Exhibit 4.4
FIRST AMENDMENT TO
CONDITIONAL SALE AND PURCHASE AGREEMENT
NO: K.TEL.168/HK810/SEK-20/2003
by and among
PERUSAHAAN PERSEROAN (PERSERO)
PT TELEKOMUNIKASI INDONESIA TBK.
as Purchaser
and
PT ARIA INFOTEK
MEDIAONE INTERNATIONAL I B.V.
THE ASIAN INFRASTRUCTURE FUND
as the Selling Shareholders
relating to the acquisition of
PT ARIA WEST INTERNATIONAL
dated as of July 31, 2003
THIS FIRST AMENDMENT to the Conditional Sale and Purchase Agreement dated as of
May 8, 2002 (the "CSPA") by and among PERUSAHAAN PERSEROAN (PERSERO) PT
TELEKOMUNIKASI INDONESIA TBK, a limited liability company organized under the
laws of the Republic of Indonesia (the "Purchaser"), PT ARIA INFOTEK, a limited
liability company organized under the laws of the Republic of Indonesia ("Aria
Infotek"), MEDIAONE INTERNATIONAL I B.V. ("MediaOne"), a private limited company
incorporated under the laws of the Netherlands and THE ASIAN INFRASTRUCTURE
FUND, an exempted limited duration company organized under the laws of the
Cayman Islands, ("AIF" and together with Aria Infotek and MediaOne, the "Selling
Shareholders" and each a "Selling Shareholder") is made and entered into by the
Purchaser and the Selling Shareholders as of July 31, 2003 (the "Amendment").
Capitalized terms not otherwise defined have the meanings assigned to them in
the Article 1 of the CSPA.
WHEREAS, the Purchaser and the Selling Shareholders entered into the CSPA
relating to the acquisition of shares of PT Aria West International:
WHEREAS, the Purchaser and the Selling Shareholders intend and desire to amend
the CSPA as set forth herein;
NOW THEREFORE, in consideration of the mutual representations, warranties,
promises, covenants and agreements set forth herein, intending to be legally
bound hereby, the Purchaser and the Selling Shareholders agree
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as follows:
1. In the CSPA, each instance of "2,704,444" is hereby amended to read
"2,704,440".
2. In Section 1.1 of the CSPA, in the definition of "Balance Amount", the
words, "One Hundred Twenty Million U.S. Dollars (US$120,000,000)" are
hereby amended to read "One Hundred Nine Million Ninety Thousand Nine
Hundred Nine Dollars and Nine Cents (US$109,090,909.09)".
3. In Section 1.1 of the CSPA, in the definition of "Shareholder Balance
Amount", the numbers, "US$120,000,000" are hereby amended to read
"US$109,090,909.09".
4. In Section 1.1 of the CSPA, in the definition of "Initial Payment", the
words, "Twenty Four Million Five Hundred Thousand U.S. Dollars (US
$24,500.000)" are hereby amended to read, "US$18,675,874.15".
5. In Section 1.1 of the CSPA, within the definition of "Shareholder
Initial Payment", the words "Exhibit J" are hereby amended to read,
"Exhibit I".
6. In Section 1.1 of the CSPA, the definition of "Agreement" or "this
Agreement" is hereby amended to read in its entirety as follows:
"Agreement" or "this Agreement" shall mean this Conditional Sale and
Purchase Agreement, as amended, together with the Schedules (including
the Signing Disclosure
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Schedule and the Closing Disclosure Schedule) and Exhibits hereto."
7. In Section 1.1 of the CSPA, the definition of "AriaWest Loan
Restructuring Agreement" is hereby amended to read in its entirety as
follows:
"Purchaser Loan Agreement" shall mean the agreement, in form and
substance acceptable to Purchaser in its sole and absolute discretion
between the Purchaser, the lenders party thereto and JP Morgan Chaser
Bank, Hong Kong Office, as Facility Agent."
8. In the CSPA, each instance of "AriaWest Loan Restructuring Agreement"
is hereby amended to read "Purchaser Loan Agreement".
9. In Section 1.1 of the CSPA, within the definition of "Shareholder Sale
Shares", the words "Exhibit K" are hereby amended to read, "Exhibit I".
10. In Section 1.1 of the CSPA, a new definition of "Telkom-AWI Loan
Agreement" is hereby added in its entirety as follows:
"Telkom-AWI Loan Agreement" shall mean the agreement, in form and
substance acceptable to Purchaser in its sole and absolute discretion
between Purchaser and the Company dated as of July 31, 2003."
11. In Section 1.1 of the CSPA, the definition of "Purchase Price" is
hereby amended in its entirety to read,
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"Purchase Price" shall mean US$147,766,783.24."
12. In Section 1.1 of the CSPA, the definition of "Aggregate Purchase
Price" is hereby amended in its entirety to read," "Aggregate Purchase
Price" shall mean US$127,766,783.24."
13. In Section 1.1 of the CSPA, the definition of "Seventh Maturity Date"
is hereby amended in its entirety to read, ""Fourth Maturity Date"
shall have the meaning assigned to such term in Exhibit R."
14. In the CSPA (excluding, in Exhibit R as amended by this Amendment),
each instance of "Fifth Maturity Date" is hereby amended to read,
"Fourth Maturity Date".
15. In the CSPA (excluding, in Exhibit R as amended by this Amendment),
each instance of "Sixth Maturity Date" is hereby amended to read,
"Fifth Maturity Date".
16. In the CSPA (excluding, in Exhibit R as amended by this Amendment),
each instance of "Seventh Maturity Date" is hereby amended to read,
"Sixth Maturity Date".
17. In the CSPA, a new definition of "Shareholders Release Agreement" is
hereby added in its entirety to read as follows:
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""Shareholders Release Agreement" shall mean the agreement by and
between the parties to the AriaWest Loan and the Selling Shareholders
dated as of the Closing Date."
18. In Section 3.2 of the CSPA, a new Section 3.2(t) is hereby added to
read in its entirety as follows:
"a copy of the resolution of the Company's shareholders authorizing the
Company's (i) acceptance of the resignations of each of the members of
(A) the Board of Commissioners and (B) the Board of Directors and (ii)
appointment of each of the individuals nominated by the Purchaser to
(x) the Board of Commissioners and (y) the Board of Directors, in each
case, effective immediately upon consummation of the Closing.
19. In Section 3.2 of the CSPA, a new Section 3.2(u) is hereby added to
read in its entirety at follows:
"the Shareholders Release Agreement duly executed by such Selling
Shareholder,"
20. In Section 3.2 of the CSPA, a new Section 3.2(v) is hereby added to
read in its entirety as follows:
"evidence of payment of (i) all outstanding fees and expenses in
connection with the negotiation, preparation, execution and delivery of
the Purchaser Loan Agreement and as otherwise may have been payable by
the Selling Shareholders, whether
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individually or collectively in connection with the AriaWest Loan,
including all fees and expenses of Milbank, Tweed, Hadley & McCloy LLP,
Makarim & Taira S. and the Principal Creditors (as defined in the
AriaWest Loan documents), (ii) the fees of the Documentation Bank (as
defined in the Purchaser Loan Agreement and (iii) the fees of the
Paying Agent (as defined in the Agency Agreement)."
21. In Section 3.3 of the CSPA, a new Section 3.3(j) is hereby added to
read in its entirety as follows:
"the Purchaser Loan Agreement, duly executed by all parties thereto "
22. In Section 3.4(b) of the CSPA, the numbers, "US$120,000,000" are hereby
amended to read, "US$109,090,909.09".
23. Section 4.14(a) of the CSPA is hereby amended to read in its entirety
as follows:
"As of the Closing Date except for the liabilities and obligations owed
to the KSO Unit or as set forth in Schedule 4.14 of the Closing
Disclosure Schedule, neither the Company nor any of its Subsidiaries
has any liability or obligation of any nature, whether or not absolute,
accrued, contingent or otherwise."
24. In Section 4.26(k) of the CSPA, in
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each instance, the words, "Financial Statements" are hereby amended to
read, "Audited Financial Statements".
25. Section 4.26(b) of the CSPA, is hereby amended to read in its entirety
as follows:
"As of the Closing Date, true and complete copies of all Tax Returns of
each of the Company and its Subsidiaries and other documents relating
to such Tax Returns dated prior to June 20, 2003 have been delivered to
Purchaser by the Selling Shareholders (other than Tax Returns that
shall not have been required to be filed as of such date").
26. In Section 6.3(a) of the CSPA, the words, "but in any event prior to
August 30, 2002" we hereby amended to read, "but in any event on or
prior to August 30, 2003".
27. Section 6.11(b) of the CSPA is hereby deleted in its entirety.
28. In Section 6.12 of the CSPA, a new Section 6.12(c) is hereby added in
its entirety to read as follows:
"As soon as practicable following the final completion of each of the
financial statements set forth in Section 7.2(t), each of the Selling
Shareholders shall cause each of the Persons appointed by the Company
pursuant to Section 7.2(t) to certify such financial statement."
29. In Section 7.2 of the CSPA, a new
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Section 7.2(s) is hereby added to read in its entirety as follows:
"The Telkom-AWI Loan Agreement shall have become effective upon due
execution and delivery by a duly authorized representative from each of
the parties thereto."
30. In Section 7.2 of the CSPA, a new Section 7.2(t) is hereby added in its
entirety to read as follows:
"Financial Statements.
(A) On or prior to the Closing Date, the Company shall have
appointed and engaged, at the sole cost and expense of the
Selling Shareholders, (i) accountants, reasonably satisfactory
to the Purchaser, to prepare in accordance with GAAP applied
on a basis consistent with the Audited Financial Statements
consolidated balance sheet of the Company and its Subsidiaries
as at December 31, 2002 together with consolidated statements
of income, shareholders' equity and cash flows for the year
then ended and the notes thereto, and (ii) auditors,
reasonably satisfactory to Purchaser, to audit, certify and
prepare in accordance with GAAP the audited consolidated
balance sheet of the Company and its Subsidiaries as at
December 31, 2002 together with audited consolidated
statements of income, shareholders' equity and cash flows for
the year then ended and the notes
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thereto, the audit report and opinion (if any) therein and any
letter issued in connection therewith.
(B) On or prior to the Closing Date, the Company shall have
appointed one or, more Directors of the Company, as required
by the orgnizational documents of the Company, any applicable
law or any Governmental Entity, to certify (i) each of the
financial statements set forth in the immediately preceding
clause (A) and (ii) consolidated balance sheet of the Company
and its Subsidiaries as at June 30, 2003 together with
consolidated statements of income, shareholders' equity and
cash flows for the six-month period then ended and the notes
thereto."
31. In Section 7.3 of the CSPA, a new Section 7.3(f) is hereby added to
read in its entirety as follows:
"The Telkom-AWI Loan Agreement shall have become effective upon due
execution and delivery by a duly authorized representative from each of
the parties thereto."
32. In Section 8.1(c)(ii) of the CSPA, the words, "August 30, 2002" are
hereby amended to read, "August 30, 2003".
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33. In Section 8.1(d)(ii) of the CSPA, the words, "August 30, 2002" are
hereby amended to read, "August 30, 2003"
34. In Section 9.1 of the CSPA, the words, "December 31, 2003" are hereby
amended to read, "December 31, 2004".
35. Clause (i) of Section 9.1 of the CSPA, is hereby amended in its
entirety to read as follows:
"(i) indefinitely with respect to each covenant contained in Sections
6.2(b), 6.6, the obligations contained in Sections 9.2(d) and 9.2(e),
and the representations and warranties set forth in Sections 4.1, 4.2,
4.3, 4.4, 4.6, 4.7, 4.8, 4.9, 4.11, 4.16, 5.1, 5.2, 5.3 and 5.4."
36. In Section 9.2 of the CSPA, a new Section 9.2(d) is hereby added to
read in its entirety as follows:
"(d) any and all Damages arising from or in connection with any claim,
obligation or liability asserted by the Existing Facility Agent,
Existing Collateral Agent or any one of more of the AriaWest Lenders
(each, as defined in the Release Agreement dated as of the Closing Date
and entered into by and among the Company. AriaWest International
Finance B.V., CIBC Asia Limited, as Existing Facility Agent, JP Morgan
Chase Bank; as Existing Collateral Agent, and the AriaWest Lenders (as
defined therein) (the "AWI Release Agreement")) under or pursuant to
section 7.04 of the Common Agreement (as defined in the AWI
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Release Agreement or section 8.05 of the AriaWest Credit Agreement (as
defined in the AWI Release Agreement)"
37. In Section 9.2 of the CSPA, a new Section 9.2(e) is hereby added to
read in its entirety as follows:
"(e) any and all Damages arising from or in connection with (i) any
goods or services provided, or agreed or claimed to be provided, on or
prior to the Closing Date to AWI, AWIF, the KSO Unit, the Selling
Shareholders, their respective Affiliates, or any officers or employees
of any of the foregoing, by Prince Consulting Limited, Dyah Erista &
Rokan, David Laithold, their respective Affiliates or Subsidiaries or
any officers or employees of any of the foregoing or (ii) any of the
liabilities or obligations referred to in Section 7.2(n) for which
release letters were not provided to Purchaser on or before the Closing
Date."
38. Section 9.6(b) is hereby amended in its entirety as follows:
"Section 9.6(a) shall not apply to, and each Selling Shareholder shall
be immediately liable for, all claims (i) under Sections 9.2(b),
9.2(c), 9.2(d) and 9.2(e) and (ii) with respect to any breach of
representation and warranty under Sections 4.1, 4.2, 4.3, 4.4, 4.5,
4.6, 4.7, 4.8, 4.9, 4.10, 4.11, 4.14,
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4.16, 4.26 and 4.28.
39. The first sentence of Section 9.6(c) is hereby amended in its entirety
as follows:
"(c) Each Selling Shareholder's maximum aggregate liability to
Purchaser under this Agreement for breaches of representations and
warranties, covenents or agreements shall be such Selling Shareholder's
Pro Rata Share of US$184,500,000 (the "Liability Cap") (exclusive of
reasonable attorney's fees and expenses, reasonable accountant's fees
and expenses and other reasonable fees and expenses incurred in the
investigation or defense of any of the same or in asserting, preserving
or enforcing any of the obligations of such Selling Shareholder under
this Agreement), provided however that the foregoing limitation shall
not apply to (x) fraudulent misrepresentation or fraudulent conduct by
such Selling Shareholder: (y) any interest payable by a Selling
Shareholder as a result of such Selling Shareholder's breach under
Section 1(c) of the Interim Management Agreement: and (z) any Damages
arising under Sections 9.2(d) or 9.2(e) (together (x), (y) and (z), the
"Cap Exceptions"), and provided further, however, that the amount of
any Cap Exceptions shall not be counted towards calculating the
Liability Cap."
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40. Exhibit I of the CSPA is hereby amended in its entirety and replaced by
Exhibit I attached hereto.
41. Exhibit R of the CSPA is hereby amended in its entirety and replaced by
Exhibit R attached hereto.
In the event of any conflict or inconsistency between the provisions of this
Amendment and the provisions of the CSPA, the provisions of this Amendment shall
prevail. Each and every term, condition, covenant, representation, warranty and
provision set forth in the CSPA, not expressly amended herein, shall remain in
full force and affect.
This Amendment may be executed in one or more counterparts, all of which shall
be considered one and the same agreement and shall become effective when two or
more counterparts have been signed by each of the parties and delivered to all
the other parties.
This Amendment shall be governed by and construed in accordance with the laws
of the Republic of Indonesia. Any and all disputes, claims or controversies
among the parties hereto arising out of or relating to this Amendment shall be
resolved in accordance with the procedures set forth in Section 10.8 of the
CSPA.
This Amendment is concluded in both bahasa Indonesia and English. In the event
of any inconsistency or contradiction between the bahasa Indonesia and English
texts, the bahasa Indonesia text shall prevail.
[Signatures on the following page]
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IN WITNESS WHEREOF, the duly authorized representatives of the parties have
executed this Agreement as of the dated first written above.
PERUSAHAAN PERSEROAN (PERSERO)
PT TELEKOMUNIKASI INDONESIA TBK.
By: /s/ Kristiono
----------------------
Name: KRISTIONO
Title: President Director
PT ARIA INFOTEK
By: /s/ SanisTaga S. Ono
----------------------
Name: SANISTAGA S. ONO
Title: DIRECTOR
MEDIAONE INTERNATIONAL I B.V.
By: /s/ Denis Koh
----------------------
Name: DENIS KOH
Title: AUTHORISED PERSON
THE ASIAN INFRASTRUCTURE FUND
By: /s/ Antonio Young
----------------------
Name: ANTONIO YOUNG
Title: ATTORNEY
EXHIBIT I
Shareholder Balance Amount/Initial Payment/Sale Shares
SELLING SHAREHOLDER SALE SHARES INITIAL PAYMENT BALANCE AMOUNT
- --------------------------------------------------------------------------------
PT Aria Infotek 1,419,831 US$9,804,833.93 US$57,272,727.27
- --------------------------------------------------------------------------------
The Asian Infrastructure Fund 338,055 US$2,334,484.27 US$13,636,363.64
- --------------------------------------------------------------------------------
MediaOne International I B.V. 946,554 US$6,536,555.95 US$38,181,818.18
- --------------------------------------------------------------------------------
EXHIBIT R
REPAYMENT AMOUNTS MATURITY DATES
- ----------------------------------------------------------------------
US$10,909,090.91 12 months after the Closing Date
- ----------------------------------------------------------------------
US$10,909,090.91 18 months after the Closing Date
- ----------------------------------------------------------------------
US$10,909,090.91 24 months after the Closing Date
- ----------------------------------------------------------------------
US$10,909,090.91 30 months after the Closing Date (such
date the "Fourth Repayment Date")
- ----------------------------------------------------------------------
US$10,909,090.91 36 months after the Closing Date (such
date the "Fifth Repayment Date")
- ----------------------------------------------------------------------
US$10,909,090.91 42 months after the Closing Date (such
date the "Sixth Repayment Date")
- ----------------------------------------------------------------------
US$10,909,090.91 48 months after the Closing Date
- ----------------------------------------------------------------------
US$10,909,090.91 54 months after the Closing Date
- ----------------------------------------------------------------------
US$10,909,090.91 60 months after the Closing Date
- ----------------------------------------------------------------------
US$10,909,090.90 66 months after the Closing Date
- ----------------------------------------------------------------------
Total: US$109,090,909.09
The Restricted Notes shall comprise US$3,454,545.45 of the Notes issued to Aria
Infotek having a stated maturity date of the Fourth Repayment Date.
US$3,454,545.45 of the Notes issued to Aria Infotek having a stated maturity
date of the Fifth Repayment Date and US$3,090,909.10 of the Notes issued to Aria
Infotek having a stated maturity date of the Sixth Repayment Date, which
Restricted Notes shall be subject to Purchaser's right to set-off, as provided
in this Agreement.
If the maturity date for any amount of principal in respect of any Note is not
a Business Day, the holder of such Note shall not be entitled to payment of the
amount due under such Note until the next following Business Day and shall not
be entitled to any further interest or payment in respect of any such delay.