EXHIBIT 12
EXECUTION COPY
TELESYSTEM INTERNATIONAL WIRELESS INC.
as Issuer
and
X.X. XXXXXX PARTNERS (BHCA), L.P.,
U.F. INVESTMENTS (BARBADOS) LTD.,
CAPITAL COMMUNICATIONS CDPQ INC. AND
TELESYSTEM LTD.
as Purchasers
and
ASIA OPPORTUNITY FUND, L.P.,
X.X. XXXXXX ASIA INVESTMENT PARTNERS, L.P.,
CAIP CO-INVESTMENT FUND PARALLEL FUND (I) C.V. AND
CAIP CO-INVESTMENT FUND PARALLEL FUND (II) C.V.
FOURTH AMENDING AGREEMENT
TO THE
MASTER AND PURCHASE AGREEMENT
DATED AS OF NOVEMBER 28, 2001
MARCH 4, 2002
FOURTH AMENDING AGREEMENT DATED AS OF MARCH 4, 2002 TO THE MASTER AND PURCHASE
AGREEMENT DATED AS OF NOVEMBER 28, 2001, AS SUCH MASTER AND PURCHASE AGREEMENT
HAS BEEN AMENDED BY THE FIRST AMENDING AGREEMENT DATED AS OF JANUARY 18, 2002,
BY A SECOND AMENDING AGREEMENT DATED AS OF JANUARY 24, 2002 AND BY A THIRD
AMENDING AGREEMENT DATED AS OF FEBRUARY 5, 2002 AMONG THE PARTIES.
Among
TELESYSTEM INTERNATIONAL WIRELESS INC.
and
X.X. XXXXXX PARTNERS (BHCA), L.P. ,
ASIA OPPORTUNITY FUND, L.P.,
X.X. XXXXXX ASIA INVESTMENT PARTNERS, L.P.,
CAIP CO-INVESTMENT FUND PARALLEL FUND (I) C.V.,
CAIP CO-INVESTMENT FUND PARALLEL FUND (II) C.V.,
U.F. INVESTMENTS (BARBADOS) LTD.,
CAPITAL COMMUNICATIONS CDPQ INC.,
TELESYSTEM LTD.,
WHEREAS the Parties entered into a Master and Purchase Agreement dated as of
November 28, 2001, as amended by that certain First Amending Agreement dated as
of January 18, 2002, that certain Second Amending Agreement dated as of January
24, 2002 and that certain Third Amending Agreement dated as of February 5, 2002
(the "MAPA");
WHEREAS the Parties agree that it is desirable to amend the definition of
"Expiry Time" in the MAPA and the form of Special Warrant certificate attached
thereto as Schedule 2.1(c) to reflect such amended definition;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
contained in this Agreement and other valuable consideration (the receipt and
adequacy of this consideration by each of the Parties is hereby acknowledged),
the Parties agree as follows:
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ARTICLE 1
INTERPRETATION
1.1 MAPA
(a) Except as expressly supplemented and modified herein, all of
the provisions, terms and conditions contained in the MAPA shall remain in full
force and effect.
(b) Unless otherwise defined or unless there is something in the
subject matter or the context inconsistent therewith, all capitalised terms and
expressions not otherwise defined in this Agreement have the meanings ascribed
to them in the MAPA.
1.2 Defined Terms
As used in this Agreement, including the recitals hereto but except in
references to the provisions of the MAPA, the following terms have the following
meanings:
"AGREEMENT" means this Fourth Amending Agreement; "HEREOF",
"HERETO" and "HEREUNDER" and similar expressions mean and refer to
this Agreement and not to any particular Article, Section,
Subsection or other subdivision; "ARTICLE", "SECTION", "SUBSECTION"
or other subdivision of this Agreement followed by a number means
and refers to the specified Article, Section, Subsection or other
subdivision of this Agreement.
1.3 Gender and Number
Any reference in this Agreement to gender includes both genders and words
importing the singular number only shall include the plural and vice versa.
1.4 Headings, etc.
The division of this Agreement into Articles and Sections and the insertion of
headings are for convenient reference only and are not to affect its
interpretation.
1.5 Severability
If any provision of this Agreement shall be determined by an arbitrator or any
court of competent jurisdiction to be illegal, invalid or unenforceable, that
provision shall be severed from this Agreement and the remaining provisions
shall continue in full force and effect.
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1.6 Inclusion
Where the word "including" or "includes" is used in this Agreement it means
"including (or includes) without limitation".
1.7 Time of the Essence
Time shall be of the essence of this Agreement.
ARTICLE 2
MAPA AMENDMENT
2.1 Definition Amendment
Section 1.1 of the MAPA is hereby amended as follows:
(a) The definition of "Expiry Time" is hereby amended and replaced
by the following definition:
""EXPIRY TIME" means 5:00 p.m. (Montreal time) on March 31, 2002".
2.2 Amendment to Schedule 2.1(c)
Schedule 2.1(c) of the MAPA is hereby amended by deleting the first paragraph
appearing on the first page and replacing it with the following:
"EXERCISABLE AT ANY TIME AFTER THE QUALIFYING DATE AND ON OR PRIOR
TO 5:00 P.M. (MONTREAL TIME) ON MARCH 31, 2002, (THE "EXPIRY
TIME")."
ARTICLE 3
MISCELLANEOUS
3.1 Survival
The representations and warranties contained in this Agreement, if any, will
survive the completion of the transactions herein contemplated unless otherwise
noted herein and, notwithstanding any investigation made by or on behalf of the
Purchasers and JPMP Asia, will continue in full force and effect for the benefit
of the Purchasers and JPMP Asia, or the Issuer, as the case may be, unaffected
by any subsequent disposition of the Special Warrants or of the Underlying
Securities or any of them for a period of five (5) years. The covenants
contained herein, if any, will survive the completion of this transaction,
unless otherwise noted herein.
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3.2 Governing Law
THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE PROVINCE OF QUEBEC, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR
CONFLICTING PROVISION OR RULE (WHETHER OF THE PROVINCE OF QUEBEC, OR ANY OTHER
JURISDICTION) THAT WOULD CAUSE THE LAWS OF ANY JURISDICTION OTHER THAN THE
PROVINCE OF QUEBEC TO BE APPLIED. IN FURTHERANCE OF THE FOREGOING, THE LAW OF
THE PROVINCE OF QUEBEC WILL CONTROL THE INTERPRETATION AND CONSTRUCTION OF THIS
AGREEMENT, EVEN IF UNDER SUCH JURISDICTION'S CHOICE OF LAW OR CONFLICT OF LAW
ANALYSIS, THE SUBSTANTIVE LAW OF SOME OTHER JURISDICTION WOULD ORDINARILY APPLY.
ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY RELATED
DOCUMENT MAY BE BROUGHT EXCLUSIVELY IN THE COURTS OF THE PROVINCE OF QUEBEC, AND
BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH PARTY HERETO HEREBY
IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY AND ASSETS,
GENERALLY AND UNCONDITIONALLY THE JURISDICTION OF THE AFORESAID COURTS.
3.3 Counterparts
This Agreement may be executed in any number of counterparts, including by
facsimile, and all of such counterparts taken together shall be deemed to
constitute one and the same instrument.
3.4 Language
The Parties acknowledge and are satisfied that this Agreement be initially drawn
up in the English language. Notwithstanding the foregoing, the Issuer undertakes
to have this Agreement translated into the French language and to circulate such
translated version among the Purchasers and JPMP Asia forthwith following the
date hereof and in any event by no later than March 15, 2002, whereupon the
Purchasers and JPMP Asia shall have 15 days to comment thereon in writing to the
Company and all other Parties (such comments limited to issue of translation
only and not of substance). Upon agreement as to the final French translation of
this Agreement by the Company and all other Parties, each of whom shall act
diligently and in good faith in respect thereof, the English and French versions
of this Agreement shall together be deemed to constitute one and the same
agreement.
IN WITNESS WHEREOF the parties have caused this Agreement to be executed by
their respective duly authorized officers.
TELESYSTEM INTERNATIONAL WIRELESS INC.
By: ________________________________
Name:
Title:
By: ________________________________
Name:
Title:
X.X. XXXXXX PARTNERS (BHCA), L.P.
By: JPMP Master Fund Manager, L.P.,
its General Partner
By: JPMP Capital Corp.,
its General Partner
By: ________________________________
Name:
Title:
ASIA OPPORTUNITY FUND, L.P.
By: Asia Opportunity Company,
its General Partner
By: ________________________________
Name:
Title:
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CAIP CO-INVESTMENT FUND
PARALLEL FUND (I) C.V.
By: Asia Opportunity Company,
its General Partner
By: ________________________________
Name:
Title:
CAIP CO-INVESTMENT FUND
PARALLEL FUND (II) C.V.
By: Asia Opportunity Company,
its General Partner
By: ________________________________
Name:
Title:
X.X. XXXXXX ASIA INVESTMENT
PARTNERS, L.P.
By: X.X. Xxxxxx Asia Equity Partners, L.P.,
its General Partner
By: JPMP Asia Equity Company,
a Managing General Partner
By: _______________________________
Name:
Title:
U.F. INVESTMENTS (BARBADOS) LTD.
By: ________________________________
Name:
Title:
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CAPITAL COMMUNICATIONS CDPQ INC.
By: ________________________________
Name:
Title:
By: ________________________________
Name:
Title:
TELESYSTEM LTD.
By: ________________________________
Name:
Title:
By: ________________________________
Name:
Title:
