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Exhibit 10.23
EXECUTION COPY
PTC INTERNATIONAL FINANCE II S.A.
(a private company with limited liability
incorporated under the laws of Luxembourg)
POLSKA TELEFONIA CYFROWA SP. Z O.O.
(a company incorporated as a limited liability company
under the laws of the Republic of Poland)
(EURO) 200,000,000 10 7/8 SENIOR SUBORDINATED GUARANTEED NOTES DUE 2008
PURCHASE AGREEMENT
DATED: MAY 2, 2001
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PTC INTERNATIONAL FINANCE II S.A.
(a private company with limited liability
incorporated under the laws of Luxembourg)
POLSKA TELEFONIA CYFROWA SP. Z O.O.
(a company incorporated as a limited liability company
under the laws of the Republic of Poland)
(euro) 200,000,000 10 7/8 Senior Subordinated Guaranteed Notes due 2008
PURCHASE AGREEMENT
May 2, 2001
To: Deutsche Bank AG London
Winchester House
0 Xxxxx Xxxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Dresdner Bank AG London Branch
Xxxxxxxxx Xxxxx
0 Xxxx Xxxx
Xxxxxx
XX0X 0XX
Ladies and Gentlemen:
PTC International Finance II S.A., a company with limited liability
incorporated under the laws of Luxembourg (the "Issuer"), and Polska Telefonia
Cyfrowa Sp. z o.o., a limited liability company under the laws of the Republic
of Poland (the "Guarantor"), pursuant to this agreement (the "Agreement"), each
hereby confirm their agreement with Deutsche Bank AG London and Dresdner Bank AG
London Branch (collectively, the "Initial Purchasers", which term shall also
include any initial purchaser substituted as hereinafter provided in Section 11
hereof), with respect to the issue and sale by the Issuer and the purchase by
the Initial Purchasers (the "Offering"), acting severally and not jointly, of
the respective principal amounts set forth in Schedule A hereto of (euro)
200,000,000 aggregate principal amount of the Issuer's 10 7/8% Senior
Subordinated Guaranteed Notes due 2008 (the "Notes"). The Notes are to be issued
pursuant to an indenture dated as of May 8, 2001 (the "Indenture") among the
Issuer, the Guarantor and State Street Bank and Trust Company, as trustee (the
"Trustee"). The obligations of the Issuer under the Indenture and the Notes will
be fully and unconditionally guaranteed pursuant to a guarantee (the
"Guarantee") made by the Guarantor. Notes issued in book-entry form pursuant to
Rule 144A (as defined below) and Regulation S (as defined below) will be
deposited with the Trustee as custodian for, and registered in the name of Cede
& Company as nominee of, The Depository Trust Company ("DTC") pursuant to a
letter agreement to be dated as of the Closing
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Time (as defined in Section 2(b) hereof) (the "DTC Agreement"), among the
Issuer, the Guarantor, the Trustee and DTC. Notes issued in book-entry form
pursuant to Regulation S will be deposited with the Trustee as common depositary
for, and registered in the name of a nominee of, Xxxxxx Guaranty Trust Company
of New York, Brussels office, as operator of the Euroclear System ("Euroclear")
and Clearstream Banking, societe anonyme, Luxembourg ("Clearstream Luxembourg").
The holders of Notes will be entitled to the benefits of a Registration
Rights Agreement, in substantially the form attached hereto as Exhibit A with
such changes as shall be agreed to by the parties hereto (the "Registration
Rights Agreement"), pursuant to which the Issuer and the Guarantor will agree to
file a registration statement (the "Registration Statement") with the United
States Securities and Exchange Commission (the "Commission") registering the
Notes or the Exchange Notes referred to in the Registration Rights Agreement
under the U.S. Securities Act of 1933, as amended (the "Securities Act").
The Issuer and the Guarantor understand that the Initial Purchasers
propose to make an offering of the Notes on the terms and in the manner set
forth herein and in reliance upon an exemption from the registration
requirements of the Securities Act, and agree that the Initial Purchasers may
resell, subject to the conditions set forth herein, all or a portion of the
Notes to purchasers ("Subsequent Purchasers") at any time on or after the date
of this Agreement. The Notes are to be offered and sold to the Initial
Purchasers without being registered under the Securities Act, in reliance upon
exemptions therefrom. Pursuant to the terms of the Notes and the Indenture,
investors that acquire Notes may only resell or otherwise transfer such Notes if
such Notes are hereafter registered under the Securities Act or if an exemption
from the registration requirements of the Securities Act is available (including
the exemption afforded by Rule 144A ("Rule 144A") or Regulation S ("Regulation
S") of the rules and regulations promulgated under the Securities Act by the
Commission).
The Issuer and the Guarantor have prepared and delivered to each
Initial Purchaser copies of a preliminary offering memorandum dated April 12,
2001(the "Preliminary Offering Memorandum") and have prepared and will deliver
to each Initial Purchaser promptly upon its being completed copies of a final
offering memorandum dated May 2, 2001 (the "Final Offering Memorandum"), each
for use by such Initial Purchaser in connection with its solicitation of
purchases of, or Offering of, the Notes. "Offering Memorandum" means, with
respect to any date or time referred to in this Agreement, the most recent
offering memorandum (whether the Preliminary Offering Memorandum or the Final
Offering Memorandum, or any amendment or supplement to either such document),
which has been prepared and delivered by the Issuer and the Guarantor to the
Initial Purchasers in connection with their solicitation of purchases of, or the
Offering of, the Notes.
SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) Representations and Warranties of the Issuer and the
Guarantor.
Each of the Issuer and the Guarantor jointly and severally
represents and warrants to each Initial Purchaser as of the date hereof
and as of the Closing Time referred to in Section 2(b) hereof, and
agrees with each Initial Purchaser, as follows:
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(i) Similar Offerings.
The Guarantor and its affiliates, as such term is defined in Rule
501(b) of Regulation D under the Securities Act ("Affiliates"), have not,
directly or indirectly, solicited any offer to buy, sell or offered to sell or
otherwise negotiated in respect of, and will not, directly or indirectly,
solicit any offer to buy or offer to sell or otherwise negotiate in respect of,
in the United States or to any United States citizen or resident, any security
which is or would be integrated with the sale of the Notes in a manner that
would require the Notes to be registered under the Securities Act.
(ii) Offering Memorandum.
The Offering Memorandum does not, and at the Closing Time will not,
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided that this representation, warranty and agreement shall not
apply to statements in or omissions from the Offering Memorandum made in
reliance upon and in conformity with information furnished to the Issuer or the
Guarantor in writing by any Initial Purchaser expressly for use in the Offering
Memorandum.
(iii) Independent Accountants.
The accountants who certified the financial statements and supporting
schedules thereto included in the Offering Memorandum are independent certified
public accountants with respect to the Guarantor and the Issuer (PTC
International Finance (Holding) B.V., PTC International Finance B.V. and the
Issuer each being a "Subsidiary" and collectively the "Subsidiaries") within the
meaning of the Securities Act and the applicable published regulations
thereunder.
(iv) Financial Statements.
The financial statements, together with the related schedules and
notes, included in the Offering Memorandum present fairly the financial position
of the Guarantor and its Subsidiaries at the dates indicated and the statement
of operations, stockholders' equity and cash flows of the Guarantor and its
consolidated subsidiaries for the periods specified and have been prepared in
conformity with International Accounting Standards ("IAS") applied on a
consistent basis throughout the periods involved. The financial information
included in the Offering Memorandum under the heading "Summary - Summary
Financial Data" and in Annex A included in the Offering Memorandum under the
headings "Item 3. Key Information - Statement of Operations Data" and "Item 5.
Operating and Financial Review and Prospects" present fairly the information
shown therein and have (other than "Subscribers at End of Period" and "Monthly
Churn Rate") been compiled on a basis consistent with that of the audited
financial statements included in the Offering Memorandum.
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(v) No Material Adverse Change in Business.
Since the respective dates as of which information is given in the
Offering Memorandum, except as otherwise stated therein, (A) there has been no
material adverse change in the condition, financial or otherwise, in the
earnings, business affairs or business prospects of the Guarantor and its
Subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business (a "Material Adverse Effect"), (B) there have been
no transactions entered into by the Guarantor or any of its Subsidiaries, other
than those arising in the ordinary course of business, which are material with
respect to the Guarantor and its Subsidiaries considered as one enterprise and
(C) there has been no dividend or distribution of any kind declared, paid or
made by either the Issuer or the Guarantor on any class of its capital stock.
(vi) Incorporation.
The Issuer has been duly incorporated and is validly existing as a
legal entity in the form of a private company with limited liability ("societe
anonyme") under the laws of Luxembourg, with full corporate power and authority
to own its material properties, to conduct its business as described in the
Offering Memorandum and to enter into and perform its obligations under this
Agreement, the Registration Rights Agreement, the Indenture and the Notes. The
Guarantor has been duly organized and is validly existing as a limited liability
company ("spolka z ograniczona odpowiedzialnoscia") under the laws of the
Republic of Poland, with full power and authority to own its material properties
and conduct its business as described in the Offering Memorandum and to enter
into and perform its obligations under this Agreement, the Registration Rights
Agreement, the Indenture and the Guarantee. Neither the Issuer nor the Guarantor
is in liquidation, bankruptcy, administration or receivership nor has any
petition been presented for the winding up of the Issuer or the Guarantor.
(vii) Good Standing.
The Issuer is duly qualified as a corporation to transact business,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or to be in good standing would
not result in a Material Adverse Effect. The Guarantor is duly qualified as a
corporation to transact business and is in good standing in every jurisdiction
in which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure to so
qualify or to be in good standing would not result in a Material Adverse Effect.
The Issuer has no subsidiaries, and is the only subsidiary of PTC International
Finance (Holding) B.V. PTC International Finance (Holding) B.V. and PTC
International Finance B.V. are the only direct subsidiaries of the Guarantor.
The Guarantor has no subsidiaries other than PTC International Finance (Holding)
B.V., PTC International Finance B.V. and the Issuer.
(viii) Capitalization.
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The authorized, issued and outstanding capital stock of the Issuer as
of December 31, 2000 is as set forth in the Offering Memorandum under the
heading "The Issuer", the authorized, issued and outstanding capital stock of
the Guarantor as of December 31, 2000 is as set forth in the Offering Memorandum
under the "Actual" column of the heading "Capitalization". The shares of issued
and outstanding capital stock of each of the Issuer and the Guarantor have been
duly authorized and validly issued and are fully paid and non-assessable. None
of the outstanding shares of capital stock of the Issuer or the Guarantor was
issued by them in violation of the preemptive or other similar rights of any
securityholder of the Issuer or the Guarantor. There are no outstanding
securities convertible into or exchangeable for, or warrants, rights or options
to purchase from the Issuer or the Guarantor, shares of common stock or any
other class of capital stock. Except as otherwise disclosed in the Offering
Memorandum, all of the issued shares of each Subsidiary are owned directly or
indirectly by the Guarantor, free and clear of all liens, encumbrances, equities
or claims, other than any liens, encumbrances, equities or claims granted to
certain lenders under the Bank Credit Facilities (as defined in the Offering
Memorandum).
(ix) Authorization of Agreement.
This Agreement has been duly authorized, executed and delivered by each
of the Issuer and the Guarantor.
(x) Authorization of the Indenture.
The Indenture has been duly authorized by each of the Issuer and the
Guarantor and at the Closing Time, will have been duly executed and delivered by
each of the Issuer and the Guarantor and (assuming the due authorization,
execution and delivery in accordance with its terms by the Trustee) will
constitute a valid and binding agreement of each of the Issuer and the
Guarantor, enforceable against each of them in accordance with its terms, except
as may be limited by bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization, moratorium or similar
laws affecting creditors' rights generally and is subject to general principles
of equity (regardless of whether enforcement is considered in a proceeding in
equity or at law).
(xi) Authorization of Notes.
The Notes have been duly authorized by the Issuer and, at the Closing
Time, will have been duly executed by the Issuer and, when authenticated, issued
and delivered in the manner provided for in the Indenture, and delivered against
payment of the purchase price therefor as provided in this Agreement, will be
duly and validly issued and will constitute legal, valid and binding obligations
of the Issuer, enforceable against the Issuer in accordance with their terms,
except as may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting creditors' rights generally and is subject
to general principles of equity (regardless of whether enforcement is considered
in a proceeding in equity or at law), and will be in the form contemplated by,
and entitled to the benefits of, the Indenture and the Registration Rights
Agreement.
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(xii) Authorization of the Registration Rights Agreement.
The Registration Rights Agreement has been duly authorized and, at the
Closing Time, will have been duly executed and delivered by each of the Issuer
and the Guarantor and will constitute a legal, valid and binding agreement of
each of the Issuer and the Guarantor, enforceable against each of the Issuer and
the Guarantor in accordance with its terms, except as may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws affecting
creditors' rights generally and is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity or at
law) and except that any rights to indemnification and contribution may be
limited by U.S. Federal securities laws and U.S. public policy considerations.
(xiii) Authorization of the Guarantee.
The Guarantee has been duly authorized and, at the Closing Time, will
have been duly executed and delivered by the Guarantor and will constitute a
legal, valid and binding agreement of the Guarantor, enforceable against the
Guarantor in accordance with its terms, except as may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting creditors'
rights generally and is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law).
(xiv) Description of the Indenture, the Notes, the Registration
Rights Agreement and the Guarantee.
The Indenture, the Notes, the Registration Rights Agreement and the
Guarantee will conform in all material respects to the respective statements
relating thereto contained in the Offering Memorandum and will be in
substantially the respective forms previously delivered to the Initial
Purchasers.
(xv) Absence of Defaults and Conflicts.
Except as otherwise set forth in the Offering Memorandum, the (A) issuance and
sale of the Notes to the Initial Purchasers by the Issuer pursuant to this
Agreement, (B) execution, delivery and performance of the Registration Rights
Agreement by each of the Issuer and the Guarantor, (C) execution, delivery and
performance of this Agreement and the Indenture by each of the Issuer and the
Guarantor, (D) the execution, delivery and performance of the Guarantee by the
Guarantor, (E) compliance by each of the Issuer and the Guarantor with all the
provisions hereof and thereof and (F) consummation of the transactions
contemplated hereby and thereby by each of the Issuer and the Guarantor do not
require any consent, authorization, approval or order of, or filing or
registration with or notice to, any court, regulatory body, central bank,
administrative agency or other governmental body (except as may be required
under blue sky laws of the various states of the United States and those
consents, authorizations, approvals, orders, filing, registrations or notices
which have been obtained or made, as the case may be, or may be obtained or
made, as the case may be, pursuant to the Registration Rights Agreement) and do
not conflict with, or constitute a breach or a violation of any of the terms or
provisions of, or a
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default under, the memorandum or articles of association or other constitutive
documents of the Issuer or the Guarantor (other than, solely with respect to
internal consents or authorizations, a breach or violation of the articles of
association of the Guarantor that would not have a Material Adverse Effect), or
any material debenture, note or other evidence of indebtedness or any material
indenture, agreement, or other instrument to which they may be party or by which
they may be bound or to which any of their respective properties is subject or
any law, statute, rule, regulation, judgment or decree applicable to any of
them.
(xvi) Absence of Labor Dispute.
No labor dispute with the employees of the Guarantor or the
Subsidiaries exists or, to the knowledge of the Guarantor or the
Subsidiaries, is imminent and neither the Guarantor nor any of the
Subsidiaries is aware of any existing or imminent labor disturbance by
the employees of any of their principal suppliers, manufacturers,
customers or contractors, which, in either case, may reasonably be
expected to result in a Material Adverse Effect. Other than agreements
with individual employees, there are no general or individual labor
agreements or arrangements of the Guarantor or the Subsidiaries and
there has been no proposal to establish any such agreement or
arrangement, which could reasonably be expected to result in a Material
Adverse Effect.
(xvii) Absence of Proceedings.
There is no action, suit, proceeding, inquiry or investigation
before or by any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of the Issuer or the
Guarantor, threatened, against or affecting the Guarantor or any of the
Subsidiaries, or to which the Guarantor or any of the Subsidiaries is a
party, which might reasonably be expected to result in a Material
Adverse Effect, or which might reasonably be expected to adversely
affect the properties or assets of the Guarantor or any of the
Subsidiaries in a manner that is material and adverse to the Guarantor
and the Subsidiaries considered as one enterprise or the consummation
of this Agreement, the Indenture, the Notes, the Registration Rights
Agreement and the Guarantee or the performance by the Issuer or the
Guarantor of their obligations hereunder or thereunder. The aggregate
of all pending legal or governmental proceedings to which the Guarantor
or any Subsidiary is a party or of which any of their respective
properties or assets is the subject which are not described in the
Offering Memorandum, including ordinary routine litigation incidental
to the business, could not reasonably be expected to result in a
Material Adverse Effect.
(xviii) Possession of Intellectual Property.
The Guarantor and the Subsidiaries own or possess, or can
acquire on reasonable terms, adequate patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks, trade names or other
intellectual property (collectively, "Intellectual Property") necessary
to carry on the business now operated by them, and neither the
Guarantor nor any of the Subsidiaries has received any notice or is
otherwise aware of any infringement of or conflict with
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asserted rights of others with respect to any Intellectual Property or
of any facts or circumstances which would render any Intellectual
Property invalid or inadequate to protect the interest of the Guarantor
or any of the Subsidiaries therein, and which infringement or conflict
(if the subject of any unfavorable decision, ruling or finding) or
invalidity or inadequacy, singly or in the aggregate, would result in a
Material Adverse Effect.
(xix) Absence of Further Requirements.
Except for permits that have been obtained, no filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required (A) for the performance by the Issuer
or the Guarantor of their respective obligations hereunder, in
connection with the offering, issuance or sale of the Notes hereunder
or the consummation of the Offering or any of the other transactions
contemplated by this Agreement, the Indenture, the Registration Rights
Agreement and the Guarantee or the Offering Memorandum or (B) to permit
the Issuer or the Guarantor to (1) effect payments of principal of and
premium and interest on the Notes and, if issued, the New Securities
referred to in the Registration Rights Agreement or (2) perform their
other obligations under the Indenture.
(xx) Possession of Licenses and Permits.
The Guarantor and the Subsidiaries possess such permits,
licenses, approvals, concessions, consents and other authorizations
(including, without limitation, all permits required for the operation
of the business of the Guarantor and the Subsidiaries by the Republic
of Poland) (collectively, "Governmental Licenses") issued by the
appropriate federal, state, local or foreign regulatory agencies or
bodies, other governmental authorities or self regulatory organizations
necessary (A) to conduct the business now operated by them and (B) to
comply with the terms of the UMTS license granted to the Guarantor on
December 20, 2000 by the Polish Ministry of Communications, in each
case, except for such Governmental Licenses the failure of which to
obtain, maintain or possess by the Guarantor and its Subsidiaries would
not have a Material Adverse Effect. The Guarantor and the Subsidiaries
are in compliance with the terms and conditions of all Governmental
Licenses, except where the failure to so comply would not, singly or in
the aggregate, have a Material Adverse Effect. All of the Governmental
Licenses are valid and in full force and effect, except when the
invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not have a
Material Adverse Effect. Neither the Guarantor nor any of the
Subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in a Material Adverse Effect.
(xxi) Title to Property.
The Guarantor and the Subsidiaries each have good and
marketable title to all real property owned by the Guarantor or the
Subsidiaries, as the case may be, and good title to all other
properties owned by them, in each case, free and clear of all
mortgages, pledges,
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liens, security interests, claims, restrictions or encumbrances of any
kind except such as (A) are described in the Offering Memorandum or (B)
do not, singly or in the aggregate, materially affect the value of such
property and do not interfere with the use made and proposed to be made
of such property by the Guarantor or any of the Subsidiaries. All of
the leases and subleases material to the business of the Guarantor and
the Subsidiaries, considered as one enterprise, and under which the
Guarantor or any of the Subsidiaries holds properties described in the
Offering Memorandum, are in full force and effect, and neither the
Guarantor nor any of the Subsidiaries has any notice of any material
claim of any sort that has been asserted by anyone adverse to the
rights of the Guarantor or any of the Subsidiaries under any of the
leases or subleases mentioned above, or affecting or questioning the
rights of such Guarantor or any Subsidiary to the continued possession
of the leased or subleased premises under any such lease or sublease.
(xxii) No Withholding Tax.
Except as disclosed in the Offering Memorandum, under current
laws and regulations (and interpretations thereof) of the Republic of
Poland and Luxembourg and any political subdivision thereof, all
payments due or made on the Guarantee to holders of Notes or Exchange
Notes (as defined in the Indenture) who are non-residents of the
Republic of Poland or Luxembourg and do not have a branch, agency or
permanent establishment nor carry on any trade in the Republic of
Poland or Luxembourg to which the holding of Notes or Exchange Notes is
attributable, will not be subject to income, withholding or other taxes
under laws and regulations of the Republic of Poland or Luxembourg or
any political subdivision or taxing authority thereof or therein and
will otherwise be free and clear of any other tax, duty, withholding or
deduction in the Republic of Poland and Luxembourg or any political
subdivision or taxing authority thereof or therein or without the
necessity of obtaining any governmental authorization in the Republic
of Poland and Luxembourg or any political subdivision or taxing
authority thereof or therein.
(xxiii) Tax Returns.
All income and franchise tax returns of the Guarantor and any
of the Subsidiaries, required to be filed by the applicable laws of
Luxembourg, The Netherlands, Poland and any other jurisdiction in which
the Guarantor and its Subsidiaries conduct their business have been
filed and all material taxes shown by such returns or otherwise
assessed, which are due and payable, have been paid, except assessments
against which appeals have been or will be promptly taken and as to
which adequate reserves have been provided. Each of the Guarantor and
the Subsidiaries has filed all other tax returns that are required to
have been filed by it pursuant to applicable law except insofar as the
failure to file such returns could not have a Material Adverse Effect,
and has paid all taxes due pursuant to such returns or pursuant to any
assessment received by the Guarantor and the Subsidiaries, except for
such taxes, if any, as are being contested in good faith and by
appropriate proceedings and as to which adequate reserves have been
provided. The charges, accruals and reserves on the books of the
Guarantor or any of the Subsidiaries, as the case may be, in respect of
any income and corporation tax liability for any years not finally
determined are adequate to meet any assessments or re-assessments for
additional income
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tax for any years not finally determined, except to the extent of any
inadequacy that would not have a Material Adverse Effect.
(xxiv) Investment Company Act.
Neither the Issuer nor the Guarantor is, and upon the issuance
and sale of the Notes and the issuance of the Guarantee as herein
contemplated and the application of the net proceeds from the issuance
and sale of the Notes as described in the Offering Memorandum will not
be, an "investment company" as such terms are defined in the Investment
Company Act of 1940, as amended (the "Investment Company Act").
(xxv) PFIC Status.
Neither the Issuer nor the Guarantor believes that it is, nor
do either of them expect to become, (A) passive foreign investment
companies within the meaning of Section 1296 of the Internal Revenue
Code of 1986, as amended (the "Code") or (B) foreign personal holding
companies within the meaning of Section 552 of the Code.
(xxvi) Internal Controls.
The Issuer and the Guarantor maintain a system of internal
accounting controls sufficient to provide reasonable assurances that
(A) transactions are executed in accordance with management's general
or specific authorization; (B) transactions are recorded as necessary
to permit preparation of financial statements in conformity with IAS
and to maintain accountability of assets; (C) access to assets is
permitted only in accordance with management's general or specific
authorization; and (D) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(xxvii) No Additional Documents.
There are no contracts or documents of a character that would
be required to be described in the Offering Memorandum, if it were a
prospectus filed as part of a registration statement on Form F-1 under
the Securities Act, that are not described as would be so required. All
such contracts so described in the Offering Memorandum to which the
Guarantor or any of the Subsidiaries is party have been duly
authorized, executed and delivered by the Guarantor or the relevant
Subsidiary and constitute valid and binding agreements of the Guarantor
or such Subsidiary.
(xxviii) Insurance.
The Guarantor and the Subsidiaries have insurance covering
their respective properties, operations, personnel and businesses,
which insurance the Guarantor believes to be appropriate and is in
amounts and insures against such losses or risks as are customary in
the industry in which the Guarantor and the Subsidiaries operate. None
of the Guarantor or any of the Subsidiaries has received notice from
any insurer or agent of such insurer that capital improvements or other
expenditures are required or necessary to
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be made in order to continue such insurance except such notices as are
not reasonably likely to have a Material Adverse Effect.
(xxix) Taxes on Subsidiary Indebtedness.
Except as described in the Offering Memorandum, as of the date
hereof, no material income, stamp, issue, transfer or other taxes or
levies, imposts, deductions, charges, compulsory loans or withholdings
whatsoever are or will be, under applicable law in the Republic of
Poland or under applicable law in Luxembourg, imposed, assessed, levied
or collected by the Republic of Poland or Luxembourg, or any political
subdivision or taxing authority thereof or therein or on or in respect
of principal, interest, premiums, penalties or other amounts payable
under any indebtedness of the Guarantor held by the Issuer pursuant to
the Guarantee and any intercompany loan or in connection with the (1)
the execution and delivery of this Agreement, the Registration Rights
Agreement, the Indenture, the Notes or the Guarantee, (2) the
consummation of the transactions contemplated hereby and thereby or (3)
the sale and delivery by the Issuer of the Notes to the Initial
Purchasers.
(xxx) Rule 144A Eligibility.
The Notes are eligible for resale pursuant to Rule 144A under
the Securities Act and will not be, at the Closing Time, of the same
class as securities held on a national securities exchange registered
under Section 6 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") or quoted in a U.S. automated inter-dealer quotation
system.
(xxxi) General Solicitation.
None of the Issuer, its Affiliates or any person acting on its
or their behalf (other than the Initial Purchasers and their respective
Affiliates and any person acting on their behalf, as to whom the Issuer
makes no representation) has engaged, in connection with the offering
of the Notes, in any form of general solicitation or general
advertising within the meaning of Rule 502(c) of the Securities Act or
in any manner involving a public offering within the meaning of Section
4(2) of the Securities Act.
(xxxii) No Substantial U.S. Market Interest or Directed
Selling Efforts.
With respect to those Notes sold in reliance on Regulation S,
(A) neither the Issuer nor the Guarantor reasonably believes there is
"substantial U.S. market interest" (as such term is defined in
Regulation S) in the Notes at the commencement of the Offering, (B)
none of the Issuer, the Guarantor, their Affiliates or any person
acting on its or their behalf (other than the Initial Purchasers and
their respective Affiliates and anyone acting on their behalf, as to
whom the Issuer and the Guarantor make no representation) has engaged
in any directed selling efforts (as that term is defined in Regulation
S) in the United States and (C) each of the Issuer and its Affiliates
and any person acting on its or their behalf (other than the Initial
Purchasers and their respective Affiliates and anyone acting on their
behalf, as to whom the Issuer makes no representation) has complied
with the offering restrictions requirement of Regulation S.
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(xxxiii) No Registration Required.
Subject to compliance by the Initial Purchasers with the
representations and warranties set forth in Section 2 hereof and the
procedures set forth in Section 6 hereof, it is not necessary in
connection with the offer, sale and delivery of the Notes to the
Initial Purchasers, and to each Subsequent Purchaser in the manner
contemplated by this Agreement and the Offering Memorandum to register
the Notes under the Securities Act or to qualify the Indenture under
the Trust Indenture Act of 1939, as amended.
(xxxiv) No Stabilization.
Except as described in the Offering Memorandum, none of the
Issuer, the Guarantor or any of their officers, directors or
controlling persons has taken or will take, directly or indirectly, any
action designed to, or that might be reasonably expected to, cause or
result in stabilization or manipulation of the price of the Notes to
facilitate the sale or resale of the Notes.
(xxxv) Forward-Looking Statement.
No forward-looking statement (within the meaning of Section
27A of the Securities Act and Section 21E of the Exchange Act)
contained in the Preliminary Offering Memorandum or the Final Offering
Memorandum has been made or reaffirmed without a reasonable basis or
has been disclosed other than in good faith.
(xxxvi) Luxembourg Listing.
Application has been made to list the Notes on the Luxembourg
Stock Exchange and, in connection therewith, the Issuer has caused to
be prepared and submitted to the Luxembourg Stock Exchange a listing
application with respect to the Notes (the "Listing Application"). The
Listing Application (A) complies in all material respects with the
requirements of the Luxembourg Stock Exchange and (B) has been
submitted to the Luxembourg Stock Exchange. There is no requirement of
the Luxembourg Stock Exchange to deliver any document other than the
Offering Memorandum to prospective purchasers or purchasers of Notes
from the Initial Purchasers in connection with the offer and sale by
the Initial Purchasers of the Notes.
(xxxvii) Submission to Jurisdiction.
Each of the Issuer and the Guarantor has the power to submit,
and pursuant to this Agreement, the Indenture, the Registration Rights
Agreement, the Guarantee and the Notes, as applicable, has legally,
validly, effectively and irrevocably submitted to the non-exclusive
jurisdiction of the New York courts and has validly and irrevocably
appointed CT Corporation System as its authorized agent for the purpose
described in Section 14.09 of the Indenture.
14
(xxxviii) No Liquidation.
No proceedings have been commenced for the purposes of, and no
judgment has been rendered for, the liquidation, bankruptcy or
winding-up of the Guarantor or any of the Subsidiaries.
(xxxix) Offering Material.
The Issuer has not distributed and, prior to the later of (A)
the Closing Time and (B) completion of the distribution of the Notes,
will not distribute any offering material in connection with the
offering and sale of the Notes other than the Final Offering
Memorandum, the Preliminary Offering Memorandum or other materials, if
any, permitted by the Securities Act and approved by the Initial
Purchasers.
(xl) No Public Offering in Luxembourg.
The Notes are not subject to a public offering in Luxembourg.
(b) Officer's Certificates.
Any certificate signed by any Management or Supervisory Board member,
officer or authorized representative of the Guarantor or any of the Subsidiaries
delivered to the Initial Purchasers or to counsel for the Initial Purchasers
shall be deemed a representation and warranty by the Issuer or the Guarantor, as
the case may be, to each Initial Purchaser as to the matters covered thereby.
SECTION 2. SALE AND DELIVERY TO INITIAL PURCHASERS; CLOSING.
(a) On the basis of the representations and warranties herein contained
and subject to the terms and conditions herein set forth, the Issuer agrees to
sell to each Initial Purchaser, severally and not jointly, and each Initial
Purchaser, severally and not jointly, agrees to purchase from the Issuer, at the
price set forth in Schedule B, the aggregate principal amount of Notes set forth
in Schedule A opposite the name of such Initial Purchasers plus any additional
principal amount of Notes which such Initial Purchasers may become obligated to
purchase pursuant to the provisions of Section 11 hereof.
(b) Payment of the purchase price for the Notes shall be made at the
offices of Shearman & Sterling, 0 Xxxxxx Xxxxxx, Xxxxxx XX0X 0XX, Xxxxxx
Xxxxxxx, or at such other place as shall be agreed upon by the Initial
Purchasers, the Issuer and the Guarantor, at 9:00 A.M. (London time) on the
fifth business day after the date hereof (unless postponed in accordance with
the provisions of Section 11), or such other time not later than ten business
days after such date as shall be agreed upon by the Initial Purchasers, the
Issuer and the Guarantor (such time and date of payment and delivery being
herein called the "Closing Time").
Payment shall be made to the Issuer by wire transfer of immediately
available funds to a bank account designated by the Issuer or the Guarantor,
against delivery to the Initial Purchaser for the respective accounts of the
Initial Purchasers of certificates for the Notes to be purchased by them. Each
of Deutsche Bank AG London and Dresdner Bank AG London
15
Branch, individually and not as representative of the Initial Purchasers, may
(but shall not be obligated to) make payment of the purchase price for the Notes
to be purchased by any Initial Purchaser whose funds have not been received by
the Closing Time, but such payment shall not relieve such Initial Purchaser from
its obligations hereunder.
Qualified Institutional Buyer. Each Initial Purchaser hereby represents
and warrants to, and agrees with, the Issuer that it is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act (a
"Qualified Institutional Buyer").
Denominations; Registration. Certificates for the Notes shall be in
such denominations ((euro) 1,000 principal amount at maturity or integral
multiples thereof), and registered in such names as the Initial Purchasers may
request in writing at least two full business days before the Closing Time. The
Notes, which may be in temporary form, will be made available for examination
and packaging by the Initial Purchasers in The City of London not later than
5:00 P.M. on the last business day prior to the Closing Time.
SECTION 3. COVENANTS OF THE ISSUER AND THE GUARANTOR.
Each of the Issuer and the Guarantor covenants with each Initial
Purchaser as follows:
(a) Offering Memorandum.
The Issuer or the Guarantor, as promptly as possible, will furnish to
each Initial Purchaser, without charge, such number of copies of the Preliminary
Offering Memorandum, the Final Offering Memorandum and any amendments and
supplements thereto as such Initial Purchaser may reasonably request.
(b) Notice and Effect of Material Events.
The Issuer or the Guarantor will immediately notify each Initial
Purchaser, and confirm such notice in writing, of (i) any filing made by the
Issuer or the Guarantor of information relating to the Offering with any
securities exchange or any other regulatory body in the United States,
Luxembourg or any other jurisdiction and (ii) prior to the completion of the
placement of the Notes by the Initial Purchasers, of any material changes in or
affecting the earnings or business affairs or business prospects of the
Guarantor or any of the Subsidiaries which (x) make any statement in the
Offering Memorandum false or misleading in any material respect or (y) are not
disclosed in the Offering Memorandum. In such event or if during such time any
event shall occur as a result of which it is necessary, in the opinion of any of
the Issuer, Guarantor, the Initial Purchasers or legal counsel for the Issuer or
the Guarantor or for the Initial Purchasers, to amend or supplement the Offering
Memorandum in order that the Offering Memorandum not include any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein not misleading in the light of the circumstances
then existing or, if, in the opinion of the Initial Purchasers' legal counsel or
legal counsel for the Issuer or the Guarantor, it is necessary to amend or
supplement the Offering Memorandum to comply with applicable law, the Issuer
will forthwith amend or supplement, at its own expense, the Offering Memorandum
by preparing and furnishing to each Initial Purchaser an amendment or amendments
of, or a supplement or supplements to, the Offering Memorandum (in form and
16
substance satisfactory in the reasonable opinion of counsel for the Initial
Purchasers) so that, as so amended or supplemented, the Offering Memorandum will
not include an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances then existing, not misleading or so that such Offering Memorandum
as so amended or supplemented will comply with applicable law, as the case may
be, and furnish each Initial Purchaser such number of copies as such Initial
Purchaser may reasonably request and each Initial Purchaser shall forthwith
furnish such amendment or supplement to each party to which it has sold or
intends to sell the Notes.
(c) Amendment to Offering Memorandum and Supplements.
The Issuer or the Guarantor will advise each Initial Purchaser as soon
as possible of any proposal to amend or supplement the Offering Memorandum and
will not effect such amendment without the Initial Purchasers' prior written
consent. Neither the consent of the Initial Purchasers, nor the Initial
Purchasers' delivery of any such amendment or supplement, shall constitute a
waiver of any of the conditions set forth in Section 5 hereof.
(d) Qualification of Notes for Offer and Sale.
The Issuer and the Guarantor will use their reasonable efforts, in
cooperation with the Initial Purchasers, to qualify the Notes for offering and
sale under the applicable securities laws of such countries, states of the
United States and other jurisdictions as the Initial Purchasers may designate
and will maintain such qualifications in effect as long as required for the sale
of the Notes. The Issuer and the Guarantor will file such statements and reports
as may be required by the laws of each jurisdiction in which the Notes have been
qualified as above. The Issuer and the Guarantor will also supply such
information as is necessary for the determination of the legality of the Notes
for investment under the laws of such jurisdictions as the Initial Purchasers
may reasonably request.
(e) No General Solicitation.
Except in connection with the Exchange Notes as contemplated in the
Registration Rights Agreement, neither the Issuer nor the Guarantor (i) will
solicit or to cause any of their Affiliates or any person acting on its or their
behalf (other than the Initial Purchasers and their respective Affiliates and
any person acting on their behalf, as to whom the Issuer and the Guarantor make
no representation) to solicit any offer to buy or offer to sell the Notes by
means of any form of general solicitation or general advertising (within the
meaning of Rule 502(c) of the Securities Act) or in any manner involving a
public offering within the meaning of Section 4(2) of the Securities Act and
(ii) will not, and will not request their Affiliates to, offer, sell or solicit
offers to buy or otherwise negotiate in respect of any Security (as defined in
the Securities Act) the offering of which security could be integrated with the
sale of the Notes in a manner that would require the registration of any of the
Notes under the Securities Act.
(f) Rating of Notes.
The Issuer and the Guarantor shall take all reasonable action necessary
to enable Standard & Poors Ratings Services, a division of The XxXxxx-Xxxx
Companies, Inc. ("S&P"),
17
and Xxxxx'x Investors Service, Inc. ("Moody's") to provide their respective
credit ratings of the Notes.
(g) Luxembourg Stock Exchange Approval.
The Issuer and the Guarantor will use their best efforts to effect the
listing of the Notes and the Exchange Securities on the Luxembourg Stock
Exchange.
(h) DTC and Euroclear.
The Issuer and the Guarantor will cooperate with the Initial Purchasers
and use their best efforts to permit the Notes to be eligible for clearance and
settlement through the facilities of DTC and/or Euroclear and/or Clearstream,
Luxembourg, as the case may be.
(i) Investment Company.
Neither the Issuer nor the Guarantor will become an open-end investment
company, a unit investment trust or a face-amount certificate company required
to be registered under the Investment Company Act, and neither will any of them
become a closed-end investment company required to be registered, but not
registered, thereunder.
(j) Use of Proceeds.
The Issuer and the Guarantor will each use the net proceeds received by
it from the sale of the Notes in the manner specified in the Offering Memorandum
under "Use of Proceeds."
(k) Directed Selling Efforts.
Neither the Issuer nor the Guarantor will engage nor cause any of their
Affiliates or any person acting on its or their behalf (other than the Initial
Purchaser, and any of their Affiliates, or any person acting on their behalf) to
engage in any directed selling efforts (as such term is defined under Regulation
S) in the United States with respect to the Notes, and the Issuer and the
Guarantor will comply and request such Affiliate and such other person acting on
its or their behalf (except as aforesaid) to comply with the offering
restrictions requirement of Regulation S.
(l) Press Releases.
Neither the Issuer nor the Guarantor will issue any press release or
other communication directly or indirectly or hold any press conference with
respect to the Guarantor or any of the Subsidiaries, the condition, financial or
otherwise (except for routine oral marketing communications in the ordinary
course of business and consistent with past practice), or the earnings, business
affairs or business prospects of the Guarantor or any of the Subsidiaries,
without the prior consent of the Initial Purchasers, unless (i) in the period
beginning prior to the Closing Time and for 45 days subsequent to the Closing
Time, in the judgment of the Guarantor or the Issuer and its respective legal
counsel, and after notification to the Initial Purchasers, such press release or
communication is required by law or except as issued in accordance with Rule
18
135c of the Securities Act and (ii) during the period beginning 46 days
subsequent to the Closing Time and ending 90 days subsequent to the Closing
Time, in the judgment of the Guarantor or the Issuer and its respective legal
counsel, and after notification to the Initial Purchasers, except as issued in
accordance with the Securities Act.
(m) Regulation M.
In connection with the offering of the Notes, until the Initial
Purchasers shall have notified the Issuer of the completion of the resale of the
Notes, neither the Issuer nor the Guarantor will cause their affiliated
purchasers (as defined in Regulation M under the Exchange Act) to, either alone
or with one or more other persons, bid for or purchase, for any account in which
it or any of its affiliated purchasers has a beneficial interest, any Notes, or
attempt to induce any person to purchase any Notes. Neither the Issuer nor the
Guarantor will cause their affiliated purchasers to, make bids or purchase for
the purpose of creating actual, or apparent, active trading in or of raising the
price of the Notes.
(n) Restriction on Sale of Notes.
During a period of 180 days from the date of the Offering Memorandum,
neither the Issuer nor the Guarantor will, without the prior written consent of
the Initial Purchasers, directly or indirectly, issue, sell, offer or agree to
sell, grant any option for the sale of, or otherwise dispose of, any other debt
securities of the Issuer or the Guarantor or securities of the Issuer or the
Guarantor that are convertible into, or exchangeable for, the Notes or such
other debt securities.
(o) PORTAL.
The Issuer and the Guarantor will use their best efforts to permit the
Notes to be designated PORTAL securities in accordance with the rules and
regulations adopted by the National Association of Securities Dealers, Inc.
("NASD") relating to trading in the PORTAL Market.
(p) Restriction on Resale of Notes.
Neither the Issuer nor the Guarantor will, nor will they permit any of
their Affiliates under their control, resell any Notes that have been acquired
by any of them.
SECTION 4. PAYMENT OF EXPENSES.
(a) Issuer's and Guarantor's Expenses.
The Guarantor, whether or not any sale of the Notes is consummated,
shall pay all expenses incident to the performance of its and the Issuer's
obligations under this Agreement including (i) the preparation, printing and
filing of the Offering Memorandum (including financial statements) and each
amendment or supplement thereto, (ii) the preparation, printing and delivery to
the Initial Purchasers of this Agreement, any Agreement among Initial
Purchasers, the Indenture, the Registration Rights Agreement, the Guarantee and
such other documents as may be required in connection with the offering,
purchase, sale, issuance or
19
delivery of the Notes, (iii) the preparation, issuance and delivery of the
certificates for the Notes to the Initial Purchasers, including any charges of
DTC, Euroclear or Clearstream, Luxembourg in connection therewith, (iv) the fees
and disbursements of the counsel, accountants and other advisors of the Issuer
and the Guarantor, (v) the qualification of the Notes under the securities laws
in accordance with the provisions of Section 3(d) hereof, including filing fees
and the reasonable fees and disbursements of counsel for the Initial Purchasers
in connection therewith and in connection with the preparation, printing and
delivery of the Blue Sky Survey, any supplement thereto, (vi) the fees and
expenses of the Trustees, registrars and paying agents, including the fees and
disbursements of counsel for such persons in connection with the Indenture and
the Notes; (vii) any fees payable to rating agencies in connection with the
rating of the Notes; (viii) the filing fees incident to, and the reasonable
disbursements of United States counsel to the Initial Purchasers in connection
with, the review by the NASD with respect to the initial and continued
designation of the Notes as PORTAL securities under the PORTAL Market Rules
pursuant to NASD Rule 5322 ; and (ix) any fees charged by the Luxembourg Stock
Exchange in connection with the listing of the Notes on the Luxembourg Stock
Exchange and expenses incurred with respect to documentation prepared relating
thereto.
(b) Initial Purchasers' Expenses.
The Guarantor shall, whether or not any sale of the Notes is
consummated, reimburse the Initial Purchasers for all fees and expenses incurred
by the Initial Purchasers (excluding fees and expenses of counsel to the Initial
Purchasers but including the reasonable costs and expenses of the Initial
Purchasers incurred in connection with the roadshow) on behalf of the Guarantor
or the Issuer incident to the performance of the Guarantor's and the Issuer's
obligations under this Agreement, including the items mentioned in Section
4(a)(i) of this Agreement.
SECTION 5. CONDITIONS OF INITIAL PURCHASERS' OBLIGATIONS.
The obligations of the Initial Purchasers hereunder are subject to the
accuracy of the representations and warranties of the Issuer and the Guarantor
contained in Section 1 hereof or in certificates of any Management or
Supervisory Board member, officer of the Issuer or the Guarantor delivered
pursuant to the provisions hereof, to the performance in all material respects
by the Issuer and the Guarantor of their covenants and other obligations
hereunder, and to the following further conditions:
(a) Offering Memorandum.
The Offering Memorandum (and any amendments or supplements thereto)
shall have been printed and copies distributed to the Initial Purchasers as
promptly as practicable on or following the date of this Agreement or at such
other date and time as to which the Initial Purchasers may agree.
20
(b) Opinions of Counsel for the Issuer and the Guarantor.
(i) Opinion of the Issuer's and the Guarantor's United States
Counsel.
At the Closing Time, the Initial Purchasers shall have received the
favorable opinion, dated as of the Closing Time, of Xxxxxxxx Chance, United
States counsel for the Issuer and the Guarantor, in form and substance
satisfactory to counsel for the Initial Purchasers together with signed or
reproduced copies of such letter for each of the other Initial Purchasers, to
the effect set forth in Exhibit B hereto and to such further effect as counsel
to the Initial Purchasers may reasonably request.
(ii) Opinion of Guarantor's Polish Counsel.
At the Closing Time, the Initial Purchasers shall have received the
favorable opinion, dated as of the Closing Time, of Xxxxxxxx Chance, Polish
counsel for the Guarantor in form and substance satisfactory to counsel for the
Initial Purchasers, together with signed or reproduced copies of such letter for
each of the other Initial Purchasers, to the effect set forth in Exhibit C
hereto and to such further effect as counsel to the Initial Purchasers may
reasonably request.
(iii) Opinion of Issuer's and Guarantor's English Counsel.
At the Closing Time, the Initial Purchasers shall have received the
favorable opinion, dated as of the Closing Time, of Xxxxxxxx Chance, English
counsel to the Issuer and the Guarantor, in form and substance satisfactory to
counsel for the Initial Purchasers together with signed or reproduced copies of
such letter for each of the other Initial Purchasers, to the effect set forth in
Exhibit D hereto and to such further effect as counsel to the Initial Purchasers
may reasonably request.
(iv) Opinion of Issuer's Luxembourg Counsel.
At the Closing Time, the Initial Purchasers shall have received the
favorable opinion, dated as of the Closing Time, of Xxxxxxxx Chance, Luxembourg
counsel to the Issuer, in form and substance satisfactory to counsel for the
Initial Purchasers together with signed or reproduced copies of such letter for
each of the other Initial Purchasers.
(c) Opinion of United States Counsel for the Initial Purchasers.
At the Closing Time, the Initial Purchasers shall have received the
favorable opinion, dated as of the Closing Time, of Shearman & Sterling, United
States counsel for the Initial Purchasers, together with signed or reproduced
copies of such letter for each of the other Initial Purchasers, with respect to
certain of the matters set forth in Exhibit B hereto.
(d) Officers' Certificate.
At the Closing Time, there shall not have been, since the date hereof
or since the respective dates as of which information is given in the Offering
Memorandum, any
21
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Guarantor and the
Subsidiaries considered as one enterprise, and the Initial Purchasers shall have
received a certificate from each of an authorized representative of each of the
Issuer and members of the relevant Supervisory or Management Board authorized to
sign on behalf of the Guarantor and of the chief operating officer or chief
financial officer of the Guarantor respectively, dated as of the Closing Time,
to the effect that (i) there has been no such material adverse change, (ii) the
representations and warranties in Section 1 hereof are true and correct with the
same force and effect as though expressly made at and as of the Closing Time and
(iii) each of the Issuer and the Guarantor has complied in all material respects
with all agreements and satisfied in all material respects all conditions on its
part to be performed or satisfied at or prior to the Closing Time.
(e) Accountants' Comfort Letter.
At the time of the execution of this Agreement, the Initial Purchasers
shall have received from Xxxxxx Xxxxxxxx Xx. z o.o. a letter dated such date, in
form and substance satisfactory to the Initial Purchasers, together with signed
or reproduced copies of such letter for each of the other Initial Purchasers to
the effect set forth in Exhibit E hereto containing statements and information
of the type ordinarily included in accountants' "comfort letters" to initial
purchasers with respect to the financial statements and certain financial
information contained in the Offering Memorandum.
(f) Bring-Down Comfort Letter.
At the Closing Time, the Initial Purchasers shall have received from
Xxxxxx Xxxxxxxx Xx. zo.o. a letter, dated as of the Closing Time, to the effect
that they reaffirm the statements made in the letter furnished pursuant to
subsection (e) of this Section, except that the specified date referred to shall
be a date not more than three business days prior to Closing Time.
(g) Luxembourg Listing.
At the Closing Time, the Notes shall have been approved for listing on
the Luxembourg Stock Exchange.
(h) Clearance and Settlement.
(i) DTC shall have approved the forms of the Rule 144A Global
Securities (as defined in the Indenture) and
(ii) Euroclear and Clearstream, Luxembourg shall have accepted the
Regulation S Global Securities (as defined in the Indenture)
for clearance.
(i) Maintenance and Rating.
At the Closing Time, the Notes shall be rated at least B2 by Xxxxx'x
and B+ by S&P and the Issuer or the Guarantor shall have delivered to the
Initial Purchasers a letter dated
22
the Closing Time, from each such rating agency, or other evidence satisfactory
to the Initial Purchasers, confirming that the Notes have such ratings. Since
the date of this Agreement, there shall not have occurred a downgrading in the
rating assigned to the Notes or debt securities of the Guarantor or any
Subsidiary by any "nationally recognized substantial rating agency", as that
term is defined by the Commission for purposes of Rule 436(g)(2) under the
Securities Act, and no such securities rating agency shall have publicly
announced that it has under surveillance or review, with possible negative
implications, its rating of the Notes or any debt securities of the Guarantor or
any Subsidiary.
(j) PORTAL.
At the Closing Time, the Notes shall have been designated as eligible
for trading on PORTAL.
(k) Additional Documents.
At the Closing Time, counsel for the Initial Purchasers shall have been
furnished with such documents and opinions as they may require for the purpose
of enabling them to pass upon the issuance and sale of the Notes as herein
contemplated, or in order to evidence the accuracy of any of the representations
or warranties, or the fulfillment of any of the conditions herein contained, and
all proceedings taken by the Issuer and the Guarantor in connection with the
issuance and sale of the Notes as herein contemplated shall be satisfactory in
form and substance to the Initial Purchasers and their counsel.
(l) Termination of Agreement.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Initial Purchasers by notice to the Issuer and the Guarantor at any time
at or prior to the Closing Time and such termination shall be without liability
of any party to any other party except as provided in Section 4 and except that
Sections 1, 7, 8 and 9 shall survive any such termination and remain in full
force and effect.
SECTION 6. SUBSEQUENT OFFERS AND RESALES OF THE NOTES.
(a) Initial Purchasers' Obligations.
Each of the Initial Purchasers, the Issuer and the Guarantor hereby
establish and agree to observe the following procedures in connection with the
offer and sale by the Initial Purchasers of the Notes:
(i) Offers and Sales only to Qualified Institutional Buyers or
non-U.S. Persons.
Offers and sales of the Notes will be made only by the Initial
Purchasers or their respective Affiliates who are qualified to do so in the
jurisdictions in which such offers or sales are made. Each such offer or sale
shall only be made to persons whom the offeror
23
or seller reasonably believes to be Qualified Institutional Buyers or to
non-U.S. persons acquiring the securities in an offshore transaction in
compliance with Regulation S.
(ii) No General Solicitation.
No general solicitation or general advertising (within the meaning of
Rule 502(c) under the Securities Act) will be used in the United States in
connection with the offering or sale of the Notes.
(iii) Purchases by Non-Bank Fiduciaries.
In the case of a non-bank Subsequent Purchaser of a Note acting as
fiduciary for one or more third parties, in connection with an offer and sale to
such purchaser pursuant to clause (i) above, each third party shall, in the
judgment of the applicable Initial Purchaser, be a Qualified Institutional Buyer
or a non-U.S. Person outside the United States.
(iv) Subsequent Purchaser Notification.
Each Initial Purchaser will take reasonable steps to inform, and cause
each of its U.S. Affiliates to take reasonable steps to inform, persons
acquiring Notes from such Initial Purchaser or Affiliate, as the case may be, in
the United States that the Notes (A) have not been and will not be registered
under the Securities Act, (B) are being sold to them without registration under
the Securities Act in reliance on Rule 144A or in accordance with another
exemption from registration under the Securities Act, as the case may be, and
(C) may not be offered, sold or otherwise transferred prior to (1) the date
which is two years (or such shorter period of time as permitted by Rule 144(k)
under the Securities Act or any successor provision thereunder) after the later
of the date of original issue of the Notes and (2) such later date, if any, as
may be required under applicable laws except (x) to the Issuer, (y) outside the
United States in accordance with Rule 904 of Regulation S or (z) inside the
United States in accordance with (I) Rule 144A to a person whom the seller and
any person acting on behalf of the seller reasonably believes is a Qualified
Institutional Buyer that is purchasing such Notes for its own account or for the
account of a Qualified Institutional Buyer to whom notice is given that the
offer, sale or transfer is being made in reliance on Rule 144A under the
Securities Act or (II) pursuant to another available exemption from registration
under the Securities Act (it being understood that delivery of the Final
Offering Memorandum to such persons shall constitute such reasonable steps).
(v) Restrictions on Transfer.
Each of the Notes will bear, to the extent applicable, the legend
contained under "Notices to Investors" in the Offering Memorandum for the time
period and upon the other terms stated therein, except after the Notes are
resold pursuant to a registration statement effective under the Securities Act.
Following the sale of the Notes by the Initial Purchasers to Subsequent
Purchasers pursuant to the terms hereof, the Initial Purchasers shall not be
liable or responsible to the Guarantor or the Issuer for any losses, damages or
liabilities suffered or incurred by the Guarantor or the Issuer, including any
24
losses, damages or liabilities under the Securities Act, arising from or
relating to any resale or transfer of any Note.
(vi) Actions Regarding Other Offerings.
Each Initial Purchaser understands that no action has been or will be
taken in any jurisdiction (including Luxembourg) that would permit a public
offering of Notes, or possession or distribution of the Offering Memorandum or
any other offering or publicity materials relating to the Notes, in any country
or jurisdiction where action for that purpose is required.
(vii) Restrictions Under United Kingdom Securities Regulations.
Each Initial Purchaser represents, warrants and agrees that (x) it has
not offered or sold and prior to the expiration of the period six months after
the date of issue of the Notes will not offer to sell in the United Kingdom, by
means of any document, any Notes to persons in the United Kingdom except to
persons whose ordinary activities involve them in acquiring, holding, managing
or disposing of investments (as principal or agent) for the purposes of their
businesses or otherwise in circumstances which have not resulted and will not
result in an offer to the public in the United Kingdom within the meaning of the
Public Offers of Securities Regulations 1995; (y) it has complied and will
comply with all applicable provisions of the Public Offers of Securities
Regulations 1995 and the Financial Services Xxx 0000 with respect to anything
done by it in relation to the Notes in, from or otherwise involving the United
Kingdom; and (z) it has only issued or passed on, and will only issue or pass on
to any person, in the United Kingdom, any document received by it in connection
with the issue of the Notes to a person who is of a kind described in Article
11(3) of the Financial Services Xxx 0000 (Investment Advertisements)
(Exemptions) Order 1996, as amended, or is a person to whom such document may
otherwise lawfully be issued or passed on.
(viii) No Sales of the Notes in Poland.
Each Initial Purchaser represents warrants and agrees that it has not
offered or sold and will not offer or sell any Notes in the Republic of Poland
except under circumstances that do not constitute a public offering or
distribution under the laws and regulations of the Republic of Poland.
(ix) Compliance with Applicable Laws.
Each Initial Purchaser represents, warrants and agrees that it will
comply with all applicable laws and regulations in each jurisdiction in which it
acquires, offers, sells or delivers the Notes or has in its possession or
distributes the Preliminary Offering Memorandum, the Final Offering Memorandum
or any offering or publicity material relating to the Notes.
(b) Covenants of the Issuer and the Guarantor.
25
Each of the Issuer and the Guarantor covenants with each Initial
Purchaser as follows:
(i) Due Diligence.
In connection with the original distribution of the Notes, the
Issuer and the Guarantor agree that, prior to any offer or resale of
the Notes by the Initial Purchasers, the Initial Purchasers and counsel
for the Initial Purchasers shall have the right to make reasonable
inquiries into the business and legal matters of the Guarantor and the
Subsidiaries. The Issuer and the Guarantor also agree to provide
answers to each prospective Subsequent Purchaser of Notes who so
requests concerning the Guarantor and the Subsidiaries (to the extent
that such information is available or can be acquired and made
available to prospective Subsequent Purchasers without unreasonable
effort or expense and to the extent the provision thereof is not
prohibited by applicable law) and the terms and conditions of the
offering of the Notes, as provided in the Offering Memorandum.
(ii) Integration.
The Issuer and the Guarantor agree that they will not and will
cause their Affiliates not to solicit any offer to buy or make any
offer or sale of, or otherwise negotiate in respect of, securities of
the Issuer of any class if, as a result of the doctrine of
"integration" referred to in Rule 502 under the Securities Act, such
offer or sale would render invalid (for the purpose of (i) the sale of
the Notes by the Issuer to the Initial Purchasers, (ii) the resale of
the Notes by the Initial Purchasers to Subsequent Purchasers, or (iii)
the resale of the Notes by such Subsequent Purchasers to others) the
exemption from the registration requirements of the Securities Act
provided by Section 4(2) thereof or by Rule 144A or by Regulation S
thereunder or otherwise.
(iii) Rule 144A Information.
Each of the Issuer and the Guarantor agree that, in order to
render the Notes eligible for resale pursuant to Rule 144A under the
Securities Act, while any of the Notes remain outstanding, it will make
available, upon request, to any holder of Notes or prospective
purchasers of Notes the information specified in Rule 144A(d)(4),
unless it furnishes information to the Commission pursuant to Section
13 or 15(d) of the Exchange Act (such information, whether made
available to holders or prospective purchasers or furnished to the
Commission, is herein referred to as "Additional Information"). For a
period of two years after the Closing Time, each of the Issuer and the
Guarantor will make available upon request copies of all Additional
Information, together with such other documents, reports and
information as shall be furnished by it to the holders of the Notes.
(c) Resale Pursuant to Rule 903 of Regulation S, Rule 144A or
Other Exemption.
Each Initial Purchaser understands that the Notes have not
been and will not be registered under the Securities Act and may not be
offered or sold within the United
26
States except pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act. Each
Initial Purchaser severally represents and agrees that it has not
offered or sold, and will not offer or sell, any Notes constituting
part of its allotment within the United States except in accordance
with Rule 903 of Regulation S under the Securities Act or Rule 144A
under the Securities Act or another applicable exemption under the
Securities Act. Accordingly, neither such Initial Purchaser, its
Affiliates nor any persons acting on its behalf have engaged or will
engage in any directed selling efforts with respect to Notes and the
Initial Purchasers, their Affiliates and any person acting on their
behalf have complied and will comply with the offering restriction
requirements of Regulation S. Each Initial Purchaser agrees that, at or
prior to confirmation of a sale of Notes (other than a sale of Notes
pursuant to Rule 144A or pursuant to Section 6(a)(i)(B) hereof), it or
its Affiliates will have sent to each distributor, dealer or person
receiving a selling concession, fee or other remuneration that
purchases Notes from it or through it during the restricted period a
confirmation or notice to substantially the following effect:
"The Notes covered hereby have not been registered under the
United States Securities Act of 1933, as amended (the
"Securities Act") and may not be offered or sold within the
United States or to or for the account or benefit of U.S.
persons (i) as part of their distribution at any time and (ii)
otherwise until 40 days after the later of the date upon which
the offering of the Notes commenced and the date of closing,
except in either case in accordance with Regulation S or
another exemption from the registration requirements of the
Securities Act. Terms used above have the meaning given to
them by Regulation S."
Terms used in the above paragraph have the meanings given to them by Regulation
S.
SECTION 7. INDEMNIFICATION.
(a) Indemnification of Initial Purchasers.
Each of the Issuer and the Guarantor, jointly and severally, agrees to
indemnify and hold harmless each Initial Purchaser and each person, if any, who
controls such Initial Purchaser within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in any
Preliminary Offering Memorandum or the Final Offering Memorandum (or
any amendment or supplement thereto), or the omission or alleged
omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or
27
any investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission; provided that (subject to Section 7(d) below) any such
settlement is effected with the written consent of the Issuer or the
Guarantor; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by the Initial
Purchasers), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Issuer or the
Guarantor by any Initial Purchaser expressly for use in the Offering Memorandum
(or any amendment or supplement thereto); provided, further, that each of the
Issuer and the Guarantor will not be liable to the Initial Purchasers or any
person controlling such Initial Purchasers with respect to any such untrue
statement or alleged untrue statement or omission or alleged omission made in
any Preliminary Offering Memorandum to the extent that each of the Issuer and
the Guarantor shall sustain the burden of proving that any such loss, liability,
claim, damage or expense resulted from the fact that an Initial Purchaser sold
securities to a person to whom such Initial Purchaser failed to send or give, at
or prior to the written confirmation of the sale of such Notes, a copy of the
Final Offering Memorandum (as amended or supplemented) if the Issuer or the
Guarantor has previously furnished copies thereof to such Initial Purchaser (as
and to the extent required by law in order to allow for distribution of the
Final Offering Memorandum in a timely manner) and the loss, liability, claim,
damage or expense of the Initial Purchasers resulted from an untrue statement or
omission or alleged untrue statement or omission of a material fact contained in
or omitted from such Preliminary Offering Memorandum (as amended or
supplemented) which was corrected in the Final Offering Memorandum (as amended
or supplemented).
(b) Indemnification of Issuer, Guarantor and their respective Directors
and Officers.
Each Initial Purchaser agrees to indemnify and hold harmless the
Issuer, the Guarantor, each of their respective directors and each person, if
any, who controls the Issuer or the Guarantor within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act against any and all
loss, liability, claim, damage and expense described in the indemnity contained
in subsection (a) of this Section, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Offering Memorandum (or any amendment or supplement thereto) in reliance upon
and in conformity with written information furnished to the Issuer or the
Guarantor by such Initial Purchaser expressly for use in the Offering Memorandum
(or any amendment or supplement thereto).
28
(c) Actions Against Parties; Notification.
Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
hereunder to the extent it is not materially prejudiced as a result thereof and
in any event shall not relieve it from any liability which it may have otherwise
than on account of this Section 7. In the case of parties indemnified pursuant
to Section 7(a) above, counsel to the indemnified parties shall be selected by
the Initial Purchasers, and, in the case of parties indemnified pursuant to
Section 7(b) above, counsel to the indemnified parties shall be selected by the
Issuer or the Guarantor. An indemnifying party may participate at its own
expense in the defense of any such action; provided, however, that counsel to
the indemnifying party shall not (except with the consent of the indemnified
party) also be counsel to the indemnified party. Except as expressly provided in
this Section 7, in no event shall the indemnifying parties be liable for fees
and expenses of more than one counsel (in addition to any local counsel, limited
to one law firm per jurisdiction) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which indemnification or contribution could
be sought under this Section 7 or Section 8 hereof (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) Settlement Without Consent if Failure to Reimburse.
If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel in accordance with the requirements of this Section 7, such indemnifying
party agrees that it shall be liable for any settlement of the nature
contemplated by Section 7(a)(ii) effected without its written consent if (i)
such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement.
SECTION 8. CONTRIBUTION.
If the indemnification provided for in Section 7 hereof is for any
reason unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, (i) in such proportion as is appropriate to
reflect
29
the relative benefits received by the Issuer and the Guarantor on the one hand
and the Initial Purchasers on the other hand from the offering of the Notes
pursuant to this Agreement or (ii) if the allocation provided by clause (i) is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Issuer and the Guarantor on the one hand and of the
Initial Purchasers on the other hand in connection with the statements or
omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Issuer and the Guarantor on the
one hand and the Initial Purchasers on the other hand in connection with the
offering of the Notes pursuant to this Agreement shall be deemed to be in the
same respective proportions as the total net proceeds from the offering of the
Notes pursuant to this Agreement (before deducting expenses) received by the
Issuer and the Guarantor and the total underwriting discount received by the
Initial Purchasers bear to the aggregate initial offering price of the Notes.
The relative fault of the Issuer and the Guarantor on the one hand and
the Initial Purchasers on the other hand shall be determined by reference to,
among other things, whether any such untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Issuer or the Guarantor or by the Initial
Purchasers and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Issuer, the Guarantor and the Initial Purchasers agree that it
would not be just and equitable if contribution pursuant to this Section 8 were
determined by pro rata allocation (even if the Initial Purchasers were treated
as one entity for such purpose) or by any other method of allocation which does
not take account of the equitable considerations referred to above in this
Section 8. The aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above in this Section
8 shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 8, no Initial Purchaser
shall be required to contribute any amount in excess of the amount by which the
total discounts and commissions at which the Notes underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Initial Purchaser has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 8, each person, if any, who controls an
Initial Purchaser within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act shall have the same rights to contribution as
such Initial Purchaser, and each director of the
30
Issuer and the Guarantor and each person, if any, who controls the Issuer or the
Guarantor within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act shall have the same rights to contribution as the Issuer or
the Guarantor. The Initial Purchasers' respective obligations to contribute
pursuant to this Section 8 are several in proportion to the principal amount of
Notes set forth opposite their respective names in separate letters in Schedule
A hereto and not joint.
SECTION 9. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY.
All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Guarantor or any Subsidiary, as
the case may be, submitted pursuant hereto shall remain operative and in full
force and effect, regardless of any investigation made by or on behalf of the
Initial Purchasers or controlling person, or by or on behalf of the Issuer or
the Guarantor and shall survive delivery of the Notes to the Initial Purchasers.
SECTION 10. TERMINATION OF AGREEMENT.
(a) Termination; General.
This Agreement shall be subject to termination in the absolute
discretion of the Initial Purchasers by notice given to the Guarantor prior to
delivery of and payment for the Notes, if prior to such time (i) trading in
securities generally on any of the New York Stock Exchange, the American Stock
Exchange or the NASDAQ National Market System shall have been suspended or
limited or minimum prices shall have been established on any such exchange, (ii)
a banking moratorium shall have been declared by the Republic of Poland,
Luxembourg, U.S. Federal or New York State authorities, (iii) there has occurred
a material adverse change in the currency exchange rate or exchange controls
between the Polish zloty and the Euro, which change makes it, in the judgment of
the Initial Purchasers, impracticable to proceed with the offering or delivery
of the Notes as contemplated in the Final Offering Memorandum (exclusive of any
supplement thereto) or would be likely to prejudice materially dealings in the
Notes in the secondary market or (iv) there shall have occurred any outbreak or
escalation of hostilities, declaration by the United States, any member state of
the European Union, or the Republic of Poland of a national emergency or war or
other calamity or crisis the effect of which on financial markets is such as to
make it, in the judgment of the Initial Purchasers, impracticable or inadvisable
to proceed with the offering or delivery of the Notes as contemplated by the
Final Offering Memorandum.
(b) Liabilities.
If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except as
provided in Section 4 hereof, and provided further that Sections 1, 7, 8 and 9
hereof shall survive such termination and remain in full force and effect.
31
SECTION 11. DEFAULT BY ONE OR MORE OF THE INITIAL PURCHASERS.
If one or more of the Initial Purchasers shall fail at the Closing Time
to purchase the Notes which it or they are obligated to purchase under this
Agreement (the "Defaulted Securities"), the remaining Initial Purchaser shall
have the right, within 24 hours thereafter, to make arrangements for the
non-defaulting Initial Purchaser, or any other Initial Purchasers, to purchase
all, but not less than all, of the Defaulted Securities in such amounts as may
be agreed upon and upon the terms herein set forth; if, however, the Initial
Purchasers shall not have completed such arrangements within such 24-hour
period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
aggregate principal amount of the Notes to be purchased hereunder, the
non-defaulting Initial Purchaser shall be obligated to purchase the full amount
thereof, or
(b) if the number of Defaulted Securities exceeds 10% of the aggregate
principal amount of the Notes to be purchased hereunder, this Agreement shall
terminate without liability on the part of the non-defaulting Initial Purchaser.
No action taken pursuant to this Section shall relieve any defaulting
Initial Purchaser from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement, either the Initial Purchasers or the Issuer shall have the
right to postpone the Closing Time for a period not exceeding seven days in
order to effect any required changes in the Offering Memorandum or in any other
documents or arrangements. As used herein, the term "Initial Purchaser" includes
any person substituted for an Initial Purchaser under this Section 11.
SECTION 12. NOTICES.
All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given if mailed or transmitted by any standard
form of telecommunication. Notices to the Initial Purchasers shall be directed
to Deutsche Bank AG London at Winchester House, 1 Great Xxxxxxxxxx Xxxxxx,
Xxxxxx XX0X 0XX, Xxxxxxx, attn.: Xxxxxxx Xxxx, High Yield - Capital Markets,
telephone no. x00 (0) 000 000 0000, facsimile no. x00 (0) 000 000 0000, with a
copy to Dresdner Bank AG London Branch at Dresdner Bank AG London Branch c/o
Dresdner Bank Aktiengesellschaft, Legal Services, Global Debt - Primary Markets,
25th Floor, Xxxxxx-Xxxxx-Xxxxx 0, 00000 Xxxxxxxxx xx Xxxx, Xxxxxxx, telephone
no. x00 00 000 0000, facsimile no. x00 00 000 00000; notices to the Issuer shall
be directed to PTC International Finance II S.A., 00, Xxxxxx xx xx Xxxx, X-0000
Xxxxxxxxxx, attn.: Xxx. Xxxxxx Xxxxxx and Xx. Xxxx Xxxxxxx, facsimile no. (352)
493080 331; or the Guarantor shall be directed to Polska Telefonia Cyfrowa Sp.
z o.o., Al. Xxxxxxxxxxxxx 000, 00-000 Xxxxxxx, Xxxxxx, facsimile no (+48) 22 413
6239 and (x00) 00 000 0000.
SECTION 13. PARTIES.
This Agreement shall inure to the benefit of and be binding upon the
Initial Purchasers, the Issuer, the Guarantor and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any person, firm or
32
corporation, other than the Initial Purchasers, the Issuer, the Guarantor and
their respective successors and the controlling persons and officers and
directors referred to in Sections 7 and 8 hereof and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Initial Purchasers, the Issuer, the Guarantor and their
respective successors, and said controlling persons and officers and directors
and their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Notes from any Initial Purchaser
shall be deemed to be a successor by reason merely of such purchase.
SECTION 14. GOVERNING LAW AND TIME.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK. SPECIFIED TIMES OF DAY REFER TO LONDON TIME.
SECTION 15. AGENT FOR SERVICE; SUBMISSION TO JURISDICTION; WAIVER OF
IMMUNITIES.
Each of the Issuer and the Guarantor agrees that any suit, action or
proceeding against the Issuer or the Guarantor, brought by any Initial
Purchaser, the directors, officers, employees and agents of any Initial
Purchaser, or by any person who controls any Initial Purchaser, arising out of
or based upon this Agreement or the transactions contemplated hereby may be
instituted in any state or federal court in the Borough of Manhattan, City of
New York, New York, and waives any objection which it may nor or hereafter have
to the laying of venue of any such proceeding, and irrevocably submits to the
non-exclusive jurisdiction of such courts in any suit, action or proceeding.
Each of the Issuer and the Guarantor has appointed CT Corporation System, with
offices on the date hereof at 000 Xxxxxx Xxxxxx Xxx Xxxx, XX 00000, as its
authorized agent (the "Agent"), upon whom process may be served in any suit,
action or proceeding arising out of or based upon this Agreement or the
transactions contemplated herein which may be instituted in any state or federal
court in the Borough of Manhattan, City of New York, New York, by any Initial
Purchaser, the directors, officers, employees and agents of any Initial
Purchaser, or by any person, if any, who controls any Initial Purchaser, and
expressly accepts the non-exclusive jurisdiction of any such court in respect of
any such suit, action or proceeding. Each of the Issuer and the Guarantor hereby
represents and warrants that the Agent has accepted such appointment and has
agreed to act as said agent for service of process, and each of the Issuer and
the Guarantor agree to take any and all action, including the filing of any and
all documents that may be necessary to continue such appointment in full force
and effect as aforesaid. Service of process upon the Agent shall be deemed, in
every respect, effective service of process upon the Issuer and the Guarantor.
Notwithstanding the foregoing, any action involving the Guarantor arising out of
or based upon this Agreement may be instituted by any Initial Purchaser, the
directors, officers, employees and agents of any Initial Purchaser, or by any
person who controls any Initial Purchaser, in any court of competent
jurisdiction in the Republic of Poland or in Luxembourg.
To the extent that the either of the Issuer or the Guarantor has or
hereafter may acquire any immunity from jurisdiction of any court or from any
legal process (whether through
33
service of notice, attachment prior to judgment, attachment in aid of execution,
execution or otherwise) with respect to itself or its property, it hereby
irrevocably waives such immunity in respect of its obligations under the
above-referenced documents.
SECTION 16. JUDGMENT CURRENCY.
Each of the Issuer and the Guarantor agrees to indemnify each Initial
Purchaser, the officers, directors and agents of such Initial Purchaser and each
person, if any, who controls such Initial Purchaser within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act against any
loss incurred by any of them as a result of any judgment or order being given or
made for any amount due under this Agreement and such judgment or order being
expressed and paid in a currency (the "Judgment Currency") other than U.S.
dollars and as a result of any variation as between (i) the rate of exchange at
which the U.S. dollar amount is converted into the Judgment Currency for the
purpose of such judgment or order and (ii) the spot rate of exchange in the City
of New York at which any such person on the date of payment of such judgment or
order is able to purchase U.S. dollars with the amount of the Judgment Currency
actually received by such person. The foregoing indemnity shall continue in full
force and effect notwithstanding any such judgment or order as aforesaid. The
term "spot rate of exchange" shall include any premiums and costs of exchange
payable in connection with the purchase of, or conversion into, U.S. dollars.
SECTION 17. COUNTERPARTS; ENGLISH LANGUAGE
This Agreement may be executed in one or more counterparts and when a
counterpart has been executed by each party, all such counterparts taken
together shall constitute one and the same agreement. Counterparts of this
Agreement may be executed in both the English and the Polish languages.
This Agreement has been negotiated and executed in the English
language. This Agreement has also been translated into the Polish language.
However, in the event of any inconsistency between the English language version
and the Polish language version, the English language version shall control and
be conclusive as to the meaning of any terms and provisions hereof.
SECTION 18. EFFECT OF HEADINGS.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
34
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Issuer a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Initial Purchasers, the Issuer and the Guarantor in accordance with
its terms.
Very truly yours,
PTC INTERNATIONAL FINANCE II S.A.
By: /s/
--------------------------------
Name: Authorized signature
Title:
POLSKA TELEFONIA CYFROWA SP. Z O.O.
By: /s/ Xxxxxxx Xxxxxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: Director of Strategy,
Marketing and Sales
By: /s/ Xxxxxxx Xxxxxxxxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxxxxxxxx
Title: Director of Administration
35
CONFIRMED AND ACCEPTED,
as of the date first above written
DEUTSCHE BANK AG LONDON
By: /s/ Xxxxxx Xxxxxx
---------------------------
Name: Xxxxxx Xxxxxx
Title:
By: /s/ Guy du ParcGraham
---------------------------
Name: Guy du ParcGraham
Title:
DRESDNER BANK AG LONDON BRANCH
By: /s/ S. Park
---------------------------
Name: S. Park
Title: Managing Director
By: /s/ Xxxxxxxx Xxxx
---------------------------
Name: Xxxxxxxx Xxxx
Title: Director
36
SCHEDULE A
Principal
Name of Initial Purchaser Amount of
Notes
----------
Deutsche Bank AG London .......................... (euro) 145,000,000
Dresdner Bank AG London Branch.................... 55,000,000
-----------------
Total........................................ (euro) 200,000,000
37
SCHEDULE B
PTC International Finance II S.A.
(euro) 200,000,000 10 7/8% Senior Subordinated Notes due 2008
1. The purchase price to be paid by the Initial Purchasers for the
Notes shall be 100% of the principal amount thereof. The Guarantor will pay the
Initial Purchasers (euro) 4,500,000 in commission in connection with the sale of
the Notes.
2. The interest rate on the Notes shall be 10 7/8% per annum; interest
will be payable semi-annually on January 31st and July 31st, commencing on July
31, 2001. The first interest payment date shall be in respect of the period from
and including May 8, 2001 up to, but excluding July 31, 2001. The final interest
payment date shall be in respect of the period from and including the interest
payment date falling on January 31, 2008 up to, but excluding, May 1, 2008.
3. The Notes will mature on May 1, 2008.
4. The redemption price supplied in the Offering Memorandum (and
correspondingly in the Indenture) with respect to redemptions of Notes from the
proceeds of Equity Offerings shall be 110.875% of the principal amount thereof.
5. The redemption prices supplied in the Offering Memorandum (and
correspondingly in the Indenture) relating to the Notes shall be:
Redemption
Year Price
---- ----------
2005 105.438
2006 102.719
2007 100.000
