date for such
period or, if such page or such service shall cease to be available, such other
page or such other service for the purpose of displaying an average British
Bankers Association Interest Settlement Rate as the Lender may select.
"Lien" shall mean any mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or other),
preference, priority or other security agreement of any kind or nature
whatsoever (including, without limitation, any conditional sale or other title
retention agreement, any financing or similar statement or notice filed under
any recording, notice or similar statute and any lease having substantially the
same effect as any of the foregoing).
"Loan" shall have the meaning provided in Section 1.01.
"Material Adverse Change" shall mean a material adverse effect
on:
(a) the business, condition (financial or otherwise),
operations or prospects of the Borrower;
(b) the ability of any relevant Credit Party to comply
with its material obligations under any Credit
Document to which it is a party; or
(c) the legality, validity or enforceability of any
Credit Document or the rights of any Credit Party
thereunder.
"Material Adverse Effect" shall mean (i) a material adverse
effect on the business, operations, property, assets, liabilities or condition
(financial or otherwise) of any of the Credit Parties or (ii) a material adverse
effect (x) on the rights or remedies of the Lender hereunder or under any other
Credit Document or (y) on the ability of any Credit Party to perform its
obligations to the Lender hereunder or under any other Credit Document.
"Maturity Date" shall mean September 6, 2004.
"Minimum Borrowing Amount" shall mean $5,000,000.
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"Notice of Borrowing" shall have the meaning provided in
Section 1.03.
"Obligations" shall mean all amounts owing to the Lender
pursuant to the terms of this Agreement or any other Credit Document.
"Other Hedging Agreements" shall mean any foreign exchange
contracts, currency swap agreements, commodity agreements or other similar
agreements or arrangements designed to protect against fluctuations in currency
values or commodity prices.
"Other Taxes" shall have the meaning provided in Section
11.01.
"Parent" and "Parent Guarantor" shall mean Golden Telecom,
Inc., a Delaware corporation.
"Parent Guaranty" shall have the meaning provided in Section
4.11.
"Permit" shall have the meaning provided in Section 6.13.
"Permitted Holder" shall mean the Parent.
"Permitted Liens" shall have the meaning provided in Section
8.01.
"Person" shall mean any individual, partnership, joint
venture, firm, corporation, association, limited liability company, joint stock
company, trust or other enterprise or any government or political subdivision or
any agency, department or instrumentality thereof.
"Pledge Agreement Collateral" shall mean all "Collateral" as
defined in the Interest Pledge Agreements.
"Pledgee" shall have the meaning provided in the Interest
Pledge Agreement.
"Pro Forma Financials" shall have the meaning provided in
Section 4.15(b).
"Projections" shall mean the projections that were prepared by
or on behalf of the Borrower in connection with the Transaction and delivered to
the Lender prior to the Initial Borrowing Date.
"Quarterly Interest Payment Date" shall mean the last Business
Day of each December, March, June and September ended after the Commitment
Period Termination Date (beginning with December 2002) and on or before the date
on which all Loans shall have been paid in full.
"Quotation Date" shall mean the date which is two (2) Business
Days prior to the first day of a period for which interest is being calculated.
"Real Property" of any Person shall mean all the right, title
and interest of such Person in and to land, improvements and fixtures, including
Leaseholds.
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"Release" shall mean actively or passively disposing,
discharging, injecting, spilling, pumping, leaking, leaching, dumping, emitting,
escaping, emptying, pouring, seeping, migrating or the like, into or upon any
land or water or air, or otherwise entering into the environment.
"Returns" shall have the meaning provided in Section 6.09.
"Rostelecom" shall mean OAO Rostelecom, an open joint stock
company organized under the laws of the Russian Federation.
"Rules" shall have the meaning provided in Section 11.07(d).
"Scheduled Repayment" shall have the meaning provided in
Section 3.02(a).
"Security Document" shall mean and include each of the Parent
Guaranty, the Buyer Surety Agreement, the Sovintel Surety Agreement, the Buyer
Receivables Agreement, the Sovintel Receivables Agreement, the Interest Pledge
Agreements and the Subordination Agreement.
"SFMT Rusnet" shall mean SFMT Rusnet, Inc., a Delaware
corporation and an Affiliate of the Parent.
"Sovinet" shall mean Sovinet, Inc., a Delaware corporation and
an Affiliate of the Parent.
"Sovintel" shall mean OOO EDN Sovintel, a limited liability
company organized under the laws of the Russian Federation.
"Sovintel Receivables Agreement" shall have the meaning
provided in Section 4.13.
"Sovintel Surety Agreement" shall have the meaning provided in
Section 4.14.
"Subordination Agreement" shall have the meaning provided in
Section 4.10.
"Subsidiary" shall mean, as to any Person, (i) any corporation
50% or more of the stock of any class or classes of which having by the terms
thereof ordinary voting power to elect a majority of the directors of such
corporation (irrespective of whether or not at the time stock of any class or
classes of such corporation shall have or might have voting power by reason of
the happening of any contingency) is at the time owned by such Person and/or one
or more Subsidiaries of such Person and (ii) any partnership, limited liability
company, association, joint venture or other entity in which such Person and/or
one or more Subsidiaries of such Person has an equity interest of 50% or more at
the time.
"Taxes" shall have the meaning provided in Section 3.04(a).
"Tax Refund" shall have the meaning provided in Section
3.04(c).
"Telecom Licenses" shall have the meaning provided in Section
6.17.
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"Transaction" shall mean, collectively, (i) the Acquisition, (ii) the
entering into of the Credit Documents and the incurrence of Loans during the
Commitment Period and (iii) the payment of all fees and expenses in connection
with the foregoing.
"United States" and "U.S." shall each mean the United States of
America.
"U.S. GAAP" shall mean generally accepted accounting principles in the
United States in effect from time to time.
"Unutilized Commitment" shall mean, at any time, the Commitment at such
time (always subject to reduction as provided in Section 2.01) minus the
aggregate outstanding principal amount of all Loans made at such time.
"Wholly-Owned Subsidiary" shall mean, as to any Person, (i) any
corporation 100% of the capital stock of which is at the time owned by such
Person and/or one or more Wholly-Owned Subsidiaries of such Person and (ii) any
partnership, association, joint venture or other entity in which such Person
and/or one or more Wholly-Owned Subsidiaries of such Person has a 100% equity
interest at such time.
"ZAO Citibank" shall mean ZAO Citibank, a commercial bank organized and
existing under the laws of the Russian Federation, in its individual capacity,
and any successor thereto by merger, consolidation or otherwise.
SECTION 11. Miscellaneous.
11.01. Payment of Expenses, etc. The Borrower hereby agrees to: (i) pay
all reasonable out-of-pocket costs and expenses of the Lender in connection with
the enforcement of this Agreement and the other Credit Documents and the
documents and instruments referred to herein and therein (including, in each
case without limitation, the reasonable fees and disbursements of counsel for
the Lender); (ii) pay and hold the Lender harmless from and against any and all
present and future stamp, property, sales and use, value-added, court, excise
and other similar documentary taxes, charges or similar levies with respect to
the execution, delivery, performance or enforcement of this Agreement or any
payment hereunder (collectively, "Other Taxes"), and save the Lender harmless
from and against any and all liabilities with respect to or resulting from any
delay or omission (other than to the extent attributable to the Lender) to pay
such Other Taxes; (iii) indemnify the Lender for (a) the full amount of Other
Taxes paid by the Lender and (b) any liability (including penalties, interest
and expenses) arising therefrom or with respect thereto, whether or not such
Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority; and (iv) indemnify the Lender, and each of its officers,
directors, employees, representatives, agents, Affiliates and trustees from and
hold each of them harmless against any and all liabilities, obligations
(including removal or remedial actions), losses, damages, penalties, claims,
actions, judgments, suits, costs, expenses and disbursements (including
reasonable attorneys' and consultants' fees and disbursements) incurred by,
imposed on or assessed against any of them as a result of, or arising out of, or
in any way related to, or by reason of, (a) any actual or prospective claim,
investigation, litigation or other proceeding (whether or not the Lender is a
party thereto and whether or not such investigation, litigation or other
proceeding is brought by or on behalf of any Credit Party) related to the
entering into and/or performance of this Agreement or any other Credit
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Document or the proceeds of any Loans hereunder or the consummation of the
Transaction or any other transactions contemplated herein or in any other Credit
Document or the exercise of any of their rights or remedies provided herein or
in the other Credit Documents or (b) any Environmental Claim asserted against
the Lender, the Borrower or any of its Subsidiaries, or any Real Property at any
time owned, leased or operated by the Borrower or any of its Subsidiaries,
including, in each case, without limitation, the reasonable fees and
disbursements of counsel and other consultants incurred in connection with any
such Environmental Claim (but excluding any losses, liabilities, claims, damages
or expenses to the extent incurred by reason of the gross negligence or willful
misconduct of the Person to be indemnified (as determined by a court of
competent jurisdiction in a final and non-appealable decision)). To the extent
that the undertaking to indemnify, pay or hold harmless the Lender set forth in
the preceding sentence may be unenforceable because it is violative of any law
or public policy, the Borrower shall make the maximum contribution to the
payment and satisfaction of each of the indemnified liabilities which is
permissible under applicable law. All amounts due under this Section 11.01 shall
be payable within 10 days after demand therefor. Notwithstanding the foregoing,
the Borrower shall not be obligated to indemnify, pay or hold harmless the
Lender in respect of any costs, expenses, fees or liability described in this
Section 11.01 that arise from or is attributable to the gross negligence of the
Lender.
11.02. Right of Setoff. In addition to any rights now or hereafter
granted under applicable law or otherwise, and not by way of limitation of any
such rights, upon the occurrence and during the continuance of an Event of
Default, the Lender is hereby authorized at any time or from time to time,
without presentment, demand, protest or other notice of any kind to any Credit
Party or to any other Person, any such notice being hereby expressly waived, to
set off and to appropriate and apply any and all deposits (general or special)
and any other Indebtedness at any time held or owing by the Lender (including,
without limitation, by branches and agencies of the Lender wherever located) to
or for the credit or the account of the Borrower against and on account of the
Obligations and liabilities of the Credit Parties to the Lender under this
Agreement or under any of the other Credit Documents, and all other claims of
any nature or description arising out of or connected with this Agreement or any
other Credit Document, irrespective of whether or not the Lender shall have made
any demand hereunder and although said Obligations, liabilities or claims, or
any of them, shall be contingent or unmatured.
11.03. Notices. Except as otherwise expressly provided herein, all
notices and other communications provided for hereunder shall be in writing and
mailed or sent by fascimile or delivered to the Borrower or the Lender at their
respective addresses specified on Schedule IV; or at such other address as shall
be designated by such party in a written notice to the other party hereto. All
such notices and communications shall be effective when received by the relevant
party.
11.04. Benefit of Agreement; Assignments. (a) Notwithstanding the
foregoing, the Lender may (x) assign all or a portion of its Commitment and
related outstanding Obligations (or, if the Commitment has terminated,
outstanding Obligations) hereunder to its parent company and/or any Affiliate of
the Lender or (y) during the continuance of an Event of Default assign all, or
if less than all, a portion equal to at least $1,000,000 (One Million Dollars)
in the aggregate of such Commitment and related outstanding Obligations (or, if
the Commitment has terminated, outstanding Obligations) hereunder to one or more
Eligible Transferees, each of which assignees shall become a party to this
Agreement as a Lender. To the extent of any assignment pursuant to this Section
-36-
11.04(a), the assigning Lender shall be relieved of its obligations hereunder
with respect to its assigned Commitment and outstanding Loans. To the extent
that an assignment of all or any portion of the Commitment and related
outstanding Obligations pursuant to this Section 11.04(a) would, at the time of
such assignment, result in increased costs under Section 1.07 or 3.04 from those
being charged by the respective assigning Lender prior to such assignment, then
the Borrower shall not be obligated to pay such increased costs (although the
Borrower, in accordance with and pursuant to the other provisions of this
Agreement, shall be obligated to pay any other increased costs of the type
described above resulting from changes after the date of the respective
assignment).
(b) Change of Applicable Lending Office. If the Lender, or any
assignee, claims any additional amounts or costs are payable pursuant to Section
3.04 or Section 11.01, the Lender shall promptly make a determination whether in
its reasonable opinion it would be practicable to change the jurisdiction of its
applicable lending office or other office from which the Lender or such assignee
makes or maintains any extension of credit under this Agreement (and shall
concurrently therewith inform the Borrower in writing of such determination), if
the making of such a change would avoid the need for, or reduce the amount of,
any such additional amounts or increased costs which may thereafter accrue and
would not, be otherwise disadvantageous to the Lender or such assignee and would
not result in the incurrence of any additional costs by the Lender or such
assignee.
11.05. No Waiver; Remedies Cumulative. No failure or delay on the part
of the Lender in exercising any right, power or privilege hereunder or under any
other Credit Document and no course of dealing between the Borrower or any other
Credit Party and the Lender shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, power or privilege hereunder or under
any other Credit Document preclude any other or further exercise thereof or the
exercise of any other right, power or privilege hereunder or thereunder. The
rights, powers and remedies herein or in any other Credit Document expressly
provided are cumulative and not exclusive of any rights, powers or remedies
which the Lender would otherwise have. No notice to or demand on any Credit
Party in any case shall entitle any Credit Party to any other or further notice
or demand in similar or other circumstances or constitute a waiver of the rights
of the Lender to the other or further action in any circumstances without notice
or demand.
11.06. Calculations; Computations. (a) The financial statements to be
furnished to the Lender pursuant hereto shall be made and prepared in accordance
with U.S. GAAP consistently applied throughout the periods involved (except as
set forth in the notes thereto or as otherwise disclosed in writing by the
Borrower to the Lender); provided that, except as otherwise specifically
provided herein, and all computations and all definitions (including accounting
terms) used in determining compliance with Sections 8.06 through 8.08,
inclusive, shall utilize U.S. GAAP and policies in conformity with those used to
prepare the historical financial statements of the Borrower referred to in
Section 6.05(a).
(b) All computations of interest, Commitment Commission and other Fees
hereunder shall be made on the basis of a year of 360 days for the actual number
of days (including the first day but excluding the last day) occurring in the
period for which such interest, Commitment Commission or Fees are payable.
11.07. GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY
TRIAL. (a) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES
-37-
HEREUNDER AND THEREUNDER SHALL, EXCEPT AS OTHERWISE PROVIDED THEREIN, BE
CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW
YORK. SUBJECT TO THE OPTION IN CLAUSE (d) BELOW, ANY LEGAL ACTION OR PROCEEDING
WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT MAY BE BROUGHT IN
THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF NEW YORK, IN EACH CASE WHICH ARE LOCATED IN THE COUNTY OF NEW YORK,
AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT,
THE BORROWER HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID
COURTS. THE BORROWER HEREBY FURTHER IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH
COURTS LACK PERSONAL JURISDICTION OVER THE BORROWER, AND AGREES NOT TO PLEAD OR
CLAIM, IN ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY
OTHER CREDIT DOCUMENTS BROUGHT IN ANY OF THE AFOREMENTIONED COURTS, THAT SUCH
COURTS LACK PERSONAL JURISDICTION OVER THE BORROWER. THE BORROWER FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED
COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY
REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO THE BORROWER AT ITS ADDRESS
SET FORTH OPPOSITE ITS SIGNATURE BELOW, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS
AFTER SUCH MAILING. THE BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTION TO SUCH
SERVICE OF PROCESS AND FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR
CLAIM IN ANY ACTION OR PROCEEDING COMMENCED HEREUNDER OR UNDER ANY OTHER CREDIT
DOCUMENT THAT SERVICE OF PROCESS WAS IN ANY WAY INVALID OR INEFFECTIVE. NOTHING
HEREIN SHALL AFFECT THE RIGHT OF THE LENDER TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST
THE BORROWER IN ANY OTHER JURISDICTION.
(b) THE BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY
NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR
PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER
CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN CLAUSE (a) ABOVE AND HEREBY
FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT
THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN
AN INCONVENIENT FORUM.
(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL
RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT
OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
-38-
(d) Any dispute, controversy or claim arising out of, relating to or in
connection with this Agreement, including any question regarding its existence,
validity or termination, or regarding a breach of this Agreement, shall at the
option of either of the parties hereto be referred to, and finally settled by
arbitration under and in accordance with, the Rules of Arbitration of the
International Chamber of Commerce then in effect (the "Rules"), which Rules are
deemed to be incorporated by reference into this Section 11.07(d). The place of
arbitration shall be New York, New York, and the award shall be deemed to have
been made there. The arbitral tribunal may, however, hold hearings, meetings or
sessions anywhere convenient. The arbitral tribunal shall consist of three
arbitrators. Each party hereto shall be entitled to select one of the
arbitrators. The third arbitrator shall be selected by the President of the ICC
International Court of Arbitration in accordance with the Rules and shall serve
as the presiding arbitrator. The language to be used in the arbitral proceedings
shall be English. The award of the arbitral tribunal shall be in writing and
state the reasons upon which it is based. Any monetary award shall be made in
Dollars. The award of the arbitral tribunal shall be final and binding on the
parties hereto. Judgment upon an arbitral award rendered by the arbitral
tribunal may be entered in any court having jurisdiction.
11.08. Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A set of counterparts
executed by all the parties hereto shall be lodged with the Borrower and the
Lender.
11.09. Effectiveness. This Agreement shall become effective on the date
(the "Effective Date") on which the Borrower and the Lender shall have signed a
counterpart hereof (whether the same or different counterparts).
11.10. Headings Descriptive. The headings of the several sections and
subsections of this Agreement are inserted for convenience only and shall not in
any way affect the meaning or construction of any provision of this Agreement.
11.11. Amendment or Waiver; etc. Neither this Agreement nor any other
Credit Document nor any terms hereof or thereof may be changed, waived,
discharged or terminated unless such change, waiver, discharge or termination is
in writing signed by the respective Credit Parties party hereto or thereto and
the Lender.
11.12. Survival. All indemnities set forth herein including, without
limitation, in Sections 1.07, 3.04 and 11.01 shall survive the execution,
delivery and termination of this Agreement and the making and repayment of the
Obligations provided, however, that the indemnities set forth in Section 3.04
shall survive for a period expiring concurrently with the expiration of the
statute of limitations applicable to claims made by the taxing authorities to
collect Taxes or Other Taxes.
11.13. Domicile of Loans. The Lender may transfer and carry the Loans
at, to or for the account of any office, Subsidiary or Affiliate of the Lender.
Notwithstanding anything to the contrary contained herein, to the extent that a
transfer of Loans pursuant to this Section 11.13 would, at the time of the
transfer, result in increased costs under Section 1.07 or 3.04 from those being
charged by the Lender prior to such transfer, then the Borrower shall not be
obligated to pay such increased costs (although the Borrower shall be
-39-
obligated to pay any other increased costs of the type described above resulting
from changes after the date of the respective transfer).
11.14. Register. The Borrower hereby designates the Lender to serve as
its agent, solely for purposes of this Section 11.14, to maintain a register on
which it will record from time to time the Commitment, the Loans made by the
Lender and each repayment in respect of the principal amount of the Loans.
Failure to make any such recordation, or any error in such recordation, shall
not affect the Borrower's obligations in respect of such Loans.
11.15. Confidentiality. The Lender agrees that it will use its best
efforts not to disclose without the prior written consent of the Borrower (other
than to its employees, auditors, advisors or counsel) any information with
respect to the Parent or any of its Subsidiaries which is now or in the future
furnished pursuant to this Agreement or any other Credit Document, provided that
the Lender may disclose any such information (i) as has become generally
available to the public, (ii) as may be required or appropriate in any report,
statement or testimony submitted to any municipal, state or governmental
regulatory body having or claiming to have jurisdiction over the Lender or its
successors, (iii) as may be required or appropriate in respect to any summons or
subpoena or in connection with any litigation, (iv) to the extent necessary to
comply with any law, order, regulation or ruling applicable to the Lender, (v)
to any direct or indirect contractual counterparty in any swap, hedge or similar
agreement (or to any such contractual counterparty's professional advisor), so
long as such contractual counterparty (or such professional advisor) agrees to
be bound by the provisions of this Section 11.15 and (vi) to any prospective or
actual transferee or participant in connection with any contemplated transfer or
participation of the Commitment or any interest therein by the Lender, provided
that such prospective transferee agrees to be bound by the confidentiality
provisions contained in this Section 11.15.
The Borrower hereby acknowledges and agrees that the Lender may share
with any of its Affiliates, and such Affiliates may share with the Lender, any
information related to the Borrower, the Parent or any of its Subsidiaries or
any Credit Party (including, without limitation, any non-public customer
information regarding the creditworthiness of the Parent and its Subsidiaries),
provided such Persons shall be subject to the provisions of this Section 11.15
to the same extent as the Lender.
11.16. Languages. This Agreement shall be executed in the English
language only. If any agreement or document referred to in this Agreement is
prepared in the Russian language and any inconsistency or discrepancy should
arise between the English and Russian language versions of such agreement or
document, the English language version shall govern and prevail for all
purposes.
[Signature Page Follows]
-40-
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Agreement as of the date first
above written.
ROL HOLDINGS LIMITED
By:_____________________________
Name:
Title:
ZAO CITIBANK
By:_____________________________
Name:
Title:
By:_____________________________
Name
Title:
SCHEDULE I
TELECOM LICENSES
SCHEDULE I
TELECOM LICENSES
LLC TeleRoss
License REGISTRATION DATE/ TERRITORY
------- EXPIRATION DATE
1 NO 14786 April 07, 2000 - REPUBLIC:
Provision of telematic April 07, 2005 Adygeya, Bashkortostan, Buryatia, Dagestan,
services Tatarstan, Kabardino-Balkarskaya,
Kalmykia-Khalmg Tangch, Karelia, Komi, Mari-El,
Mordovia, Sakha ( Jakutia), Tyva, Udmurtskaya,
Khakasia, Chuvashskaya;
KRAI:
Altaisky, Krasnodarsky, Krasnoyarsky, Primorsky,
Stavropolsky, Khabarovsky;
OBLAST:
Xxxxxxxxx, Xxxxxxxxxxxxxx, Xxxxxxxxxxxxxx,
Xxxxxxxxxxxxx, Bryanskaya, Vladimirskaya,
Volgogradskaya, Vologodskaya, Voronezhskaya,
Ivanovskaya, Irkutskaya, Yevrejskaya avtonomnaya,
Xxxxxxxxxxxxxxxx, Xxxxxxxxxxx, Xxxxxxxxxxxx,
Xxxxxxxxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx, Kurganskaya,
Kurskaya, Leningradskaya, Lipetskaya, Magadanskaya,
Xxxxxxxxxxx,Xxxxxxxxxxx, Xxxxxxxxxxxxxxx,
Xxxxxxxxxxxxx, Xxxxxxxxxxxxxx, Xxxxxxx,
Orenburgskaya, Orlovskaya, Penzenskaya, Permskaya,
Pskovskaya, Rostovskaya, Ryazanskaya, Samarskaya,
Saratovskaya, Sakhalinskaya, Sverdlovskaya,
Smolenskaya, Tambovskaya, Tverskaya, Tomskaya,
Tulskaya, Tyumenskaya, Chelyabinskaya, Chitinskaya,
Ulyanovskaya, Yaroslavskaya;
CITY: Xx. Xxxxxxxxxx;
0 XX 00000 April 09, 1999 - Moscow
Provision of telematic April 09, 2004
services
(Annexe No 1 dated August 25,
1999)
NO 17988 April 26, 2001 - Amurskaya oblast
Provision of local and April 26, 2006
intercity telephone services
XX 00000 Xxxxx 00, 0000 - XXXXXXXX:
Provision of local and April 27, 2005 Bashkortostan, Kalmykia-Khalmg Tangch, Komi,
intercity telephone services Sakha ( Jakutia), Severnaya Osetia-Alania,
Tatarstan, Chuvashskaya; Khakasia
KRAI:
Krasnodarsky, Krasnoyarsky, Primorsky,
Stavropolsky, Khabarovsky;
OBLAST:
Arkhangelskaya, Astrakhanskaya,
Volgogradskaya, Vologodskaya, Voronezhskaya,
Irkutskaya, Kaluzhskaya, Kamchatskaya,
Kemerovskaya, Kirovskaya, Leningradskaya,
Lipetskaya, Xxxxxxxxxxx,Xxxxxxxxxxx,
Xxxxxxxxxxxxxxx, Xxxxxxxxxxxxx,
Xxxxxxxxxxxxxx, Xxxxxxx, Xxxxxxxxxxx,
Permskaya, Rostovskaya, Samarskaya,
Saratovskaya, Sakhalinskaya, Sverdlovskaya,
Tomskaya, Tulskaya, Tyumenskaya,
Chelyabinskaya;
CITY: Moscow, St. Petersburg;
NO 16478 October 26, 2000 - REPUBLIC: Buryatia
Provision of local and October 26, 2005 OBLAST: Magadanskaya
intercity telephone services
(Annexe No 1 dated January
25,2001)
NO 11693 April 02, 1999 - Moscow, Moscow oblast
Provision of local and April 02, 2004
intercity telephone services
-2-
NO 17921 April 26, 2001 - Amurskaya oblast
Provision of local and April 26, 2006
international circuits for
lease
NO 14843 April 27,2000 - REPUBLIC:
Provision of local and April 27, 2005 Bashkortostan, Kalmykia-Khalmg Tangch, Komi,
international circuits for Sakha ( Jakutia), Severnaya Osetia-Alania,
lease Khakasia, Chuvashskaya;
KRAI:
Krasnodarsky, Krasnoyarsky, Primorsky,
Stavropolsky, Khabarovsky;
OBLAST:
Arkhangelskaya, Astrakhanskaya,
Volgogradskaya, Vologodskaya, Voronezhskaya,
Irkutskaya, Kaluzhskaya, Kamchatskaya,
Kemerovskaya, Kirovskaya, Leningradskaya,
Lipetskaya, Xxxxxxxxxxx,Xxxxxxxxxxx,
Xxxxxxxxxxxxxxx, Xxxxxxxxxxxxx,
Xxxxxxxxxxxxxx, Xxxxxxx, Xxxxxxxxxxx,
Permskaya, Rostovskaya, Samarskaya,
Saratovskaya, Sakhalinskaya, Sverdlovskaya,
Tomskaya, Tulskaya, Tyumenskaya,
Chelyabinskaya,
CITY: Xxxxxx;
XX 00000 October 26, 2000 - REPUBLIC: Buryatia
Provision of local and October 26, 2005 OBLAST: Magadanskaya
international circuits for
lease
(Annexe No 1 dated January 25,
2001)
NO 11735 April 09, 1999 - REPUBLIC:
Provision of local, April 09, 2004 Bashkortostan, Tatarstan, Karelia, Komi,
intra-zonal, intercity and Sakha (Jakutia);
international circuits for KRAI:
lease Altaisky, Krasnodarsky, Krasnoyarsky,
Primorsky, Stavropolsky, Khabarovsky;
OBLAST:
Xxxxxxxxxxxxxx, Xxxxxxxxxxxxx, Xxxxxxxxxxxxxx,
Xxxxxxxxxxxxx,
-0-
Xxxxxxxxxxx, Irkutskaya,
Kaliningradskaya, Kurskaya, Leningradskaya,
Lipetskaya, Xxxxxxxxxxx,Xxxxxxxxxxx,
Xxxxxxxxxxxxxxx, Xxxxxxxxxxxxx,
Xxxxxxxxxxxxxx, Xxxxxxx, Orenburgskaya,
Orlovskaya, Permskaya, Pskovskaya,
Rostovskaya, Samarskaya, Saratovskaya,
Sverdlovskaya, Tulskaya, Tyumenskaya,
Chelyabinskaya, Ulyanovskaya, Yaroslavskaya;
CITY: Moscow, St. Petersburg;
NO 8212 October 23, 1998 - REPUBLIC: Bashkortostan, Komi;
Provision of international August 22, 2002 KRAI: Primorsky, Krasnodarsky, Khabarovsky;
circuits for lease OBLAST: Arkhangelskaya, Volgogradskaya,
Voronezhskaya, Irkutskaya, Novosibirskaya,
Nizhegorodskaya, Sverdlovskaya, Tyumenskaya;
CITY: Xxxxxx;
XX 00000 April 09, 1999 - REPUBLIC:
Provision of data April 09, 2004 Adygeya, Bashkortostan, Buryatia, Dagestan,
transmission sevices Tatarstan, Kabardino-Balkarskaya,
Kalmykia-Khalmg Tangch, Karelia, Komi, Mari-El,
Mordovia, Sakha ( Jakutia), Tyva, Udmurtia, Khakasia,
Chuvashia;
KRAI:
Altaisky, Krasnodarsky, Krasnoyarsky, Primorsky,
Stavropolsky, Khabarovsky;
OBLAST:
Xxxxxxxxx, Xxxxxxxxxxxxxx, Xxxxxxxxxxxxxx,
Xxxxxxxxxxxxx, Bryanskaya, Vladimirskaya,
Volgogradskaya, Vologodskaya, Voronezhskaya,
Yevrejskaya avtonomnaya, Ivanovskaya, Irkutskaya,
Xxxxxxxxxxxxxxxx, Xxxxxxxxxxx, Xxxxxxxxxxxx,
Xxxxxxxxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx, Kurganskaya,
Kurskaya, Leningradskaya, Lipetskaya, Magadanskaya,
Moskovskaya, Murmanskaya,
-4-
Nizhegorodskaya, Novgorodskaya, Novosibirskaya,
Omskaya, Orenburgskaya, Orlovskaya, Penzenskaya,
Permskaya, Pskovskaya, Rostovskaya, Ryazanskaya,
Samarskaya, Saratovskaya, Sakhalinskaya,
Sverdlovskaya, Smolenskaya, Tambovskaya, Tverskaya,
Tomskaya, Tulskaya, Tyumenskaya, Chelyabinskaya,
Chitinskaya, Ulyanovskaya, Yaroslavskaya;
CITY: Moscow,
St. Petersburg;
NO 11732 April 09,1999 - Moscow
Provision of audioconference April 09, 2004
communication services
LLC EDN Sovintel
License REGISTRATION DATE/ TERRITORY
------- EXPIRATION DATE
1 NO 19594 October 04, 2001 - Murmanskaya oblast
Provision of telematic October 04, 2006
services
2 NO 17337 February 15, 2001 - KRAI: Krasnodarsky;
Provision of telematic February 15, 2006 OBLAST: Volgogradskaya, Kaluzhskaya,
services Saratovskaya, Xxxxxxxxxxxxxx
0 XX 00000 July 20, 2000 - REPUBLIC: Karelia;
Provision of telematic July 20, 2005 OBLAST: Novgorodskaya, Permskaya,
services Sverdlovskaya;
4 NO 11827 April 16, 1999 - OBLAST:
Provision of telematic April 16, 0000 Xxxxxxxxxxxxxxxx, Xxxxxxxxxx;
services
(Annexe No 1 dated
-5-
March 17, 2000)
5 NO 10250 January 15, 1999 - OBLAST:
Provision of telematic June 26, 0000 Xxxxxxxxxxxxxx, Xxxxxxxxxxx;
services CITY:
(Annexe No 1 dated March 17, Moscow, St. Petersburg;
2000
Annexe No 2 dated
January 25, 2001)
6 NO 19616 October 04, 2001 - Murmanskaya oblast
Provision of local, October 04, 2006
intra-zonal, intercity and
international telephone
services
7 NO 17353 February 15, 2001 - KRAI: Krasnodarsky;
Provision of local, February 15, 2006 OBLAST:
intra-zonal, intercity and Volgogradskaya, Kaluzhskaya, Saratovskaya,
international telephone Chelyabinskaya;
services
8 NO 15600 July 20, 2000 - REPUBLIC: Karelia;
Provision of local, July 20, 2005 OBLAST:
intra-zonal, intercity and Novgorodskaya, Permskaya, Sverdlovskaya;
international telephone
services
9 NO 14479 March 17, 2000 - OBLAST:
Provision of local, March 17, 2008 Kaliningradskaya, Lenigradskaya, Moskovskaya,
intra-zonal, intercity and Pskovskaya;
international telephone CITY:
services Xxxxxx, Xx. Xxxxxxxxxx
(Xxxxxx Xx 0 dated
December 21, 2000
Annexe No 2 dated
January 25, 2001)
10 NO 15598 July 20, 2000 - REPUBLIC: Karelia;
Provision of local, July 20, 2005 OBLAST:
intercity and international Novgorodskaya, Permskaya, Sverdlovskaya;
circuits for lease
11 NO 18738 July 05, 2001 - OBLAST:
Provision of local, July 05, 2006 Moskovskaya; Leningradskaya
intercity and international CITY: Moscow, St. Petersburg;
circuits for lease
-6-
12 NO 19504 October 04, 2001 - Murmanskaya oblast
Provision of local, October 04, 2006
intercity and international
circuits for lease
13 NO 17274 February 15, 2001 - Kaluzhskaya oblast
Provision of local, February 15, 2006
intercity and international
circuits for lease
14 NO 11829 April 16, 1999 - OBLAST:
Provision of local, Xxxxx 00, 0000 Xxxxxxxxxxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxxxxx;
intercity and international
circuits for lease
15 NO 19534 October 04, 2001 - Murmanskaya oblast
Provision of data October 04, 2006
transmission sevices
16 NO 17296 February 15, 2001 - Kaluzhskaya oblast
Provision of data February 15, 2006
transmission sevices
17 NO 15599 July 20, 2000 - REPUBLIC: Karelia;
Provision of data July 20, 2005 OBLAST: Novgorodskaya, Permskaya,
transmission sevices Sverdlovskaya;
18 NO 11826 April 16, 1999 - OBLAST:
Provision of data April 16, 0000 Xxxxxxxxxxxxxxxx, Xxxxxxxxxx;
transmission sevices
19 NO 10228 January 25, 1999 - OBLAST:
Provision of data June 26, 0000 Xxxxxxxxxxxxxx, Xxxxxxxxxxx;
transmission sevices CITY:
Moscow, St. Petersburg;
-7-
SCHEDULE II
EXISTING INDEBTEDNESS
[To be delivered as of the Initial Borrowing Date]
-8-
SCHEDULE III
EXISTING LIENS
[To be delivered as of the Initial Borrowing Date]
-9-
SCHEDULE IV
LENDER ADDRESS
Lender Address
ZAO Citibank Gasheka Street 8-10
Moscow 125047
Russian Federation
Attention: Relationship Manager for
Golden Telecom Group
Telephone: (0-000) 000-0000
Facsimile: (7-095) 725-6700
BORROWER ADDRESS
Borrower Address
ROL Holdings Limited Nicosia Tower Center
00 Xxxxx Xxxxxx
0000 Xxxxxxx, Xxxxxx
Fax: x000 (0) 000 0000
Attn. Xx. Xxxxxx Kourris
With a copy to:
Golden TeleServices, Inc.
00 Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, 000000, Xxxxxx
Fax: x0 (000) 000-0000
Attn. General Counsel
-10-
Schedule 6.01
Notice Regarding Status of Buyer
The value of the Buyer's net assets (as this concept is understood
under Russian accounting rules) is currently less than the amount of its paid in
Charter Capital. Under Russian law, Russian governmental authorities have the
right to initiate liquidation proceedings against the Buyer, and under certain
circumstances, interested third parties of the Buyer may also be deemed to have
the right to initiate liquidation proceedings against the Buyer or request that
such proceedings be initiated by competent Russian authorities. Therefore, all
representations and warranties, covenants and other provisions in this Agreement
or in any other Credit Document that relate to the Buyer are qualified with
respect to the foregoing.
-11-
EXHIBIT A
FORM OF NOTICE OF BORROWING
[Borrower's Letterhead]
NOTICE OF BORROWING
[Date](1)
ZAO CITIBANK
as Lender to the
Credit Agreement referred to below
Xxxxxxx Xxxxxx 0-00
Xxxxxx 000000
Russian Federation
Attention:
Ladies and Gentlemen:
The undersigned, [___________________], refers to the Credit
Agreement dated as of September [___], 2002 (as amended from time to time, the
"CREDIT AGREEMENT," the terms defined therein being used herein as therein
defined) between the undersigned and you, and hereby gives you notice,
irrevocably, pursuant to Section 1.03 of the Credit Agreement, that the
undersigned hereby requests a Borrowing of a Loan under the Credit Agreement,
and in that connection sets forth below the information relating to such
Borrowing (the "PROPOSED BORROWING") as required by Section 1.03 of the Credit
Agreement:
(i) The Business Day of the Proposed Borrowing is
____________, 2002.
(ii) The aggregate principal amount of the Proposed
Borrowing is $__________.
(iii) [The above payment should be made to the following
account:__________________________________] [To
insert if account number different from that
specified in the Credit Agreement]
The undersigned hereby certifies that the following statements
are true on the date hereof (except, with respect to item (B) below, to the
extent such conditions are to be satisfied on the date of the Proposed
Borrowing), and will be true on the date of the Proposed Borrowing:
(A) The date of the Proposed Borrowing is a Business Day;
----------------
(1) At least five Business Days prior to the date of the Loan.
(B) Each of the conditions precedent contained in Section
4 (with respect to the initial Borrowing only) and
Section 5 (with respect to all Borrowings) of the
Credit Agreement has been fully satisfied;
(C) the representations and warranties contained in
Section 6 of the Credit Agreement are true and
correct in all material respects, before and after
giving effect to the Proposed Borrowing and to the
application of the proceeds thereof, as though made
on and as of such date (or if expressly stated to
have been made as of an earlier date, were true and
correct as of such date); and
(D) no Default or Event of Default has occurred and is
continuing, or would result from such Proposed
Borrowing or from the application of the proceeds
thereof.
Very truly yours,
ROL HOLDINGS LIMITED
By:
----------------------------------
Name:
Title:
EXHIBIT C
FORM OF CREDIT PARTY'S OFFICER'S CERTIFICATE
[Credit Party's Letterhead]
Officer's Certificate
I, the undersigned, the [Chairman of the Board/Chief Executive
Officer/President/Vice President/General Director] ___________________ of [ ], a
[_____] organized and existing under the laws of [ ] (the "CREDIT PARTY"), DO
HEREBY CERTIFY that:
1. This Certificate is furnished pursuant to Section 4.04 of
the Credit Agreement dated as of September [__,] 2002 between ROL HOLDINGS
LIMITED and ZAO CITIBANK (such Credit Agreement, as in effect on the date of
this Certificate, is hereinafter referred to as the "CREDIT AGREEMENT"). Unless
otherwise defined herein, capitalized terms used in this Certificate have the
meanings assigned to those terms in the Credit Agreement.
2. The Persons named below have been duly elected and duly
qualified as, and at all times since _____________(1) (to and including the date
hereof) have been, corporate officers of the Credit Party, holding the
respective offices set forth below opposite their names, and the signatures set
forth below opposite their names are their genuine signatures.
Name(2) Office Signature
---------- ---------- ----------
---------- ---------- ----------
---------- ---------- ----------
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3. Attached hereto as Exhibit A is a true and correct copy of
the Certificate/Articles of Incorporation of the Credit Party as
filed/registered with ____________________ on _____________, ____, together with
all amendments thereto adopted through the date hereof.
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(1) Insert a date prior to the time of any corporate action relating to the
Credit Agreement.
(2) Include name, office and signature of each officer who will sign the
Subordination Agreement or any Credit Document, including the officer
who will sign the certification at the end of this certificate.
4. Attached hereto as Exhibit B is a true and correct copy of
the By-Laws/Charter of the Credit Party as in effect on ___________, ____,(3)
together with all amendments thereto adopted through the date hereof.
5. Attached hereto as Exhibit C is a true and correct copy of
resolutions duly adopted by [the Board of Directors of] the Credit Party [at a
meeting] on _________, ____ , at which a quorum was present and acting
throughout, which resolutions have not been revoked, modified, amended or
rescinded and are still in full force and effect. Except as attached hereto as
Exhibit C, no resolutions have been adopted or executed by the [Board of
Directors] of the Credit Party which deal with the execution or performance of
any of the Credit Documents.
6. On the date hereof, the representations and warranties
contained in Section 6 of the Credit Agreement are true and correct in all
material respects, before and after giving effect to the Loan to be incurred by
the Borrower on the date hereof and to the application of the proceeds thereof,
as though made on and as of such date (or if expressly stated to have been made
as of an earlier date, were true and correct as of such date); and
7. On the date hereof, no Default or Event of Default has
occurred and is continuing or would result from the Loan to be incurred by the
Borrower on the date hereof or from the application of the proceeds thereof.
8. I know of no proceeding for the dissolution or liquidation
of the Borrower or threatening its existence.
IN WITNESS WHEREOF, I have hereunto set my hand this __th day
of ________, ____.(4)
[NAME OF CREDIT PARTY]
Name: ____________________
Title: [Chairman of the Board/Chief Executive
Officer/President/Vice President/ General
Director]
I, the undersigned, [Secretary/Assistant Secretary/Director] of the Credit
Party, DO HEREBY CERTIFY that:
[Insert name of Person making the above certifications] is the
duly elected and qualified ____________________ of the Credit Party and the
signature above is his genuine signature.
----------------
(3) Insert same date as in paragraph 2 of this certificate.
(4) Insert the Initial Borrowing Date.
IN WITNESS WHEREOF, I have hereunto set my hand this ____ day
of ___________, ____.
[NAME OF CREDIT PARTY]
Name:________________________
Title:_______________________
[Letterhead of ROL Holdings Limited]
ZAO Citibank
Gasheka Street 8-10
Moscow 125047
Russian Federation
Attention: [_______________]
[Initial Borrowing Date]
Officer's Certificate
Ladies and Gentlemen:
We refer to the Credit Agreement dated September [____], 2002 between
ROL HOLDINGS LIMITED (the "BORROWER") and ZAO CITIBANK with respect to the
making of Loans to the Borrower as contemplated therein (the "AGREEMENT").
Pursuant to Section 4.02 of the Agreement, we hereby confirm that as of
the date hereof all of the conditions in Sections 4.05, 4.06(b), 4.07, 4.14, and
5.01 of the Agreement have been satisfied.
Yours sincerely,
For and on behalf of
ROL HOLDINGS LIMITED
By: ________________________
Name:
Title: [Chairman of the Board/Chief
Executive Officer/President/Vice
President]
EXHIBIT D
INTEREST PLEDGE AGREEMENT
INTEREST PLEDGE AGREEMENT (as amended, modified or
supplemented from time to time, this "Agreement"), dated as of [ ], 2002, made
by [______________] (the "Pledgor") to ZAO CITIBANK, as collateral agent
(together with any successor collateral agent, the "Pledgee"), for the benefit
of the Lender (as defined below). Except as otherwise defined herein, all
capitalized terms used herein and defined in the Credit Agreement (as defined
below) shall be used herein as therein defined.
W I T N E S S E T H :
WHEREAS, ROL Holdings Limited (the "Borrower") and ZAO
Citibank (the "Lender") have entered into a Credit Agreement dated as of
September [__], 2002 (as amended, modified, extended, renewed, restated or
supplemented from time to time, the "Credit Agreement"), providing for the
making of Loans to the Borrower as contemplated therein;
WHEREAS, pursuant to the Parent Guaranty, the Buyer Surety
Agreement and the Sovintel Surety Agreement, each Guarantor has jointly and
severally guaranteed to the Lender the payment when due of all Guaranteed
Obligations as described therein;
WHEREAS, it is a condition precedent to the making of Loans to
the Borrower under the Credit Agreement that the Pledgor shall have executed and
delivered to the Pledgee this Agreement; and
WHEREAS, the Pledgor desires to enter into this Agreement in
order to satisfy the condition described in the preceding paragraph;
NOW, THEREFORE, in consideration of the foregoing and other
benefits accruing to the Pledgor, the receipt and sufficiency of which are
hereby acknowledged, the Pledgor hereby makes the following representations and
warranties to the Pledgee for the benefit of the Lender and hereby covenants and
agrees with the Pledgee for the benefit of the Lender as follows:
1. SECURITY FOR OBLIGATIONS. This Agreement is made by the
Pledgor for the benefit of the Lender to secure:
(i) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations, liabilities
and indebtedness (including, without limitation, principal, premium,
interest, fees, costs and indemnities (including, without limitation,
all interest that accrues after the commencement of any case,
proceeding or other action relating to the bankruptcy, insolvency,
reorganization or similar proceeding of the Pledgor at the rate
provided for in the respective documentation, whether or not a claim
for post-petition interest is allowed in any such
Page 2
proceeding)) of the Borrower and each Guarantor to the Lender, whether
now existing or hereafter incurred under, arising out of, or in
connection with, the Credit Agreement and the other Credit Documents to
which the Borrower or any Guarantor is a party (all such obligations,
liabilities and indebtedness under this clause (i) being herein
collectively called the "Credit Document Obligations");
(ii) any and all reasonable sums advanced by the Pledgee in
order to preserve the Collateral (as hereinafter defined) or preserve
its security interest in the Collateral;
(iii) in the event of any proceeding for the collection or
enforcement of any indebtedness, obligations or liabilities of the
Pledgor referred to in clauses (i) or (ii) above, after an Event of
Default shall have occurred and be continuing, the reasonable expenses
of retaking, holding, preparing for sale or lease, selling or otherwise
disposing of or realizing on the Collateral, or of any exercise by the
Pledgee of its rights hereunder, together with reasonable attorneys'
fees and court costs; and
(iv) all amounts paid by the Pledgee or the Lender as to which
such Person has the right to reimbursement under Section 10 of this
Agreement;
all such obligations, liabilities, sums and expenses set forth in clauses (i)
through (iv) of this Section 1 being herein collectively called the
"Obligations," it being acknowledged and agreed that the "Obligations" shall
include extensions of credit of the types described above, whether outstanding
on the date of this Agreement or extended from time to time after the date of
this Agreement.
2. DEFINITIONS. (a) Reference to singular terms shall include
the plural and vice versa.
(b) The following capitalized terms used herein shall have the
definitions specified below:
"Agreement" has the meaning set forth in the first paragraph
hereof.
"Borrower" has the meaning set forth in the recitals hereto.
"Charter Capital" means the registered charter capital of the
Pledge Company which is equal to [ ] Rubles, as may be adjusted from time to
time;
"Collateral" has the meaning set forth in Section 3.1 hereof.
"Credit Agreement" has the meaning set forth in the recitals
hereto.
"Credit Document Obligations" has the meaning set forth in
Section 1(i) hereof.
"Event of Default" means any Event of Default under, and as
defined in, the Credit Agreement and shall in any event include, without
limitation, any payment default on any of the Obligations after the expiration
of any applicable grace period.
Page 3
"Indemnitees" has the meaning set forth in Section 10 hereof.
"Lender" has the meaning set forth in the recitals hereto.
"Obligations" has the meaning set forth in Section 1 hereof.
"Participatory Interest" means that certain equity interest,
howsoever denominated, owned by the Pledgor in the Pledge Company representing
[50]% of the Charter Capital of the Pledge Company, as more fully described in
Annex B.
"Pledge Company" means [ ] and every successor thereof.
"Pledge Company Assets" means all assets, whether tangible or
intangible and whether real, personal or mixed (including, without limitation,
all participatory interests and other equity interests in other Persons), at any
time owned or represented by any Participatory Interest.
"Pledgee" has the meaning set forth in the first paragraph
hereof.
"Pledgor" has the meaning set forth in the first paragraph
hereof.
"Proceeds" means, with respect to any property, (A) whatever
is acquired upon the sale, lease, license, exchange, or other disposition of
such property; (B) whatever is collected on, or distributed on account of, such
property; (C) rights arising out of such property; (D) to the extent of the
value of such property, claims arising out of the loss, nonconformity, or
interference with the use of, or damage to, such property.
"Roubles" means the lawful money of the Russian Federation.
"Rules" has the meaning set forth in Section 24(d) of this
Agreement.
"Termination Date" has the meaning set forth in Section 19
hereof.
"UCC" means the Uniform Commercial Code as in effect in the
State of New York from time to time.
3. PLEDGE OF SECURITIES, ETC.
3.1 Pledge. (I) To secure the Obligations now or hereafter
owed or to be performed by the Borrower and each Guarantor, the Pledgor does
hereby grant, pledge and assign to the Pledgee, and does hereby create a
continuing security interest in favor of the Pledgee, in all of the right, title
and interest in and to the following, whether now existing or hereafter from
time to time acquired (collectively, the "Collateral"):
(a) the Participatory Interest (to the extent representing
[50]% of the Charter Capital of the Company) owned by the Pledgor and
all of its right, title and interest in the Pledge Company to which
such Participatory Interest relates, including, without
Page 4
limitation, to the fullest extent permitted under the terms and
provisions of the documents and agreements governing the Participatory
Interest and applicable law:
(1) all the capital thereof and its interest in all
profits, losses, Pledge Company Assets and other distributions
to which the Pledgor shall at any time be entitled in respect
of the Participatory Interest;
(2) all other payments due or to become due to the
Pledgor in respect of the Participatory Interest, whether
under any organizational or operating agreement or otherwise,
whether as contractual obligations, damages, insurance
proceeds or otherwise;
(3) all of its claims, rights, powers, privileges,
authority, options, security interests, liens and remedies, if
any, under any organizational or operating agreement, or at
law or otherwise in respect of the Participatory Interest;
(4) all of the Pledgor's rights under any
organizational or operating agreement or at law to exercise
and enforce every right, power, remedy and authority, of the
Pledgor relating to the Participatory Interest, including any
power to terminate, cancel or modify any constitutive
document, limited liability company agreement or operating
agreement, to execute any instruments and to take any and all
other action on behalf of and in the name of the Pledgor in
respect of the Participatory Interest, to make determinations,
to exercise any election (including, but not limited to,
election of remedies) or option or to give or receive any
notice, consent, amendment, waiver or approval, together with
full power and authority to demand, receive, enforce, collect
for any of the foregoing, to enforce or execute other
instruments or orders, to file any claims and to take any
action in connection with any of the foregoing (and with the
exercise of such rights set forth in this Clause (2) being
subject to Section 4); and
(5) all other property hereafter delivered in
substitution for or in addition to any of the foregoing, all
certificates and instruments representing or evidencing such
other property and all cash, securities, interest, dividends,
rights and other property at any time received, receivable or
otherwise distributed in respect of or in exchange for any or
all thereof; and
(b) all Proceeds of any and all of the foregoing.
(II) Notwithstanding anything to the contrary contained in this Section
3.1 or elsewhere in this Agreement, each of the parties hereto acknowledges and
agrees that the security interest granted pursuant to this Section 3.1 to the
Pledgee for the benefit of Lender shall be a first priority senior security
interest in the Collateral and, in the event of any conflict between the
provisions of (x) this Agreement or any other Security Document and (y) the
Acquisition Agreement, the terms of this Agreement and the other Security
Documents shall prevail.
Page 5
(III) The Collateral established hereby shall not extend to any
additional participatory interest now held or hereafter acquired by the Pledgor
through purchase, reorganization, stock dividend, other distribution or
otherwise, in the Pledge Company which is in excess of [ ]% of the Charter
Capital, provided however, that the Pledgor's exercise rights or entitlements
attributable to such participatory interest shall not adversely affect the
Collateral established hereby.
3.2 Procedures. (a) The Pledgor shall cause the Pledge Company
to duly authorize and execute, and deliver to the Pledgee, an agreement for the
benefit of the Pledgee and the Lender substantially in the form of Annex D
hereto (appropriately completed to the reasonable satisfaction of the Pledgee
and with such modifications, if any, as shall be reasonably satisfactory to the
Pledgee) pursuant to which the Pledge Company agrees to comply with any and all
instructions originated by the Pledgee without further consent by the registered
owner and not to comply with instructions regarding such Participatory Interest
originated by any other Person other than a court of competent jurisdiction.
(b) (i) In addition to the actions required to be taken pursuant
to Section 3.2(a) of this Agreement, the Pledgor shall take all actions as may
be reasonably requested from time to time by the Pledgee so that "control" of
such Collateral (within the meaning of Section 8-106 of the UCC or similar
applicable laws) is obtained and at all times held by the Pledgee.
(ii) The Pledgor shall from time to time cause appropriate
financing statements (on Form UCC-1 or an appropriate equivalent) under the UCC
or similar applicable laws, covering all Collateral hereunder (with the form of
such financing statements to be satisfactory to the Pledgee), to be filed in the
relevant filing offices so that at all times the Pledgee has a security interest
in all Collateral which is perfected by the filing of such financing statements
(in each case to the maximum extent perfection by filing may be obtained under
applicable law, including, without limitation, Section 9-312 of the UCC).
3.3 Subsequently Acquired Participatory Interest. In the event
that any Charter Capital adjustments shall have been made at any time after the
date hereof to the Charter Capital such that new participatory interests or
rights thereto are issued, then such newly-acquired participatory interests or
rights thereto, to the extent necessary for the Participatory Interest to
constitute [50%] of the Charter Capital of the Pledge Company as adjusted, shall
automatically be subject to this pledge and the security interests created
pursuant to Section 3.1 of this Agreement and, furthermore, the Pledgor will
promptly thereafter take (or cause to be taken) all action with respect to such
Collateral in accordance with the procedures set forth in Section 3.2 of this
Agreement, and will promptly thereafter deliver to the Pledgee (i) a certificate
executed by a principal executive officer of the Pledgor describing such
Collateral and certifying that the same has been duly pledged in favor of the
Pledgee (for the benefit of the Lender) hereunder and (ii) such supplements to
Annexes A through D hereto as are reasonably necessary to cause such Annexes to
be complete and accurate at such time.
3.4 Transfer Taxes. Each pledge of Collateral under Section
3.1 or Section 3.3 of this Agreement shall be accompanied by any transfer tax
stamps if required in connection with the pledge of such Collateral.
Page 6
3.5 Certain Representations and Warranties Regarding the
Collateral. The Pledgor represents and warrants that on the date hereof: (i) the
jurisdiction of organization of the Pledgor, and the Pledgor's organizational
identification number, is listed in Annex A hereto; (ii) the Participatory
Interest held by the Pledgor consists of the interest described in Annex B
hereto; (iii) the Participatory Interest constitutes that percentage of the
equity interest of the Pledge Company as set forth in Annex B hereto; (iv) the
Pledgor has complied with the respective procedure set forth in Section 3.2(a)
of this Agreement with respect to each item of Collateral; and (v) the Pledge
Company and each of its participants has given its consent to the creation of
the security interest contemplated by this Agreement.
4. VOTING, ETC., WHILE NO EVENT OF DEFAULT. Unless and until
there shall have occurred and be continuing an Event of Default, the Pledgor
shall be entitled to exercise any and all voting and other consensual rights
pertaining to the Collateral owned by it, and to give consents, waivers or
ratifications in respect thereof; provided that, in each case, no vote shall be
cast or any consent, waiver or ratification given or any action taken or omitted
to be taken which would violate or be inconsistent with any of the terms of any
Credit Document, or which could reasonably be expected to have the effect of
impairing the value of the Collateral or any part thereof or the position or
interests of the Pledgee in the Collateral unless expressly permitted by the
terms of the Credit Documents. All such rights of the Pledgor to vote and to
give consents, waivers and ratifications shall not be exercised by the Pledgor
without the prior written consent of the Pledgee in case an Event of Default has
occurred and is continuing, and Section 6 of this Agreement shall become
applicable.
5. DIVIDENDS AND OTHER DISTRIBUTIONS. Unless and until there
shall have occurred and be continuing an Event of Default (a) all cash
dividends, cash distributions, cash Proceeds and other cash amounts payable in
respect of the Collateral shall be paid to the Pledgor; and (b) the Pledgor
shall be entitled to receive and retain as part of the Collateral, subject to
the terms and conditions of this Agreement:
(i) all other or additional stock, notes, participatory
interests, limited liability company interests, partnership interests,
instruments or other securities or property (including, but not limited
to, cash dividends other than as set forth above) paid or distributed
by way of dividend or otherwise in respect of the Collateral;
(ii) all other or additional stock, notes, participatory
interests, limited liability company interests, partnership interests,
instruments or other securities or property (including, but not limited
to, cash) paid or distributed in respect of the Collateral by way of
stock-split, spin-off, split-up, reclassification, combination of
shares or similar rearrangement; and
(iii) all other or additional stock, notes, participatory
interests, limited liability company interests, partnership interests,
instruments or other securities or property (including, but not limited
to, cash) which may be paid in respect of the Collateral by reason of
any consolidation, merger, exchange of stock, conveyance of assets,
redemption, liquidation or similar corporate or other reorganization.
Page 7
All dividends, distributions or other payments which are received by the Pledgor
contrary to the provisions of this Section 5 and Section 6 of this Agreement
shall be received in trust for the benefit of the Pledgee, shall be segregated
from other property or funds of the Pledgor and shall be forthwith paid over to
the Pledgee as Collateral in the same form as so received (with any necessary
endorsement).
6. REMEDIES IN CASE OF AN EVENT OF DEFAULT. If there shall
have occurred and be continuing an Event of Default, then and in every such
case, the Pledgee shall be entitled to exercise all of the rights, powers and
remedies (whether vested in it by this Agreement, any other Credit Document or
by law) for the protection and enforcement of its rights in respect of the
Collateral, and the Pledgee shall be entitled to exercise all the rights and
remedies of a secured party under the UCC or similar applicable laws as in
effect in any relevant jurisdiction and also shall be entitled, without
limitation, to exercise the following rights, which the Pledgor hereby agrees to
be commercially reasonable:
(i) to receive all amounts payable in respect of the
Collateral otherwise payable under Section 5 of this Agreement to the
Pledgor;
(ii) to transfer all or any part of the Collateral into the
Pledgee's name or the name of its nominee or nominees;
(iii) to vote all or any part of the Collateral (whether or
not transferred into the name of the Pledgee) and give all consents,
waivers and ratifications in respect of the Collateral and otherwise
act with respect thereto as though it were the outright owner thereof
(the Pledgor hereby irrevocably constituting and appointing the Pledgee
the proxy and attorney-in-fact of the Pledgor, with full power of
substitution to do so);
(iv) at any time and from time to time, to sell, assign and
deliver, or grant options to purchase, all or any part of the
Collateral, or any interest therein, at any public or private sale,
without demand of performance, advertisement or notice of intention to
sell or of the time or place of sale or adjournment thereof or to
redeem or otherwise (all of which are hereby waived by the Pledgor),
for cash, on credit or for other property, for immediate or future
delivery without any assumption of credit risk, and for such price or
prices and on such terms as the Pledgee in its absolute discretion,
provided that at least 10 days' written notice of the time and place of
any such sale shall be given to the Pledgor. The Pledgee shall not be
obligated to make any such sale of Collateral regardless of whether any
such notice of sale has theretofore been given. The Pledgor hereby
waives and releases to the fullest extent permitted by law any right or
equity of redemption with respect to the Collateral, whether before or
after sale hereunder, and all rights, if any, of marshalling the
Collateral and any other security for the Obligations or otherwise. At
any such sale, unless prohibited by applicable law, the Pledgee on
behalf of the Lender may bid for and purchase all or any part of the
Collateral so sold free from any such right or equity of redemption.
The Pledgor agrees to do or cause to be done all such other acts and
things as may be reasonably necessary to make such disposition or
dispositions of all or any portion of the Collateral valid and binding
and in compliance with any and all applicable laws, regulations,
orders, writs, injunctions, decrees or awards of any and all
Page 8
courts, arbitrators or governmental instrumentalities, domestic or
foreign, having jurisdiction over any such sale or sales, all at the
Pledgor's expense. Neither the Pledgee nor the Lender shall be liable
for failure to collect or realize upon any or all of the Collateral or
for any delay in so doing, except where such failure or delay shall
have been caused by negligence or willful misconduct by either of the
Pledgee or the Lender, nor shall any of them be under any obligation to
take any action whatsoever with regard thereto; and
(v) to set-off any and all Collateral against any and all
Obligations;
it being understood that the Pledgor's obligation so to deliver the Collateral
is of the essence of this Agreement and that, accordingly, upon application to a
court having jurisdiction, the Pledgee shall be entitled to a decree requiring
specific performance by the Pledgor of said obligation.
7. REMEDIES, ETC., CUMULATIVE. Each and every right, power and
remedy of the Pledgee provided for in this Agreement or in any other Credit
Document, or now or hereafter existing at law or in equity or by statute shall
be cumulative and concurrent and shall be in addition to every other such right,
power or remedy. The exercise or beginning of the exercise by the Pledgee or the
Lender of any one or more of the rights, powers or remedies provided for in this
Agreement or any other Credit Document or now or hereafter existing at law or in
equity or by statute or otherwise shall not preclude the simultaneous or later
exercise by the Pledgee or the Lender of all such other rights, powers or
remedies, and no failure or delay on the part of the Pledgee or the Lender to
exercise any such right, power or remedy shall operate as a waiver thereof. No
notice to or demand on the Pledgor in any case shall entitle it to any other or
further notice or demand in similar or other circumstances or constitute a
waiver of any of the rights of the Pledgee or the Lender to any other or further
action in any circumstances without notice or demand.
8. APPLICATION OF PROCEEDS. All monies collected by the
Pledgee upon any sale or other disposition of the Collateral pursuant to the
terms of this Agreement, together with all other monies received by the Pledgee
hereunder, shall be applied as follows:
(i) first, to the payment of all amounts owing the Pledgee or
the Lender of the type described in clauses (ii), (iii) and (iv) of the
definition of "Obligations";
(ii) second, to the extent proceeds remain after the
application pursuant to the preceding clause (i), to the payment of the
Credit Document Obligations; and
(iii) third, to the extent proceeds remain after the
application pursuant to the preceding clauses (i) and (ii), and
following the termination of this Agreement pursuant to Section 19(a)
of this Agreement, to the Pledgor or to whomever may be lawfully
entitled to receive such surplus.
All payments required to be made hereunder shall be made to the Pledgee for the
account of the Lender.
Page 9
9. PURCHASERS OF COLLATERAL. Upon any sale of the Collateral
by the Pledgee hereunder (whether by virtue of the power of sale herein granted,
pursuant to judicial process or otherwise), the receipt of the Pledgee or the
officer making the sale shall be a sufficient discharge to the purchaser or
purchasers of the Collateral so sold, and such purchaser or purchasers shall not
be obligated to see to the application of any part of the purchase money paid
over to the Pledgee or such officer or be answerable in any way for the
misapplication or non-application thereof.
10. INDEMNITY. The Pledgor agrees (i) to indemnify and hold
harmless the Pledgee and the Lender and their respective successors, assigns,
employees, agents and affiliates (individually an "Indemnitee," and collectively
the "Indemnitees") from and against any and all claims, demands, losses,
judgments and liabilities (including liabilities for penalties) of whatsoever
kind or nature, and (ii) to reimburse each Indemnitee for all reasonable costs
and expenses, including reasonable attorneys' fees, in each case growing out of
or resulting from this Agreement, other than those related to the negotiation,
execution and delivery of this Agreement, or the exercise by any Indemnitee of
any right or remedy granted to it hereunder or under any other Credit Document
(but excluding any claims, demands, losses, judgments and liabilities or
expenses to the extent incurred by reason of gross negligence or willful
misconduct of such Indemnitee (as determined by a court of competent
jurisdiction in a final and non-appealable decision)). In no event shall the
Pledgee be liable, in the absence of gross negligence or willful misconduct on
its part, for any matter or thing in connection with this Agreement other than
to account for monies actually received by it in accordance with the terms
hereof. If and to the extent that the obligations of the Pledgor under this
Section 10 are unenforceable for any reason, the Pledgor hereby agrees to make
the maximum contribution to the payment and satisfaction of such obligations
which is permissible under applicable law.
11. PLEDGEE NOT A LIMITED LIABILITY COMPANY MEMBER.
(a) Nothing herein shall be construed to make the Pledgee or
the Lender liable as a member of any limited liability company and neither the
Pledgee nor the Lender by virtue of this Agreement or otherwise shall have any
of the duties, obligations or liabilities of a member of any limited liability
company, unless the Pledgee shall become the absolute owner of Collateral
consisting of a Participatory Interest pursuant hereto.
(b) The Pledgee, by accepting this Agreement, does not intend
to become a member of any limited liability company or otherwise be deemed to be
a co-venturer with respect to the Pledgor, any limited liability company and/or
any other Person either before or after an Event of Default shall have occurred.
The Pledgee shall have only those powers set forth herein and the Lender shall
assume none of the duties, obligations or liabilities of a member of any limited
liability company or the Pledgor.
(c) The Pledgee and the Lender shall not be obligated to
perform or discharge any obligation of the Pledgor as a result of the pledge
hereby effected.
(d) The acceptance by the Pledgee of this Agreement, with all
the rights, powers, privileges and authority so created, shall not at any time
or in any event obligate the
Page 10
Pledgee or the Lender to appear in or defend any action or proceeding relating
to the Collateral to which it is not a party, or to take any action hereunder or
thereunder, or to expend any money or incur any expenses or perform or discharge
any obligation, duty or liability under the Collateral.
12. FURTHER ASSURANCES; POWER-OF-ATTORNEY. (a) The Pledgor
agrees that it will join with the Pledgee in executing and, at the Pledgor's own
expense, file and refile under the UCC or similar applicable laws such financing
statements, continuation statements and other documents in such offices as the
Pledgee may deem reasonably necessary and wherever required by law in order to
perfect, preserve and enforce the Pledgee's security interest in the Collateral
and hereby authorizes the Pledgee to file financing statements and amendments
thereto relative to all or any part of the Collateral without the signature of
the Pledgor where permitted by law, and agrees to do such further acts and
things and to execute and deliver to the Pledgee such additional conveyances,
assignments, agreements and instruments as the Pledgee may reasonably require or
deem necessary to carry into effect the purposes of this Agreement or to further
assure and confirm unto the Pledgee its rights, powers and remedies hereunder.
(b) The Pledgor hereby appoints the Pledgee the Pledgor's
attorney-in-fact, with full authority in the place and stead of the Pledgor and
in the name of the Pledgor or otherwise, to act from time to time solely after
the occurrence and during the continuance of an Event of Default in the
Pledgee's reasonable discretion to take any action and to execute any instrument
which the Pledgee may deem reasonably necessary or advisable to accomplish the
purposes of this Agreement. Without limiting the foregoing, upon the Pledgee's
request, the Pledgor shall promptly grant to the Pledgee a separate
power-of-attorney in form and substance satisfactory to the Pledgee to exercise
the foregoing rights.
13. THE PLEDGEE AS AGENT. The Pledgee will hold in accordance
with this Agreement all items of the Collateral at any time received under this
Agreement. It is expressly understood and agreed by the Lender that by accepting
the benefits of this Agreement the Lender acknowledges and agrees that the
obligations of the Pledgee as holder of the Collateral and interests therein and
with respect to the disposition thereof, and otherwise under this Agreement, are
only those expressly set forth in this Agreement and the other Credit Documents.
The Pledgee shall act hereunder on the terms and conditions set forth herein and
in the other Credit Documents.
14. TRANSFER BY THE PLEDGOR. Unless otherwise consented to in
writing by the Pledgee, the Pledgor will not sell or otherwise dispose of, grant
any option with respect to, or mortgage, pledge or otherwise encumber any of the
Collateral or any interest therein (except as may be permitted in accordance
with the terms of the Credit Documents).
15. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PLEDGOR.
(a) The Pledgor represents, warrants and covenants that:
(i) it is the legal, beneficial and record owner of, and has
good and marketable title to, all Collateral consisting of the
Participatory Interest and that it has sufficient
Page 11
interest in all Collateral in which a security interest is purported to
be created hereunder for such security interest to attach (subject, in
each case, to no pledge, lien, mortgage, hypothecation, security
interest, charge, option, claim of property interest therein or other
encumbrance whatsoever, except the liens and security interests created
by this Agreement);
(ii) it has full power, authority and legal right to pledge
all the Collateral pledged by it pursuant to this Agreement;
(iii) this Agreement has been duly authorized, executed and
delivered by the Pledgor and constitutes a legal, valid and binding
obligation of the Pledgor enforceable against the Pledgor in accordance
with its terms, except to the extent that the enforceability hereof may
be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws generally affecting creditors' rights;
(iv) except to the extent already obtained or made, no consent
of any other party (including, without limitation, any stockholder,
partner, member or creditor of the Pledgor or any of its Subsidiaries)
and no consent, license, permit, approval or authorization of,
exemption by, notice or report to, or registration, filing or
declaration with, any governmental authority is required to be obtained
by the Pledgor in connection with (a) the execution, delivery or
performance of this Agreement, (b) the validity or enforceability of
this Agreement, (c) the perfection or enforceability of the Pledgee's
security interest in the Collateral or (d) except for compliance with
or as may be required by applicable laws, the exercise by the Pledgee
of any of its rights or remedies provided herein;
(v) the execution, delivery and performance of this Agreement
will not violate any provision of any applicable law or regulation or
of any order, judgment, writ, award or decree of any court, arbitrator
or governmental authority, domestic or foreign, applicable to the
Pledgor, or of the certificate or articles of incorporation,
certificate of formation, operating agreement, limited liability
company agreement, partnership agreement or by-laws of the Pledgor, as
applicable, or of any securities issued by the Pledgor or any of its
Subsidiaries, or of any mortgage, deed of trust, indenture, lease, loan
agreement, credit agreement or other material contract, agreement or
instrument or undertaking to which the Pledgor or any of its
Subsidiaries is a party or which purports to be binding upon the
Pledgor or any of its Subsidiaries or upon any of their respective
assets and will not result in the creation or imposition of (or the
obligation to create or impose) any lien or encumbrance on any of the
assets of the Pledgor or any of its Subsidiaries except as contemplated
by this Agreement;
(vi) all of the Collateral consisting of Participatory
Interests has been duly and validly issued and acquired, is fully paid
and non-assessable and is subject to no options to purchase or similar
rights;
(vii) the pledge pursuant to this Agreement creates a valid
and perfected first priority security interest in the Collateral (to
the extent such security interest may be
Page 12
perfected by filing a financing statement pursuant to Article 9 of the
UCC) subject to the requirements of Russian law, if and to the extent
applicable, subject to no prior Lien or encumbrance or to any agreement
purporting to grant to any third party a Lien or encumbrance on the
property or assets of the Pledgor which would include the Participatory
Interest and the Pledgee is entitled to all the rights, priorities and
benefits afforded by the UCC or other similar applicable law as enacted
in any relevant jurisdiction to perfect security interests in respect
of such Collateral; and
(ix) "control" (within the meaning of Section 8-106 of the UCC
or similar applicable laws) has been obtained by the Pledgee over all
Collateral with respect to which such "control" may be obtained.
(b) The Pledgor covenants and agrees that it will defend the
Pledgee's right, title and security interest in and to the Participatory
Interest and the Proceeds thereof against the claims and demands of all Persons
whomsoever, and the Pledgor covenants and agrees that it will have like title to
and right to pledge any other property at any time hereafter pledged to the
Pledgee as Collateral hereunder and will likewise defend the right thereto and
security interest therein of the Pledgee and the Lender.
16. JURISDICTION OF ORGANIZATION; CHIEF EXECUTIVE OFFICE;
RECORDS. The jurisdiction of organization of the Pledgor is specified in Annex A
hereto. The chief executive office of the Pledgor is located at the address
specified in Annex C hereto. The Pledgor will not change the jurisdiction of its
organization except to such new jurisdiction or location as the Pledgor may
establish in accordance with the last sentence of this Section 16. The Pledgor
shall not establish a new jurisdiction of organization until (i) it shall have
given to the Pledgee not less than 15 days' prior written notice of its
intention so to do, clearly describing such new jurisdiction of organization and
providing such other information in connection therewith as the Pledgee may
reasonably request and (ii) with respect to such new jurisdiction of
organization, it shall have taken all action, satisfactory to the Pledgee, to
maintain the security interest of the Pledgee in the Collateral intended to be
granted hereby at all times fully perfected and in full force and effect.
Promptly after establishing a new jurisdiction of organization in accordance
with the immediately preceding sentence, the Pledgor shall deliver to the
Pledgee a supplement to Annex A hereto so as to cause such Annex A to be
complete and accurate.
17. PLEDGOR'S OBLIGATIONS ABSOLUTE, ETC. The obligations of
the Pledgor under this Agreement shall be absolute and unconditional and shall
remain in full force and effect without regard to, and shall not be released,
suspended, discharged, terminated or otherwise affected by, any circumstance or
occurrence whatsoever, including, without limitation: (i) any renewal,
extension, amendment or modification of or addition or supplement to or deletion
from any Credit Document or any other instrument or agreement referred to
therein, or any assignment or transfer of any thereof; (ii) any waiver, consent,
extension, indulgence or other action or inaction under or in respect of any
such agreement or instrument including, without limitation, this Agreement;
(iii) any furnishing of any additional security to the Pledgee or its assignee
or any acceptance thereof or any release of any security by the Pledgee or its
assignee; (iv) any limitation on any party's liability or obligations under any
such instrument or agreement or any invalidity or unenforceability, in whole or
in part, of any such instrument or
Page 13
agreement or any term thereof; or (v) any bankruptcy, insolvency,
reorganization, composition, adjustment, dissolution, liquidation or other like
proceeding relating to the Pledgor or any Subsidiary of the Pledgor, or any
action taken with respect to this Agreement by any trustee or receiver, or by
any court, in any such proceeding, whether or not the Pledgor shall have notice
or knowledge of any of the foregoing.
18. REGISTRATION, ETC. (a) If there shall have occurred and be
continuing an Event of Default then, and in every such case, upon receipt by the
Pledgor from the Pledgee of a written request or requests that the Pledgor cause
any registration, qualification or compliance under any Federal, state or
Russian securities law or laws to be effected with respect to all or any part of
the Participatory Interest of, or owned by, the Pledgor, the Pledgor as soon as
practicable and at its expense will cause such registration to be effected (and
be kept effective) and will cause such qualification and compliance to be
declared effected (and be kept effective) as may be so requested and as would
permit or facilitate the sale and distribution of such Collateral, provided
however, that in no event shall the Pledgor be required to undertake any of the
foregoing, if the sale, assignment or any other transfer of such Collateral or
any rights thereto shall be directly or indirectly solicited, agreed upon, or
consummated in countries other than the Russian Federation or the United States
of America.
(b) If at any time when the Pledgee shall determine to
exercise its right to sell all or any part of the Collateral consisting of the
Participatory Interest pursuant to Section 6 of this Agreement, and the
Collateral or the part thereof to be sold shall not, for any reason whatsoever,
be in compliance with any government requirements applicable thereto, as then in
effect, the Pledgee may, in its sole and absolute discretion, sell such
Collateral, as the case may be, or part thereof by private sale in such manner
and under such circumstances as the Pledgee may deem necessary or advisable in
order that such sale may legally be effected without such registration.
19. TERMINATION; RELEASE. (a) After the Termination Date, this
Agreement and the security interests created hereby shall automatically
terminate (provided that all indemnities set forth herein including, without
limitation, in Section 10 of this Agreement shall survive any such termination),
and the Pledgee, at the request and expense of the Pledgor, will execute and
deliver to the Pledgor a proper instrument or instruments acknowledging the
satisfaction and termination of this Agreement, and will duly assign, transfer
and deliver to the Pledgor (without recourse and without any representation or
warranty) such of the Collateral as has not theretofore been sold or otherwise
applied or released pursuant to this Agreement, together with any monies at the
time held by the Pledgee or any of its sub-agents hereunder. As used in this
Agreement, "Termination Date" shall mean the date upon which the Lender's
commitment to lend under the Credit Agreement has been terminated, all Loans
thereunder have been repaid in full and all other Obligations have been paid in
full.
(b) In the event that any part of the Collateral is sold in
connection with a sale permitted by the Credit Documents (other than a sale to
the Pledgor or any Subsidiary thereof) or is otherwise released with the consent
of the Lender and the proceeds of such sale or sales or from such release are
applied in accordance with the provisions of the Credit Agreement, to the extent
required to be so applied, the Pledgee, at the request and expense of the
Pledgor, will duly
Page 14
assign, transfer and deliver to the Pledgor (without recourse and without any
representation or warranty) such of the Collateral (and releases therefor) as is
then being (or has been) so sold or released and has not theretofore been
released pursuant to this Agreement.
(c) At any time that the Pledgor desires that the Pledgee
assign, transfer and deliver Collateral (and releases therefor) as provided in
Section 19(a) or (b) of this Agreement, it shall deliver to the Pledgee a
certificate signed by a principal executive officer of the Pledgor stating that
the release of the respective Collateral is permitted pursuant to such Section
19(a) or (b).
(d) The Pledgee shall have no liability whatsoever to the
Lender as the result of any release of Collateral by it in accordance with, or
which it in good faith believes is in accordance with, this Section 19.
20. NOTICES, ETC. All notices and communications hereunder
shall be in writing and sent or delivered by facsimile or courier service and
all such notices and communications shall, when sent by facsimile or courier, be
effective when delivered to the overnight courier or sent by facsimile, except
that notices and communications to the Pledgee or the Pledgor shall not be
effective until received by the Pledgee or the Pledgor, as the case may be. All
such notices and other communications shall be addressed as follows:
(a) if to the Pledgor, at its address set forth opposite its
signature below;
(b) if to the Pledgee, at:
Xxxxxxx Xxxxxx 0-00
Xxxxxx 000000
Russian Federation
Attention: Relationship Manager for the Golden
Telecom Group
Telephone No.: (0-000) 000-0000
Facsimile No.: (7-095) 725-6700
(c) if to the Lender, at such address as the Lender shall have
specified in the Credit Agreement;
or at such other address or addressed to such other individual as shall have
been furnished in writing by any Person described above to the party required to
give notice hereunder.
21. WAIVER; AMENDMENT. Except as provided in Section 19 of
this Agreement, none of the terms and conditions of this Agreement may be
changed, waived, modified or varied in any manner whatsoever unless in writing
duly signed by the Pledgor and the Pledgee (with the written consent of the
Lender) at all times prior to the time on which all Credit Document Obligations
have been paid in full.
22. MISCELLANEOUS. This Agreement shall be binding upon the
parties hereto and their respective successors and assigns and shall inure to
the benefit of and be
Page 15
enforceable by each of the parties hereto and its successors and assigns,
provided that the Pledgor may not assign any of its rights or obligations under
this Agreement except in accordance with the terms of the Credit Documents. The
headings in this Agreement are for purposes of reference only and shall not
limit or define the meaning hereof. This Agreement may be executed in any number
of counterparts, each of which shall be an original, but all of which shall
constitute one instrument. In the event that any provision of this Agreement
shall prove to be invalid or unenforceable, such provision shall be deemed to be
severable from the other provisions of this Agreement which shall remain binding
on all parties hereto.
23. RECOURSE. This Agreement is made with full recourse to the
Pledgor and pursuant to and upon all the representations, warranties, covenants
and agreements on the part of the Pledgor contained herein and in the other
Credit Documents and otherwise in writing in connection herewith or therewith.
24. GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER
OF JURY TRIAL. (a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF
THE STATE OF NEW YORK. SUBJECT TO THE OPTION IN SECTION (d) BELOW, ANY LEGAL
ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN THE COURTS
OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF
NEW YORK, IN EACH CASE WHICH ARE LOCATED IN THE COUNTY OF NEW YORK, AND, BY
EXECUTION AND DELIVERY OF THIS AGREEMENT, THE PLEDGOR HEREBY IRREVOCABLY ACCEPTS
FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE
JURISDICTION OF THE AFORESAID COURTS. THE PLEDGOR HEREBY FURTHER IRREVOCABLY
WAIVES ANY CLAIM THAT ANY SUCH COURTS LACK PERSONAL JURISDICTION OVER THE
PLEDGOR AND AGREES NOT TO PLEAD OR CLAIM, IN ANY LEGAL ACTION OR PROCEEDING WITH
RESPECT TO THIS AGREEMENT BROUGHT IN ANY OF THE AFOREMENTIONED COURTS, THAT SUCH
COURTS LACK PERSONAL JURISDICTION OVER THE PLEDGOR. THE PLEDGOR FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED
COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY
REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO THE PLEDGOR AT ITS ADDRESS SET
FORTH HEREIN, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING. THE
PLEDGOR HEREBY IRREVOCABLY WAIVES ANY OBJECTION TO SUCH SERVICE OF PROCESS AND
FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION OR
PROCEEDING COMMENCED HEREUNDER THAT SERVICE OF PROCESS WAS IN ANY WAY INVALID OR
INEFFECTIVE. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE PLEDGEE OR THE LENDER
TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL
PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE PLEDGOR IN ANY OTHER JURISDICTION.
Page 16
(b) THE PLEDGOR HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH
IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID
ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT
BROUGHT IN THE COURTS REFERRED TO IN SECTION (a) ABOVE AND HEREBY FURTHER
IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY
SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.
(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
(d) Any dispute, controversy or claim arising out of, relating
to or in connection with this Agreement, including any question regarding its
existence, validity or termination, or regarding a breach of this Agreement,
shall at the option of either of the parties hereto be referred to, and finally
settled by arbitration under and in accordance with, the Rules of Arbitration of
the International Chamber of Commerce then in effect (the "Rules"), which Rules
are deemed to be incorporated by reference into this Section 24(d). The place of
arbitration shall be New York, New York, and the award shall be deemed to have
been made there. The arbitral tribunal may, however, hold hearings, meetings or
sessions anywhere convenient. Each of the Pledgor and the Pledgee shall be
entitled to select one of the arbitrators. The third arbitrator shall be
selected by the President of the ICC International Court of Arbitration in
accordance with the Rules and shall serve as the presiding arbitrator. The
language to be used in the arbitral proceedings shall be English. The award of
the arbitral tribunal shall be in writing and state the reasons upon which it is
based. Any monetary award shall be made in Dollars. The award of the arbitral
tribunal shall be final and binding on the parties hereto. Judgment upon an
arbitral award rendered by the arbitral tribunal may be entered in any court
having jurisdiction.
* * * *
Page 18
IN WITNESS WHEREOF, the Pledgor and the Pledgee have caused
this Agreement to be executed by their duly elected officers duly authorized as
of the date first above written.
Address: [ ]
as Pledgor
Attention:
Tel. No.:
Fax No.: By: __________________________
Name:
Title:
Accepted and Agreed to:
ZAO CITIBANK,
as Pledgee
By: __________________________
Name
Title:
By: __________________________
Name
Title:
ANNEX A
to
INTEREST PLEDGE AGREEMENT
JURISDICTION OF ORGANIZATION
Organizational Identification
-----------------------------
Name of Pledgor Jurisdiction of Organization Number
--------------- ---------------------------- ------
ANNEX B
to
INTEREST PLEDGE AGREEMENT
DESCRIPTION OF PARTICIPATORY INTEREST
Name of the Pledge Company Type of Interest Percentage in Charter Capital Nominal Value
-------------------------- ---------------- ------------------------------ -------------
Represented by the Participatory
--------------------------------
Interest
--------
ANNEX C
to
INTEREST PLEDGE AGREEMENT
LIST OF CHIEF EXECUTIVE OFFICES
Pledgor Chief Executive Office
------- ----------------------
ANNEX D
to
PLEDGE AGREEMENT
Form of Control Agreement
AGREEMENT (as amended, modified or supplemented from time to
time, this "Agreement"), dated as of [_______ __, 2002,] among the undersigned
pledgor (the "Pledgor"), ZAO Citibank, not in its individual capacity but solely
as collateral agent (the "Pledgee"), and [__________,] as the issuer of the
Issuer Pledged Interests (as defined below) (the "Pledge Company").
W I T N E S S E T H :
WHEREAS, the Pledgor and the Pledgee have entered into a
Pledge Agreement, dated as of [ ], 2002 (as amended, amended and restated,
modified or supplemented from time to time, the "Pledge Agreement"), under
which, among other things, in order to secure the payment of the Obligations (as
defined in the Pledge Agreement), the Pledgor will pledge to the Pledgee for the
benefit of the Lender (as defined in the Pledge Agreement) all of the right,
title and interest of the Pledgor in and to the Participatory Interest (as
defined in the Pledge Agreement) and not represented by a certificate (the
"Issuer Pledged Interests"); and
WHEREAS, the Pledgor desires the Pledge Company to enter into
this Agreement in order to protect the security interest of the Pledgee under
the Pledge Agreement in the Issuer Pledged Interests, to vest in the Pledgee
control of the Issuer Pledged Interests and to provide for the rights of the
parties under this Agreement;
NOW, THEREFORE, in consideration of the premises and the
mutual promises and agreements contained herein, and for other valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. The Pledgor hereby irrevocably authorizes and directs the
Pledge Company, and the Pledge Company hereby agrees, to comply with any and all
lawful and reasonable instructions and orders originated by the Pledgee (and its
successors and assigns) regarding any and all of the Issuer Pledged Interests
without the further consent by the registered owner (including the Pledgor),
and, after receiving a notice from the Pledgee stating that an "Event of
Default" has occurred and is continuing, not to comply with any instructions or
orders regarding any or all of the Issuer Pledged Interests originated by any
person or entity other than the Pledgee (and its successors and assigns) or a
court of competent jurisdiction.
2. The Pledge Company hereby certifies that (i) no notice of
any security interest, lien or other encumbrance or claim affecting the Issuer
Pledged Interests (other than the security interest of the Pledgee) has been
received by it, and (ii) the security interest of the Pledgee in the Issuer
Pledged Interests has been registered in the books and records of the Pledge
Company.
Annex D
Page 2
3. The Pledge Company hereby unconditionally consents to the
creation of the security interest contemplated by the Pledge Agreement and this
Agreement, and represents and warrants that (i) the pledge by the Pledgor of,
and the granting by the Pledgor of a security interest in, the Issuer Pledged
Interests to the Pledgee, for the benefit of the Lender, does not violate the
charter, by-laws, partnership agreement, membership agreement or any other
agreement governing the Pledge Company or the Issuer Pledged Interests and (ii)
the Issuer Pledged Interests are fully paid and nonassessable.
4. All notices, statements of accounts, reports, prospectuses,
financial statements and other communications to be sent to the Pledgor by the
Pledge Company in respect of the Pledge Company will also be sent to the Pledgee
at the following address:
Xxxxxxx Xxxxxx 0-00
Xxxxxx 000000
Russian Federation
Attention: _________________
Telephone No.: _____________
Telecopier No.: ____________
5. Until the Pledgee shall have delivered written notice to
the Pledge Company that all of the Obligations have been paid in full and this
Agreement is terminated, the Pledge Company will, upon receiving notice from the
Pledgee stating that an "Event of Default" has occurred and is continuing, send
any and all redemptions, distributions, interest or other payments in respect of
the Issuer Pledged Interests from the Pledge Company for the account of the
Pledgor only by wire transfers to the following address:
_______________________
_______________________
_______________________
ABA No.: ___________________________
Account in the Name of: ____________
Account No.: ______________________
6. Except as expressly provided otherwise in Sections 4 and 5,
all notices shall be sent or delivered by telegraph, telex, telecopy, cable or
courier service and all such notices and communications shall, when telegraphed,
telexed, telecopied, or cabled or sent by courier, be effective when delivered
to the telegraph company, cable company or courier, as the case may be, or sent
by telex or telecopier, except that notices and communications to the Pledgee,
the Pledgor or the Pledge Company shall not be effective until received by the
Pledgee, the Pledgor or the Pledge Company, as the case may be. All notices and
other communications shall be in writing and addressed as follows:
Annex D
Page 3
(a) if to the Pledgor, at:
_______________________
_______________________
_______________________
Attention: ___________
Telephone No.:
Telecopier No.:
(b) if to the Pledgee, at the address set forth in
Section 4
(c) if to the Pledge Company, at:
___________________________
___________________________
or at such other address as shall have been furnished in writing by any Person
described above to the party required to give notice hereunder.
7. This Agreement shall be binding upon the successors and
assigns of the Pledgor and the Pledge Company and shall inure to the benefit of
and be enforceable by the Pledgee and its successors and assigns. This Agreement
may be executed in any number of counterparts, each of which shall be an
original, but all of which shall constitute one instrument. In the event that
any provision of this Agreement shall prove to be invalid or unenforceable, such
provision shall be deemed to be severable from the other provisions of this
Agreement which shall remain binding on all parties hereto. None of the terms
and conditions of this Agreement may be changed, waived, modified or varied in
the manner whatsoever except in writing signed by the Pledgee, the Pledge
Company and the Pledgor.
8. (a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE
LAW OF THE STATE OF NEW YORK. SUBJECT TO THE OPTION IN SECTION (d) BELOW, ANY
LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN THE
COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF NEW YORK, IN EACH CASE WHICH ARE LOCATED IN THE COUNTY OF NEW YORK,
AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE PLEDGOR AND THE
PLEDGE COMPANY HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID
COURTS. EACH OF THE PLEDGOR AND THE PLEDGE COMPANY HEREBY FURTHER IRREVOCABLY
WAIVES ANY CLAIM THAT ANY SUCH COURTS LACK PERSONAL JURISDICTION OVER SUCH
PERSON AND AGREES NOT TO PLEAD OR CLAIM, IN ANY LEGAL ACTION OR PROCEEDING WITH
Annex D
Page 4
RESPECT TO THIS AGREEMENT BROUGHT IN ANY OF THE AFOREMENTIONED COURTS, THAT SUCH
COURTS LACK PERSONAL JURISDICTION OVER SUCH PERSON. EACH OF THE PLEDGOR AND THE
PLEDGE COMPANY FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY
OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF
COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO SUCH PERSON
AT ITS ADDRESS SET FORTH HEREIN, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER
SUCH MAILING. EACH OF THE PLEDGOR AND PLEDGE COMPANY HEREBY IRREVOCABLY WAIVES
ANY OBJECTION TO SUCH SERVICE OF PROCESS AND FURTHER IRREVOCABLY WAIVES AND
AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION OR PROCEEDING COMMENCED HEREUNDER
THAT SERVICE OF PROCESS WAS IN ANY WAY INVALID OR INEFFECTIVE. NOTHING HEREIN
SHALL AFFECT THE RIGHT OF THE PLEDGEE TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST
THE PLEDGOR OR THE PLEDGE COMPANY IN ANY OTHER JURISDICTION.
(b) EACH OF THE PLEDGOR AND THE PLEDGE COMPANY HEREBY
IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR
IN CONNECTION WITH THIS AGREEMENT BROUGHT IN THE COURTS REFERRED TO IN SECTION
(a) ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM
IN ANY SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT
HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
(d) Any dispute, controversy or claim arising out of, relating
to or in connection with this Agreement, including any question regarding its
existence, validity or termination, or regarding a breach of this Agreement,
shall at the option of any of the signatories hereto be referred to, and finally
settled by arbitration under and in accordance with, the Rules of Arbitration of
the International Chamber of Commerce then in effect (the "Rules"), which Rules
are deemed to be incorporated by reference into this Section 8(d). The place of
arbitration shall be New York, New York, and the award shall be deemed to have
been made there. The arbitral tribunal may, however, hold hearings, meetings or
sessions anywhere convenient. The arbitral tribunal shall consist of three
arbitrators. Each of the Pledgee, on the one hand, and the Pledgor and the
Pledge Company, on the other hand, shall each be entitled to select one
arbitrator. The third arbitrator shall be appointed by the President of the ICC
International Court of Arbitration in accordance with the Rules, who shall also
serve as the presiding arbitrator. The language to be used in the arbitral
proceedings shall be English. The award of the arbitral tribunal shall be in
writing and state the reasons upon which it is based. Any monetary award shall
be made in
Annex D
Page 5
Dollars. The award of the arbitral tribunal shall be final and binding on the
parties hereto. Judgment upon an arbitral award rendered by the arbitral
tribunal may be entered in any court having jurisdiction.
Annex D
Page 6
IN WITNESS WHEREOF, the Pledgor, the Pledgee and the Pledge
Company have caused this Agreement to be executed by their duly elected officers
duly authorized as of the date first above written.
[________________________________],
as Pledgor
By_____________________________
Name:
Title:
ZAO CITIBANK,
not in its individual capacity but solely as
Pledgee
By_____________________________
Name:
Title:
By_____________________________
Name:
Title:
[________________________________],
[as the Pledge Company]
By_____________________________
Name:
Title:
By_____________________________
Name:
Title:
EXHIBIT E
[TRANSLATION FROM RUSSIAN]
AGREEMENT
ON ASSIGNMENT OF PAYMENT RIGHTS TO SECURE OBLIGATIONS
This Agreement on Assignment of Payment Rights to Secure Obligations,
hereinafter referred to as this "Assignment Agreement," is concluded this day,
[____________], 2002, in the City of Moscow (Russian Federation), by and
between:
(1) OOO "TeleRoss," a limited liability company established under the laws of
the Russian Federation and located at 27-29 Xxxxxxxxxxx-Xxxxxxx Xxxxxxxx, xxxx.
0, Xxxxxx 000000, Xxxxxx [643] (hereinafter referred to as the "Surety"),
represented by its General Director, Xxxx Abbeloos, acting on the basis of its
Charter, on one side, and
(2) ZAO "CITIBANK," a bank established under the laws of the Russian Federation
and located at 0-00 Xxxxxxx Xxxxxx, Xxxxxx 000000, Xxxxxx (hereinafter referred
to as the "Bank"), represented by [__________________], acting on the basis of
[___________________], on the other side,
hereinafter jointly referred to as the "Parties."
WHEREAS, on _____________, 2002, the Bank and the Surety entered into that
certain Surety Agreement (the "Surety Agreement"), pursuant to which the Surety
has guaranteed the fulfillment by ROL Holdings Limited (the "Borrower") of all
of the Borrower's obligations under the Credit Agreement in an amount of up to
thirty million US Dollars (US $30,000,000) signed by and between the Borrower
and the Bank on September [__], 2002 (the "Credit Agreement"), and
WHEREAS, the Surety has entered into certain agreements on provision of
communication services by the Surety (the "Supply Agreements"), as listed in
Exhibit 3 to this Assignment Agreement (with the companies referred to in such
agreements as the "Purchasers"),
THEREFORE, the Parties have entered into this Assignment Agreement on the
following:
1. DEFINITIONS
1.1. Terms and definitions used herein shall have the meanings assigned to
them in the Surety Agreement.
1.2. Unless the context requires otherwise, terms denoting the singular may
signify the plural and vice versa.
2. subject of the assignment agreement
2.1. The subject of this Assignment Agreement is the assignment, as of the
Payment Rights Transfer Date (as defined below), of current and future
rights
to payments in favor of the Surety against the Purchasers arising out
of the Supply Agreements (the "Payment Rights"), such assignment to be
made for the purposes of securing the Surety's monetary obligations
toward the Bank under the Surety Agreement.
2.2. The Payment Rights to be assigned on the Payments Rights Transfer Date
shall include monetary claims of the Surety against the Purchasers with
respect to the funds to be paid by the Purchasers to the Surety under
the Supply Agreements.
3. OBLIGATION SECURED WITH ASSIGNMENT
3.1. The assignment of the Payment Rights, as provided for herein, shall
secure the Bank's claims against the Surety with respect to payment of
the Required Amount under the Surety Agreement to the extent of such
Required Amount at the moment of such payment (hereinafter the "Secured
Payment Rights").
4. OBLIGATIONS OF THE PARTIES
4.1. Throughout the term of this Assignment Agreement, the Surety is
obligated:
4.1.1. Concurrently with execution of this Assignment Agreement
provide a calculation of the approximate amount of receivables
due from each of the Purchasers under the respective Supply
Agreements (quarterly average), prepared by the Surety, in the
form attached hereto as Exhibit 3, and signed by authorized
representatives of the Surety.
4.1.2. Not later than the [25th] business day of each quarter, to
provide the Bank with information in the form of Exhibit 4
with respect to payments from the Purchasers for the quarter
preceding the then-current quarter.
4.1.3. To continue performing all of the obligations to the
Purchasers, as set forth in the relevant Supply Agreements,
provided that the Purchasers fulfill their respective
obligations to the Surety.
4.1.4. To inform the Bank, upon the Bank's request, of all material
information important for the fulfillment of the Payment
Rights, including information about the fulfillment by the
Purchasers of their obligations to the Surety, any events of
the Purchasers' failure to fulfill their obligations to the
Surety, which relate to the Payment Rights, as well as of any
facts and circumstances, which, in the Bank's reasonable
opinion, may materially affect the validity and amount of the
Payment Rights. If any event occurs, which, in the Surety's
opinion, substantially affects the validity and amount of the
Payment Rights, the Surety must immediately inform the Bank
thereof.
2
4.1.5. To send a notice to the Purchasers of the conclusion of this
Assignment Agreement, to be prepared in the form of Exhibit 1
to this Assignment Agreement (the "Notice").
4.1.6. To ensure that all payments by the Purchasers under the Supply
Agreements be made only to the Surety's settlement account
opened by the Surety with the Bank and specified in Article 10
hereof.
4.1.7. To provide the Bank with a copy of each Notice, as provided in
Subsection 4.1.5 hereof, together with the original of each
Confirmation Receipt with respect to each such Notice, to be
prepared in the form of Exhibit 2 and signed by the relevant
Purchaser.
4.1.8. To sign any amendments to the Supply Agreements, relating to,
and having a material effect on, the Payment Rights only with
the Bank's prior written consent.
4.1.9. Not to take any actions that entail the termination of the
Payment Rights or any reduction of their value, without the
prior written consent of the Bank.
4.1.10. Not to dispose, in any way, of the Payment Rights assigned
hereunder, not to assign the Payment Rights to third parties,
not to pledge or encumber the Payment Rights otherwise, and
not to permit any arrest of, or recovery against, the Payment
Rights, as well as proceeds under the Payment Rights credited
to the Surety's accounts with the Bank prior to the transfer
of the Payment Rights to Bank.
4.1.11. After occurrence of the Payment Rights Transfer Date, as
provided herein, to assist the Bank in collecting money due
under the Payment Rights, and to fulfill all of the Bank's
instructions and requests connected therewith, which are
reasonable and necessary with respect to the foregoing.
4.1.12. After occurrence of the Payment Rights Transfer Date, to
issue, at the Bank's request, to the Bank a power of attorney
authorizing the Bank to act on behalf of the Surety in any
disputes with the Purchasers in connection with fulfillment of
the Payment Rights hereunder.
4.2. The conclusion and fulfillment of this Assignment Agreement does not
result in the creation of any obligations of the Bank to the Purchasers
with respect to the Payment Rights (except for any actions related to
provision of information and documents that are necessary for the
Purchasers to effect payments pursuant to the Payment Rights).
3
4.3. Before and after the transfer of the Claims to the Bank, the Bank is
entitled, acting reasonably, to request from the Surety information as
to the status and amount of the Claims, as well as information about
the fulfillment by the Purchasers of their obligations to the Surety
5. TRANSFER OF CLAIMS
5.1. The Surety's Payment Rights shall be transferred to the Bank as of the
Payment Rights Transfer Date, in the event that the Surety fails to
fulfill its monetary obligations under the Surety Agreement, as
provided in Section 5.2 of the Surety Agreement.
5.2. In order to transfer the Payment Rights, the Bank (provided that the
conditions set forth in Section 5.1 hereof exist), without any prior
approval of the Surety, shall send notices of the transfer of the
Payment Rights to the relevant Purchaser and to the Surety, which
notices shall contain, among other things, an instruction to such
Purchaser to transfer monetary funds in accordance with the payment
details specified by the Bank. The Payment Rights shall be deemed
transferred from the Surety to the Bank at the date on which the Bank
sends such notices to the relevant Purchaser and the Surety (the
"Payment Rights Transfer Date").
5.3. All of the Surety's Payment Rights in full shall be transferred to the
Bank as of the Payment Rights Transfer Date.
5.4. Upon the transfer of the Payment Rights from the Surety to the Bank,
the Bank shall be entitled to issue any instructions to the Purchasers
with respect to the procedure for fulfillment of the Payment Rights, to
change payment details or to demand the suspension of payments. The
Bank must use all funds received by the Bank under the Payment Rights
in order to settle the Secured Payment Rights.
5.5. After the Payment Rights Transfer Date, the Bank shall provide to the
Surety monthly reports as to the funds received by the Bank under the
relevant Supply Agreements. If the funds received by the Bank from the
Purchasers exceed the amount of the Payment Rights, then the Bank,
within three business days, shall deliver to the Surety the excess sum
over the amount of the indebtedness under the Surety Agreement. If the
monetary funds collected by the Bank from the Purchasers are less than
the Surety's indebtedness to the Bank under the Surety Agreement, then
the Surety shall remain liable to the Bank for repayment of the
remainder of the indebtedness under the Surety Agreement.
6. REPRESENTATIONS OF THE SURETY
6.1. The Surety represents to the Bank that:
4
6.1.1. The execution and performance of this Assignment Agreement do
not and will not violate any provisions of the Surety's
foundation documents or any obligations to third parties.
6.1.2. The Payment Rights are legal and valid, and as of the moment
of execution of this Assignment Agreement, the Surety is not
aware of any circumstances as a result of which any of the
Purchasers is entitled to refuse to fulfill the Payment
Rights.
6.1.3. The Payment Rights to be assigned hereunder are not pledged,
disputed (arrested) or encumbered with any other obligations
of the Surety to third parties.
6.1.4. The officers entitled to execute this Assignment Agreement are
fully authorized to sign, on behalf of the Surety, this
Assignment Agreement and other documents relating to the
Assignment Agreement, as well as to represent the Surety in
its relationship with the Bank in the course of implementation
of the Assignment Agreement.
6.2. The Surety must immediately inform the Bank of any changes in the
Surety's representations made in Section 6.1 hereof or of any
misrepresentations.
7. GOVERNING LAW AND JURISDICTION
7.1. This Assignment Agreement shall be governed by, and construed under,
the law of the Russian Federation.
7.2. All disputes, disagreements or claims arising out of, or in connection
with, this Assignment Agreement, including in connection with its
fulfillment, violation, termination or invalidity, shall be settled by
the Arbitration Court of the City of Moscow.
8. EXCHANGE OF INFORMATION AND CORRESPONDENCE
8.1. Any correspondence, request, claim, demand or another information
related to the Assignment Agreement must be delivered to the following
addresses:
The Bank:
ZAO "Citibank"
0-00 Xxxxxxx Xxxxxx
Xxxxxx 000000
Russian Federation
Fax: x0 (000) 000-0000
Attn.: Manager of the Account of OOO "TeleRoss"
5
The Surety:
OOO "TeleRoss"
00 Xxxxxxxxxxxxxxxxxx Xxxxxx
Xxxxxx 000000
Russian Federation
Fax: x0 (000) 000-0000
Attn.:
8.2. All notices, requests, claims, demands and other documents to be sent
by any of the Parties hereunder to the other Party shall be sent by
hand or by registered mail, return receipt requested, to the above
addresses. A notice, document or another correspondence shall be deemed
received at the moment of its actual receipt by the addressee.
8.3. If one of the Parties changes its address, such Party must inform the
other Party thereof in writing at least five (5) business days prior to
such change.
9. FINAL PROVISIONS
9.1. This Assignment Agreement shall enter into force as of the moment of
its execution by the Bank and the Surety, and shall remain in force
until full termination of all of the Surety's obligations under the
Surety Agreement.
9.2. After complete fulfillment by the Surety of its obligations to the Bank
under the Surety Agreement, as well as in the event of termination of
the Surety Agreement for any other reasons, including due fulfillment
by the Borrower of its obligations under the Credit Agreement, the Bank
shall, within five (5) business days, deliver to the Surety and all of
the Purchasers a written notice of the reverse assignment of the
Payment Rights back to the Surety (if transferred) and of the
termination of this Assignment Agreement, as well as (i) prepare and
provide all certificates and other documents on the termination of this
Assignment Agreement, and (ii) perform all other actions which may be
reasonably and in good faith requested by the Surety in connection with
such termination.
9.3. The execution of this Assignment Agreement and possible transfer of the
Payment Rights from the Surety to the Bank will not result in the full
or partial termination or change of the Surety's obligations to the
Bank under the Surety Agreement, which obligations may be terminated
only upon complete satisfaction of the Secured Payment Rights.
9.4. If, as a result of any change in applicable legislation of the Russian
Federation or in the interpretation of such legislation by any
authorized bodies, any provisions of the Assignment Agreement are
declared unlawful or invalid, this will not affect the lawfulness or
validity of the remaining provisions of the
6
Assignment Agreement, the Assignment Agreement in its entirety, or the
Surety Agreement.
9.5. No assignment of rights hereunder to third parties is permitted without
the written consent of the Bank and the Surety. After the Payment
Rights Transfer Date, the Bank shall be entitled to transfer the
Payment Rights to those third parties, to which the rights of claim
under the Secured Obligations were transferred.
9.6. All changes and amendments hereto are valid only if they are made in
writing and signed by authorized persons.
9.7. This Assignment Agreement may be executed in two counterparts, each of
which, when signed, shall be deemed an original, and all of them
together shall be deemed one and the same agreement.
10. BANK DETAILS OF THE PARTIES
The Bank:
Taxpayer Identification Number: 7710401987
Correspondent account: 30101810300000000202 at OPERU of the
Moscow GTU of the Bank of Russia
BIC: 044525202
SWIFT: XXXXXXXX.
The Surety:
Taxpayer Identification Number: 0000000000
Settlement account: 40702810700700046028 at ZAO "Citibank"
SIGNATURES OF THE PARTIES
OOO "TeleRoss"
--------------------------
Name: Xxxx Abbeloos
Title: General Director
--------------------------
Name: O. I. Semenova
Title: Chief Accountant
7
ZAO "Citibank"
--------------------------
Name: A. A. Kuzmichyov
Title: Vice President
--------------------------
Name: M. Y. Xxxxxx
Title: Chief Accountant
8
Exhibit 1
[OOO "TeleRoss" Letterhead]
NOTICE
Of the Assignment of Payment Rights
Under Supply Agreement No. ________, dated ____________
To: Mr. _________________
General Director
[name and address of Purchaser]
From: Xxxx Abbeloos
General Director
OOO "TeleRoss"
Cc: ZAO "Citibank"
Date: ____________
0-00 Xxxxxxx Xxxxxx
Xxxxxx 000000
Attn.: Xxxxxx Xxxxxxxx
Dear ________________:
We hereby inform you that on ______________, 2002, an Agreement on
Assignment of Payment Rights (hereinafter the "Assignment Agreement") was
entered into by and between our company and ZAO "Citibank," pursuant to the
terms and conditions of which OOO "TeleRoss" has agreed to assign to the Bank
the monetary claims, in their entirety, under Supply Agreement No. ______, dated
___________, concluded by and between OOO "TeleRoss" and [Purchaser's name]
(with all supplements and exhibits thereto) (hereinafter the "Supply
Agreement"), on the terms and conditions set forth in the Assignment Agreement.
We hereby confirm that under the Assignment Agreement, OOO "TeleRoss"
agreed that the Bank, after sending a relevant notice, is entitled to issue to
[Purchaser's name] any instructions or orders with respect to fulfillment of
monetary claims under the Supply Agreement pursuant to the conditions thereof,
including with respect to changing payment details or demanding the suspension
of payments. Such instructions or orders may be issued by the Bank without
further approval or confirmation on our part.
Unless and until you receive an additional notice from the Bank with
respect to payment details, please make payments under the Supply Agreement only
to our account at ZAO "Citibank" as follows:
9
Settlement account: 40702810700700046028.
This Notice is irrevocable, and its conditions may not be changed
(including the above-mentioned payment details) without the prior approval of
the Bank.
As confirmation of your consent to the foregoing, please sign the
attached Confirmation and send it to the Bank to the above-mentioned address.
Please issue the Confirmation on your company's letterhead, verify it with the
signatures of the company's General Director and Chief Accountant, and affix it
with the company's seal.
Best regards,
On behalf of OOO "TeleRoss":
--------------------------- ------------------------
Xxxx Abbeloos O. I. Semenova
General Director Chief Accountant
[Seal]
10
Exhibit 2
[Purchaser's Letterhead]
CONFIRMATION
Of Receipt of Notice
To: Xx. Xxxxxx Xxxxxxxx
Vice President
ZAO "Citibank"
0-00 Xxxxxxx Xxxxxx
Xxxxxx 000000
Date: _______________
From: Mr. _______________
General Director
[name and address of Purchaser]
Cc: OOO "TeleRoss"
(name and address)
Dear Xx. Xxxxxxxx:
We hereby confirm receipt of the Notice, dated _____________, from OOO
"TeleRoss" with respect to the conclusion of the Agreement on the Assignment of
Payment Rights, dated _____________, 2002 (hereinafter the "Assignment
Agreement"), pursuant to the terms and conditions of which OOO "TeleRoss" has
agreed to assign to ZAO "Citibank" (hereinafter the "Bank") the monetary claims,
in their entirety, under Supply Agreement No. ______, dated ___________,
concluded by and between OOO "TeleRoss" and [Purchaser's name] (with all
supplements and exhibits thereto) (hereinafter the "Supply Agreement"), on the
terms and conditions set forth in the Assignment Agreement.
We hereby confirm that, as of the moment of receipt of the
above-mentioned Notice, we are duly notified of said assignment.
On our part, we confirm that the Supply Agreement is fully valid for
our company and binds us to make payments for rendering communication services.
We further confirm that currently, as a result of the implementation of
the Supply Agreement, we have no counter claims, demands, accrued penalties or
fines, which we could claim in order to offset our obligations under the Supply
Agreement.
11
We hereby confirm that, upon the receipt from the Bank of a written
notice with respect to the fulfillment of monetary obligations under the Supply
Agreement, containing any instructions or orders, including with respect to
changing payment details or demanding the suspension of payments, we will
fulfill such instructions or orders without obtaining the prior approval or
confirmation of OOO "TeleRoss." Also, we understand that failure to fulfill such
instructions or orders will be deemed improper fulfillment of our obligations
under the Supply Agreement.
Unless and until we receive an additional notice from the Bank with
respect to payment details, we undertake to make payments under the Supply
Agreement only to the following account of OOO "TeleRoss" at ZAO "Citibank":
Settlement account: 40702810700700046028.
[Purchaser's name] also undertakes to inform the Bank promptly of the
receipt of any instructions from OOO "TeleRoss" that contradict the Notice.
We further confirm that, as of the date of this Confirmation, we are
not aware of any assignment or encumbrance by OOO "TeleRoss" of its rights or
obligations under the Supply Agreement to third parties, with the exception of
the assignment to the Bank under the Assignment Agreement.
On behalf of [Purchaser's name]:
------------------------- --------------------------
General Director Chief Accountant
[Seal]
12
Exhibit 3
[OOO "TeleRoss" Letterhead]
ESTIMATIONS OF AVERAGE QUARTERLY PAYMENTS
--------------------------- ------------------------- ---------------------------------------------------
No. and date of Supply Name of Purchaser AMOUNT OF ESTIMATED AVERAGE QUARTERLY PAYMENT
Agreement
--------------------------- ------------------------- ---------------------------------------------------
--------------------------- ------------------------- ---------------------------------------------------
--------------------------- ------------------------- ---------------------------------------------------
On behalf of OOO "TeleRoss":
--------------------------- ------------------------
Xxxx Abbeloos O. I. Semenova
General Director Chief Accountant
[Seal]
13
Exhibit 4
[OOO "TeleRoss" Letterhead]
LIST OF EFFECTED PAYMENTS
--------------------------- ------------------------- ---------------------------------------------------
No. and date of Supply Name of Purchaser Total amount paid by the Purchaser to the Surety
Agreement under the Supply Agreement for the last full
quarter
--------------------------- ------------------------- ---------------------------------------------------
--------------------------- ------------------------- ---------------------------------------------------
--------------------------- ------------------------- ---------------------------------------------------
On behalf of OOO "TeleRoss":
--------------------------- ------------------------
Xxxx Abbeloos O. I. Semenova
General Director Chief Accountant
[Seal]
EXHIBIT F
SUBORDINATION AGREEMENT
SUBORDINATION AGREEMENT (as amended, modified or supplemented
from time to time, this "Agreement"), dated as of [__________ ___,] 2002, among
ROL HOLDINGS LIMITED (the "Borrower"), GOLDEN TELECOM, INC. (the "Guarantor"),
LLC TELEROSS (the "Buyer"), LLC EDN SOVINTEL ("Sovintel," and together with the
Borrower, the Guarantor, and the Buyer, the "Obligors" and each an "Obligor"),
each of the undersigned subordinated creditors (together with their successors
and assigns and the Obligors, each a "Subordinated Creditor" and, collectively,
the "Subordinated Creditors") and ZAO CITIBANK (together with any successors and
assigns, the "Senior Creditor"). Unless otherwise defined herein, all
capitalized terms used herein shall have the meanings ascribed to them in the
Credit Agreement referred to below.
W I T N E S S E T H :
WHEREAS, the Borrower and the Senior Creditor, as lender, have
entered into a Credit Agreement, dated as of September [___,] 2002 (as amended,
modified, extended, renewed, replaced, restated, supplemented or refinanced from
time to time, and including any agreement extending the maturity of, or
refinancing or restructuring (including, but not limited to, the inclusion of
additional borrowers or guarantors thereunder or any increase in the amount
borrowed) of all or any portion of, the indebtedness under such agreement or any
successor agreement, whether or not with the same lender, the "Credit
Agreement"), providing for the making of Loans to the Borrower as contemplated
therein;
WHEREAS, the Buyer has guaranteed the Obligations of the
Borrower under the Credit Agreement pursuant to the Buyer Surety Agreement and
Sovintel will guarantee the Obligations of the Borrower under the Credit
Agreement pursuant to the Sovintel Surety Agreement;
WHEREAS, the Guarantor has guaranteed the Obligations of the
Borrower under the Credit Agreement pursuant to the Parent Guaranty;
WHEREAS, the Subordinated Creditors have made, and will
continue to make loans and advances to, or investments in, each other;
WHEREAS, it is a condition precedent to the making of Loans to
the Borrower under the Credit Agreement that the Borrower and each Subordinated
Creditor shall have executed and delivered this Agreement to the Senior
Creditor; and
WHEREAS, the Subordinated Creditors are Affiliates of the
Borrower and will obtain benefits from the granting of Loans to the Borrower
under the Credit Agreement and, accordingly, the Borrower and each Subordinated
Creditor desire to execute this Subordination Agreement in order to satisfy the
condition described in the preceding paragraph;
Page 2
NOW, THEREFORE, in consideration of the mutual promises
contained herein and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by the parties hereto, each
Subordinated Creditor and the Senior Creditor hereby agree as follows:
1. The Subordinated Debt (as defined in Section 6 hereof) and
all payments of principal, interest, fees and other amounts thereunder or with
respect thereto (and all security in respect thereof) are hereby, and shall
continue to be, subject and subordinate in right of payment to the prior payment
in full, in cash, of all Senior Indebtedness (as defined in Section 6 hereof)
(as well as being subordinated to any and all security interests granted in
favor of the Senior Creditor) to the extent and in the manner set forth herein.
The foregoing shall apply, notwithstanding the availability of any collateral to
the Senior Creditor or the holders of Subordinated Debt or the actual date and
time of execution, delivery, recordation, filing or perfection of any security
interests granted with respect to the Senior Indebtedness or the Subordinated
Debt, or the lien or priority of payment thereof, and in any instance wherein
the Senior Indebtedness or any claim for the Senior Indebtedness is
subordinated, avoided or disallowed, in whole or in part, under any Bankruptcy
Law (as defined below). In the event of a proceeding, whether voluntary or
involuntary, for insolvency, liquidation, reorganization, dissolution,
bankruptcy or other similar proceeding of any Obligor pursuant to any Bankruptcy
Law (each a "Bankruptcy Proceeding"), the Senior Indebtedness shall include all
interest accrued on the Senior Indebtedness, in accordance with and at the rates
specified in the Senior Indebtedness documentation, both for periods before and
for periods after the commencement of any of such Bankruptcy Proceedings, even
if the claim for such interest is not allowed pursuant to such Bankruptcy Law.
2. Each Subordinated Creditor hereby agrees, for itself and
its successors and assigns, that until the Commitment under the Credit Agreement
has been terminated and all Senior Indebtedness has been irrevocably repaid in
full in cash:
(a) Such Subordinated Creditor shall not, without the prior
written consent of the Senior Creditor, which consent may not be
unreasonably withheld, commence, or join or participate in, any
Enforcement Action (as defined in Section 6 hereof).
(b) (i) No Subordinated Creditor may, directly or indirectly
(and no Person on behalf of any Subordinated Creditor may), make or
receive any payment of any kind or character (whether in cash,
property, securities or otherwise) of, or in respect of, any
Subordinated Debt, and may not acquire any Subordinated Debt for cash,
property, securities or otherwise if an Event of Default or Default
shall have occurred and is continuing, and (ii) to the extent that any
such payment or acquisition under any Subordinated Debt would otherwise
be required pursuant to the terms thereof during the continuance of a
Default or Event of Default, such payment or acquisition shall be
deferred until such time as such payment or acquisition may be so made
under the terms of this Agreement and the terms of the documentation
for the Senior Indebtedness.
(c) Without limiting the provisions of clause (b) of this
Section 2, in the event that (i) all or any portion of any Senior
Indebtedness becomes due (whether at stated maturity, by acceleration
or otherwise), (ii) any Default or Event of Default under the
Page 3
Credit Agreement or any event of default under, and as defined in, any
other Senior Indebtedness, then exists or would result from such
payment on the Subordinated Debt, (iii) any Subordinated Creditor
receives any payment or prepayment of principal, interest or otherwise,
and whether voluntary or involuntary, in whole or in part, under the
Subordinated Debt contrary to the terms of the Subordinated Debt or
this Agreement or in violation of the terms of the Credit Agreement or
any other Senior Indebtedness or (iv) any distribution, division or
application, partial or complete, voluntary or involuntary, by
operation of law or otherwise, is made of all or any part of the
property, assets or business of any Subordinated Creditor or the
proceeds thereof, in whatever form, to any creditor or creditors of any
Subordinated Creditor or to any holder of indebtedness of any
Subordinated Creditor or by reason of any liquidation, dissolution or
other winding up of any Subordinated Creditor, or its respective
business, or of any receivership or custodianship for any Subordinated
Creditor or of all or substantially all of its respective property, or
any Bankruptcy Proceedings or assignment for the benefit of creditors
or any proceeding by or against any Subordinated Creditor or for any
relief under any bankruptcy, reorganization, insolvency or similar law,
whether federal, regional or local, or any federal, regional or local
law relating to the relief of debtors, readjustment of indebtedness,
reorganization, composition or extension (any such law, a "Bankruptcy
Law"), then, and in any such event, any payment or distribution of any
kind or character, whether in cash, property or securities which shall
be payable or deliverable with respect to any or all of the
Subordinated Debt or which has been received by any Subordinated
Creditor shall be held in trust by such Subordinated Creditor for the
benefit of the Senior Creditor and shall forthwith be paid or delivered
directly to the Senior Creditor for application to the payment of the
Senior Indebtedness to the extent necessary to make payment in full in
cash of all sums due under the Senior Indebtedness remaining unpaid
after giving effect to any concurrent payment or distribution to the
Senior Creditor. In any such event, the Senior Creditor may, but shall
not be obligated to, demand, claim and collect any such payment or
distribution that would, but for these subordination provisions, be
payable or deliverable with respect to the Subordinated Debt. In the
event of the occurrence of any event referred to in clauses (i), (ii),
(iii) or (iv) above and until all Senior Indebtedness shall have been
irrevocably paid in full in cash and satisfied and all of the
obligations of the Subordinated Creditors to the Senior Creditor have
been performed in full, no payment of any kind or character (whether in
cash, property, securities or otherwise) shall be made to or accepted
by any Subordinated Creditor in respect of the Subordinated Debt.
(d) If any Subordinated Creditor shall acquire by
indemnification, subrogation or otherwise (including pursuant to the
Security Documents), any lien, estate, right or other interest in any
of the assets of any Subordinated Creditor, that lien, estate, right or
other interest shall be subordinate in right of payment to the Senior
Indebtedness and the lien of the Senior Indebtedness as provided herein
and in the Security Documents, and each Subordinated Creditor hereby
waives any and all rights it may acquire by subrogation or otherwise to
any lien of the Senior Indebtedness or any portion thereof until such
time as the Senior Indebtedness has been irrevocably repaid in full in
cash;
Page 4
(e) No Subordinated Creditor shall (x) pledge, assign,
hypothecate, transfer, convey or sell the Subordinated Debt or any
interest in the Subordinated Debt to any other Person or (y) amend,
modify or waive any provision of any Subordinated Debt, in either case
without the prior written consent of the Senior Creditor;
(f) After request by the Senior Creditor, each Subordinated
Creditor shall within ten (10) days thereafter furnish the Senior
Creditor with a statement, duly acknowledged and certified setting
forth the original principal amount of all notes or other documents
evidencing the Subordinated Debt, the unpaid principal balance, all
accrued but unpaid interest and any other sums due and owing
thereunder, and that to the best knowledge of such Subordinated
Creditor there exists no defaults under the Subordinated Debt, or if
any such defaults exist, specifying the defaults and the nature
thereof;
(g) If any Bankruptcy Proceedings are commenced by or against
any Subordinated Creditor or any of its Subsidiaries under any
Bankruptcy Law prior to the repayment in full in cash of all Senior
Indebtedness, each other Subordinated Creditor hereby transfers and
conveys to the Senior Creditor such Subordinated Creditor's right to
exercise any and all voting rights in respect of its claims against the
Subordinated Creditor subject to such Bankruptcy Proceeding, including,
without limitation, the right to vote affirmatively in favor of any
plan of reorganization and to file any proofs of claim or similar
notices in any such Bankruptcy Proceeding;
(h) If, at any time, all or part of any payment with respect
to any Senior Indebtedness theretofore made (whether by any Obligor or
any other Person or enforcement of any rights under the Security
Documents or any right of setoff or otherwise) is rescinded or must
otherwise be returned by the holders of Senior Indebtedness for any
reason whatsoever (including, without limitation, the insolvency,
bankruptcy or reorganization of any Obligor or such other Persons), the
subordination provisions set forth herein shall continue to be
effective or be reinstated, as the case may be, all as though such
payment had not been made;
(i) Without limiting the provisions of clause (g) above, no
Subordinated Creditor shall object to the entry of any order or orders
approving any cash collateral stipulations, adequate protection
stipulations or similar stipulations executed by the Senior Creditor in
any Bankruptcy Proceeding or any other proceeding under any Bankruptcy
Law; and
(j) Each Subordinated Creditor waives any marshalling rights
with respect to the Senior Creditor in any Bankruptcy Proceeding or any
other proceeding under any Bankruptcy Law.
3. Each Subordinated Creditor hereby represents, warrants and
covenants that such Subordinated Creditor has duly executed and delivered this
Agreement, and this Agreement constitutes such Subordinated Creditor's legal,
valid and binding obligation enforceable in accordance with its terms.
Page 5
4. Any payments made to, or received by, any Subordinated
Creditor in respect of any guaranty or security (including, without limitation,
pursuant to any Security Document) in support of the Subordinated Debt shall be
subject to the terms of this Agreement and applied on the same basis as payments
made directly by any other Subordinated Creditor which is the obligor under such
Subordinated Debt.
5. Each Subordinated Creditor hereby acknowledges and agrees
that no payments will be accepted by it in respect of the Subordinated Debt
(unless promptly turned over to the holders of Senior Indebtedness as
contemplated by Section 2 above) to the extent such payments would be prohibited
under this Agreement or under any Senior Indebtedness.
6. Definitions. As used in this Agreement, the terms set forth
below shall have the respective meanings provided below:
"Enforcement Action" shall mean any acceleration of
all or any part of the Subordinated Debt, any foreclosure proceeding,
the exercise of any power of sale, the obtaining of a receiver, the
seeking of default interest, the suing on, or otherwise taking action
to enforce the obligation of any Subordinated Creditor to pay any
amounts relating to any Subordinated Debt, the exercising of any
banker's lien or rights of set-off or recoupment, the institution of
any Bankruptcy Proceeding against any Subordinated Creditor, the taking
of any action to enforce any Security Document or to realize upon any
of the security granted thereby, or the taking of any other enforcement
action against any assets of any Subordinated Creditor.
"Senior Indebtedness" shall mean all obligations
(including obligations which, but for an automatic stay under any
Bankruptcy Law, would become due), liabilities and indebtedness
(including, without limitation, principal, premium, interest, fees,
expenses (including consultant and attorneys fees and expenses),
indemnities and other amounts (including guaranties of the foregoing)
(including, without limitation, all interest that accrues after the
commencement of any Bankruptcy Proceeding of any Subordinated Creditor
at the rate provided for in the respective documentation, whether or
not a claim for post-petition interest is allowed in any such
Bankruptcy Proceeding)) of each Subordinated Creditor to the Senior
Creditor, whether now existing or hereafter incurred under, arising out
of, or in connection with, the Credit Agreement and the other Credit
Documents and the due performance and compliance by each Obligor with
all of the terms, conditions and agreements contained in the Credit
Agreement and in the other Credit Documents.
"Subordinated Debt" shall mean the principal of,
interest on, fees, and all other amounts owing (including, without
limitation, pursuant to guarantees thereof or security therefore) in
respect of all loans, advances, extensions of credit, purchases or
acquisitions of stock, obligations, or securities of, or any other debt
or equity interest in, any Subordinated Creditor held directly or
indirectly by another Subordinated Creditor.
7. Each Subordinated Creditor shall have the option, and the
Senior Creditor hereby grants such Subordinated Creditor the option, at any time
after the occurrence and during the continuance of any Event of Default, to
purchase all (but not less than all) of the then
Page 6
outstanding Loans at par pursuant to the Credit Agreement by paying the Lenders
in cash an amount equal to all outstanding principal, interest, premium (if
any), Fees and other amounts owing pursuant to the Credit Agreement and the
other Credit Documents.
8. No failure or delay on the part of the Senior Creditor in
exercising any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or
remedy preclude any other or further exercise thereof or the exercise of any
other right, power or remedy hereunder. In addition, the Subordinated Creditors
acknowledge that the Senior Creditor may, without in any way affecting the
obligations of the Subordinated Creditors with respect hereto or under this
Agreement, at any time or from time to time and in its absolute discretion,
change the manner, place or terms of payment of, change or extend the time of
payment of, or renew, alter or increase, any Senior Indebtedness or amend,
modify or supplement any agreement or instrument governing or evidencing such
Senior Indebtedness or any other document referred to therein, or exercise or
refrain from exercising any other of their rights under the Senior Indebtedness
or any Credit Document including, without limitation, the waiver of any Default
or Event of Default and the release of any collateral securing such Senior
Indebtedness, all without notice to or assent from any Subordinated Creditor,
except as otherwise provided in the Parent Guaranty.
9. Each Subordinated Creditor acknowledges that, to the extent
that no adequate remedy at law exists for breach of its obligations under this
Agreement, in the event a Subordinated Creditor fails to comply with its
obligations hereunder, the Senior Creditor shall have the right to obtain
specific performance of the obligations of such defaulting party, injunctive
relief or such other equitable relief as may be available.
10. Any notice to be given under this Agreement shall be in
writing and shall be sent (i) if to the Senior Creditor, to the address provided
in the Credit Agreement and (ii) if to any Obligor or any Subordinated Creditor,
to the address specified opposite its signature below.
11. In the event of any conflict between the provisions of
this Agreement and the provisions of the Subordinated Debt, the provisions of
this Agreement shall prevail.
12. No Person other than the parties hereto, the Senior
Creditor from time to time and its successors and assigns as holders of the
Senior Indebtedness shall have any rights under this Agreement.
13. This Agreement may be executed in any number of
counterparts each of which shall be deemed an original but all of which together
shall constitute one and the same instrument.
14. No amendment, supplement, modification, waiver or
termination of this Agreement shall be effective against a party against whom
the enforcement of such amendment, supplement, modification, waiver or
termination would be asserted, unless such amendment, supplement, modification,
waiver or termination was made in a writing signed by such party.
15. In case any one or more of the provisions contained in
this Agreement, or any application thereof, shall be invalid, illegal or
unenforceable in any respect, the validity,
Page 7
legality and enforceability of the remaining provisions contained herein, and
any other application thereof, shall not in any way be affected or impaired
thereby.
16. (a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE
LAW OF THE STATE OF NEW YORK. SUBJECT TO THE OPTION IN CLAUSE (d) BELOW, ANY
LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN THE
COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF NEW YORK, IN EACH CASE WHICH ARE LOCATED IN THE COUNTY OF NEW YORK,
AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH SUBORDINATED CREDITOR
HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY
AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. EACH SUBORDINATED
CREDITOR HEREBY FURTHER IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH COURTS LACK
PERSONAL JURISDICTION OVER SUCH PARTY, AND AGREES NOT TO PLEAD OR CLAIM, IN ANY
LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT BROUGHT IN ANY OF THE
AFOREMENTIONED COURTS, THAT SUCH COURTS LACK PERSONAL JURISDICTION OVER SUCH
PARTY. EACH SUBORDINATED CREDITOR FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING
BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE
PREPAID, TO SUCH PARTY AT ITS ADDRESS SET FORTH OPPOSITE ITS SIGNATURE BELOW,
SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING. EACH SUBORDINATED
CREDITOR HEREBY IRREVOCABLY WAIVES ANY OBJECTION TO SUCH SERVICE OF PROCESS AND
FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION OR
PROCEEDING COMMENCED HEREUNDER THAT SERVICE OF PROCESS WAS IN ANY WAY INVALID OR
INEFFECTIVE. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE SENIOR CREDITOR TO
SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL
PROCEEDINGS OR OTHERWISE PROCEED AGAINST EACH SUBORDINATED CREDITOR IN ANY OTHER
JURISDICTION.
(b) EACH SUBORDINATED CREDITOR HEREBY IRREVOCABLY WAIVES ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF
THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT BROUGHT IN THE COURTS REFERRED TO IN CLAUSE (a) ABOVE AND HEREBY
FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT
THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN
AN INCONVENIENT FORUM.
(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
Page 8
(d) Any dispute, controversy or claim arising out of, relating
to or in connection with this Agreement, including any question regarding its
existence, validity or termination, or regarding a breach of this Agreement,
shall at the option of any party hereto be referred to, and finally settled by
arbitration under and in accordance with, the Rules of Arbitration of the
International Chamber of Commerce then in effect (the "Rules"), which Rules are
deemed to be incorporated by reference into this clause. The place of
arbitration shall be New York, New York, and the award shall be deemed to have
been made there. The arbitral tribunal may, however, hold hearings, meetings or
sessions anywhere convenient. The arbitral tribunal shall consist of three
arbitrators. Each of the Senior Creditor, on the one hand, and the Subordinated
Creditors (acting jointly), on the other hand, shall be entitled to select one
of the arbitrators. The third arbitrator shall be selected by the President of
the ICC International Court of Arbitration in accordance with the Rules and
shall serve as the presiding arbitrator. The language to be used in the arbitral
proceedings shall be English. The award of the arbitral tribunal shall be in
writing and state the reasons upon which it is based. Any monetary award shall
be made in Dollars. The award of the arbitral tribunal shall be final and
binding on the parties hereto. Judgment upon an arbitral award rendered by the
arbitral tribunal may be entered in any court having jurisdiction.
17. This Agreement shall bind and inure to the benefit of the
Senior Creditor and each Subordinated Creditor and their respective successors,
permitted transferees and assigns, provided that no Subordinated Creditor may
assign any of its rights or obligations under this Agreement without the prior
written consent of the Senior Creditor.
* * *
Page 9
IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the day and year first above written.
ZAO CITIBANK, as Senior Creditor
By:_____________________________
Title:
Address ROL HOLDINGS LIMITED,
------- as a Subordinated Creditor and an
Obligor
By:_____________________________
Title:
LLC TELEROSS,
as a Subordinated Creditor and an
Obligor
By:_____________________________
Title:
OOO EDN SOVINTEL,
as a Subordinated Creditor and an
Obligor
By:_____________________________
Title:
GOLDEN TELECOM, INC.,
as a Subordinated Creditor and an
Obligor
By:_____________________________
Title:
SFMT RUSNET, INC.,
as a Subordinated Creditor
By:_____________________________
Title:
Page 10
SOVINET, INC.,
as a Subordinated Creditor
By:_____________________________
Title:
GTS FINANCE, INC.,
as a Subordinated Creditor
By:_____________________________
Title:
EXHIBIT G
PARENT GUARANTY
PARENT GUARANTY, dated as of [___], 2002, (as amended, modified or
supplemented from time to time, this "Guaranty"), made by GOLDEN TELECOM, INC.,
a corporation duly organized and existing under the laws of the State of
Delaware (the "Parent Guarantor"). Except as otherwise defined herein,
capitalized terms used herein and defined in the Credit Agreement (as defined
below) shall be used herein as therein defined.
WITNESSETH:
WHEREAS, ROL Holdings Limited (the "Borrower") and ZAO Citibank (the
"Lender") have entered into a Credit Agreement, dated as of September [___],
2002 (as amended, modified, extended, renewed, restated or supplemented from
time to time, the "Credit Agreement"), providing for the making of Loans to the
Borrower as contemplated therein;
WHEREAS, the Borrower is a Subsidiary of the Parent Guarantor;
WHEREAS, it is a condition to the making of Loans to the Borrower under
the Credit Agreement that the Parent Guarantor shall have executed and delivered
this Guaranty; and
WHEREAS, the Parent Guarantor will obtain benefits from the granting of
Loans to the Borrower under the Credit Agreement and, accordingly, desires to
execute this Guaranty in order to satisfy the condition described in the
preceding paragraph;
NOW, THEREFORE, in consideration of the foregoing and other benefits
accruing to the Parent Guarantor, the receipt and sufficiency of which are
hereby acknowledged, the Parent Guarantor hereby makes the following
representations and warranties to the Lender and hereby covenants and agrees
with the Lender as follows:
1. The Parent Guarantor irrevocably, absolutely and unconditionally
guarantees: (i) to the Lender the full and prompt payment when due (whether at
the stated maturity, by acceleration or otherwise) of (x) the principal of,
premium, if any, and interest on the Loans made to the Borrower under the Credit
Agreement and (y) all other obligations (including obligations which, but for
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws generally affecting creditors' rights and equitable principles (regardless
of whether enforcement is sought in equity or at law) (collectively, "Bankruptcy
Laws") would become due), liabilities and indebtedness owing by the Borrower to
the Lender under the Credit Agreement and each other Credit Document to which
the Borrower is a party (including, without limitation, indemnities, Fees and
interest thereon (including any interest accruing after the commencement of any
bankruptcy, insolvency, receivership or similar proceeding at the rate provided
for in the Credit Agreement, whether or not such interest is an allowed claim in
any such proceeding), whether now existing or hereafter incurred under, arising
out of or in connection with the Credit Agreement and any such other Credit
Document and the
Page 2
due performance and compliance by the Borrower with all of the terms, conditions
and agreements contained in all such Credit Documents (all such principal,
premium, interest, liabilities, indebtedness and obligations being herein
collectively called the "Guaranteed Obligations"). The Parent Guarantor
understands, agrees and confirms that the Lender may enforce this Guaranty up to
the full amount of the Guaranteed Obligations against the Parent Guarantor
without proceeding against any other Guarantor, the Borrower, against any
security for the Guaranteed Obligations, or under any other guaranty covering
all or a portion of the Guaranteed Obligations.
2. Additionally, the Parent Guarantor irrevocably, absolutely and
unconditionally guarantees the payment of any and all Guaranteed Obligations
whether or not due or payable by the Borrower upon the occurrence in respect of
the Borrower of any of the events specified in Section 9.05 of the Credit
Agreement, and upon such occurrence, unconditionally and irrevocably promises to
pay such Guaranteed Obligations to the Lender, or order, on demand. This
Guaranty shall constitute a guaranty of payment, and not of collection.
3. The liability of the Parent Guarantor hereunder is primary, absolute
and unconditional and is exclusive and independent of any security for or other
guaranty of the indebtedness of the Borrower whether executed by the Parent
Guarantor, any other Guarantor, any other guarantor or by any other party, and
the liability of the Parent Guarantor hereunder shall not be affected or
impaired by any circumstance or occurrence whatsoever, including, without
limitation: (a) any direction as to application of payment by the Borrower or by
any other party, (b) any other continuing or other guaranty, undertaking or
maximum liability of a guarantor or of any other party as to the Guaranteed
Obligations, (c) any payment on or in reduction of any such other guaranty or
undertaking, (d) any dissolution, termination or increase, decrease or change in
personnel by the Borrower, (e) any payment made to the Lender on the Guaranteed
Obligations which the Lender repays the Borrower pursuant to court order in any
bankruptcy, reorganization, arrangement, moratorium or other debtor relief
proceeding, and the Parent Guarantor waives any right to the deferral or
modification of its obligations hereunder by reason of any such proceeding, (f)
any action or inaction by the Lender as contemplated in Section 6 hereof or (g)
any invalidity, irregularity or unenforceability of all or any part of the
Guaranteed Obligations or of any security therefor.
4. The obligations of the Parent Guarantor hereunder are independent of
the obligations of any other Guarantor, any other guarantor and the Borrower,
and a separate action or actions may be brought and prosecuted against the
Parent Guarantor whether or not action is brought against any other Guarantor,
any other guarantor or the Borrower and whether or not any other Guarantor, any
other guarantor or the Borrower be joined in any such action or actions. The
Parent Guarantor waives, to the fullest extent permitted by law, the benefits of
any statute of limitations affecting its liability hereunder or the enforcement
thereof. Any payment by the Borrower or other circumstance which operates to
toll any statute of limitations as to the Borrower shall operate to toll the
statute of limitations as to the Parent Guarantor.
Page 3
5. The Parent Guarantor hereby waives notice of acceptance of this
Guaranty and notice of any liability to which it may apply, and waives
promptness, diligence, presentment, demand of payment, protest, notice of
dishonor or nonpayment of any such liabilities, suit or taking of other action
by the Lender against, and any other notice to, any party liable thereon
(including any other Guarantor, any other guarantor and the Borrower).
6. The Lender may at any time and from time to time without the consent
of, or notice to, the Parent Guarantor (except in such cases as are specified
below), without incurring responsibility to the Parent Guarantor, without
impairing or releasing the obligations of the Parent Guarantor hereunder, upon
or without any terms or conditions and in whole or in part:
(a) change the manner, place or terms of payment of, and/or change,
increase or extend the time of payment of, renew or alter, any of the Guaranteed
Obligations (including any increase or decrease in the rate of interest thereon
or the principal amount thereof), any security therefor, or any liability
incurred directly or indirectly in respect thereof, and the guaranty herein made
shall apply to the Guaranteed Obligations as so changed, extended, renewed or
altered; provided that the Lender shall give prior written notice of any action
to be taken that is reasonably likely to result in an increase in the amount of
the Guaranteed Obligations (but failure to provide such notice shall not give
rise to any cause of action for the Parent Guarantor or result in any liability
of the Lender to the Parent Guarantor);
(b) take and hold security for the payment of the Guaranteed
Obligations and sell, exchange, release, surrender, impair, realize upon or
otherwise deal with in any manner and in any order any property by whomsoever at
any time pledged or mortgaged to secure, or howsoever securing, the Guaranteed
Obligations or any liabilities (including any of those hereunder) incurred
directly or indirectly in respect thereof or hereof, and/or any offset there
against;
(c) exercise or refrain from exercising any rights against the
Borrower, any other Credit Party, any Subsidiary thereof or otherwise act or
refrain from acting, provided that prompt written notice shall be provided to
the Parent Guarantor upon the exercise of any rights or the taking of any action
(but failure to provide such notice shall not give rise to any cause of action
for the Parent Guarantor or result in any liability of the Lender to the Parent
Guarantor);
(d) release or substitute any one or more endorsers, Guarantors, other
guarantors, the Borrower or other obligors;
(e) settle or compromise any of the Guaranteed Obligations, any
security therefor or any liability (including any of those hereunder) incurred
directly or indirectly in respect thereof or hereof, and may subordinate the
payment of all or any part thereof to the payment of any liability (whether due
or not) of the Borrower to creditors of the Borrower other than the Lender;
Page 4
(f) apply any sums by whomsoever paid or howsoever realized to any
liability or liabilities of the Borrower to the Lender regardless of what
liabilities of the Borrower remain unpaid;
(g) consent to or waive any breach of, or any act, omission or default
under, any of the Credit Documents or any of the instruments or agreements
referred to therein, or otherwise amend, modify or supplement any of the Credit
Documents or any of such other instruments or agreements; and/or
(h) take any other action which would, under otherwise applicable
principles of common law, give rise to a legal or equitable discharge of the
Parent Guarantor from its liabilities under this Guaranty.
7. This Guaranty is a continuing one and all liabilities to which it
applies or may apply under the terms hereof shall be conclusively presumed to
have been created in reliance hereon. No failure or delay on the part of the
Lender in exercising any right, power or privilege hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any right, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
expressly specified are cumulative and not exclusive of any rights or remedies
which the Lender would otherwise have. No notice to or demand on the Parent
Guarantor in any case shall entitle the Parent Guarantor to any other further
notice or demand in similar or other circumstances or constitute a waiver of the
rights of the Lender to any other or further action in any circumstances without
notice or demand. It is not necessary for the Lender to inquire into the
capacity or powers of the Borrower or the officers, directors, partners or
agents acting or purporting to act on its behalf, and any indebtedness made or
created in reliance upon the professed exercise of such powers shall be
guaranteed hereunder.
8. Any indebtedness of the Borrower now or hereafter held by the Parent
Guarantor is hereby subordinated to the indebtedness of the Borrower to the
Lender, and such indebtedness of the Borrower to the Parent Guarantor, if the
Lender, after the occurrence and during the continuance of an Event of Default,
so requests, shall be collected, enforced and received by the Parent Guarantor
as trustee for the Lender and be paid over to the Lender on account of the
indebtedness of the Borrower to the Lender, but without affecting or impairing
in any manner the liability of the Parent Guarantor under the other provisions
of this Guaranty. Without limiting the generality of the foregoing, the Parent
Guarantor hereby agrees with the Lender that it will not exercise any right of
subrogation which it may at any time otherwise have as a result of this Guaranty
(whether contractual, under Bankruptcy Laws or otherwise) until all Guaranteed
Obligations have been irrevocably paid in full in cash.
9. (a) The Parent Guarantor waives any right (except as shall be
required by applicable law and cannot be waived) to require the Lender to: (i)
proceed against the Borrower, any other Guarantor, any other guarantor of the
Guaranteed Obligations or any other party; (ii)
Page 5
proceed against or exhaust any security held from the Borrower, any other
Guarantor, any other guarantor of the Guaranteed Obligations or any other party;
or (iii) pursue any other remedy in the Lender's power whatsoever. The Parent
Guarantor waives any defense based on or arising out of any defense of the
Borrower, any other Guarantor, any other guarantor of the Guaranteed Obligations
or any other party other than payment in full of the Guaranteed Obligations,
including, without limitation, any defense based on or arising out of the
disability of the Borrower, any other Guarantor, any other guarantor of the
Guaranteed Obligations or any other party, or the unenforceability of the
Guaranteed Obligations or any part thereof from any cause, or the cessation from
any cause of the liability of the Borrower other than payment in full of the
Guaranteed Obligations in cash. The Lender may, at its election, foreclose on
any security held by the Lender by one or more judicial or nonjudicial sales,
whether or not every aspect of any such sale is commercially reasonable, or
exercise any other right or remedy the Lender may have against the Borrower or
any other party, or any security, without affecting or impairing in any way the
liability of the Parent Guarantor hereunder except to the extent the Guaranteed
Obligations have been paid in full in cash. The Parent Guarantor waives any
defense arising out of any such election by the Lender, even though such
election operates to impair or extinguish any right of reimbursement or
subrogation or other right or remedy of the Parent Guarantor against the
Borrower or any other party or any security.
(b) The Parent Guarantor waives all presentments, demands for
performance, protests and notices, including, without limitation, notices of
nonperformance, notices of protest, notices of dishonor, notices of acceptance
of this Guaranty, provided that the Lender shall promptly deliver written notice
to the Parent Guarantor acknowledging the existence, creation or incurring of
new or additional indebtedness (but failure to provide such notice shall not
give rise to any cause of action for the Parent Guarantor or result in any
liability of the Lender to the Parent Guarantor). Subject to the foregoing
sentence, the Parent Guarantor assumes all responsibility for being and keeping
itself informed of the Borrower's financial condition and assets, and of all
other circumstances bearing upon the risk of nonpayment of the Guaranteed
Obligations and the nature, scope and extent of the risks which the Parent
Guarantor assumes and incurs hereunder, and agrees that the Lender shall have no
duty to advise the Parent Guarantor of information known to them regarding such
circumstances or risks.
10. The Lender agrees that this Guaranty may not be enforced against
any director, officer, employee, partner, member or stockholder of the Parent
Guarantor.
11. In order to induce the Lender to make Loans to the Borrower
pursuant to the Credit Agreement, the Parent Guarantor represents and warrants
that:
(a) The Parent Guarantor (i) is a duly organized and validly existing
corporation in good standing under the laws of the jurisdiction of its
organization, (ii) has the corporate power and authority to own its property and
assets and to transact the business in which it is engaged and presently
proposes to engage and (iii) is duly qualified and is authorized
Page 6
to do business and is in good standing in each jurisdiction where the conduct of
its business requires such qualification.
(b) The Parent Guarantor has the corporate power and authority to
execute, deliver and perform the terms and provisions of this Guaranty and each
other Credit Document to which it is a party and has taken all necessary
corporate action to authorize the execution, delivery and performance by it of
this Guaranty and each other Credit Document. The Parent Guarantor has duly
executed and delivered this Guaranty and each other Credit Document to which it
is a party, and this Guaranty and each other Credit Document constitutes the
legal, valid and binding obligation of the Parent Guarantor enforceable in
accordance with its terms, except to the extent that the enforceability hereof
or thereof may be limited by Bankruptcy Laws.
(c) Neither the execution, delivery or performance by the Parent
Guarantor of this Guaranty or any other Credit Document to which it is a party,
nor compliance by it with the terms and provisions hereof and thereof, will (i)
contravene any provision of any applicable law, statute, rule or regulation or
any applicable order, writ, injunction or decree of any court or governmental
instrumentality, (ii) conflict with or result in any breach of any of the terms,
covenants, conditions or provisions of, or constitute a default under, or result
in the creation or imposition of (or the obligation to create or impose) any
Lien (except pursuant to the Security Documents) upon any of the property or
assets of the Parent Guarantor or any of its Subsidiaries pursuant to the terms
of any indenture, mortgage, deed of trust, loan agreement, credit agreement, or
any other material agreement, contract or instrument to which the Parent
Guarantor or any of its Subsidiaries is a party or by which they or any of their
property or assets are bound or to which they may be subject or (iii) violate
any provision of the certificate or articles of incorporation or by-laws (or
equivalent organizational documents) of the Parent Guarantor or any of its
Subsidiaries.
(d) No order, consent, approval, license, authorization or validation
of, or filing, recording or registration with (except as have been obtained or
made), or exemption by, any Governmental Authority is required to authorize, or
is required for, (i) the execution, delivery and performance of this Guaranty by
the Parent Guarantor or any other Credit Document to which the Parent Guarantor
is a party or (ii) the legality, validity, binding effect or enforceability of
this Guaranty or any other Credit Document to which the Parent Guarantor is a
party.
(e) There is no litigation by any entity (private or governmental)
pending or, to the Parent Guarantor's knowledge, threatened (i) with respect to
this Guaranty or any other Credit Document to which the Parent Guarantor is a
party or (ii) with respect to the Transaction, which is likely to materially
adversely effect the Transaction, or (iii) that could reasonably be expected,
either individually or in the aggregate, to have a Material Adverse Effect.
12. Affirmative Covenants. The Parent Guarantor hereby covenants and
agrees that on and after the Effective Date and until the Commitment has
terminated and the
Page 7
Loans (in each case together with interest thereon), Fees and all other
Guaranteed Obligations (other than indemnities described in Section 11.12 of the
Credit Agreement which are not then due and payable) incurred hereunder and
thereunder, are paid in full:
(a) On the Initial Borrowing Date, it will cause Sovintel to duly
authorize, execute and deliver the Sovintel Surety Agreement, the Sovintel
Receivables Agreement and the Subordination Agreement.
(b) The Parent Guarantor shall furnish to the Lender:
(i) Quarterly Financial Statements. Within 60 days after the
close of each of the first three quarterly accounting periods in each
fiscal year of the Parent Guarantor (a) the consolidated balance sheet
of the Parent Guarantor and its Subsidiaries as at the end of such
quarterly accounting period and the related consolidated statements of
income and retained earnings and statement of cash flows for such
quarterly accounting period and for the elapsed portion of the fiscal
year ended with the last day of such quarterly accounting period, in
each case setting forth comparative figures for the corresponding
quarterly accounting period in the prior fiscal year, all of which
shall be certified by the chief financial officer of the Parent
Guarantor as fairly presenting in all material respects in accordance
with U.S. GAAP the financial condition of the Parent Guarantor and its
Subsidiaries as of the dates indicated and the results of their
operations for the periods indicated, subject to normal year-end audit
adjustments and the absence of footnotes, and (b) the management's
discussion and analysis of the important operational and financial
developments during such quarterly accounting period.
(ii) Annual Financial Statements. Within 120 days after the
close of each fiscal year of the Parent Guarantor, (a) the consolidated
balance sheet of the Parent Guarantor and its Subsidiaries as at the
end of such fiscal year and the related consolidated statements of
income and retained earnings and statement of cash flows for such
fiscal year setting forth comparative figures for the preceding fiscal
year and certified without qualification or going concern issues by
Ernst & Young or other independent certified public accountants of
recognized worldwide standing reasonably acceptable to the Lender
prepared in accordance with U.S. GAAP, and (b) management's discussion
and analysis of the important operational and financial developments
during such fiscal year.
(iii) Management Letters. Promptly after the Parent
Guarantor's or any Credit Party's receipt thereof, a copy of any
"management letter" received from its certified public accountants and
management's response thereto.
(iv) Budgets. Upon approval by the Parent Guarantor's Board of
Directors, but in any event not later than 90 days following the first
day of each fiscal year of the Parent Guarantor, a consolidated budget
in form reasonably
Page 8
satisfactory to the Lender for such fiscal year prepared in detail and
for the immediately succeeding fiscal year setting forth, with
appropriate discussion, the principal assumptions upon which such
budget is based.
(v) Officer's Certificates. At the time of the delivery of the
financial statements provided for in Sections 13(i), (ii) and (iii), a
compliance certificate from the chief financial officer of the Parent
Guarantor in the form of Exhibit A hereto certifying on behalf of the
Parent Guarantor that (x) to such officer's best knowledge after due
inquiry, no Default or Event of Default has occurred and is continuing
or, if any Default or Event of Default has occurred and is continuing,
specifying the nature and extent thereof, which certificate shall set
forth in reasonable detail the calculations required to establish
whether the Parent Guarantor was in compliance with the provisions of
Sections 13(b)(iv), 13(c)(ii), 13(d)(iii), 13(d)(v), 13(f), 13(g),
13(h), 13(i) and 13(j) hereof at the end of such fiscal quarter or
year, as the case may be and (y) (i) no changes are required to be made
to Exhibit 3 of either the Buyer Receivables Agreement or the Sovintel
Receivables Agreement and the Annexes of the Interest Pledge
Agreements, in each case so as to make the information set forth
therein accurate and complete as of the date of such certificate, or
(ii) to the extent that such information is no longer accurate and
complete as of such date, list in reasonable detail all information
necessary to make all such Exhibits and Annexes accurate and complete
(at which time all such Exhibits and Annexes, as the case may be, shall
be deemed modified to reflect such information).
(vi) Notice of Default, Litigation and Material Adverse
Effect. Promptly, and in any event within three Business Days after any
officer of the Parent Guarantor obtains knowledge thereof, notice of:
(a) the occurrence of any event which constitutes a
Default or an Event of Default,
(b) any litigation or governmental investigation or
proceeding pending against any Credit Party (x) which, either
individually or in the aggregate, could reasonably be expected
to have a Material Adverse Effect or (y) with respect to any
Credit Document,
(c) the occurrence of any event which constitutes a
default under, or causes the termination of, any material
contract of any Credit Party, including without limitation the
Acquisition Agreement to the extent such default or
termination could reasonably be expected to have a Material
Adverse Effect, provided that any termination of the
Acquisition Agreement (except upon its expiration after
fulfillment of the parties'
Page 9
obligations thereunder) shall be deemed to constitute a
Material Adverse Effect), or
(d) any other event, change or circumstance that has
had, or could reasonably be expected to have, a Material
Adverse Effect.
(vii) Other Reports and Filings. Promptly after the filing or
delivery thereof, copies of all financial information, proxy materials
and reports, if any, which the Parent Guarantor shall publicly file
with the appropriate governmental body or any successor thereto or
deliver to holders (or any trustee, agent or other representative
thereof) of its material Indebtedness pursuant to the terms of the
documentation governing such Indebtedness.
(viii) Other Information. From time to time, such other
information or documents (financial or otherwise) with respect to the
Parent Guarantor which the Lender may reasonably request.
(c) Books, Records and Inspections. The Parent Guarantor will, and will
cause each of the other Credit Parties to, keep proper books of record and
accounts in which full, true and correct entries in conformity with U.S. GAAP
and all requirements of law shall be made of all dealings and transactions in
relation to its business and activities. The Parent Guarantor will, and will
cause each of the other Credit Parties to, permit officers and designated
representatives of the Lender to visit and inspect, under guidance of officers
of the Parent Guarantor or such Credit Party, any of the properties of the
Parent Guarantor or such Credit Party, and to examine the books of account of
the Parent Guarantor or such Credit Party and discuss the affairs, finances and
accounts of the Parent Guarantor or such Credit Party with, and be advised as to
the same by, its officers and independent accountants, all upon reasonable prior
notice and at such reasonable times and intervals and to such extent as the
Lender may reasonably request. If a Default or an Event of Default has occurred
and is continuing, and if access is necessary to preserve or protect the
Collateral as determined by the Lender, the Parent Guarantor shall, and shall
cause each of the other Credit Parties to, provide such access to the Lender at
all times and without advance notice. Furthermore, so long as any Default or
Event of Default has occurred and is continuing, the Parent Guarantor shall, and
shall cause each of its Subsidiaries to, provide the Lender with access to
information in their possession regarding their suppliers and customers.
(d) Maintenance of Property; Insurance. The Parent Guarantor will, and
will cause each of the other Credit Parties to, (i) keep all property necessary
to its business in good working order and condition, ordinary wear and tear
excepted, (ii) maintain with financially sound and reputable insurance companies
insurance on all such property and against all such risks as is consistent and
in accordance with industry practice for companies similarly situated owning
similar properties and engaged in similar business and (iii) furnish to the
Lender, upon its request therefor, full information as to the insurance carried.
Page 10
(e) Existence; Franchises. The Parent Guarantor will, and will cause
each of the other Credit Parties to, do all things necessary to preserve and
keep in full force and effect its existence and its material rights, franchises,
licenses, permits, copyrights, trademarks and patents; provided, however, that
nothing in this Section 12(e) shall prevent (i) sales of assets and other
transactions by the Parent Guarantor not in contravention of Section 13(b)
hereof or (ii) the withdrawal by the Parent Guarantor or any of the other Credit
Parties of its qualification as a foreign corporation in any jurisdiction if
such withdrawal could not, either individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect.
(f) Compliance with Statutes, etc. The Parent Guarantor will, and will
use its best efforts to cause each of the other Credit Parties to, comply with
all applicable statutes, regulations and orders of, and all applicable
restrictions imposed by, all governmental bodies, domestic or foreign, in
respect of the conduct of its business and the ownership of its property
(including applicable statutes, regulations, orders and restrictions relating to
environmental standards and controls), except to the extent that in the Lender's
reasonable opinion such noncompliance is not likely to result in a Material
Adverse Effect.
(g) Compliance with Environmental Laws. The Parent Guarantor will, and
will use its best efforts to cause each of the other Credit Parties to, comply
in all material respects with all Environmental Laws applicable to, or required
by, the ownership, lease or use of its Real Property now or hereafter owned,
leased or operated by it, and will promptly pay or cause to be paid all costs
and expenses incurred in connection with such compliance, and will keep or cause
to be kept all such Real Property free and clear of any Liens imposed pursuant
to such Environmental Laws, except to the extent that in the Lender's reasonable
opinion such noncompliance, failure to pay, or imposition of a Lien is not
likely to result in a Material Adverse Effect.
(h) End of Fiscal Years; Fiscal Quarters. The Parent Guarantor will
cause (a) its, and each of its Subsidiaries' fiscal years to end on December 31
of each year and (b) its, and each of its Subsidiaries', fiscal quarters to end
on dates which are consistent with a fiscal year end as described above.
(i) Performance of Obligations. The Parent Guarantor will, and will use
its best efforts to cause each of the Credit Parties to, perform all of their
obligations under the terms of each mortgage, indenture, security agreement,
loan agreement or credit agreement and each other agreement, contract or
instrument by which they are bound, except such non-performances as could not,
either individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(j) Payment of Taxes. The Parent Guarantor will, and will cause each of
the other Credit Parties to, pay and discharge all taxes, assessments and
governmental charges or levies imposed upon it or its income or profits or upon
any properties belonging to it, in each case on a timely basis, and all lawful
claims which, if unpaid, might become a Lien or charge
Page 11
upon any properties of the Parent Guarantor or such Credit Party not otherwise
permitted under Section 13(a) hereof; provided that neither the Parent Guarantor
nor such Credit Party shall be required to pay any such tax, assessment, charge,
levy or claim which is being contested in good faith and by proper proceedings
if it has maintained adequate reserves with respect thereto in accordance with
U.S. GAAP.
(k) Corporate Separateness. The Parent Guarantor will, and will cause
its Subsidiaries to, satisfy customary corporate formalities including the
holding of regular board of directors' and shareholders' meetings, or action by
directors or shareholders without a meeting and the maintenance of corporate
offices and records. The Parent Guarantor shall not, and shall cause its
Subsidiaries not to, take any action or conduct its affairs in a manner which is
likely to result in the corporate existence of the Parent Guarantor being
ignored, or in the assets and liabilities of the Parent Guarantor, any of its
Subsidiaries or each Credit Party being substantively consolidated with those of
its Subsidiaries in a bankruptcy, reorganization or other insolvency proceeding.
13. Negative Covenants. The Parent Guarantor hereby covenants and
agrees that on and after the Effective Date and until the Commitment has
terminated and the Loans (together with interest thereon), Fees and all other
Guaranteed Obligations (other than any indemnities described in Section 11.12 of
the Credit Agreement which are not then due and payable) incurred hereunder and
thereunder, are paid in full (unless otherwise agreed by the Lender in writing):
(a) Liens. The Parent Guarantor will not, and will cause each of the
other Credit Parties not to, create, incur, assume or suffer to exist any Lien
upon or with respect to its assets, whether now owned or hereafter acquired, or
selling any such property or assets subject to an understanding or agreement,
contingent or otherwise, to repurchase such assets (including sales of accounts
receivable with recourse to any Credit Party), or assigning any right to receive
income or permitting the filing of any financing statement or any other similar
notice of Lien under any recording, notice or similar statute; provided that the
provisions of this Section 13(a) shall not prevent the creation, incurrence,
assumption or existence of the following (Liens described below are herein
referred to as "Permitted Liens"):
(i) inchoate Liens for taxes, assessments or governmental
charges or levies not yet due or Liens for taxes, assessments or
governmental charges or levies being contested in good faith and by
appropriate proceedings for which adequate reserves have been
established in accordance with U.S. GAAP;
(ii) Liens in respect of property or assets of the Parent
Guarantor or any other Credit Party which were incurred in the ordinary
course of business and do not secure Indebtedness for borrowed money,
such as carriers', warehousemen's, materialmen's and mechanics' liens
and other similar Liens arising in the ordinary course of business, and
(x) which do not in the aggregate
Page 12
materially detract from the value of the Parent Guarantor's or such
Credit Party's property or assets or materially impair the use thereof
in the operation of the business of the Parent Guarantor or such Credit
Party or (y) which are being contested in good faith by appropriate
proceedings, which proceedings have the effect of preventing the
forfeiture or sale of the property or assets subject to any such Lien;
(iii) Liens in existence on the Initial Borrowing Date which
are listed, and the property subject thereto described, in Schedule B
hereto but only through the respective date, if any, set forth in such
Schedule B for the removal, replacement and termination of any such
Liens, plus renewals, replacements and extensions of such Liens to the
extent set forth on such Schedule B, provided that (x) the aggregate
principal amount of the Indebtedness, if any, secured by such Liens
does not increase from that amount outstanding at the time of any such
renewal, replacement or extension and (y) any such renewal, replacement
or extension does not encumber any additional assets or properties of
the Parent Guarantor and the other Credit Parties;
(iv) Liens created pursuant to the Security Documents; and
(v) Liens on any assets or property of the Parent Guarantor or
any other Credit Party, except for (x) the Collateral assets consisting
of receivables with respect to a contract, agreement or arrangement if
a portion of such receivables is Collateral, provided that the total
value of such property or assets subject to such Liens does not exceed
$30,000,000 (thirty million Dollars) in the aggregate, and provided
further that in no event shall any Liens on any assets or property of
the Parent Guarantor or any other Credit Party, consisting of
receivables with respect to a contract, agreement or arrangement be
permitted to exist or be incurred.
(b) Consolidation, Merger, Purchase or Sale of Assets, etc. The Parent
Guarantor will not, and will cause each of the other Credit Parties not to, wind
up, liquidate or dissolve its affairs or enter into any transaction of merger or
consolidation (when either the Parent Guarantor or such Credit Party is not the
surviving entity unless the transaction is between or among Credit Parties), or
convey, sell, lease or otherwise dispose of all or substantially all of its
property or assets, or enter into any sale-leaseback transactions (except with
another Credit Party), or purchase or otherwise acquire (in one or a series of
related transactions) any part of the property or assets (other than purchases
or other acquisitions of inventory, materials, equipment and supplies in the
ordinary course of business) of any Person (or agree to do any of the foregoing
at any future time), except that:
(i) Capital Expenditures by the Parent Guarantor and other
Credit Parties shall be permitted to the extent not in violation of
Section 13(f) hereof;
Page 13
(ii) sales of inventory may be made in the ordinary course of
business;
(iii) investments may be made to the extent permitted by
Section 8.04 of the Credit Agreement;
(iv) the Parent Guarantor or any other Credit Parties may sell
assets (other than the capital stock or other equity interests of any
Subsidiary of a Credit Party), so long as (w) no Default or Event of
Default then exists or would result therefrom, (x) it receives at least
fair market value, (y) the consideration received consists solely of
cash and is paid at the time of the closing of such sale and (z) the
aggregate amount of the proceeds received from all assets sold pursuant
to this clause (iv) shall not exceed $500,000 in any fiscal year;
(v) the Parent Guarantor or any other Credit Parties may lease
(as lessee) or license (as licensee) real or personal property;
(vi) the Parent Guarantor or any other Credit Parties may sell
or discount its accounts receivable without recourse and for cash at
fair market value, but only in connection with the compromise or
collection thereof and not as part of any financing transaction,
provided that the aggregate amount of such sales shall not exceed
$500,000 in any fiscal year;
(vii) the Parent Guarantor or any other Credit Parties may
grant licenses, sublicenses, leases or subleases to other Persons not
materially interfering with the conduct of its business, in each case
so long as no such grant otherwise affects the Lender's security
interest in the asset or property subject thereto;
(viii) the Acquisition shall be permitted in accordance with
the terms of the Acquisition Documents and upon the consummation of the
Acquisition, the Buyer and Sovintel may be merged together regardless
of which entity shall survive, provided that such merger (a) does not
otherwise result in a Default or Event of Default and (b) does not
impair any security for the performance of any term of any Credit
Document; and
(ix) the Parent Guarantor may sell or otherwise dispose of its
shares in MCT Corp., a Delaware corporation, at a fair market price in
an arms-length transaction.
To the extent the Lender waives the provisions of this Section 13(b) with
respect to the sale of any Collateral, or any Collateral is sold as permitted by
this Section 13(b) of the Credit Agreement (other than to a Credit Party), such
Collateral shall be sold free and clear of the Liens created by the Security
Documents.
Page 14
(c) Indebtedness. The Parent Guarantor will not, and will cause the
other Credit Parties not to, contract, create, incur, assume or suffer to exist
any Indebtedness, except:
(i) Indebtedness incurred pursuant to the Credit Agreement and the
other Credit Documents; and
(ii) Indebtedness in an aggregate principal amount, with respect to all
the Credit Parties, not to exceed $10,000,000 million incurred in any
single transaction or series of transactions with any Person or Persons
other than another Credit Party.
(d) Advances, Investments and Loans. The Parent Guarantor will not, and
will cause each of the other Credit Parties not to, directly or indirectly, lend
money or extend credit or make advances to any Person, or purchase or acquire
any stock, obligations or securities of, or any other interest in, or make any
capital contribution to, any other Person, or purchase or own a futures contract
or otherwise become liable for the purchase or sale of currency or other
commodities at a future date in the nature of a futures contract (other than for
currency risk hedging purposes), except that the following shall be permitted:
(i) the Parent Guarantor and any of the other Credit Parties may
acquire and hold accounts receivable owing to it, if created or
acquired in the ordinary course of business and payable or
dischargeable in accordance with its customary trade terms;
(ii) the Parent Guarantor and any of the other Credit Parties may
acquire and own investments (including debt obligations) received in
connection with the bankruptcy or reorganization of suppliers and
customers and in good faith settlement of delinquent obligations of,
and other disputes with, customers and suppliers arising in the
ordinary course of business;
(iii) the Parent Guarantor and any of the other Credit Parties may make
loans and advances to their respective officers and employees for
moving, relocation and travel expenses and other similar expenditures,
in each case in the ordinary course of business in an aggregate amount
not to exceed $1,000,000 at any time (determined without regard to any
write-downs or write-offs of such loans and advances);
(iv) the Parent Guarantor and any of the other Credit Parties may make
advances to any Person in the ordinary course of its business; and
(v) the Parent Guarantor and any of the other Credit Parties may (1)
make a capital contribution to, or otherwise invest or acquire an
equity interest in, any other Credit Party; and (2) invest in (x) LLC
Golden Telecom, a Ukrainian limited liability company, provided that
the aggregate amount of all such investments by
Page 15
the Parent Guarantor and all of its Subsidiaries shall not exceed
$5,200,000 (five million two hundred thousand Dollars) and (y) any
other Person, provided that the aggregate amount of all such
investments by the Parent Guarantor and the other Credit Parties shall
not exceed $2,500,000 (two million five hundred thousand Dollars).
(e) Transactions with Affiliates. Except as otherwise provided in
Section 12(d) hereof, the Parent Guarantor will not, and will cause each of the
other Credit Parties not to, enter into any transaction or series of related
transactions with any of its Affiliates, other than in the ordinary course of
business and on terms and conditions substantially as favorable to the Parent
Guarantor or such Credit Party, as the case may be, as would reasonably be
obtained by it at that time in a comparable arm's length transaction with a
Person other than an Affiliate, except that customary fees may be paid to
non-officer directors of the Parent Guarantor and the other Credit Parties,
provided that the Parent Guarantor and the other Credit Parties may make loans
to one or more Subsidiaries if (x) the aggregate amount of such loans
outstanding granted by all Credit Parties at any time does not exceed
$10,000,000 (ten million Dollars) and (y) any such Subsidiary which receives
such loans in an aggregate amount of $1,000,000 (one million Dollars) or more
shall execute and deliver, by the last day of the fiscal quarter during which
such Indebtedness is incurred, a Guaranty substantially in the form of Exhibit M
to the Credit Agreement, or a Surety Agreement substantially in the form of
Exhibit N to the Credit Agreement, and by the same date shall become a party to
the Subordination Agreement.
(f) Capital Expenditures. The Parent Guarantor will not, and will cause
each of the other Credit Parties not to, make any Capital Expenditures, except
that during the first half or second half of any fiscal year of a Credit Party
(taken as one accounting period), it may make such expenditures unless the
aggregate total of Capital Expenditures of all the Credit Parties exceeds 65% of
Consolidated EBITDA of the Parent Guarantor and each of the other Credit Parties
for such six month period.
(g) Consolidated Debt Service Ratio. The Parent Guarantor will not
permit the Consolidated Debt Service Ratio for any fiscal year to be less than
2:1.
(h) Gearing Ratio. The Parent Guarantor will not permit the Gearing
Ratio at any time to be greater than 1:2.
(i) Modification of Memorandum and Articles of Association and Certain
Other Agreements, etc. Unless otherwise agreed to by the Lender in writing (not
to be unreasonably withheld), the Parent Guarantor will not, and will cause each
of the other Credit Parties not to:
(i) other than as provided for in, or contemplated by, the
Acquisition Documents, or as required by applicable law, amend, modify
or change its articles of incorporation or by-laws (including, without
limitation, by the filing or modification of any certificate or
articles of designation, or any agreement entered
Page 16
into by it with respect to its capital stock or other equity interests
(including any shareholders' agreement), or enter into any new
agreement with respect to its capital stock or other equity interests,
unless such amendment, modification, change or other action
contemplated by this clause (i) could not reasonably be expected to be
adverse to the interests of the Lender in any material respect;
(ii) amend, modify or change any term or provision of the
Acquisition Agreement unless such amendment, modification or change is
approved in advance by the Lender; or
(iii) make any voluntary or optional payment or prepayment in
respect of any Indebtedness of any Credit Party, except as otherwise
permitted by this Agreement or between or among Credit Parties that are
parties to the Subordination Agreement, or amend, modify, or permit the
amendment or modification of, any provision of any agreement evidencing
any such Indebtedness, except for such amendments or modifications that
could not reasonably be expected to be adverse to the interests of the
Lender in any material respect.
(j) Limitation on Certain Restrictions on Credit Parties. The Parent
Guarantor will not, directly or indirectly, create or otherwise cause or suffer
to exist or become effective any encumbrance or restriction on the ability of
any of the other Credit Parties to (i) pay dividends or make any other
distributions on its capital stock or any other interest or participation in its
profits owned by such Credit Party, or pay any Indebtedness owed to such Credit
Party, (ii) make loans or advances to such Credit Party or (iii) transfer any of
its properties or assets to such Credit Party, except for such encumbrances or
restrictions existing under or by reason of (a) applicable law, (b) this
Agreement and the other Credit Documents, (c) customary provisions restricting
subletting or assignment of any lease governing any leasehold interest of such
Credit Party, (d) except where the existence of such provision causes or may be
reasonably believed to cause a Material Adverse Effect, customary provisions
restricting assignment of any licensing agreement (in which such Credit Party is
the licensee) or other contract entered into by such Credit Party in the
ordinary course of business, (e) restrictions on the transfer of any asset
pending the close of the sale of such asset, and (f) restrictions on the
transfer of any asset subject to a Lien permitted by Section 13(a)(iii) hereof.
(k) Business; etc. The Parent Guarantor will not, and will cause each
of the other Credit Parties not to, make substantial changes in the businesses
engaged in by it as of the Initial Borrowing Date.
14. The Parent Guarantor hereby agrees to pay all reasonable
out-of-pocket costs and expenses of the Lender in connection with the
enforcement of this Guaranty and in connection with any amendment, waiver or
consent relating hereto (including, in each case, without limitation, the
reasonable fees and disbursements of counsel employed by the Lender).
Page 17
15. This Guaranty shall be binding upon the Parent Guarantor and the
Parent Guarantor may not assign or transfer any of its rights, obligations or
interests hereunder without the prior written consent of the Lender. This
Guaranty shall inure to the benefit of the Lender and its successors and
assigns.
16. Neither this Guaranty nor any provision hereof may be changed,
waived, discharged or terminated except with the written consent of the Parent
Guarantor and of the Lender at all times prior to the time at which all
Guaranteed Obligations have been paid in full.
17. The Parent Guarantor acknowledges that an executed (or conformed)
copy of each of the Credit Documents has been made available to a senior officer
of the Parent Guarantor and such officer is familiar with the contents thereof.
18. In addition to any rights now or hereafter granted under applicable
law and not by way of limitation of any such rights, upon the occurrence and
during the continuance of an Event of Default, the Lender and any Affiliate
thereof is hereby authorized, at any time or from time to time, without notice
to the Parent Guarantor or to any other Person, any such notice being expressly
waived, to set off and to appropriate and apply any and all deposits (general or
special) and any other indebtedness at any time held or owing by the Lender or
such Affiliate to or for the credit or the account of the Parent Guarantor,
against and on account of the obligations and liabilities of the Parent
Guarantor to the Lender or such Affiliate under this Guaranty, irrespective of
whether or not the Lender or such Affiliate shall have made any demand hereunder
and although said obligations, liabilities, deposits or claims, or any of them,
shall be contingent or unmatured; provided that, immediately prior to the set
off of any amount by an Affiliate of the Lender, such Affiliate shall have
purchased a participation or sub-participation of like amount in the obligations
of the Borrower owed to the Lender under the Credit Agreement, as provided in
Section 11.04 thereof.
19. All notices, requests, demands or other communications pursuant
hereto shall be sent or delivered by telegraph, telex, telecopy, cable or
courier service and all such notices and communications shall, when telegraphed,
telexed, telecopied, or cabled or sent by overnight courier, be effective when
delivered to the telegraph company, cable company or overnight courier, as the
case may be, or sent by telex or telecopier, except that notices and
communications to the Lender shall not be effective until received by the
Lender. All notices and other communications shall be in writing and addressed
to such party at (i) in the case of the Lender, as provided in the Credit
Agreement and (ii) in the case of the Parent Guarantor, at its address set forth
opposite its signature below, or in any case at such other address as either of
the Persons listed above may hereafter notify the others in writing.
20. If a claim is ever made upon the Lender for repayment or recovery
of any amount or amounts received in payment or on account of any of the
Guaranteed Obligations and the Lender repays all or part of said amount by
reason of (i) any judgment, decree or order of any court or administrative body
having jurisdiction over such payee or any of its property or (ii) any
Page 18
settlement or compromise of any such claim effected by the Lender with any such
claimant (including the Borrower), then and in such event the Parent Guarantor
agrees that any such judgment, decree, order, settlement or compromise shall be
binding upon the Parent Guarantor, notwithstanding any revocation hereof or
other instrument evidencing any liability of the Borrower, and the Parent
Guarantor shall be and remain liable to the Lender hereunder for the amount so
repaid or recovered to the same extent as if such amount had never originally
been received by the Lender.
21. (a) THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF THE LENDER AND
OF THE PARENT GUARANTOR HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK. Subject to the option in
clause (d) below, any legal action or proceeding with respect to this Guaranty
or any other Credit Document to which the Parent Guarantor is a party may be
brought in the courts of the State of New York or of the United States of
America for the Southern District of New York in each case which are located in
the County of New York, and, by execution and delivery of this Guaranty, the
Parent Guarantor hereby irrevocably accepts for itself and in respect of its
property, generally and unconditionally, the jurisdiction of the aforesaid
courts. The Parent Guarantor hereby further irrevocably waives any claim that
any such court lacks personal jurisdiction over the Parent Guarantor, and agrees
not to plead or claim in any legal action or proceeding with respect to this
Guaranty or any other Credit Document to which the Parent Guarantor is a party
brought in any of the aforesaid courts that any such court lacks personal
jurisdiction over the Parent Guarantor. The Parent Guarantor further irrevocably
consents to the service of process out of any of the aforementioned courts in
any such action or proceeding by the mailing of copies thereof by registered or
certified mail, postage prepaid, to the Parent Guarantor at its address set
forth in Section 19 hereof, such service to become effective 30 days after such
mailing. The Parent Guarantor hereby irrevocably waives any objection to such
service of process and further irrevocably waives and agrees not to plead or
claim in any action or proceeding commenced hereunder or under any other Credit
Document to which the Parent Guarantor is a party that such service of process
was in any way invalid or ineffective. Nothing herein shall affect the right of
the Lender to serve process in any other manner permitted by law or to commence
legal proceedings or otherwise proceed against the Parent Guarantor in any other
jurisdiction.
(b) The Parent Guarantor hereby irrevocably waives (to the fullest
extent permitted by applicable law) any objection which it may now or hereafter
have to the laying of venue of any of the aforesaid actions or proceedings,
arising out of or in connection with this Guaranty or any other Credit Document
to which the Parent Guarantor is a party, brought in the courts referred to in
clause (a) above and hereby further irrevocably waives and agrees not to plead
or claim in any such court that such action or proceeding brought in any such
court has been brought in an inconvenient forum.
(c) EACH OF THE PARENT GUARANTOR AND THE LENDER (BY ITS ACCEPTANCE OF
THE BENEFITS OF THIS GUARANTY) HEREBY IRREVOCABLY
Page 19
WAIVES ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF OR RELATING TO THIS GUARANTY, THE OTHER CREDIT DOCUMENTS TO WHICH
THE PARENT GUARANTOR IS A PARTY OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY.
(d) Any dispute, controversy or claim arising out of, relating to or in
connection with this Guaranty, including any question regarding its existence,
validity or termination, or regarding a breach of this Guaranty, shall at the
option of the Parent Guarantor be referred to, and finally settled by
arbitration under and in accordance with the Rules, which Rules are deemed to be
incorporated by reference into this clause. The place of arbitration shall be
New York, New York, and the award shall be deemed to have been made there. The
arbitral tribunal may, however, hold hearings, meetings or sessions anywhere
convenient. The arbitral tribunal shall consist of three arbitrators. Each of
the Parent Guarantor and the Lender shall be entitled to select one of the
arbitrators. The third arbitrator shall be selected by the President of the ICC
International Court of Arbitration in accordance with the Rules and shall serve
as the presiding arbitrator. The language to be used in the arbitral proceedings
shall be English. The award of the arbitral tribunal shall be in writing and
state the reasons upon which it is based. Any monetary award shall be made in
Dollars. The award of the arbitral tribunal shall be final and binding on the
parties hereto. Judgment upon an arbitral award rendered by the arbitral
tribunal may be entered in any court having jurisdiction.
22. This Guaranty may be executed in any number of counterparts and by
the different parties hereto on separate counterparts, each of which when so
executed and delivered shall be an original, but all of which shall together
constitute one and the same instrument. A set of counterparts executed by both
of the parties hereto shall be lodged with each of the Parent Guarantor and the
Lender.
23. All payments made by the Parent Guarantor hereunder will be made
without setoff, counterclaim or other defense and on the same basis as payments
are made by the Borrower under Sections 3.03 and 3.04 of the Credit Agreement.
* * *
Page 20
IN WITNESS WHEREOF, the Parent Guarantor has caused this Guaranty to be
executed and delivered as of the date first above written.
ADDRESS: GOLDEN TELECOM, INC.,
as Parent Guarantor
Golden Telecom, Inc.
0000 XxxXxxxxx Xxxxxxxxx, X.X., Xxxxx 000 By________________________
Xxxxxxxxxx, X.X. 00000 Name:
Phone: (000) 000-0000 Title:
Fax: (000) 000-0000
Attention: General Counsel
WITH A COPY TO:
Representative Office of Golden TeleServices, Inc.
00 Xxxxxxxx Xx., 0xx Xxxxx
Xxxxxx, Xxxxxx
000000
Telephone: 0-000-000-0000
Facsimile: 7-095-797-9332
Attention: General Counsel
Accepted and Agreed to:
ZAO CITIBANK,
as Lender
By ________________________
Name:
Title:
EXHIBIT H
LLC TELEROSS
AS SURETY
and
ZAO CITIBANK
AS LENDER
--------------------------------------------------------------------------------
SURETYSHIP AGREEMENT
--------------------------------------------------------------------------------
SURETYSHIP AGREEMENT
THIS SURETYSHIP AGREEMENT is entered into in Moscow on [ ], 2002 between
(1) LLC TELEROSS, a limited liability company established
under the laws of the Russian Federation, located at 27-29, Smolenskaya -
Xxxxxxx xxxxxx, xxxxxxxx 0, Xxxxxx, 000000, Xxxxxx (hereinafter the "SURETY");
and
(2) ZAO CITIBANK, a bank established under the laws of the
Russian Federation, located at 8-10, Gasheka ul., 125047 Moscow, Russian
Federation, (hereinafter the "LENDER").
The Surety and the Lender are hereinafter individually
referred to as a "Party" and, collectively, as the "Parties".
RECITALS
(A) Pursuant to the Credit Agreement, dated as of September
[__], 2002 (hereinafter the "CREDIT AGREEMENT"), between ZAO Citibank, as
Lender, and ROL Holdings Limited, as borrower (hereinafter the "BORROWER"), the
Lender has agreed to extend a credit facility to the Borrower in an aggregate
principal amount of up to USD 30,000,000 (Thirty Million US Dollars) (the
"Loan") on the terms and subject to the conditions stipulated therein.
(B) Pursuant to the terms of the Credit Agreement, it is a
condition precedent to the initial disbursement under the Loan that the Lender
and the Surety shall have entered into this Suretyship Agreement to secure
payment by the Borrower of its obligations under the Credit Agreement.
NOW, THEREFORE, the Surety and the Lender hereby agree as
follows:
1. DEFINITIONS
1.1 Capitalized terms used herein but not otherwise defined
herein shall have the same meanings ascribed to such terms in the Credit
Agreement.
2. SURETY
2.1 The Surety shall be liable to the Lender for the full and
timely payment by the Borrower of such of its obligations under the Credit
Agreement as are described in Section 3 hereof, and the costs and expenses
reasonably incurred by the Lender in respect of the enforcement of this
Suretyship Agreement and the Credit Agreement (collectively hereinafter the
"SECURED OBLIGATIONS").
3. OBLIGATIONS OF THE BORROWER
3.1 This Suretyship Agreement shall secure the payment of the
following obligations of the Borrower to the Lender under the Credit Agreement,
when and if such obligations become due and payable, whether currently existing
or hereafter incurred by the Borrower:
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Lender Surety
MOSCOW - 50972.06
(a) to repay the Loan made available by the Lender in the amount
of up to Thirty Million US Dollars;
(b) to pay interest on the Loan at the rate of three - month LIBOR
plus 4.35% annually, as well as default interest at the rate
of three - month LIBOR plus 7.35% annually;
(c) to pay to the Lender a commission for opening and maintaining
a loan account in the amount of USD 300,000, as provided in
Section 2.01(a) of the Credit Agreement;
(d) to pay to the Lender the commitment commission as specified in
Section 2.01(b) of the Credit Agreement and any other amounts
due in respect of indemnities, taxes or other costs as
provided in Section 11.01 of the Credit Agreement; and
(e) to perform the other obligations specified in the Credit
Agreement.
3.2 In accordance with the Credit Agreement, the obligations
of the Borrower shall be performed as follows:
(a) payment of the principal amount of the Loan under the Credit
Agreement in US Dollars in four equal instalments on the
[_____] of December 2003, [_____] of March 2004; [____] of
June 2004; and [___] of September 2004;
(b) quarterly payment of interest in US Dollars at the rate of
three-month LIBOR plus 4.35% per annum and default interest in
US Dollars at the rate of three-month LIBOR plus 7.35% per
annum;
(c) payment of the arrangement fee due to the Lender in accordance
with the following schedule:
- USD 30,000 to be paid not later than on the 22nd of March,
2002;
- USD 150,000 to be paid within five days of the Effective
Date (as defined in the Credit Agreement);
- USD 120,000 to be paid on the Initial Borrowing Date (as
defined in the Credit Agreement), provided that such amount
shall not be due to the Lender if the Initial Borrowing Date
does not occur;
(d) payment to the Lender of the amounts specified in Section
3.1(d) above; and
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Lender -2- Surety
MOSCOW - 50972.06
(e) the other Secured Obligations specified in the Credit
Agreement shall be performed by the Borrower at the request of
the Lender in accordance with the conditions of the Credit
Agreement.
4. EFFECTIVENESS OF THE SURETY
4.1 The obligations of the Surety undertaken pursuant to this
Suretyship Agreement shall become effective on the Initial Borrowing Date and
shall remain in full force and effect until all Secured Obligations have been
paid in full or are released by the Lender, or are otherwise terminated for any
reason whatsoever.
4.2 Payment by the Surety of any of the Secured Obligations
shall not cause the termination of the obligations of the Surety in respect to
the remaining outstanding Secured Obligations.
5. PAYMENTS
5.1 In the event that the Lender declares an Event of Default
under Section 9.01 or Section 9.05 of the Credit Agreement and serves a notice
thereof (the "Default Notice") upon the Borrower as provided for in Article 9 of
the Credit Agreement, then the Lender shall be entitled to serve a notice upon
the Surety (the "PAYMENT REQUEST") requesting the payment by the Surety of such
amount as has become due and payable under the Credit Agreement (the "CLAIMED
AMOUNT"). The Lender shall deliver to the Surety a copy of the Default Notice
together with the Payment Request.
5.2 The Surety shall pay as a joint debtor the Claimed Amount
as specified in the Payment Request provided that the Claimed Amount shall be
automatically decreased by (a) any amounts paid by the Borrower or any Guarantor
to the Lender in respect of the Secured Obligations after the Lender shall have
served the Payment Request upon the Surety; (b) any amount or value received by
the Lender as a result of enforcement of its rights against any collateral
pledged or otherwise granted in favor of the Lender in connection with the
Credit Agreement; and (c) any amounts the Lender shall have otherwise received
or obtained (including, without limitation, through offset of the amounts due
and payable by the Borrower under the Credit Agreement against the Borrower or
any Guarantor) before the payment by the Surety of the Claimed Amount (or any
portion thereof).
5.3 The Surety shall have no right to assert any defenses or
any counterclaims against the Lender (other than a defense of payment and
performance), which may be asserted against the Lender by the Borrower in
respect of claims relating to principal, interest, fees and commissions due to
the Lender under the Credit Agreement.
6. REPRESENTATIONS, WARRANTIES AND COVENANTS
6.1 The Surety hereby warrants that:
(a) taking into account the information set out in
Schedule 6.01 of the Credit Agreement, it is a limited
liability company, duly established under the laws of the
Russian Federation;
------------- -------------
Lender -3- Surety
MOSCOW - 50972.06
(b) it has the power and authority to execute this
Suretyship Agreement and to exercise its rights and perform
its obligations hereunder and has taken all necessary internal
actions to authorize the execution and delivery of this
Suretyship Agreement, and this Suretyship Agreement
constitutes the legal, valid and binding obligation of the
Surety enforceable in accordance with its terms, except as may
be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the
creditors rights generally or by general principles of equity
(regardless of whether enforcement sough in equity or at law);
(c) it has obtained all permits, consents, waivers,
authorizations, licences and approvals required (i) for the
Surety to lawfully execute this Suretyship Agreement and
exercise its rights and perform its obligations hereunder; and
(ii) to secure the legality, validity, binding effect and
enforceability of its obligations hereunder;
(d) the Surety is not involved in any court
proceedings and, to the best of its knowledge, there are no
such court or administrative proceedings pending or
threatened. In addition, the Surety has not breached or
defaulted on any of its obligations pursuant to any agreement
to which it is party to an extent or in a manner which could
negatively affect the Surety's ability to perform its
obligations pursuant to this Suretyship Agreement;
(e) all information that has been provided by the
Surety to the Lender in connection herewith is true, complete
and accurate in all material respects, and the Surety knows of
no facts or circumstances concerning which the Lender has not
been made aware which could have a negative effect on the
decision of the Lender to extend the Loan to the Borrower on
the basis of the Credit Agreement and this Suretyship
Agreement;
(f) the Surety has not adopted any internal decisions
or taken any other actions, nor to the knowledge of the Surety
have any court proceedings been initiated for the purpose of
declaring the Surety insolvent or the liquidation of the
Borrower; or
(g) the execution of this Suretyship Agreement by the
Surety, and the performance of its obligations hereunder, do
not violate any of the constitutive documents of the Surety.
6.2 The Surety covenants that throughout the term of this
Agreement it shall ensure that no less than 90% of the cash funds received by
the Surety from its ordinary business operations shall be routed through its
accounts with the Lender. The Lender agrees that the foregoing obligation of the
Surety shall terminate immediately upon satisfaction of the Secured Obligations
of the Borrower in accordance with the terms of the Credit Agreement.
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Lender -4- Surety
MOSCOW - 50972.06
7. NOTICES
7.1 Any notice, inquiry, claim, assertion, certificate or
other communication (hereinafter "COMMUNICATIONS") to be sent or drafted under
this Suretyship Agreement shall be made in writing and delivered by courier to
the following addresses:
Surety: LLC TeleRoss, 00,
Xxxxxxxxxxxxxxxxxx Xxx., 000000,
Xxxxxx, Xxxxxx
Attention: General Director.
Account Numbers: - Current USD account #
40702840700700046001
with ZAO Citibank, Moscow;
- Current XXX xxxxxxx #
00000000000000000000
xxxx XXX Xxxxxxxx, Xxxxxx.
Tax Identification Number: 0000000000
Lender: ZAO Citibank xx. Xxxxxxx 0-00,
000000 Xxxxxx, Xxxxxx
Attention: Relationship Manager of Golden
Telecom Group
Each of the Parties shall have the right to change its address or fax number at
any time or from time to time after having given the other Party written notice
thereof. Any notice of a change of address or fax number given by other Party
pursuant to this Section 7.1 shall become effective five (5) Business Days after
the receipt thereof by the other Party.
7.2 All Communications sent or made in accordance herewith
shall be in the Russian and English languages.
8. GOVERNING LAW AND JURISDICTION
8.1 This Agreement shall be governed by, and construed in
accordance with, the laws of the Russian Federation.
8.2 The Surety and the Lender hereby agree that any legal
action or proceeding with respect to (a) the interpretation or application of
any term or provision of this Suretyship Agreement and (b) the preservation
and/or enforcement of any rights of the Lender pursuant hereto shall be brought
in the Arbitrazh Court of the City of Moscow, without prejudice to the right of
the Lender to initiate proceedings against the Surety in any other court of
competent jurisdiction.
9. MISCELLANEOUS
9.1 The Surety hereby acknowledges that it has received the
Credit Agreement and is familiar with its terms.
9.2 The Surety shall, from time to time, compensate the
Lender, upon the written request of the Lender, for all reasonable costs and
expenses (including reasonable attorneys' fees) incurred by the Lender in
connection with the preservation and/or enforcement of any rights of the Lender
pursuant to this Suretyship Agreement.
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Lender -5- Surety
MOSCOW - 50972.06
9.3 No failure to exercise, nor any delay in exercising, on
the part of the Lender, any right, power or privilege hereunder shall operate as
a waiver thereof. No single or partial exercise of any right, power or privilege
hereunder shall preclude any other or further exercise thereof or the exercise
of any right, power or privilege. A waiver by the Lender of any right or remedy
hereunder on any one occasion shall not be construed as a bar to any right or
remedy which the Lender would otherwise have on any future occasion. The rights
and remedies herein provided are cumulative, may be exercised singly or
concurrently and are not exclusive of any rights or remedies provided by law.
9.4 If at any time any provision of this Suretyship Agreement
or a part thereof is or becomes illegal, invalid or unenforceable in any
jurisdiction, such occurrence shall not affect the legality, validity or
enforceability of the remaining provisions hereof or the legality, validity or
enforceability of such provision in any other jurisdiction.
9.5 This Suretyship Agreement shall be binding on, and inure
to the benefit of, each of the Parties and their respective successors or
permitted assignees.
9.6 Neither Party shall have the right to assign or transfer
any of its rights, benefits or obligations hereunder without the written consent
of the other Party, provided that, the Lender shall be entitled to assign its
rights hereunder in connection with an assignment of its rights under, and in
accordance with, the Credit Agreement.
9.7 This Agreement shall be executed in the English and
Russian languages in two counterparts in each language, each of which shall be
deemed an original but all of which shall together constitute one and the same
instrument. In the event of conflicts or discrepancies between the Russian and
the English versions, the English version shall prevail.
FOR AND ON BEHALF OF LLC TELEROSS
Signature: _______________________
Full Name: Xxxx Abbeloos
Position: General Director
Signature: _______________________
Full Name: Xxxx Xxxxxxxx
Position: Chief Accountant
[seal]
FOR AND ON BEHALF OF ZAO CITIBANK
Signature: _______________________
Full Name:
Position: Vice President
Signature: _______________________
Full Name: Xxxxxx Xxxxxx
Position: Chief Accountant
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Lender -6- Surety
MOSCOW - 50972.06
[seal]
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Lender -7- Surety
MOSCOW - 50972.06
EXHIBIT I
[TRANSLATION FROM RUSSIAN]
AGREEMENT
ON ASSIGNMENT OF PAYMENT RIGHTS TO SECURE OBLIGATIONS
This Agreement on Assignment of Payment Rights to Secure Obligations,
hereinafter referred to as this "Assignment Agreement," is concluded this day,
[____________], 2002, in the City of Moscow (Russian Federation), by and
between:
(1) LLC "EDN Sovintel," a limited liability company established under the laws
of the Russian Federation and located at 00, Xxxxxxxx Xxxxxx Xxxxxx, Xxxxxx,
000000, Xxxxxx (hereinafter referred to as the "Surety"), represented by its
General Director, Xxxxxxxxx Xxxxxxxxxx, acting on the basis of its Charter, on
one side, and
(2) ZAO "CITIBANK," a bank established under the laws of the Russian Federation
and located at 0-00 Xxxxxxx Xxxxxx, Xxxxxx 000000, Xxxxxx (hereinafter referred
to as the "Bank"), represented by [__________________], acting on the basis of
[___________________], on the other side,
hereinafter jointly referred to as the "Parties."
WHEREAS, on _____________, 2002, the Bank and the Surety entered into that
certain Surety Agreement (the "Surety Agreement"), pursuant to which the Surety
has guaranteed the fulfillment by ROL Holdings Limited (the "Borrower") of all
of the Borrower's obligations under the Credit Agreement in an amount of up to
thirty million US Dollars (US $30,000,000) signed by and between the Borrower
and the Bank on September [__], 2002 (the "Credit Agreement"), and
WHEREAS, the Surety has entered into certain agreements on provision of
communication services by the Surety (the "Supply Agreements"), as listed in
Exhibit 3 to this Assignment Agreement (with the companies referred to in such
agreements as the "Purchasers"),
THEREFORE, the Parties have entered into this Assignment Agreement on the
following:
1. DEFINITIONS
1.1. Terms and definitions used herein shall have the meanings assigned to
them in the Surety Agreement.
1.2. Unless the context requires otherwise, terms denoting the singular may
signify the plural and vice versa.
2. SUBJECT OF THE ASSIGNMENT AGREEMENT
2.1. The subject of this Assignment Agreement is the assignment, as of the
Payment Rights Transfer Date (as defined below), of current and future
rights
to payments in favor of the Surety against the Purchasers
arising out of the Supply Agreements (the "Payment Rights"), such
assignment to be made for the purposes of securing the Surety's
monetary obligations toward the Bank under the Surety Agreement.
2.2. The Payment Rights to be assigned on the Payments Rights Transfer Date
shall include monetary claims of the Surety against the Purchasers with
respect to the funds to be paid by the Purchasers to the Surety under
the Supply Agreements.
3. OBLIGATION SECURED WITH ASSIGNMENT
3.1. The assignment of the Payment Rights, as provided for herein, shall
secure the Bank's claims against the Surety with respect to payment of
the Required Amount under the Surety Agreement to the extent of such
Required Amount at the moment of such payment (hereinafter the "Secured
Payment Rights").
4. OBLIGATIONS OF THE PARTIES
4.1. Throughout the term of this Assignment Agreement, the Surety is
obligated:
4.1.1. Concurrently with execution of this Assignment Agreement
provide a calculation of the approximate amount of receivables
due from each of the Purchasers under the respective Supply
Agreements (quarterly average), prepared by the Surety, in the
form attached hereto as Exhibit 3, and signed by authorized
representatives of the Surety.
4.1.2. Not later than the 25th business day of each quarter, to
provide the Bank with information in the form of Exhibit 4
with respect to payments from the Purchasers for the quarter
preceding the then-current quarter.
4.1.3. To continue performing all of the obligations to the
Purchasers, as set forth in the relevant Supply Agreements,
provided that the Purchasers fulfill their respective
obligations to the Surety.
4.1.4. To inform the Bank, upon the Bank's request, of all material
information important for the fulfillment of the Payment
Rights, including information about the fulfillment by the
Purchasers of their obligations to the Surety, any events of
the Purchasers' failure to fulfill their obligations to the
Surety, which relate to the Payment Rights, as well as of any
facts and circumstances, which, in the Bank's reasonable
opinion, may materially affect the validity and amount of the
Payment Rights. If any event occurs, which, in the Surety's
opinion, substantially affects the validity and amount of the
Payment Rights, the Surety must immediately inform the Bank
thereof.
2
4.1.5. To send a notice to the Purchasers of the conclusion of this
Assignment Agreement, to be prepared in the form of Exhibit 1
to this Assignment Agreement (the "Notice").
4.1.6. To ensure that all payments by the Purchasers under the Supply
Agreements be made only to the Surety's settlement account
opened by the Surety with the Bank and specified in Article 10
hereof.
4.1.7. To provide the Bank with a copy of each Notice, as provided in
Subsection 4.1.5 hereof, together with the original of each
Confirmation Receipt with respect to each such Notice, to be
prepared in the form of Exhibit 2 and signed by the relevant
Purchaser.
4.1.8. To sign any amendments to the Supply Agreements, relating to,
and having a material effect on, the Payment Rights only with
the Bank's prior written consent.
4.1.9. Not to take any actions that entail the termination of the
Payment Rights or any reduction of their value, without the
prior written consent of the Bank.
4.1.10. Not to dispose, in any way, of the Payment Rights assigned
hereunder, not to assign the Payment Rights to third parties,
not to pledge or encumber the Payment Rights otherwise, and
not to permit any arrest of, or recovery against, the Payment
Rights, as well as proceeds under the Payment Rights credited
to the Surety's accounts with the Bank prior to the transfer
of the Payment Rights to Bank.
4.1.11. After occurrence of the Payment Rights Transfer Date, as
provided herein, to assist the Bank in collecting money due
under the Payment Rights, and to fulfill all of the Bank's
instructions and requests connected therewith, which are
reasonable and necessary with respect to the foregoing.
4.1.12. After occurrence of the Payment Rights Transfer Date, to
issue, at the Bank's request, to the Bank a power of attorney
authorizing the Bank to act on behalf of the Surety in any
disputes with the Purchasers in connection with fulfillment of
the Payment Rights hereunder.
4.2. The conclusion and fulfillment of this Assignment Agreement does not
result in the creation of any obligations of the Bank to the Purchasers
with respect to the Payment Rights (except for any actions related to
provision of information and documents that are necessary for the
Purchasers to effect payments pursuant to the Payment Rights).
3
4.3. Before and after the transfer of the Claims to the Bank, the Bank is
entitled, acting reasonably, to request from the Surety information as
to the status and amount of the Claims, as well as information about
the fulfillment by the Purchasers of their obligations to the Surety
5. TRANSFER OF CLAIMS
5.1. The Surety's Payment Rights shall be transferred to the Bank as of the
Payment Rights Transfer Date, in the event that the Surety fails to
fulfill its monetary obligations under the Surety Agreement, as
provided in Section 5.2 of the Surety Agreement.
5.2. In order to transfer the Payment Rights, the Bank (provided that the
conditions set forth in Section 5.1 hereof exist), without any prior
approval of the Surety, shall send notices of the transfer of the
Payment Rights to the relevant Purchaser and to the Surety, which
notices shall contain, among other things, an instruction to such
Purchaser to transfer monetary funds in accordance with the payment
details specified by the Bank. The Payment Rights shall be deemed
transferred from the Surety to the Bank at the date on which the Bank
sends such notices to the relevant Purchaser and the Surety (the
"Payment Rights Transfer Date").
5.3. All of the Surety's Payment Rights in full shall be transferred to the
Bank as of the Payment Rights Transfer Date.
5.4. Upon the transfer of the Payment Rights from the Surety to the Bank,
the Bank shall be entitled to issue any instructions to the Purchasers
with respect to the procedure for fulfillment of the Payment Rights, to
change payment details or to demand the suspension of payments. The
Bank must use all funds received by the Bank under the Payment Rights
in order to settle the Secured Payment Rights.
5.5. After the Payment Rights Transfer Date, the Bank shall provide to the
Surety monthly reports as to the funds received by the Bank under the
relevant Supply Agreements. If the funds received by the Bank from the
Purchasers exceed the amount of the Payment Rights, then the Bank,
within three business days, shall deliver to the Surety the excess sum
over the amount of the indebtedness under the Surety Agreement. If the
monetary funds collected by the Bank from the Purchasers are less than
the Surety's indebtedness to the Bank under the Surety Agreement, then
the Surety shall remain liable to the Bank for repayment of the
remainder of the indebtedness under the Surety Agreement.
6. REPRESENTATIONS OF THE SURETY
6.1. The Surety represents to the Bank that:
4
6.1.1. The execution and performance of this Assignment Agreement do
not and will not violate any provisions of the Surety's
foundation documents or any obligations to third parties.
6.1.2. The Payment Rights are legal and valid, and as of the moment
of execution of this Assignment Agreement, the Surety is not
aware of any circumstances as a result of which any of the
Purchasers is entitled to refuse to fulfill the Payment
Rights.
6.1.3. The Payment Rights to be assigned hereunder are not pledged,
disputed (arrested) or encumbered with any other obligations
of the Surety to third parties.
6.1.4. The officers entitled to execute this Assignment Agreement are
fully authorized to sign, on behalf of the Surety, this
Assignment Agreement and other documents relating to the
Assignment Agreement, as well as to represent the Surety in
its relationship with the Bank in the course of implementation
of the Assignment Agreement.
6.2. The Surety must immediately inform the Bank of any changes in the
Surety's representations made in Section 6.1 hereof or of any
misrepresentations.
7. GOVERNING LAW AND JURISDICTION
7.1. This Assignment Agreement shall be governed by, and construed under,
the law of the Russian Federation.
7.2. All disputes, disagreements or claims arising out of, or in connection
with, this Assignment Agreement, including in connection with its
fulfillment, violation, termination or invalidity, shall be settled by
the Arbitration Court of the City of Moscow.
8. EXCHANGE OF INFORMATION AND CORRESPONDENCE
8.1. Any correspondence, request, claim, demand or another information
related to the Assignment Agreement must be delivered to the following
addresses:
The Bank:
ZAO "Citibank"
0-00 Xxxxxxx Xxxxxx
Xxxxxx 000000
Russian Federation
Fax: x0 (000) 000-0000
Attn.: Manager of the Account of LLC "EDN Sovintel"
5
The Surety:
LLC "EDN Sovintel"
00 Xxxxxxxx Xxxxxx Xxxxxx
Xxxxxx 000000
Russian Federation
Fax: x0 (000) 000 0000
Attn.: General Director
8.2. All notices, requests, claims, demands and other documents to be sent
by any of the Parties hereunder to the other Party shall be sent by
hand or by registered mail, return receipt requested, to the above
addresses. A notice, document or another correspondence shall be deemed
received at the moment of its actual receipt by the addressee.
8.3. If one of the Parties changes its address, such Party must inform the
other Party thereof in writing at least five (5) business days prior to
such change.
9. FINAL PROVISIONS
9.1. This Assignment Agreement shall enter into force as of the moment of
its execution by the Bank and the Surety, and shall remain in force
until full termination of all of the Surety's obligations under the
Surety Agreement.
9.2. After complete fulfillment by the Surety of its obligations to the Bank
under the Surety Agreement, as well as in the event of termination of
the Surety Agreement for any other reasons, including due fulfillment
by the Borrower of its obligations under the Credit Agreement, the Bank
shall, within five (5) business days, deliver to the Surety and all of
the Purchasers a written notice of the reverse assignment of the
Payment Rights back to the Surety (if transferred) and of the
termination of this Assignment Agreement, as well as (i) prepare and
provide all certificates and other documents on the termination of this
Assignment Agreement, and (ii) perform all other actions which may be
reasonably and in good faith requested by the Surety in connection with
such termination.
9.3. The execution of this Assignment Agreement and possible transfer of the
Payment Rights from the Surety to the Bank will not result in the full
or partial termination or change of the Surety's obligations to the
Bank under the Surety Agreement, which obligations may be terminated
only upon complete satisfaction of the Secured Payment Rights.
9.4. If, as a result of any change in applicable legislation of the Russian
Federation or in the interpretation of such legislation by any
authorized bodies, any provisions of the Assignment Agreement are
declared unlawful or invalid, this will not affect the lawfulness or
validity of the remaining provisions of the
6
Assignment Agreement, the Assignment Agreement in its entirety, or the
Surety Agreement.
9.5. No assignment of rights hereunder to third parties is permitted without
the written consent of the Bank and the Surety. After the Payment
Rights Transfer Date, the Bank shall be entitled to transfer the
Payment Rights to those third parties, to which the rights of claim
under the Secured Obligations were transferred.
9.6. All changes and amendments hereto are valid only if they are made in
writing and signed by authorized persons.
9.7. This Assignment Agreement may be executed in two counterparts, each of
which, when signed, shall be deemed an original, and all of them
together shall be deemed one and the same agreement.
10. BANK DETAILS OF THE PARTIES
The Bank:
Taxpayer Identification Number: 7710401987
Correspondent account: 30101810300000000202 at OPERU of the
Moscow GTU of the Bank of Russia
BIC: 044525202
SWIFT: XXXXXXXX.
The Surety:
Taxpayer Identification Number: 0000000000
Settlement account: 40702810600700601013 at ZAO "Citibank"
SIGNATURES OF THE PARTIES
LLC "EDN Sovintel"
--------------------------
Name: Xxxxxxxxx Xxxxxxxxxx
Title: General Director
--------------------------
Name: Xxxxx Xxxxxxxxxxxx
Title: Chief Accountant
ZAO "Citibank"
7
--------------------------
Name:
Title: Vice President
--------------------------
Name: M. Y. Xxxxxx
Title: Chief Accountant
8
Exhibit 1
[LLC "EDN Sovintel" Letterhead]
NOTICE
Of the Assignment of Payment Rights
Under Supply Agreement No. ________, dated ____________
To: Mr. _________________
General Director
[name and address of Purchaser]
From: Xxxxxxxxx Xxxxxxxxxx
General Director
LLC "EDN Sovintel"
Cc: ZAO "Citibank"
Date: ____________
0-00 Xxxxxxx Xxxxxx
Xxxxxx 000000
Attn.: Xxxxxx Xxxxxxxx
Dear ________________:
We hereby inform you that on ______________, 2002, an Agreement on
Assignment of Payment Rights (hereinafter the "Assignment Agreement") was
entered into by and between our company and ZAO "Citibank," pursuant to the
terms and conditions of which LLC "EDN Sovintel" has agreed to assign to the
Bank the monetary claims, in their entirety, under Supply Agreement No. ______,
dated ___________, concluded by and between LLC "EDN Sovintel" and [Purchaser's
name] (with all supplements and exhibits thereto) (hereinafter the "Supply
Agreement"), on the terms and conditions set forth in the Assignment Agreement.
We hereby confirm that under the Assignment Agreement, LLC "EDN
Sovintel" agreed that the Bank, after sending a relevant notice, is entitled to
issue to [Purchaser's name] any instructions or orders with respect to
fulfillment of monetary claims under the Supply Agreement pursuant to the
conditions thereof, including with respect to changing payment details or
demanding the suspension of payments. Such instructions or orders may be issued
by the Bank without further approval or confirmation on our part.
Unless and until you receive an additional notice from the Bank with
respect to payment details, please make payments under the Supply Agreement only
to our account at ZAO "Citibank" as follows:
9
Settlement account: 40702810600700601013.
This Notice is irrevocable, and its conditions may not be changed
(including the above-mentioned payment details) without the prior approval of
the Bank.
As confirmation of your consent to the foregoing, please sign the
attached Confirmation and send it to the Bank to the above-mentioned address.
Please issue the Confirmation on your company's letterhead, verify it with the
signatures of the company's General Director and Chief Accountant, and affix it
with the company's seal.
Best regards,
On behalf of LLC "EDN Sovintel":
--------------------------- ------------------------
Xxxxxxxxx Xxxxxxxxxx Xxxxx Xxxxxxxxxxxx
General Director Chief Accountant
[Seal]
10
Exhibit 2
[Purchaser's Letterhead]
CONFIRMATION
Of Receipt of Notice
To: Xx. Xxxxxx Xxxxxxxx
Vice President
ZAO "Citibank"
0-00 Xxxxxxx Xxxxxx
Xxxxxx 000000
Date: _______________
From: Mr. _______________
General Director
[name and address of Purchaser]
Cc: LLC "EDN Sovintel"
(name and address)
Dear Xx. Xxxxxxxx:
We hereby confirm receipt of the Notice, dated _____________, from LLC
"EDN Sovintel" with respect to the conclusion of the Agreement on the Assignment
of Payment Rights, dated _____________, 2002 (hereinafter the "Assignment
Agreement"), pursuant to the terms and conditions of which LLC "EDN Sovintel"
has agreed to assign to ZAO "Citibank" (hereinafter the "Bank") the monetary
claims, in their entirety, under Supply Agreement No. ______, dated ___________,
concluded by and between LLC "EDN Sovintel" and [Purchaser's name] (with all
supplements and exhibits thereto) (hereinafter the "Supply Agreement"), on the
terms and conditions set forth in the Assignment Agreement.
We hereby confirm that, as of the moment of receipt of the
above-mentioned Notice, we are duly notified of said assignment.
On our part, we confirm that the Supply Agreement is fully valid for
our company and binds us to make payments for rendering communication services.
We further confirm that currently, as a result of the implementation of
the Supply Agreement, we have no counter claims, demands, accrued penalties or
fines, which we could claim in order to offset our obligations under the Supply
Agreement.
11
We hereby confirm that, upon the receipt from the Bank of a written
notice with respect to the fulfillment of monetary obligations under the Supply
Agreement, containing any instructions or orders, including with respect to
changing payment details or demanding the suspension of payments, we will
fulfill such instructions or orders without obtaining the prior approval or
confirmation of LLC "EDN Sovintel". Also, we understand that failure to fulfill
such instructions or orders will be deemed improper fulfillment of our
obligations under the Supply Agreement.
Unless and until we receive an additional notice from the Bank with
respect to payment details, we undertake to make payments under the Supply
Agreement only to the following account of LLC "EDN Sovintel" at ZAO "Citibank":
Settlement account: 40702810600700601013.
[Purchaser's name] also undertakes to inform the Bank promptly of the
receipt of any instructions from LLC "EDN Sovintel" that contradict the Notice.
We further confirm that, as of the date of this Confirmation, we are
not aware of any assignment or encumbrance by LLC "EDN Sovintel" of its rights
or obligations under the Supply Agreement to third parties, with the exception
of the assignment to the Bank under the Assignment Agreement.
On behalf of [Purchaser's name]:
------------------------- --------------------------
General Director Chief Accountant
[Seal]
12
Exhibit 3
[LLC "EDN Sovintel" Letterhead]
ESTIMATIONS OF AVERAGE QUARTERLY PAYMENTS
No. and date of Name of Purchaser AMOUNT OF ESTIMATED AVERAGE
Supply Agreement QUARTERLY PAYMENT
--------------------------- ------------------------- --------------------------------
--------------------------- ------------------------- --------------------------------
--------------------------- ------------------------- --------------------------------
On behalf of LLC "EDN Sovintel":
--------------------------- ------------------------
Xxxxxxxxx Xxxxxxxxxx Xxxxx Xxxxxxxxxxxx
General Director Chief Accountant
[Seal]
13
Exhibit 4
[LLC "EDN Sovintel" Letterhead]
LIST OF EFFECTED PAYMENTS
No. and date of Name of Purchaser Total amount paid by the Purchaser to the
Supply Agreement Surety under the Supply Agreement
for the last full quarter
--------------------------- ------------------------- ---------------------------------------------------
--------------------------- ------------------------- ---------------------------------------------------
--------------------------- ------------------------- ---------------------------------------------------
On behalf of LLC "EDN Sovintel":
--------------------------- ------------------------
Xxxxxxxxx Xxxxxxxxxx Xxxxx Xxxxxxxxxxxx
General Director Chief Accountant
[Seal]
EXHIBIT J
LLC "EDN SOVINTEL"
AS SURETY
and
ZAO CITIBANK
AS LENDER
--------------------------------------------------------------------------------
SURETYSHIP AGREEMENT
--------------------------------------------------------------------------------
SURETYSHIP AGREEMENT
THIS SURETYSHIP AGREEMENT is entered into in Moscow on [ ], 2002 between
(1) LLC "EDN SOVINTEL", a limited liability company
established under the laws of the Russian Federation, located at 00, Xxxxxxxx
Xxxxxx Xxxxxx, Xxxxxx, 000000, Xxxxxx (hereinafter the "SURETY"); and
(2) ZAO CITIBANK, a bank established under the laws of the
Russian Federation, located at 8-10, Gasheka ul., 125047 Moscow, Russian
Federation, (hereinafter the "LENDER").
The Surety and the Lender are hereinafter individually
referred to as a "Party" and, collectively, as the "Parties".
RECITALS
(A) Pursuant to the Credit Agreement, dated as of September
[__], 2002 (hereinafter the "CREDIT AGREEMENT"), between ZAO Citibank, as
Lender, and ROL Holdings Limited, as borrower (hereinafter the "BORROWER"), the
Lender has agreed to extend a credit facility to the Borrower in an aggregate
principal amount of up to USD 30,000,000 (Thirty Million US Dollars) (the
"Loan") on the terms and subject to the conditions stipulated therein.
(B) Pursuant to the terms of the Credit Agreement, it is a
condition precedent to the initial disbursement under the Loan that the Lender
and the Surety shall have entered into this Suretyship Agreement to secure
payment by the Borrower of its obligations under the Credit Agreement.
NOW, THEREFORE, the Surety and the Lender hereby agree as
follows:
1. DEFINITIONS
1.1 Capitalized terms used herein but not otherwise defined
herein shall have the same meanings ascribed to such terms in the Credit
Agreement.
2. SURETY
2.1 The Surety shall be liable to the Lender for the full and
timely payment by the Borrower of such of its obligations under the Credit
Agreement as are described in Section 3 hereof, and the costs and expenses
reasonably incurred by the Lender in respect of the enforcement of this
Suretyship Agreement and the Credit Agreement (collectively hereinafter the
"SECURED OBLIGATIONS").
3. OBLIGATIONS OF THE BORROWER
3.1 This Suretyship Agreement shall secure the payment of the
following obligations of the Borrower to the Lender under the Credit Agreement,
when and if such obligations become due and payable, whether currently existing
or hereafter incurred by the Borrower:
------------- -------------
Lender Surety
(a) to repay the Loan made available by the Lender in the
amount of up to Thirty Million US Dollars;
(b) to pay interest on the Loan at the rate of three -
month LIBOR plus 4.35% annually, as well as default
interest at the rate of three - month LIBOR plus
7.35% annually;
(c) to pay to the Lender a commission for opening and
maintaining a loan account in the amount of USD
300,000, as provided in Section 2.01(a) of the Credit
Agreement;
(d) to pay to the Lender the commitment commission as
specified in Section 2.01(b) of the Credit Agreement
and any other amounts due in respect of indemnities,
taxes or other costs as provided in Section 11.01 of
the Credit Agreement; and
(e) to perform the other obligations specified in the
Credit Agreement.
3.2 In accordance with the Credit Agreement, the obligations
of the Borrower shall be performed as follows:
(a) payment of the principal amount of the Loan under the
Credit Agreement in US Dollars in four equal
instalments on the 6th of December 2003, 6th of March
2004; 6th of June 2004; and 6th of September 2004;
(b) quarterly payment of interest in US Dollars at the
rate of three-month LIBOR plus 4.35% per annum and
default interest in US Dollars at the rate of
three-month LIBOR plus 7.35% per annum;
(c) payment of the arrangement fee due to the Lender in
accordance with the following schedule:
- USD 30,000 to be paid not later than on the 22nd of
March, 2002;
- USD 150,000 to be paid within five days of the
Effective Date (as defined in the Credit Agreement);
- USD 120,000 to be paid on the Initial Borrowing
Date (as defined in the Credit Agreement), provided
that such amount shall not be due to the Lender if
the Initial Borrowing Date does not occur;
(d) payment to the Lender of the amounts specified in
Section 3.1(d) above; and
(e) the other Secured Obligations specified in the Credit
Agreement shall be performed by the Borrower at the
request of the Lender in accordance with the
conditions of the Credit Agreement.
------------- -------------
Lender -2- Surety
4. EFFECTIVENESS OF THE SURETY
4.1 The obligations of the Surety undertaken pursuant to this
Suretyship Agreement shall become effective on the Initial Borrowing Date and
shall remain in full force and effect until all Secured Obligations have been
paid in full or are released by the Lender, or are otherwise terminated for any
reason whatsoever.
4.2 Payment by the Surety of any of the Secured Obligations
shall not cause the termination of the obligations of the Surety in respect to
the remaining outstanding Secured Obligations.
5. PAYMENTS
5.1 In the event that the Lender declares an Event of Default
under Section 9.01 or Section 9.05 of the Credit Agreement and serves a notice
thereof (the "Default Notice") upon the Borrower as provided for in Article 9 of
the Credit Agreement, then the Lender shall be entitled to serve a notice upon
the Surety (the "PAYMENT REQUEST") requesting the payment by the Surety of such
amount as has become due and payable under the Credit Agreement (the "CLAIMED
AMOUNT"). The Lender shall deliver to the Surety a copy of the Default Notice
together with the Payment Request.
5.2 The Surety shall pay as a joint debtor the Claimed Amount
as specified in the Payment Request provided that the Claimed Amount shall be
automatically decreased by (a) any amounts paid by the Borrower or any Guarantor
to the Lender in respect of the Secured Obligations after the Lender shall have
served the Payment Request upon the Surety; (b) any amount or value received by
the Lender as a result of enforcement of its rights against any collateral
pledged or otherwise granted in favor of the Lender in connection with the
Credit Agreement; and (c) any amounts the Lender shall have otherwise received
or obtained (including, without limitation, through offset of the amounts due
and payable by the Borrower under the Credit Agreement against the Borrower or
any Guarantor) before the payment by the Surety of the Claimed Amount (or any
portion thereof).
5.3 The Surety shall have no right to assert any defenses or
any counterclaims against the Lender (other than a defense of payment and
performance), which may be asserted against the Lender by the Borrower in
respect of claims relating to principal, interest, fees and commissions due to
the Lender under the Credit Agreement.
6. REPRESENTATIONS, WARRANTIES AND COVENANTS
6.1 The Surety hereby warrants that:
(a) taking into account the information set out in
Schedule 6.01 of the Credit Agreement, it is a limited
liability company, duly established under the laws of the
Russian Federation;
(b) it has the power and authority to execute this
Suretyship Agreement and to exercise its rights and perform
its obligations hereunder and has taken all necessary internal
actions to authorize the execution and delivery of this
Suretyship Agreement, and this Suretyship
------------- -------------
Lender -3- Surety
Agreement constitutes the legal, valid and binding obligation
of the Surety enforceable in accordance with its terms, except
as may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the
creditors rights generally or by general principles of equity
(regardless of whether enforcement sough in equity or at law);
(c) it has obtained all permits, consents, waivers,
authorizations, licences and approvals required (i) for the
Surety to lawfully execute this Suretyship Agreement and
exercise its rights and perform its obligations hereunder; and
(ii) to secure the legality, validity, binding effect and
enforceability of its obligations hereunder;
(d) the Surety is not involved in any court
proceedings and, to the best of its knowledge, there are no
such court or administrative proceedings pending or
threatened. In addition, the Surety has not breached or
defaulted on any of its obligations pursuant to any agreement
to which it is party to an extent or in a manner which could
negatively affect the Surety's ability to perform its
obligations pursuant to this Suretyship Agreement;
(e) all information that has been provided by the
Surety to the Lender in connection herewith is true, complete
and accurate in all material respects, and the Surety knows of
no facts or circumstances concerning which the Lender has not
been made aware which could have a negative effect on the
decision of the Lender to extend the Loan to the Borrower on
the basis of the Credit Agreement and this Suretyship
Agreement;
(f) the Surety has not adopted any internal decisions
or taken any other actions, nor to the knowledge of the Surety
have any court proceedings been initiated for the purpose of
declaring the Surety insolvent or the liquidation of the
Borrower; or
(g) the execution of this Suretyship Agreement by the
Surety, and the performance of its obligations hereunder, do
not violate any of the constitutive documents of the Surety.
6.2 The Surety covenants that throughout the term of this
Agreement it shall ensure that no less than 60% of the cash funds received by
the Surety from its ordinary business operations shall be routed through its
accounts with the Lender. The Lender agrees that the foregoing obligation of the
Surety shall terminate immediately upon satisfaction of the Secured Obligations
of the Borrower in accordance with the terms of the Credit Agreement.
7. NOTICES
7.1 Any notice, inquiry, claim, assertion, certificate or
other communication (hereinafter "COMMUNICATIONS") to be sent or drafted under
this Suretyship Agreement shall be made in writing and delivered by courier to
the following addresses:
------------- -------------
Lender -4- Surety
Surety: LLC "EDN Sovintel",
25, Xxxxxxxx Xxxxxx Xxx., 000000,
Xxxxxx, Xxxxxx
Attention: General Director.
Account Numbers: - Current USD account # 40702840400700601005
with ZAO Citibank, Moscow;
- Current XXX xxxxxxx # 00000000000000000000
xxxx XXX Xxxxxxxx, Xxxxxx.
Tax Identification Number: 7717036194
Lender: ZAO Citibank
xx. Xxxxxxx 0-00, 000000 Xxxxxx, Xxxxxx
Attention: Relationship Manager of Golden Telecom Group
Each of the Parties shall have the right to change its address or fax number at
any time or from time to time after having given the other Party written notice
thereof. Any notice of a change of address or fax number given by other Party
pursuant to this Section 7.1 shall become effective five (5) Business Days after
the receipt thereof by the other Party.
7.2 All Communications sent or made in accordance herewith
shall be in the Russian and English languages.
8. GOVERNING LAW AND JURISDICTION
8.1 This Agreement shall be governed by, and construed in
accordance with, the laws of the Russian Federation.
8.2 The Surety and the Lender hereby agree that any legal
action or proceeding with respect to (a) the interpretation or application of
any term or provision of this Suretyship Agreement and (b) the preservation
and/or enforcement of any rights of the Lender pursuant hereto shall be brought
in the Arbitrazh Court of the City of Moscow, without prejudice to the right of
the Lender to initiate proceedings against the Surety in any other court of
competent jurisdiction.
9. MISCELLANEOUS
9.1 The Surety hereby acknowledges that it has received the
Credit Agreement and is familiar with its terms.
9.2 The Surety shall, from time to time, compensate the
Lender, upon the written request of the Lender, for all reasonable costs and
expenses (including reasonable attorneys' fees) incurred by the Lender in
connection with the preservation and/or enforcement of any rights of the Lender
pursuant to this Suretyship Agreement.
9.3 No failure to exercise, nor any delay in exercising, on
the part of the Lender, any right, power or privilege hereunder shall operate as
a waiver thereof. No single or partial exercise of any right, power or privilege
hereunder shall preclude any other or further exercise thereof or the exercise
of any right, power or privilege. A waiver by the Lender of any right or remedy
hereunder on any one occasion shall not be construed as a bar to any right or
remedy which the Lender would otherwise have on
------------- -------------
Lender -5- Surety
any future occasion. The rights and remedies herein provided are cumulative, may
be exercised singly or concurrently and are not exclusive of any rights or
remedies provided by law.
9.4 If at any time any provision of this Suretyship Agreement
or a part thereof is or becomes illegal, invalid or unenforceable in any
jurisdiction, such occurrence shall not affect the legality, validity or
enforceability of the remaining provisions hereof or the legality, validity or
enforceability of such provision in any other jurisdiction.
9.5 This Suretyship Agreement shall be binding on, and inure
to the benefit of, each of the Parties and their respective successors or
permitted assignees.
9.6 Neither Party shall have the right to assign or transfer
any of its rights, benefits or obligations hereunder without the written consent
of the other Party, provided that, the Lender shall be entitled to assign its
rights hereunder in connection with an assignment of its rights under, and in
accordance with, the Credit Agreement.
9.7 This Agreement shall be executed in the English and
Russian languages in two counterparts in each language, each of which shall be
deemed an original but all of which shall together constitute one and the same
instrument. In the event of conflicts or discrepancies between the Russian and
the English versions, the English version shall prevail.
FOR AND ON BEHALF OF LLC "EDN SOVINTEL"
Signature: _______________________
Full Name: Xxxxxxxxx Vinogardov
Position: General Director
Signature: _______________________
Full Name: Xxxxx Xxxxxxxxxxxx
Position: Chief Accountant
[seal]
FOR AND ON BEHALF OF ZAO CITIBANK
Signature: _______________________
Full Name:
Position: Vice President
Signature: _______________________
Full Name: Xxxxxx Xxxxxx
Position: Chief Accountant
[seal]
------------- -------------
Lender -6- Surety
[Draft: (Moscow) July 11, 2002]
EXHIBIT K
FORM OF SOLVENCY CERTIFICATE
SOLVENCY CERTIFICATE
[Initial Borrowing Date]
ZAO CITIBANK
as Lender to the
Credit Agreement referred to below
Xxxxxxx Xxxxxx 0-00
Xxxxxx 000000
Russian Federation
Attention:
Ladies and Gentlemen:
I, the undersigned, the [Chief Financial Officer/Chief
Accountant] __________________ of [ ], a company organized and existing under
the laws of [ ] (the "CREDIT PARTY"), in that capacity only and not in my
individual capacity (and without personal liability), DO HEREBY CERTIFY as of
the date hereof, and based upon facts and circumstances as they exist as of the
date hereof (and disclaiming any responsibility for changes in such fact and
circumstances after the date hereof), that:
1. This Certificate is furnished to the Lenders pursuant to
Section 4.15 of the Credit Agreement, dated as of ________ __, 2002, between ROL
Holdings Limited (the "BORROWER") and ZAO Citibank (the "LENDER"), (such Credit
Agreement, as in effect on the date of this Certificate, being herein called the
"CREDIT AGREEMENT"). Unless otherwise defined herein, capitalized terms used in
this Certificate shall have the meanings set forth in the Credit Agreement.
2. For purposes of this Certificate, the terms below shall
have the following definitions:
(a) "Fair Value"
The amount at which the assets, in their entirety, of
the Credit Party and its Subsidiaries taken as a
whole and the Credit Party on a stand-alone basis, as
the case may be, would change hands between a willing
buyer and a willing seller, within a commercially
reasonable period of time, each having reasonable
knowledge of the relevant facts, with neither being
under any compulsion to act.
(b) "Present Fair Salable Value"
The amount that could be obtained by an independent
willing seller from an independent willing buyer if
the assets of the Credit Party and its Subsidiaries
taken as a whole and the Credit Party on a
stand-alone basis, as the case may be, are sold with
reasonable promptness in an arm's-length transaction
under present conditions for the sale of comparable
business enterprises insofar as such conditions can
be reasonably evaluated.
(c) "New Financing"
The Indebtedness incurred or to be incurred by the
Borrower under the Credit Documents (assuming the
full utilization by the Borrower of the Commitment
under the Credit Agreement) and all other financings
contemplated by the Documents, in each case after
giving effect to the Transaction and the incurrence
of all financings in connection therewith.
(d) "Stated Liabilities"
The recorded liabilities (including contingent
liabilities that would be recorded in accordance with
GAAP) of the Credit Party and its Subsidiaries taken
as a whole and the Credit Party on a stand-alone
basis, as the case may be, as of the date hereof
after giving effect to the consummation of the
Transaction, determined in accordance with GAAP
consistently applied, together with the amount of all
New Financing.
(e) "Identified Contingent Liabilities"
The maximum estimated amount of liabilities
reasonably likely to result from pending litigation,
asserted claims and assessments, guaranties,
uninsured risks and other contingent liabilities of
each of the Credit Party and its Subsidiaries taken
as a whole and the Credit Party on a stand-alone
basis, as the case may be, after giving effect to the
Transaction (including all fees and expenses related
thereto but exclusive of such contingent liabilities
to the extent reflected in Stated Liabilities), as
identified and explained in terms of their nature and
estimated magnitude by responsible officers of the
Credit Party or that have been identified as such by
an officer of the Credit Party.
(f) "Will be able to pay its Stated Liabilities,
including Identified Contingent Liabilities, as they
mature"
For the period from the date hereof through the
stated maturity of all New Financing, the Credit
Party and its Subsidiaries taken as a whole and the
Credit Party on a stand-alone basis, as the case may
be, will have sufficient assets and cash flow to pay
their respective Stated Liabilities and Identified
Contingent Liabilities as those liabilities mature or
otherwise become payable.
-2-
(g) "Does not have Unreasonably Small Capital"
For the period from the date hereof through the
stated maturity of all New Financing, the Credit
Party and its Subsidiaries taken as a whole and the
Credit Party on a stand-alone basis, as the case may
be, after consummation of the Transaction and all
Indebtedness (including the Loans) being incurred or
assumed and Liens created by the Borrower and its
Subsidiaries in connection therewith, is a going
concern and has sufficient capital to ensure that it
will continue to be a going concern for such period
and to remain a going concern.
3. For purposes of this Certificate, I, or an officer or
officers of the Credit Party or the Borrower, as the case may be, under my
direction and supervision, have performed the following procedures as of and for
the periods set forth below.
(a) I have reviewed the financial statements (including
the Pro Forma Financials) referred to in Section
4.13(b) of the Credit Agreement.
(b) I have made inquiries of certain officials of the
Credit Party and its Subsidiaries who have
responsibility for financial and accounting matters
regarding (i) the existence and amount of Identified
Contingent Liabilities associated with the business
of the Credit Party and its Subsidiaries and (ii)
whether the Pro Forma Financials are in conformity
with GAAP consistently applied.
(c) I have knowledge of and have reviewed to my
satisfaction the Credit Documents and the other
Documents and the respective Schedules, Annexes and
Exhibits thereto.
(d) With respect to Identified Contingent Liabilities, I:
1. inquired of certain officials of the Credit
Party and its Subsidiaries who have
responsibility for legal, financial and
accounting matters as to the existence and
estimated liability with respect to all
contingent liabilities associated with the
business of the Credit Party and its
Subsidiaries;
2. confirmed with officers of the Credit Party
and its Subsidiaries that, to the best of
such officers' knowledge, (i) all
appropriate items were included in Stated
Liabilities or Identified Contingent
Liabilities and that (ii) the amounts
relating thereto were the maximum estimated
amount of liabilities reasonably likely to
result therefrom as of the date hereof; and
3. hereby certify that, to the best of my
knowledge, all material Identified
Contingent Liabilities that may arise from
any pending litigation, asserted claims and
assessments, guarantees, uninsured risks and
other Identified Contingent Liabilities of
the Credit Party and its Subsidiaries
(exclusive of such Identified Contingent
Liabilities to the extent reflected in
Stated Liabilities) (after giving effect to
the consummation the
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Transaction and the incurrence of all
financings in connection therewith) have
been considered in making the certification
set forth in paragraph 4 below, and with
respect to each such Identified Contingent
Liability, the estimable maximum amount of
liability with respect thereto was used in
making such certification.
(e) I have examined the Projections which have been
delivered to the Lender and considered the effect
thereon of any changes since the date of the
preparation thereof on the results projected therein.
After such review, I hereby certify that as of the
date hereof in my opinion the Projections are
reasonable and the Projections support the
conclusions contained in paragraph 4 below. It is
understood that the Projections include assumptions
as to future events that are not to be viewed as
facts and there can be no assurance that such
assumptions, statements, estimates and Projections
will be realized and that actual results may differ
from the projected results and such differences may
be material and adverse.
(f) I have made inquiries of certain officers of the
Credit Party and its Subsidiaries who have
responsibility for financial reporting and accounting
matters regarding whether they were aware of any
events or conditions that, as of the date hereof,
would cause the Credit Party and its Subsidiaries
taken as a whole and the Credit Party on a
stand-alone basis, as the case may be, after giving
effect to the consummation of the Transaction and the
related financing transactions (including the
incurrence of the New Financing), to (i) have assets
with a Fair Value or Present Fair Salable Value that
are less than the sum of Stated Liabilities and
Identified Contingent Liabilities; (ii) have
Unreasonably Small Capital; or (iii) not be able to
pay their respective Stated Liabilities and
Identified Contingent Liabilities as they mature or
otherwise become payable.
4. Based on and subject to the foregoing, I hereby certify on
behalf of the Credit Party that, after giving effect to the consummation of the
Transaction and the related financing transactions (including the incurrence of
the New Financing), it is my opinion that (i) the Fair Value and Present Fair
Salable Value of the assets of each of the Credit Party and its Subsidiaries
taken as a whole and the Credit Party on a stand-alone basis, as the case may
be, exceed its respective Stated Liabilities and Identified Contingent
Liabilities; (ii) each of the Credit Party and its Subsidiaries taken as a whole
and the Credit Party on a stand-alone basis, as the case may be, does not have
Unreasonably Small Capital; and (iii) each of the Credit Party and its
Subsidiaries taken as a whole and the Credit Party on a stand-alone basis, as
the case may be, will be able to pay their respective Stated Liabilities and
Identified Contingent Liabilities as they mature or otherwise become payable.
* * *
-4-
IN WITNESS WHEREOF, the undersigned has set his hand this __
day of ___________, 2002.
[CREDIT PARTY]
By:
---------------------------------
Name:
Title:
-5-
EXHIBIT L
FORM OF COMPLIANCE CERTIFICATE
COMPLIANCE CERTIFICATE
[Date]
ZAO CITIBANK
as Lender to the
Credit Agreement referred to below
Xxxxxxx Xxxxxx 0-00
Xxxxxx 000000
Russian Federation
Attention:
Ladies and Gentlemen:
This Compliance Certificate is delivered to you pursuant to
Section 7.01(e) of the Credit Agreement, dated as of September [___], 2002 (as
amended, supplemented or modified from time to time, the "CREDIT AGREEMENT"),
among ROL Holdings Limited (the "BORROWER") and ZAO Citibank. Terms defined in
the Credit Agreement and not otherwise defined herein are used herein as therein
defined.
1. I am the duly elected, qualified and acting Chief Financial
Officer of Golden Telecom, Inc., a company organized and existing under the laws
of Delaware (the "PARENT").
2. I have reviewed and am familiar with the contents of this
Compliance Certificate. I am providing this Compliance Certificate solely in my
capacity as an officer of the Parent. The matters set forth herein are true in
all material respects to the best of my knowledge after due inquiry.
3. I have reviewed the terms of the Credit Agreement and the
other Credit Documents and have made or caused to be made under my supervision a
review in reasonable detail of the transactions and condition of the Parent and
its Subsidiaries during the accounting period covered by the financial
statements attached hereto as ANNEX 1 (the "FINANCIAL STATEMENTS"). Such review
did not disclose the existence during or at the end of the accounting period
covered by the Financial Statements, and I have no knowledge of the existence,
as of the date of this Compliance Certificate, of any condition or event which
constitutes a Default or an Event of Default [, except as set forth below].
4. Attached hereto as ANNEX 2 are the computations showing (in
reasonable detail) compliance with the covenants specified therein.
5. Attached hereto as ANNEX 3 is the information required by
Section 7.01(e) of the Credit Agreement as of the date of this Compliance
Certificate.
IN WITNESS WHEREOF, I have executed this Compliance
Certificate as of the date first listed above.
GOLDEN TELECOM, INC.
By ___________________________
Name:
Title:
ANNEX 1
[Financial Statements to be enclosed]
ANNEX 2
The information described herein is as of _________, ____(1)
(the "Computation Date") and, except as otherwise indicated below, pertains to
the period from January __, 200_ to the Computation Date, (the "Relevant
Period").
Period or Date of
Determination Amount
------------- ------
I. Negative and Financial Covenants
A. Asset Sales, etc. (Section 8.02)
Section 8.02(iv) Aggregate Amount of Property or Assets sold during $________
Relevant Period
B. Indebtedness (Section 8.03)
Section 8.03(ii) Amount Outstanding on Computation Date $________
C. Investments etc. (Section 8.04)
(i) Section 8.04(iii) Amount Outstanding on Computation Date $________
(ii) Section 8.04(v) Amount Outstanding on Computation Date $________
D. Capital Expenditures (Section 8.06)
(i) Section 8.06 Amount made during the Relevant Period(2) $________
E. Consolidated Debt Service Ratio
(Section 8.07)
Ratio
____:1.00
F. Gearing Ratio (Section 8.08)
Ratio ____:2.00
----------------
(1) Insert the last day of the respective fiscal month, quarter or year
covered by the financial statements which are required to be
accompanied by this officers certificate.
(2) The Relevant Period for the fiscal year ending closest to December 31,
2002 shall begin on the Initial Borrowing Date.
ANNEX 3
1. It is hereby certified that no changes are required to be made to
Exhibit 3 of the Buyer Receivables Agreement or the Sovintel Receivables
Agreement and the Annexes of the Interest Pledge Agreements, in each case so as
to make the information set forth therein accurate and complete as of date of
this Certificate [, except as specially set forth below:]
