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Exhibit T
THIS AGREEMENT IS DATED MAY 30, 2001
BETWEEN:
1. ECO TELECOM LIMITED a company organized and existing under the laws of
Gibraltar (the "INVESTOR");
2. OPEN JOINT STOCK COMPANY "VIMPEL-COMMUNICATIONS", an open joint stock
company organized and existing under the laws of the Russian Federation
("VIP");
3. CLOSED JOINT STOCK COMPANY "VIMPELCOM-REGION", a closed joint stock
company organized and existing under the laws of the Russian Federation
("VIP-R" and, together with the Investor and VIP, collectively, the
"TRANSACTION PARTIES"); and
4. CITIBANK T/O (OOO), a commercial bank organized and existing under the
laws of the Russian Federation (the "ACCOUNT BANK" and, together with
the Transaction Parties, collectively, the "PARTIES")
WHEREAS:
(A) Concurrently with the execution and delivery of this Agreement, the
Transaction Parties are entering into a series of agreements, pursuant
to which certain Transaction Parties intend, among other things, to
invest in VIP and VIP-R (the transactions contemplated by such
agreements being, collectively, the "TRANSACTION");
(B) The Investor is a party to that certain Primary Agreement dated on the
date of this Agreement (the "VIP PRIMARY AGREEMENT"), pursuant to which
VIP has agreed to issue and sell, and the Investor has agreed to
subscribe for and purchase, 5,150,000 shares of VIP common stock ("VIP
STOCK") on the terms and subject to the conditions set forth therein;
(C) The Investor, VIP, and VIP-R are parties to that certain VIP-R Primary
Agreement dated on the date of this Agreement (the "VIP-R PRIMARY
AGREEMENT"), pursuant to which, inter alia, VIP-R has agreed to issue
and sell, and VIP has agreed to subscribe for and purchase, certain
shares of VIP-R voting capital stock ("VIP-R STOCK") on the terms and
subject to the conditions set forth therein;
(D) As part of the Transaction, at the "Closing" under and as defined in
the VIP Primary Agreement (the "CLOSING") and the "First Closing" under
and as defined in the VIP-R Primary Agreement, the Investor is to pay
US$103,000,000 (the "INVESTOR'S PURCHASE PRICE"), and VIP is to take
the Investor's Purchase Price and use it to pay VIP-R for VIP-R Stock;
(E) The Investor, VIP and Citibank, NA., a commercial bank organized and
existing under the laws of the United States of America acting through
its London Branch (the "ESCROW AGENT") are parties to that certain
Escrow Agreement dated on the date of this Agreement (the "ESCROW
AGREEMENT") pursuant to which the Investor has deposited a portion of
the Investor's Purchase Price equal to US$50,000,000 (the "INITIAL
DEPOSIT AMOUNT") in escrow with the Escrow Agent for disbursement in
accordance with the Escrow Agreement; and
(F) To facilitate the Transaction, the Transaction Parties have requested
the Account Bank to open certain accounts and make certain transfers
and conversions in accordance with the terms of this Agreement.
NOW IT IS HEREBY AGREED as follows:
1. INTERPRETATION
(1) The definitions of the terms listed on SCHEDULE 5 may be found at the
location specified therein. In addition, the following terms shall have
the meanings specified below:
"BUSINESS DAY" means a day other than a Saturday, a Sunday, or any day
on which banks in any of London, England, Moscow, Russia, New York, USA
and Oslo, Norway are authorized or obliged to close.
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"CLOSING DATE" shall mean the date notified as such in the Preliminary
Closing Notice which date shall be no later than the Latest Closing
Date and at least 5 (five) Business Days after the receipt by the
Account Bank from VIP of such Preliminary Closing Notice.
"CLOSING DEPOSIT AMOUNT" means US$53,000,000 in cleared funds.
"ESCROW AGENT FUNDING NOTICE" means a notice from the Escrow Agent to
the Account Bank and the Transaction Parties by the close of business
(London time) on the Business Day preceding the Closing Date stating
that, subject to receipt of (i) a Final Closing Notice from the
Investor and VIP and (ii) a Readiness Notice from the Account Bank, the
transfer of the Initial Deposit Amount to the VIP Dollar Account will
be effected by the Escrow Agent on the Closing Date.
"FINAL CLOSING NOTICE" means a notice from the Investor and VIP to the
Account Bank substantially in the form of SCHEDULE 3 with the dates
appropriately completed.
"LATEST CLOSING DATE" shall mean November 30, 2001 or such later date,
not later than the sixth Business Day after November 30, 2001, as the
Investor and VIP may notify the other Parties in writing signed by both
the Investor and VIP and delivered to the other Parties on or before
the first Business Day after November 30, 2001, in accordance with
CLAUSE 9.
"PRELIMINARY CLOSING NOTICE" means a notice from VIP to the Account
Bank substantially in the form of SCHEDULE 1 with the dates
appropriately completed.
"READINESS NOTICE" means a notice from the Account Bank to the Escrow
Agent substantially in the form of SCHEDULE 4 with the date
appropriately completed.
"RUBLES" means the lawful currency of the Russian Federation.
"SPECIAL SERVICES FEE AMOUNT" means an amount equal to all amounts
received by the Investor under CLAUSE 5(2)(iii)(bb) and CLAUSE
5(2)(iii)(cc) of the Escrow Agreement in respect of interest on the
Principal Amount from the Meeting Date (both as defined in the Escrow
Agreement) to but excluding the Closing Date.
"TERMINATION NOTICE" means a notice from the Investor and VIP to the
Escrow Agent (with a copy to the Account Bank) substantially in the
form of SCHEDULE 2 with the dates appropriately completed.
"US$" means lawful currency of the United States of America.
"VIP DOLLAR ACCOUNT" shall mean US$ denominated account number
40702840400700474054 in the name of and for the benefit of VIP with the
Account Bank.
"VIP XXXXX ACCOUNT" shall mean Xxxxx denominated account number
40702810600700474062 in the name of and for the benefit of VIP with the
Account Bank
"VIP XXXXX REGULAR ACCOUNT" shall mean Xxxxx denominated account number
40702810800700474011 in the name of and for the benefit of VIP with the
Account Bank.
"VIP-R XXXXX ACCOUNT" shall mean Xxxxx denominated account number
40702810800700809013 in the name of and for the benefit of VIP-R with
the Account Bank.
(2) Construction
The index to and headings in this Agreement are for convenience only
and should not be taken into account in construing this Agreement.
2. APPOINTMENT OF ACCOUNT BANK
The Transaction Parties hereby appoint the Account Bank to take any and
all actions with respect to the Investor Dollar Account, VIP Dollar
Account, VIP Xxxxx Account, VIP Xxxxx Regular Account and VIP-R Xxxxx
Account as may be necessary to satisfy the terms and conditions of this
Agreement, and the Account Bank hereby accepts such appointment.
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3. THE ESCROW ACCOUNT; ACCOUNTS WITH ACCOUNT BANK
(1) The Investor has the following bank account (the "ESCROW
ACCOUNT") in the name of and for the benefit of the Investor
with the Escrow Agent: Purchase Account, designated account
number 10111759 denominated in US$. The Investor shall open a
US$ denominated account in the name of and for the benefit of
the Investor (the "INVESTOR DOLLAR ACCOUNT") with the Account
Bank no later than July 1, 2001. The Investor Dollar Account
shall be maintained solely for the purpose, and on the terms
and subject to the conditions, of this Agreement.
(2) VIP has the VIP Dollar Account, the VIP Xxxxx Account, and the
VIP Xxxxx Regular Account with the Account Bank. The VIP
Dollar Account and VIP Xxxxx Account shall be maintained
solely for the purpose, and on the terms and subject to the
conditions, of this Agreement.
(3) VIP-R has the VIP-R Xxxxx Account with the Account Bank. The
VIP-R Xxxxx Account shall be maintained solely for the
purpose, and on the terms and subject to the conditions, of
this Agreement.
4. TRANSACTION PARTY UNDERTAKINGS
(1) VIP or the Investor and VIP, as applicable, shall give the
Account Bank notices, or copies thereof, as follows:
(i) PRELIMINARY CLOSING NOTICE. No later than five (5)
Business Days before the Closing Date, VIP shall
deliver a duly executed Preliminary Closing Notice
substantially in the form of SCHEDULE 1 hereto,
signed by VIP, to the Account Bank.
(ii) TERMINATION. If, pursuant to the Escrow Agreement,
the Investor and VIP shall deliver a Termination
Notice substantially in the form of SCHEDULE 2
hereto, signed by the Investor and VIP, to the Escrow
Agent, then contemporaneously therewith, the Investor
and VIP shall deliver a copy of such Termination
Notice to the Account Bank.
(2) The Investor shall deposit the Closing Deposit Amount in the
Investor Dollar Account no later than the close of business
(Moscow time) two (2) Business Days before the Closing Date or
such later time, not later than 10:30 a.m. (Moscow time) on
the Closing Date, as may be acceptable to the Account Bank in
its sole discretion. No later than the close of business,
Moscow time, on the first and second Business Days before the
Closing Date, the Account Bank shall advise VIP and the
Investor in writing whether or not the Account Bank has
received the Closing Deposit Amount and holds such amount in
the Investor Dollar Account and, if the Account Bank does not
hold such amount in such account, whether or not the Account
Bank has received US$ in cleared funds (not consisting of the
Initial Deposit Amount or any portion thereof received by the
Account Bank from the Escrow Agent) in the amount of the
Closing Deposit Amount for deposit in the VIP Dollar Account
and the Account Bank holds such sum in the VIP Dollar Account
in accordance with CLAUSE 5(2)(I). The Investor and VIP hereby
expressly authorize the Account Bank to provide such
information.
(3) No later than the close of business, Moscow time, two (2)
Business Days before the Closing Date, the Investor and VIP
shall execute and deliver in person to the Account Bank
customary documentation required by the Account Bank and such
supporting documents as may be required under applicable law,
including, without limitation, foreign exchange regulations
(collectively the "TRANSFER DOCUMENTS") in connection with all
the transfers and currency conversions contemplated by this
Agreement to be effected on the Closing Date. All Transfer
Documents shall be in form acceptable to the Account Bank.
(4) In case the Account Bank is unable to obtain in the market on
the Closing Date the Conversion Exchange Rate, the Account
Bank shall nevertheless process the Conversion at the
Conversion Exchange Rate in accordance with CLAUSE 5(2). VIP
shall immediately indemnify the Account Bank against any and
all losses incurred by the Account Bank as a result of the
actual rate of exchange being different from the Conversion
Exchange Rate. Hereby, VIP expressly authorizes the Account
Bank to charge the amount of such loss in Rubles on the
Closing Date or such later date as the Account Bank may select
from the VIP Xxxxx Regular Account. Hereby, VIP commits to
have for this
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purpose in the VIP Xxxxx Regular Account on the
Closing Date a balance in Rubles of not less than one percent
(1%) of the amount calculated as follows:
(i) the total amount (in Xxxxx equivalent at the official
exchange rate for US$ of the Russian Central Bank as
in effect for the Closing Date) to be converted from
US$ into Rubles on the Closing Date in accordance
with CLAUSE 5(2); less
(ii) the total amount (in Xxxxx equivalent at the official
exchange rate for US$ of the Russian Central Bank as
in effect for the Closing Date) to be converted for
whatever reason (as part of the Transaction or
otherwise) from Rubles into US$ by VIP and its
subsidiaries on the Closing Date.
VIP shall, and if applicable shall cause its subsidiaries to, provide
the Account Bank with all instructions necessary in the Account Bank's
opinion for the currency conversions referred to in item (ii) above at
the time specified for delivery of the Transaction Documents in CLAUSE
4(3). If any of the conversions referred to in item (ii) above are, in
the opinion of the Account Bank, impossible to process for any reason
(including, but not limited to, the foreign exchange regulations of the
Russian Federation), such conversions will be excluded from item (ii)
above for the purpose of the calculations above. The Account Bank shall
not include its foreign exchange commission in the calculation of the
exchange rate for the Conversion. VIP hereby expressly authorizes the
Account Bank to charge the amount of such commission in Rubles on the
Closing Date or such later date as the Account Bank may select from the
VIP Xxxxx Regular Account.
(5) If the conditions precedent to the obligations of the Investor
under Article VIII of the VIP Primary Agreement (other than
delivery of the VIP Stock and payment by Telenor East Invest
AS of its portion of the "Purchase Price" as defined in the
VIP Primary Agreement) and the conditions precedent to the
obligations of VIP under Article IX of the VIP Primary
Agreement (other than payment of the "Purchase Price" as
defined in the VIP Primary Agreement) have then been satisfied
or waived, then no later than 10:00 a.m. (Moscow time) on the
Closing Date, or such later time, not later than 10:45 a.m.
(Moscow time) on the Closing Date as may be acceptable to the
Account Bank in its sole discretion (the "LATEST FINAL CLOSING
NOTICE TIME"), the Investor and VIP shall execute and deliver
in person to the Account Bank a Final Closing Notice
substantially in the form of SCHEDULE 3.
(6) If there is a Dollar Overdraft Amount in the VIP Dollar
Account at the end of any Moscow Business Day, VIP shall pay
on demand of the Account Bank the amount of such Dollar
Overdraft Amount outstanding at the end of such Moscow
Business Day, together with interest thereon calculated in
accordance with CLAUSE 4(7) in US$ by credit to the VIP Dollar
Account. VIP hereby authorizes the Account Bank, if and to the
extent that payment of any Dollar Overdraft Amount outstanding
at the end of a Moscow Business Day is not made by VIP upon
demand or when otherwise due hereunder, to charge from time to
time (i) prior to the completion of the transfers and
conversions to be made in accordance with CLAUSE 5(2) and
CLAUSE 5(4), the balance of any US$ account of VIP with the
Account Bank other than the VIP Dollar Account and (ii) after
the completion of such transfers and conversions, the balance
of any US$ account of VIP with the Account Bank, to make such
payment.
(7) Interest shall be computed daily on the Dollar Overdraft
Amount and shall be payable monthly on the last day of each
calendar month, and on demand of the Account Bank, at a
fluctuating rate per annum set by the Account Bank (the
"DOLLAR OVERDRAFT RATE") and notified to VIP in accordance
with CLAUSE 9. The Dollar Overdraft Rate on the date of this
Agreement is 12 percent (12%) per annum; provided, that the
Account Bank may revise such rate at the beginning of any
calendar month by notice to VIP in accordance with CLAUSE 9.
Computations of interest shall be made by the Account Bank on
the basis of a year of 365/6 days for the actual number of
days (excluding the first day but including the last day)
occurring in the period for which interest is payable.
Whenever any payment hereunder shall be stated to be due on a
day other than a day on which banks are not required or
authorized by law to close in Moscow (any such other day being
a "MOSCOW BUSINESS DAY"), such payment shall be made on the
next succeeding Moscow Business Day, and such extension of
time shall be included in the computation of interest payable.
The Account Bank will, from time to time, prepare and send to
VIP statements of the VIP Dollar Account showing the charges
made thereto, the Dollar Overdraft Amount, and interest
thereon. Such statements, and any photocopies of items and
other records held by the Account Bank relating to the
Investor Dollar Account and to the VIP Dollar Account, the VIP
Xxxxx Account, VIP Xxxxx Regular Account or any of VIP or its
subsidiaries' other accounts with the Account Bank, shall
constitute evidence of the relevant matter hereunder.
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(8) For the avoidance of doubt, notwithstanding anything to the
contrary in this Agreement, the Account Bank will be available
beyond the customary end of the Moscow Business Day on the
Closing Date for as long as necessary to receive the transfer
of the Initial Deposit Amount from the Escrow Agent in
accordance with the Escrow Agreement, and will not charge
interest in respect of any overdraft in the VIP Dollar Account
at the customary end of such Moscow Business Day to the extent
that such overdraft is removed prior to the beginning of the
following Moscow Business Day.
(9) The Investor will provide a copy of any payment confirmation
or other account information reflecting payment of any amounts
received by the Investor under CLAUSE 5(2)(iii)(bb) and CLAUSE
5(2)(iii)(cc) of the Escrow Agreement promptly upon receipt
thereof.
5. OPERATING PROCEDURES
(1) Except as otherwise expressly provided in this Agreement and
the Schedules hereto (as amended from time to time), all
determinations of Xxxxx equivalents of amounts of US$ for
payments to be made pursuant to this Agreement shall be at the
official rate of the Russian Central Bank as in effect for the
Moscow Business Day preceding the date of such payment.
(2) Subject to timely (including with reference to any extension
of time to deposit the Closing Deposit Amount in the Investor
Deposit Account or any extension of the time to deliver the
Final Closing Notice granted by the Account Bank in its sole
discretion pursuant to CLAUSE 4(2) or CLAUSE 4(5), as
applicable) receipt by the Account Bank of all of the
following:
(i) cleared funds in the amount of the Closing Deposit
Amount for deposit in the Investor Dollar Account or
cleared funds (not consisting of the Initial Deposit
Amount or any portion thereof received by the Account
Bank from the Escrow Agent) in the amount of the
Closing Deposit Amount for deposit in the VIP Dollar
Account;
(ii) all of the Transfer Documents as specified in CLAUSE
4(3);
(iii) an Escrow Agent Funding Notice signed by the Escrow
Agent; and
(iv) a Final Closing Notice signed by the Investor and
VIP;
and the further conditions that:
(w) in the reasonable opinion of the Account Bank there
is no reason (any such reason being a "COMPLETION
DIFFICULTY") for any of the currency conversions and
transfers contemplated by this CLAUSE 5 to be illegal
or otherwise impossible to process (in particular,
but without limiting the generality of this
condition, it shall be a Completion Difficulty if any
of the accounts which are to be used in the course of
such currency conversions and transfers are frozen by
the tax authorities);
(x) after giving effect to any overdraft in the VIP
Dollar Account resulting from the conversion
contemplated by this CLAUSE 5(2), the aggregate of
all overdrafts in the VIP Dollar Account (such
aggregate at any time outstanding being the "DOLLAR
OVERDRAFT AMOUNT") shall not exceed Fifty-Five
Million U.S. Dollars (US$55,000,000); and
(y) the Account Bank has not then received notice from
the Escrow Agent that the Escrow Agent will not,
notwithstanding the Escrow Agent Funding Notice,
transfer the Initial Deposit Amount to the VIP Dollar
Account on the Closing Date;
the Account Bank shall, no later than 10:45 a.m., Moscow time, on the
Closing Date upon presentment by VIP of an instruction to sell up to
One Hundred and Twenty Million U.S. Dollars (US$120,000,000) from the
VIP Dollar Account and place the Xxxxx proceeds of such sale to the VIP
Xxxxx Account, commence the processing of such currency conversion (the
"CONVERSION") at the exchange rate (the "CONVERSION EXCHANGE RATE")
which is the higher of (i) the actual market rate the Account Bank
offers to its clients on the Closing Date and (ii) the Russian Central
Bank rate for the Moscow Business Day preceding the Closing Date.
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(3) At or before the time that the Account Bank begins to process
the Conversion and the transfers contemplated by CLAUSE 5(4)
in accordance with this Agreement and in such event no later
than 10:45 a.m. (Moscow time) on the Closing Date, the Account
Bank shall (i) deliver by facsimile a Readiness Notice
substantially in the form of SCHEDULE 4 hereto, signed by the
Account Bank, to the Escrow Agent and the Transaction Parties
at the addresses for the Escrow Agent and the Transaction
Parties specified in CLAUSE 9 and (ii) (unless such sum is
already on deposit in the VIP Dollar Account) transfer the
Closing Deposit Amount from the Investor Dollar Account to the
VIP Dollar Account with details of payment as follows:
PAYMENT BY ECO TELECOM LIMITED FOR NEWLY ISSUED SHARES OF OJSC
"VIMPEL-COMMUNICATIONS" PURSUANT TO SALE-PURCHASE AGREEMENT
NO. AV-01, RUSSIAN CENTRAL BANK REGULATION 660-U.
(4) As soon as reasonably practicable after completion of the
Conversion, the Account Bank shall:
(i) credit the Rubles generated from the Conversion to
the VIP Xxxxx Account;
(ii) transfer in accordance with SCHEDULE 6 from the VIP
Xxxxx Account to the VIP-R Xxxxx Account the Xxxxx
equivalent of the US$ amount specified and with
details of payment as specified in SCHEDULE 6;
(iii) transfer in accordance with SCHEDULE 7 from the VIP
Xxxxx Regular Account to the VIP-R Xxxxx account the
Xxxxx equivalent of the US$ amount specified and with
details of payment as specified in SCHEDULE 7; and
(iv) transfer, in accordance with SCHEDULE 8 from the
VIP-R Xxxxx Account, the Xxxxx equivalents of the US$
amounts, with the details of payment, and to the
accounts specified in SCHEDULE 8.
The Account Bank shall promptly confirm in writing to VIP, VIP-R and
the Investor in the form of standard banking documents (including
statements of accounts and other similar documents) issued by the
Account Bank that it has effected the Conversion and transfers to be
made in accordance with CLAUSE 5(2), CLAUSE 5(3) and this CLAUSE 5(4).
The Investor, VIP and VIP-R hereby expressly authorize the Account Bank
to provide information and documents related to the Investor Dollar
Account, VIP Dollar Account, VIP Xxxxx Account and VIP-R Xxxxx Account
to the Transaction Parties for the purpose of confirming the completion
of the transactions contemplated in CLAUSE 5(2), CLAUSE 5(3) and this
CLAUSE 5(4).
(5) Until the termination of this Agreement all funds on deposit
in the Investor Dollar Account, VIP Dollar Account, VIP Xxxxx
Account and VIP-R Xxxxx Account shall be used exclusively in
accordance with CLAUSE 5, including, without limitation, this
CLAUSE 5(5).
(6) The Account Bank shall pay the Investor interest on the sums
on deposit from time to time in the Investor Dollar Account as
may be agreed by the Account Bank and the Investor in a
separate writing; provided, that the Account Bank shall not
disburse the principal from time to time on deposit in the
Investor Dollar Account except in accordance with this
Agreement.
(7) VIP and VIP-R may amend SCHEDULE 8 hereto from time to time by
delivering an amended SCHEDULE 8 to the other Parties in
accordance with CLAUSE 9, which amendment shall state
expressly that such amended SCHEDULE 8 is to replace the
SCHEDULE 8 hereto (or any prior amendment to SCHEDULE 8
delivered in accordance with this CLAUSE 5(7)) and shall be
signed by both an officer of VIP and by both the Chief
Executive Officer and the Chairman of the Board of VIP-R. No
such amendment shall take effect until five (5) Business Days
after the amended SCHEDULE 8 is received by the Account Bank.
For purposes of this CLAUSE 5(7), an amendment shall be deemed
received by the Account Bank upon written confirmation of such
receipt by the Account Bank to the Transaction Parties.
(8) Each of the Transaction Parties hereby irrevocably and
expressly instructs the Account Bank to make, and consents to,
all disbursements, transfers and payments provided for in this
Agreement; provided that the Account Bank shall not comply
with any amendment to SCHEDULE 8 delivered to the Account Bank
in accordance with CLAUSE 5(7) herein if such amendment
requires the Account Bank to disburse, transfer, convert or
pay funds from the VIP-R Xxxxx Account in excess of the
aggregate
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amount of funds the Account Bank is instructed to credit to
the VIP-R Xxxxx Account as specified in CLAUSE 5(4) of this
Agreement. Except as necessary or desirable in connection with
the transfers contemplated by this Agreement, none of the
Transaction Parties shall submit any Transfer Documents to the
Account Bank in respect of the Investor Dollar Account, the
VIP Dollar Account, the VIP Xxxxx Account and/or the VIP-R
Xxxxx Account.
(9) The Account Bank shall be fully protected in relying on any
Final Closing Notice and shall not have any responsibility for
determining whether or not any conditions precedent to the
obligations of the Investor or the obligations of VIP under
the VIP Primary Agreement have been satisfied or waived. If,
on or before the Latest Final Closing Notice Time, the Account
Bank shall not have received a duly executed Final Closing
Notice signed by the Investor and VIP or shall determine that
a Completion Difficulty exists, then it shall not commence the
Conversion or the transfers contemplated by CLAUSE 5(3) and
5(4) and (i) if the Closing Deposit Amount has been deposited
in the Investor Dollar Account in accordance with CLAUSE 4(2),
the Account Bank shall retain or return the Closing Deposit
Amount to the Investor as the Investor shall instruct the
Account Bank, (ii) any Preliminary Closing Notice delivered to
the Account Bank pursuant to CLAUSE 4(1)(i) shall be void and
without effect, (iii) if the Account Bank has determined that
a Completion Difficulty exists, it shall promptly notify each
of the Transaction Parties and the Escrow Agent and (iv) this
Agreement shall remain in effect as if such Preliminary
Closing Notice had not been so delivered to the Account Bank.
(10) Except as specifically provided in this Agreement, the Account
Bank shall have no duties or responsibilities and shall not be
liable hereunder save for its own gross negligence or willful
default. The Parties agree that, notwithstanding any term of
this Agreement to the contrary, the Account Bank shall have no
liability for following instructions relating to any and all
transfers of funds from or into bank accounts governed by this
Agreement if required or prohibited by Russian law, as
applicable, whether such instructions are from governmental
entities, the account holder, or any other person entitled
under Russian law to give such instructions. The Account Bank
shall not be liable for its failure to complete any
transaction performed pursuant to this Agreement, including
currency conversions and transfers between accounts of the
Parties, resulting from limitations imposed by applicable
laws, acts of government bodies, officials, or other acts
beyond the control of the Account Bank, including market
conditions. The Account Bank shall be entitled to rely upon
any order, judgment, certification, demand, notice, or other
written instrument delivered to it hereunder without being
required to determine the authenticity or the correctness of
any fact stated therein or validity or the service thereof.
The Account Bank may act in reliance upon any instrument or
signature believed by it to be genuine and may assume that any
person purporting to give receipt or advice or make any
statement or execute any document in connection with the
provisions hereof has been duly authorized to do so.
6. ACCOUNTS WITH ACCOUNT BANK
It is further agreed that the Account Bank does not have any interest
in any amount deposited in the Investor Dollar Account, VIP Dollar
Account, VIP Xxxxx Account, or VIP-R Xxxxx Account hereunder but is
serving as custodian only. Except as expressly provided in this
Agreement to the contrary, none of the funds in the Investor Dollar
Account, VIP Dollar Account, VIP Xxxxx Account, or VIP-R Xxxxx shall be
subject to any lien or attachment by any creditor of any party (other
than those arising by operation of law) and all of such funds shall be
used solely for the purpose set forth in this Agreement.
7. [INTENTIONALLY OMITTED]
8. FEES AND EXPENSES
(1) In consideration of the performance of its role under this
Agreement, VIP and the Investor shall pay to the Account Bank
a Banking Service Fee of US$15,000, which is due and payable
in equal amounts by each of VIP and the Investor within thirty
(30) days of presentment of an invoice for such fee.
(2) As additional consideration for the performance by the Account
Bank of its role under this Agreement, the Investor shall pay
the Account Bank a fee in the amount of the Special Services
Fee Amount on the tenth (10th) Business Day after the Closing,
subject to timely receipt of interest from the Escrow Agent in
accordance with the Escrow Agreement. Such fee shall not be
payable if the Closing does not occur.
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(3) All amounts of whatever nature payable to, and recoverable by,
the Account Bank pursuant to the terms of this Agreement shall
be payable, without set-off or counterclaim, by the
Transaction Parties, as applicable, on the earlier of the date
specified in this Agreement and thirty (30) Business Days
following the receipt of any invoice from the Account Bank,
which invoice shall be delivered to VIP and the Investor in
accordance with CLAUSE 9 hereof.
9. NOTICES
All communications required pursuant to this Agreement shall be
addressed to the respective party as follows:
(1) If to the Investor, to:
Eco Telecom Limited
Xxxxx 0, 0 Xxxxx Xxxxx
Xxxxxxxxx
Xxxxxxxxx: Xxxxx Xxxx
Fax: x000-00000
OOO Alfa-Eco
21, Novy Arbat
121019 Moscow
Russian Federation
Attention: Stanislav Shekshnya
Fax: x0 000 000 0000
and a copy to:
Xxxxxxx Xxxxx CIS Legal Services
00, Xxxxxxxxxxxx Xxxxxxxx
000000 Xxxxxx
Russian Federation
Attention: Xxxxxxxx Xxxxxxx
Fax: x0 000 000 0000
(2) If to the Escrow Agent, to:
Citibank, N.A.
Xxxxxxx Xxxxxx
Xxx'x Xxxx
Xxxxxx XX0 0XX
Attention: Xxxx Xxxxxx/Xxxx X'Xxxx
Fax: (x00 00) 0000 0000/2931
(3) If to VIP, to:
OJSC "Vimpel-Communications"
10-12, Xxxxxx 0-Xxxxx
000000, Xxxxxx
Russian Federation
Attention: Xx Xxxxxx
Fax: x0 000 000 0000
with a copy to:
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Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
Xxxxx Xxxxx XX
0, Xxxxxx Xxxxxxx
123056, Moscow
Russian Federation
Attention: Xxxxxxx X. Xxxxxxxx
Fax: x0 000 000 0000
(4) If to VIP-R, to:
CJSC "Vimpelcom-R"
10-12, Xxxxxx 0-Xxxxx
000000, Xxxxxx
Russian Federation
Attention: General Counsel
Fax: x0 000 000 0000
with a copy to:
Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
Xxxxx Xxxxx XX
0, Xxxxxx Xxxxxxx
123056, Moscow
Russian Federation
Attention: Xxxxxxx X. Xxxxxxxx
Fax: x0 000 000 0000; and
Xxxxxxx Xxxxx CIS Legal Services
00, Xxxxxxxxxxxx Xxxxxxxx,
000000 Xxxxxx
Russian Federation
Attention: Xxxxxxxx Xxxxxxx
Fax: x0 000 000 0000
(5) If to the Account Bank, to:
Citbank T/O (OOO)
0-00 Xxxxxxx Xx.
000000 Xxxxxx, Russian Federation
Attention: Xxxxxx Xxxxxx
Fax: x0 000 000 0000
All such notices, requests and other communications will (a) if
delivered personally to the address provided in this CLAUSE 9, be
deemed given upon delivery, (b) if delivered by facsimile transmission
to the facsimile number provided in this Clause 9, be deemed given upon
printed electronic confirmation of receipt, and (c) if delivered by
courier to the address provided in this CLAUSE 9, be deemed given upon
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 CLAUSE 9). Any Party
from time to time may change its address, facsimile number or other
information for the purpose of notices hereunder by giving notice of
such change to the other Parties.
10. GENERAL
(1) This Agreement shall be binding upon and inure solely for the
benefit of the Parties and their respective successors and
assigns. Unless otherwise expressly permitted by this
Agreement, no Party
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may assign or otherwise transfer any of its rights, interests
or obligations under this Agreement without the prior written
consent of the other Parties.
(2) No Party shall be bound by any amendment or modification of
this Agreement, including the transfer of any interest
hereunder, unless such amendment or modification is in writing
and signed by or on behalf of each Party; provided, however,
that the Parties shall be bound by any amendment to SCHEDULE 8
hereto effected in accordance with the provisions of this
Agreement.
(3) Terms of this Agreement may only be waived by written consent
signed by or on behalf of each Party. The waiver by any Party
of a breach of any provision of this Agreement shall not
operate or be construed as a waiver of any other provision and
any extension of time for the performance of any obligation
shall not be deemed to be an extension of time for the
performance of any other obligation.
(4) Governing Law; Arbitration; Waiver of Sovereign Immunity
(a) This Agreement shall be governed by and construed in
accordance with the laws of the Russian Federation.
(b) Any and all disputes and controversies arising under,
relating to or in connection with this Agreement
shall be settled in the Arbitrazh Court of the City
of Moscow in accordance with the applicable laws of
the Russian Federation.
(c) Each of the Transaction Parties and the Account Bank
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 each of the Transaction
Parties and the Account Bank 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, 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), attachment of assets,
and enforceability of judicial or arbitral awards.
(6) If any provision in this Agreement or any other document
executed in connection herewith is or shall become invalid,
illegal or unenforceable in any jurisdiction, the invalidity,
illegality or unenforceability of such provision in such
jurisdiction shall not affect or impair the validity, legality
or enforceability of (i) any other provision of this Agreement
or any such other document in such jurisdiction or (ii) such
provision or any other provision of this Agreement or any such
other document in any other jurisdiction.
(7) This Agreement may be executed in any number of counterparts,
each having the same effect as if the signatures on the
counterparts were on a single copy of this Agreement.
(8) There are no third party beneficiaries of this Agreement and
this Agreement may not be enforced by anyone that is not a
Party.
(9) Each of the Transaction Parties shall provide to the Account
Bank all instruments and documents within their respective
powers to provide that are necessary for the Account Bank to
perform its duties and responsibilities hereunder.
(10) Unless otherwise agreed in writing by the Transaction Parties,
the Account Bank shall not be entitled to appoint any
sub-agents for performance of any rights or obligations under
this Agreement.
11. TERMINATION
This Agreement shall terminate and the Account Bank shall be discharged
from all duties and liabilities hereunder, only upon such date as the
Account Bank shall have distributed all sums deposited in the Investor
Dollar Account, the VIP Dollar Account, the VIP Xxxxx Account, and the
VIP-R Xxxxx Account in accordance with this Agreement, without
prejudice to the rights of the Parties accruing hereunder during the
term of this Agreement. CLAUSES 4(4), 5(9), 5(10), 8 and 10 of this
Agreement shall survive the termination of this Agreement.
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12. EFFECTIVE DATE
This Agreement shall come into effect upon signing thereof.
[Remainder of Page Intentionally Blank]
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IN WITNESSETH WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first written above.
THE INVESTOR
ECO TELECOM LIMITED
By: /s/ Serge Barychkov
Name: Serge Barychkov
Title: Attorney-in-Fact
VIP
OPEN JOINT STOCK COMPANY
"VIMPEL-COMMUNICATIONS"
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: President
By: /s/ Xxxxxxxx X. Bychenkov
Name: Xxxxxxxx X. Bychenkov
Title: Chief Accountant
VIP-R
CLOSED JOINT STOCK COMPANY
"VIMPELCOM-REGION"
By: /s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: Authorized Person
By: /s/ Xxxxxx Xxxxxxxxx
Name: Xxxxxx Xxxxxxxxx
Title: Chief Accountant
THE ACCOUNT BANK
CITIBANK T/O (OOO)
By: /s/ Xxxxxx Xxxxxxxxxxx
Name: Xxxxxx Xxxxxxxxxxx
Title: Vice President
By: /s/ Xxxxxxxx Xxxxxxxxx
Name: Xxxxxx Xxxxxx
Title: Chief Accountant
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DATED MAY 30, 2001
ECO TELECOM LIMITED,
OPEN JOINT STOCK COMPANY "VIMPEL-COMMUNICATIONS",
CLOSED JOINT STOCK COMPANY "VIMPELCOM-REGION",
and
CITIBANK T/O (OOO)
as Account Bank
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ACCOUNT BANK AND OVERDRAFT AGREEMENT
----------------------------------------------
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CONTENTS
1. INTERPRETATION..........................................................1
2. APPOINTMENT OF ACCOUNT BANK.............................................2
3. THE ESCROW ACCOUNT; ACCOUNTS WITH ACCOUNT BANK..........................3
4. TRANSACTION PARTY UNDERTAKINGS..........................................3
5. OPERATING PROCEDURES....................................................5
6. ACCOUNTS WITH ACCOUNT BANK..............................................7
7. [INTENTIONALLY OMITTED].................................................7
8. FEES AND EXPENSES.......................................................7
9. NOTICES.................................................................8
10. GENERAL.................................................................9
11. TERMINATION............................................................10
12. EFFECTIVE DATE.........................................................11
