Exhibit 3
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THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR ANY STATES
SECURITIES LAWS. NEITHER THIS NOTE NOR ANY PORTION THEREOF MAY BE SOLD,
TRANSFERRED, PLEDGED HYPOTHETICATED OTHERWISE DISPOSED OF OR OFFERED FOR SALE
UNLESS AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT IS
AVAILABLE WHICH IS ACCOMPANIED BY AN OPINION OF COMPANY COUNSEL THAT SUCH
REGISTRATION IS NOT REQUIRED.
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U.S.$ 1,000,000 UNSECURED NOTE
OF
HUNGARIAN TELEPHONE AND CABLE CORP.
(incorporated with limited liability under the laws of
the State of Delaware, U.S.A)
(the "Issuer")
Issue Date: May 1999 Expiration Date: 31 March 2007
This note certificate ("Note Certificate") certifies that Postabank es
Takarekpenztar Reszvenytarsasag (the "Noteholder") is recorded in the register
(the "Register") maintained by the Issuer as the registered holder of this Note
in the face amount of U.S.$ 1,000,000.
This Note Certificate is one of a series of twenty-five notes (the "Notes")
which have been constituted by the Issuer pursuant to a securities purchase
agreement (the "Securities Purchase Agreement") dated May 1999 made between: (1)
the Issuer; and (2) Postabank es Takarekpenztar Reszvenytarsasag. The Notes are
subject to the terms and conditions (the "Conditions") a copy of which is
attached hereto.
The Issuer for value received promises, in accordance with the Conditions, to
pay to the Noteholder the principal amount of this Note outstanding on the date
and in the amount specified in the Conditions and any additional amounts payable
thereunder.
Upon any redemption of the principal amount outstanding of this Note in
accordance with the Conditions, the amount so redeemed shall be recorded by the
Issuer in the Register and the principal amount outstanding of this Note from
time to time shall be as recorded in the Register. The Issuer will promptly upon
written request from a Noteholder provide free of charge to such Noteholder a
certified copy of the Register indicating the aggregate principal amount of the
Notes redeemed on or prior to the date of such copy.
This Note is issued in registered form and then is not transferable in part.
AS WITNESS the signature of a duly authorised officer on behalf of the Issuer:
HUNGARIAN TELEPHONE AND CABLE CORP. - as Issuer
By:
-----------------------------------
duly authorised signatory
ISSUED as of May 1999
Terms and Conditions of the Notes
The issue (the "Note Issue") of the notes (the "Notes") of Hungarian Telephone
and Cable Corp. (the "Issuer") are constituted by these terms and conditions
(the "Conditions"). The Noteholders (as defined below) are bound by, and are
deemed to have notice of, all the Conditions contained herein applicable to
them.
1. Defined Terms and Interpretations
In the Securities Purchase Agreement (including the attached
Exhibits) and in respect of the certificates for and terms and
conditions of the Notes (unless otherwise defined therein):
"Bridge Loan Agreement" means the HUF 33,700,000,000 bridge loan
agreement dated May 1999 made between: (1) Hungarotel Tavkozlesi
Koncesszios Reszvenytarsasag as Borrower; (2) RABA-COM Tavkozlesi
Koncesszios Reszvenytarsasag as Borrower; (3) Papa es Tersege
Tavkozlesi Koncesszios Reszvenytarsasag as Borrower; (4) KNC
Kelet-Nograd COM Tavkozlesi Koncesszios Reszvenytarsasag as
Borrower; (5) Postabank es Takarekpenztar Reszvenytarsasag as
Arranger; (6) Postabank es Takarekpenztar Reszvenytarsasag as
Facility Agent; (7) Postabank es Takarekpenztar Reszvenytarsasag as
Security Agent; (8) the financial institutions defined in such loan
agreement as the Banks; (9) Hungarian Telephone and Cable Corp. as
Countersignor; and (10) HTCC Tanacsado Reszvenytarsasag as
Countersignor;
"Business Day" shall be construed as a reference to a day (other
than a Saturday or Sunday) on which banks are generally open for
business in New York City and Budapest;
"Clause" shall, subject to any contrary indication, be construed as
a reference to a Clause hereof;
"Concession Contract" has the meaning ascribed to such term in the
Bridge Loan Agreement;
"Condition" and "Conditions" shall have the meanings ascribed
thereto herein;
"Expiration Date" means 31 March 2007, or if such day is not a
Business Day, the next succeeding day which is a Business Day;
"Finance Documents" has the meaning ascribed to such term in the
Bridge Loan Agreement;
"Fixed Margin" means in relation to each Interest Period or other
relevant period six per cent. (6%) per annum. Provided that if the
interest on the Notes is duly paid on the Interest Payment Date for
each Interest Period when due, then the Fixed Margin for such
Interest Period shall be four per cent (4%) per annum;
"HUF" denote the lawful currency for the time being of Hungary;
"holder" has the meaning ascribed to such term in Clause 5.2;
"Hungary" means the Republic of Hungary;
"Interbank Rate" means in relation to any Interest Period or other
period, the arithmetic mean (rounded upward to the nearest four
decimal places) of the offered quotations for U.S. dollar deposits
for such period which appear on the relevant Telerate Page of the
Telerate Service which displays a British Bankers Association
Interest Settlement Rate for U.S. dollars (or such other page or
such other service as may replace such page and/or service, as
appropriate, for the purpose of displaying London Interbank Offered
Rates of leading banks) at or about 11.00 a.m. (London time) on the
applicable Quotation Day provided that if there is one only or no
such offered quotations on the relevant Telerate Page of the
Telerate Service or there is no relevant Telerate Page, the
applicable interest rate shall be the arithmetic mean (rounded
upwards, if not already such a multiple of one-sixteenth of one per
cent. (0.0625%)) of the rates at which each of the Reference Banks
was offering to prime banks in the Budapest Interbank market
deposits in U.S. dollars at or about 11.00 a.m. (Budapest time) on
the applicable Quotation Day for a period equal to such period and
in an amount comparable with the amount to be outstanding during
such period;
"Interest Payment Date" has the meaning ascribed to it in Clause
14.2;
"Interest Period" means, subject as provided below, in relation to
any Note, a period of six (6) calendar months Provided that:
(a) if any Interest Period would otherwise end on a day which is not
a Business Day, that Interest Period shall be extended to the
next succeeding Business Day unless the result of such extension
would be to carry such Interest Period over into another
calendar month in which event such Interest Period shall end on
the last preceding Business Day; and
(b) any Interest Period which commences on the last day of a
calendar month and any Interest Period which commences on a day
for which there is no numerically corresponding day in the
calendar month which is the relevant number of months after the
commencement of such Interest Period shall end on the last
Business Day of the calendar month which is the relevant number
of calendar months after the commencement of such Interest
Period;
"Issue Date" means in relation to the Notes, the date(s) specified
as such in the Note Certificates;
"Issuer" means the Issuer of the Notes, being Hungarian Telephone
and Cable Corp.;
"Mandatory Prepayment Events " means any one of the events specified
as such in Clause 16 (Mandatory Prepayment Events) or any event
which the passing of time, the giving of notice, the making of any
determination and/or, as appropriate, the formation of any opinion
as specified in Clause 16 (Mandatory Prepayment Events) would or
might constitute such an event;
"Master Closing Agreement" means the master closing agreement dated
May 1999 made between: (1) Hungarian Telephone and Cable Corp.; (2)
HTCC Tanacsado Reszvenytarsasag; (3) Hungarotel Tavkozlesi
Koncesszios Reszvenytarsasag; (4) RABA-COM Tavkozlesi Koncesszios
Reszvenytarsasag; (5) Papa es Tersege Tavkozlesi Koncesszios
Reszvenytarsasag; (6) KNC Kelet-Nograd COM Tavkozlesi Koncesszios
Reszvenytarsasag; (7) Postabank es Takarekpenztar Reszvenytarsasag
as Arranger; (8) Postabank es Takarekpenztar Reszvenytarsasag as
Facility Agent; (9) Postabank es Takarekpenztar Reszvenytarsasag as
Security Agent; (10) Postabank es Takarekpenztar Reszvenytarsasag as
Bank; and (11) Postabank es Takarekpenztar Reszvenytarsasag as
Closing Agent;
"month" is a reference to a period starting on one day in a calendar
month and ending on the numerically corresponding day in the next
succeeding calendar month save that, where any such period would
otherwise end on a day which is not a Business Day, it shall end on
the next succeeding Business Day, unless that day falls in the
calendar month succeeding that in which it would otherwise have
ended, in which case it shall end on the immediately preceding
Business Day if a period starts on the last Business Day in a
calendar month or if there is no numerically corresponding day in
the month in which that period ends, that period shall end on the
last business day in that later month;
"Notes" means the notes issued or to be issued in accordance with
the Securities Purchase Agreement the terms and conditions of which
notes are the Conditions contained herein;
"Note Certificate" means a certificate evidencing a Note issued by
the Issuer as more particularly described in the Conditions and
substantially in the form set out herein;
"Noteholder" has the meaning ascribed to such term in Clause 5.2;
"Note Issue Period" means the period from May 1999 until the
Expiration Date;
"person" shall be construed as a reference to any person, firm,
company, corporation, government, state or agency of a state or any
association or partnership (whether or not having separate legal
personality) of two or more of the foregoing;
"Securities Purchase Agreement" means the securities purchase
agreement dated May 1999 made between: (1) Hungarian Telephone and
Cable Corp.; and (2) Postabank es Takarekpenztar Reszvenytarsasag;
"Quotation Day" means in relation to any Interest Period or other
period, the day on which interest rate quotations are ordinarily
given by prime banks in the London Interbank Market for deposits in
U.S. dollars for delivery on the first day of the Interest Period or
other such period Provided that, if, for any such period, quotations
would ordinarily be given on more than one day, the Quotation Day
for such period will be the last of those days;
"Reference Banks" has the same meaning as is applied to it in the
Bridge Loan Agreement;
"Register" means the register to be kept by the Issuer in which the
Noteholders from time to time of the Notes are registered;
"Schedule" shall, subject to any contrary indication, be construed
as a reference to a schedule hereto;
"tax" shall be construed so as to include any tax, levy, impost,
duty or other charge of a similar nature (including, without
limitation, any penalty or interest payable in connection with any
failure to pay or any delay in paying any of the same);
"Warrants" means the warrants to purchase common stock of Hungarian
Telephone and Cable Corp. set out as Exhibit B to the Securities
Purchase Agreement.
"winding up", "dissolution", "administration or "re-organisation" of
a company or corporation shall be construed so as to include any
equivalent or analogous proceedings under the law of the
jurisdiction in which such company or corporation is incorporated or
any jurisdiction in which such company or corporation carries on
business, including the seeking of liquidation, winding up,
re-organisation, dissolution, administration, arrangement,
adjustment, protection or relief of debtors (except in each case for
the purpose of a reconstruction approved in advance in writing by
each Noteholder);
"U.S. dollar", "dollars", "USD", "$" and "U.S.$" denote the lawful
currency for the time being of the United States of America.
1.2 Save where the contrary is indicated, any reference herein to:
1.2.1 the Securities Purchase Agreement or any other agreement or
document shall be construed as a reference to the Securities
Purchase Agreement or, as the case may be, such other
agreement or document as the same may have been, or may from
time to time be, amended, varied, notated or supplemented;
1.2.2 a reference to any person includes its successors and
permitted transferees and permitted assigns; and
1.2.3 a statute shall be construed as a reference to such statute as
the same may have been, or may from time to time be, amended
or re-enacted.
1.3 Clause and Schedule headings are for ease of reference only. Unless
the context otherwise requires, words denoting the singular shall
include the plural and vice versa.
2. The Notes
Subject to satisfaction or express waiver by the Noteholders of the
conditions precedent set out in Clause 8 (Conditions Precedent to
the Issuance of the Notes), the Noteholders grant to the Issuer upon
the terms and subject to the Conditions hereof U.S. dollar notes
issuance, pursuant to which Notes having an aggregate face value of
up to twenty-five million U.S. dollars (U.S.$ 25,000,000) will, in
twenty-five (25) Notes of equal value, be issued during the Note
Issue Period.
3. Purpose
3.1 The proceeds of the Notes shall be used by the Issuer, inter alia,
for refinancing drawings under certain existing indebtedness of the
Group with Postabank es Takarekpenztar Reszvenytarsasag and for
fees, costs and expenses associated with the Securities Purchase
Agreement and the transactions contemplated therein.
3.2 Without prejudice to the obligations of the Issuer under Clause 3.1,
no Noteholder shall be obliged to concern itself with the
application of amounts raised by the Issuer hereunder.
4. Constitution of the Notes
4.1 The Issuer hereby covenants in favour of the Noteholders and each
Noteholder that it will duly perform and comply with the obligations
expressed to be undertaken by it in the Conditions (and for this
purpose any reference in the Conditions to any obligation or payment
under or in respect of any Note shall be construed to include a
reference to any obligation or payment under or pursuant to this
provision). The Issuer hereby unconditionally and irrevocably
acknowledges the right of every Noteholder to the prompt production
of a copy of the Securities Purchase Agreement.
4.2 The covenant set out in Clause 4.1 shall take effect as a deed poll
for the benefit of the Noteholders and each Noteholders and shall
enure to the benefit of the Noteholders and each Noteholder and
its/their (and any subsequent) successors and assigns, each of which
shall be entitled severally to enforce the covenant set out in
Clause 4.1.
4.3 Each Noteholder shall be entitled to transfer or assign all or any
of its rights, benefits and obligations in respect of this Clause 4
solely in accordance with Clause 6 (Transfers of Notes).
5. Form and Title
5.1 The Notes are issued in registered form. The Issuer will maintain a
register (the "Register") in respect of the Notes.
5.2 Title to each Note is passed by and upon registration in the
Register. In these Conditions, the "holder" of a Note means the
person in whose name such Note is for the time being registered in
the Register (or, in the case of a joint holding, the first named
thereof) and "Noteholder" shall be construed accordingly. A
certificate (each a "Note Certificate") will be issued to each
Noteholder in respect of its registered holding. The holder of a
Note shall (except as otherwise required by law) be treated as the
absolute owner of such Note for all purposes (whether or not it is
overdue and regardless of any notice of ownership, trust or any
other interest therein, any writing on any Note Certificate relating
thereto (other than the endorsed form of transfer) or any notice of
any previous loss or theft of such Note Certificate) and no person
shall be liable for so treating such holder.
6. Transfers of Notes
6.1 Subject to Article XI of the Securities Purchase Agreement and
Clause 6.3 below, a Note may be transferred in whole (but not in
part) upon surrender of the relevant Note Certificate, with the
endorsed form of transfer duly completed, at the specified office of
the Issuer, together with such evidence as the Issuer may reasonably
require to prove:
(a) the title of the transferor; and
(b) the authority of the individuals who have executed the form of
transfer;
Provided that no Note may be transferred without a corresponding
transfer of the relevant Noteholder's rights and obligations under
the Note Issue. The transfer of a Note will be effected without
charge.
6.2 Within five (5) Business Days of the surrender of a Note Certificate
in accordance with Clause 6.1 above, the Issuer will register the
transfer in question provided it is duly stamped and deliver a new
Note Certificate to the relevant holder at its specified office or
(at the request and risk of such relevant holder) by uninsured first
class mail (airmail if overseas) to the address specified for the
purpose by such relevant holder.
6.3 No Noteholder may require transfers to be registered during the
period of five (5) Business Days ending on the due date for any
payment of principal in respect of any Note.
7. Status
The Notes constitute direct, general and unconditional obligations
of the Issuer which will at all times rank pari passu with all other
present and future unsecured obligations of the Issuer.
8. Conditions Precedent to Issuance of the Notes
Prior to issuing the Notes the Closing Agent must have first issued
a written confirmation to the Issuer confirming that the conditions
precedent for the issue of the Notes, as set out in the Master
Closing Agreement, have been duly satisfied.
9. Representations and Warranties of the Issuer
The Issuer hereby repeats and on the Issue Date of any Note is
deemed to repeat, in favour of the Noteholders and each Noteholder,
each of the representations and warranties set out in Article III
(Representations and Warranties of the Company) of the Securities
Purchase Agreement, as if each such representation and warranty were
set out herein, by reference to the then existing facts and
circumstances.
10. Covenants of the Issuer
10.1 The Issuer covenants with the Noteholders and each Noteholder that
it shall provide them with such financial and other information
regarding the Issuer, its business and assets as any Noteholder may
from time to time reasonably require.
10.2 The Issuer covenants with and undertakes to the Noteholders and to
each Noteholder:
(a) to inform each Noteholder promptly upon any of the
representations and warranties given or to be given by the
Issuer in Article III of the Securities Purchase Agreement
becoming materially untrue or inaccurate, by reference to the
then existing facts and circumstances;
(b) that it shall not issue any bond, note, debenture or debenture
stock, except pursuant to the Securities Purchase Agreement or
for the purpose of redeeming any Note issued hereunder;
(c) to supply the Noteholders and each Noteholder with the
financial information as set out in Article VI (Affirmative
Covenants of the Company) of the Securities Purchase
Agreement; and
(d) to promptly notify the Noteholders and each Noteholder of the
occurrence of any Mandatory Prepayment Events or potential
Mandatory Prepayment Events.
11. Redemption
11.1 The Notes will be redeemed at its face amount on the Expiration
Date, together with all accrued interest and any other amount
payable under the Notes. The Notes on redemption will be cancelled
and may not be reissued or resold.
11.2 The Issuer may redeem the Notes, in whole or in part, prior to
the Expiration Date
Provided that:
(a) the Issuer shall give to the Noteholders not less than ten
(10) Business Days prior written notice of its intention to
make any such prepayment;
(b) on the redemption of the whole of the Notes, the Issuer shall
pay to the Noteholders the face amount of the Notes, together
with all accrued interest and any other amount payable under
the Notes;
(c) the Issuer shall pay to the Noteholder on demand a sum equal
to the reasonable breakage costs incurred by the Noteholder as
a result of redemption of the Note prior to the Expiration
Date (as determined by the Noteholder); and
(d) any redemption of part of the Notes will be subject to the
minimum prepayment of five million U.S. dollars (U.S.$
5,000,000) and integral multiples of one million U.S. dollars
(U.S.$ 1,000,000), and any such prepayment shall be applied by
the Issuer pro rata towards the prepayment of the amounts of
principal of each of the Notes then outstanding.
12. Payments
12.1 On each date on which these Conditions require an amount to be paid
by the Issuer, the Issuer shall make the same available to
Noteholders at the opening of business on the due date for such
payment by payment in U.S. dollars and in immediately available
cleared funds to a bank account of each Noteholder in New York City
or Budapest specified from time to time to the Issuer by such
Noteholder for this purpose.
12.2 If the date on which any payment is to be made under the Conditions
is not a Business Day then the Noteholders shall not be entitled to
payment of such amount until the next following Business Day and
shall not be entitled to any further interest or other payment in
respect of any such delay.
12.3 All payments required to be made by the Issuer hereunder shall be
made in U.S. dollars and shall be calculated without reference to
any set-off or counterclaim and shall be made free and clear of any
without any deduction for or on account of any set-off or
counterdown save as required by mandatory provisions of law.
13. Taxes and Tax Credits
13.1 All sums payable in respect of the Notes shall be made free and
clear of and without withholding or deduction for or on account of
any tax unless the Issuer is required by law to make such a payment
subject to the withholding or deduction of tax, in which case to the
extent that the Noteholder is the Noteholder the sum payable by the
Issuer in respect of which such withholding or deduction is required
to be made shall be increased to the extent necessary to ensure
that, after the making of such withholding or deduction, each
Noteholder receives and retains (free from any liability in respect
of any such withholding or deduction) a net sum equal to the sum
which it would have received and so retained had no such withholding
or deduction been made or required to be made.
13.2 If, at any time, the Issuer is required by law to make any
withholding or deduction from any sum payable by it hereunder (or if
thereafter there is any change in the rates at which or the manner
in which such withholdings or deductions are calculated), the Issuer
shall promptly notify the Noteholder.
13.3 If, following the making of any increased payment by the Issuer
pursuant to Clause 13.1, a Noteholder receives or is granted a
credit against, remission for or repayment of any tax payable or
suffered by it which is referable to such deduction or withholding
or such increased payment and which confers a genuine benefit on
such Noteholder, such Noteholder shall, to the extent that the
auditors of such Noteholder (acting as experts and not as
arbitrators) are reasonably satisfied that it can do so without
prejudice to the retention of such credit, remission or repayment,
promptly reimburse the Issuer with such amount as the auditors of
such Noteholder (acting as experts and not as arbitrators) shall
reasonably determine and certify (substantiating in reasonably
sufficient detail the amount concerned but not including any matters
which such Noteholder fairly regards as confidential) to the Issuer
to be such proportion of such credit, remission or repayment as will
leave such Noteholder (after such reimbursement) in no better
position (after tax) than would have been the case had no such
deduction or withholding been required to be made.
13.4 Reimbursement shall be made under Clause 13.3 above within seven (7)
days after a Noteholder has actually received the benefit of such
exemption, credit, emission or repayment, but any reimbursement
shall include an amount in respect of interest or repayment
supplement on or in respect of tax actually received or credited to
such Noteholder in respect of such exemption, credit, remission or
repayment and such Noteholder shall not unreasonably delay the
obtaining of such benefit.
13.5 If a Noteholder is obliged to pay to the Issuer any sum under a Note
and:
(a) any such exemption, credit, remission or repayment as is
referred to in Clause 13.3 is subsequently withdrawn in whole
or in part; or
(b) such sum is paid on the basis that it would be allowed to such
Noteholder as a deduction or offset for taxation purposes in
the accounting period of such Noteholder and such assumption
subsequently proves to be incorrect,
then the Issuer shall repay to such Noteholder promptly on demand
such amount as the auditors of such Noteholder (acting as experts
and not as arbitrators) shall reasonably determine and certify
(substantiating in reasonably sufficient detail the amount concerned
and not including any matters which such Noteholder fairly regards
as confidential) to the Issuer to be such amount as will leave such
Noteholder (after such repayment) in no better position (after tax)
than would have been the case had no such circumstances mentioned in
paragraphs (a) and (b) above existed.
14. Interest
14.1 The rate of interest on the Notes for each Interest Period shall be
the aggregate of the applicable:
(a) Fixed Margin; and
(b) Interbank Rate.
14.2 Except as otherwise provided herein, interest shall be payable by
the Issuer in U.S. dollars on (except as specified in Clause 14.3)
the last day of each Interest Period (each such day, subject as
provided in Clause 14.3, an "Interest Payment Date").
14.3 The first Interest Period in respect of the Notes will commence on
the day that is twelve (12) months after the Issue Date, with the
first Interest Payment Date being six (6) months thereafter.
14.4 Interest shall accrue from day to day from and including the first
day of the relevant Interest Period to but excluding the last day
thereof and shall be calculated at the rate specified in Clause
14.1.
15. Default Interest and Indemnity
15.1 If interest in respect of any Note which is due and payable by the
Issuer hereunder is not paid on the due date therefor or if any sum
due and payable by the Issuer under any judgment of any court in
connection herewith is not paid on the date of such judgment, such
sum (the balance thereof for the time being unpaid being herein
referred to as an "unpaid sum") shall bear interest beginning on
such due date or, as the case may be, the date of such judgment and
ending on the date upon which the obligation of the Issuer to pay is
discharged over successive periods selected by the relevant
Noteholder(s). During each such period an unpaid sum shall bear
interest at the rate of two per cent. (2%) per annum above the rate
payable under Clause 14.1.
15.2 Any interest which shall have accrued under Clause 15.1 in respect
of an unpaid sum shall be due and payable and shall be paid by the
Issuer to the relevant Noteholder(s) at the end of the period by
reference to which it is calculated or on such other date or dates
as such Noteholder(s) may specify by written notice to the Issuer.
15.3 The Issuer undertakes to indemnify each Noteholder against any cost,
claim, loss, expense (including legal fees) or liability, which it
may sustain or incur as a consequence of the occurrence of any
default by the Issuer in the performance of any of the obligations
expressed to be assumed by it in respect of the Notes.
16. Mandatory Prepayment Events
16.1 If at any time the Issuer raises any indebtedness whatsoever which
in aggregate is U.S.$ 12,500,000 or more than the amount then
necessary to repay all the principal and interest then outstanding
under the Bridge Loan Agreement, the Issuer will immediately apply,
pro tanto, the amount of such additional financial indebtedness in
excess of U.S.$ 12,500,000 towards the prepayment of the principal
then outstanding under the Notes.
16.2 Upon the occurrence of any of the fact(s), event(s) or
circumstance(s) set out below, the Issuer will immediately prepay to
the Noteholders all the outstanding principal and all interest and
all other amounts payable under and/or relating to the Notes:
(a) the Issuer fails to pay any sum required to be paid,
including, but not limited to interest, under the terms
provided herein on the due date and in the event that such
failure arises for technical or administrative reasons it
continues for two (2) Business Days;
(b) a successful tender offer is made for the ordinary shares of
the Issuer;
(c) any of the Issuer, any of its subsidiaries or Tele Danmark is
in material breach or default under any Finance Documents to
which it is a party;
(d) the Issuer or any of its subsidiaries does any formal act
amounting to or evidencing any abandonment or sale (or any
intention thereof) by any such subsidiary of any Concession
Contract to which it is a party;
(e) it becomes unlawful for the Issuer to comply with any of its
obligations under the Securities Purchase Agreement and/or any
of the Notes; and/or
(f) the Issuer or any one or more of its subsidiaries declares an
ordinary share dividend prior to the exercising of or the
cancellation of the Warrants.
17. Replacement of Note Certificate
Subject to Article X of the Securities Purchase Agreement, if any
Note Certificate is lost, stolen, mutilated, defaced or destroyed,
it may be replaced at the specified office of the Issuer, subject to
all applicable laws, upon payment by the claimant of the expenses
incurred in connection with such replacement and on such terms as to
evidence, security, indemnity and otherwise as the Issuer may
reasonably require. Mutilated or defaced Note Certificates must be
surrendered before replacements will be issued.
18. Modification and Noteholders' Resolutions
18.1 Any modification to these Conditions shall be agreed in writing
between the Issuer and Noteholders holding at least eighty per cent.
(80%) of the face amount of the Notes and any such modifications so
agreed shall be binding on all further Noteholders.
18.2 Any resolution of Noteholders in relation to these Conditions may be
made in writing signed by or on behalf such Noteholders holding the
relevant face amount of Notes upon delivery to the Issuer by each
such Noteholder of such evidence as to its identity and its capacity
as Noteholder as the Issuer may reasonably require.
19. Miscellaneous
19.1 No failure by any Noteholder to exercise, nor any delay by such
Noteholder in exercising, any right or remedy in respect of any of
the Notes shall operate as a waiver thereof, nor shall any single or
partial exercise of any right or remedy prevent any further or other
exercise thereof or the exercise of any other right or remedy. The
rights and remedies herein provided are cumulative and not exclusive
of any other rights or remedies (whether provided by law or
otherwise).
19.2 Subject to Section 12.9 (Expenses) of the Securities Purchase
Agreement, the Issuer will pay all costs associated with the Notes
Issue.
20. Notices
20.1 Any notice required to be issued or delivered by any party hereto to
any other party hereto shall be issued or delivered, unless
otherwise provided herein, by letter, telephone or facsimile to, in
the case of the Issuer, the Issuer's other representative as set out
below and, in the case of any Noteholder, to its representative
specified on the Register (or to such other representative or to
such other address as such Noteholder may hereafter specify in
writing to the other parties hereto):
ISSUER
Address: Xxxxxxxxxx xxxx 0., X-0000 Xxxxxxxx, Xxxxxxx
Tel: + 00 0 000 0000
Facsimile: + 36 1 202 2974
Attention of: Xxx Xxxxxxx
Copied to: Legal Counsel
Xx. Xxxxx Xxxxxxx - Xxxxx & Partners Xxxxxxxx Chance
Madach Trade Center, Xxxxxx Xxxx ut 14, X-0000
Xxxxxxxx, Xxxxxxx
Fax: x00 0 000 0000
Tel: x00 0 000 0000)
20.2 Any notice delivered by hand to the notice address of the addressee
shall be deemed to be served at the time of delivery, notices sent
by facsimile shall be deemed to be served upon completion of
transmission and notices sent by first class post or pre-paid
recorded delivery shall be deemed to be served forty-eight (48)
hours after time of posting.
21. Law
The Notes are governed by, and shall be construed in accordance
with, the laws of the State of New York.
22. Arbitration
22.1 If any dispute, as between the Issuer and any Noteholder arises in
respect of a Note, including, but not limited to, any question as to
its existence, validity or termination, such dispute shall be
referred to and finally resolved by arbitration in accordance with
the Arbitration Rules of the United Nations Commission on
International Trade Law ("UNCITRAL") which are applicable at the
time of reference to such arbitration and which are deemed to be
incorporated by reference into this Clause 22.1. Any arbitration
proceedings commenced pursuant to this Clause 22.1 shall be
conducted by a tribunal comprising three (3) arbitrators, the first
arbitrator selected by the relevant Noteholder(s), the second
arbitrator selected by the Issuer and the third arbitrator selected
by agreement by the first and second arbitrator, or failing such
agreement such third arbitrator shall be appointed by the Court of
Arbitration attached to the Hungarian Chamber of Commerce and
Industry. The place and seat of any arbitration proceedings
commenced pursuant to this Clause 22.1 shall be Budapest, Hungary.
The language in which such arbitration shall be conducted shall be
Hungarian. Any judgement or determination rendered shall be final
and binding on the parties thereto and may be entered in any court
having jurisdiction or application may be made to such court for an
order of enforcement as the case may require. No failure or delay in
exercising any rights of any Noteholder in respect of the Notes
shall operate as a waiver, or preclude the further exercise of such
rights.
22.2 Service of Process for Arbitration Proceedings The Issuer agrees
that the process by which any arbitration proceedings are begun may
be served on it by being delivered to the address identified in
Clause 20 (Notices) or other its registered office for the time
being. If the appointment of the person(s) mentioned in this Clause
22.2 ceases to be effective the Issuer shall immediately appoint a
further person in Hungary to act on its behalf in Hungary as agent
for the commencement of arbitration proceedings and, failing such
appointment within fifteen (15) days, the Noteholder(s) shall be
entitled to appoint such a person by notice to the Issuer. Nothing
contained in these Conditions shall affect the right to serve
process in any other manner permitted by law.
22.3 Consent to Enforcement The Issuer hereby consents generally in
respect of any proceedings to the giving of any relief or the issue
of any process in connection with such proceedings including the
making, enforcement or execution against any property whatsoever
(irrespective of its use or intended use) of any order or judgement
which may be made or given in such proceedings.
23. Language
The Notes shall be executed in the English language. The Notes may
be translated into the Hungarian language. In the event that any
dispute or question of interpretation arises, the English language
version shall prevail.
EXECUTION
The Issuer
Executed and delivered ) Director
as a deed by )
HUNGARIAN TELEPHONE AND ) Director/Secretary
CABLE CORP. )
The Noteholder
signed by ) Director/Secretary
for and on behalf of )
POSTABANK ES TAKAREKPENZTAR )
RESZVENYTARSASAG )
