EXHIBIT 4.14
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AGREEMENT ON SECURITY ASSIGNMENT (pp) OF RIGHTS
DATED 23RD DECEMBER, 2002
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THIS AGREEMENT ON SECURITY ASSIGNMENT OF RIGHTS (hereinafter referred as the
"AGREEMENT") was entered into on 23rd December, 2002 in Warsaw, between:
(1) NETIA HOLDINGS S.A., a joint stock company incorporated under the laws of
Poland, with registered office in Warsaw, at xx. Xxxxxxxx 00, Xxxxxx
entered in the register of entrepreneurs kept by the District Court in
Warsaw, XX Commercial Division of National Court Register, under number KRS
0000041649 ("NETIA HOLDINGS");
(2) BANK POLSKA KASA OPIEKI S.A., a joint stock company incorporated under the
laws of Poland, with registered office in Warsaw, at xx. Xxxxxxxxxx 00/00,
Xxxxxx entered in the register of entrepreneurs kept by the District Court
in Warsaw, XIX Commercial Division of National Court Register, under number
KRS 0000014843 ("PEKAO");
(3) THE BANK OF NEW YORK, LONDON BRANCH, incorporated under the laws of the
State of New York, with its registered office at Xxx Xxxxxx Xxxxxx, Xxxxxx
X00 0XX, registered in England & Wales with BR No. 000818 (the "TRUSTEE");
hereinafter collectively also referred to as the "PARTIES" or individually as
the "PARTY".
PREAMBLE
WHEREAS:
(A) Pursuant and subject to the Indenture executed on 23 December, 2003 between
Netia Holdings, Netia South Sp. z o.o. with its registered office in
Warsaw, Netia Telekom S.A. with its registered office in Warsaw (together
the "GUARANTORS"), Netia Holdings BV with its registered office in the
Netherlands, the Trustee and ING Bank Xxxxxx X.X. with its registered
office in Katowice ("ING BANK XXXXXX"), the Guarantors granted the Trustee
an absolute, unconditional, joint and several and irrevocable guarantee
(such guarantee is governed by English law) of due and punctual payment of
all obligations of Netia Holdings BV arising from the issue of the notes by
Netia Holdings BV (the "GUARANTEE");
(B) Netia Holdings and PIONEER PEKAO Investment Management S.A. with its
regsitered office in Warsaw ("PIONEER") executed on 29 October 2002 a
Securities Portfolio Management Agreement (the "SECURITIES MANAGEMENT
AGREEMENT").
(C) Netia Holdings and PEKAO executed on 6 November 2002 a Custody Account
Agreement (the "CUSTODY ACCOUNT AGREEMENT"), pursuant to which PEKAO has
opened and carries out a custody account for Netia Holdings (the "CUSTODY
ACCOUNT"), which is comprised of (i) an investment account No. 900005 (the
"INVESTMENT ACCOUNT"), (ii) a securities register No. 900005 (the
"SECURITIES REGISTER"), and (iii) a cash account No.
00000000-900005-2701-11-EUR (the "CASH ACCOUNT").
(D) PIONEER, acting in the name and on behalf of Netia Holdings, purchased
during the course of the Custody Account Agreement for Netia Holdings
18,300 eurobonds issued by FR0000485195 denominated in EUR (the
"SECURITIES"), nominal value of EUR 1,000 per each, which have been
registered on the Security Register. In addition, PIONEER instructed PEKAO
to settle the Securities (the "SETTLEMENT INSTRUCTION") with the settlement
day as of 2 January, 2003 (the "SETTLEMENT DAY") (the "BUY SELL BACK
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TRANSACTION"). The copy of the terms and conditions of the Buy Sell Back
Transaction (the "TERMS AND CONDITIONS OF THE BUY SELL BACK TRANSACTION")
is attached as an Exhibit No. 1 to this Agreement
(E) On 20 December, 2002 the Trustee, ING Bank Xxxxxx and Netia Holdings
executed an Escrow Account Agreement (the "ESCROW ACCOUNT AGREEMENT"),
based on which a bank account in ING Bank Xxxxxx no. 0000000-62629-999 was
opened (the "ESCROW ACCOUNT").
NOW THEREFORE, IT IS AGREED AS FOLLOWS:
1. SECURITY ASSIGNMENT
1.1 In order to secure the claims to which the Trustee may be entitled in the
event of performance of his rights under the Guarantee, Netia Holdings
hereby assigns to the Trustee all existing and future rights of Netia
Holdings arising from the Custody Account Agreement, including, amongst
others, its rights to the Investment Account, its rights to the Securities
Register and its rights to the Cash Account ("RIGHTS"), and the Trustee
accepts these Rights. The list of assets registered on the Custody Account
in the form of a copy of the excerpt from the Securities Register is
attached as an Exhibit No. 2 to this Agreement.
1.2 The Trustee and PEKAO hereby represent that they are aware that the power
of attorney granted by Netia Holdings to PIONEER in the Securities
Management Agreement may be revoked only by way of termination of the
Securities Management Agreement, which has not been terminated until the
day of execution of this Agreement.
1.3 Netia Holdings hereby unconditionally revokes any and all instructions
which until the day of execution of this Agreement have been delivered to
PEKAO by Netia Holdings or by PIONEER acting in the name of Netia Holdings
pursuant to the Securities Management Agreement and which until the day of
execution of this Agreement have not been executed in parts or in a whole
save for the Settlement Instruction and the overnight deposits instructions
related to the funds standing on the Cash Account (the "OVERNIGHTS
INSTRUCTIONS"). PEKAO hereby acknowledge revocation of these instructions.
1.4 Netia Holdings hereby unconditionally undertakes to terminate the
Securities Management Agreement upon giving a notice or by mutual agreement
no later than until the day of execution of this Agreement. Furthermore,
Netia Holdings hereby undertakes by one day following the day of execution
of this Agreement to (i) notify PIONEER about execution and scope of this
Agreement as well as about revocation of instructions referred to in
Section 1.3 above, and (ii) deliver to PEKAO written acknowledge of receipt
by PIONEER the above mentioned notification.
1.5 From the day of the execution of this Agreement the Trustee, as the only
entity entitled to rights and obligations under the Custody Account
Agreement, hereby unconditionally and irrevocably instruct PEKAO to wire
any and all amounts standing at the Custody Agreement, including the amount
obtained from the Settlement Instruction to the Escrow Account, no later
than 1 (one) business day following the Settlement Day.
1.6 PEKAO hereby acknowledges the assignment of Rights to the Trustee and
obliges itself irrevocably and unconditionally from the day of execution of
this Agreement:
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(i) to execute the Settlement Instruction as well as the instruction
referred to in Section 1.5 above, and
(ii) not to execute any other instructions, in particular third party's
instructions, in particular Netia Holdings or PIONEER's instructions
in respect to the Custody Account, save for the Overnight Instructions
to be executed until the Settlement Day.
1.7 Netia Holding and the Trustee hereby agree, that the terms and conditions
of disposal of the amounts, referred to in Section 1.5 above, once it being
wired to the Escrow Account, shall be provided for exclusively in the
Escrow Account Agreement executed between these parties.
1.8 Netia Holdings and the Trustee hereby undertake to conclude an agreement
for the return transfer of the Rights to Netia Holdings (the "AGREEMENT ON
RETURN TRANSFER OF RIGHTS") in the form substantially provided in Exhibit
No. 3 to this Agreement, which agreement shall be concluded within 14
(fourteen) days from the day of receipt of the funds referred to in section
1.5 above, on the Escrow Account.
1.9 In the event that for any reasons Netia Holdings and the Trustee do not
execute the Agreement on Return Transfer of Rights, both parties hereby
agree that in such an event they will not have any claims against PEKAO.
1.10 Netia Holdings undertakes to redress any damage injured by the Trustee in
the event the relevant court declares this Agreement as ineffective with
respect to PIONEER.
2. REPRESENTATIONS AND WARRANTIES
2.1 Netia Holdings hereby represents and warrants to the Trustee that on the
day of entering into this Agreement:
1) ORGANIZATION OF NETIA HOLDINGS. Netia Holdings is a company duly
incorporated and validly existing under the laws of Poland.
2) CUSTODY ACCOUNT. Netia Holdings is lawful and exclusive owner of the
Custody Account.
3) NO ENCUMBRANCES OR LIMITATIONS TO TRANSFER. The Assigned Rights are
free and clear of any encumbrances and any other third party rights.
4) NETIA HOLDINGS' STATUTE. Netia Holdings' Statute does not contain any
provisions that might have an adverse effect on Netia Holdings'
ability to exercise its rights resulting from this Agreement. Any
consents or resolutions of the statutory authority of Netia Holdings
required pursuant to the corporate documents of Netia Holdings to
enter into and perform its rights under this Agreement have been
obtained or adopted, respectively.
5) AUTHORIZATION TO ENTER INTO THIS AGREEMENT. Netia Holdings is fully
authorized to enter into and perform this Agreement, and has taken all
actions necessary to enter into and perform this Agreement, in
particular, Netia Holdings has obtained all necessary permits and
consents required to enter into and perform its obligations under this
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Agreement, including without limitations, to carry out the assignment
of Rights.
6) BINDING OBLIGATIONS. The obligations of the Netia Holdings described
in this Agreement are legally binding, valid and enforceable against
it. 7) RESERVATIONS. Entering into and performance by Netia Holdings
of the Securities Management Agreement do not affect the
representation given by Netia Holdings in Section 2.1.3) and 2.1.5).
2.2 Netia Holding and PEKAO hereby represent and warrant to the Trustee that
save for the Settlement Instruction and the Overnight Instructions, they
are not aware of any other instructions ordered to PEKAO by Netia Holdings
or PIONEER acting in the name and on behalf of Netia Holdings pursuant to
the Securities Management Agreement, which until the day of execution of
this Agreement have not been executed in parts or in a whole.
3. COSTS
3.1 All expenses incurred by PEKAO in the amount of PLN 13,000.00 in connection
with the execution and performance of this Agreement shall be borne by
Netia Holdings by 7 (seven) day following the date of issue of the invoice
by PEKAO.
3.2 All expenses incurred by the Trustee in connection with the execution and
performance of this Agreement shall be borne by Netia Holdings
4. MISCELLANEOUS
4.1 Notices
All notices ("NOTICE") shall be in writing and shall be delivered:
4.1.1 if to Netia Holdings:
Netia Holdings S.A.
xx. Xxxxxxxx 00
00-000 Xxxxxx, Xxxxxx
Attention: Xxxxxxxx Xxxxxxxx
Telecopy number 330 2681
Phone: 000 0000
Copy to:
Weil, Gotshal & Xxxxxx - Xxxxx Xxxxxx Spolka Komandytowa
Warsaw Financial Center
ul. X. Xxxxxx 00, 00xx Xxxxx
00-000 Xxxxxx, Xxxxxx
Attention: Xxxxx Xxxxxx, Xxxxx Xxxxxxxxxx
Telecopy number: x00 00 000 0000
Phone: x00 00 000 0000
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4.1.2 if to PEKAO:
Bank PEKAO S.A.
xx. Xxxxxxxxxx 00/00
Xxxxxx, Xxxxxx
Attention: Xxxxxx Xxxxxx
Telecopy number :
Phone:
4.1.3 if to the Trustee:
The Bank of New York, London Branch
48th Floor, One Canada Square
Xxxxxx X00 0XX
Xxxxxx Xxxxxxx
Attention: Xxxx Xxxxxxx, AVP, Corporate Trust Administration
Telecopy number: 44 20 7964 6061/6399
Phone: 00 00 0000 0000
Email: xxxxxxxx@xxxxxxxx.xxx
Copy to:
Linklaters X. Xxxxxx i Wspolnicy Spolka komandytowa
xx. Xxxxxx 00
00-000 Xxxxxx, Xxxxxx
Attention: Xxxxxxx Xxxx, Xxxxx Xxxxxxxxxx
Cadwalader, Xxxxxxxxxx & Xxxx
000 Xxxxxx, Xxxxxx XX0X 0XX, Xxxxxxx
DX: 000 Xxxxxxxx Xxxx
Attention: Xxxxxxx X. Xxxxxx, Xxxxxx Xxxxxx
Wardynski, Wiercinski, Sledzinski, Szczepinski, Lachert i
Wspolnicy sp.j.
Xxxxx Xxxxxxxxxxx 00
00-000 Xxxxxx, Xxxxxx
Attention: Xxxxxxx Xxxxxxxxxx
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Xxxxx & Overy, X. Xxxxxxxxxxxxx Spolka komandytowa
xx. Xxxxxxx 00/00
Xxxxxx Xxxxxx
00-000 Xxxxxx, Xxxxxx
Attention: Xxxxx Xxxxx, Xxxxx Xxxxxxxx
or, in each case, to such other address and numbers as may have been
furnished in a Notice by such Party to the other Party. Any Notice shall be
deemed effective or given upon receipt (or refusal of receipt).
4.2 Governing law
This Agreement shall be governed by and construed in accordance with the
laws of Poland.
4.3 Dispute resolution
Any disputes arising in connection with the execution of this Agreement
shall be resolved by the Arbitration Tribunal at the Association of Polish
Banks. Such disputes shall be resolved by three judges in accordance with
the Tribunal's Rules of Procedure.
4.4 Amendments
This Agreement may be amended only by a written annex signed by all
Parties, otherwise being null and void.
4.5 Counterparts and language versions
This Agreement has been executed in 3 counterparts in Polish and 3
counterparts in English. The Parties agree that if for any reason any
inconsistency exists between the English and Polish versions, the Polish
version shall prevail.
IN WITNESS WHEREOF, this Agreement has been executed by the Parties hereto
by the signatures of their fully authorized representatives.
NETIA HOLDINGS:
By: /S/ EWA DON-XXXXXXX
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Full name: Xxx Don-Xxxxxxx
Title: Vice President, Legal
By: /S/ XXXXXXX XXXXXXX
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Full name: Xxxxxxx Xxxxxxx
Title: Chief Financial Officer
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PEKAO:
By: /S/ XXXXX XXXXXXXXX
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Full name: Xxxxx Xxxxxxxxx
Title: Director of Trust Departament
By: /S/ XXXXXXX XXXXXX
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Full name: Xxxxxxx Xxxxxx
Title: Director of Client Relations Departament
TRUSTEE:
By: /S/ XXXX XXXXXXX
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Full name: Xxxx Xxxxxxx
Title: Assistant Vice President
By: _____________________________________________
Full name: ______________________________________
Title: __________________________________________
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EXHIBIT NO 1
COPY OF THE TERMS AND CONDITIONS OF BUY SELL BACK TRANSACTION
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EXHIBIT NO 2
COPY OF THE EXCERPT FROM THE SECURITIES REGISTER
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EXHIBIT NO 3
THE FORM OF THE AGREEMENT ON RETURN TRANSFER OF RIGHTS
THIS AGREEMENT ON RETURN TRANSFER OF RIGHTS (hereinafter referred as the
"AGREEMENT") was entered into on [ ], 2003 in Warsaw, between:
(1) NETIA HOLDINGS S.A., a joint stock company incorporated under the laws
of Poland, with registered office in Warsaw, at xx. Xxxxxxxx 00,
Xxxxxx entered in the register of entrepreneurs kept by the District
Court in Warsaw, XX Commercial Division of National Court Register,
under number KRS 0000041649 ("NETIA HOLDINGS"); and
(2) THE BANK OF NEW YORK, LONDON BRANCH, incorporated under the laws of
the State of New York, with its registered office at Xxx Xxxxxx
Xxxxxx, Xxxxxx X00 0XX, registered in England & Wales with BR No.
000818 (the "TRUSTEE").
hereinafter collectively also referred to as the "PARTIES" or individually
as the "PARTY".
PREAMBLE
WHEREAS:
(A) Pursuant and subject to the Indenture executed on 23 December, 2003
between Netia Holdings, Netia South Sp. z o.o. with its registered
office in Warsaw, Netia Telekom S.A. with its registered office in
Warsaw (together the "GUARANTORS"), Netia Holdings BV with its
registered office in the Netherlands, the Trustee and ING Bank Xxxxxx
X.X. with its registered office in Katowice ("ING BANK XXXXXX"), the
Guarantors granted the Trustee an absolute, unconditional, joint and
several and irrevocable guarantee (such guarantee is governed by
English law) of due and punctual payment of all obligations of Netia
Holdings BV arising from the issue of the notes by Netia Holdings BV
(the "GUARANTEE");
(B) Netia Holdings and Bank Polska Kasa Opieki S.A with its registered
seat in Warsaw ("PEKAO") executed on 6 November 2002 a Custody Account
Agreement (the "CUSTODY ACCOUNT AGREEMENT"), pursuant to which PEKAO
has opened and carries out on account of Netia Holdings a custody
account (the "CUSTODY ACCOUNT"), which is comprised of (i) an
investment account No. 900005 (the "INVESTMENT ACCOUNT"), and (ii) a
securities register No. 900005 (the "SECURITIES REGISTER"), and (iii)
a cash account No. 00000000-900005-2701-11-EUR (the "CASH ACCOUNT");
(C) In order to secure the claims to which the Trustee may be entitled in
the event of performance of his rights under the Guarantee Netia
Holdings, the Trustee and PEKAO executed on 23 December 2002 an
agreement on security assignment of rights of Netia Holdings arising
from the Custody Account Agreement (the "AGREEMENT ON SECURITY
ASSIGNMENT OF RIGHTS");
(D) On 2nd January, 2003 PEKAO acting under the instruction of PIONEER
PEKAO Investment Management S.A. with its seat in Warsaw ("PIONEER")
settled the sell of 18,300 eurobonds issued by [ ] denominated in EUR
(the "SECURITIES"), nominal value of 1,000 per each and accordingly
wired the funds from the Custody Account, including the amount
obtained from the settlement of the Securities to the Trustees account
held in ING Bank Xxxxxx ("ESCROW ACCOUNT");
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(E) Pursuant to Section 1.8 of the Agreement on Security Assignment of
Rights Netia Holding and the Trustee undertake within 14 (fourteen)
days from the day of receipt of the funds on the Escrow Account,
conclude an agreement for the return transfer of the rights of the
Trustee under the Agreement on Security Assignment of Rights to Netia
Holdings.
NOW THEREFORE, IT IS AGREED AS FOLLOWS:
1. SECURITY ASSIGNMENT
1.1 The Trustee hereby assigns to Netia Holdings all its rights arising from
the Custody Account Agreement that the Trustee is entitled under the
Agreement on Security Assignment of Rights, including, amongst others, its
rights to the Investment Account, its rights to the Securities Register and
its rights to the Cash Account ("RIGHTS"), and Netia Holdings accepts these
Rights.
1.2 Netia Holdings hereby undertakes to notify PIONEER and PEKAO about
execution and the scope of this agreement within one day following
execution of this agreement
2. REPRESENTATIONS AND WARRANTIES
The Trustee hereby represents and warrants to Netia Holdings that on the
day of entering into this Agreement the assigned Rights are free and clear
of any encumbrances and any other third party rights subject to concluding
and execution by Netia Holdings the Securities Management Agreement as
defined in Agreement on Security Assignment of Rights.
3 MISCELLANEOUS
3.1 Notices
All notices ("NOTICE") shall be in writing and shall be delivered:
3.1.1 if to Netia Holdings:
Netia Holdings S.A.
xx. Xxxxxxxx 00
00-000 Xxxxxx, Xxxxxx
Attention: Xxxxxxxx Xxxxxxxx
Telecopy number 330 2681
Phone: 000 0000
Copy to:
Weil, Gotshal & Xxxxxx - Xxxxx Xxxxxx Spolka Komandytowa
Warsaw Financial Center
ul. X. Xxxxxx 00, 00xx Xxxxx
00-000 Xxxxxx, Xxxxxx
Attention: Xxxxx Xxxxxx, Xxxxx Xxxxxxxxxx
Telecopy number: x00 00 000 0000
Phone: x00 00 000 0000
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3.1.2 if to the Trustee:
The Bank of New York, London Branch
48th Floor, One Canada Square
Xxxxxx X00 0XX
Xxxxxx Xxxxxxx
Attention: Xxxx Xxxxxxx, AVP, Corporate Trust Administration
Telecopy number: 44 20 7964 6061/6399
Phone: 00 00 0000 0000
Email: xxxxxxxx@xxxxxxxx.xxx
Copy to:
Linklaters X. Xxxxxx i Wspolnicy Spolka komandytowa
xx. Xxxxxx 00
00-000 Xxxxxx, Xxxxxx
Attention: Xxxxxxx Xxxx, Xxxxx Xxxxxxxxxx
Cadwalader, Xxxxxxxxxx & Xxxx
000 Xxxxxx, Xxxxxx XX0X 0XX, Xxxxxxx
DX: 000 Xxxxxxxx Xxxx
Attention: Xxxxxxx X. Xxxxxx, Xxxxxx Xxxxxx
Wardynski, Wiercinski, Sledzinski, Szczepinski, Lachert i
Wspolnicy sp.j.
Xxxxx Xxxxxxxxxxx 00
00-000 Xxxxxx, Xxxxxx
Attention: Xxxxxxx Xxxxxxxxxx
Xxxxx & Xxxxx, X. Xxxxxxxxxxxxx Spolka komandytowa
xx. Xxxxxxx 00/00
Xxxxxx Xxxxxx
00-000 Xxxxxx, Xxxxxx
Attention: Xxxxx Xxxxx, Xxxxx Xxxxxxxx
or, in each case, to such other address and numbers as may have been
furnished in a Notice by such Party to the other Party. Any Notice
shall be deemed effective or given upon receipt (or refusal of
receipt).
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3.2 Governing law
This Agreement shall be governed by and construed in accordance with the
laws of Poland.
3.3 Dispute resolution
Any disputes arising in connection with the execution of this
Agreement shall be resolved by the Arbitration Tribunal at the
Association of Polish Banks. Such disputes shall be resolved by three
judges in accordance with the Tribunal's Rules of Procedure.
3.4 Amendments
This Agreement may be amended only by a written annex signed by all
Parties, otherwise being null and void.
3.5 Counterparts and language versions
This Agreement has been executed in 2 counterparts in Polish and 2
counterparts in English. The Parties agree that if for any reason any
inconsistency exists between the English and Polish versions, the Polish
version shall prevail.
IN WITNESS WHEREOF, this Agreement has been executed by the Parties hereto by
the signatures of their fully authorized representatives.
NETIA HOLDINGS:
By: ____________________________
Full name: ______________________
Title: __________________________
By: ____________________________
Full name: ______________________
Title: __________________________
TRUSTEE:
By: ____________________________
Full name: ______________________
Title: __________________________
By: ____________________________
Full name: ______________________
Title: __________________________
