FIFTH SUPPLEMENTAL INDENTURE
Exhibit 2(b)8
FIFTH SUPPLEMENTAL INDENTURE (this “Fifth Supplemental Indenture”), dated as of /February 2/, 2009, among MAGYAR TELECOM B.V., a private company with limited liability incorporated under the laws of The Netherlands (“Matel” or the “Issuer”), INVITEL INTERNATIONAL HUNGARY KFT (“Invitel International Hungary”), or the “New Subsidiary Guarantor”, and together with the Existing Subsidiary Guarantors (defined below), the “Subsidiary Guarantors”) and BNY Corporate Trustee Services Limited (the “Trustee”).
W I T N E S S E T H
WHEREAS, HTCC Holdco II B.V. (“Holdco II”), PanTel Távközlési Kft. (“PanTel”), PanTel Technocom Kft. (renamed Invitel Technocom Kft. effective January 1, 2008, “Invitel Technocom”) and Hungarotel Távközlési ZRt. (“Hungarotel”), the Trustee, The Bank of New York Mellon (previously The Bank of New York) as registrar, transfer agent and principal paying agent (the “Registrar, Transfer Agent and Principal Paying Agent”) and The Bank of New York (Luxembourg) S.A. as Luxembourg paying agent and transfer agent (the “Luxembourg Paying Agent”) have executed and delivered an indenture (the “Original Indenture”), dated as of April 27, 2007, providing for the issuance of an initial aggregate principal amount of €200,000,000 Floating Rate Senior Notes due 2013 (the “Notes”) and Matel, Holdco II, PanTel, Invitel Technocom, Hungarotel, the Trustee, the Registrar, Transfer Agent and Principal Paying Agent and the Luxembourg Paying Agent have executed and delivered a supplemental indenture (the “First Supplemental Indenture”), dated as of April 27, 2007, pursuant to which Matel acceded to the Original Indenture and assumed all of the obligations of Holdco II under the Original Indenture and the Notes, and Holdco II was released from its obligations under the Original Indenture and the Notes, and pursuant to which Invitel Távközlési Szolgáltató ZRt. (“Invitel”, renamed Invitel Távközlési ZRt. effective January 1, 2008), V-holding Tanácsadó ZRt. (“V-holding”), and Euroweb Internet Szolgáltató ZRt. (“Euroweb Hungary”, together with Invitel, V-holding, Euroweb Hungary, PanTel, Invitel Technocom and Hungarotel, the “Original Subsidiary Guarantors”) acceded to the Original Indenture as Subsidiary Guarantors;
WHEREAS, Matel, the Original Subsidiary Guarantors, the Trustee, the Registrar, Transfer Agent and Principal Paying Agent and the Luxembourg Paying Agent have executed and delivered a second supplemental indenture (the “Second Supplemental Indenture”), dated as of July 26, 2007, pursuant to which S.C. Euroweb Romania S.A. (“Euroweb Romania”) was added as a Subsidiary Guarantor under the Indenture;
WHEREAS, Matel, Invitel Telecom Kft. (“Invitel Telecom”), Invitel International AG (formerly Memorex Telex Communications AG) (“Invitel AG”) and the Trustee have executed and delivered a third supplemental indenture (the “Third Supplemental Indenture”), dated as of March 5, 2008, pursuant to which Invitel Telecom and Invitel AG were added as Subsidiary Guarantors under the Indenture;
WHEREAS, Matel, MTCTR Memorex Telekomunikasyon Sanayi ve Ticaret Limited Sirketi (“Memorex Turkey”) and the Trustee have executed and delivered a fourth supplemental indenture (the “Fourth Supplemental Indenture”, together with the Original Indenture, as amended by the First Supplemental Indenture, the Second Supplemental Indenture and the Third Supplemental Indenture, being hereinafter referred to as the “Indenture”), dated as of March 14, 2008, pursuant to which Memorex Turkey was added as a Subsidiary Guarantor under the Indenture;
WHEREAS, effective January 1, 2008, V-holding, Euroweb Hungary, PanTel and Hungarotel were merged into Invitel in compliance with Section 5.01 of the Indenture, and thereafter and upon execution of the Third Supplemental Indenture and the Fourth Supplemental Indenture the Subsidiary Guarantors were comprised of Invitel, Invitel Technocom, Euroweb Romania, Invitel Telecom, Invitel AG and Memorex Turkey (the “Existing Subsidiary Guarantors”);
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WHEREAS, pursuant to Section 9.01 of the Indenture, the Issuer, the Trustee and the Existing Subsidiary Guarantors may, and are authorized to, amend or supplement the Indenture (without the consent of any Holder of the Notes) to add Invitel International Hungary as a Subsidiary Guarantor under the Indenture;
WHEREAS, pursuant to Section 10.01 of the Indenture, each of the Existing Subsidiary Guarantors is deemed to have agreed to the extension of its respective Obligations (as defined in the Indenture), including those contemplated by this Fifth Supplemental Indenture, without notice or further assent from such Subsidiary Guarantor; and each of the Issuer and the New Subsidiary Guarantor, has duly authorized the execution and delivery of this Fifth Supplemental Indenture and has done all things necessary to make this Fifth Supplemental Indenture a valid agreement in accordance with its terms;
WHEREAS, the Issuer has requested that the Trustee execute and deliver this Fifth Supplemental Indenture and the Issuer has delivered or caused to delivered, to the Trustee an Officer’s Certificate and Opinion of Counsel in connection herewith; and
NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Issuer, the New Subsidiary Guarantor and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
1. Capitalized Terms. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.
2. Representations. Each of the Issuer and the New Subsidiary Guarantor represents and warrants as follows:
| (a) | it is a legal entity duly incorporated and validly existing under the laws of the jurisdiction of its organization; |
| (b) | it has all requisite organizational power and authority to enter into and perform its obligations under this Fifth Supplemental Indenture; |
| (c) | this Fifth Supplemental Indenture has been duly authorized, executed and delivered by it and it is a legally valid and binding obligation, enforceable against it in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium, or similar laws or equitable principles relating to or limiting creditors’ rights generally; |
| (d) | the Indenture constitutes its legal and binding obligation, enforceable against it in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium, or similar laws or equitable principles relating to or limiting creditors’ rights generally; and |
| (e) | immediately after giving effect to this Fifth Supplemental Indenture, no Event of Default (or event or circumstances which, with the giving of notice or the passage of time or both, would constitute an Event of Default) shall have occurred and be continuing. |
3. Agreement to be Bound. As of the date hereof, the New Subsidiary Guarantor, by its execution of this Fifth Supplemental Indenture, hereby becomes a party to the
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Indenture as a Subsidiary Guarantor and as such will have all of the rights and be subject to all the obligations and agreements of a Subsidiary Guarantor under the Indenture. The New Subsidiary Guarantor agrees to be bound by the terms and provisions of the Indenture applicable to a Subsidiary Guarantor, included but not limited to Article 10 thereof, and to perform all of the obligations and agreements of a Subsidiary Guarantor under the Indenture, as if a party to the Indenture on the date of its execution.
4. Guarantee. Pursuant to Section 10.09 of the Indenture, the New Subsidiary Guarantor hereby provides a Guarantee of the Notes, and becomes a “Subsidiary Guarantor” for purposes of the Notes and the Indenture, immediately upon the execution and delivery of this Fifth Supplemental Indenture.
5. Limitation and Effectiveness of Guarantee. Pursuant to Section 10.04 of the Indenture, the Guarantee of the New Subsidiary Guarantor is limited to an amount not to exceed the maximum amount that can be guaranteed by the New Subsidiary Guarantor without rendering such Guarantee voidable or unenforceable under applicable law relating to fraudulent conveyance or fraudulent transfer or similar laws affecting the rights of creditors generally.
6. Agreement to Subordinate. Pursuant to Section 14.01 of the Indenture, the New Subsidiary Guarantor agrees, and each Holder of Notes by accepting a Note agrees, that all payments pursuant to the Guarantee made by or on behalf of the New Subsidiary Guarantor are subordinated to the extent and in the manner provided in Article Fourteen of the Indenture to all existing and future obligations of the New Subsidiary Guarantor under all Senior Debt of the New Subsidiary Guarantor and that such subordination is for the benefit of and enforceable by the holders of Senior Debt of the New Subsidiary Guarantor. The Guarantee of the New Subsidiary Guarantor shall in all respects rank senior in right of payment to any future Subordinated Debt of the New Subsidiary Guarantor.
7. Agreement to Waive. The New Subsidiary Guarantor agrees to waive, and that it will not in any manner whatsoever claim or take the benefit or advantage of, any rights of reimbursement, indemnity or subrogation or any other rights against the Issuer or any other Restricted Subsidiary as a result of any payment by the New Subsidiary Guarantor under its Guarantee.
8. Release of Guarantee. Each Guarantee of the Notes created by this Fifth Supplemental Indenture will be automatically and unconditionally released and discharged upon the release by the holders of the Issuer’s or Invitel’s Debt described in paragraph (a) of Section 4.13 of the Indenture of their guarantee by the New Subsidiary Guarantor (including any deemed release upon payment in full of all obligations under such Debt other than as a result of payment under such guarantee) at a time when (i) no other Debt of the Issuer has been guaranteed by the New Subsidiary Guarantor, or (ii) the holders of all such other Debt that is guaranteed by the New Subsidiary Guarantor also release their guarantee by such New Subsidiary Guarantor (including any deemed release upon payment in full of all obligations under such Debt other than as a result of payment under such Guarantee).
9. Governing Law. THIS FIFTH SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF NEW YORK. The Issuer and the New Subsidiary Guarantor agree to be bound by Section 13.09 of the Indenture with regard to any suit, action or proceeding against the Issuer or the New Subsidiary Guarantor brought by any Holder or the Trustee arising out of or based upon this Fifth Supplemental Indenture.
10. Notices. All notices and other communications to Invitel International Hungary shall be given as provided in the Indenture to Invitel International Hungary at its address set forth below.
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11. Multiple Originals. The parties may sign any number of copies of this Fifth Supplemental Indenture. Each signed copy shall be an original but all such counterparts shall together constitute but one and the same Fifth Supplemental Indenture.
12. Headings. The Section headings herein have been inserted for convenience of reference only and shall not affect the construction hereof.
13. The Trustee. The Trustee makes no representation as to the validity or sufficiency of this Fifth Supplemental Indenture and shall not be responsible in any manner whatsoever for or in respect of the recitals contained herein, all of which recitals are made solely by the Issuer and the New Subsidiary Guarantor. The Issuer (failing which the New Subsidiary Guarantor) agrees to indemnify the Trustee to the same extent as provided under the Indenture against any and all loss, liability or expense (including attorneys’ fees and expenses) incurred by it without willful misconduct, gross negligence or bad faith on its part arising out of or in connection with the execution of this Fifth Supplemental Indenture.
14. Ratification of Indenture; Supplemental Indentures Part of Indenture. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Fifth Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby (the Indenture, as amended and supplemented by this Fifth Supplemental Indenture, the “Supplemental Indenture”). Any and all references, whether within the Indenture or in any notice, certificate or other instrument or document, shall be deemed to include a reference to this Fifth Supplemental Indenture (whether or not made), unless the context shall otherwise require.
15. Successors. All covenants and agreements in this Fifth Supplemental Indenture by the parties hereto shall bind their successors.
16. Benefits of Fifth Supplemental Indenture. Nothing in this Fifth Supplemental Indenture, the Indenture or the Notes, express or implied, shall give rise to any Person, other than the parties hereto and thereto and their successors hereunder and thereunder, and the Holders, any benefit of any legal or equitable right, remedy or claim under the Indenture, this Fifth Supplemental Indenture or the Notes.
17. Entire Agreement. This Fifth Supplemental Indenture constitutes the entire agreement of the parties hereto with respect to the amendments to the Indenture set forth herein. All other provisions of the Indenture which are not amended are expressly affirmed.
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IN WITNESS WHEREOF, the parties hereto have caused this Fifth Supplemental Indenture to be duly executed and attested, all as of the date first above written.
| MAGYAR TELECOM B.V. |
| By: / Xxxxxx -Xxx xxx Xxxx/ Xxxxx Xxxxx Xxxxxxxx/ Name: Xxxxxx -Xxx xxx Xxxx / Xxxxx Xxxxx Xxxxxxxx Title: Managing Directors/ Tradman Netherlands BV / Tradman Management B.V. |
| INVITEL INTERNATIONAL HUNGARY KFT | ||
| By: | /Szilard Szobol/ | |
| Name: | Szilard Szobol | |
| Title: | Managing Director | |
| By: |
| |
| Name: | ||
| Title: | ||
| Address: | ||
| (c/o Invitel ZRt.) | ||
| 2040 Budaörs, | ||
| Xxxxxx Xxxxxxx u. 8-10. | ||
| Telephone: 00 00 0 000 0000 | ||
| Telefax: 00 36 1 801 1353 | ||
| Attention of: Legal Director | ||
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| BNY CORPORATE TRUSTEE SERVICES LIMITED |
| By: /Xxxx Xxxxxx/ Name: Xxxx Xxxxxx Title: AVP |
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