EXHIBIT 4.8
(Operation Number 27720)
SHARE RETENTION AND SUBORDINATION DEED
BETWEEN
MOBIFON S.A.
AND
TELESYSTEM INTERNATIONAL WIRELESS INC.
AND
TELESYSTEM INTERNATIONAL WIRELESS CORPORATION N.V.
AND
VODAFONE EUROPE B.V.
AND
CLEARWAVE N.V.
AND
CLEARWAVE HOLDINGS B.V.
AND
VODAFONE TECHNICAL SERVICES
AND
EXPORT DEVELOPMENT CANADA
AND
NORDIC INVESTMENT BANK
AND
EUROPEAN BANK
FOR RECONSTRUCTION AND DEVELOPMENT
AND
SUCH OTHER PERSONS AS BECOME PARTIES HERETO FROM TIME TO TIME
DATED 27 AUGUST 2002
TABLE OF CONTENTS
ARTICLE 1 - DEFINITIONS.................................................................. 2
Section 1.01 Definitions........................................................... 2
Section 1.02 Singular/Plural - Persons - References -
Headings.............................................................. 8
ARTICLE 2 - SUBORDINATION................................................................ 9
Section 2.01 Subordination in Right of Payment..................................... 9
Section 2.02 Subordination in Liquidation or Realization........................... 9
Section 2.03 Payments Received..................................................... 10
Section 2.04 Application of Payments............................................... 10
Section 2.05 Covenants Regarding Subordination..................................... 11
Section 2.06 Waivers by Junior Creditors........................................... 11
Section 2.07 Senior Lenders' Consent Required for Certain Actions.................. 12
Section 2.08 Actions by the Senior Lenders......................................... 12
Section 2.09 Security.............................................................. 13
Section 2.10 Borrower's Obligations................................................ 13
Section 2.11 Parties to Deed....................................................... 13
ARTICLE 3 - REPRESENTATIONS AND WARRANTIES............................................... 13
Section 3.01 Representations and Warranties........................................ 13
ARTICLE 4 - SHARE RETENTION AND GENERAL COVENANTS........................................ 15
Section 4.01 Transfer of Existing Shares in Borrower - Private Share Sale or Public
Secondary Sale........................................................ 15
Section 4.02 Transfer of Existing Shares in ClearWave - Private Share Sale or Public
Secondary Sale........................................................ 18
Section 4.03 Issuance of New Shares by way of Public Offering...................... 19
Section 4.04 Repurchase of Shares by Xxxxxxxx...................................... 21
Section 4.05 Release of Security Over Shares....................................... 22
Section 4.06 Operating Shareholders' General Covenants............................. 23
Section 4.07 Several Obligations................................................... 24
ARTICLE 5 - MISCELLANEOUS................................................................ 24
Section 5.01 Notices............................................................... 24
Section 5.02 English Language...................................................... 27
Section 5.03 Rights, Remedies and Waiver........................................... 27
Section 5.04 Term of Deed.......................................................... 28
Section 5.05 Governing Law......................................................... 28
Section 5.06 Arbitration and Jurisdiction.......................................... 28
Section 5.07 Privileges and Immunities of the Senior Lenders....................... 29
Section 5.08 Waiver of Sovereign Immunity.......................................... 29
Section 5.09 Entire Agreement; Amendments and Waiver............................... 29
Section 5.10 Successors and Assigns; Third Party Rights............................ 30
Section 5.11 Counterparts.......................................................... 30
ANNEX A.................................................................................. 1
Form of Deed of Undertaking of Adherence................................................. 1
SHARE RETENTION AND SUBORDINATION DEED
DEED dated 27 August 2002 between MOBIFON S.A., a joint stock company organised
and existing under the laws of Romania (the "Borrower"), TELESYSTEM
INTERNATIONAL WIRELESS INC., a corporation organised and existing under the laws
of Canada ("TIWI"), TELESYSTEM INTERNATIONAL WIRELESS CORPORATION N.V., a
corporation organised and existing under the laws of the Netherlands ("TIWC"),
VODAFONE EUROPE B.V., a corporation organised and existing under the laws of the
Netherlands ("Vodafone Europe"), CLEARWAVE N.V., a corporation organised and
existing under the laws of the Netherlands ("ClearWave"), CLEARWAVE HOLDINGS
B.V., a corporation organised and existing under the laws of the Netherlands
("ClearWave Holdings"), VODAFONE TECHNICAL SERVICES, a corporation organised and
existing under the laws of the State of California in the United States of
America ("Vodafone Technical"), EXPORT DEVELOPMENT CANADA ("EDC"), NORDIC
INVESTMENT BANK ("NIB") and EUROPEAN BANK FOR RECONSTRUCTION AND DEVELOPMENT
("EBRD"), and such other persons as become parties hereto in accordance with the
terms hereof from time to time.
WHEREAS
(A) The Borrower and EBRD entered into a loan agreement dated 27 August 2002
(the "EBRD Loan Agreement") pursuant to which EBRD agreed to provide
certain credit facilities to the Borrower in a principal amount of up to
$230,000,000;
(B) The Borrower and EDC entered into a loan agreement dated 27 August 2002
(the "EDC Loan Agreement") pursuant to which EDC agreed to provide certain
credit facilities to the Borrower in the principal amount of up to
$35,000,000;
(C) The Borrower and NIB entered into a loan agreement dated 27 August 2002
(the "NIB Loan Agreement") pursuant to which NIB agreed to provide certain
credit facilities to the Borrower in the principal amount of up to
$35,000,000;
(D) The obligations of EBRD, EDC and NIB, respectively, under the Senior Loan
Agreements to disburse the Senior Loans are subject to the condition,
among other things, that the Controlling Shareholders, ClearWave's
Majority Shareholder, TIWC, ClearWave Holdings, Vodafone Technical and all
other Junior Creditors enter into and perform their obligations under this
Deed;
(E) The Shareholders collectively own 100% of the outstanding capital stock of
the Borrower, and the Controlling Shareholders collectively own
approximately 83.64% of the outstanding capital stock of the Borrower; and
(F) The Controlling Shareholders, Vodafone Technical, the Borrower and the
other Junior Creditors desire to induce the Senior Lenders to consent to
the advance of the Senior Loans to the Borrower and, therefore, desire to
enter into this Deed.
NOW, THEREFORE, it is hereby agreed under deed as follows:
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ARTICLE 1 - DEFINITIONS
SECTION 1.01 DEFINITIONS
Wherever used in this Deed, unless the context otherwise requires, terms
defined in the EBRD Loan Agreement have the same meanings herein as in the EBRD
Loan Agreement (and each of the parties hereto hereby acknowledges receipt of a
fully signed copy of the EBRD Loan Agreement), and the following terms have the
following meanings:
"ClearWave's Majority means
Shareholder" (i) TIWI, and
(ii) any Recognised Telecommunications Operator
which acquires pursuant to Section 4.02(b) (either
directly or indirectly) an Economic Interest or a
Controlling Interest of more than 50% in
ClearWave.
"Controlling Shareholders" means
(1) ClearWave,
(2) Vodafone,
(3) any Joint Affiliate, and
(4) any Recognised Telecommunications Operator
which acquires pursuant to section 4.01(c) (either
directly or indirectly) (i) an Economic Interest
or a Controlling Interest of more than 50% in the
Borrower or (ii) in the case of a transfer, sale
or assignment by Vodafone, Vodafone's entire
Economic Interest and Controlling Interest in the
Borrower.
"Deed" means this deed, as it may be amended,
supplemented or modified from time to time.
"EBRD Loan" means the loan provided to the Borrower pursuant
to the EBRD Loan Agreement.
"EBRD Loan Agreement" has the meaning set out in recital (A).
"EDC Loan" means the loan provided to the Borrower by EDC
pursuant to the EDC Loan Agreement.
"EDC Loan Agreement" has the meaning set out in recital (B).
"Event of Default" means any "Event of Default" as defined under any
of the Senior Loan Agreements.
"Junior Creditor" means any holder of Junior Indebtedness.
"Junior Indebtedness" means any and all of the Borrower's obligations of
whatsoever nature whether existing on the date
hereof or arising after the
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nature whether existing on the date hereof or
arising after the date hereof to make payments of
principal, interest or any other sums of
whatsoever nature to any Operating Shareholder (or
Affiliate thereof) or any Shareholder (or
Affiliate thereof), including, without limitation:
(i) in respect of dividends, return of
capital, redemption or any other such
distribution to the Shareholders;
(ii) in respect of any liability of
whatsoever nature that the Borrower
has or may have to any Operating
Shareholder (or Affiliate thereof) or
any Shareholder (or Affiliate
thereof), whether by way of indemnity,
reimbursement, as a result of
subrogation or otherwise, or pursuant
to the terms of the Services
Agreements or any other agreement
between any Operating Shareholder (or
Affiliate thereof) or Shareholder (or
Affiliate thereof) (including without
limitation Vodafone Technical) and the
Borrower;
(iii) Permitted High Yield Back to Back
Debt; and
(iv) Permitted Quasi Equity.
"NIB Loan" means the loan to be provided to the Borrower by
NIB pursuant to the NIB Loan Agreement.
"NIB Loan Agreement" has the meaning set out in Recital (C).
"Operating Shareholders" means, collectively, (i) the Controlling
Shareholders, (ii) any Controlled Affiliates of
the Controlling Shareholders that own an Economic
Interest or a Controlling Interest in the Borrower
from time to time (directly or indirectly through
Controlled Affiliates of such parties or through a
Joint Affiliate), and (iii) ClearWave's Majority
Shareholder and any Controlled Affiliates of
ClearWave's Majority Shareholder that own an
Economic Interest or a Controlling Interest in
ClearWave from time to time.
"Permitted High Yield Back means any Financial Debt of the Borrower which
to Back Debt" meets the following conditions:
(a) such Financial Debt is unsecured and may not
be in the form of a guarantee or other like
instrument;
(b) such Financial Debt is provided to the
Borrower by (i) a Shareholder, or (ii) a
Controlled Affiliate of a Shareholder or a
Joint Affiliate, in which the Borrower does
not own any Economic Interest (either
directly or
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indirectly) (each such person referred to in
this definition as a "PSFD Holder");
(c) such Financial Debt is incurred as a result
of or in connection with the incurring of
Financial Debt by a PSFD Holder issued in the
capital markets by way of private placement
or public offering which Financial Debt owed
by such PSFD Holder is structurally and
contractually subordinated to the Senior
Indebtedness on terms and in a manner
satisfactory to the Senior Lenders in their
sole discretion;
(d) if the aggregate of all such Financial debt
and any other Permitted High Yield Back to
Back Debt exceeds $150,000,000, then such
Financial Debt and all other Permitted High
Yield Back to Back Debt is assigned to each
Senior Lender on terms and in a manner
satisfactory to such Senior Lender in its
sole discretion (provided that such Financial
Debt is not required to be so assigned to a
Senior Lender if the mandatory prepayment
required to be made by the Borrower in
respect thereof, if any, under Section
3.10(f) (in case of EBRD) or Section 3.09(f)
(in case of EDC and NIB) of such Senior
Lender's Senior Loan Agreement has been made
in full);
(e) the PSFD Holder has become a party to this
Deed as a Junior Creditor in accordance with
Section 2.11(a), (b), (c) and (d) and has
assumed all obligations of a Junior Creditor
hereunder or such Financial Debt is otherwise
contractually subordinated to the Senior
Indebtedness in a manner satisfactory to the
Senior Lenders in their sole discretion;
(f) the instrument pursuant to which such
Financial Debt is incurred by the Borrower
expressly provides that such Financial Debt
is postponed and subordinated to the payment
in full of the Senior Indebtedness on the
terms set forth in Article 2 hereof or on
such other terms as are satisfactory to the
Senior Lenders in their sole discretion;
(g) the instrument pursuant to which such
Financial Debt is incurred does not contain a
cross default to any Financial Debt incurred
by the PSFD Holder;
(h) all payments of principal under such
Financial Debt (including any payments in
connection with the exercise of a put or
similar option or in connection with any
mandatory or voluntary redemption or
retraction of such Financial Debt) are
payable or exercisable no earlier than the
date which is 183 days after the repayment of
the last instalment of principal under the
Senior Loan
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Agreement;
(i) such Financial Debt does not contain any
covenants that are, in the opinion of the
Senior Lenders acting reasonably, more
restrictive than those applicable to the
Borrower under the Senior Loan Agreements, or
which would require or permit redemption or
repayment of any part of such Financial Debt
at any time prior to the occurrence and
continuance of an Event of Default;
(j) cash interest payable in respect of such
Financial Debt does not exceed fifteen
percent (15%) per annum;
(k) any debt instruments issued by the Borrower
in addition to, or in place of, cash
interest on such Financial Debt, shall
satisfy each of the conditions set out in
paragraphs (a) to (j) above; and
(l) the Borrower is, and has been during the
period of twelve consecutive months prior to
the date on which it incurs such Financial
Debt (or, if such Financial Debt is incurred
prior to the date which is one year after the
date hereof, during the period commencing on
the date hereof and terminating on the date
on which such Financial Debt is incurred) and
shall be immediately upon incurring such
Financial Debt, in full compliance with all
of its covenants and other obligations under
the Senior Loan Agreements and other
Financing Agreements (provided that (i) the
Borrower shall be deemed for purposes of this
paragraph (l) to be in compliance with a
covenant or an obligation if a default in
respect thereof has occurred during the
above-mentioned time period but has been
cured during such time period to the
satisfaction of the Senior Lenders, and (ii)
for purposes of determining compliance with
Section 5.10(a) of each Senior Loan Agreement
(l) the ratios in such sections shall be
tested in accordance with Section 5.10(b) of
each Senior Loan Agreement but on a pro forma
basis taking into account the effect of the
Borrower incurring such Financial Debt and
(2) the Total Financial Debt to Equity Ratio
shall be tested on a pro forma basis by
reference to the Shareholders' Equity Under
GAAP in place of Shareholders' Equity).
"Permitted Quasi Equity" means any Financial Debt of the Borrower which
meets the following conditions:
(a) such Financial Debt is unsecured;
(b) such Financial Debt is provided by (i) a
Shareholder, or
(ii) an Affiliate of a Shareholder;
(c) the person providing such Financial Debt to
the Borrower has become a party to this Deed
as a Junior Creditor in accordance with
Section 2.11(a), (b), (c) and (d) and has
assumed all obligations of a Junior Creditor
hereunder, or such Financial Debt is
otherwise contractually subordinated to the
Senior Indebtedness on terms and in a manner
satisfactory to the Senior Lenders in their
sole discretion;
(d) all payments of principal under such
Financial Debt (including any payments in
connection with the exercise of a put or
similar option or in connection with any
mandatory or voluntary redemption or
retraction of such Financial Debt) are
payable or exercisable no earlier than the
date which is 183 days after the repayment of
the last instalment of principal under the
Senior Loan Agreements;
(e) no interest or any other amount is payable
under or in respect of such Financial Debt
other than as permitted pursuant to Section
6.01 of each of the Senior Loan Agreements;
(f) such Financial Debt does not contain any
covenants (other than covenants to pay
principal and interest and such other
covenants as may be agreed to by the Senior
Lenders); and
(g) such Financial Debt cannot be accelerated for
any reason (other than the insolvency of the
Borrower provided such insolvency is not the
result of any claim, demand, step or
proceeding taken or made by the holder of any
Permitted Quasi Equity) prior to its maturity
and is structured to the extent legally
possible such that it does not provide the
holder of such Financial Debt with any rights
to place the Borrower in administration,
insolvency, bankruptcy or other similar
proceedings (including without limitation
upon the occurrence of a payment default in
respect of such Financial Debt).
"Potential Event of Default" means any "Potential Event of Default" as defined
under any of the Senior Loan Agreements.
"Private Share Sale" means, in respect of any person, a transfer,
sale, assignment or conveyance of any Economic
Interest or any Controlling Interest in such
person by a holder of shares in such person other
than by way of a Public Secondary Sale.
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"Public Offering" means, in respect of any person, any offering of
newly issued equity securities of such person,
where such equity securities are (i) listed, or
to be listed following such offering, on any
internationally recognised stock exchange,
including (in case of the Borrower) the Bucharest
stock exchange, or (ii) sold pursuant to a
prospectus under Canadian securities laws or
pursuant to a registration statement under the
United States Securities Act of 1933.
"Public Secondary Sale" means, in respect of any person, any offering and
sale by holders of equity securities in such
person of any such equity securities where such
equity securities are (i) listed, or to be listed
following such offering on any internationally
recognised stock exchange, including (in case of
equity securities of the Borrower) the Bucharest
stock exchange, or (ii) sold pursuant to a
prospectus under Canadian securities laws or
pursuant to a registration statement under the
United States Securities Act of 1933.
"Recognised means a telecommunications operator with
Telecommunications internationally recognized experience in the
Operator" operation and management of mobile GSM
telecommunications networks and whose issued
long-term senior unsecured debt securities have
an investment grade credit rating.
"Representing Party" means (i) the Borrower, (ii) each Operating
Shareholder and (iii) each Junior Creditor, in
each case which person is a party to this Deed.
"Senior Indebtedness" means any and all of the Borrower's obligations
to make payments of principal, interest, fees,
costs, expenses, indemnity payments and any other
amounts to the Senior Lenders under the Senior
Loan Agreements or any other Financing Agreements.
"Senior Lenders" means, collectively, EBRD, EDC and NIB.
"Senior Loans" means, collectively, the EBRD Loan, the EDC Loan
and the NIB Loan.
"Senior Loan Agreements" means, collectively, the EBRD Loan Agreement, the
EDC Loan Agreement and the NIB Loan Agreement.
"Services Agreements" means
(i) the agreement dated November 29, 1996 among
the Borrower, TIWC and Vodafone Technical for
provision of technical services by Vodafone
Technical and TIWC to the Borrower in respect of
the Project;
(ii) the management services agreement effective
as of January 4, 2002 between ClearWave Holdings
B.V. and the
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Borrower for provision of management services by
ClearWave to the Borrower; and
(iii) the service agreement effective as of
January 1, 2002 between ClearWave Holdings B.V.
and the Borrower for provision of the services of
ClearWave Holdings B.V. personnel to the Borrower.
"Shareholders' Equity Under means the aggregate of GAAP"
(i) the shareholders' equity of the Borrower,
calculated in accordance with Generally Accepted
Accounting Principles, and
(ii) the principal amount of all Permitted Quasi
Equity.
"Shareholder Power of means the power of attorney granted or to be
Attorney" granted by each Shareholder as required pursuant
to Section 4.01(a)(7) of each of the Senior Loan
Agreements.
"Vodafone" means at any time
(i) any Controlled Affiliate of Vodafone
Group Plc that owns directly an Economic Interest
or a Controlling Interest in the Borrower or in a
Joint Affiliate, or
(ii) if the combined Economic Interest or
Controlling Interest in the Borrower owned
(directly or indirectly) by Vodafone Group Plc or
one or more Controlled Affiliates of Vodafone
Group Plc or a Joint Affiliate is greater than the
Economic Interest and Controlling Interest of
ClearWave in the Borrower at such time, Vodafone
Group Plc and any Controlled Affiliate of Vodafone
Group Plc that owns directly an Economic Interest
or a Controlling Interest in the Borrower or in a
Joint Affiliate.
SECTION 1.02 SINGULAR/PLURAL - PERSONS - REFERENCES - HEADINGS
-------------------------------------------------
(a) In this Deed, unless the context otherwise requires, words denoting the
singular include the plural and vice versa, and words denoting persons
include corporations, partnerships, and other legal persons.
(b) In this Deed, references to a specified Article, Section or Schedule shall
be construed as a reference to that specified Article, Section or Schedule
of this Deed.
(c) In this Deed, a reference to an agreement shall be construed as a
reference to such agreement as it may be amended, varied, supplemented,
novated, or assigned from time to time.
(d) The headings and the Table of Contents are inserted for convenience of
reference only and shall not affect the interpretation of this Deed.
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ARTICLE 2 - SUBORDINATION
SECTION 2.01 SUBORDINATION IN RIGHT OF PAYMENT
(a) Subject to Section 2.01(b), the payment of all or any part of the Junior
Indebtedness shall be postponed and subordinated to the payment in full of
the Senior Indebtedness, and no payments or other distributions whatsoever
including, without limitation, any payments of principal, interest, fees,
make whole payments, mandatory redemption or voluntary retraction
payments, shall be made in respect of any part of the Junior Indebtedness
(including without limitation by way of set-off against amounts owed by a
Junior Creditor to the Borrower), and no property or assets of the
Borrower shall be applied to the purchase or other acquisition or
retirement of any part of the Junior Indebtedness, until the Senior
Indebtedness has been paid in full.
(b) Notwithstanding the provisions of Section 2.01(a) but subject to Section
2.02, the Borrower may make the following payments to a Junior Creditor on
account of the Junior Indebtedness as long as no Event of Default or
Potential Event of Default has occurred and is continuing and such
payments are otherwise permitted under the terms of the Senior Loan
Agreements and the other Financing Agreements:
(i) the dividends and other such distributions on share capital and cash
interest payable on Permitted Quasi Equity expressly permitted to be
paid to the Shareholders or holders of Permitted Quasi Equity under
Section 6.01 of each of the Senior Loan Agreements;
(ii) amounts expressly permitted to be paid to any Operating Shareholder,
or Affiliate of an Operating Shareholder pursuant to Section
6.01(b)(ii) of each of the Senior Loan Agreements, such amounts not
to exceed the limits specified in such provisions;
(iii) amounts payable to a Shareholder (other than an Operating
Shareholder) pursuant to a transaction that is in the ordinary
course of business, on ordinary commercial terms and on the basis of
arm's-length arrangements, and involves an ordinary commercial
price, provided that the Senior Lenders' prior written consent (not
to be unreasonably withheld) be obtained if the amount payable is in
excess of $250,000 in any one year or $1,000,000 in total; and
(iv) amounts of interest payable on account of Permitted High Yield Back
to Back Debt provided that at the time of such payment and
immediately thereafter the Borrower is in compliance with Section
6.02(c)(1) and (2) of each of the Senior Loan Agreements.
SECTION 2.02 SUBORDINATION IN LIQUIDATION OR REALIZATION
In the event of any (i) realization or enforcement under the Security, (ii)
dissolution, winding up, liquidation, readjustment, reorganisation or other
similar proceedings relating to the Borrower or to its property (whether
voluntary or involuntary, whether partial or complete, and whether in
bankruptcy, insolvency or receivership or upon an assignment for the benefit of
creditors, or any other marshalling of the assets and liabilities of the
Borrower), or (iii) any sale of all or substantially all of the assets of the
Borrower, or otherwise, the Senior Indebtedness shall first be paid in full
before any Junior Creditor shall be entitled to
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receive or retain any payment or distribution in respect of the Junior
Indebtedness. In order to implement the foregoing:
(a) all payments and distributions of any kind or character in respect of the
Junior Indebtedness to which any Junior Creditor would be entitled if the
Junior Indebtedness were not subordinated, or subordinated and pledged or
assigned, pursuant to this Deed and the Security Documents shall be made
directly to the Senior Lenders (on a pro rata basis in accordance with the
amounts outstanding under the Senior Loans) on account of payment or
prepayment of Senior Indebtedness;
(b) each Junior Creditor shall promptly file a claim or claims, in the form
required in such proceedings, for the full outstanding amount of the
Junior Indebtedness and shall use its best efforts to cause said claim or
claims to be approved and all payments and other distributions in respect
thereof to be made directly to the Senior Lenders (on a pro rata basis in
accordance with the amounts outstanding under the Senior Loans) on account
of payment or prepayment of Senior Indebtedness; and
(c) each Junior Creditor hereby irrevocably agrees that the Senior Lenders
may, in their sole discretion, in the name of the applicable Junior
Creditor or otherwise, demand, sue for, collect, receive and give receipt
for any and all such payments or distributions, and file, prove, and vote
or consent in any such proceedings with respect to any and all claims of
any Junior Creditor, relating to the Junior Indebtedness.
SECTION 2.03 PAYMENTS RECEIVED
In the event that any Junior Creditor receives any payment or other
distribution of any kind or character from the Borrower or from any other source
whatsoever in respect of any part of the Junior Indebtedness, other than as
expressly permitted by the terms of this Deed, such payment or other
distribution shall be received by such party in trust for the Senior Lenders and
shall be promptly turned over by such party to the Senior Lenders (on a pro rata
basis in accordance with the amounts outstanding under the Senior Loans) on the
account of payment or prepayment of Senior Indebtedness.
SECTION 2.04 APPLICATION OF PAYMENTS
All payments and distributions received by the Senior Lenders in respect of
the Junior Indebtedness, to the extent received in or converted into cash, may
be applied by the Senior Lenders first to the payment of any and all expenses,
(including legal fees and expenses) paid or incurred by the Senior Lenders in
enforcing this Deed or in endeavouring to collect or realize upon any part of
the Junior Indebtedness or any security therefor, and any balance thereof shall,
solely as between any Junior Creditor, on the one hand, and the Senior Lenders,
on the other hand, be applied by the Senior Lenders in such order of application
as the Senior Lenders may from time to time select, towards the payment or
prepayment of the Senior Indebtedness remaining unpaid; provided, however, that
as between the Borrower and its creditors, no such payments or distributions of
any kind or character shall be deemed to be payments or distributions in respect
of the Senior Indebtedness, and, notwithstanding any such payments or
distributions received by the Senior Lenders in respect of the Junior
Indebtedness and so applied by the Senior Lenders towards the payment or
prepayment of the Senior Indebtedness, any Junior Creditor shall be subrogated
to the then existing rights of the Senior Lenders in respect of the Senior
Indebtedness only at such time as this Deed shall have been terminated as
provided in Section 5.04 hereof.
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SECTION 2.05 COVENANTS REGARDING SUBORDINATION
(1) Each Junior Creditor shall, from time to time:
(a) promptly notify the Senior Lenders of the issuance of any promissory
note or other instrument to evidence the Junior Indebtedness or any
part thereof;
(b) upon request by the Senior Lenders, cause any part of the Junior
Indebtedness which is not evidenced by a promissory note or other
instrument of the Borrower to be so evidenced;
(c) cause to be clearly inserted in any promissory note or other
instrument which at any time evidences any part of the Junior
Indebtedness a statement to the effect that the payment thereof is
subordinated in accordance with the terms of this Deed;
(d) mark its books and records, and cause the Borrower to mark its books
and records, so as to clearly indicate that the Junior Indebtedness
is subordinated in accordance with the terms of this Deed;
(e) subject to Section 2.05(2), upon request by the Senior Lenders, and
as collateral security for all Senior Indebtedness, endorse without
recourse, deliver and pledge to the Senior Lenders any and all
promissory notes or other instruments evidencing the Junior
Indebtedness (other than, subject to Section 2.05(2), any Permitted
High Yield Back to Back Debt) and any guarantees thereof, and
otherwise pledge and assign to the Senior Lenders such Junior
Indebtedness and any and all security therefor and guarantees
thereof, all in a manner satisfactory to the Senior Lenders;
(f) execute such further documents or instruments and take such further
action as the Senior Lenders may reasonably from time to time
request to carry out the intent of this Deed.
(2) Each Junior Creditor holding Permitted High Yield Back to Back Debt shall,
as collateral security for all Senior Indebtedness, pledge and assign to each
Senior Lender the Permitted High Yield Back to Back Debt, all in a manner
satisfactory to each Senior Lender, if such pledge and assignment is required to
be provided to such Senior Lender in accordance with Section 3.10(f) of the EBRD
Loan Agreement (in case of EBRD), Section 3.09(f) of the EDC Loan Agreement (in
case of EDC) and Section 3.09(f) of the NIB Loan Agreement (in case of NIB), and
in accordance with Section 5.07(h) of each of the Senior Loan Agreements.
SECTION 2.06 WAIVERS BY JUNIOR CREDITORS
Each Junior Creditor hereby waives:
(a) notice of the non-payment of all or any part of the Senior Indebtedness;
and
(b) all diligence in collection or protection of or realization upon the Senior
Indebtedness or any security therefor.
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SECTION 2.07 SENIOR LENDERS' CONSENT REQUIRED FOR CERTAIN ACTIONS
Without the prior written consent of the Senior Lenders, no Junior Creditor
shall:
(a) require or accept any prepayment or accelerated payment, redemption or
retraction of any kind or any payment in respect of any part of the Junior
Indebtedness, or repayment in respect of any part of the Junior
Indebtedness, except as may be required under Section 2.02 or as permitted
pursuant to Section 2.01(b);
(b) cancel, waive, forgive, transfer or assign, or attempt to enforce or
collect, or subordinate to any indebtedness other than the Senior
Indebtedness, any part of the Junior Indebtedness or any rights in respect
thereof provided that such transfer or assignment by a Junior Creditor may
take place without the prior consent of the Senior Lender as part of and in
connection with a transfer of shares permitted pursuant to Article 4 hereof
by such Junior Creditor provided the transferee becomes a party to this
Deed in the capacity of a Junior Creditor in accordance with Section 2.11;
(c) take any collateral security for any part of the Junior Indebtedness;
(d) convert any part of the Junior Indebtedness into stock of the Borrower or
any other instrument creating an actual or contingent right to participate
in the Borrower's profits unless the Junior Creditor grants a security
interest in such shares or rights in favour of the Senior Lenders in a
manner satisfactory to the Senior Lenders in their sole discretion; or
(e) commence, or join with any other creditor in commencing, any bankruptcy,
reorganization or insolvency proceedings with respect to the Borrower.
SECTION 2.08 ACTIONS BY THE SENIOR LENDERS
The Senior Lenders may, from time to time, whether before or after any
discontinuance of this Deed, at their sole discretion, and without notice to the
other parties hereto, take any of the following actions (the taking of which
shall not affect or derogate from the rights and obligations of the parties
hereunder):
(a) retain or obtain a security interest in any property to secure any part of
the Senior Indebtedness;
(b) retain or obtain the primary or secondary obligation of any obligor or
obligors with respect to any part of the Senior Indebtedness;
(c) extend or renew for one or more periods, whether or not longer than the
original period, alter or exchange any part of the Senior Indebtedness, or
release or compromise any obligation of any nature of any obligor with
respect to any part of the Senior Indebtedness; and
(d) release their security interest in, or surrender, release or permit any
substitution or exchange for all or any part of any property securing any
part of the Senior Indebtedness, or extend or renew for one or more
periods, whether or not longer than the original period, or release,
compromise, alter or exchange any obligations of any nature of any obligor
with respect to any such property.
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SECTION 2.09 SECURITY
Without in any way limiting the effect of any other provision hereof, each
Junior Creditor hereby postpones and subordinates the priority of and rights of
enforcement and to payment under any security interest it has or may have in any
of the assets of the Borrower to the Senior Lenders' rights under their Security
in such assets in accordance with the Security Documents. Each Junior Creditor
also agrees to take no steps of any kind whatsoever to make demand under,
enforce or otherwise realize upon any security interests it has or may have in
any of the Borrower's assets until the Senior Indebtedness has been repaid in
full.
SECTION 2.10 BORROWER'S OBLIGATIONS
The Borrower agrees to be bound by the terms and provisions of this Deed,
to make no payments or distributions contrary to the terms and provisions hereof
and to do every other act and thing necessary or appropriate to carry out such
terms and provisions.
SECTION 2.11 PARTIES TO DEED
The parties hereto agree that (i) any Operating Shareholder or Affiliate
thereof or any Shareholder or Affiliate thereof, (ii) any Recognised
Telecommunications Operator which acquires shares in compliance with Section
4.01(c) or Section 4.02(b) hereof, and (iii) any Controlled Affiliate of
ClearWave's Majority Shareholder or of Vodafone, may become a party to this Deed
by executing the Deed of Undertaking of Adherence substantially in the form set
out in Annex A hereto, and that such person shall become a party to this Deed as
a Junior Creditor, Controlling Shareholder or ClearWave's Majority Shareholder,
as applicable, in accordance with the terms of such Deed of Undertaking of
Adherence, immediately upon (a) such person executing the Deed of Undertaking of
Adherence, (b) each Senior Lender (and in case of a transfer under Section 4.01
or 4.02, the transferor) countersigning the Deed of Undertaking of Adherence,
(c) each Senior Lender receiving a duly executed original of the Deed of
Undertaking of Adherence, executed by such person and countersigned by all
Senior Lenders (and in the case of a transfer under Section 4.01 or 4.02, the
transferor), and (d) the Senior Lenders receiving such corporate documents and
legal opinions as the Senior Lenders may reasonably require in connection with
the execution of such Deed of Undertaking of Adherence.
ARTICLE 3 - REPRESENTATIONS AND WARRANTIES
SECTION 3.01 REPRESENTATIONS AND WARRANTIES
Each Representing Party represents and warrants to the Senior Lenders with
respect to itself (provided that (1) only ClearWave makes the representation and
warranty under Section 3.01(f), and (2) if Vodafone Group Plc is at any time a
Controlling Shareholder it does not make and shall not be deemed to make the
representations and warranties in paragraphs (c) and (h) below)) that:
(a) it is a corporation duly organised, validly existing and in good standing
under the laws of its jurisdiction of establishment, and has all requisite
power and authority, corporate or otherwise, to execute and deliver and
perform all of its obligations under this Deed;
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(b) it has taken all necessary action to authorise the execution, delivery and
performance by it of this Deed;
(c) it has the corporate power to enter into and perform this Deed and this
Deed has been duly executed and delivered by it and constitutes legal,
valid, and binding obligations of such party enforceable against it in
accordance with its terms, subject, as to enforceability, to applicable
bankruptcy, insolvency, moratorium and similar laws of general
applicability affecting creditors' rights and the discretionary powers of
the courts to grant specific performance and injunctive relief;
(d) no governmental licenses, approvals, consents, filings or registrations are
required for the due execution, delivery or performance by such party of
this Deed, or the validity or enforceability hereof;
(e) the making of this Deed and the compliance with the terms hereof:
(i) will not result in violation of such party's Charter or any provision
contained in any law applicable to such party;
(ii) will not conflict with or result in the breach of any provision of,
or require any consent under, or result in the imposition of any Lien
under, any agreement or instrument to which such party is a party or
by which such party or any of its assets is bound; and
(iii) will not constitute a default or an event which, with the giving of
notice, the passage of time or the making of any determination, or
any combination thereof, would constitute a default under any such
agreement or instrument;
(f) each representation and warranty made by the Borrower to the Senior Lenders
in the Senior Loan Agreements is true and correct, and all material
submitted to the Senior Lenders by or on behalf of the parties hereto in
connection with the Senior Loans is true and correct, and together
accurately and completely describe the business and financial prospects of
the Borrower and do not contain any material misstatement of fact or omit
to state a material fact or any fact necessary to make the statements
contained therein not misleading;
(g) no Event of Default or Potential Event of Default has occurred and is
continuing or will occur upon the execution and delivery of this Deed (in
case of each Representing Party other than the Borrower, to the best of the
knowledge of such Representing Party) and no event has occurred and is
continuing that constitutes a default or, with the giving of notice, the
passage of time or the making of any determination, or any combination
thereof would constitute, a default (in case of each Representing Party
other than the Borrower, by such Representing Party) under this Deed and no
such event will occur upon the execution and delivery or performance of
this Deed; and
(h) there are no actions, proceedings or claims pending or, to the best
knowledge of such party, threatened against such party, the adverse
determination of which might have a materially adverse effect on its
ability to perform its obligations hereunder, or affect the validity or
enforceability hereof.
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ARTICLE 4 - SHARE RETENTION AND GENERAL COVENANTS
SECTION 4.01 TRANSFER OF EXISTING SHARES IN BORROWER - PRIVATE SHARE SALE OR
PUBLIC SECONDARY SALE
(a) PRIVATE SHARE SALE. Subject to Section 4.01(c), no Controlling
Shareholder, Controlled Affiliate of a Controlling Shareholder or Joint
Affiliate may sell, transfer or assign by a Private Share Sale an Economic
Interest or a Controlling Interest in the Borrower (either directly or
indirectly, including as a result of the sale, transfer or assignment by a
Private Share Sale of a Controlling Interest or Economic Interest in a
Controlled Affiliate of a Controlling Shareholder or as a result of the
sale, transfer or assignment by a Private Share Sale of a Controlling
Shareholder's Controlling Interest or Economic Interest in a Joint
Affiliate) unless all the following conditions are satisfied:
(i) the Borrower, prior to and upon completion of such transaction shall
be in full compliance with all of its covenants and obligations
under the Senior Loan Agreements and the other Financing Agreements,
and no Event of Default or Potential Event of Default has occurred
and is continuing or will occur as a result of such transaction;
(ii) the Controlling Shareholders (either directly or indirectly through
Controlled Affiliates or a Joint Affiliate) upon and after
completion of such transaction, shall jointly maintain:
(1) an Economic Interest in the Borrower of more than 50%;
(2) a Controlling Interest in the Borrower of more than 50%; and
(3) Management Control over the Borrower;
(iii) no Shareholder alone or in concert with other Shareholders (other
than the Controlling Shareholders, either directly or indirectly
through Controlled Affiliates or a Joint Affiliate), upon and after
completion of such transaction shall hold any interest in the
Borrower sufficient to provide special or minority shareholder
voting rights in respect of the share capital of the Borrower which
may be exercised in a manner which could block or otherwise hinder
the Management Control maintained by the Controlling Shareholders or
a Joint Affiliate over the Borrower;
(iv) the transferee to whom Xxxxxx in the Borrower are transferred, sold
or assigned (1) becomes a party to the Security Agreement Over
Shares in the capacity of a Shareholder and in accordance with the
terms of the Security Agreement Over Shares and (2) grants to the
Senior Lenders a power of attorney substantially in the form of the
Shareholder Power of Attorney; and
(v) in case of a transfer of a Controlling Interest or an Economic
Interest in the Borrower under this Section 4.01(a) to Vodafone
Group Plc or to a Controlled Affiliate of Vodafone Group Plc, or any
transfer under this Section 4.01(a) to a Controlled Affiliate of
ClearWave's Majority Shareholder, such transferee
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becomes a party to this Deed in the capacity of a Controlling
Shareholder in accordance with Section 2.11(a), (b), (c) and (d),
provided that this Section 4.01(a) does not apply to a sale, transfer or
assignment by Vodafone of a Controlling Interest or Economic Interest in a
Controlled Affiliate of Vodafone where such Controlled Affiliate does not
directly own a Controlling Interest or an Economic Interest in the
Borrower, provided that Vodafone maintains upon and after completion of
such transaction together with the Controlling Shareholders other than
Vodafone, directly or indirectly (through Controlled Affiliates or a Joint
Affiliate) (i) an Economic Interest and Controlling Interest in each case
in the Borrower of more than 50%, and (ii) Management Control of the
Borrower.
(b) PUBLIC SECONDARY SALE. Subject to Section 4.01(c), no Controlling
Shareholder, Controlled Affiliate of a Controlling Shareholder or Joint
Affiliate may sell, transfer or assign by way of a Public Secondary Sale
an Economic Interest or a Controlling Interest in the Borrower (either
directly or indirectly, including as a result of the sale, transfer or
assignment by way of a Public Secondary Sale of a Controlling Interest or
Economic Interest in a Controlled Affiliate of a Controlling Shareholder
or as a result of the sale, transfer or assignment by way of a Public
Secondary Sale of a Controlling Shareholder's Controlling Interest or
Economic Interest in a Joint Affiliate) unless all the following
conditions are satisfied:
(i) the Borrower, prior to and upon completion of such transaction shall
be in full compliance with all of its covenants and obligations
under the Senior Loan Agreements and the other Financing Agreements,
and no Event of Default or Potential Event of Default has occurred
and is continuing or will occur as a result of such transaction;
(ii) the Controlling Shareholders (either directly or indirectly through
Controlled Affiliates or a Joint Affiliate) upon and after
completion of such transaction, shall jointly maintain:
(1) an Economic Interest in the Borrower of more than 50%;
(2) a Controlling Interest in the Borrower of more than 50%; and
(3) Management Control over the Borrower;
(iii) no Shareholder alone or in concert with other Shareholders
(other than the Controlling Shareholders, either directly or
indirectly through Controlled Affiliates or a Joint
Affiliate), upon and after completion of such transaction
shall hold any interest in the Borrower sufficient to provide
special or minority shareholder voting rights in respect of
the share capital of the Borrower which may be exercised in a
manner which could block or otherwise hinder the Management
Control maintained by the Controlling Shareholders or a Joint
Affiliate over the Borrower;
(iv) the Borrower has made the mandatory prepayment, if any,
required in connection with such transaction, under Section
3.10(b) of the EBRD Loan Agreement and Section 3.09(b) of each
of the EDC Loan Agreement and the NIB Loan Agreement and upon
and after such transaction the required
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percentage of shares in the capital of the Borrower remains subject
to the Security Agreement Over Shares in accordance with the
requirements of Section 3.10(b) of the EBRD Loan Agreement and
Section 3.09(b) of each of the EDC Loan Agreement and the NIB Loan
Agreement; and
(v) in case of a transfer of a Controlling Interest or an Economic
Interest in the Borrower under this Section 4.01(b) to Vodafone
Group Plc or to a Controlled Affiliate of Vodafone Group Plc, or any
transfer under this Section 4.01(b) to a Controlled Affiliate of
ClearWave's Majority Shareholder, such transferee becomes a party to
this Deed in the capacity of a Controlling Shareholder in accordance
with Section 2.11(a), (b), (c) and (d),
provided that this Section 4.01(b) does not apply to a sale, transfer or
assignment by Vodafone of a Controlling Interest or Economic Interest in a
Controlled Affiliate of Vodafone where such Controlled Affiliate does not
directly own a Controlling Interest or an Economic Interest in the
Borrower, provided that Vodafone maintains upon and after completion of
such transaction together with the Controlling Shareholders other than
Vodafone, directly or indirectly (through Controlled Affiliates or a Joint
Affiliate) (i) an Economic Interest and Controlling Interest in each case
in the Borrower of more than 50%, and (ii) Management Control of the
Borrower.
(c) SALE TO A RECOGNISED TELECOMMUNICATIONS OPERATOR. Notwithstanding Section
4.01(a)(ii) and 4.01(b)(ii):
(i) a Controlling Shareholder, Controlled Affiliate of a Controlling
Shareholder or Joint Affiliate may sell, transfer or assign (either
directly or indirectly as a result of the sale, transfer or
assignment of a Controlling Interest or an Economic Interest in a
Controlled Affiliate of a Controlling Shareholder or as a result of
a transfer of such Controlling Shareholder's Controlling Interest
and Economic Interest in a Joint Affiliate) an Economic Interest or
Controlling Interest in the Borrower of more than 50% to a
Recognised Telecommunications Operator, and
(ii) Vodafone may sell, transfer or assign its entire Economic Interest
and Controlling Interest in the Borrower to a Recognised
Telecommunications Operator;
provided, in case of each of paragraph (i) and (ii), (provided that
paragraph (C) below shall not apply in case of a transfer by Vodafone
under paragraph (ii) at any time that Vodafone owns less than a 50%
Controlling Interest and less than a 50% Economic Interest in the
Borrower) that:
(A) the conditions set out in Section 4.01(a)(i), (iii) and (iv) are
complied with in respect of such transaction;
(B) such Recognised Telecommunications Operator becomes a party to this
Deed in the capacity of a Controlling Shareholder in accordance with
Section 2.11(a), (b), (c) and (d); and
(C) such Recognised Telecommunications Operator undertakes (alone or
together with one or more of the Controlling Shareholders) to
provide technical and
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management support to the Borrower and agrees to consult with the
Senior Lenders in respect of the arrangements as to the management
of the Borrower so that the Borrower is managed by a team with
recognised experience in the mobile telecommunications business and
in the emerging market environment.
SECTION 4.02 TRANSFER OF EXISTING SHARES IN CLEARWAVE - PRIVATE SHARE SALE OR
PUBLIC SECONDARY SALE
(a) PRIVATE SHARE SALE OR PUBLIC SECONDARY SALE. Subject to Section 4.02(b),
ClearWave's Majority Shareholder may not sell, transfer or assign (either
by a Private Share Sale or by a Public Secondary Sale) any Economic
Interest or Controlling Interest in ClearWave (either directly or
indirectly, including as a result of a sale, transfer or assignment
(either by a Private Share Sale or by a Public Secondary Sale) of an
Economic Interest or Controlling Interest in a Controlled Affiliate of
ClearWave's Majority Shareholder) unless all the following conditions are
satisfied:
(i) the Borrower, prior to and upon completion of such transaction shall
be in full compliance with all of its covenants and obligations
under the Financing Agreements, and no Event of Default or Potential
Event of Default has occurred and is continuing or will occur as a
result of such transaction;
(ii) ClearWave's Majority Shareholder (either directly or indirectly
through Controlled Affiliates), upon and after completion of such
transaction, maintains:
(1) an Economic Interest in ClearWave of more than 50%;
(2) a Controlling Interest in ClearWave of more than 50%; and
(3) Management Control over ClearWave;
(iii) ClearWave's Majority Shareholder and Vodafone (either directly or
indirectly through Controlled Affiliates or a Joint Affiliate), upon
and after completion of such transaction, shall jointly maintain:
(1) an Economic Interest in the Borrower of more than 50%;
(2) a Controlling Interest in the Borrower of more than 50%; and
(3) Management Control over the Borrower; and
(iv) no shareholder alone or in concert with other shareholders in
ClearWave (other than ClearWave's Majority Shareholder, either
directly or indirectly through Controlled Affiliates) upon and after
completion of such transaction, shall hold any interest in ClearWave
sufficient to provide special or minority shareholder voting rights
in respect of the share capital of ClearWave which may be exercised
in a manner which could block or otherwise hinder the Management
Control maintained by ClearWave's Majority Shareholder over
ClearWave.
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(b) SALE TO A RECOGNISED TELECOMMUNICATIONS OPERATOR. Notwithstanding Sections
4.02(a)(ii) and 4.02(a)(iii), ClearWave's Majority Shareholder or a
Controlled Affiliate of ClearWave's Majority Shareholder may sell,
transfer or assign (either directly or indirectly as a result of the sale,
transfer or assignment of an Economic Interest or Controlling Interest in
a Controlled Affiliate of ClearWave's Majority Shareholder) an Economic
Interest or Controlling Interest in ClearWave of more than 50% to a
Recognised Telecommunications Operator or to Vodafone, provided that:
(i) the conditions set out in Section 4.02(a)(i) and (iv) are complied
with in respect of such transaction;
(ii) such Recognised Telecommunications Operator or Vodafone becomes a
party to this Deed in the capacity of ClearWave's Majority
Shareholder in accordance with Section 2.11(a), (b), (c) and (d);
and
(iii) such Recognised Telecommunications Operator undertakes to provide
technical and management support to the Borrower and agrees to
consult with the Senior Lenders in respect of the arrangements as to
the management of the Borrower so that the Borrower is managed by a
team with recognised experience in the mobile telecommunications
business and in the emerging market environment; for the avoidance
of doubt, this sub-clause (iii) is not applicable in the event that
Vodafone is the transferee under this Section 4.02(b).
SECTION 4.03 ISSUANCE OF NEW SHARES BY WAY OF PUBLIC OFFERING
(a) BORROWER. The Borrower shall not be entitled to issue and sell new shares
in its capital pursuant to a Public Offering unless all the following
conditions are satisfied:
(i) the Borrower, prior to and upon completion of such transaction shall
be in full compliance with all of its covenants and obligations
under the Senior Loan Agreements and the other Financing Agreements,
and no Event of Default or Potential Event of Default has occurred
and is continuing or will occur as a result of such transaction;
(ii) the Controlling Shareholders (either directly or indirectly through
Controlled Affiliates or a Joint Affiliate) upon and after
completion of such transaction, shall jointly maintain:
(1) an Economic Interest in the Borrower of more than 50%;
(2) a Controlling Interest in the Borrower of more than 50%; and
(3) Management Control over the Borrower;
(iii) no Shareholder alone or in concert with other Shareholders (other
than the Controlling Shareholders, either directly or indirectly
through Controlled Affiliates or a Joint Affiliate), upon and after
completion of such transaction shall hold any interest in the
Borrower sufficient to provide special or minority shareholder
voting rights in respect of the share capital of the Borrower which
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may be exercised in a manner which could block or otherwise hinder
the Management Control maintained by the Controlling Shareholders or
a Joint Affiliate over the Borrower; and
(iv) the Borrower has made or makes contemporaneously with such Public
Offering, the mandatory prepayment if any, required to be made in
respect of such transaction under Section 3.10(b) of the EBRD Loan
Agreement and Section 3.09(b) of each of the EDC Loan Agreement and
the NIB Loan Agreement and upon and after such transaction the
required percentage of shares in the capital of the Borrower remains
subject to the Security Agreement Over Shares in accordance with the
requirements of Section 3.10(b) of the EBRD Loan Agreement and
Section 3.09(b) of each of the EDC Loan Agreement and the NIB Loan
Agreement.
(b) CLEARWAVE. ClearWave shall not be entitled to issue and sell new shares in
its capital pursuant to a Public Offering unless all the following
conditions are satisfied:
(i) the Borrower, prior to and upon completion of such transaction shall
be in full compliance with all of its covenants and obligations
under the Financing Agreements, and no Event of Default or Potential
Event of Default has occurred and is continuing or will occur as a
result of such transaction;
(ii) ClearWave's Majority Shareholder (either directly or indirectly
through Controlled Affiliates), upon and after completion of such
transaction, maintains:
(1) an Economic Interest in ClearWave of more than 50%;
(2) a Controlling Interest in ClearWave of more than 50%; and
(3) Management Control over ClearWave;
(iii) ClearWave's Majority Shareholder and Vodafone (either directly or
indirectly through Controlled Affiliates or a Joint Affiliate), upon
and after completion of such transaction, shall jointly maintain:
(1) an Economic Interest in the Borrower of more than 50%;
(2) a Controlling Interest in the Borrower of more than 50%; and
(3) Management Control over the Borrower; and
(iv) no shareholder alone or in concert with other shareholders in
ClearWave (other than ClearWave's Majority Shareholder, either
directly or indirectly through Controlled Affiliates) upon and after
completion of such transaction, shall hold any interest in ClearWave
sufficient to provide special or minority shareholder voting rights
in respect of the share capital of ClearWave which may be exercised
in a manner which could block or otherwise hinder the Management
Control maintained by ClearWave's Majority Shareholder over
ClearWave;
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(c) CONTROLLED AFFILIATE/JOINT AFFILIATE.
(i) A Controlled Affiliate of a Controlling Shareholder (which Controlled
Affiliate owns, directly or indirectly, a Controlling Interest or an
Economic Interest in the Borrower), or a Joint Affiliate, shall not
be entitled to issue and sell new shares in its capital pursuant to a
Public Offering unless all the conditions set out in Section
4.03(a)(i), (ii) and (iii) are complied with prior to, upon and after
completion of such issuance and sale of shares, provided that this
Section 4.03(c)(i) does not apply to the issue and sale of new shares
pursuant to a Public Offering by a Controlled Affiliate of Vodafone
where such Controlled Affiliate does not directly own a Controlling
Interest or an Economic Interest in the Borrower, provided that
Vodafone maintains upon and after completion of such Public Offering
together with the Controlling Shareholders other than Vodafone,
directly or indirectly (through Controlled Affiliates or a Joint
Affiliate) (i) an Economic Interest and Controlling Interest in each
case in the Borrower of more than 50%, and (ii) Management Control of
the Borrower.
(ii) A Controlled Affiliate of ClearWave's Majority Shareholder (which
Controlled Affiliate owns, directly or indirectly, a Controlling
Interest or an Economic Interest in the Borrower), shall not be
entitled to issue and sell new shares in its capital pursuant to a
Public Offering unless all the conditions set out in Section
4.03(b)(i), (ii), (iii) and (iv) are complied with prior to, upon and
after completion of such issuance and sale of shares.
SECTION 4.04 REPURCHASE OF SHARES BY BORROWER
The Borrower may not repurchase any shares in the share capital of the
Borrower unless:
(a) no Event of Default or Potential Event of Default shall have occurred and
be continuing immediately prior to, or would occur as a result of, such
transaction;
(b) such shares are purchased in accordance with Romanian law;
(c) such shares, upon their transfer to the Borrower and until their
cancellation, are and remain subject to the Security under the Security
Agreement Over Shares;
(d) such shares remain owned by the Borrower until such time as they are
cancelled in accordance with Romanian law;
(e) any payment by the Borrower in connection with such purchase of shares is a
Distribution which is permitted pursuant to Section 6.01 of each Senior
Loan Agreement; and
(f) the Borrower offers to make such purchase on a pro rata basis among the
Shareholders based on the percentage shareholding in the Borrower held by
each Shareholder, and after both such purchase and such cancellation the
conditions set out in Section 4.01(a)(ii) hereof and Section 5.07(e) of
each of the Senior Loan Agreements are complied with.
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SECTION 4.05 RELEASE OF SECURITY OVER SHARES
In the event of
(a) a sale, transfer or assignment by way of a Public Secondary Sale of shares
in the capital of the Borrower in compliance with Section 4.01(b) which
shares are subject to the Security Agreement Over Shares, or
(b) cancellation by the Borrower of shares in the capital of the Borrower
repurchased by the Borrower in compliance with Section 4.04,
(the shares in the capital of the Borrower so transferred or so repurchased and
cancelled by the Borrower referred to in this Section 4.05 as the "Relevant
Shares"), the Senior Lenders shall promptly upon receipt of a notice and request
from the Borrower or the Shareholder transferring such Relevant Shares (referred
to in this Section 4.05 as the "Transferor"), release the Security under the
Security Agreement Over Shares in respect of such Relevant Shares (and shall
enter into such amendments to the Security Agreement Over Shares, and shall
cooperate with the Borrower in making registrations in the Electronic Archive in
each case as are necessary to effect such release) provided that:
(i) the Borrower, prior to and upon completion of such sale, transfer,
assignment or cancellation, as applicable, shall be in full
compliance with all of its covenants and obligations under the
Senior Loan Agreements and the other Financing Agreements and no
Event of Default or Potential Event of Default has occurred and is
continuing or will occur as a result of such transaction;
(ii) prior to such release, the Borrower makes the mandatory prepayment
required pursuant to Section 3.10(b) of the EBRD Loan Agreement and
Section 3.09(b) of each of the EDC Loan Agreement and the NIB Loan
Agreement in connection with such transaction, if any, such that
upon and after such release the Borrower is in compliance with
Section 3.10(b) of the EBRD Loan Agreement and Section 3.09(b) of
each of the EDC Loan Agreement and the NIB Loan Agreement and the
required percentage of shares in the capital of the Borrower remains
subject to the Security Agreement Over Shares as required pursuant
to Section 3.10(b) of the EBRD Loan Agreement and Section 3.09(b) of
each of the EDC Loan Agreement and the NIB Loan Agreement;
(iii) after giving effect to such release, more than 50% of the shares in
the capital of the Borrower (and votes associated therewith) remain
subject to the Security under the Security Agreement Over Shares;
(iv) to the extent necessary, the Transferor provides funds to the
Borrower, or causes funds to be provided to the Borrower, to ensure
that the Borrower has sufficient funds to comply with its
obligations under subparagraph (ii) above; and
(v) the Transferor shall have sold, transferred or assigned prior to the
sale, transfer or assignment of the Relevant Shares all shares it
owns in the capital of the Borrower which are not subject to the
Security (if any).
-23-
SECTION 4.06 OPERATING SHAREHOLDERS' GENERAL COVENANTS
(a) Unless the Senior Lenders otherwise agree in writing, each Operating
Shareholder and, in respect to Section 4.06(a)(ii) only, each Controlling
Shareholder only, covenants and agrees as follows:
(i) each such party shall promptly notify the Senior Lender of any event
that constitutes, or which with the lapse of time or the giving of
notice or both would constitute, a default by such party hereunder
and of any event that has or might have a materially adverse effect
on such party's ability to perform its obligations hereunder;
(ii) each Controlling Shareholder (other than any Controlled Affiliate of
Vodafone Group Plc) shall furnish to the Senior Lenders on or before
the 120th day after the end of each of its financial years, its
balance sheet as at the close of such financial year and its income
statement and statement of changes in financial position for such
financial year, prepared in accordance with generally accepted
accounting principles of the jurisdiction in which such Controlling
Shareholder is incorporated, consistently applied, certified by a
firm of independent accountants as fairly presenting the financial
condition of such party as at the close of such financial year and
the results of its operations for such financial year; and
(iii) each such party shall furnish to the Senior Lenders from time to
time such other statements and information as the Senior Lenders may
reasonably request, provided in the case of Vodafone Group Plc or
any Controlled Affiliate thereof, that such statements and
information are publicly available and are in the possession or
control of Vodafone Group Plc or any of its Controlled Affiliates.
(b) Vodafone Europe (and, if it is a Controlling Shareholder, Vodafone Group
Plc) shall cause each person included in the definition of "Vodafone" to
become a party to this Deed in its capacity as a Controlling Shareholder
in accordance with Section 2.11(a), (b), (c) and (d).
(c) Vodafone Group Plc, if it is a Controlling Shareholder, covenants and
agrees that it shall cause all Controlled Affiliates of Vodafone Group
Plc, including those which own an Economic Interest or a Controlling
Interest in the Borrower only indirectly, to comply with all obligations
of Controlling Shareholders hereunder and to take all steps required under
the terms hereof to be taken by Controlling Shareholders and refrain from
taking any steps prohibited hereunder.
(d) Each party hereto which is a Shareholder agrees that it shall not permit
any amendment or modification to the Borrower's Charter which would have
an adverse effect on the ability of the Senior Lenders to enforce their
rights under the Security or on the Security.
- 24 -
SECTION 4.07 SEVERAL OBLIGATIONS
The obligations of the parties hereto shall be several.
ARTICLE 5 - MISCELLANEOUS
SECTION 5.01 NOTICES
Any notice, request or other communication to be given or made under
this Deed shall be in writing. Such notice, request or other communication shall
be deemed to have been duly given or made when it shall be delivered by hand,
airmail, telex or telefax to the party to which it is required or permitted to
be given or made at such party's address specified below or at such other
address as such party shall have designated by notice to the party giving or
making such notice, request or other communication. Vodafone Technical and
Vodafone Europe expressly agree and acknowledge that any obligation or
requirement hereunder to provide notice to Vodafone Technical shall be satisfied
by delivery of such notice to Vodafone Europe alone.
For the Borrower:
MobiFon S.A.
City Business Center
0 Xxxxx Xxxxxx Xxxxxx
Xxxxxxx Xx00, Xxxxxx 0
Xxxxxxxxx, Xxxxxxx
Attention: Chief Financial Officer
Fax: 000-00-00-000-0000
For TIWI:
Telesystem International Wireless Inc.
0000 Xxxxxxxxxxx Xxxxxx Xxxx, 00xx Xxxxx
Xxxxxxxx, XX, Xxxxxx, X0X 0X0
Attention: General Counsel
Fax: 000-000-0000
-25-
For TIWC:
Telesystem International Wireless Corporation N.V.
World Trade Centre
Xxxxxxxxxxxxxx 000
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Attention: General Counsel
Fax: 000-00-00-00-00-000
For Vodafone Europe:
Vodafone Europe B.V.
Rivium Quadrant
173-177 15th Floor
2909 XX Xxxxxxx aan den IJssel
The Netherlands
Attention: Managing Director
Fax: 000-00-00-000-0000
With a copy to:
Vodafone Group Services Limited
The Courtyard
0-0 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxx XX0 0XX
Xxxxxxx
Attention: Company Secretary
Fax: 000-00-0-0000-000-000
For ClearWave:
ClearWave N.V.
Xxxxxxxxxxxxxx 000
0000 XX, Xxxxxxxxx
Xxx Xxxxxxxxxxx
Attention: Managing Director
Fax: 000-00-00-000-0000
- 26 -
For ClearWave Holdings:
ClearWave Holdings B.V.
Xxxxxxxxxxxxxx 000
0000 XX, Xxxxxxxxx
Xxx Xxxxxxxxxxx
Attention: Managing Director
Fax: 000-00-00-000-0000
For Vodafone Technical Services:
Vodafone Technical Services
0000 Xxx Xxxx
00xx Xxxxx
Xxxxxx Xxxxx, Xxxxxxxxxx
94597 USA
Attention: Manager, Contracts & Governance
Fax: x0 000 000 0000
For EBRD:
European Bank for Reconstruction and Development
Xxx Xxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
Attention: Operation Administration Unit
Fax: 000-00-00-0000-0000
Telex: 8812161
Answerback: EBRD L G
For EDC:
Export Development Canada
000 X'Xxxxxx Xxxxxx
Xxxxxx, Xxxxxx X0X 0X0
Attention: Loans Operation Team
Fax: 000-000-0000
-27-
For NIB:
Nordic Investment Bank
P.O. Box 249
FIN-00171 Helsinki
Finland
Attention: Xxxxx Xxxxxxxx/Xxx Xxxxxxxxx
Telex: 124704 nibfi
Fax: 000 0 000 0000
SECTION 5.02 ENGLISH LANGUAGE
All documents to be furnished or communications to be given or made by a
Representing Party under this Deed shall be in the English language or, if in
another language, shall be accompanied by a translation into English certified
by such Representing Party which translation shall be the governing version
among the parties hereto.
SECTION 5.03 RIGHTS, REMEDIES AND WAIVER
(a) The rights and remedies of the Senior Lenders in relation to any
misrepresentations or breach of warranty on the part of a Representing
Party shall not be prejudiced by any investigation by or on behalf of the
Senior Lenders into the affairs of any Representing Party, by the
execution or the performance of this Deed or by any other act or thing
which may be done by or on behalf of the Senior Lenders in connection with
this Deed and which might, apart from this Section, prejudice such rights
or remedies.
(b) No course of dealing and no delay in exercising, or omission to exercise,
any right, power or remedy accruing to the Senior Lenders upon any default
under this Deed or any other agreement shall impair any such right, power
or remedy or be construed to be a waiver thereof or an acquiescence
therein. No single or partial exercise of any right, power or remedy shall
preclude any other or further exercise thereof or the exercise of any
other right, power or remedy. No action of the Senior Lenders in respect
of any such default, or acquiescence by it therein, shall affect or impair
any right, power or remedy of the Senior Lenders in respect of any other
default.
(c) The rights and remedies provided in this Deed are cumulative and not
exclusive of any other rights or remedies, whether provided by applicable
law or otherwise.
(d) The Senior Lenders may proceed to protect and enforce their rights
hereunder in any court or other tribunal by an action at law, suit in
equity or other appropriate proceedings, whether for damages, the specific
performance of any term hereof or otherwise, or in aid of the exercise of
any power granted hereby or by law. Each Representing Party hereby agrees
to pay to the Senior Lenders on demand such amount in Dollars as shall be
sufficient to reimburse the Senior Lenders for its costs and expenses of
any such action or remedies, including without limitation, reasonable fees
and expenses of legal counsel.
- 28 -
SECTION 5.04 TERM OF DEED
This Deed shall continue in force until all Senior Indebtedness
shall have been fully paid in accordance with the provisions of the Senior Loan
Agreements and the other Financing Agreements.
SECTION 5.05 GOVERNING LAW
This Deed shall be governed by and construed in accordance with the
substantive laws of
England and Wales.
SECTION 5.06 ARBITRATION AND JURISDICTION
(a) Any dispute, controversy or claim arising out of or relating to this
Deed, or the breach, termination or invalidity hereof, shall be
settled by arbitration in accordance with the UNCITRAL Arbitration
Rules as at present in force. There shall be one arbitrator and the
appointing authority shall be the London Court of International
Arbitration. The seat and place of arbitration shall be London, England
and the English language shall be used throughout the arbitral
proceedings. The parties hereby waive any rights under the Arbitration
Act 1996 or otherwise to appeal any arbitration award to, or to seek
determination of a preliminary point of law by, the courts of England.
The arbitral tribunal shall not be authorised to take or provide, and
the parties shall not be authorised to seek from any judicial
authority, any interim measures of protection or pre-award relief
against any of the Senior Lenders, any provisions of UNCITRAL
Arbitration Rules notwithstanding. The arbitral tribunal shall have
authority to consider and include in any proceeding, decision or award
any further dispute properly brought before it by any of the Senior
Lenders or the other parties hereto insofar as such dispute arises out of
any Financing Agreement, but, subject to the foregoing, no other
parties or other disputes shall be included in, or consolidated with,
the arbitral proceedings. In any arbitral proceeding, the certificate
of any Senior Lender as to any amount due to such Senior Lender under any
Financing Agreement shall be prima facie evidence of such amount.
(b) Notwithstanding Section 5.06(a), this Deed and the other Financing
Agreements, and any rights of the Senior Lenders arising out of or
relating to this Deed or any other Financing Agreement, may, at the
option of the Senior Lenders, be enforced by the Senior Lenders in the
courts of Romania or in any other courts having jurisdiction. For the
benefit of the Senior Lenders, the parties other than the Senior
Lenders hereby irrevocably submit to the non-exclusive jurisdiction
of the courts of England with respect to any dispute, controversy or
claim arising out of or relating to this Deed or any other Financing
Agreement, or the breach, termination or invalidity hereof or thereof.
Each party other than the Senior Lenders hereby irrevocably
designates, appoints and empowers. The Law Debenture Corporate Services
Limited at its registered office (being, on the date hereof, at 000 Xxxx
Xxxxxx, 0xx Xxxxx, Xxxxxx, XX0X 0XX, Xxxxxxx) to act as its authorised
agent to receive service of process and any other legal summons in
England for purposes of any legal action or proceeding brought by the
Senior Lenders in respect of this Deed or any other Financing
Agreement. Each party other than the Senior Lenders hereby irrevocably
consents to the service of process or any other legal summons out of such
courts by mailing copies thereof by registered airmail postage prepaid to
its address specified herein. Each party other than the Senior Lenders
covenants and agrees that, so long as it has
-29-
any obligations under this Deed, it shall maintain a duly appointed agent
to receive service of process and any other legal summons in England for
purposes of any legal action or proceeding brought by a Senior Lender in
respect of any Financing Agreement and shall keep the Senior Lenders
advised of the identity and location of such agent. Nothing herein shall
affect the right of the Senior Lenders to commence legal actions or
proceedings against any of the parties hereto in any manner authorised by
the laws of any relevant jurisdiction. The commencement by a Senior Lender
of legal actions or proceedings in one or more jurisdictions shall not
preclude such Senior Lender from commencing legal actions or proceedings
in any other jurisdiction, whether concurrently or not.
(c) Each party other than the Senior Lenders irrevocably waives any objection
it may now or hereafter have on any grounds whatsoever to the laying of
venue of any legal action or proceeding and any claim it may now or
hereafter have that any such legal action or proceeding has been brought
in an inconvenient forum.
SECTION 5.07 PRIVILEGES AND IMMUNITIES OF THE SENIOR LENDERS
Nothing in this Deed shall be construed as a waiver, renunciation or other
modification of any immunities, privileges or exemptions of any of the Senior
Lenders accorded, as applicable, under the Agreement Establishing the European
Bank for Reconstruction and Development, the Agreement among Denmark, Finland,
Iceland, Norway and Sweden regarding Nordic Investment Bank dated October 23,
1998, the Agreement for Financial Cooperation between the Romanian Government
and NIB dated August 26, 1998, the Canada-Romania Income Tax Convention, other
international convention or any applicable law.
SECTION 5.08 WAIVER OF SOVEREIGN IMMUNITY
Each party other than the Senior Lenders represents and warrants that this
Deed and the transactions contemplated hereunder are commercial rather than
public or governmental acts and that no such party is entitled to claim immunity
from legal proceedings with respect to itself or any of its assets on the
grounds of sovereignty or otherwise under any law or in any jurisdiction where
an action may be brought for the enforcement of any of the obligations arising
under or relating to this Deed. To the extent that any party other than the
Senior Lenders or any of its assets has or hereafter may acquire any right to
immunity from set-off, legal proceedings, attachment prior to judgement, other
attachment or execution of judgement on the grounds of sovereignty or otherwise,
each such party hereby irrevocably waives such rights to immunity in respect of
its obligations arising under or relating to this Deed.
SECTION 5.09 ENTIRE AGREEMENT; AMENDMENTS AND WAIVER
This Deed and the documents referred to herein constitute the entire
obligation of the parties hereto with respect to the subject matter hereof and
shall supersede any prior expressions of intent or understanding with respect to
this transaction. Any amendment to, waiver by the Senior Lenders of any of the
terms or conditions of, or consent given by the Senior Lenders under, this Deed
(including, without limitation, this Section 5.09) shall be in writing, signed
by the Senior Lenders and, in the case of any amendment, by all parties hereto.
- 30 -
SECTION 5.10 SUCCESSORS AND ASSIGNS; THIRD PARTY RIGHTS
(a) This Deed shall bind and inure to the benefit of the respective
successors, assignees and transferees of the parties hereto, except that
no party other than the Senior Lenders may assign or otherwise transfer
all or any part of its rights or obligations under this Deed without the
prior written consent of the Senior Lenders.
(b) Each Senior Lender may sell, transfer, assign or otherwise dispose of all
or part of its rights or obligations under this Deed and the other
Financing Agreements to any assignee permitted under its Senior Loan
Agreement without the consent of any of the other parties hereto. The
Senior Lenders may disclose such information relating to this transaction
(including, without limitation, copies of any Financing Agreements and
Project Agreements) as the applicable Senior Lender deems appropriate in
connection with any proposed Participation or any other proposed sale,
transfer, assignment or other disposal contemplated by this Section 5.10.
(c) Except as provided in Section 5.10(a) or 5.10(b), a person who is not a
party to this Deed may not enforce any of its terms under the Contracts
(Rights of Third Parties) Act 1999. Notwithstanding any term of this Deed,
the consent of any third party is not required for any variation
(including any release or compromise of any liability under) or
termination of this Deed.
(d) Without limiting the foregoing, any Senior Lender may, from time to time,
without notice to the other parties hereto, assign or transfer any part
or all of the Senior Indebtedness owing to such Senior Lender, or any
interest therein, and, notwithstanding any such assignment or transfer
or any subsequent assignment or transfer thereof, such Senior
Indebtedness shall be and remain Senior Indebtedness for the purposes of
this Deed and every immediate and successive assignee or transferee
of any of the Senior Indebtedness or of any interest therein shall, to
the extent of the interest of such assignee or transferee in the Senior
Indebtedness, be entitled to the benefits of this Deed to the same extent
as if such assignee or transferee were such Senior Lender; provided,
however, that unless such Senior Lender otherwise consents in writing,
such Senior Lender shall have an unimpaired right, prior and superior
to that of any such assignee or transferee, to enforce this Deed for
the benefit of such Senior Lender, as to that part of the Senior
Indebtedness which such Senior Lender has not assigned or transferred.
SECTION 5.11 COUNTERPARTS
This Deed may be executed in several counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
Deed.
-31-
IN WITNESS WHEREOF, the parties hereto, acting through their duly authorized
representatives, have caused this Deed to be signed as a deed in their
respective names as of the date first above written.
MOBIFON S.A. VODAFONE EUROPE B.V.
By: (signed) By: (signed)
___________________________________ __________________________
Name: Xxxxx X. Xxxxxxx Name:
Title: Senior Vice President and Chief Title:
Financial Officer
TELESYSTEM TELESYSTEM
INTERNATIONAL WIRELESS INC. INTERNATIONAL WIRELESS
CORPORATION N.V.
By: (signed) By: (signed)
___________________________________ __________________________
Name: Xxxxxxxx Xxxx Name: Xxxxxxxx xxx Xxxxxxxxxx
Title: Attorney-in-fact Title: Managing Director
CLEARWAVE N.V. CLEARWAVE HOLDINGS B.V.
By: (signed) By: (signed)
___________________________________ __________________________
Name: Xxxxxxxx xxx Xxxxxxxxxx Name: Xxxxxxxx xxx Xxxxxxxxxx
Title: Managing Director Title: Managing Director
VODAFONE TECHNICAL EXPORT DEVELOPMENT
SERVICES CANADA
By: (signed) By: (signed)
___________________________________ __________________________
Name: Name: Xxxxx Xxxxxx
Title: Title: Financial Services Manager
By: (signed)
__________________________
Name: Xxxxxx Xxxxxx
Title: Financial Services Manager
NORDIC INVESTMENT BANK EUROPEAN BANK FOR
RECONSTRUCTION AND DEVELOPMENT
By: (signed) By: (signed)
___________________________________ __________________________
Name: Xxxxx Xxxxxxxx Name: Xxxxxx Xxxxxxx
Title: Vice President Title: Principal Banker
By: (signed)
___________________________________
Name: Xxxx Xxxxxx
Title: Vice President
ANNEX A
FORM OF DEED OF UNDERTAKING OF ADHERENCE
To: MOBIFON S.A.
TELESYSTEM INTERNATIONAL WIRELESS INC.
TELESYSTEM INTERNATIONAL WIRELESS CORPORATION N.V.
VODAFONE EUROPE B.V.
CLEARWAVE N.V.
CLEARWAVE HOLDINGS B.V.
VODAFONE TECHNICAL SERVICES
EXPORT DEVELOPMENT CANADA
NORDIC INVESTMENT BANK
EUROPEAN BANK FOR RECONSTRUCTION AND DEVELOPMENT
[ALSO LIST ANY OTHER PERSONS THAT BECOME PARTIES]
Dated: [______________]
RE:
SHARE RETENTION AND SUBORDINATION DEED BETWEEN THE ABOVE NAMED PARTIES
DATED 27 AUGUST 2002 (SUCH DEED, AS AMENDED AND SUPPLEMENTED, THE "
SHARE
RETENTION AND SUBORDINATION DEED")
For good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the undersigned agrees and undertakes as follows (terms
defined in the
Share Retention and Subordination Deed, unless the context
otherwise requires, have the same meanings in this Deed of Undertaking of
Adherence as in the
Share Retention and Subordination Deed):
1. [In the case of undertaking by a transferee under 4.01(c) or 4.02(b) or a
transferee under 4.01(a) or 4.01(b) which is a Controlled Affiliate of Vodafone
or of Clearwave's Majority Shareholder:] [describe transaction and instrument
pursuant to which the undersigned has acquired shares and has become a
Controlling Shareholder or ClearWave's Majority Shareholder.]
2. [In the case of undertaking by a Junior Creditor:] [describe transaction
and instrument pursuant to which the undersigned has become a Junior Creditor,
and describe the relevant Junior Indebtedness including if applicable the
relevant Permitted Quasi Equity or Permitted High Yield Back to Back Debt.]
3. The undersigned acknowledges having received a complete fully executed
copy of the
Share Retention and Subordination Deed.
4. The undersigned fully and unconditionally adheres to, and agrees to be
bound by, the terms and conditions of the
Share Retention and Subordination Deed
in its capacity as a [a Junior Creditor/Controlling Shareholder/ClearWave's
Majority Shareholder] and to become a party thereto in all respects as a [Junior
Creditor/Controlling Shareholder/ClearWave's Majority Shareholder] thereunder,
to the same extent as if it had been a signatory thereto as at its date of
execution and agrees that each of you shall be entitled to exercise your rights
against the undersigned in accordance with the terms and conditions of the
Share
Retention and Subordination Deed to the same extent as if the undersigned had
been a signatory thereto in such capacity [capacities] at its date of execution.
- 2 -
5. [In case of a Junior Creditor:] Without limiting the foregoing, the
undersigned hereby confirms its obligations under Article 2 of the
Share
Retention and Subordination Deed in respect of the [identify Junior Indebtedness
in connection with which such Junior Creditor entered into this Deed] and all
other Junior Indebtedness owing to the undersigned.
6. [In case of a Controlling Shareholder or of ClearWave's Majority
Shareholder:] without limiting the foregoing, the undersigned agrees that from
and after the date hereof it assumes all rights and obligations of, and shall be
bound, as a party to the Deed, by all obligations of, [_________________]
[identify transferor], under the Share Retention and Subordination Deed.
7. [In case of a transfer of a transferor's entire Economic Interest and
Controlling Interest (direct or indirect) in the Borrower or in ClearWave under
Section 4.01 or 4.02:] [_________________] [identify the [transferor] shall be
released and discharged from its obligations or liabilities under this Deed
other than any liabilities arising prior to the date hereof.
8. The undersigned hereby represents and warrants to the Senior Lenders as of
the date hereof with respect to itself in accordance with the terms set out in
Section 3.01 of the Share Retention and Subordination Deed.
9. The undersigned hereby advises the other parties to the Share Retention
and Subordination Deed that its co-ordinates for notices, for purposes of
Section 5.01 of the Share Retention and Subordination Deed, are as follows:
[_______________________]
10. This Deed of Undertaking of Adherence is supplemental to the Share
Retention and Subordination Deed.
11. This Deed of Undertaking of Adherence shall be governed by and construed
in accordance with the laws of England.
Signed as a deed by:
[_______________________]
________________________________________
Name:
Title:
-3-
Acknowledged by the Senior Lenders in accordance with Section 2.11 as of the
above-noted date:
EUROPEAN BANK FOR
RECONSTRUCTION AND
DEVELOPMENT
Per: _________________________________________
Name:
Title:
NORDIC INVESTMENT BANK
Per: _________________________________________
Name:
Title:
EXPORT DEVELOPMENT CANADA
Per: _________________________________________
Name:
Title:
[__________________________________]
[In the case of a transfer under
Section 4.01 or 4.02: the Transferor]
