Exhibit 4
Execution Copy
AGREEMENT FOR THE
PURCHASE AND SALE OF SHARES, UNSECURED NOTES AND WARRANTS
Dated as of September 26, 2003
by and between
POSTABANK ES TAKAREKPENZTAR RT.
and
ASSET HOLDER PCC LIMITED RE: XXXXXXX EMERGING MARKET LIQUID INVESTMENT
PORTFOLIO
Squire, Xxxxxxx & Xxxxxxx L.L.P.
Xxxxxxx 0
000 00 Xxxxxxxxxx
Xxxxxx Xxxxxxxx
TABLE OF CONTENTS
1. Definitions........................................................... 1
2. Purchase and Sale of Shares, Unsecured Notes and Warrants............. 3
(a) Purchase and Sale 3
(b) Purchase Price 3
(c) The Closing 3
(d) Delivery of the Shares, Unsecured Notes and Warrants 3
(e) Delivery of Certificates, etc. at the Closing 3
(f) Delivery of Purchase Price at the Closing 3
(g) Apportionment of Semi-Annual Interest Payment on Unsecured Notes 3
3. Representations and Warranties Concerning the Transaction............. 3
(a) Representations and Warranties of the Seller 3
(b) Representations and Warranties of the Buyer 6
4. Assignment and Assumption of Securities Purchase Agreement............ 7
5. Assignment and Assumption of Unsecured Notes.......................... 7
6. Assignment and Assumption of Warrants................................. 7
7. Pre-Closing Covenants................................................. 7
(a) Cooperation Prior to Closing 7
(b) Seller to Refrain from Taking or to Undertake Certain Actions 7
(c) Closing Arrangements for Shares, Unsecured Notes and Warrants 8
(d) Seller to Use Reasonable Best Efforts on Warrants 8
8. Post-Closing Covenants................................................ 8
(a) General 8
(b) Litigation Support 8
(c) Warrants 8
9. Conditions to Obligation to Close..................................... 8
(a) Conditions to Obligation of the Buyer 8
(b) Conditions to Obligation of the Seller 9
10. Remedies for Breaches of this Agreement............................... 10
(a) Survival of Representations and Warranties 10
(b) Indemnification Provisions for Benefit of the Buyer 10
(c) Indemnification Provisions for Benefit of the Seller 10
(d) Matters Involving Third Parties 10
(e) Indemnification with Respect to M&A Capital Ltd. Dispute 11
(f) Exclusive Remedy 11
11. Termination........................................................... 11
(a) Termination of Agreement 11
(b) Effect of Termination 11
12. Miscellaneous......................................................... 11
(a) Press Releases and Public Announcements 11
(b) No Third-Party Beneficiaries 11
(c) Entire Agreement 11
(d) Succession and Assignment 12
(e) Counterparts 12
(f) Headings 12
(g) Notice 12
(h) Governing Law 12
(i) Dispute Resolution 13
(j) Amendments and Waivers 13
(k) Severability 13
(l) Expenses 13
(m) Construction 13
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(n) Stamp Taxes, etc. 13
(o) Incorporation of Exhibits and Schedules 13
(p) Execution on Behalf of Buyer by Custodian 13
(q) References to Shares, Unsecured Notes and Warrants 13
EXHIBITS
Exhibit A Securities Purchase Agreement
Exhibit B Sample Unsecured Note
Schedule B-1 Descriptive List of Unsecured Notes
Exhibit C Sample Warrant
Schedule C-1 Descriptive List of Warrants
Exhibit D Form of Transfer of Unsecured Note
Exhibit E Form of Transfer of Warrant
Exhibit F Statement that the Buyer is an Accredited Investor
Exhibit G Form of Agreement Amending the Warrants
Exhibit H Form of Assumption Agreement regarding the Warrants
Exhibit I Form of Agreement Amending Securities Purchase Agreement.
Exhibit J Closing Arrangements
Exhibit K Form of Opinion Letter of Seller's US Counsel Addressed to
Buyer and Transfer Agent
Exhibit L Form of Opinion Letter of Seller's Hungarian Counsel Addressed
to Buyer
SCHEDULES
Schedule 3(a)(viii) Litigation
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AGREEMENT FOR THE PURCHASE AND SALE OF SHARES,
UNSECURED NOTES AND WARRANTS
THIS AGREEMENT FOR THE PURCHASE AND SALE OF SHARES, UNSECURED NOTES AND
WARRANTS (this "Agreement") is made as of September 26, 2003 by and among
Postabank es Takarekpenztar Rt., a Hungarian commercial bank ("Seller"), and
Asset Holder PCC Limited re: Xxxxxxx Emerging Market Liquid Investment Portfolio
("Buyer"). The Buyer and the Seller are referred to collectively herein as the
"Parties."
RECITALS
WHEREAS, Seller is the owner of the Shares, Unsecured Notes and
Warrants (each as defined in Section 1);
WHEREAS, Seller wishes to sell and Buyer wishes to buy the Shares,
Unsecured Notes and Warrants on the terms and conditions set forth in this
Agreement;
WHEREAS, Seller wishes to assign to Buyer and Buyer wishes to assume from
Seller all of Seller's rights, duties and obligations under the Securities
Purchase Agreement (as defined in Section 1) on the terms and conditions set
forth in this Agreement;
WHEREAS, Seller wishes to assign to Buyer and Buyer wishes to assume from
Seller all of Seller's rights, duties and obligations under the Unsecured Notes
on the terms and conditions set forth in this Agreement; and
WHEREAS, Seller wishes to assign to Buyer and Buyer wishes to assume from
Seller all of Seller's rights, duties and obligations under the Warrants on the
terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements, provisions and covenants set forth in this Agreement and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties agree as follows:
1. Definitions.
"Accredited Investor" has the meaning set forth in Regulation D
promulgated under the Securities Act.
"Adverse Consequences" means all actions, suits, proceedings, hearings,
investigations, charges, complaints, claims, demands, injunctions, judgments,
orders, decrees, rulings, damages, dues, penalties, fines, costs, reasonable
amounts paid in settlement, liabilities, obligations, taxes, liens, losses,
expenses, and fees, including court costs and reasonable attorneys' fees and
expenses.
"Affiliate" means a person that directly, or indirectly through one or
more intermediaries, controls, or is controlled by, or is under common control
with, the person specified.
"Buyer" has the meaning set forth in the preface above.
"Cash" means cash and cash equivalents (including marketable securities
and short term investments) calculated in accordance with GAAP.
"Closing" has the meaning set forth in Section 2(c) below.
"Closing Date" has the meaning set forth in Section 2(c) below.
"GAAP" means United States generally accepted accounting principles as in
effect from time to time.
"HTCC" means Hungarian Telephone and Cable Corp., a Delaware corporation,
together with all of its Subsidiaries and Affiliates.
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"Income Tax" means any federal, state, local, or foreign income tax,
including any interest, penalty, or addition thereto, whether disputed or not.
"Indemnified Party" has the meaning set forth in Section 10(d) below.
"Indemnifying Party" has the meaning set forth in Section 10(d) below.
"Knowledge" shall mean the actual knowledge, without independent
investigation, of the Board of Directors of Seller and of Xx. Xxxxx Ugroczky,
the officer at the Seller responsible for the Senior Secured Debt Facility.
"Material Adverse Effect" means any event which will or could reasonably
be expected to have, either individually or in the aggregate, a material adverse
effect on the properties, business, operations, earnings, assets, liabilities,
condition (financial or otherwise) or prospects of HTCC and its Subsidiaries
whether or not in the ordinary course of business.
"Party" has the meaning set forth in the preface above.
"Person" means an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, an unincorporated
organization, or a governmental entity (or any department, agency, or political
subdivision thereof).
"Purchase Price" has the meaning set forth in Section 2(b) below.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Purchase Agreement" means that certain agreement by and
between HTCC and the Seller, dated as of May 10, 1999, as amended by Amendment
No. 1 to the Securities Purchase Agreement, dated April 11, 2000, which
agreement is attached hereto as Exhibit A.
"Security Interest" means any charge, claim, community property interest,
condition, equitable interest, lien, pledge, security interest, right of first
refusal, or restriction or encumbrance of any kind, including any restriction on
use, voting, transfer, receipt of income, or exercise of any other attribute,
other than (a) mechanic's, materialmen's and similar liens, (b) liens for taxes
not yet due and payable or for taxes that the taxpayer is contesting in good
faith through appropriate proceedings and (c) purchase money liens and liens
securing rental payments under capital lease arrangements, provided, however,
that restrictions on the transferability of the Warrants as set forth in the
terms of the Warrants shall not be considered a Security Interest.
"Seller" has the meaning set forth in the preface above.
"Senior Secured Debt Facility" means the Senior Secured Debt Facility
Agreement dated April 11, 2000 arranged by Citibank, N.A. and Westdeutsche
Landesbank Girozentrale, pursuant to which the Seller is a senior creditor of
HTCC.
"Shares" means the zero (0) shares of common stock, par value $0.001 per
share, of HTCC owned by the Seller.
"Subsidiary" means any corporation with respect to which a specified
Person (or a Subsidiary thereof) owns a majority of the common stock or has the
power to vote or direct the voting of sufficient securities to elect a majority
of the directors.
"Third Party Claim" has the meaning set forth in Section 10(d) below.
"Unsecured Notes" means twenty one (21) Amended & Restated US $1,000,000
Unsecured Subordinated Notes of Hungarian Telephone and Cable Corp., a sample of
which is attached hereto as Exhibit B and a descriptive list of which is set
forth in Schedule B-1.
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"Warrants" means twenty one (21) Warrants to Purchase Common Stock of
Hungarian Telephone and Cable Corp., a sample of which is attached hereto as
Exhibit C and a descriptive list of which is set forth in Schedule C-1.
2. Purchase and Sale of Shares, Unsecured Notes and Warrants.
(a) Purchase and Sale. On and subject to the terms and conditions of this
Agreement, the Buyer agrees to purchase from the Seller, and the Seller agrees
to sell to the Buyer, the Shares, Unsecured Notes and Warrants for the
consideration specified below in this Section 2.
(b) Purchase Price. The Buyer agrees to pay to the Seller at the
Closing sixteen million eight hundred thousand U.S. dollars ($16,800,000)
(the "Purchase Price") in cash, which Purchase Price is payable by wire
transfer or delivery of other immediately available funds. The Purchase
Price shall be allocated in the following manner: $0 for the Shares,
$16,800,000 for the Unsecured Notes and $0 for the Warrants.
(c) The Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place at the offices of Xxxxx Xxxxxxxxxx
LLP ("Xxxxx") in Budapest, Hungary, commencing at 9:00 a.m. local time on
October 10, 2003 or on such other date and at such other place as the Buyer and
the Seller may mutually determine (the "Closing Date"); provided, however, that
the Closing Date shall be no later than November 28, 2003.
(d) Delivery of the Shares, Unsecured Notes and Warrants. At the Closing,
Xxxxx will release the Shares, Unsecured Notes and Warrants to the Buyer upon
written confirmation by the Parties of the Closing of the transaction, as
required by the terms of the closing arrangements set forth in Exhibit J
attached hereto.
(e) Delivery of Certificates, etc. at the Closing. At or prior to the
Closing, (i) the Seller will deliver to the Buyer the various certificates,
instruments, and documents referred to in Section 9(a) below and (ii) the Buyer
will deliver to the Seller the various certificates, instruments, and documents
referred to in Section 9(b) below.
(f) Delivery of Purchase Price at the Closing. At the Closing, Buyer will
deliver to the Seller the consideration specified in Section 2(b) above.
(g) Apportionment of Semi-Annual Interest Payment on Unsecured Notes.
(i) All interest, and all fees which are expressed to accrue by
reference to time elapsed, are based on contractual rates, as set forth in
the Unsecured Notes. For the avoidance of doubt (A) such interest is
payable by HTCC in respect of each Interest Period on each Interest
Payment Date (each such term as defined in the Unsecured Notes) in US
dollars in advance and (B) the apportionment set forth in (ii) below shall
relate to the Interest Period during which time the Closing shall occur.
(ii) All prepaid interest in respect of the relevant Interest Period
up to but excluding the Closing Date shall be for the account of the
Seller. All prepaid interest in respect of the relevant Interest Period
from and including the Closing Date (the "Buyer's Portion") shall be for
the account of the Buyer. The Seller agrees to pay the Buyer at the
Closing the Buyer's Portion by means of a dollar-for-dollar reduction in
the Purchase Price. The Buyer's Portion shall be determined independently
by the Facility Agent (as defined in the Unsecured Notes) prior to the
Closing.
3. Representations and Warranties Concerning the Transaction.
(a) Representations and Warranties of the Seller. The Seller represents
and warrants to the Buyer that the statements contained in this Section 3(a) are
correct and complete as of the date of this Agreement and will be correct and
complete as of the Closing Date (as though made then).
(i) Organization of Seller. The Seller is a corporation duly
organized, validly existing, and in good standing under the laws of the
jurisdiction of its incorporation.
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(ii) Authorization of Transaction. The Seller has full power and
authority, and all corporate actions necessary on the part of the Seller
have been taken, to execute and deliver this Agreement and to perform its
obligations hereunder. This Agreement constitutes the valid and legally
binding obligation of the Seller, enforceable against it in accordance
with its terms, except (A) to the extent that the enforcement of the
rights and remedies created therein is subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other laws of general
application affecting the enforcement of creditors' rights and general
principles of equity and (B) that the transfer of the Warrants will not be
enforceable unless such Warrants shall be amended as set forth below in
Section 9(a)(vi). The Seller need not give any notice to, make any filing
with, or obtain any authorization, consent, or approval of any third
parties (including HTCC other than with respect to Warrants as provided
above), any government or any governmental agency in order to consummate
the transactions contemplated by this Agreement, or if such notice,
filing, authorization, consent or approval is needed, it has been given or
obtained.
(iii)Noncontravention. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby,
will violate any agreement or any constitution, statute, regulation, rule,
injunction, judgment, order, decree, ruling, charge, or other restriction
of any government, governmental agency, or court to which the Seller or,
to the Knowledge of the Seller, to which HTCC is subject or any provision
of the Seller's charter or bylaws.
(iv) Brokers' Fees. The Seller has no liability or obligation to pay
any fees or commissions to any broker, finder, or agent with respect to
the transactions contemplated by this Agreement for which the Buyer could
become liable or obligated.
(v) Shares. The Seller holds of record and owns the Shares free and
clear of any restrictions on transfer (other than restrictions under the
Securities Act and state securities laws), taxes, Security Interests,
options, warrants, purchase rights, contracts, commitments, equities,
claims, and demands. The Seller is not a party to any option, warrant,
purchase right, or other contract or commitment that could require the
Seller to sell, transfer, or otherwise dispose of the Shares (other than
this Agreement). The Seller is not a party to any voting trust, proxy, or
other agreement or understanding with respect to the voting of the Shares.
Upon transfer of the Shares in accordance with the terms of this
Agreement, Buyer shall acquire good, valid and marketable title to the
Shares, free and clear of any Security Interests.
(vi) Unsecured Notes. The Seller holds of record and owns the
Unsecured Notes free and clear of any restrictions on transfer (other than
restrictions under the Securities Act and state securities laws), taxes,
Security Interests, options, warrants, purchase rights, contracts,
commitments, equities, claims, and demands. Upon transfer of the Unsecured
Notes in accordance with the terms of this Agreement, Buyer shall acquire
good, valid and marketable title to the Unsecured Notes, free and clear of
any Security Interests.
(vii)Warrants. The Seller holds of record and owns the Warrants free
and clear of any restrictions on transfer (other than restrictions under
the Securities Act and state securities laws and restrictions imposed
under the terms of the Warrants themselves), taxes, Security Interests,
options, warrants, purchase rights, contracts, commitments, equities,
claims, and demands. Upon transfer of the Warrants in accordance with the
terms of this Agreement, Buyer shall acquire good, valid and marketable
title to the Warrants, free and clear of any Security Interests.
(viii) No Proceedings Against Seller. There is no civil, criminal or
administrative suit or claim, proceeding or investigation before any
court, arbitrator or similar panel at law or in equity now pending or, to
the Knowledge of the Seller, threatened against the Seller, the Shares,
the Unsecured Notes or the Warrants, which could reasonably be expected to
have a Material Adverse Effect or adversely effect the ability to
consummate the transaction or encumber the Shares, the Unsecured Notes and
Warrants, except as set forth in Schedule 3(a)(viii) hereto.
(ix) Accuracy of Principal Amounts. The principal amounts of the
Unsecured Notes and Warrants as of the Closing Date are accurately
stated in Schedules B-1 and C-1 hereto, respectively.
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(x) No Funding Obligation. There is no funding obligation of any kind
(whether fixed, contingent, conditional, or otherwise) in respect of the
Shares, Unsecured Notes or the Warrants (including any obligation to make
advances or to purchase participations in letters of credit or any
obligation relating to any currency or interest rate swap, hedge, or
similar arrangement) that Seller or Buyer is or shall be required to pay
or otherwise perform, that Seller has not paid or otherwise performed in
full.
(xi) No Acts or Omissions Adversely Affecting Shares, Unsecured Notes
or Warrants. Seller has not engaged in any acts or conduct or made any
omissions (including, without limitation, (A) in connection with any
membership on or participation in any official or unofficial creditors'
committee or other similar committee relating to HTCC, or in connection
with its status (if any) as an insider or Affiliate of HTCC or (B) by
virtue of Seller's holding any funds or property of, or owing amounts or
property to HTCC), that will result in Buyer receiving proportionately
less in payments or distributions under, or less favorable treatment
(including the timing of payments or distributions) for, the Shares,
Unsecured Notes or Warrants than is received by other holders of shares,
unsecured notes or warrants of the same tranche, class or type as the
Shares, Unsecured Notes or Warrants (if any).
(xii)Compliance with Securities Purchase Agreement, Unsecured Notes
and Warrants. To the best knowledge of the Seller, the Seller has complied
with, and has performed, all obligations required to be complied with or
performed by it under the Securities Purchase Agreements, Unsecured Notes
and Warrants and Seller has not breached any of its representations,
warranties, obligations, agreements or covenants under the Securities
Purchase Agreements, Unsecured Notes or Warrants.
(xiii) Seller is a Sophisticated Seller. Seller (A) is a sophisticated
seller with respect to the sale of the Shares, Unsecured Notes and
Warrants, (B) has adequate information concerning the business and
financial condition of HTCC to make an informed decision regarding the
sale of the Shares, Unsecured Notes and Warrants and (C) has independently
and without reliance upon Buyer, and based on such information as Seller
has deemed appropriate, made its own analysis and decision to enter into
this Agreement, except that Seller has relied upon Buyer's express
representations, warranties, covenants and indemnities in this Agreement.
Seller acknowledges that Buyer has not given Seller any investment advice,
credit information, or opinion on whether the sale of the Shares,
Unsecured Notes or Warrants is prudent.
(xiv)Excluded Information. Seller acknowledges that (A) Buyer
currently may have, and later may come into possession of, information
with respect to the Shares, Unsecured Notes or Warrants or HTCC or any of
its Affiliates that is not known to Seller and that may be material to a
decision to sell the Shares, Unsecured Notes or Warrants ("Seller Excluded
Information"), (B) Seller has determined to sell the Shares, Unsecured
Notes and Warrants notwithstanding its lack of knowledge of the Seller
Excluded Information and (C) Buyer shall have no liability to Seller, and
Seller waives and releases any claims that it might have against Buyer
whether under applicable securities laws or otherwise, with respect to the
nondisclosure of the Seller Excluded Information in connection with the
transactions contemplated by this Agreement; provided, however, that the
Seller Excluded Information shall not and does not affect the truth or
accuracy of Buyer's representations or warranties in this Agreement.
(xv) Provision of Documents. On or prior to the Closing Date, Seller
(A) will have provided or made available to Buyer copies of the Securities
Purchase Agreement, the Unsecured Notes and the Warrants, as well as only
those intercreditor agreements, subordination agreements, waivers and
amendments executed in connection therewith, in each case as currently in
effect and (B) will have provided original copies of all documents
directly related to the purchase and sale of the Unsecured Notes.
(xvi)No Consent to Changes. Seller has not given its consent to
change, nor has it waived, any term or provision of the Securities
Purchase Agreement, the Unsecured Notes or the Warrants, including,
without limitation, with respect to the amount or time of any payment of
principal or the rate or time of any payment of interest, except as
contemplated by this Agreement.
(xvii) No Other Agreements. Seller is not a party to, or bound by, any
document or agreement (other than (A) the Senior Secured Debt Facility,
(B) any banking agreements with HTCC that may arise in the
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course of normal business and (C) Seller's agreement on a best efforts
basis to increase its participation in the Senior Secured Debt Facility
following the Closing) that could materially and adversely affect the
Shares, Unsecured Notes or Warrants or Buyer's rights and remedies under
this Agreement.
(xviii) Transactions with HTCC. Seller has not engaged with HTCC in
any transactions other than on an arm's-length basis and on reasonable
commercial terms.
(xix)Disclaimer of other Representations and Warranties. The Seller
makes no representation or warranty, express or implied, at law or in
equity, in respect of HTCC or any of its assets, liabilities or
operations, except that the Seller represents and warrants that to the
Knowledge of the Seller there is no fact that specifically applies to the
Seller or HTCC that could reasonably be expected to have a Material
Adverse Effect and that has not been set forth in this Agreement or in
HTCC's public filings. Except as expressly set forth herein, Buyer hereby
acknowledges and agrees that the Buyer is purchasing the Shares having
made, to its full and complete satisfaction, a due diligence investigation
of HTCC.
(b) Representations and Warranties of the Buyer. The Buyer represents and
warrants to the Seller that the statements contained in this Section 3(b) are
correct and complete as of the date of this Agreement and will be correct and
complete as of the Closing Date (as though made then).
(i) Organization of the Buyer. The Buyer is duly organized, validly
existing, and in good standing under the laws of the jurisdiction of its
organization.
(ii) Authorization of Transaction. The Buyer has full power and
authority to execute and deliver this Agreement and to perform its
obligations hereunder. This Agreement constitutes the valid and legally
binding obligation of the Buyer, enforceable in accordance with its terms
and conditions, except to the extent that the enforcement of the rights
and remedies created therein is subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other laws of general
application affecting the enforcement of creditors' rights and general
principles of equity. The Buyer need not give any notice to, make any
filing with, or obtain any authorization, consent, or approval of any
government or governmental agency in order to consummate the transactions
contemplated by this Agreement.
(iii)Noncontravention. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby,
will violate any constitution, statute, regulation, rule, injunction,
judgment, order, decree, ruling, charge, or other restriction of any
government, governmental agency, or court to which the Buyer is subject or
any provision of its charter or bylaws.
(iv) Brokers' Fees. The Buyer has no liability or obligation to pay
any fees or commissions to any broker, finder, or agent with respect to
the transactions contemplated by this Agreement for which the Seller could
become liable or obligated.
(v) Investment. The Buyer (A) understands that the Shares, Unsecured
Notes and Warrants have not been, and will not be, registered under the
Securities Act, or under any state securities laws, and are being offered
and sold in reliance upon federal and state exemptions from registration
for transactions not involving any public offering, (B) understands that
the Shares, Unsecured Notes and Warrants may not be sold, transferred,
pledged, hypothecated or otherwise disposed of or offered for sale except
pursuant to an effective registration statement under the Securities Act
and applicable state securities laws or an applicable exemption therefrom,
(C) is acquiring the Shares, Unsecured Notes and Warrants solely for its
own account or for any fund or account managed by Xxxxxxx Investment
Management Limited for investment purposes, and not with a view to the
distribution thereof in violation of any applicable securities laws, (D)
is a sophisticated investor with knowledge and experience in business and
financial matters, (E) has received adequate information concerning HTCC
and has had the opportunity to obtain additional information as desired in
order to evaluate the merits and the risks inherent in holding the Shares,
Unsecured Notes and Warrants, (F) is able to bear the economic risk and
lack of liquidity inherent in holding the Shares, Unsecured Notes and
Warrants, and (G) is an accredited investor within the meaning of
Regulation D promulgated under the Securities Act for the reasons set
forth in Exhibit F attached hereto.
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(vi) Buyer is a Sophisticated Buyer. Buyer (A) is a sophisticated
buyer with respect to the purchase of the Shares, Unsecured Notes and
Warrants, (B) has adequate information concerning the business and
financial condition of HTCC to make an informed decision regarding the
purchase of the Shares, Unsecured Notes and Warrants and (C) has
independently and without reliance upon Seller, and based on such
information as Buyer has deemed appropriate, made its own analysis and
decision to enter into this Agreement, except that Buyer has relied upon
Seller's express representations, warranties, covenants and indemnities in
this Agreement. Buyer acknowledges that Seller has not given Buyer any
investment advice, credit information, or opinion on whether the sale of
the Shares, Unsecured Notes or Warrants is prudent.
(vii)Excluded Information. Buyer represents that any Seller Excluded
Information which is currently known by Buyer would not, in Buyer's
reasonable independent judgment, have a Material Adverse Effect, whether
as a direct or indirect result of the transactions contemplated by this
Agreement or otherwise, on the creditworthiness of HTCC.
4. Assignment and Assumption of Securities Purchase Agreement. Pursuant to
the provisions of Section 13.3 of the Securities Purchase Agreement, the Seller
hereby assigns, transfers and delegates to the Buyer all of its rights, duties
and obligations under the Securities Purchase Agreement, and the Buyer hereby
accepts such assignment and assumes the Seller's rights, duties and obligations
under the Securities Purchase Agreement and agrees to perform in accordance with
such agreement, from and after the Closing Date, each of the terms, conditions,
covenants and agreements to be performed by the Seller under the Securities
Purchase Agreement.
5. Assignment and Assumption of Unsecured Notes. Pursuant to the
provisions of Section 6 of the Terms and Conditions of the Unsecured Notes and
as evidenced by a Form of Transfer for each Unsecured Note, a sample of which is
attached hereto as Exhibit D, the Seller hereby assigns, transfers and delegates
to the Buyer all of its rights, duties and obligations under the Unsecured
Notes, and the Buyer hereby accepts such assignment and assumes the Seller's
rights, duties and obligations under the Unsecured Notes and agrees to perform,
from and after the Closing Date, each of the terms, conditions, covenants and
agreements to be performed by the Seller under the Unsecured Notes.
6. Assignment and Assumption of Warrants. Pursuant to the provisions of
Section 4.2 of the Warrants and as evidenced by a Form of Transfer for each
Warrant, a sample of which is attached hereto as Exhibit E, the Seller hereby
assigns, transfers and delegates to the Buyer all of its rights, duties and
obligations under the Warrants, and the Buyer hereby accepts such assignment and
assumes the Seller's rights, duties and obligations under the Warrants and
agrees to perform, from and after the Closing Date, each of the terms,
conditions, covenants and agreements to be performed by the Seller under the
Warrants.
7. Pre-Closing Covenants.
(a) Cooperation Prior to Closing Between the execution of this Agreement
and the Closing, each of the Parties will use its reasonable best efforts to
take all action and to do all things necessary in order to consummate and make
effective the transactions contemplated by this Agreement (including
satisfaction, but not waiver, of the closing conditions set forth in Section 9
below).
(b) Seller to Refrain from Taking or to Undertake Certain Actions.
Between the execution of this Agreement and the Closing, Seller agrees:
(i) Not to take any action with regard to the Shares, Unsecured Notes
or Warrants without the consent of the Buyer, which consent shall not be
unreasonably withheld;
(ii) Not take any action which would have a Material Adverse Effect on
the Shares, Unsecured Notes or Warrants or which would result in a breach
of the Agreement; and
(iii) To take such reasonable actions with respect to the Shares, as
the Buyer may request.
-7-
(c) Closing Arrangements for Shares, Unsecured Notes and Warrants. Between
the execution of this Agreement and Closing, the Parties shall take all actions
and do all things necessary in order to implement the Closing Arrangements set
forth in Exhibit J attached hereto, including taking all actions within their
respective power so that HTCC gives effect to the closing arrangements
contemplated therein.
(d) Seller to Use Reasonable Best Efforts on Warrants. Between the
execution of this Agreement and Closing, the Seller shall use its reasonable
best efforts to ensure that the Agreement set forth in Exhibit G (Agreement
Amending the Warrants) shall be executed by HTCC.
8. Post-Closing Covenants. The Parties agree as follows with respect
to the period following the Closing:
(a) General. In case at any time after the Closing any further action is
necessary to carry out the purposes of this Agreement, each of the Parties will
take such further action (including the execution and delivery of such further
instruments and documents) as any other Party reasonably may request, all at the
sole cost and expense of the requesting Party (unless the requesting Party is
entitled to indemnification therefore under Section 10 below).
(b) Litigation Support. In the event and for so long as any Party actively
is contesting or defending against third party any action, suit, proceeding,
hearing, investigation, charge, complaint, claim, or demand in connection with
(i) any transaction contemplated under this Agreement or (ii) any fact,
situation, circumstance, status, condition, activity, practice, plan,
occurrence, event, incident, action, failure to act, or transaction on or prior
to the Closing Date involving or relating to HTCC or otherwise related to this
Agreement, the other Party shall be obligated to cooperate on a commercially
reasonable basis with it and its counsel in the defense or contest, make
available its personnel, and provide access to its books and records as shall be
necessary in connection with the defense or contest, all at the sole cost and
expense of the contesting or defending Party (unless the contesting or defending
Party is entitled to indemnification therefore under Section 10 below).
(c) Warrants . If (i) Seller is unable to obtain the Agreement Amending
the Warrants in the form set forth in Exhibit G attached hereto, (ii) Buyer has
waived the condition set forth in Section 9(a)(vi)(A) and (iii) the Closing
shall have occurred, then on and after the Closing Date up to and including the
Expiration Date (as such term is defined in the Warrant), the Seller shall hold
the Warrants for the benefit of the Buyer and shall only take such actions as
the Buyer shall request with respect to the Warrants and, if applicable, shall
remit all proceeds to Buyer in connection with any exercise of the Warrants and
sale of the underlying shares of HTCC.
9. Conditions to Obligation to Close.
(a) Conditions to Obligation of the Buyer. The obligation of the Buyer to
consummate the transactions to be performed by it in connection with the Closing
is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in Section 3(a)
above shall be true and correct in all material respects at and as of
the Closing Date;
(ii) the Seller shall have performed and complied with all of their
covenants hereunder in all material respects through the Closing;
(iii)there shall not be any injunction, judgment, order, decree,
ruling, or charge in effect preventing consummation of any of the
transactions contemplated by this Agreement;
(iv) all necessary governmental, shareholder and third party consents
and approvals in connection with the transactions contemplated by the
Agreement shall have been obtained;
(v) the Seller shall have delivered to the Buyer certificates executed
by the responsible officer or the secretary of the Seller, as applicable,
certifying (A) that each of the conditions specified in Section
9(a)(i)-(iv) are satisfied in all respects, (B) the resolution(s) of the
Seller's board of directors authorizing the Seller's execution, delivery
and performance of the Agreement and all matters in connection with the
Agreement and
-8-
transactions contemplated thereby, and (C) the incumbency of the officer
of the Seller executing the Agreement and all other documents executed and
delivered in connection therewith;
(vi) the relevant parties shall have entered into the agreements in
the forms set forth in (A) Exhibit G (Agreement Amending the Warrants),
(B) Exhibit H (Assumption Agreement regarding the Warrants) and (C)
Exhibit I (Agreement Amending Securities Purchase Agreement) and attached
hereto and the same shall be in full force and effect;
(vii)the Buyer shall have received: (A) from Hungarian Counsel of the
Seller, a legal opinion in the form set forth in Exhibit L attached
hereto, and dated as of the Closing Date, to the effect that (u) the
Seller need not give any notice to, make any filing with, or obtain any
authorization, consent, or approval of any government or governmental
agency in order to consummate the transactions contemplated by this
Agreement, or if such notice filing, authorization, consent or approval is
needed, it has been gained or obtained, (v) any arbitration award in favor
of the Buyer obtained pursuant to this Agreement would be valid and
enforceable before a court of competent jurisdiction in Hungary and (x)
the matters set forth in Section 3(a)(i) and the first and third sentences
of Section 3(a)(ii) of the Agreement; and (B) from US Counsel to the
Seller, an opinion in the form as may be attached hereto as Exhibit K, and
dated as of the Closing Date (y) covering the matters set forth in the
second sentence of Section 3(a)(ii) of the Agreement and (z) stating that
no registration is required under the Securities Act to transfer the
Shares, Unsecured Notes or the Warrants to Buyer in accordance with the
Agreement;
(viii) the Closing Arrangements set forth in Exhibit J attached hereto
shall have been implemented in full to the Buyer's satisfaction; for the
avoidance of doubt Seller acknowledges and agrees that unless and until
the Closing Arrangements set forth in Exhibit J have been implemented as
contemplated by this Section 9(a)(viii), Buyer shall have no obligation
whatsoever to pay the Purchase Price;
(ix) Since the date of the this Agreement, no event or events shall
have occurred which have had or reasonably may be expected to have a
Material Adverse Effect;
(x) All actions to be taken by the Seller in connection with
consummation of the transactions contemplated hereby and all certificates,
opinions, instruments, and other documents required to effect the
transactions contemplated hereby will be reasonably satisfactory in form
and substance to the Buyer; and
(xi) The Buyer shall have had the opportunity to conduct a reasonable
investigation of the matters set forth in Schedule 3(a)(viii) of this
Agreement and satisfy itself that no material commercial risk will be
transferred with respect to the Shares, Unsecured Notes and Warrants as a
result of the dispute described therein in the event that the Closing
shall occur.
The Buyer may waive any condition specified in this Section 9(a) if it executes
a writing so stating at or prior to the Closing.
(b) Conditions to Obligation of the Seller. The obligation of the Seller
to consummate the transactions to be performed by it in connection with the
Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in Section 3(b)
above shall be true and correct in all material respects at and as of
the Closing Date;
(ii) the Buyer shall have performed and complied with all of its
covenants hereunder in all material respects through the Closing;
(iii)there shall not be any injunction, judgment, order, decree,
ruling, or charge in effect preventing consummation of any of the
transactions contemplated by this Agreement;
(iv) the Buyer shall have delivered to the Seller a certificate to the
effect that each of the conditions specified above in Section
9(b)(i)-(iii) is satisfied in all respects;
-9-
(vi) the relevant parties shall have entered into the agreement in the
form set forth in Exhibit H (Assumption Agreement regarding the Warrants)
and attached hereto and the same shall be in full force and effect;
(vii)the Seller shall have entered into and be ready to close a
purchase and sale agreement dated the date hereof with respect to the sale
of the Seller's six hundred thousand (600,000) shares of HTCC to an
unaffiliated third party; and
(viii) all actions to be taken by the Buyer in connection with
consummation of the transactions contemplated hereby and all certificates,
opinions, instruments, and other documents required to effect the
transactions contemplated hereby will be reasonably satisfactory in form
and substance to the Seller.
The Seller may waive any condition specified in this Section 9(b) if it executes
a writing so stating at or prior to the Closing.
10. Remedies for Breaches of this Agreement.
(a) Survival of Representations and Warranties. All of the
representations, warranties, covenants and obligations of the Parties contained
in this Agreement and any certificate or document delivered with this Agreement
shall survive the Closing (unless the damaged Party knew or had reason to know
of any misrepresentation or breach of warranty at the time of Closing) and
continue in full force and effect forever thereafter (subject to any applicable
statutes of limitations) or the specific terms thereof.
(b) Indemnification Provisions for Benefit of the Buyer. In the event any
the Seller breaches any of its representations, warranties, and covenants
contained herein, and, if there is an applicable survival period pursuant to
Section 10(a) above, provided that the Buyer makes a written claim for
indemnification against the Seller pursuant to Section 12(g) below within such
survival period, then the Seller agrees to indemnify the Buyer from and against
the entirety of any Adverse Consequences the Buyer shall suffer through and
after the date of the claim for indemnification caused proximately by the
breach.
(c) Indemnification Provisions for Benefit of the Seller. In the event the
Buyer breaches any of its representations, warranties, and covenants contained
herein, and, if there is an applicable survival period pursuant to Section 10(a)
above, provided that the Seller makes a written claim for indemnification
against the Buyer pursuant to Section 12(g) below within such survival period,
then the Buyer agrees to indemnify the Seller from and against the entirety of
any Adverse Consequences the Seller shall suffer through and after the date of
the claim for indemnification caused proximately by the breach.
(d) Matters Involving Third Parties.
(i) If any third party shall notify any Party (the "Indemnified
Party") with respect to any matter (a "Third Party Claim") which may give
rise to a claim for indemnification against the other Party (the
"Indemnifying Party") under this Section 10, then the Indemnified Party
shall promptly (and in any event within thirty (30) days after receiving
notice of the Third Party Claim) notify the Indemnifying Party thereof in
writing.
(ii) Notwithstanding the fact that the Indemnifying Party will have
the right at any time to assume and thereafter conduct the defense of the
Third Party Claim with counsel of his or its choice, the Indemnified Party
will have the right to participate in such proceedings at its own cost.
(iii)Unless and until an Indemnifying Party assumes the defense of the
Third Party Claim as provided in Section 10(d)(ii) above, however, the
Indemnified Party may defend, at the cost of the Indemnifying Party,
against the Third Party Claim in any manner it reasonably may deem
appropriate.
-10-
(iv) In no event will the Indemnified Party consent to the entry of
any judgment or enter into any settlement with respect to monetary
damages, with respect to the Third Party Claim without the prior written
consent of the Indemnifying Party (not to be unreasonably withheld or
delayed).
(e) Indemnification with Respect to M&A Capital Ltd. Dispute. Seller
agrees to indemnify and hold harmless the Buyer against any and all costs,
expenses, liabilities, claims, losses and damages of whatever nature (including
reasonable attorneys' fees) to the extent such costs, expenses, liabilities,
claims, losses and damages arise out of or are based on the matters set forth in
Schedule 3(a)(viii) of the Agreement.
(f) Exclusive Remedy. The Buyer and the Seller acknowledge and agree that
the foregoing indemnification provisions in this Section 10 shall be the
exclusive remedy of the Buyer and the Seller with respect to the transactions
contemplated by this Agreement.
11. Termination.
(a) Termination of Agreement. The Parties may terminate this Agreement
as provided below:
(i) the Buyer and the Seller may terminate this Agreement by
mutual written consent at any time prior to the Closing;
(ii) the Buyer may terminate this Agreement by giving written notice
to the Seller at any time prior to the Closing (A) in the event the Seller
has breached any material representation, warranty, or covenant contained
in this Agreement in any material respect, the Buyer has notified the
Seller of the breach, and the breach has continued without cure for a
period of thirty (30) days after the notice of breach but not later than
November 28, 2003 or (B) if the Closing shall not have occurred on or
before November 28, 2003, by reason of the failure of any condition
precedent under Section 9(a) hereof (unless the failure results primarily
from the Buyer itself breaching any representation, warranty, or covenant
contained in this Agreement); and
(iii)the Seller may terminate this Agreement by giving written notice
to the Buyer at any time prior to the Closing (A) in the event the Buyer
has breached any material representation, warranty, or covenant contained
in this Agreement in any material respect, the Seller has notified the
Buyer of the breach, and the breach has continued without cure for a
period of thirty (30) days after the notice of breach but not later than
November 28, 2003 or (B) if the Closing shall not have occurred on or
before November 28, 2003 by reason of the failure of any condition
precedent under Section 9(b) hereof (unless the failure results primarily
from the Seller itself breaching any representation, warranty, or covenant
contained in this Agreement).
(b) Effect of Termination. If any Party terminates this Agreement pursuant
to Section 11(a) above, all rights and obligations of the Parties hereunder,
with the express exception of the provisions of Sections 12(g), 12(h), 12(i) and
12(l) hereof, shall terminate without any liability of any Party to any other
Party (except for any liability of any Party then in breach).
12. Miscellaneous.
(a) Press Releases and Public Announcements. No Party shall issue any
press release or make any public announcement relating to the subject matter of
this Agreement without the prior written approval of the other Party; provided,
however, that any Party may make any public disclosure it believes in good faith
is required by applicable law or any listing or trading agreement concerning its
publicly-traded securities (in which case the disclosing Party will use its
reasonable best efforts to advise the other Parties prior to making the
disclosure).
(b) No Third-Party Beneficiaries. This Agreement shall not confer any
rights or remedies upon any Person other than the Parties and their respective
successors and permitted assigns.
(c) Entire Agreement. This Agreement (including the documents referred to
herein) constitutes the entire agreement among the Parties and supersedes any
prior understandings, agreements, or representations by or among the Parties,
written or oral, to the extent they have related in any way to the subject
matter hereof.
-11-
(d) Succession and Assignment. This Agreement shall be binding upon and
inure to the benefit of the Parties named herein and their respective successors
and permitted assigns. No Party may assign either this Agreement or any of his
or its rights, interests, or obligations hereunder without the prior written
approval of the other Party, except that the Buyer may freely assign without
restriction the benefit of this Agreement or otherwise sell or transfer all the
Shares, Unsecured Notes or the Warrant to any fund or account managed by Xxxxxxx
Investment Management Limited.
(e) Counterparts. This Agreement may be executed by facsimile and in one
or more counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
(f) Headings. The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(g) Notices. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request, demand, claim,
or other communication hereunder shall be deemed duly given if (and then two
business days after) it is sent by registered or certified mail, return receipt
requested, postage prepaid, and addressed to the intended recipient as set forth
below:
If to the Seller: Copy to:
Postabank es Takarekpenztar Rt. Squire, Xxxxxxx & Xxxxxxx L.L.P.
Rumbach Xxxxxxxxx u. 19-21. Xxxxxxx 0
0000 Xxxxxxxx 000 00 Xxxxxxxxxx
Xxxxxxx Xxxxxxxx of Slovakia
Attention: Xxxxxxx Xxxx Attention: Xxxxxx Xxxxxx
Facsimile: x00-0-000-0000 Facsimile: x000-0-0000-0000
If to the Buyer:
Asset Holder PCC Limited
re: Xxxxxxx Emerging Market Liquid Investment Portfolio
c/o Barings (Guernsey) Limited, as custodian
XX Xxx 00, Xxxxxxxxx Xxxxx
Les Xxxxxxx, Xx Xxxxx Xxxx
Xxxxxxxx XX0 0XX
Attention: Xxxxx xx Xxxxxxx
Facsimile: 01481 745 058
Copy to: Copy to:
Xxxxxxx Investment Management Limited Xxxxx Xxxxxxxxxx
20 Bedfordbury 1 Undershaft
Xxxxxx XX0X 0XX Xxxxxx, XX0 0XX
Xxxxxx Xxxxxxx United Kingdom
Attention: Xxx Xxxxx Attention: Xxxxxxx X. Xxxxxx, Esq.
Facsimile: x00-00-0000-0000 Facsimile: x00-00-0000-0000
Any Party may send any notice, request, demand, claim, or other communication
hereunder to the intended recipient at the address set forth above using any
other means (including personal delivery, expedited courier, messenger service,
telecopy, telex, ordinary mail, or electronic mail), but no such notice,
request, demand, claim, or other communication shall be deemed to have been duly
given unless and until it actually is received by the intended recipient. Any
Party may change the address to which notices, requests, demands, claims, and
other communications hereunder are to be delivered by giving the other Party
notice in the manner herein set forth.
(h) Governing Law. This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of New York without giving effect
to any choice or conflict of law provision or rule (whether of the
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State of New York or any other jurisdiction) that would cause the application of
the laws of any jurisdiction other than the State of New York.
(i) Dispute Resolution.
(i) In the event of any dispute between the Parties, the Parties
shall first attempt to settle such dispute amicably. Provided that, unless
the Parties otherwise agree, arbitration may be commenced on or after the
thirtieth (30) day after the day on which notice of intention to commence
arbitration of such dispute was given, even if no attempt at amicable
settlement thereof has been made.
(ii) If amicable settlement has not been reached within the period
stated in Section 12(i)(i) above, the dispute shall be finally settled
under the Rules of Conciliation and Arbitration of the International
Chamber of Commerce by one or more arbitrators appointed under such Rules.
Each arbitrator shall have experience in agreements of this type
generally. The language of the arbitration shall be English and all
documents submitted to the arbitration shall be in English (or where
applicable an English translation shall be provided). The place of such
arbitration shall be London. The prevailing party in any such arbitration
shall be fully reimbursed by the other party for all costs associated with
the arbitration, including reasonable legal fees.
(j) Amendments and Waivers. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing and signed by each
Party. No waiver by any Party of any default, misrepresentation, or breach of
warranty or covenant hereunder, whether intentional or not, shall be deemed to
extend to any prior or subsequent default, misrepresentation, or breach of
warranty or covenant hereunder or affect in any way any rights arising by virtue
of any prior or subsequent such occurrence.
(k) Severability. Any term or provision of this Agreement that is invalid
or unenforceable in any situation in any jurisdiction shall not affect the
validity or enforceability of the remaining terms and provisions hereof or the
validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
(l) Expenses. Each of the Buyer and the Seller will bear its own costs and
expenses (including legal fees and expenses) incurred in connection with the
negotiation and execution of this Agreement and the transactions contemplated
hereby.
(m) Construction. The Parties have participated jointly in the negotiation
and drafting of this Agreement. In the event an ambiguity or question of intent
or interpretation arises, this Agreement shall be construed as if drafted
jointly by the Parties and no presumption or burden of proof shall arise
favoring or disfavoring any Party by virtue of the authorship of any of the
provisions of this Agreement. Any reference to any federal, state, local, or
foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires otherwise. The
word "including" shall mean including without limitation.
(n) Stamp Taxes, etc.. Seller agrees that it will pay, and will hold the
Buyer harmless from any and all liability with respect to any stamp or similar
taxes which may be determined to be payable in connection with the execution,
delivery and performance of this Agreement.
(o) Incorporation of Exhibits and Schedules. The Exhibits and Schedules
identified in this Agreement are incorporated herein by reference and made a
part hereof.
(p) Execution on Behalf of Buyer by Custodian. Barings (Guernsey) Limited
is executing this Agreement and any other operative documents relating hereto to
which Buyer is a party or shall be a party on behalf of Buyer and solely in his
capacity as custodian for the Buyer, and is making no independent
representations or warranties and shall have no independent liability under the
Agreement or such other operative documents.
(q) References to Shares, Unsecured Notes and Warrants. References to
"Shares", "Unsecured Notes" and "Warrants" shall applicable in this Agreement to
extent that references to each of these terms is applicable with respect to the
specific purchase and sale arrangement contemplated by Section 2 of this
Agreement
-13-
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the date first above written.
SELLER: BUYER:
POSTABANK ES TAKAREKPENZTAR RT. ASSET HOLDER PCC LIMITED RE: XXXXXXX
EMERGING MARKET LIQUID INVESTMENT
PORTFOLIO
By: /s/ Bela Singlovics
------------------------------
Name: Bela Singlovics By: BARINGS (GUERNSEY) LIMITED,
Title: Chief Executive Officer as custodian for Asset Holder
PCC Limited Re: Xxxxxxx Emerging
Market Liquid Investment
Portfolio
By: /s/ Xxxxxxx Xxxx
------------------------------
Name: Xxxxxxx Xxxx
Title: Deputy Chief Executive Officer By: /s/ Xxxxx Xx Xxxxxxx
------------------------------
Name: Xxxxx Xx Xxxxxxx
Title: Authorised Signatory
By: /s/ Xxxxx Xxxxxxx
------------------------------
Name: Xxxxx Xxxxxxx
Title: Authorised Signatory
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AMENDMENT NO. 1 TO THE AGREEMENT FOR THE PURCHASE AND SALE
OF SHARES, UNSECURED NOTES AND WARRANTS
Amendment No. 1 to the Agreement for the Purchase and Sale of Shares,
Unsecured Notes and Warrants (this "Amendment") is made as of October 10,
2003 by and among Postabank es Takarekpenztar Rt., a Hungarian commercial
bank ("Seller"), and Asset Holder PCC Limited re: Xxxxxxx Emerging Market
Liquid Investment Portfolio ("Buyer").
RECITALS
WHEREAS, the Seller and Buyer have entered into the Agreement for the
Purchase and Sale of Shares, Unsecured Notes And Warrants dated September 26,
2003 (the "Agreement"); and
WHEREAS, the Seller and Buyer wish to amend certain of the representations
of the warranties given by the Buyer in the Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements, provisions and covenants set forth in this Amendment and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Seller and the Buyer agree as follows:
AGREEMENT
1. Amendment to Agreement. Section 3(b)(v)(A) of the Agreement shall be
amended by deleting the words "for transactions not involving any public
offering".
2. Effective Time. This Amendment shall be effective immediately upon
execution.
3. Governing Law. This Amendment and the rights of the parties hereunder
shall be governed in all respects by the laws of the State of New York,
United States of America, without giving effect to the conflict of laws
provisions thereof.
4. Ratification. The Agreement, as amended by this Amendment, is and
continues to be, in full force and effect and is hereby in all respects
confirmed, approved and ratified.
5. Execution on Behalf of Buyer by Custodian. Barings (Guernsey) Limited is
executing this Amendment on behalf of Buyer and solely in its capacity as
custodian for the Buyer, and is making no independent representations or
warranties and shall have no independent liability under the Amendment.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed as of the date first written above.
SELLER: BUYER:
POSTABANK ES TAKAREKPENZTAR RT. ASSET HOLDER PCC LIMITED RE: XXXXXXX
EMERGING MARKET LIQUID INVESTMENT
PORTFOLIO
By: /s/ Bela Singlovics
------------------------------
Name: Bela Singlovics By: BARINGS (GUERNSEY) LIMITED,
Title: Chief Executive Officer as custodian for Asset Holder
PCC Limited Re: Xxxxxxx Emerging
Market Liquid Investment
Portfolio
By: /s/ Xxxxxxx Xxxx
------------------------------
Name: Xxxxxxx Xxxx
Title: Deputy Chief Executive Officer By: /s/ Xxxxx Xx Xxxxxxx
------------------------------
Name: Xxxxx Xx Xxxxxxx
Title: Authorised Signatory
By: /s/ Xxxxx Xxxxxxx
------------------------------
Name: Xxxxx Xxxxxxx
Title: Authorised Signatory
-16-
