Exhibit
4.25
EXECUTION
COPY
OSKAR MOBIL
A.S.
€325,000,000
7.50% First Priority
Senior Secured Notes due 2011
Purchase
Agreement
October 6,
2004
J.P. Morgan Securities Inc.
ABN AMRO Bank N.V.
UBS Limited
WestLB AG, London Branch
As Representatives of the
several Initial Purchasers listed
in Schedule 1 hereto
c/o J.P. Morgan Securities Inc.
125 London Wall
London EC2Y 5AJ
Ladies and
Gentlemen:
Oskar Mobil a.s, a
joint stock company organized under the laws of the Czech Republic
(the “Issuer” ), proposes to issue and sell to
the several Initial Purchasers listed in Schedule 1 hereto (the
“Initial Purchasers” ), for whom you are acting
as representatives (the “Representatives” ),
€325,000,000 principal amount of its 7.50% first priority
senior secured notes due 2011 (the “Notes” ).
As more fully provided in the Indenture referred to below,
the Notes will be guaranteed by (a) Oskar Holdings N.V., a public
limited liability company ( naamloze vennootschap )
organized under the laws of the Netherlands (the "Parent
Guarantor" ), (b) Oskar Finance B.V., a private limited
liability company ( besloten vennootschap met beperkte
aansprakelijkheid ) organized under the laws of the Netherlands
( “Oskar Finance” ) and (c) any future
subsidiary of the Parent Guarantor that (i) guarantees the Senior
Credit Facility (as defined below) or other indebtedness of the
Issuer, the Parent Guarantor, Oskar Finance or any other restricted
subsidiary of the Parent Guarantor or (ii) owns or generates 10% or
more of the consolidated assets, revenues, EBITDA or investments of
the Parent Guarantor and certain of its subsidiaries (together, the
“Future Guarantors” and, together with the
Parent Guarantor and Oskar Finance, the
“Guarantors” ) on a senior secured basis as to
the payment of principal, premium, if any, interest, and additional
amounts, if any, (collectively, the “Guarantees”
and, together with the Notes, the “ Securities
”). The Securities are to be issued under an Indenture
to be dated as of the Closing Date (as defined in Section 2(a)
below) (the “Indenture” ) among the Issuer, the
Guarantors, JPMorgan Chase Bank, as trustee (the
“Trustee” ) and J. P. Morgan Europe Limited , as
joint security agent (the "Joint Security Agent"
).
The Securities will be
sold to the Initial Purchasers without being registered under the
U.S. Securities Act of 1933, as amended (the “Securities
Act” ), in reliance upon an exemption therefrom.
The Issuer has prepared a preliminary offering memorandum
dated September 27, 2004 (the “Preliminary Offering
Memorandum” ), and will prepare an offering memorandum
dated the date hereof (the “Offering Memorandum”
) setting forth information concerning the Issuer, the Guarantors
and the Securities. Copies of the Preliminary Offering
Memorandum have been, and copies of the Offering Memorandum will
be, delivered by the Issuer to the Initial Purchasers pursuant to
the terms of this Agreement. The Issuer hereby confirms that
it has authorized the use of the Preliminary Offering Memorandum
and the Offering Memorandum in connection with the offering and
resale of the Securities by the Initial Purchasers in the manner
contemplated by this Agreement. Capitalized terms used but
not defined herein shall have the meanings given to such terms in
the Offering Memorandum.
In connection with the
issuance and sale of the Securities, (i)(A) the Parent
Guarantor will pledge the share capital of Oskar Finance and any
Future Guarantor to secure its obligations under its Guarantee and
(B) Oskar Finance will pledge the share capital of the Issuer
that it will own as of the Closing Date (as defined below) to
secure its obligations under its Guarantee (each of the above, a
“Share Charge” and, collectively the
“Share Charges” ), (ii) the Issuer will (A)
grant a security interest in (1) its principal trademarks, (2) its
telecommunications network, (3) its receivables from bank account
maintenance agreements and (4) certain of its insurance proceeds,
in each case to secure its obligations under the Notes, (iii) each
of the Guarantors will grant a security interest in its respective
bank accounts to secure their obligations under their Guarantees
(each, a “Security Pledge” and, collectively,
the “ Security Pledges ”) and (iv) the Issuer
and each of the Guarantors will pledge any intercompany loan among
the Parent Guarantor and any of its Restricted Subsidiaries (as
defined in the Indenture) and any shareholder loan made to any
Restricted Subsidiaries, to secure the obligations of the Issuer
and the Guarantors under the Securities (each, a “
Security Assignment ” and, collectively, the “
Security Assignments ”). The security granted by
the Issuer, Oskar Finance and the Parent Guarantor under the Share
Charges, the Security Pledges and the Security Assignments will be
a first-priority lien on and security interest in such collateral.
The Share Charges, the Security Pledges and the Security
Assignments are hereinafter referred to as the “Security
Documents” and the security granted by the Security
Documents is referred to as the "Security Interests"
.
In connection with the
issuance and sale of the Securities, the Issuer, the Guarantors,
J.P. Morgan Europe Limited, as Facility Agent (as defined under the
Senior Credit Facility), and the lenders party thereto will enter
into a credit agreement dated on or around October 6, 2004 (the
"Senior Credit Facility" ). The obligations of the
Issuer and the Guarantors under the Senior Credit Facility will
have the benefit of senior secured guarantees from the Guarantors
and will also have the benefit of the first-priority security
interests evidenced by the Security Documents. The Notes, the
Guarantees and the obligations under the Senior Credit Facility
will share in the Security Interests on a pari passu basis
pursuant to an intercreditor agreement dated on or around October
7, 2004 (the “Intercreditor Agreement”) among
the Issuer, the Guarantors, the Facility Agent, the Trustee and the
Security Agent.
The Security Documents,
the Senior Credit Facility and the Intercreditor Agreement are
hereinafter referred to as the “Finance
Documents” .
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The Issuer hereby
confirms its agreement with the several Initial Purchasers
concerning the purchase and resale of the Securities, as
follows:
1.
Purchase and Resale
of the Securities . (a) The Issuer
agrees to issue and sell the Notes, and the Guarantors agree to
issue and sell the Guarantees, to the several Initial Purchasers as
provided in this Agreement, and each Initial Purchaser, on the
basis of the representations, warranties and agreements set forth
herein and subject to the conditions set forth herein, agrees,
severally and not jointly, to purchase from the Issuer the
respective principal amount of Securities set forth opposite such
Initial Purchaser’s name in Schedule 1 hereto at a price
equal to 97.5% of the principal amount thereof plus accrued
interest, if any, from October 13, 2004 to the Closing Date.
The Issuer will not be obligated to deliver any of the
Securities except upon payment for all the Securities to be
purchased as provided herein. The Issuer also agrees to pay
J.P. Morgan Securities Inc. on the Closing Date a work fee of 0.25%
of the aggregate principal amount of the Securities.
(b)
The Issuer understands
that the Initial Purchasers will offer the Securities for resale on
the terms set forth in the Offering Memorandum. Each Initial
Purchaser, severally and not jointly, represents, warrants and
agrees that:
(i)
it and each of its
affiliates has not solicited offers for, or offered or sold, and
will not solicit offers for, or offer or sell, the Securities by
means of any form of general solicitation or general advertising
within the meaning of Rule 502(c) of Regulation D under the
Securities Act ( “Regulation D” ) or in any
manner involving a public offering within the meaning of
Section 4(2) of the Securities Act or which would require
registration of the Securities under the Securities Act
and
(ii)
it and each of its
affiliates has not solicited offers for, or offered or sold, and
will not solicit offers for, or offer or sell, the Securities as
part of their initial offering except:
(A)
within the United
States to persons whom it reasonably believes to be QIBs in
transactions pursuant to Rule 144A under the Securities Act (
“Rule 144A” ) and in connection with each such
sale, it has taken or will take reasonable steps to ensure that the
purchaser of the Securities is aware that such sale is being made
in reliance on Rule 144A; or
(B)
in accordance with the
restrictions set forth in Annex A hereto.
(c)
Each Initial Purchaser
acknowledges and agrees that the Issuer and, for purposes of the
opinions to be delivered to the Initial Purchasers pursuant to
Sections 5(f) and 5(g) of this agreement, counsel for the Issuer
and counsel for the Initial Purchasers, respectively, may rely upon
the accuracy of the representations and warranties of the Initial
Purchasers, and compliance by the Initial Purchasers with their
agreements, contained in paragraph (b) above (including Annex A
hereto), and each Initial Purchaser hereby consents to such
reliance.
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(d)
The Issuer acknowledges
and agrees that the Initial Purchasers may offer and sell
Securities to or through any affiliate of an Initial Purchaser and
that any such affiliate may offer and sell Securities purchased by
it to or through any Initial Purchaser.
2.
Payment and
Delivery .
Payment for and delivery of the Securities will
be made at the offices of Cravath, Swaine & Moore LLP, London,
England, at 10:00 A.M., London time, on October 13, 2004, or at
such other time or place on the same or such other date, not later
than the fifth business day thereafter, as the Representatives and
the Issuer may agree upon in writing. The time and date of
such payment and delivery is referred to herein as the
“Closing Date” .
(a)
Payment for the
Securities on the Closing Date shall be made to the Issuer or
caused to be made to the Issuer by the Initial Purchasers by wire
transfer of same-day funds to such account or accounts as the
Issuer shall specify prior to the Closing Date or by such other
means as the parties hereto shall agree prior to the Closing Date
against delivery to the Initial Purchasers of the Securities.
Securities sold within the U.S. to QIBs in reliance on Rule
144A will initially be represented by one or more global notes in
registered form without interest coupons attached (the
“Rule 144A Global Notes” ). Securities
sold outside the U.S. in reliance on Regulation S under the
Securities Act will initially be represented by one or more global
notes in registered form without interest coupons attached (the
“Regulation S Global Notes” and, together with
the Rule 144A Global Notes, the “Global Notes”
). On the Closing Date, the Global Notes will be deposited
with, and held by, JPMorgan Chase Bank, in London, England, in its
capacity as common depositary (the “Common
Depositary” ), as custodian for Euroclear Bank S.A./N.V.,
as operator of the Euroclear System (
“Euroclear” ) and Clearstream Banking,
société anonyme ( “Clearstream ,
Luxembourg” ), and registered in the name of the
Common Depositary, or its nominee, as nominee for Euroclear and
Clearsteam, Luxembourg, and will be credited with an amount
equivalent to their respective portion of the aggregate principal
amount of the Global Notes. The Issuer agrees to make the
Global Notes available for inspection by the Representatives on
behalf of the Initial Purchasers in London, England at least 24
hours prior to the Closing Date.
3.
Representations and
Warranties of the Issuer and the Guarantors . The Issuer and the
Guarantors jointly and severally represent and warrant to each
Initial Purchaser that:
(a)
Offering
Memorandum. The Preliminary Offering
Memorandum, as of its date, did not, and the Offering Memorandum
(in the form first used by the Initial Purchasers to confirm sales
of the Securities and as of the Closing Date) will not, contain any
untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; provided that the Issuer and the Guarantors make
no representation or warranty with respect to any statements or
omissions made in reliance upon and in conformity with information
relating to any Initial Purchaser furnished to the Issuer in
writing by any Initial Purchaser through the Representatives
expressly for use in the Preliminary Offering Memorandum or the
Offering Memorandum.
(b)
Financial
Statements. The financial information and
the financial statements and the related notes thereto included in
the Preliminary Offering Memorandum and the Offering Memorandum,
taken as a whole, present fairly the consolidated financial
position of the Parent Guarantor and its subsidiaries, as of the
dates indicated and the results of their consolidated operations
and the changes in their consolidated cash flows for the periods
specified; such financial statements have, and such financial
information has, been prepared in conformity with generally
accepted accounting principles in the United States applied on a
consistent basis throughout the periods covered thereby; and the
operating data of the Parent Guarantor and its subsidiaries
included in the Preliminary Offering Memorandum and the Offering
Memorandum has been accurately derived from the accounting records
or operating systems of the Parent Guarantor and its
subsidiaries.
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(c)
No Material Adverse
Change. Since the respective dates as
of which information is given in the Preliminary Offering
Memorandum and the Offering Memorandum, except as otherwise
disclosed in the Preliminary Offering Memorandum and the Offering
Memorandum, (i) there has not been any change in the capital
stock or long-term debt of the Parent Guarantor or any of its
subsidiaries, or any dividend or distribution of any kind declared,
set aside for payment, paid or made by the Parent Guarantor or any
of its subsidiaries on any class of capital stock, (ii) there
has not been any material adverse change in or affecting the
business, properties, management, financial position, results of
operations or prospects of the Parent Guarantor and its
subsidiaries taken as a whole; (iii) none of the Parent
Guarantor or any of its subsidiaries has entered into any
transaction or agreement (other than the Senior Credit Facility)
that is material to the Parent Guarantor and its subsidiaries taken
as a whole or incurred any liability or obligation, direct or
contingent, that is material to the Parent Guarantor and its
subsidiaries taken as a whole; and (iv) none of the Parent
Guarantor or any of its subsidiaries has sustained any material
loss or interference with its business from fire, explosion, flood
or other calamity, whether or not covered by insurance, or from any
labor disturbance or dispute or any action, order or decree of any
court or arbitrator or governmental or regulatory
authority.
(d)
Organization and
Good Standing. The Parent Guarantor and each
of its subsidiaries has been duly organized and is validly existing
for an unlimited duration under the laws of its jurisdiction of
organization, is duly qualified to do business and is in good
standing in each jurisdiction in which its ownership or lease of
property or the conduct of its business requires such
qualification, and has all power and authority necessary to own or
hold its properties and to conduct the businesses in which it is
engaged, except where the failure to be so qualified or have such
power or authority would not, individually or in the aggregate,
have a material adverse effect on the business, properties,
management, financial position, results of operations or prospects
of the Parent Guarantor and its subsidiaries taken as a whole or on
the performance by the Issuer and the Guarantors of their
obligations under the Notes and the Guarantees (a
“Material Adverse Effect” ). The Parent
Guarantor does not own or control, directly or indirectly, any
corporation, association or other entity other than the
subsidiaries listed in Schedule 2 to this Agreement.
(e)
Capitalization.
The issued share
capital of the Parent Guarantor and each of its subsidiaries is
(or, in the case of the Issuer, will be as of the Closing Date) as
set forth in the Preliminary Offering Memorandum and the Offering
Memorandum under the heading “Capitalization”
and otherwise, and all the outstanding ordinary shares or other
equity interests of the Parent Guarantor and each subsidiary of the
Parent Guarantor have been duly and validly authorized and issued,
are fully paid, and (except as otherwise disclosed in the
Preliminary Offering Memorandum and the Offering Memorandum) are
owned directly or indirectly by the Parent Guarantor, free and
clear of any lien, charge, encumbrance, security interest,
restriction on voting or transfer or any other claim of any third
party.
5
(f)
Due
Authorization. The Issuer and each of the
Guarantors have full right, power and authority to enter into this
Agreement, the Securities, the Indenture (including the Guarantees
contained therein) and the Finance Documents (collectively, the
“Transaction Documents” ), as applicable, and to
perform their respective obligations hereunder and thereunder; and
all action required to be taken for the due and proper
authorization, execution and delivery of each of the Transaction
Documents and the consummation of the transactions contemplated
thereby has been duly and validly taken.
(g)
Indenture
. The Indenture
has been duly authorized by the Issuer and each of the Guarantors
and, when duly executed and delivered in accordance with its terms
by each of the parties thereto, will constitute a valid and legally
binding agreement of the Issuer and each of the Guarantors
enforceable against the Issuer and each of the Guarantors in
accordance with its terms, except as enforceability may be limited
by applicable bankruptcy, insolvency or similar laws relating to
and affecting the enforcement of creditors’ rights generally
or by equitable principles (including concepts of materiality,
reasonableness and fair dealing) (regardless of whether enforcement
is considered in a proceeding in equity or law) or the discretion
of the court before which any proceeding is brought (collectively,
the “Enforceability Exceptions” ).
(h)
Notes and
Guarantees .
The Notes have been duly authorized by the Issuer and, when
duly executed, authenticated, issued and delivered as provided in
the Indenture and paid for as provided herein, will be duly and
validly issued and outstanding and will constitute valid and
legally binding obligations of the Issuer enforceable against the
Issuer in accordance with their terms, subject to the
Enforceability Exceptions, and will be entitled to the benefits of
the Indenture; and the Guarantees have been duly authorized by each
of the Guarantors and, when the Notes have been duly executed,
authenticated, issued and delivered as provided in the Indenture
and paid for as provided herein, will constitute valid and legally
binding obligations of each of the Guarantors, enforceable against
each of the Guarantors in accordance with their terms, subject to
the Enforceability Exceptions, and will be entitled to the benefits
of the Indenture.
(i)
Creation of Security
Interests. Each of the Guarantors owns (or, in
the case of Oskar Finance, will own on the Closing Date) the shares
it will pledge on the Closing Date, pursuant to the applicable
Share Charges, free and clear of any lien, charge, encumbrance,
security interest, restriction on voting or transfer or any other
claim of any third party (other than liens under the Share Charges
or as described in the Offering Memorandum). Each of the
Issuer and the Guarantors owns the assets it has pledged, pursuant
to the applicable Security Pledges, free and clear of any lien,
charge, encumbrance, security interest, restriction on transfer or
any other claim of any third party (other than liens under the
Security Pledges or as described in the Offering Memorandum).
Each of the Share Charges, Security Pledges and Security
Assignments, when executed and perfected as provided for therein,
will create the security interest which is expressed to be created
by such Security Document and evidence the security interest it is
expressed to evidence (except as described in the Offering
Memorandum). Except as described in the Offering Memorandum,
the obligations under the Securities will be secured by (i) a
perfected first-priority pledge by the Parent Guarantor of the
share capital of Oskar Finance, (ii) a perfected first-priority
pledge by Oskar Finance of the share capital of the Issuer that it
will own as of the Closing Date, (iii)(A) a perfected
first-priority security interest granted by the Issuer in (1) its
principal trademarks, (2) its telecommunications network, (3) its
receivables from bank account maintenance agreements and (4)
certain of its insurance proceeds, (iv) a perfected first-priority
security interest granted by each of the Guarantors in their
respective bank accounts and (v) a perfected first-priority
security interest granted in any intercompany loan among the Parent
Guarantor and any Restricted Subsidiary and any shareholder loan
made to any Restricted Subsidiary. Such collateral, in each
case, as of the Closing Date, will not be subject to any prior or
pari passu ranking security, other than pursuant to the
Security Documents.
6
(j)
Purchase
Agreement. This Agreement has been duly
authorized, executed and delivered by the Issuer and each of the
Guarantors and, when duly executed and delivered in accordance with
its terms by each of the other parties thereto, will constitute a
valid and legally binding agreement of the Issuer and each of the
Guarantors enforceable against the Issuer and each of the
Guarantors in accordance with its terms, subject to the
Enforceability Exceptions, and except that rights to indemnity and
contribution thereunder may be limited by applicable law and public
policy.
(k)
Finance
Documents .
Each of the Finance Documents has been or, as the case may
be, will be duly authorized, executed and delivered by the Issuer
and each of the Guarantors, as applicable, and, when duly executed
and delivered in accordance with its terms by each of the other
parties thereto, will constitute a valid and legally binding
agreement of the Issuer and each of the Guarantors as applicable,
enforceable against the Issuer and each of the Guarantors, as
applicable, in accordance with its terms, subject to the
Enforceability Exceptions and except as described in the Offering
Memorandum.
(l)
Fair
Summaries .
The descriptions in the Offering Memorandum of statutes,
legal, governmental and regulatory proceedings and contracts and
other documents (including the Transaction Documents) are accurate
summaries in all material respects; and the statements in the
Offering Memorandum under the headings “Business―Legal
proceedings", "Industry―Regulatory overview and licenses",
"Description of other indebtedness", "Certain tax considerations",
"Risk factors―Risks relating to regulatory and legislative
matters" and (insofar as it purports to summarize Czech or Dutch
law) " Risk factors―Risks relating to the guarantees and
collateral" accurately summarize the matters therein described in
all material respects.
(m)
No Violation or
Default. Neither the Parent Guarantor
nor any of its subsidiaries is (i) in violation of its
articles of association or other similar organizational documents;
(ii) in default, and no event has occurred that, with notice
or lapse of time or both, would constitute such a default, in the
due performance or observance of any term, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which the Parent Guarantor or
any of its subsidiaries is a party or by which the Parent Guarantor
or any of its subsidiaries is bound or to which any of the property
or assets of the Issuer or any of its subsidiaries is subject;
(iii) in violation of any applicable law or statute or any
judgment, order, rule or regulation of any court or arbitrator or
governmental or regulatory authority or (iv) in violation of, or in
default under, and no event has occurred that, with notice or lapse
of time or both, would constitute such a default under, any
license, certificate, permit or authorization issued by any
governmental or regulatory authority, except, in the case of
clauses (ii), (iii) and (iv) above, for any such default or
violation that would not, individually or in the aggregate, have a
Material Adverse Effect.
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(n)
No Conflicts.
The
execution, delivery and performance by the Issuer and each of the
Guarantors of each of the Transaction Documents to which each is a
party, the issuance and sale of the Securities and compliance by
the Issuer and each of the Guarantors with the terms thereof and
the consummation of the transactions contemplated by the
Transaction Documents, taken together, will not (i) conflict
with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or result (other than
pursuant to the Security Documents) in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of
the Parent Guarantor or any of its subsidiaries, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Parent Guarantor or any of its subsidiaries
is a party or by which the Parent Guarantor or any of its
subsidiaries is bound or to which any of the property or assets of
the Parent Guarantor or any of its subsidiaries is subject,
(ii) result in any violation of the provisions of the articles
of association or other similar organizational documents of
the Parent Guarantor or any of its subsidiaries, (iii) result
in the violation of any law or statute or any judgment, order, rule
or regulation of any court or arbitrator or governmental or
regulatory authority or (iv) conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a
default under, any license, certificate, permit or authorization
issued by any governmental or regulatory authority, except, in the
case of clauses (i), (iii) and (iv) above, for any such conflict,
breach or violation that would not, individually or in the
aggregate, have a Material Adverse Effect.
(o)
No Consents
Required .
No consent, approval, authorization, license, order,
registration or qualification of or with any court or arbitrator or
governmental or regulatory authority is required for the execution,
delivery and performance by the Issuer and each of the Guarantors
of each of the Transaction Documents to which each is a party, the
issuance and sale of the Securities and compliance by the Issuer
and each of the Guarantors with the terms thereof and the
consummation of the transactions contemplated by the Transaction
Documents, except for (i) such consents, approvals, authorizations,
orders and registrations or qualifications as may be required (A)
under applicable national or state securities laws in connection
with the purchase and resale of the Securities by the Initial
Purchasers and (B) under the rules and regulations of the
Luxembourg Stock Exchange with respect to the listing thereon of
the Securities, (ii) notification to the Czech Securities
Commission of the issuance of the Securities as a foreign issue
under Section 3(3) of Czech Act No. 190/2004 Coll., on Bonds, (iii)
registration of the Security Pledge relating to the Issuer’s
principal trademarks in the register of trademarks maintained by
the Czech Industrial Property Office, under Article 17 of Czech Act
No. 441/2003, Collection of Laws, on Trademarks and (iv)
registration of the Security Pledge relating to the Issuer’s
telecommunications network, in the form of a pledge of a "global
asset" ( véc hromadná ), in the register of pledge
under Article 158 of Czech Act No. 40/1964 Collection of Laws, the
Civil Code, as amended, and Article 35b of Czech Act No. 358/1992,
Collection of Laws, on Notaries and Their Activities (Notarial
Rules).
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(p)
Legal
Proceedings. Except as described in the
Preliminary Offering Memorandum and the Offering Memorandum, there
are no legal, governmental or regulatory investigations, actions,
suits or proceedings pending to which the Parent Guarantor or any
of its subsidiaries is or may be a party or to which any property
(including any license, certificate, permit or other authorization
issued by any governmental or regulatory authority) of the Parent
Guarantor or any of its subsidiaries is or may be the subject that,
individually or in the aggregate, could reasonably be expected to
have a Material Adverse Effect; and, except as described in the
Preliminary Offering Memorandum and the Offering Memorandum, no
such investigations, actions, suits or proceedings are threatened
or, to the best knowledge of the Parent Guarantor or any of its
subsidiaries, contemplated by any governmental or regulatory
authority or threatened by others.
(q)
Independent
Auditors. Ernst & Young LLP, who
have audited certain financial statements of the Parent Guarantor
and its subsidiaries, are independent auditors with respect to the
Parent Guarantor and its subsidiaries within the meaning of Rule
101 of the Code of Professional Conduct of the American Institute
of Certified Public Accountants and its interpretations and rulings
thereunder.
(r)
Title to Real and
Personal Property. The Parent Guarantor and its
subsidiaries validly own, or have valid rights to lease or
otherwise use, all items of real and personal property that are
material to the respective businesses of the Parent Guarantor and
its subsidiaries, in each case free and clear of all liens,
encumbrances, claims and defects and imperfections of title except
those that (i) do not materially interfere with the use made and
proposed to be made of such property by the Parent Guarantor and
its subsidiaries, (ii) could not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect
or (iii) arise under the Security Documents or the Issuer’s
existing senior secured credit facility.
(s)
Title to
Intellectual Property. The Parent Guarantor and its
subsidiaries own or possess adequate rights to use all material
patents, patent applications, trademarks, service marks, trade
names, trademark registrations, service mark registrations,
copyrights, licenses and know-how (including trade secrets and
other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures) necessary for the conduct of
their respective businesses; to the best of their knowledge, the
conduct of their respective businesses will not conflict in any
material respect with any such rights of others; and the Parent
Guarantor and its subsidiaries have not received any notice of any
claim of infringement of or conflict with any such rights of others
and are unaware of any facts which would form a reasonable basis
for any such claim, except for claims and conflicts that could not
reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect.
(t)
Investment Company
Act. Neither the Parent Guarantor
nor any of its subsidiaries is, and after giving effect to the
offering and sale of the Securities and the application of the
proceeds thereof as described in the Offering Memorandum none of
them will be, an “investment company” or an entity
“controlled” by an “investment company”
within the meaning of the U.S. Investment Company Act of 1940, as
amended, and the rules and regulations of the Commission thereunder
(collectively, the “Investment Company Act”
).
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(u)
Passive Foreign
Investment Company. Neither the Parent Guarantor nor any
of its subsidiaries is, and after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof
as described in the Offering Memorandum none of them expects to
become, a “passive foreign investment company” as
defined in Section 1297 of the U.S. Internal Revenue Code of 1986,
as amended, and the regulations promulgated thereunder.
(v)
Taxes.
The Parent
Guarantor and its subsidiaries have paid all national, regional,
local and other taxes and filed all tax returns required to be paid
or filed through the date hereof; and there is no tax deficiency
that has been, or could reasonably be expected to be, asserted
against the Parent Guarantor or any of its subsidiaries, or any of
their respective properties or assets.
(w)
Licenses and
Permits. The Parent Guarantor and its
subsidiaries possess all licenses, certificates, permits,
concessions, franchises, orders, approvals and other authorizations
issued by, and have made all declarations and filings with, the
appropriate national, regional, local or other governmental or
regulatory authorities that are necessary for the ownership or
lease of their respective properties or the conduct of their
respective businesses as described in the Preliminary Offering
Memorandum and the Offering Memorandum, except where the failure to
possess or make the same would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect; and neither the Parent Guarantor nor any of its
subsidiaries has received notice of, or has any reason to believe
that any governmental or regulatory authority is contemplating
effecting, any revocation, suspension, termination, expiration or
modification of any such license, certificate, permit, concession,
franchise, order, approval or authorization, has any reason to
believe that any such license, certificate, permit, concession,
franchise, order, approval or authorization will not be renewed or
extended in the ordinary course, or has any intention to effect, or
is otherwise contemplating effecting, any release, surrender or
transfer of any such license, certificate, permit, concession,
franchise, order or approval or authorization or any other action
that would result in the Parent Guarantor and its subsidiaries
ceasing to have the benefit thereof.
(x)
Licenses and
Interconnection Agreements. The decisions of the Czech
Telecommunications Office (“CTU”) Nos. 5379/2002-610
and 8951/2002-610 are in full force and effect and permit the
Issuer to operate its GSM network and provide wireless
telecommunications services as described in the Offering
Memorandum, and there are no pending legal, governmental or
regulatory investigations, actions, suits or proceedings with
respect to such Decisions and no such investigations, actions,
suits or proceedings are threatened or, to the best knowledge of
the Company, contemplated by any governmental or regulatory
authority or threatened by others; the interconnection agreements
described in the Offering Memorandum under the caption
"Industry―Regulatory overview and
licenses―Interconnection" and
"Business―Operations―Operating processes" are in full
force and effect.
10
(y)
No Labor
Disputes. No labor disturbance by or
dispute with employees of the Parent Guarantor or any of its
subsidiaries exists or, to the best knowledge of the Issuer and
each of the Guarantors, is contemplated or threatened.
(z)
Compliance With
Environmental Laws. The Parent Guarantor and its
subsidiaries (i) are in compliance with any and all applicable
national, regional, local and other laws, rules, regulations,
decisions and orders relating to the protection of human health and
safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants (collectively, “Environmental
Laws” ); (ii) have received and are in compliance
with all permits, licenses or other approvals required of them
under applicable Environmental Laws to conduct their respective
businesses; and (iii) have not received any notice of any
actual or potential liability for the investigation or remediation
of any disposal or release of hazardous or toxic substances or
wastes, pollutants or contaminants, except in any such case for any
such failure to comply with, or failure to receive required
permits, licenses or approvals, or liability, as would not,
individually or in the aggregate, have a Material Adverse
Effect.
(aa)
Compliance With
Employee Arrangements. Each benefit and compensation plan,
agreement, policy and arrangement that is maintained, administered
or contributed to by the Parent Guarantor or any of its
subsidiaries or any of their respective affiliates for current or
former employees or directors of, or independent contractors with
respect to, the Parent Guarantor or any of its subsidiaries or any
of their respective affiliates, or with respect to which any of
such entities could reasonably be expected to have any current,
future or contingent liability or responsibility, has been
maintained in compliance in all material respects with its terms
and the requirements of any applicable statutes, orders, rules and
regulations; and the Parent Guarantor and each of its subsidiaries
and any of their respective affiliates have complied in all
material respects with all applicable statutes, orders, rules and
regulations in regard to such plans, agreements, policies and
arrangements.
(bb)
Accounting
Controls. The Parent Guarantor and its
subsidiaries maintain systems of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions
are executed in accordance with management’s general or
specific authorizations; (ii) transactions are recorded as
necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles in the
U.S. and to maintain asset accountability; (iii) access to assets
is permitted only in accordance with management’s general or
specific authorization; and (iv) the recorded accountability for
assets is compared with the existing assets at reasonable intervals
and appropriate action is taken with respect to any
differences.
(cc)
Insurance.
The
Parent Guarantor and its subsidiaries have insurance covering their
respective properties, operations, personnel and businesses,
including business interruption insurance, which insurance is in
amounts and insures against such losses and risks as are in the
reasonable judgment of the Parent Guarantor adequate to protect the
Parent Guarantor and its subsidiaries and their respective
businesses; and none of the Parent Guarantor or any of its
subsidiaries has (i) received notice from any insurer or agent
of such insurer that capital improvements or other expenditures are
required or necessary to be made in order to continue such
insurance or (ii) any reason to believe that it will not be
able to renew or cause to be renewed its existing insurance
coverage as and when such coverage expires or to obtain similar
coverage at reasonable cost from similar insurers as may be
necessary to continue its business.
11
(dd)
No Unlawful
Payments .
The operations of the Parent Guarantor and its subsidiaries
have been conducted at all times in compliance with applicable
financial recordkeeping and reporting requirements of the
Netherlands, the Czech Republic and the European Union and any
related or similar statutes, rules, regulations or guidelines,
issued, administered or enforced by any governmental agency
(collectively, the “Money Laundering Laws” ),
and no action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving
the Parent Guarantor or any of its subsidiaries with respect to the
Money Laundering Laws is pending or, to the best knowledge of the
Issuer and each of the Guarantors, threatened, and none of the
Parent Guarantor, or any of its subsidiaries, or to the best
knowledge of the Issuer and each of the Guarantors, any director,
officer, agent, employee or other person associated with or acting
on behalf of the Parent Guarantor, or any of its subsidiaries has
(i) used any corporate funds for any unlawful contribution, gift,
entertainment or other unlawful expense relating to political
activity, (ii) made any direct or indirect unlawful payment to any
foreign or domestic government official or employee from corporate
funds, (iii) violated or is in violation of any provision of
the U.S. Foreign Corrupt Practices Act of 1977; or (iv) made any
unlawful payment, including any bribe, rebate, payoff, influence
payment or kickback.
(ee)
Solvency.
On and immediately
after the Closing Date, the Issuer and each of the Guarantors
(after giving effect to the issuance of the Securities and the
other transactions related thereto as described in the Offering
Memorandum) will be Solvent. As used in this paragraph, the
term “Solvent” means, with respect to a
particular date, that on such date (i) the present fair market
value (or present fair saleable value) of the respective assets of
each of the Issuer and the Guarantors is not less than the total
amount required to pay the respective liabilities of each of the
Issuer and the Guarantors on its total existing debts and
liabilities (including contingent liabilities) as they become
absolute and matured; (ii) each of the Issuer and the
Guarantors is able to realize upon its assets and pay its debts and
other liabilities, contingent obligations and commitments as they
mature and become due in the normal course of business;
(iii) assuming consummation of the issuance of the Securities
as contemplated by this Agreement and the Offering Memorandum, each
of the Issuer and the Guarantors is not incurring debts or
liabilities beyond its ability to pay as such debts and liabilities
mature; (iv) neither the Issuer nor any of the Guarantors is
engaged in any business or transaction, or proposes to engage in
any business or transaction, for which its property would
constitute unreasonably small capital after giving due
consideration to the prevailing practice in the industry in which
the Issuer or such Guarantor is engaged; and (v) neither the
Issuer nor any of the Guarantors is a defendant in any civil action
that would result in a judgment that the Issuer or such Guarantor
is or would become unable to satisfy.
(ff)
No Restrictions on
Subsidiaries . Except as described in the
Offering Memorandum and except for restrictions set forth in the
Issuer’s existing senior secured credit facility, no
subsidiary of the Parent Guarantor is currently prohibited,
directly or indirectly, under any agreement or other instrument to
which it is a party or is subject, from paying any dividends to the
Parent Guarantor, from making any other distribution on such
subsidiary’s capital stock, from repaying to the Parent
Guarantor any loans or advances to such subsidiary from the Parent
Guarantor or from transferring a
