EXHIBIT 4.13
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AGREEMENT ON SECURITY ASSIGNMENT OF RIGHTS
DATED 23RD DECEMBER, 2002
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THIS AGREEMENT ON SECURITY ASSIGNMENT OF RIGHTS (hereinafter referred to 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 ul. Poleczki 13, Poland
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) DEUTSCHE BANK POLSKA S.A., a joint stock company incorporated under the
laws of Poland, with registered office in Warsaw, at Al. Armii Ludowej 26,
Poland entered in the register of entrepreneurs kept by the District Court
in Warsaw, XIX Commercial Division of National Court Register, under number
KRS 0000020832 ("DEUTSCHE BANK");
(3) THE BANK OF NEW YORK, LONDON BRANCH, incorporated under the laws of the
State of New York, at its offices at One Canada Square, London E14 5AL,
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:
Netia Holdings BV, with its registered office at Amsteldijk 166-6, 1079LH
Amsterdam, the Netherlands, ("BV I"), will issue under the composition
proceedings in the Netherlands EUR50,000,000 (fifty million) Notes due in 2008
("NEW NOTES").
Pursuant and subject to the Indenture executed on or about the date of this
Agreement (hereinafter the "INDENTURE") made by and between Netia Holdings,
Netia South Sp. z o.o. with its registered office in Warsaw, ul. Poleczki 13,
registered in the register of entrepreneurs under number KRS 0000029899, Netia
Telekom S.A. with its registered office in Warsaw, ul. Poleczki 13, registered
in the register of entrepreneurs under number KRS 0000042425 (hereinafter
jointly referred to as the "GUARANTORS"), BV I and the Trustee, the Guarantors
granted the Trustee an absolute, unconditional, joint and several and
irrevocable guarantee of due and punctual payment of the principal, premium and
interest under the New Notes as well as any other cash obligations, including
the Additional Amounts defined in the Indenture, and the timely and appropriate
performance of all other obligations of BV I with respect to the Trustee (the
"GUARANTEE").
Any and all payment obligations, which pursuant to the Indenture are or may
become in the future due and payable by the Guarantors to the Trustee under the
Guarantee will be jointly referred to as the "SECURED RECEIVABLES".
Netia Holdings and Deutsche Asset Management S.A., a joint stock company
incorporated under the laws of Poland, with registered office in Warsaw,
("DEUTSCHE ASSET MANAGEMENT") executed a Securities Management Agreement, dated
1 August 2002 (hereinafter the "SECURITIES MANAGEMENT AGREEMENT").
Deutsche Asset Management, acting as a proxy of Netia Holdings, and Deutsche
Bank executed a bank account agreement dated 9 August, 2002 (the "BANK ACCOUNT
AGREEMENT"), pursuant to which Deutsche Bank has opened and maintains for Netia
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Holdings a bank account No. 18800009-1101293 containing a sub-account in EURO
and a sub-account in USD (the "BANK ACCOUNT").
Deutsche Asset Management, acting as a proxy of Netia Holdings, and Deutsche
Bank executed a deposit services and investment account agreement dated 5
August, 2002 (the "INVESTMENT ACCOUNT AGREEMENT"), pursuant to which Deutsche
Bank has opened and maintains for Netia Holdings an investment account No.
10570000 (the "INVESTMENT ACCOUNT").
Netia Holdings has rights to the following securities:
(i) two certificates of deposit issued by Deutsche Bank AG, with
nominal value of 1,000,000 USD each, maturity date 19 February
2003 r., aggregate redemption value of 2,006,491.11 USD (ISIN
XS0158541465);
(ii) five certificates of deposit issued by Deutsche Bank AG, with
nominal value of 1,000,000 EURO each, maturity date 20 February
2003 r., aggregate redemption value of 5,308,205.58 EURO (ISIN
XS0158525427); and
(iii) seven certificates of deposit issued by Deutsche Bank AG, with
nominal value of 1,000,000 USD each, and one certificate of
deposit issued by Deutsche Bank AG, with nominal value of 2.500
USD, maturity date 20 February 2003 r., aggregate redemption
value 7.272.595,82 USD (ISIN XS0158894625).
The certificates of deposit referred to in sub-points (i), (ii)
and (iii) (the "SECURITIES") have been deposited on the
Investment Account.
The Trustee has opened an escrow account in ING Bank Slaski S.A., No.
18000005-62629-999 (the "TRUSTEE'S ACCOUNT").
In order to secure the Secured Receivables, Netia Holdings, Deutsche Bank and
the Trustee have agreed to enter into this Agreement.
NOW THEREFORE, IT IS AGREED AS FOLLOWS:
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement, the terms listed below written in upper case have the
following meaning:
a) "Assigned Rights"
Means any and all Netia Holdings'
existing and future rights
resulting from the Bank Account
Agreement and the Investment
Account Agreement.
b) "Bank Account" Has the meaning as provided in item
(E) of the Recitals.
c) "Bank Account Agreement" Has the meaning as provided in item
(E) of the Recitals.
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d) "Business Day" Means a day (other than Saturday or
Sunday) on which commercial banks
are open for transactions of
general business (including
dealings in foreign exchange and
foreign currency deposits) in
London, the United Kingdom, and in
Warsaw, Poland.
e) "BV I" Has the meaning as provided in item
(A) of the Recitals.
f) "Security Assignment of Rights" Has the meaning given to it in
Section 2.1 of this Agreement.
g) "Deutsche Asset Management" Has the meaning as provided in item
(D) of the Recitals.
h) "Encumbrance" Means any pledge, registered
pledge, privilege, priority,
assignment, lien, interim
injunction, security transfer, or
any other security interest of any
kind under any laws, or any other
agreement or arrangement under any
laws having the effect of
conferring any security of any
kind, or any rights upon or any
preferential arrangement with
respect to, any right constituting
the Assigned Rights or any rights
attached thereto.
i) "Trustee's Account" Has the meaning as provided in item
(H) of the Recitals.
j) "Guarantee" Has the meaning given in Recital
(B) of the Preamble.
k) "Guarantor" Has the meaning given in Recital
(B) of the Preamble.
l) "Indenture" Has the meaning given in Recital
(B) of the Preamble.
m) "Investment Account" Has the meaning as provided in item
(F) of the Recitals.
n) "Investment Account Agreement" Has the meaning as provided in item
(F) of the Recitals.
o) "Notice" Has the meaning given in Section
7.1 of this Agreement.
p) "Re-Transfer Notice" Has the meaning given in Section
2.7 of this Agreement.
"SECURED RECEIVABLES" Has the meaning as provided in item
(C) of the Recitals.
q) "Securities" Has the meaning as provided in item
(G) of the Recitals
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"SECURITIES MANAGEMENT AGREEMENT" Has the meaning as provided in item
(D) of the Recitals.
1.2 Save where the context otherwise requires, any word in this Agreement
imparting the singular shall include the plural and vice versa.
2. SECURITY ASSIGNMENT OF RIGHTS
In order to secure the payment of the Secured Receivables, Netia Holdings hereby
assigns, subject to the provisions of Section 2.7 below, to the Trustee the
Assigned Rights free from any and all Encumbrances of any kind (the "SECURITY
ASSIGNMENT OF RIGHTS").
The Trustee hereby accepts the Security Assignment of Rights.
Notwithstanding the provisions of Section 2.1 Deutsche Bank is entitled to
set-off from the Bank Account all fees and commissions due for maintaining the
Bank Account and performing the exchange referred to in Section 2.4.
The Trustee and Netia Holdings unconditionally and irrevocably instruct Deutsche
Bank to:
exchange the amount which will be transferred to the Bank Account in American
dollars as the result of the redemption of the Securities, into EURO not later
than one Business Day after agreeing with Netia Holdings the exchange rate and
transfer such exchanged amount to the Trustee's Account not later than one
business day after the exchange took place, and
transfer the amount which will credited to the Bank Account in EURO as the
result of the redemption of the Securities, to the Trustee's Account not later
than one Business Day after the receipt of such amount.
Netia Holdings undertakes to determine with Deutsche Bank the
exchange rate for each amount expressed in American dollars, which
will be credited to the Bank Account, within three Business Days from
the day that amount was credited to that account.
Deutsche Bank hereby represents and warrants that it has not received any
instructions related to the Bank Account and the Investment Account, except for
the instructions referred to in Section 2.4.
Deutsche Bank hereby acknowledges the Security Assignment of Rights and obliges
itself irrevocably and unconditionally:
to execute the instructions referred to in Section 2.4 above,
not to execute any other instructions, except for the instructions referred to
in Section 2.4.
Upon the transfer of the amounts referred to in Section 2.4 (ii) above to the
Trustee's Account, the Trustee and Netia Holdings will execute and will deliver
to Linklaters T. Komosa i Wspolnicy Spolka Komandytowa with its seat in Warsaw
("LINKLATERS") a statement in the form determined in the attachment to this
Agreement (the "RE-TRANSFER NOTICE") and Linklaters will inform Deutsche Bank in
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writing about the execution of the Re-Transfer Notice by persons authorised to
make acts of will on behalf of Netia and on behalf of the Trustee. The transfer
of the Assigned Rights will take place after the execution by The Trustee and
Netia Holdings of the Re-Transfer Notice.
Netia Holdings hereby irrevocably and unconditionally revokes any and all
instructions which have been made by Netia Holdings and Deutsche Asset
Management acting on behalf of Netia, except for the instructions referred to in
Section 2.4 and Deutsche Bank hereby acknowledges revocation of these
instructions. Netia Holdings is obliged, within one Business Day from the
execution of this Agreement, to notify Deutsche Asset Management about the
assignment of the Assigned Rights and about the revocation of the instructions
mentioned in the previous sentence. Netia Holdings undertakes to redress any
damage the Trustee may suffer in the event the relevant court declares this
Agreement ineffective in relation to Deutsche Asset Management.
3. REPRESENTATIONS AND WARRANTIES OF NETIA HOLDINGS
Netia Holdings hereby represents and warrants to the Trustee that, subject
to the provisions of the Securities Management Agreement, on the day of
entering into this Agreement:
2) ORGANISATION OF NETIA HOLDINGS. Netia Holdings is a company duly
incorporated and validly existing under the laws of Poland. (i)
INVESTMENT ACCOUNT AND BANK ACCOUNT. Netia Holdings is a lawful
beneficiary of the rights to the Investment Account and the Bank
Account.
OWNERSHIP OF THE ASSIGNED RIGHTS. Netia Holdings has the exclusive right to the
Bank Account and the Investment Account.
NO ENCUMBRANCES OR LIMITATIONS TO TRANSFER. The Assigned Rights are free and
clear of any Encumbrances and any other third party rights. The Assigned Rights
are freely transferable.
NETIA HOLDINGS' STATUTE. Netia Holdings' Statute does not contain any provisions
that might have an adverse effect on the Trustee's ability to exercise its
rights resulting from this Agreement.
AUTHORISATION TO ENTER INTO THIS AGREEMENT. Netia Holdings is fully authorised
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 Agreement, including without limitations, to carry
out the Security Assignment of Rights.
BINDING OBLIGATIONS. The obligations of the Netia Holdings described in this
Agreement are legally binding, valid and enforceable against it.
NON-CONFLICT. Entering into and performance of this Agreement by Netia Holdings
does not and shall not contravene or constitute a default in any extent under:
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(a) any provision of law or other regulations by which Netia Holdings is
bound; and
(b) any agreement to which Netia Holdings is a party or by which Netia
Holdings is otherwise bound.
INSOLVENT DEBTORS REGISTER. Netia Holdings has not been registered as an
insolvent debtor in the National Court Register.
VALUE OF SECURITIES AND CORRECTNESS OF DATA. The data contained in the Recital
G, in particular the data regarding the number of the Securities, the maturity
dates and their redemption values, are correct.
4. REPRESENTATIONS AND WARRANTIES OF DEUTSCHE BANK
Deutsche Bank hereby represents and warrants to the Trustee that, to the
best of Deutsche Bank's knowledge, on the day of entering into this
Agreement Netia Holdings is entitled to the rights under the Bank Account
Agreement and the Investment Account Agreement.
5. COSTS
All expenses incurred by the Trustee or Deutsche Bank in connection with
the execution and performance of this Agreement shall be borne by Netia
Holdings.
6. TERM OF THE AGREEMENT
This Agreement shall terminate upon the re-transfer of the Assigned Rights
according to Section 2.7.
7. MISCELLANEOUS
Notices
All notifications, requests, demands, approvals, consents, waivers or
other communication required or permitted hereunder (each, a
"NOTICE") shall be in writing and shall be delivered by registered
mail (return receipt requested) or by courier, postage and charges
prepaid:
if to Netia Holdings:
Attention:
Telecopy number
Phone:
Copy to:
Weil, Gotshal & Manges - Pawel Rymarz Spolka Komandytowa
Warsaw Financial Center
ul. E. Plater 53, 20th Floor
00-113 Warsaw, Poland
Attention: Pawel Rymarz, Artur Zawadowski
Telecopy number: +48 22 339 4001
Phone: +48 22 339 4000
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if to Deutsche Bank:
Attention: Katarzyna Lopuszynska, Elzbieta Gutkiewicz
Telecopy number :
Phone:
Copy to:
if to the Trustee:
The Bank of New York, London Branch
48th Floor, One Canada Square
London E14 5AL
United Kingdom
Attention: Paul Pereira, AVP, Corporate Trust Administration
Telecopy number: 44 20 7964 6061/6399
Phone: 44 20 7964 7495
Email: ppereira@bankofny.com
Linklaters T. Komosa i Wspolnicy Spolka komandytowa
ul. Sienna 39
00-121 Warsaw, Poland
Attention: Patrick Bell, Marek Grzybowski
Cadwalader, Wickersham & Taft
265 Strand, London WC2R 1BH, England
DX: 238 Chancery Lane
Attention: Richard L. Nevins, Justin Bickle
Wardynski, Wiercinski, Sledzinski, Szczepinski, Lachert i Wspolnicy
sp.j.
Aleje Ujazdowskie 12
00-471 Warsaw, Poland
Attention: Andrzej Wiercinski
Allen & Overy, A. Siemiatkowski Spolka komandytowa
ul. Zelazna 28/30
Sienna Center
00-832 Warsaw, Poland
Attention: Jacek Jonak, Piotr Lesinski
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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).
Severability
Should any Section or any part of a Section of this Agreement be rendered
ineffective, invalid or unenforceable by any court of any jurisdiction for
any reason, such invalidity, ineffectiveness or unenforceability shall not
affect the validity, effectiveness, or enforceability of any other Section
or part of a Section of this Agreement.
Governing law
This Agreement shall be governed by and construed in accordance with the
laws of Poland.
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.
Headings and references
Headings contained in this Agreement are inserted as a matter of
convenience and for reference purposes only, and in no way define, limit,
extend or describe the scope of this Agreement or the intent of any
provision hereof.
Amendments
This Agreement may be amended only by a written annex signed by all
Parties, otherwise being null and void.
Further assurance
Each Party shall co-operate and take such actions as may be reasonably
requested by another Party in order to carry out the provisions and
purposes of this Agreement and the transactions contemplated hereby.
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 authorised representatives.
NETIA HOLDINGS:
By: /S/ AVRAHAM HOCHMAN
--------------------------
Full name: Avraham Hochman
Title: Chief Financial Officer
BY: /S/ EWA DON-SIEMION
-------------------------------
Full name: Ewa Don-Siemion
Title: Vice President, Legal
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Deutsche Bank:
By: /S/ KRZYSZTOF KALICKI
-----------------------------------------
Full name: Krzysztof Kalicki
Title: President of the Management Board
By: /S/ PIOTR ZACZEK
-----------------------------------------
Full name: Piotr Zaczek
Title: Commercial Proxy
TRUSTEE:
By: /S/ PAUL PEREIRA
------------------------------
Full name: Paul Pereira
Title: Assistant Vice President
By: ____________________________
Full name: ______________________
Title: __________________________
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EXHIBIT 1
Form of Re-Transfer Notice
To: Deutsche Bank Polska S.A. (ff)
RE-TRANSFER NOTICE
made on [...], 2003 r.
The Bank of New York, London Branch (the "TRUSTEE") and Netia Holdings S.A.
("NETIA") hereby refer to Section 2.7 of the Agreement on Security Assignment of
Rights dated 23rd December, 2002 between Netia Holdings, Deutsche Bank Polska
S.A. and the Trustee (the "SECURITY ASSIGNMENT AGREEMENT") and state that in
connection with the payment to the Trustee's Account of the amounts referred to
in Section 2.4 of the Security Assignment Agreement, the Trustee hereby
re-transfer to Netia Holdings the Assigned Rights free from any Encumbrances,
save for the Encumbrances resulting from the Securities Management Agreement,
and Netia Holdings accepts such transfer.
This Re-Transfer Notice shall be governed by Polish law.
This Re-Transfer Notice was prepared in Polish and English in three copies for
each language version. In case of discrepancies between these language versions,
the Polish version shall prevail.
The terms not defined herein shall have the meaning ascribed to them in the
Security Assignment Agreement.
By: ____________________________
Full name: ______________________
Title: __________________________
By: ____________________________
Full name: ______________________
Title: __________________________
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By: ____________________________
Full name: ______________________
Title: __________________________
By: ____________________________
Full name: ______________________
Title: __________________________
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