EXHIBIT D
Conformed Copy
GUARANTEE AGREEMENT dated as of June 23, 2000 (this "Agreement") between OPEN
JOINT STOCK COMPANY "VIMPEL-COMMUNICATIONS", an open joint stock company
organized and existing under the laws of the Russian Federation, as the
guarantor (the "Guarantor"), and TELENOR EAST INVEST AS, a company organized and
existing under the laws of Norway, as the beneficiary (the "Beneficiary").
WITNESSETH
WHEREAS, VimpelCom Finance B.V. and the Beneficiary have entered into the
Primary Agreement (Financing Vehicles) dated as of the date hereof (as amended,
amended and restated, supplemented or otherwise modified and in effect from time
to time, the "Primary Agreement"), providing, subject to the terms and
conditions thereof, (a) for the option of the Beneficiary to purchase certain
newly issued shares of the Guarantor and certain securities convertible into or
exchangeable for such shares, and (b) for certain designees of VimpelCom Finance
B.V. to become parties to the Primary Agreement pursuant to the terms thereof
(such designees, together with VimpelCom Finance B.V., collectively, the
"Sellers");
WHEREAS, the Guarantor and the Beneficiary have entered into the Working
Capital Bridge Facility dated as of the date hereof (as amended, amended and
restated, supplemented or otherwise modified and in effect from time to time,
the "Loan Agreement"); and
WHEREAS, the execution and delivery of this Agreement by the parties hereto
is a condition to the making of the loans by the Beneficiary to the Guarantor
under the Loan Agreement;
NOW, THEREFORE, to induce the Beneficiary to enter into the Loan Agreement
and to make the loans thereunder, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Guarantor has
agreed (to the extent hereinafter provided) to guarantee the Guaranteed
Obligations (as hereinafter defined).
Accordingly, the parties hereto agree as follows:
ARTICLE I DEFINITIONS
Unless otherwise defined herein, terms defined in the Primary Agreement are
used herein as therein defined.
ARTICLE II GUARANTEE
2.01 Guarantee
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Subject to the limitation set forth in Section 2.07 hereof, the Guarantor
hereby guarantees to the Beneficiary and its respective permitted successors and
assigns the performance by each and all of the Sellers of their respective
obligations under the Primary Agreement, strictly in accordance with the terms
thereof (such obligations being collectively referred to herein as the
"Guaranteed Obligations"), and agrees that if any Seller defaults in the
performance of any Guaranteed Obligations, the Guarantor shall pay to the
Beneficiary all damages, costs, and expenses that the Beneficiary is entitled to
recover from such Seller by reason of such default, provided that the
Beneficiary shall not be entitled to recover from the Guarantor any amount which
the Beneficiary has recovered from such Seller.
2.02 Obligations Unconditional
-------------------------
Subject to the limitation set forth in Section 2.07 hereof, the obligations
of the Guarantor under Section 2.01 hereof are absolute and unconditional,
irrespective of the value, genuineness, validity, regularity or enforceability
of the Primary Agreement, or any other agreement or instrument referred to
herein or therein, or any substitution, release or exchange of any other
guarantee of or security for any of the Guaranteed Obligations, and, to the
fullest extent permitted by applicable law, irrespective of any other
circumstance whatsoever which might otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor, it being the intent of this
Section 2.02 that the obligations of the Guarantor hereunder shall be absolute
and unconditional under any and all circumstances. Without limiting the
generality of the foregoing, it is agreed that the occurrence of any one or more
of the following shall not affect the liability of the Guarantor hereunder:
(a) at any time or from time to time, without notice to the Guarantor, the
time for any performance of or compliance with any of the Guaranteed Obligations
shall be extended, or such performance or compliance shall be waived;
(b) any of the acts mentioned in any of the provisions of the Primary
Agreement or any other agreement or instrument referred to herein or therein
shall be done or omitted;
(c) any of the Guaranteed Obligations shall be modified, supplemented or
amended in any respect, or any right under the Primary Agreement or any other
agreement or instrument referred to herein or therein shall be waived or any
other guarantee of any of the Guaranteed Obligations or any security therefor
shall be released or exchanged in whole or in part or otherwise dealt with; or
(d) any Lien or security interest granted to, or in favor of, the
Beneficiary as security for any of the Guaranteed Obligations shall fail to be
perfected.
The Guarantor hereby expressly waives diligence, presentment, demand of
payment, protest and all notices whatsoever, and any requirement that the
Beneficiary exhaust any right, power or remedy or proceed against any Seller
under the Primary Agreement or any other agreement or instrument referred to
herein or therein, or against any other Person under any other guarantee of, or
security for, any of the Guaranteed Obligations.
2.03 Reinstatement
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The obligations of the Guarantor under this Article II shall be
automatically reinstated if and to the extent that for any reason any payment by
or on behalf of any Seller in respect of the Guaranteed Obligations is rescinded
or must be otherwise restored by any holder of any of the Guaranteed
Obligations, whether as a result of any proceedings in bankruptcy or
reorganization or
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otherwise and the Guarantor agrees that it will indemnify the Beneficiary on
demand for all reasonable costs and expenses (including, without limitation,
fees of counsel) incurred by the Beneficiary in connection with such rescission
or restoration.
2.04 Subrogation
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The Guarantor hereby agrees that until the satisfaction in full of all
Guaranteed Obligations it shall not exercise any right or remedy arising by
reason of any performance by it of its guarantee in Section 2.01 hereof, whether
by subrogation or otherwise, against any Seller or any other guarantor of any of
the Guaranteed Obligations or any security for any of the Guaranteed
Obligations.
2.05 Continuing Guarantee
--------------------
The guarantee in this Article II is a continuing guarantee, and shall
apply to all Guaranteed Obligations whenever arising.
2.06 Currency of Payment
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(a) Payments hereunder shall be made in US Dollars or, if the Guarantor
shall have failed to obtain the Central Bank License (as hereinafter defined),
in Rubles or in such other currency as the Beneficiary may choose or as may be
required in accordance with applicable law. If under applicable law any payment
to be made to the Beneficiary hereunder can only be made in Rubles, then, unless
prohibited by applicable law, the exchange rate on the date when the actual
payment is made shall apply and such payment shall be made to an "I" account of
the Beneficiary notified to the Guarantor pursuant to and in accordance with
Instruction No. 16 of July 16, 1993 of the Central Bank of the Russian
Federation, as amended and in effect on the date of such payment.
(b) If any sum due from the Guarantor under this Agreement or any claim
filed or any order or judgment given or made in relation hereto has to be
converted from US Dollars or any other currency (the "first currency") in which
the same is payable hereunder or under such claim, order or judgment into Rubles
or another currency (the "second currency"), the Guarantor shall indemnify and
hold harmless the Beneficiary from and against any loss suffered or incurred by
the Beneficiary (i) in connection with any transfer of such sum, (ii) as a
result of any charges or commissions attributable to the conversion of such sum
from the first currency into the second currency and (iii) as a result of any
discrepancy between (a) the rate of exchange used for such purpose to convert
the sum in question from the first currency into the second currency and (b) the
rate or rates of exchange at which the Guarantor may in the ordinary course of
business purchase the first currency with the second currency upon receipt of a
sum paid to it in satisfaction, in whole or in part, of any such order, judgment
or claim.
2.07 Limitation on Guarantee
-----------------------
Notwithstanding the foregoing provisions of this Article II, in the event
the annual shareholders' meeting of the Guarantor scheduled to take place on
June 30, 2000 does not approve Item 12 on the agenda of such meeting by the
number of votes required under Russian law for the adoption of such resolutions,
the aggregate amount which the Guarantor may be required to pay
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under Section 2.01 hereof shall not exceed an amount equal to 1.9% of the book
value of the assets of the Guarantor calculated in accordance with Russian
accounting principles (the "Contingent Limitation"), it being understood that
all payments and prepayments of the Guaranteed Obligations by any Seller or any
other Person (other than by the Guarantor pursuant to a demand by the
Beneficiary hereunder) shall, for purposes of this Section 2.07, be deemed to be
applied first to the portion of the Guaranteed Obligations which exceeds said
Contingent Limitation and last to the portion of the Guaranteed Obligations
which does not exceed said Contingent Limitation.
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ARTICLE III REPRESENTATIONS, WARRANTIES AND COVENANT
The Guarantor represents and warrants to the Beneficiary, with respect to
the matters set forth in Sections 3.01 through 3.05, and covenants to the
Beneficiary as set forth in Section 3.06, that:
3.01 Representations in the Primary Agreement
----------------------------------------
All representations and warranties made by each Seller in Article III of
the Primary Agreement (including, without limitation, by any Seller which
becomes a party to the Primary Agreement by executing an Endorsement) are and
will be true and correct on and as of each date specified in Article III of the
Primary Agreement and are hereby incorporated herein by reference.
3.02 Authority
---------
(a) The execution and delivery by the Guarantor of this Agreement, and the
performance by the Guarantor of its obligations hereunder, have been duly and
validly authorized by the shareholders' meeting or the Board of Directors of the
Guarantor, as the case may be, no other corporate action on the part of the
Guarantor or its shareholders being necessary. This Agreement has been duly and
validly executed and delivered by the Guarantor and constitutes the legal, valid
and binding obligation of the Guarantor, enforceable against the Guarantor in
accordance with its terms.
(b) The Guarantor has full corporate power and authority to execute and
deliver this Agreement, to perform its obligations hereunder and to consummate
the transactions contemplated hereby.
3.03 No Conflicts
------------
The execution, delivery and performance by the Guarantor of this
Agreement, compliance by the Guarantor with all of the provisions hereof and the
consummation by the Guarantor of the transactions contemplated hereby:
(a) will not conflict with or constitute a breach of any of the terms or
provisions of, or a default under, the Guarantor's charter;
(b) except as set forth in Schedule 2.01(g) of the Loan Agreement, will
not conflict with or constitute a breach of any material Contract to which the
Guarantor is a party as of the date of this Agreement or by which the Guarantor
or any of its material Assets and Properties is bound; and
(c) subject to obtaining the consents, approvals and actions, making the
filings and giving the notices disclosed in Schedule 2.02(c) of the Loan
Agreement and Schedule 2.08(f) of the Primary Agreement, will not violate or
conflict with any material Orders or Laws applicable to the Guarantor or any of
its Assets and Properties.
3.04 Governmental Approvals and Filings
----------------------------------
Except as set forth in Schedule 2.02(c) of the Loan Agreement and Schedule
2.08(f) of the Primary Agreement, the execution, delivery and performance by the
Guarantor of this Agreement,
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the compliance by the Guarantor with all of the provisions hereof and the
consummation of the transactions by the Guarantor contemplated hereby will not
require any consent, approval, authorization or other order of any Governmental
or Regulatory Authority.
3.05 Legal Proceedings, Liability
----------------------------
(a) There is no Action or Proceeding pending or, to the knowledge of the
Guarantor, threatened, which, if adversely determined, will result in, or would
reasonably be expected to result in, the issuance of an Order which (i)
questions the validity of this Agreement or any action taken or to be taken
pursuant hereto or thereto, (ii) restrains, enjoins or otherwise prohibits or
makes illegal consummation of any of the transactions contemplated by this
Agreement, or (iii) would otherwise result in a material impairment of the
Beneficiary's rights under this Agreement.
(b) There are no facts or circumstances known to the Guarantor that could
reasonably be expected to give rise to any Action or Proceeding that would be
required to be disclosed pursuant to clause (a) of this Section 3.05.
3.06 Central Bank License
--------------------
The Guarantor shall apply for the Central Bank License (as hereinafter
defined) no later than thirty (30) Business Days after the date hereof. The
Guarantor shall use its best efforts to obtain the Central Bank License within
one hundred and twenty (120) calendar days after the date hereof. As used
herein, "Central Bank License" shall mean a license for currency transactions
issued by the Central Bank of the Russian Federation with respect to this
Agreement, in form and substance satisfactory to the Beneficiary, authorizing
the Guarantor to make payments to the Beneficiary in US Dollars under this
Agreement.
ARTICLE IV MISCELLANEOUS
4.01 Arbitration; Consent to Jurisdiction; Service of Process; Waiver of
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Sovereign Immunity
------------------
(a) Any and all disputes and controversies arising under, relating to or
in connection with this Agreement shall be settled by arbitration by a panel of
three (3) arbitrators under the United Nations Commission on International Trade
Law (UNCITRAL) Arbitration Rules in force (the "UNCITRAL Rules") in accordance
with the following terms and conditions:
(i) In the event of any conflict between the UNCITRAL Rules and the
provisions of this Agreement, the provisions of this Agreement shall prevail.
(ii) Either party to this Agreement may refer a matter to arbitration by
written notice to the other party.
(iii) The place of the arbitration shall be Stockholm, Sweden.
(iv) The claimant party shall appoint one (1) arbitrator and the
respondent party shall appoint one (1) arbitrator, and the two (2) arbitrators
so appointed shall appoint the third arbitrator,
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in accordance with the UNCITRAL Rules. In the event of an inability to agree on
a third arbitrator, the appointing authority shall be the Arbitration Institute
of the Stockholm Chamber of Commerce.
(v) The English language shall be used as the written and spoken language
for the arbitration and all matters connected to the arbitration.
(vi) The decision of the arbitrators shall be made by majority vote and
shall be in writing.
(vii) The decision of the arbitrators shall be final and binding on the
parties to this Agreement, save in the event of fraud, manifest mistake or
failure by any of the arbitrators to disclose any conflict of interest.
(viii) The decision of the arbitrators may be enforced by any court of
competent jurisdiction and may be executed against the person and assets of the
losing party in any jurisdiction.
(b) If any dispute is submitted to arbitration pursuant to this Section
4.01, the panel of arbitrators may, if it deems such award appropriate, award a
party costs and expenses incurred by such party in enforcing its rights. Except
as so awarded, each party shall bear its own costs and expenses of enforcing its
rights to arbitrate under this Section 4.01.
(c) Notwithstanding Sections 4.01(a) and (b) to the contrary, this
Agreement, and any rights of the Beneficiary arising out of this Agreement, may,
at the option of the Beneficiary, be enforced by the Beneficiary in the courts
of the Russian Federation located in Moscow or in any other courts having
jurisdiction. For the benefit of the Beneficiary, the Guarantor hereby
irrevocably submits to the non-exclusive jurisdiction of the courts of the
United States District Court for the Southern District of New York and of any
New York state court sitting in New York City, with respect to any dispute,
controversy or claim arising out of or relating to this Agreement or any other
Financing Agreement, or the breach, termination or invalidity hereof or thereof.
Nothing in this Agreement shall affect the right of the Beneficiary to commence
legal actions or proceedings against the Guarantor in any manner authorized by
the laws of any relevant jurisdiction. The commencement by the Beneficiary of
legal actions or proceedings in one or more jurisdictions shall not preclude the
Beneficiary from commencing legal actions or proceedings in any other
jurisdiction, whether concurrently or not. The Guarantor irrevocably waives any
objection it may now or hereafter have on any grounds whatsoever to the laying
of venue of any legal action or proceeding and any claim it may now or hereafter
have that any such legal action or proceeding has been brought in an
inconvenient forum.
(d) The Guarantor irrevocably appoints CT Corporation System, located on
the date hereof at 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, XXX, as its true
and lawful agent and attorney to accept and acknowledge service of any and all
process against it in any action, suit or proceeding permitted by this Section
4.01, with the same effect as if the Guarantor were a resident of the State of
New York and had been lawfully served with such process in such jurisdiction,
and waives all claims of error by reason of such service, provided that the
Beneficiary shall also deliver a copy thereof to the Guarantor at its address
specified in Section 4.05. The Guarantor will enter into such agreements with
such agent as may be necessary to constitute and continue the appointment of
such agent hereunder. If any such agent and attorney resigns or otherwise
becomes incapable of acting, the Guarantor will appoint a successor agent and
attorney in New York reasonably satisfactory to
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the Beneficiary, with like powers. Nothing herein shall affect the right of any
party to serve process in any other manner permitted by law or to commence legal
proceedings or otherwise proceed against the other in any other jurisdiction in
a manner not inconsistent with Sections 4.01(a)-(c).
(e) The Guarantor hereby represents and acknowledges that it is acting
solely in its commercial capacity in executing and delivering this Agreement and
in performing its obligations hereunder and thereunder, and the Guarantor hereby
irrevocably waives with respect to all disputes, claims, controversies and all
other matters of any nature whatsoever that may arise under or in connection
with this Agreement and any other document or instrument contemplated hereby or
thereby, all immunity it may otherwise have as a sovereign, quasi-sovereign or
state-owned entity (or similar entity) from any and all proceedings (whether
legal, equitable, arbitral, administrative or otherwise), pre- or post-award
attachment of assets, and enforceability of judicial or arbitral awards.
4.02 Successors and Assigns; Third Party Rights
------------------------------------------
This Agreement shall bind and inure to the benefit of the respective
successors and assigns of the parties hereto, except that (a) the Guarantor may
not assign or otherwise transfer all or any part of its rights or obligations
under this Agreement without the prior written consent of the Beneficiary and
(b) the Beneficiary may not assign or otherwise transfer all or any part of its
rights under this Agreement other than in connection with an assignment of its
rights and obligations under, and pursuant to Section 10.09(a) of, the Primary
Agreement.
4.03 No Waiver
---------
No failure on the part of the Beneficiary to exercise, and no course of
dealing with respect to, and no delay in exercising, any right, power or remedy
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise by the Beneficiary or any of its agents of any right, power or remedy
hereunder preclude any other or further exercise thereof or the exercise of any
other right, power or remedy. The remedies herein are cumulative and are not
exclusive of any remedies provided by law.
4.04 Governing Law
-------------
This Agreement shall be governed by, and construed in accordance with, the
laws of the State of New York, United States of America, without giving effect
to any conflicts of laws principles thereof which would result in the
application of the laws of another jurisdiction.
4.05 Notices
-------
All notices, requests and other communications hereunder must be in
writing and will be deemed to have been duly given only if delivered personally
or by facsimile transmission or sent by courier to the parties at the following
addresses or facsimile numbers:
If to the Beneficiary, to:
Telenor East Invest AS
Keysers Xxxx 00
0
0000 Xxxx
Xxxxxx
Facsimile No.: x00-00-000000
Attn: Xxxxxx Xxxxxxxxx
with a copy to:
Telenor Mobile Communications AS
Xxxxxxxxxxx 00
X-0000 Xxxx
Xxxxxx
Facsimile No.: x00-00-00-00-00
Attn: Arve Egil Habjorg
If to the Guarantor, to:
Vimpel-Communications
10, building 14, Xxxxxx 0-Xxxxx
000000, Xxxxxx
Xxxxxxx Federation
Facsimile No.: x0000 000-0000
Attn: Chief Financial Officer
with a copy to:
Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
Dukat Place II
7, Ulitsa Gasheka
123056, Moscow
Russian Federation
Facsimile No. x0000-000-0000
Attn: Xxxxxxx X. Xxxxxxxx
All such notices, requests and other communications will (a) if delivered
personally to the address provided in this Section 4.05, be deemed given upon
delivery, (b) if delivered by facsimile transmission to the facsimile number
provided in this Section 4.05, be deemed given upon receipt, and (c) if
delivered by courier in the manner described above to the address provided in
this Section 4.05, be deemed given upon confirmed receipt (in each case
regardless of whether such notice, request or other communication is received by
any other Person to whom a copy of such notice is to be delivered pursuant to
this Section 4.05). Any party from time to time may change its address,
facsimile number or other information for the purpose of notices to that party
by giving written notice specifying such change to the other parties hereto.
4.06 Waiver and Amendment
--------------------
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Any amendment to, waiver by the Beneficiary of any of the terms or
conditions of, or consent given by the Beneficiary under, this Agreement shall
be in writing, signed by the Beneficiary and, in the case of an amendment, by
the Guarantor.
4.07 Counterparts
------------
This Agreement may be executed in any number of counterparts, all of which
together shall constitute one and the same instrument and any of the parties
hereto may execute this Agreement by signing any such counterpart.
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IN WITNESS WHEREOF, the parties hereto have caused this Guarantee Agreement
to be duly executed as of the day and year first above written.
OPEN JOINT STOCK COMPANY
"VIMPEL-COMMUNICATIONS"
By /s/ Xxxxxxx Xxxxxxxxxx Xxxxx
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Xxxxxx Xxxxxxxxxx Xxxxx
President and Chief Executive Officer
By /s/ Xxxxxxxx Mikhailovich Bychenkov
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Xxxxxxxx Mikhailovich Bychenkov
Chief Accountant
TELENOR EAST INVEST AS
By /s/ Xxxxxx Xxxxxxxxx
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Xxxxxx Xxxxxxxxx
Attorney-in-Fact
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