Exhibit 4.18


 


EXECUTION
VERSION


 


€200,000,000


 


FACILITY AGREEMENT


 


dated     September 2005


 


for


 


MOBIFON S.A.


 


with


 


BANK AUSTRIA CREDITANSTALT AG


CITIBANK, N.A.


COMMERZBANK AKTIENGESELLSCHAFT


ING BANK N.V.


AND


RAIFFEISEN ZENTRALBANK
ÖSTERREICH AG


 


acting
as Mandated Lead Arrangers


 


and


 


ING BANK N.V., LONDON BRANCH


 


acting
as Agent


 





 


Ref:
SRYT/STMS


 





















 


CONTENTS


 


	
  CLAUSE

  	
   

  	
   

  
	
   

  	
   

  
	
  SECTION 1

  	
   

  
	
  INTERPRETATION

  	
   

  
	
  1.

  	
  Definitions and interpretation

  	
   

  
	
  SECTION 2

  	
   

  
	
  THE
  FACILITY

  	
   

  
	
  2.

  	
  The Facility

  	
   

  
	
  3.

  	
  Purpose

  	
   

  
	
  4.

  	
  Conditions of Utilisation

  	
   

  
	
  SECTION 3

  	
   

  
	
  UTILISATION

  	
   

  
	
  5.

  	
  Utilisation

  	
   

  
	
  SECTION 4

  	
   

  
	
  REPAYMENT, PREPAYMENT AND
  CANCELLATION

  	
   

  
	
  6.

  	
  Repayment

  	
   

  
	
  7.

  	
  Prepayment and cancellation

  	
   

  
	
  SECTION 5

  	
   

  
	
  COSTS
  OF UTILISATION

  	
   

  
	
  8.

  	
  Interest

  	
   

  
	
  9.

  	
  Interest Periods

  	
   

  
	
  10.

  	
  Changes to the calculation
  of interest

  	
   

  
	
  11.

  	
  Fees

  	
   

  
	
  SECTION 6

  	
   

  
	
  ADDITIONAL PAYMENT
  OBLIGATIONS

  	
   

  
	
  12.

  	
  Tax gross up and indemnities

  	
   

  
	
  13.

  	
  Increased costs

  	
   

  
	
  14.

  	
  Other indemnities

  	
   

  
	
  15.

  	
  Mitigation by the Lenders

  	
   

  
	
  16.

  	
  Costs and expenses

  	
   

  
	
  SECTION 7

  	
   

  
	
  REPRESENTATIONS,
  UNDERTAKINGS AND EVENTS OF DEFAULT

  	
   

  
	
  17.

  	
  Representations

  	
   

  
	
  18.

  	
  Information
  undertakings

  	
   

  
	
  19.

  	
  Financial covenants

  	
   

  
	
  20.

  	
  General undertakings

  	
   

  
	
  21.

  	
  Events of Default

  	
   

  
	
  SECTION 8

  	
   

  
	
  CHANGES TO PARTIES

  	
   

  
	
  22.

  	
  Changes to the
  Lenders

  	
   

  
	
  23.

  	
  Changes to the
  Borrower

  	
   

  
	
  SECTION 9

  	
   

  
	
  THE FINANCE PARTIES

  	
   

  
	
  24.

  	
  Role of the
  Agent and the Arranger

  	
   

  
	
  25.

  	
  Conduct of
  business by the Finance Parties

  	
   

  
	
  26.

  	
  Sharing
  among the Finance Parties

  	
   

  



 


(i)





















 


	
  SECTION 10

  	
   

  
	
  ADMINISTRATION

  	
   

  
	
  27.

  	
  Payment mechanics

  	
   

  
	
  28.

  	
  Set-off

  	
   

  
	
  29.

  	
  Notices

  	
   

  
	
  30.

  	
  Calculations
  and certificates

  	
   

  
	
  31.

  	
  Partial
  invalidity

  	
   

  
	
  32.

  	
  Remedies
  and waivers

  	
   

  
	
  33.

  	
  Amendments
  and waivers

  	
   

  
	
  34.

  	
  Counterparts

  	
   

  
	
  SECTION 11

  	
   

  
	
  GOVERNING LAW AND ENFORCEMENT

  	
   

  
	
  35.

  	
  Governing
  law

  	
   

  
	
  36.

  	
  Enforcement

  	
   

  
	
   

  	
   

  	
   

  
	
  THE SCHEDULES

  	
   

  
	
  SCHEDULE

  	
   

  
	
   

  	
   

  
	
  SCHEDULE 1 The Original Lenders

  	
   

  
	
  SCHEDULE 2 Conditions precedent

  	
   

  
	
  SCHEDULE 3 Requests

  	
   

  
	
  SCHEDULE 4 Mandatory Cost Formula

  	
   

  
	
  SCHEDULE 5 Form of Transfer Certificate

  	
   

  
	
  SCHEDULE 6 Form of Compliance Certificate

  	
   

  
	
  SCHEDULE 7 Timetables

  	
   

  



 


(ii)





















 


THIS
AGREEMENT is dated     September 2005 and made
between:


 


(1)                            MOBIFON S.A. registered under number
J40/9852/1996 with the Bucharest Trade Registry Office and with Unique Code of
Registration number 8971726 (the “Borrower”);


 


(2)                            BANK AUSTRIA CREDITANSTALT AG,
CITIBANK, N.A., COMMERZBANK AKTIENGESELLSCHAFT, ING BANK N.V. AND RAIFFEISEN
ZENTRALBANK ÖSTERREICH AG as mandated lead arrangers (whether acting
individually or together the “Arranger”);


 


(3)                            THE FINANCIAL INSTITUTIONS listed in Schedule 1
as lenders (the “Original Lenders”);
and


 


(4)                            ING BANK N.V., LONDON BRANCH as agent
of the other Finance Parties (the “Agent”).


 


IT IS
AGREED as follows:


 


SECTION 1


 


INTERPRETATION


 


1.                                       DEFINITIONS AND INTERPRETATION


 


1.1                                 Definitions


 


In this Agreement:


 


“Accounting
Quarter” means each period of three calendar months ending on 31
March, 30 June, 30 September and 31 December in any financial year of
the Borrower.


 


“Accounting
Principles” means US GAAP or, at the option of the Borrower, in
accordance with Clause 18.3(b) (Requirements
as to financial statements), IFRS.


 


“Additional Cost
Rate” has the meaning given to it in Schedule 4 (Mandatory Cost  Formula).


 


“Affiliate”
means, in relation to any person, a Subsidiary of that person or a Holding
Company of that person or any other Subsidiary of that Holding Company.


 


“Annualised EBITDA”
has the meaning given to it in Clause 19 (Financial
covenants).


 


“Authorisation”
means an authorisation, consent, approval, resolution, licence, exemption,
filing, notarisation or registration.


 


“Availability
Period” means the period from and including the date of this
Agreement to and including the date which is the earlier of 45 days after the
date of this Agreement and the Utilisation Date.


 


“Available
Facility” means the aggregate for the time being of each Lender’s
Commitment.


 


“Break Costs”
means the amount (if any) by which:


 


(a)                                  the interest
(excluding the Margin and any Mandatory Cost) which a Lender should have
received for the period from the date of receipt of all or any part of its
participation in the Loan or Unpaid Sum to the last day of the current Interest
Period of the Loan or Unpaid Sum, had the principal amount or Unpaid Sum
received been paid on the last day of that Interest Period;


 


exceeds:


 





















 


(b)                                 the amount which
that Lender would be able to obtain by placing an amount equal to the principal
amount or Unpaid Sum received by it on deposit with a leading bank in the
Relevant Interbank Market for a period starting on the Business Day following
receipt or recovery and ending on the last day of the current Interest Period.


 


“Business Day”
means a day (other than a Saturday or Sunday) on which banks are open for
general business in London and Bucharest and (in relation to any date for
payment or purchase of euro) which is a TARGET Day.


 


“Commitment”
means:


 


(a)                                  in relation to an
Original Lender, the amount in euro set opposite its name under the heading “Commitment”
in Schedule 1 (The Original  Lenders) and the amount of any other
Commitment transferred to it under this Agreement; and


 


(b)                                 in relation to any
other Lender, the amount in euro of any Commitment transferred to it under this
Agreement,


 


to the extent not cancelled, reduced or transferred
by it under this Agreement.


 


“Compliance
Certificate” means a certificate substantially in the form set out
in Schedule 6 (Form of Compliance
Certificate).


 


“Confidentiality
Undertaking” means a confidentiality undertaking substantially in a
recommended form of the LMA or in any other form agreed between the Borrower
and the Agent.


 


“Default”
means an Event of Default or any event or circumstance specified in Clause 21 (Events of Default) which would (with the
expiry of a grace period, the giving of notice, the making of any determination
under the Finance Documents or any combination of any of the foregoing) be an
Event of Default.


 


“EURIBOR”
means, in relation to the Loan:


 


(a)                                  the applicable
Screen Rate; or


 


(b)                                 (if no Screen Rate
is available for the Interest Period of the Loan) the arithmetic mean of the
rates (rounded upwards to four decimal places) as supplied to the Agent at its
request quoted by the Reference Banks to leading banks in the European
interbank market,


 


as of the Specified Time on the Quotation Day for
the offering of deposits in euro for a period comparable to the Interest Period
of the Loan.


 


“euro”
or “€” means the single currency
unit of the Participating Member States.


 


“Event of Default”
means any event or circumstance specified as such in Clause 21 (Events of Default).


 


“Existing Debt”
means the Financial Indebtedness (including any break costs or any other costs
relating to its repayment or refinancing) arising under the Existing Loan
Agreements.


 


“Existing Loan
Agreements” means:


 


(a)                                  the loan agreement
dated 27 August 2002 between the Borrower and the European Bank for
Reconstruction and Development;


 


2





















 


(b)                                 the loan agreement
dated 27 August 2002 between the Borrower and Export Development Canada;
and


 


(c)                                  the loan agreement
dated 27 August 2002 between the Borrower and Nordic Investment Bank,


 


in each case as amended from time to time.


 


“Facility”
means the term loan facility made available under this Agreement as described
in Clause 2 (The  Facility).


 


“Facility Office”
means the office or offices notified by a Lender to the Agent in writing on or before
the date it becomes a Lender (or, following that date, by not less than five
Business Days’ written notice) as the office or offices through which it will
perform its obligations under this Agreement.


 


“Fee Letter”
means any letter or letters dated on or about the date of this Agreement
between the Arranger and the Borrower (or the Agent and the Borrower) setting
out any of the fees referred to in Clause 11 (Fees).


 


“Finance Document”
means this Agreement, any Fee Letter and any other document designated as such
by the Agent and the Borrower.


 


“Finance Party”
means the Agent, the Arranger or a Lender.


 


“Financial
Indebtedness” means any indebtedness for or in respect of:


 


(a)                                  moneys borrowed;


 


(b)                                 any amount raised
by acceptance under any acceptance credit facility or dematerialised
equivalent;


 


(c)                                  any amount raised
pursuant to any note purchase facility or the issue of bonds, notes,
debentures, loan stock or any similar instrument;


 


(d)                                 the amount of any
liability in respect of any lease or hire purchase contract which would, in
accordance with the Accounting Principles, be treated as a finance or capital
lease;


 


(e)                                  the amount of any
liability in respect of any purchase price for assets or services the payment
of which is deferred for a period in excess of 120 days where the deferral of
such price is either (i) used primarily as a method of raising credit or (ii) not
made in the ordinary course of business;


 


(f)                                    any amount of any
liability under an advance or deferred purchase agreement if (i) one of the
primary reasons behind the entry into this agreement is to raise finance and (ii) this
agreement is entered into otherwise than in the ordinary course of business;


 


(g)                                 receivables sold or
discounted (other than any receivables to the extent they are sold on a
non-recourse basis and on arm’s length terms);


 


(h)                                 any amount raised
under any other transaction (including any forward sale or purchase agreement)
having the commercial effect of a borrowing;


 


(i)                                     any derivative
transaction entered into in connection with protection against or benefit from
fluctuation in any rate or price (and, when calculating the value of any
derivative transaction, only the marked to market value shall be taken into
account which, for the


 


3





















 


avoidance of doubt, may be an
addition to or subtraction from the amount of Financial Indebtedness;


 


(j)                                     shares which are
expressed to be mandatorily redeemable;


 


(k)                                  any
counter-indemnity obligation in respect of a guarantee, indemnity, bond,
standby or documentary letter of credit or any other instrument issued by a
bank or financial institution; and


 


(l)                                     the amount of any
liability in respect of any guarantee or indemnity for any of the items
referred to in paragraphs (a) to (i) above,


 


in each case, without double counting and excluding
any Shareholder Debt that has been subordinated on terms reasonably
satisfactory to the Agent (acting on the instructions of the Majority Lenders).


 


“Group”
means the Borrower and its Subsidiaries for the time being.


 


“Holding Company”
means, in relation to a company or corporation, any other company or
corporation in respect of which it is a Subsidiary.


 


“IFRS”
means International Financial Reporting Standards issued by the International
Accounting Standards Board (as amended, supplemented or re-issued from time to
time).


 


“Interconnect
Agreements” means:


 


(a)                                  the interconnection
agreement dated 6 August 1997 between the Borrower and S.C. Romtelecom
S.A.;


 


(b)                                 the interconnection
agreement dated 1 July 2004 between the Borrower and S.C. Orange Romania
S.A.; and


 


(c)                                  the interconnection
agreement dated 1 July 2004 between the Borrower and Telemobil S.A.,


 


in each case as amended or
supplemented from time to time, including any replacements of the same.


 


“Information
Package” means the document in the form approved by the Borrower
which, at the Borrower’s request and on its behalf, was prepared in relation to
this transaction and distributed by the Arranger to selected financial
institutions before the date of this Agreement.


 


“Interest
Period” means, in relation to the Loan, each period determined in
accordance with Clause 9 (Interest Periods)
and, in relation to an Unpaid Sum, each period determined in accordance with
Clause 8.3 (Default interest).


 


“Lender”
means:


 


(a)                                  any Original
Lender; and


 


(b)                                 any bank or
financial institution which has become a Party in accordance with Clause 22 (Changes to the Lenders),


 


which in each case has not ceased to be a Party in
accordance with the terms of this Agreement.


 


“Licenses”
means the following:


 


4





















 


(a)                                  Standard
Authorisation for electronic communications networks and services providers
registered by NRAC under number 15769/17.06.2005;


 


(b)                                 Numbering Licence
number 1.6/18.03.2005; and


 


(c)                                  the National
Spectrum Licenses,


 


in each case as amended or supplemented from time to
time, including any replacements of the same.


 


“LMA”
means the Loan Market Association.


 


“Loan”
means the loan made or to be made under the Facility or the principal amount
outstanding for the time being of that loan.


 


“Majority Lenders”
means:


 


(a)                                  prior to the
Utilisation, a Lender or Lenders whose Commitments aggregate more than 662/3%
of the Total Commitments (or, if the Total Commitments have been reduced to
zero, aggregated more than 662/3% of the Total
Commitments immediately prior to the reduction); or


 


(b)                                 at any other time,
a Lender or Lenders whose participations in the Loan then outstanding aggregate
more than 662/3% of the Loan then outstanding.


 


“Mandatory Cost”
means the percentage rate per annum calculated by the Agent in accordance with Schedule 4
(Mandatory Cost  Formula).


 


“Margin”
means:


 


(a)                                  (subject to
paragraph (b) below) 0.60 per cent. per annum; and


 


(b)                                 at any time when
the Borrower has notified the Agent in writing that:


 


(i)                                     the sovereign,
foreign currency credit rating of Romania has been rated BBB- or higher by
Standard & Poor’s; and


 


(ii)                                  the ratio of Net
Financial Indebtedness on the most recent Relevant Date to Annualised EBITDA
for the Relevant Period ending on that Relevant Date is less than 1.00:1.00,


 


the Margin shall be 0.50 per cent. per annum.


 


“Material Adverse
Effect” means a material adverse effect on:


 


(a)                                  the financial
condition, business or operations of the Borrower;


 


(b)                                 the ability of the
Borrower to perform any of its payment obligations under the Finance Documents;
or


 


(c)                                  the validity,
legality or enforceability of any Finance Document.


 


“Material
Agreements” means:


 


(a)                                  Borrower’s Contract
of Association and Statutes;


 


(b)                                 the Licenses; and


 


(c)                                  the Interconnect
Agreements.


 


5





















 


“Moody’s”
means Moody’s Investors Service Limited or any successor to its rating
business.


 


“Month”
means a period starting on one day in a calendar month and ending on the
numerically corresponding day in the next calendar month, except that:


 


(a)                                  if the numerically
corresponding day is not a Business Day, that period shall end on the next
Business Day in that calendar month in which that period is to end if there is
one, or if there is not, on the immediately preceding Business Day; and


 


(b)                                 if there is no
numerically corresponding day in the calendar month in which that period is to
end, that period shall end on the last Business Day in that calendar month.


 


The above rules will only apply to the last
Month of any period.


 


“National Spectrum
Licenses” means:


 


(a)                                  the GSM 900/GSM
1800 Licence in relation to (i) 62 national channels for GSM 900 within 935-960/890-915
MHz and (ii) 18 channels for GSM 1800 within 1805-1880/1710-1785 MHz,
which expires on 31 December 2011;


 


(b)                                 the 3G Licence in
relation to one 5 MHz channel of paired spectrum 2165-2170/1975-1980 MHz which
expires on 31 March 2020;


 


(c)                                  the PMP 3.5 GHz
Licence in relation to 3431-3438/3531-3538 2X7MHz which expires on 30 September 2013;


 


(d)                                 the PMP 3.5 MHz
Licence in relation to 3424-3431/3524-3531 2X7MHz which expires on 30 September 2013;
and


 


(e)                                  the PMP 26 GHz
Licence in relation to 2x 112 MHz channel which expires on 28 June 2014,


 


each granted to the Borrower by the
Ministry of Communications and Information Technology.


 


“Net Financial
Indebtedness” has the meaning given to it in Clause 19 (Financial covenants).


 


“Network”
means the mobile telephony network operated by the Borrower in Romania.


 


“Original
Financial Statements” means the audited consolidated financial
statements of the Group for the calendar year ended 31 December 2004.


 


“Participating
Member State” means any member state of the European Communities
that adopts or has adopted the euro as its lawful currency in accordance with
legislation of the European Community relating to Economic and Monetary Union.


 


“Party”
means a party to this Agreement.


 


“Qualifying Lender”
has the meaning given to it in Clause 12 (Tax
gross-up and indemnities).


 


“Quotation Day”
means, in relation to any period for which an interest rate is to be
determined, two TARGET Days before the first day of that period unless market
practice differs in the Relevant Interbank Market, in which case the Quotation
Day will be determined by the Agent in accordance with market practice in the
Relevant Interbank Market (and if quotations for that currency and period would
normally be given by leading banks in the Relevant Interbank Market on more
than one day, the Quotation Day will be the last of those days).


 


6





















 


“Reference Banks”
means in relation to EURIBOR and Mandatory Cost, the principal offices in
London of Citibank N.A., ING Bank N.V. and Commerzbank Aktiengesellschaft or
such other banks as may be appointed by the Agent in consultation with the
Borrower.


 


“Relevant
Interbank Market” means the European interbank market.


 


“Relevant Date”
has the meaning given to if in Clause 19 (Financial
covenants).


 


“Relevant Period”
has the meaning given to it in Clause 19 (Financial
covenants).


 


“Repayment Dates”
means each of the dates specified in Clause 6 (Repayment).


 


“Repayment
Instalment” means each instalment for repayment of the Loan
specified in Clause 6.1 (Repayment of Loan).


 


“Repeating
Representations” means each of the representations set out in
Clauses 17.1 (Status), 17.2 (Binding obligations), 17.3 (Non-conflict with other obligations), 17.4
(Power and authority), paragraph (a) of
17.5 (Validity and admissibility in
evidence), 17.6 (Governing law
and enforcement), 17.9 (No Event
of Default), 17.13 (No
proceedings pending or threatened) and 17.17 (Material Agreements).


 


“Screen Rate”
means the percentage rate per annum determined by the Banking Federation of the
European Union for the relevant period displayed on the appropriate page of
the Telerate screen. If the agreed page is replaced or service ceases to
be available, the Agent may specify another page or service displaying the
appropriate rate after consultation with the Borrower and the Lenders.


 


“Security”
means a mortgage, charge, pledge, lien or other security interest securing any
obligation of any person or any other agreement or arrangement having a similar
effect.


 


“Selection Notice”
means a notice substantially in the form set out in Part II of Schedule 3
(Requests) given in accordance
with Clause 9 (Interest Periods).


 


“Shareholder Debt”
means any Financial Indebtedness of the Borrower to any of its shareholders (or
any of their Affiliates).


 


“Specified Time”
means a time determined in accordance with Schedule 7 (Timetables).


 


“Sponsor”
means Vodafone Group Plc.


 


“Standard &
Poor’s” means Standard & Poor’s Ratings Services, a
division of The McGraw-Hill Companies, Inc. or any successor to its rating
business.


 


“Subsidiary”
means, with respect to any entity, any other entity over 50 per cent. of whose
share capital is owned, directly or indirectly, by such entity or which is
otherwise controlled by such entity (and, for this purpose, control means the
power to manage and direct the other entity, whether through the ownership of
share capital, contract or otherwise).


 


“TARGET”
means Trans-European Automated Real-time Gross Settlement Express Transfer
payment system.


 


“TARGET Day”
means any day on which TARGET is open for the settlement of payments in euro.


 


7





















 


“Tax”
means any tax, levy, impost, duty or other charge or withholding of a similar
nature (including any penalty or interest payable in connection with any
failure to pay or any delay in paying any of the same).


 


“Termination Date”
means 31 August 2010.


 


“Total Commitments”
means the aggregate of the Commitments, being €200,000,000 at the date of this
Agreement.


 


“Transfer
Certificate” means a certificate substantially in the form set out
in Schedule 5 (Form of Transfer
Certificate) or any other form agreed between the Agent and the
Borrower.


 


“Transfer Date”
means, in relation to a transfer, the later of:


 


(a)                                  the proposed
Transfer Date specified in the Transfer Certificate; and


 


(b)                                 the date on which
the Agent executes the Transfer Certificate.


 


“Unpaid Sum”
means any sum due and payable but unpaid by the Borrower under the Finance
Documents.


 


“US GAAP”
means generally accepted accounting principles, standards and practices in the
United States of America.


 


“Utilisation”
means the utilisation of the Facility.


 


“Utilisation Date”
means the date of the Utilisation, being the date on which the Loan is to be
made.


 


“Utilisation
Request” means a notice substantially in the form set out in Part I
of Schedule 3 (Requests).


 


“VAT”
means value added tax and any other Tax of a similar nature.


 


1.2                                 Construction


 


(a)                                  Unless a contrary
indication appears, any reference in this Agreement to:


 


(i)                                     the “Agent”, the “Arranger”, any “Finance
Party”, any “Lender”, the “Borrower” or any “Party”  shall be construed so as to include its
successors in title, permitted assigns and permitted transferees;


 


(ii)                                  “assets” includes present and future
properties, revenues and rights of every description;


 


(iii)                               a “Finance  Document”
or any other agreement or instrument is a reference to that Finance Document or other agreement or instrument
as amended or novated;


 


(iv)                              “indebtedness” includes any obligation
(whether incurred as principal or as surety) for the payment or repayment of money, whether present or future,
actual or contingent;


 


(v)                                 a “person” includes any person, firm, company,
corporation, government, state or agency of a state or any association, trust
or partnership (whether or not having separate legal personality) or two or
more of the foregoing;


 


(vi)                              a “regulation” includes any regulation, rule,
official directive, request or guideline (whether or not having the force of
law but, if not having the force of law, is generally complied with by the
persons to whom it is addressed or applied) of any governmental,


 


8





















 


intergovernmental or supranational
body, agency, department or regulatory, self-regulatory or other authority or
organisation;


 


(vii)                           a provision of law
is a reference to that provision as amended or re-enacted; and


 


(viii)                        a time of day is a
reference to London time.


 


(b)                                 Section, Clause and
Schedule headings are for ease of reference only.


 


(c)                                  Unless a contrary
indication appears, a term used in any other Finance Document or in any notice
given under or in connection with any Finance Document has the same meaning in
that Finance Document or notice as in this Agreement.


 


(d)                                 A Default or an
Event of Default is “continuing” if it has not been remedied or waived.


 


1.3                                 Third Party Rights


 


A person who is not a Party has no right under the
Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit
of any term of this Agreement.


 


9





















 


SECTION 2


 


THE FACILITY


 


2.                                       THE FACILITY


 


2.1                                 The Facility


 


Subject to the terms of this Agreement, the Lenders
make available to the Borrower a term loan facility in euro in an aggregate
amount equal to the Total Commitments.


 


2.2                                 Finance Parties’
rights and obligations


 


(a)                                  The obligations of
each Finance Party under the Finance Documents are several.  Failure by a Finance Party to perform its
obligations under the Finance Documents does not affect the obligations of any other
Party under the Finance Documents.  No
Finance Party is responsible for the obligations of any other Finance Party
under the Finance Documents.


 


(b)                                 The rights of each
Finance Party under or in connection with the Finance Documents are separate
and independent rights and any debt arising under the Finance Documents to a
Finance Party from the Borrower shall be a separate and independent debt.


 


(c)                                  A Finance Party
may, except as otherwise stated in the Finance Documents, separately enforce
its rights under the Finance Documents.


 


3.                                       PURPOSE


 


3.1                                 Purpose


 


The Borrower shall apply all amounts borrowed by it
under the Facility towards refinancing Existing Debt and/or its general
corporate purposes.


 


3.2                                 Monitoring


 


No Finance Party is bound to monitor or verify the
application of any amount borrowed pursuant to this Agreement.


 


4.                                       CONDITIONS OF UTILISATION


 


4.1                                 Initial conditions
precedent


 


The Borrower may not deliver a Utilisation Request
unless the Agent has received all of the documents and other evidence listed in
Schedule 2 (Conditions precedent)
in form and substance satisfactory to the Agent (acting reasonably). The Agent
shall notify the Borrower and the Lenders promptly upon being so satisfied.


 


4.2                                 Further conditions
precedent


 


The Lenders will only be obliged to comply with
Clause 5.4 (Lenders’ participation)
if on the date of the Utilisation Request and on the proposed Utilisation Date:


 


(a)                                  no Default is
continuing or would result from the proposed Loan; and


 


(b)                                 the Repeating Representations to be
made by the Borrower are true in all material respects.


 


4.3                                 Maximum number of
Loans


 


Only one Loan may be borrowed under the Facility.


 


10





















 


SECTION 3


 


UTILISATION


 


5.                                       UTILISATION


 


5.1                                 Delivery of a Utilisation
Request


 


The Borrower may utilise the Facility by delivery to
the Agent of a duly completed Utilisation Request not later than the Specified
Time.


 


5.2                                 Completion of a
Utilisation Request


 


A Utilisation Request is irrevocable and will not be
regarded as having been duly completed unless:


 


(a)                                  the proposed
Utilisation Date is a Business Day within the Availability Period;


 


(b)                                 the currency and
amount of the Utilisation comply with Clause 5.3 (Currency and amount);


 


(c)                                  the proposed
Interest Period complies with Clause 9 (Interest
Periods); and


 


(d)                                 it specifies the
account and bank (which must be in the principal financial centre of a
Participating Member State, Bucharest or London, in which banks are open for
general business on that day) to which the proceeds of the Utilisation are to
be credited.


 


5.3                                 Currency and amount


 


(a)                                  The currency
specified in a Utilisation Request must be euro.


 


(b)                                 The amount of the
proposed Loan must be less than or equal to the Available Facility.


 


5.4                                 Lenders’ participation


 


(a)                                  If the conditions
set out in this Agreement have been met, each Lender shall make its
participation in the Loan available by the Utilisation Date through its
Facility Office.


 


(b)                                 The amount of each
Lender’s participation in the Loan will be equal to the proportion borne by its
Commitment to the Available Facility immediately prior to making the Loan.


 


(c)                                  The Agent shall
notify each Lender of the amount of the Loan and the amount of its
participation in that Loan by the Specified Time.


 


11





















 


SECTION 4


 


REPAYMENT, PREPAYMENT AND CANCELLATION


 


6.                                       REPAYMENT


 


6.1                                 Repayment of Loan


 


The Borrower shall repay the Loan in instalments by
repaying on each Repayment Date an amount which reduces the outstanding amount
of the Loan by an amount equal to the relevant percentage of the amount of the
Loan as at the Utilisation Date as set out in the table below:


 


	
  Repayment Date

  	
   

  	
  Repayment Instalment

  	
   

  
	
  31 August 2006

  	
   

  	
  11

  	
  %

  
	
  28 February 2007

  	
   

  	
  11

  	
  %

  
	
  31 August 2007

  	
   

  	
  11

  	
  %

  
	
  29 February 2008

  	
   

  	
  11

  	
  %

  
	
  31 August 2008

  	
   

  	
  11

  	
  %

  
	
  28 February 2009

  	
   

  	
  11

  	
  %

  
	
  31 August 2009

  	
   

  	
  11

  	
  %

  
	
  28 February 2010

  	
   

  	
  11

  	
  %

  
	
  Termination
  Date

  	
   

  	
  12

  	
  %

  
	
  Total

  	
   

  	
  100

  	
  %

  



 


7.                                       PREPAYMENT AND CANCELLATION


 


7.1                                 Illegality


 


If it becomes unlawful in any applicable
jurisdiction for a Lender to perform any of its obligations as contemplated by
this Agreement or to fund or maintain its participation in the Loan:


 


(a)                                  that Lender shall
promptly notify the Agent upon becoming aware of that event;


 


(b)                                 upon the Agent
notifying the Borrower, the Commitment of that Lender will be immediately
cancelled; and


 


(c)                                  the Borrower shall
repay that Lender’s participation in the Loan on the last day of the Interest
Period for the Loan occurring after the Agent has notified the Borrower or, if
earlier, the date specified by the Lender in the notice delivered to the Agent
(being no earlier than the last day of any applicable grace period permitted by
law).


 


7.2                                 Change of control


 


(a)                                  If a Change of
Control occurs:


 


(i)                                     the Borrower shall
promptly notify the Agent upon becoming aware of that event; and


 


(ii)                                  if the Majority
Lenders so require, the Agent shall, by not less than 30 days’ notice to the
Borrower, cancel the Total Commitments and declare the Loan, together with
accrued interest, and all other amounts accrued under the Finance Documents
immediately due


 


12





















 


and payable, whereupon the Total
Commitments will be cancelled and all such outstanding amounts will become
immediately due and payable.


 


(b)                                 No notice may be
given to the Borrower under paragraph (a) above more than 90 days after
the Borrower has notified the Agent of the Change of Control.


 


(c)                                  a “Change of Control” will occur if:


 


(i)                                     the Sponsor or a
Replacement Sponsor ceases to hold, whether directly or indirectly through any
person, beneficially more than 50 per cent. of the ordinary share capital and
voting rights of the Borrower; or


 


(ii)                                  any person or group
of persons acting in concert (other than a person or group who has or gains control
of the Sponsor or a Replacement Sponsor) gains control of the Borrower.


 


(d)                                 For the purposes of
paragraph (b) above:


 


(i)                                     a “Replacement Sponsor” means an international
telecommunications company which, at the time the Sponsor ceases to hold more than
50 per cent. of the ordinary share capital and voting rights of the Borrower,
has a long-term unsecured debt rating with Moody’s or Standard & Poor’s
of at least Baa1 or BBB+ respectively;


 


(ii)                                  “control” means the power to manage and
direct the Borrower through the ownership of share capital, contract or
otherwise; and


 


(iii)                               “acting in concert” has the meaning given in
the City Code on Takeovers and Mergers.


 


7.3                                 Voluntary
prepayment of Loan


 


(a)                                  After the last day
of the Availability Period, the Borrower may, if it gives the Agent not less
than 10 days’ (or such shorter period as the Majority Lenders may agree) prior
notice, prepay the whole or any part of the Loan (but, if in part, being an
amount that reduces the Loan by a minimum amount of €5,000,000 and integral
multiples of €1,000,000).


 


(b)                                 Any amounts prepaid
under this Clause 7.3 shall be applied against the scheduled Repayment
Instalments in the order nominated by the Borrower.


 


7.4                                 Right of repayment
and cancellation in relation to a single Lender


 


(a)                                  If:


 


(i)                                     any sum payable to
any Lender by the Borrower is required to be increased under paragraph (c) of
Clause 12.2 (Tax gross-up); or


 


(ii)                                  any Lender claims
indemnification from the Borrower under Clause 12.3 (Tax indemnity) or Clause 13 (Increased costs),


 


the Borrower may, whilst the circumstance giving
rise to the requirement or indemnification continues, give the Agent notice of
cancellation of the Commitment of that Lender and its intention to procure the
repayment of that Lender’s participation in the Loan.


 


(b)                                 On receipt of a
notice referred to in paragraph (a) above, the Commitment of that Lender
shall immediately be reduced to zero.


 


13





















 


(c)                                  On the last day of
each Interest Period which ends after the Borrower has given notice under
paragraph (a) above (or, if earlier, the date specified by the Borrower in
that notice), the Borrower shall repay that Lender’s participation in that
Loan.


 


7.5                                 Restrictions


 


(a)                                  Any notice of
cancellation or prepayment given by any Party under this Clause 7 shall be
irrevocable and, unless a contrary indication appears in this Agreement, shall
specify the date or dates upon which the relevant cancellation or prepayment is
to be made and the amount of that cancellation or prepayment.


 


(b)                                 Any prepayment
under this Agreement shall be made together with accrued interest on the amount
prepaid and, subject to any Break Costs, without premium or penalty.


 


(c)                                  The Borrower may
not reborrow any part of the Facility which is prepaid.


 


(d)                                 The Borrower shall
not repay or prepay all or any part of the Loan or cancel all or any part of
the Commitments except at the times and in the manner expressly provided for in
this Agreement.


 


(e)                                  No amount of the
Total Commitments cancelled under this Agreement may be subsequently
reinstated.


 


(f)                                    If the Agent
receives a notice under this Clause 7 it shall promptly forward a copy of that
notice to either the Borrower or the affected Lender, as appropriate.


 


14





















 


SECTION 5


 


COSTS OF UTILISATION


 


8.                                       INTEREST


 


8.1                                 Calculation of
interest


 


The rate of interest on the Loan for each Interest
Period is the percentage rate per annum which is the aggregate of the
applicable:


 


(a)                                  Margin;


 


(b)                                 EURIBOR; and


 


(c)                                  Mandatory Cost, if
any.


 


8.2                                 Payment of interest


 


The Borrower shall pay accrued interest on the Loan
on the last day of each Interest Period (and, if the Interest Period is longer
than six Months, on the dates falling at six monthly intervals after the first
day of the Interest Period).


 


8.3                                 Default interest


 


(a)                                  If the Borrower
fails to pay any amount payable by it under a Finance Document on its due date,
interest shall accrue on the overdue amount from the due date up to the date of
actual payment (both before and after judgment) at a rate which, subject to
paragraph (b) below, is the sum of 2 per cent and the rate which
would have been payable if the overdue amount had, during the period of
non-payment, constituted part of the Loan in the currency of the overdue amount
for successive Interest Periods, each of a duration selected by the Agent
(acting reasonably).  Any interest
accruing under this Clause 8.3 shall be immediately payable by the Borrower on
demand by the Agent.


 


(b)                                 If any overdue
amount consists of all or part of the Loan which became due on a day which was
not the last day of an Interest Period relating to the Loan:


 


(i)                                     the first Interest
Period for that overdue amount shall have a duration equal to the unexpired
portion of the current Interest Period relating to the Loan; and


 


(ii)                                  the rate of
interest applying to the overdue amount during that first Interest Period shall
be the sum of 2 per cent and the rate which would have applied if the overdue
amount had not become due.


 


(c)                                  Default interest
(if unpaid) arising on an overdue amount will be compounded with the overdue
amount at the end of each Interest Period applicable to that overdue amount but
will remain immediately due and payable.


 


8.4                                 Notification of
rates of interest


 


The Agent shall promptly notify the Lenders and the
Borrower of the determination of a rate of interest under this Agreement.


 


9.                                       INTEREST PERIODS


 


9.1                                 Selection of
Interest Periods


 


(a)                                  The Borrower may
select an Interest Period for the Loan in the Utilisation Request for the Loan
or (if the Loan has already been borrowed) in a Selection Notice.


 


15





















 


(b)                                 Each Selection
Notice for the Loan is irrevocable and must be delivered to the Agent by the
Borrower not later than the Specified Time.


 


(c)                                  If the Borrower
fails to deliver a Selection Notice to the Agent in accordance with paragraph (b) above,
the relevant Interest Period will be one Month.


 


(d)                                 Subject to this
Clause 9, the Borrower may select an Interest Period of 1 week or 1, 2, 3 or 6
Months or any other period agreed between the Borrower and the Agent (acting on
the instructions of all the Lenders).


 


(e)                                  An Interest Period
for the Loan shall not extend beyond the next Repayment Date.


 


(f)                                    Each Interest
Period for the Loan shall start on the Utilisation Date or (if already made) on
the last day of its preceding Interest Period.


 


(g)                                 Prior to the
earlier to occur of:


 


(i)                                     the completion of
syndication of the Facility (as notified by the Arranger to the Borrower); and


 


(ii)                                  the date that is 90
days from the date of this Agreement (the “Initial
Period”),


 


Interest Periods shall be no more
than 1 month.


 


(h)                                 During the Initial
Period the Borrower may select, with the agreement of the Agent, an Interest
Period of any duration (provided that it is one month or less):


 


(i)                                     ending on the date
on which the completion of syndication is to occur; or


 


(ii)                                  ending on a
Repayment Date.


 


9.2                                 Non-Business Days


 


If an Interest Period would otherwise end on a day
which is not a Business Day, that Interest Period will instead end on the next
Business Day in that calendar month (if there is one) or the preceding Business
Day (if there is not).


 


10.                                 CHANGES TO THE CALCULATION OF INTEREST


 


10.1                           Absence of
quotations


 


Subject to Clause 10.2 (Market disruption), if EURIBOR is to be determined by
reference to the Reference Banks but a Reference Bank does not supply a
quotation by the Specified Time on the Quotation Day, the applicable EURIBOR
shall be determined on the basis of the quotations of the remaining Reference
Banks.


 


10.2                           Market disruption


 


(a)                                  If a Market
Disruption Event occurs in relation to the Loan for any Interest Period, then
the rate of interest on each Lender’s share of that Loan for the Interest
Period shall be the rate per annum which is the sum of:


 


(i)                                     the Margin;


 


(ii)                                  the rate notified
to the Agent by that Lender as soon as practicable and in any event before
interest is due to be paid in respect of that Interest Period, to be that which
expresses as a percentage rate per annum the cost to that Lender of funding its
participation in that Loan from whatever source it may reasonably select; and


 


16





















 


(iii)                               the Mandatory Cost,
if any, applicable to that Lender’s participation in the Loan.


 


(b)                                 In this Agreement “Market Disruption Event” means:


 


(i)                                     at or about noon on
the Quotation Day for the relevant Interest Period the Screen Rate is not
available and none or only one of the Reference Banks supplies a rate to the Agent
to determine EURIBOR for euro for the relevant Interest Period; or


 


(ii)                                  before close of
business in London on the Quotation Day for the relevant Interest Period, the
Agent receives notifications from a Lender or Lenders (whose participations in
the Loan exceed 50 per cent. of the Loan) that the cost to it of obtaining
matching deposits in the Relevant Interbank Market would be in excess of
EURIBOR.


 


10.3                           Alternative basis
of interest or funding


 


(a)                                  If a Market
Disruption Event occurs and the Agent or the Borrower so requires, the Agent
and the Borrower shall enter into negotiations (for a period of not more than
thirty days) with a view to agreeing a substitute basis for determining the
rate of interest.


 


(b)                                 Any alternative
basis agreed pursuant to paragraph (a) above shall, with the prior consent
of all the Lenders and the Borrower, be binding on all Parties.


 


10.4                           Break Costs


 


(a)                                  The Borrower shall,
within three Business Days of demand by a Finance Party, pay to that Finance
Party its Break Costs attributable to all or any part of the Loan or Unpaid Sum
being paid by the Borrower on a day other than the last day of an Interest
Period for the Loan or Unpaid Sum.


 


(b)                                 Each Lender shall,
as soon as reasonably practicable after a demand by the Agent, provide a
certificate confirming the amount of its Break Costs for any Interest Period in
which they accrue.


 


11.                                 FEES


 


11.1                           Arrangement fee


 


The Borrower shall pay to the Agent for the account
of the Arranger an arrangement fee in the amount and at the times agreed in a
Fee Letter.


 


11.2                           Agency fee


 


The Borrower shall pay to the Agent (for its own
account) an agency fee in the amount and at the times agreed in a Fee Letter.


 


17





















 


SECTION 6


 


ADDITIONAL PAYMENT OBLIGATIONS


 


12.                                 TAX GROSS UP AND INDEMNITIES


 


12.1                           Definitions


 


(a)                                  In this Agreement:


 


“Protected Party”
means a Finance Party which is or will be subject to any liability, or required
to make any payment, for or on account of Tax in relation to a sum received or
receivable (or any sum deemed for the purposes of Tax to be received or
receivable) under a Finance Document.


 


“Qualifying Lender”
means:


 


(i)                                     a Lender resident
in Romania for Tax purposes under the laws of Romania; or


 


(ii)                                  a Treaty Lender.


 


“Tax Credit”
means a credit against, relief or remission for, or repayment of any Tax.


 


“Tax Deduction”
means a deduction or withholding for or on account of Tax from a payment under
a Finance Document.


 


“Tax Payment”
means either the increase in a payment made by the Borrower to a Finance Party
under Clause 12.2 (Tax gross-up)
or a payment under Clause 12.3 (Tax
indemnity).


 


“Treaty Lender”
means a Lender which:


 


(i)                                     is treated as a
resident of a Treaty State for the purposes of the Treaty;


 


(ii)                                  does not carry on a
business in Romania through a permanent establishment with which that Lender’s
participation in the Loan is effectively connected; and


 


(iii)                               has complied with
its obligations under paragraph (g) of Clause 12.2 (Tax gross-up).


 


“Treaty State”
means a jurisdiction having a double taxation agreement (a “Treaty”) with Romania which makes provision
for full exemption from tax imposed by Romania on interest.


 


(b)                                 Unless a contrary
indication appears, in this Clause 12 a reference to “determines” or “determined”
means a determination made in the absolute discretion of the person making the
determination.


 


12.2                           Tax gross-up


 


(a)                                  The Borrower shall
make all payments to be made by it without any Tax Deduction, unless a Tax
Deduction is required by law.


 


(b)                                 The Borrower shall
promptly upon becoming aware that the Borrower must make a Tax Deduction (or
that there is any change in the rate or the basis of a Tax Deduction) notify
the Agent accordingly.  Similarly, a
Lender shall notify the Agent on becoming so aware in respect of a payment
payable to that Lender.  If the Agent
receives such notification from a Lender it shall notify the Borrower.


 


(c)                                  If a Tax Deduction
is required by law to be made by the Borrower, the amount of the payment due
from the Borrower shall be increased to an amount which (after making any Tax
Deduction) leaves an amount equal to the payment which would have been due if
no Tax Deduction had been required.


 


18





















 


(d)                                 The Borrower is not
required to make an increased payment to a Lender under paragraph (c) above
for a Tax Deduction from a payment of interest on the Loan, if on the date on
which the payment falls due:


 


(i)                                     the payment could
have been made to the relevant Lender without a Tax Deduction if it was a
Qualifying Lender, but on that date that Lender is not or has ceased to be a
Qualifying Lender other than as a result of any change after the date it became
a Lender under this Agreement in (or in the interpretation, administration or
application of) any law or Treaty, or any published practice or concession of
any relevant taxing authority; or


 


(ii)                                  the relevant Lender
is a Treaty Lender and the Borrower is able to demonstrate that the payment
could have been made to the Lender without the Tax Deduction had that Lender
complied with its obligations under paragraph (g) below.


 


(e)                                  If the Borrower is
required to make a Tax Deduction, it shall make that Tax Deduction and any
payment required in connection with that Tax Deduction within the time allowed
and in the minimum amount required by law.


 


(f)                                    Within thirty days
of making either a Tax Deduction or any payment required in connection with
that Tax Deduction, the Borrower shall deliver to the Agent for the Finance
Party entitled to the payment an original receipt (or certified copy thereof)
reasonably satisfactory to that Finance Party that the Tax Deduction has been
made or (as applicable) any appropriate payment paid to the relevant taxing
authority.


 


(g)                                 A Treaty Lender and
the Borrower shall co-operate in a timely manner in completing any procedural
formalities necessary for the Borrower to obtain authorisation to make that
payment without a Tax Deduction.


 


12.3                           Tax indemnity


 


(a)                                  The Borrower shall
(within three Business Days of demand by the Agent) pay to a Protected Party an
amount equal to the loss, liability or cost which that Protected Party
determines will be or has been (directly or indirectly) suffered for or on
account of Tax by that Protected Party in respect of a Finance Document.


 


(b)                                 Paragraph (a) above
shall not apply:


 


(i)                                     with respect to any
Tax assessed on a Finance Party:


 


(A)                              under the law of
the jurisdiction in which that Finance Party is incorporated or, if different,
the jurisdiction (or jurisdictions) in which that Finance Party is treated as
resident for tax purposes; or


 


(B)                                under the law of
the jurisdiction in which that Finance Party’s Facility Office is located in
respect of amounts received or receivable in that jurisdiction,


 


if that Tax is imposed on or calculated by reference
to the net income received or receivable (but not any sum deemed to be received
or receivable) by that Finance Party; or


 


(ii)                                  to the extent a
loss, liability or cost:


 


(A)                              is compensated for
by an increased payment under Clause 12.2 (Tax
gross-up); or


 


19





















 


(B)                                would have been
compensated for by an increased payment under Clause 12.2 (Tax gross-up) but was not so compensated
solely because one of the exclusions in paragraph (d) of Clause 12.2 (Tax gross-up) applied.


 


(c)                                  A Protected Party
making, or intending to make, a claim under paragraph (a) above shall
promptly notify the Agent of the event which will give, or has given, rise to
the claim, following which the Agent shall notify the Borrower.


 


(d)                                 A Protected Party
shall, on receiving a payment from the Borrower under this Clause 12.3, notify
the Agent.


 


12.4                           Tax Credit


 


If the Borrower makes a Tax Payment and the relevant
Finance Party determines that:


 


(a)                                  a Tax Credit is
attributable either to an increased payment of which that Tax Payment forms
part, or to that Tax Payment; and


 


(b)                                 that Finance Party
has obtained, utilised and retained that Tax Credit on an affiliated group
basis,


 


the Finance Party shall pay an amount to the
Borrower which that Finance Party determines will leave it (after that payment)
in the same after-Tax position as it would have been in had the Tax Payment not
been required to be made by the Borrower.


 


12.5                           Stamp taxes


 


The Borrower shall pay and, within three Business
Days of demand, indemnify each Finance Party against any cost, loss or
liability that Finance Party incurs in relation to all stamp duty, stamp duty
land tax, registration and other similar Taxes payable in respect of any
Finance Document.


 


12.6                           Value added tax


 


(a)                                  All amounts set
out, or expressed to be payable under a Finance Document by any Party to a
Finance Party which (in whole or in part) constitute the consideration for VAT
purposes shall be deemed to be exclusive of any VAT which is chargeable on such
supply, and accordingly, subject to paragraph (c) below, if VAT is
chargeable on any supply made by any Finance Party to any Party under a Finance
Document, that Party shall pay to the Finance Party (in addition to and at the
same time as paying the consideration) an amount equal to the amount of the VAT
(and such Finance Party shall promptly provide an appropriate VAT invoice to
such Party).


 


(b)                                 If VAT is
chargeable on any supply made by any Finance Party (the “Supplier”) to any other Finance Party (the “Recipient”) under a Finance Document, and
any Party (the “Relevant Party”)
is required by the terms of any Finance Document to pay an amount equal to the
consideration for such supply to the Supplier (rather than being required to
reimburse the Recipient in respect of that consideration), the Relevant Party
shall also pay to the Supplier (in addition to and at the same time as paying
such amount) an amount equal to the amount of such VAT.  The Recipient will promptly pay to the
Relevant Party an amount equal to any credit or repayment from the relevant tax
authority which it reasonably determines relates to the VAT chargeable on that
supply.


 


(c)                                  Where a Finance
Document requires any Party to reimburse a Finance Party for any costs or
expenses, that Party shall also at the same time pay and indemnify the Finance
Party against all


 


20





















 


VAT incurred by the Finance Party in
respect of the costs or expenses to the extent that the Finance Party
reasonably determines that neither it nor any other member of any group of
which it is a member for VAT purposes is entitled to credit or repayment from
the relevant tax authority in respect of the VAT.


 


13.                                 INCREASED COSTS


 


13.1                           Increased costs


 


(a)                                  Subject to Clause 13.3
(Exceptions) the Borrower shall,
within three Business Days of a demand by the Agent, pay for the account of a
Finance Party the amount of any Increased Costs incurred by that Finance Party
or any of its Affiliates as a result of (i) the introduction of or any
change in (or in the interpretation, administration or application of) any law
or regulation or (ii) compliance with any law or regulation made after the
date of this Agreement.


 


(b)                                 In this Agreement “Increased Costs” means:


 


(i)                                     a reduction in the
rate of return from the Facility or on a Finance Party’s (or its Affiliate’s)
overall capital;


 


(ii)                                  an additional or
increased cost; or


 


(iii)                               a reduction of any
amount due and payable under any Finance Document,


 


which is incurred or suffered by a Finance Party or
any of its Affiliates to the extent that it is attributable to that Finance
Party having entered into its Commitment or funding or performing its
obligations under any Finance Document.


 


13.2                           Increased cost
claims


 


(a)                                  A Finance Party
intending to make a claim pursuant to Clause 13.1 (Increased costs) shall notify the Agent within three
Business Days of becoming aware of the event giving rise to the claim,
following which the Agent shall promptly notify the Borrower.


 


(b)                                 Each Finance Party
shall, as soon as practicable after a demand by the Agent, provide a
certificate confirming the amount of its Increased Costs.


 


13.3                           Exceptions


 


(a)                                  Clause 13.1 (Increased costs) does not apply to the
extent any Increased Cost is:


 


(i)                                     attributable to a
Tax Deduction required by law to be made by the Borrower;


 


(ii)                                  compensated for by
Clause 12.3 (Tax indemnity) (or
would have been compensated for under Clause 12.3 (Tax indemnity) but was not so compensated solely because any
of the exclusions in paragraph (b) of Clause 12.3 (Tax indemnity) applied);


 


(iii)                               compensated for by
the payment of the Mandatory Cost;


 


(iv)                              attributable to the
wilful breach by the relevant Finance Party or its Affiliates of any law or
regulation;


 


(v)                                 attributable to the
implementation or application of or compliance with the “International
Convergence of Capital Measurement and Capital Standards, a Revised Framework”
published by the Basel Committee on Banking Supervision in June 2004 in
the form existing on the date of this Agreement (“Basel II”) or any other law or regulation which


 


21





















 


implements Basel II (whether such
implementation, application or compliance is by a government, regulator,
Finance Party or any of it’s Affiliates); or


 


(vi)                              was incurred in
respect of any day more than six months before the first date on which it was
reasonably practicable to notify the Borrower thereof (except in the case of
any retrospective change).


 


(b)                                 In this Clause
13.3, a reference to a “Tax Deduction” has the same meaning given to the term
in Clause 12.1 (Definitions).


 


14.                                 OTHER INDEMNITIES


 


14.1                           Currency indemnity


 


(a)                                  If any sum due from
the Borrower under the Finance Documents (a “Sum”),
or any order, judgment or award given or made in relation to a Sum, has to be
converted from the currency (the “First
Currency”) in which that Sum is payable into another currency (the “Second Currency”) for the purpose of:


 


(i)                                     making or filing a
claim or proof against the Borrower;


 


(ii)                                  obtaining or
enforcing an order, judgment or award in relation to any litigation or
arbitration proceedings,


 


the Borrower shall as an independent obligation,
within three Business Days of demand, indemnify each Finance Party to whom that
Sum is due against any cost, loss or liability arising out of or as a result of
the conversion including any discrepancy between (A) the rate of exchange
used to convert that Sum from the First Currency into the Second Currency and (B) the
rate or rates of exchange available to that person at the time of its receipt
of that Sum.


 


(b)                                 The Borrower waives
any right it may have in any jurisdiction to pay any amount under the Finance
Documents in a currency or currency unit other than that in which it is
expressed to be payable.


 


14.2                           Other indemnities


 


The Borrower shall, within three Business Days of
demand, indemnify each Finance Party against any cost, loss or liability
reasonably incurred by that Finance Party as a result of:


 


(a)                                  the occurrence of
any Event of Default;


 


(b)                                 a failure by the Borrower
to pay any amount due under a Finance Document on its due date, including
without limitation, any cost, loss or liability arising as a result of Clause
26 (Sharing among the Finance Parties);


 


(c)                                  funding, or making
arrangements to fund, its participation in the Loan requested by the Borrower
in a Utilisation Request but not made by reason of the operation of any one or
more of the provisions of this Agreement (other than by reason of default or
negligence by that Finance Party alone); or


 


(d)                                 the Loan (or part
of the Loan) not being prepaid in accordance with a notice of prepayment given
by the Borrower.


 


14.3                           Indemnity to the
Agent


 


The Borrower shall promptly indemnify the Agent
against any cost, loss or liability incurred by the Agent (acting reasonably)
as a result of:


 


22





















 


(a)                                  investigating any
event which it reasonably believes is a Default; or


 


(b)                                 acting or relying
on any notice, request or instruction which it reasonably believes to be
genuine, correct and appropriately authorised.


 


15.                                 MITIGATION BY THE LENDERS


 


15.1                           Mitigation


 


(a)                                  Each Finance Party
shall, in consultation with the Borrower, take all reasonable steps to mitigate
any circumstances which arise and which would result in any amount becoming
payable under or pursuant to, or cancelled pursuant to, any of Clause 7.1 (Illegality), Clause 12 (Tax gross-up and indemnities) or Clause 13
(Increased costs) including (but
not limited to) transferring its rights and obligations under the Finance
Documents to another Affiliate or Facility Office.


 


(b)                                 Paragraph (a) above
does not in any way limit the obligations of the Borrower under the Finance
Documents.


 


15.2                           Limitation of
liability


 


(a)                                  The Borrower shall
indemnify each Finance Party for all costs and expenses reasonably incurred by
that Finance Party as a result of steps taken by it under Clause 15.1 (Mitigation).


 


(b)                                 A Finance Party is
not obliged to take any steps under Clause 15.1 (Mitigation) if, in the opinion of that Finance Party (acting
reasonably), to do so might be prejudicial to it.


 


16.                                 COSTS AND EXPENSES


 


16.1                           Transaction
expenses


 


The Borrower shall promptly on demand pay the Agent
and the Arranger the amount of all costs and expenses (including legal fees)
reasonably incurred by any of them (up to the maximum amounts, if any, agreed
by the Borrower) in connection with the negotiation, preparation, printing,
execution and syndication of:


 


(a)                                  this Agreement and
any other documents referred to in this Agreement; and


 


(b)                                 any other Finance
Documents executed after the date of this Agreement.


 


16.2                           Amendment costs


 


If (a) the Borrower requests an amendment,
waiver or consent or (b) an amendment is required pursuant to Clause 27.9
(Change of currency), the
Borrower shall, within three Business Days of demand, reimburse the Agent for
the amount of all costs and expenses (including legal fees) reasonably incurred
by the Agent in responding to, evaluating, negotiating or complying with that
request or requirement.


 


16.3                           Enforcement costs


 


The Borrower shall, within three Business Days of
demand, pay to the Agent for the account of any relevant Finance Party the
amount of all costs and expenses (including legal fees) incurred by that
Finance Party in connection with the enforcement of, or the preservation of any
rights under, any Finance Document.


 


23





















 


SECTION 7


 


REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT


 


17.                                 REPRESENTATIONS


 


The Borrower makes the representations and
warranties set out in this Clause 17 to each Finance Party on the date of this
Agreement.


 


17.1                           Status


 


(a)                                  It is a
corporation, duly incorporated and validly existing under the law of its
jurisdiction of incorporation.


 


(b)                                 It has the power
and authority to own its assets and carry on its business as it is being
conducted.


 


17.2                           Binding obligations


 


The obligations expressed to be assumed by it in
each Finance Document are, subject to any general principles of law limiting
its obligations which are specifically referred to in any legal opinion
delivered pursuant to Clause 4 (Conditions
of Utilisation) legal, valid, binding and enforceable obligations.


 


17.3                           Non-conflict with
other obligations


 


The entry into and performance by it of, and the
transactions contemplated by, the Finance Documents do not and will not
conflict with:


 


(a)                                  any law or
regulation applicable to it;


 


(b)                                 its constitutional
documents; or


 


(c)                                  any agreement or
instrument binding upon it or any of its assets or constitute a default or
termination event (however described), in each case to the extent that it would
reasonably be expected to have a Material Adverse Effect.


 


17.4                           Power and authority


 


(a)                                  It has the power to
enter into, perform and deliver, and has taken all necessary action to
authorise its entry into, performance and delivery of, the Finance Documents
and the Material Agreements and the transactions contemplated by those Finance
Documents and the Material Agreements.


 


(b)                                 It is acting on its
own account in entering into this Agreement.


 


17.5                           Validity and
admissibility in evidence


 


All Authorisations required or desirable:


 


(a)                                  and all acts,
conditions and things required to be done, fulfilled and performed to enable it
lawfully to enter into, exercise its rights and comply with its obligations in
the Finance Documents; and


 


(b)                                 to make the Finance
Documents admissible in evidence in its jurisdiction of incorporation,


 


have been obtained or effected and are in full force
and effect.


 


24





















 


17.6                           Governing law and
enforcement


 


(a)                                  The choice of
English law as the governing law of the Finance Documents will be recognised
and enforced in its jurisdiction of incorporation.


 


(b)                                 Any judgment
obtained in England in relation to a Finance Document will be recognised and
enforced in its jurisdiction of incorporation, subject to the observance of
applicable Romanian law requirements.


 


17.7                           No Security


 


Other than any Security permitted pursuant to this
Agreement:


 


(a)                                  no Security exists
over any of its assets; and


 


(b)                                 the entry into and
performance by it of, and the transactions contemplated by, the Finance
Documents or the Material Agreements do not and will not result in the
existence of, or oblige it to create any security over any of its assets.


 


17.8                           No filing or stamp
taxes


 


Under the law of its jurisdiction of incorporation
it is not necessary that the Finance Documents be filed, recorded or enrolled
with any court or other authority in that jurisdiction or that any stamp,
registration or similar tax be paid on or in relation to the Finance Documents
or the transactions contemplated by the Finance Documents, other than fees
payable in respect of the certification of translations into Romanian of the
Finance Documents.


 


17.9                           No Event of Default


 


(a)                                  No Event of Default
is continuing or might reasonably be expected to result from the making of the
Utilisation.


 


(b)                                 No other event or
circumstance is outstanding which constitutes a default under any other
agreement or instrument which is binding on it or to which its assets are
subject which would reasonably be expected to have a Material Adverse Effect.


 


17.10                     No misleading
information


 


(a)                                  Any factual
information provided by the Borrower and contained within the Information
Package was true and accurate in all material respects as at the date it was
provided or as at the date (if any) at which it is stated.


 


(b)                                 All written factual
information provided by the Borrower to the Arranger or the Agent was true and
accurate in all material respects as at the date it was provided or as at the
date (if any) at which it is stated.


 


(c)                                  Nothing has
occurred or been omitted from the Information Package and no information has
been given or withheld that results in:


 


(i)                                     the information
referred to in paragraph (a) or (b) above being untrue or misleading
in any material respect;


 


(ii)                                  any financial
projection or forecast in the Information Package being untrue or misleading in
any material respect; or


 


(iii)                               any assumption or
ground on which any financial projection or forecast in the Information Package
is based being unreasonable.


 


25





















 


(d)                                 Any financial
projection or forecast contained in the Information Package has been prepared
on the basis of recent historical information and on the basis of assumptions
believed by the Borrower to be reasonable.


 


17.11                     Financial
statements


 


(a)                                  Its Original
Financial Statements were prepared in accordance with the Accounting Principles
consistently applied.


 


(b)                                 Its Original Financial
Statements fairly represent its, and its consolidated, financial condition and
operations as at the end of and for that calendar year.


 


(c)                                  There has been no
material adverse change in its business or financial condition or operations
(or the business or consolidated financial condition or operations of the
Group) since 31 December 2004.


 


17.12                     Pari passu ranking


 


Its payment obligations under the Finance Documents
rank at least pari passu with the claims of all its other unsecured and
unsubordinated creditors, except for obligations mandatorily preferred by law
applying to companies generally.


 


17.13                     No proceedings
pending or threatened


 


No litigation, arbitration or administrative
proceedings of or before any court, arbitral body or agency which are reasonably
likely to be adversely determined and, which, if so determined, would
reasonably be expected to have a Material Adverse Effect have (to the best of
its knowledge and belief) been started or threatened against it.


 


17.14                     Solvency


 


It is not subject to any insolvency, bankruptcy,
receivership or similar proceedings.


 


17.15                     Deduction of Tax


 


It is not required to make any deduction for or on
account of Tax from any payment it may make under any Finance Document.


 


17.16                     Taxation


 


(a)                                  It is not (and none
of its Subsidiaries is) materially overdue in the filing of any Tax returns and
it is not (and none of its Subsidiaries is) overdue in the payment of any
amount in respect of Tax.


 


(b)                                 No claims or
investigations are being, or are reasonably likely to be, made or conducted
against it (or any of its Subsidiaries) with respect to Taxes such that a
liability of, or claim against, any member of the Group is reasonably likely to
arise and, if it did arise, would reasonably be expected to have a Material Adverse
Effect.


 


(c)                                  It is resident for
tax purposes only in Romania.


 


17.17                     Material Agreements


 


The Material Agreements are in full force and effect
and have not been breached by it or (to its best knowledge) any other party to
such Material Agreements, in each case where such breach would reasonably be
expected to have a Material Adverse Effect..


 


26





















 


17.18                     Repetition


 


The Repeating Representations are deemed to be made
by the Borrower by reference to the facts and circumstances then existing on
the date of each Utilisation Request and the first day of each Interest Period.


 


18.                                 INFORMATION UNDERTAKINGS


 


The undertakings in this Clause 18 remain in force
from the date of this Agreement for so long as any amount is outstanding under
the Finance Documents or any Commitment is in force.


 


18.1                           Financial
statements


 


The Borrower shall supply to the Agent in sufficient
copies for all the Lenders:


 


(a)                                  as soon as the same
become available, but in any event within 140 days after the end of each of its
financial years its annual audited stand-alone and (if applicable) consolidated
financial statements for that financial year; and


 


(b)                                 as soon as the same
become available, but in any event within 60 days after the end of each of its
Accounting Quarters, its unaudited stand-alone and (if applicable) consolidated
quarterly management statements for that Accounting Quarter.


 


18.2                           Compliance
Certificate


 


(a)                                  The Borrower shall
supply to the Agent, with each set of financial statements delivered pursuant
to Clause 18.1 (Financial statements),
a Compliance Certificate setting out (in reasonable detail) computations as to
compliance with Clause 19 (Financial
covenants) as at the date as at which those financial statements
were drawn up.


 


(b)                                 Each Compliance
Certificate shall be signed by the Chief Financial Officer or Chief Executive
Officer of the Borrower.


 


18.3                           Requirements as to
financial statements


 


(a)                                  Each set of
financial statements delivered by the Borrower pursuant to Clause 18.1 (Financial statements) shall be certified
by a senior officer of the Borrower as fairly representing its (or, as the case
may be, its consolidated) financial condition and operations as at the end of
and for the period in relation to which those financial statements were drawn
up.


 


(b)                                 The Borrower shall
procure that each set of financial statements delivered pursuant to Clause 18.1
(Financial statements) is
prepared using the Accounting Principles.


 


(c)                                  The Borrower may
elect to change the Accounting Principles used in the preparation of its
financial statements from US GAAP to IFRS (but, may not then change back to
using US GAAP without the consent of the Majority Lenders).


 


(d)                                 The Borrower must
notify the Agent of any material change to the manner in which its financial
statements are prepared, other than a change due to an election made under
paragraph (c) above.


 


(e)                                  If the Borrower
elects to change the Accounting Principles pursuant to paragraph (c) above
or the Borrower notifies the Agent in accordance with paragraph (d) above,
it shall, in relation to the first set of financial statements delivered to the
Agent pursuant to Clause 18.1 (Financial
statements) after such change, deliver to the Agent:


 


27





















 


(i)                                     a description of
any change necessary for those financial statements to reflect the Accounting
Principles and reference periods upon which the Original Financial Statements
were prepared; and


 


(ii)                                  sufficient
information, in form and substance as may be reasonably required by the Agent,
to enable the Lenders to determine whether Clause 19 (Financial covenants) has been complied
with and make an accurate comparison between the financial position indicated
in those financial statements and the Original Financial Statements.


 


Any reference in this Agreement to
those financial statements shall be construed as a reference to those financial
statements as adjusted to reflect the basis upon which the Original Financial
Statements were prepared.


 


(f)                                    If the Borrower
notifies the Agent of a change in accordance with paragraph (c) or (d) above,
the Borrower and the Agent shall enter into negotiations in good faith with a
view to agreeing any amendments to this Agreement which are necessary as a
result of the change.  To the extent
practicable these amendments will be such as to ensure that the change does not
result in any material alteration in the commercial effect of the obligations
in this Agreement.  If any amendments are
agreed they shall take effect and be binding on each of the Parties in
accordance with their terms.


 


18.4                           Information:
miscellaneous


 


The Borrower shall supply to the Agent (in
sufficient copies for all the Lenders, if the Agent so requests):


 


(a)                                  as soon as the same
become available, but in any event within 30 days of the start of each of its
financial years, a budget and cashflow forecast for the Borrower for that
financial year;


 


(b)                                 all documents
dispatched by the Borrower to its creditors generally (as a class) at the same
time as they are dispatched;


 


(c)                                  promptly upon
becoming aware of them, the details of any litigation, arbitration or
administrative proceedings which are current, threatened or pending against any
member of the Group, and which would, if adversely determined, have a Material
Adverse Effect; and


 


(d)                                 promptly, such
further information regarding the financial condition, business and operations
of the Borrower as any Finance Party (through the Agent) may reasonably request
(except to the extent the Borrower is prohibited from doing so by any law,
regulation or duty of confidentiality binding on it in which case the Borrower
shall upon request supply the Agent with information regarding the reasons for
not being able to comply with this sub-clause 18.4 (d)).


 


18.5                           Notification of
Event of Default


 


(a)                                  The Borrower shall
notify the Agent of any Event of Default (and the steps, if any, being taken to
remedy it) promptly upon becoming aware of its occurrence.


 


(b)                                 Promptly upon a
request by the Agent, the Borrower shall supply to the Agent a certificate
signed by one of its directors or senior officers on its behalf certifying that
no Default is continuing (or if a Default is continuing, specifying the Default
and the steps, if any, being taken to remedy it).


 


28





















 


18.6                           Use of websites


 


(a)                                  The Borrower may
satisfy its obligation under this Agreement to deliver any information in
relation to those Lenders (the “Website
Lenders”) who accept this method of communication by posting this
information onto a secure electronic website designated by the Borrower and the
Agent (the “Designated Website”)
if:


 


(i)                                     the Agent expressly
agrees (after consultation with each of the Lenders) that it will accept
communication of the information by this method;


 


(ii)                                  both the Borrower
and the Agent are aware of the address of and any relevant password
specifications for the Designated Website; and


 


(iii)                               the information is
in a format previously agreed between the Borrower and the Agent.


 


If any Lender (a “Paper
Form Lender”) does not agree to the delivery of information
electronically then the Agent shall notify the Borrower accordingly and the
Borrower shall supply the information to the Agent (in sufficient copies for
each Paper Form Lender) in paper form. 
In any event the Borrower shall supply the Agent with at least one copy
in paper form of any information required to be provided by it.


 


(b)                                 The Agent shall
supply each Website Lender with the address of and any relevant password
specifications for the Designated Website following designation of that website
by the Borrower and the Agent.


 


(c)                                  The Borrower shall
promptly upon becoming aware of its occurrence notify the Agent if:


 


(i)                                     the Designated
Website cannot be accessed due to technical failure;


 


(ii)                                  the password
specifications for the Designated Website change;


 


(iii)                               any new information
which is required to be provided under this Agreement is posted onto the
Designated Website;


 


(iv)                              any existing
information which has been provided under this Agreement and posted onto the
Designated Website is amended; or


 


(v)                                 the Borrower
becomes aware that the Designated Website or any information posted onto the
Designated Website is or has been infected by any electronic virus or similar
software.


 


If the Borrower notifies the Agent under paragraph
(c)(i) or paragraph (c)(v) above, all information to be provided by
the Borrower under this Agreement after the date of that notice shall be
supplied in paper form unless and until the Agent and each Website Lender is
satisfied that the circumstances giving rise to the notification are no longer
continuing.


 


(d)                                 Any Website Lender
may request, through the Agent, one paper copy of any information required to
be provided under this Agreement which is posted onto the Designated
Website.  The Borrower shall comply with
any such request within ten Business Days.


 


18.7                           “Know your customer”
checks


 


(a)                                  The Borrower shall
supply to the Agent, as soon as reasonably practicable upon request, such
further publicly available information required to comply with “know your
customer” or similar identification procedures in the possession or control of
any member of the Group, as the Agent may reasonably request (and in sufficient
copies for all the Lenders, if the Agent so requests).


 


29





















 


(b)                                 Unless prohibited
by law, each Lender shall promptly upon the request of the Agent supply, or
procure the supply of, such documentation and other evidence as is reasonably
requested by the Agent (for itself) in order for the Agent to carry out and be
satisfied it has complied with all necessary “know your customer” or other
similar checks under all applicable laws and regulations pursuant to the
transactions contemplated in the Finance Documents.


 


18.8                           Inspection of books
and records


 


The Borrower shall:


 


(a)                                  keep books and
records which accurately reflect in all material respects all of its business,
affairs and transactions; and


 


(b)                                 permit any Finance
Party or any of its representatives, at reasonable times and intervals in each
calendar year and in circumstances when any Finance Party believes that a
Default has occurred or might reasonably be expected to occur, and upon
reasonable notice, to visit any of its offices, to inspect any of its books and
records and to discuss its financial matters with its officers and auditors.


 


19.                                 FINANCIAL COVENANTS


 


19.1                           Financial condition


 


(a)                                  Subject to
paragraph (b) below, the Borrower shall ensure that the ratio of Net
Financial Indebtedness on each Relevant Date to Annualised EBITDA for the
Relevant Period ended on that Relevant Date will not exceed 1.50:1.00.


 


(b)                                 The Borrower may
cure any actual or anticipated breach of the covenant in paragraph (a) above
in respect of any Relevant Date by procuring a provision of additional
shareholder funding in the form of equity or subordinated Shareholder Debt
(such funding referred to as “Curative Equity”)
provided that:


 


(i)                                     the Curative Equity
must be provided no later than ten Business Days after the Borrower provides
the financial statements and Compliance Certificate in respect of that Relevant
Date;


 


(ii)                                  Curative Equity may
not be provided in respect of an actual or potential breach of the covenant in
paragraph (a) above more than twice in any one calendar year, or more than
four times in total;


 


(iii)                               each payment of
Curative Equity must be in a minimum amount (in the aggregate of Curative
Equity provided at that time by way of equity and/or Shareholder Debt) of
€5,000,000;


 


(iv)                              the Borrower shall
not pay interest on any subordinated Shareholder Debt that comprises Curative
Equity until such time as it has provided to the Agent financial statements and
a Compliance Certificate in respect of a subsequent Relevant Date confirming
that it is in compliance with the covenant in paragraph (a) above without
relying on any Curative Equity; and


 


(v)                                 any Curative Equity
that has been provided as Shareholder Debt shall be subordinated on terms
reasonably satisfactory to the Agent (acting on the instructions of the
Majority Lenders).


 


30





















 


(c)                                  For purposes of
determining compliance with this Clause 19.1, the amount of any Curative Equity
permitted hereunder shall be included as a positive number in the determination
of Annualised EBITDA for the Relevant Period.


 


(d)                                 For so long as the
Borrower shall have the rights conferred to it under paragraph (b) above,
the relevant breach of the covenant in paragraph (a) above shall not
constitute a Default.


 


19.2                           Financial covenant
calculations


 


(a)                                  Net Financial
Indebtedness and Annualised EBITDA shall be calculated and interpreted on a
consolidated basis in accordance with the Accounting Principles.


 


(b)                                 Net Financial
Indebtedness and Annualised EBITDA shall be determined (except as needed to
reflect this Clause 19) from the financial statements of the Group and
Compliance Certificates delivered under Clause 18.1 (Financial Statements) and Clause 18.2 (Compliance Certificate).


 


19.3                           Definitions


 


In this Clause 19.3:


 


“Annualised EBITDA” means, in relation to
any Relevant Period, net income or loss, excluding gains or losses from
extraordinary items for that Relevant Period, plus the sum of:


 


(a)                                  provisions for
income taxes;


 


(b)                                 net interest
expense;


 


(c)                                  depreciation and
amortization;


 


(d)                                 net foreign
exchange gains or losses;


 


(e)                                  all deferred
financing costs written off and premiums paid in connection with any early
redemption of debt; and


 


(f)                                    any item classified
as an extraordinary, unusual or nonrecurring loss or charge.


 


“Net Financial Indebtedness” means all
Financial Indebtedness of the Borrower less cash (or cash equivalent
investments).


 


“Relevant
Date” means the last date of an Accounting Quarter.


 


“Relevant
Period” means each period of four consecutive Accounting Quarters
ending on a Relevant Date.


 


20.                                 GENERAL UNDERTAKINGS


 


The
undertakings in this Clause 20 remain in force from the date of this Agreement
for so long as any amount is outstanding under the Finance Documents or any
Commitment is in force.


 


20.1                           Authorisations


 


The Borrower shall promptly:


 


(a)                                  obtain, comply with
and do all that is necessary to maintain in full force and effect; and


 


(b)                                 supply certified
copies to the Agent of,


 


any Authorisation required under any law or
regulation of its jurisdiction of incorporation to enable it to perform its
obligations under the Finance Documents and to ensure the legality,


 


31





















 


validity, enforceability or admissibility in
evidence in its jurisdiction of incorporation of any Finance Document.


 


20.2                           Compliance with
laws


 


The Borrower shall:


 


(a)                                  comply in all
respects with all laws to which it may be subject; and


 


(b)                                 obtain, comply with
and maintain in full force and effect, any Authorisation required under any law
or negotiation of its jurisdiction of incorporation,


 


in each case, if failure to do so would reasonably
be expected to have a Material Adverse Effect.


 


20.3                           Negative pledge


 


(a)                                  The Borrower shall
not (and shall ensure that no other member of the Group will) create or permit
to subsist any Security over any of its assets.


 


(b)                                 The Borrower shall
not (and shall ensure that no other member of the Group will):


 


(i)                                     sell, transfer or
otherwise dispose of any of its assets to any person who is not a member of the
Group on terms whereby they are or may be leased to or re-acquired by it or any
other member of the Group;


 


(ii)                                  sell, transfer or
otherwise dispose of any of its receivables on recourse terms;


 


(iii)                               enter into any
arrangement under which money or the benefit of a bank or other account may be
applied, set-off or made subject to a combination of accounts; or


 


(iv)                              enter into any
other preferential arrangement having a similar effect,


 


in circumstances where the arrangement or
transaction is entered into primarily as a method of raising Financial
Indebtedness or of financing the acquisition of an asset.


 


(c)                                  Paragraphs (a) and
(b) above do not apply to:


 


(i)                                     any contractual
set-off arrangements in the ordinary course of business (including any netting
or set-off arrangement entered into by any member of the Group in the ordinary
course of its banking arrangements for the purpose of netting debit and credit
balances);


 


(ii)                                  any lien arising by
operation of law and in the ordinary course of business;


 


(iii)                               any lien arising in
connection with any retention of title arrangements entered into by any member
of the Group in the ordinary course of business in respect of property
delivered but not fully paid for;


 


(iv)                              any Security over
or affecting any asset acquired by a member of the Group after the date of this
Agreement if:


 


(A)                              the Security was
not created in contemplation of the acquisition of that asset by a member of
the Group;


 


(B)                                the principal
amount secured has not been increased in contemplation of or since the acquisition
of that asset by a member of the Group; and


 


(C)                                the Security is
removed or discharged within 6 months of the date of acquisition of such asset;


 


32





















 


(v)                                 any Security over
or affecting any asset of any company which becomes a member of the Group after
the date of this Agreement, where the Security is created prior to the date on
which that company becomes a member of the Group, if:


 


(A)                              the Security was
not created in contemplation of the acquisition of that company;


 


(B)                                the principal
amount secured has not increased in contemplation of or since the acquisition
of that company; and


 


(C)                                the Security is
removed or discharged within 6 months of that company becoming a member of the
Group;


 


(vi)                              any Security created
pursuant to any Finance Document;


 


(vii)                           any Security
created for any Existing Debt, provided that such Security is discharged within
45 days of the Utilisation Date; or


 


(viii)                        any Security
securing indebtedness the principal amount of which (when aggregated with the
principal amount of any other indebtedness which has the benefit of Security
given by any member of the Group other than any permitted under paragraphs (i) to
(vii) above) does not exceed €20,000,000 (or its equivalent in another
currency or currencies).


 


20.4                           Disposals


 


(a)                                  The Borrower shall
not (and shall ensure that no other member of the Group will) enter into a
single transaction or a series of transactions (whether related or not and
whether voluntary or involuntary) to sell, lease, transfer or otherwise dispose
of any asset.


 


(b)                                 Paragraph (a) above
does not apply to any sale, lease, transfer or other disposal:


 


(i)                                     made in the
ordinary course of trading of the disposing entity;


 


(ii)                                  of assets in
exchange for other assets comparable or superior as to type, value and quality
(or where the net proceeds of disposal are to be reinvested in such other
assets within 90 days of their receipt);


 


(iii)                               of redundant or obsolete
assets;


 


(iv)                              of cash (where such
disposal is not otherwise prohibited under the Finance Documents); or


 


(v)                                 where the higher of
the market value or consideration receivable (when aggregated with the higher
of the market value or consideration receivable for any other sale, lease,
transfer or other disposal, other than any permitted under paragraphs (i) to
(iv) above) does not exceed €50,000,000 (or its equivalent in another
currency or currencies) in aggregate.


 


20.5                           Merger


 


The Borrower shall not (and shall ensure that no
other member of the Group will) enter into any amalgamation, demerger, merger
or corporate reconstruction, except with the consent of all Lenders.


 


33





















 


20.6                           Change of business


 


The Borrower shall procure that no substantial
change is made to the general nature of the business of the Borrower from that
carried on at the date of this Agreement.


 


20.7                           Restriction on
distributions


 


The Borrower shall not pay any dividend or other
payment or distribution of any kind on or in respect of its shares or pay any
principal, interest or other amounts on or in respect of Shareholder Debt if a
Default has occurred and is continuing or would result from making such
payment.


 


20.8                           Other Financial
Indebtedness


 


(a)                                  The Borrower shall
not (and shall ensure that no other member of the Group will) incur or permit
to subsist any Financial Indebtedness if a Default has occurred and is
continuing or such a Default would result from the incurrence of such Financial
Indebtedness.


 


(b)                                 Paragraph (a) above
does not apply to:


 


(i)                                     Financial
Indebtedness under the Finance Documents;


 


(ii)                                  Financial
Indebtedness incurred while no Default was continuing, and the principal amount
of which has not been increased while a Default is continuing.


 


(c)                                  The Borrower shall
ensure that all Financial Indebtedness other than under the Finance Documents
ranks pari passu with its Financial Indebtedness under the Finance Documents.


 


20.9                           Licences


 


The Borrower will comply with the terms of the
Licenses in all material respects and shall ensure that (i) it maintains
the Licences and any other material licences as are necessary for the Borrower
to operate the Network and (ii) such licences will remain valid and in
full force and effect.


 


20.10                     Pari passu ranking


 


The Borrower shall ensure that all its obligations
under the Finance Documents at all times rank at least pari passu with the
claims of all its other present and future unsecured and unsubordinated
financial creditors, except for obligations mandatorily preferred by law
applying to companies generally.


 


20.11                     Insurance


 


The Borrower shall maintain insurances on and in
relation to its business and assets with reputable underwriters or insurance
companies (which may include captive insurance companies of the Sponsor)
against those risks, and to the extent, usually insured against in line with
good industry practice, to the extent such insurance coverage is available in
Romania.


 


20.12                     Arm’s Length terms


 


The Borrower shall not enter into any arrangement or
contract:


 


(a)                                  other than in the
ordinary course of the telecommunications business; and


 


(b)                                 on terms less
favourable to it than arm’s length terms (and, for the avoidance of doubt, any
related party agreement shall be deemed to be arm’s length basis if such terms
are substantially similar to the terms of similar agreements within the Sponsor’s
group).


 


34





















 


20.13                     Hedging


 


The Borrower shall not enter into any hedging or
derivative transaction other than as required for the conduct of the Borrower’s
business and not for speculative purposes and as consistent with prudent
management of its business.


 


20.14                     Investments, loans
and guarantees


 


(a)                                  The Borrower shall
not (and shall ensure that no other member of the Group will) make any
investment in or loan or give any guarantees or indemnities to third parties in
excess of €50,000,000.


 


(b)                                 Paragraph (a) above
does not apply to money market investments.


 


20.15                     Material Agreements


 


The Borrower shall:


 


(a)                                  not terminate,
amend, or waive any material provision of the Material Agreements if to do so
would reasonably be expected to have a Material Adverse Effect; and


 


(b)                                 maintain its rights
under and use reasonable endeavours to enforce all material claims under the
Material Agreements.


 


20.16                     Auditors


 


The Borrower shall only change its appointed
auditors if:


 


(a)                                  it appoints an
international and reputable firm of auditors; or


 


(b)                                 it receives the
prior written consent of the Agent.


 


20.17                     Environmental
matters


 


(a)                                  The Borrower must
ensure that it is in compliance with all Environmental Laws and Environmental
Approvals applicable to it, where failure to do so is reasonably likely to have
a Material Adverse Effect or results in any liability for a Finance Party.


 


(b)                                 The Borrower must
promptly upon becoming aware notify the Agent of:


 


(i)                                     any Environmental Claim current or,
to its knowledge, pending or threatened; or


 


(ii)                                  any circumstances reasonably likely
to result in an Environmental Claim,


 


which has or, if substantiated, is reasonably likely
to either have a Material Adverse Effect or result in any liability for a
Finance Party.


 


(c)                                  For the purposes of
paragraphs (a) and (b) above:


 


“Environmental
Approval” means any authorisation required by an Environmental Law.


 


“Environmental
Claim” means any claim against the Borrower by any person in
connection with:


 


(a)                                  a breach, or
alleged breach, of an Environmental Law;


 


(b)                                 any accident, fire,
explosion or other event of any type involving an emission or substance which
is capable of causing harm to any living organism or the environment; or


 


(c)                                  any other
environmental contamination.


 


35





















 


“Environmental Law”
means any law or regulation concerning:


 


(a)                                  the protection of
health and safety;


 


(b)                                 the environment; or


 


(c)                                  any emission or
substance which is capable of causing harm to any living organism or the
environment.


 


21.                                 EVENTS OF DEFAULT


 


Each of the events or circumstances set out in
Clause 21 is an Event of Default.


 


21.1                           Non-payment


 


The Borrower does not pay on the due date any amount
payable pursuant to a Finance Document at the place at and in the currency in
which it is expressed to be payable unless:


 


(a)                                  its failure to pay
is caused by administrative or technical error; and


 


(b)                                 payment is made
within three Business Days of its due date.


 


21.2                           Financial covenants


 


Subject to Clause 19.1(b) (Financial condition), any requirement of
Clause 19 (Financial covenants)
is not satisfied.


 


21.3                           Other obligations


 


(a)                                  Subject to Clause
21.14 (Remedy), the Borrower does
not comply with any provision of the Finance Documents (other than those
referred to in Clause 21.1 (Non-payment)
and Clause 21.2 (Financial covenants));
or


 


(b)                                 the Borrower does
not comply with any provision of the Material Agreements, where such
non-compliance would reasonably be expected to have a Material Adverse Effect.


 


21.4                           Misrepresentation


 


Subject to Clause 21.14 (Remedy), any representation or statement made or deemed to
be made by the Borrower in the Finance Documents or any other document
delivered by or on behalf of the Borrower under or in connection with any
Finance Document is or proves to have been incorrect or misleading in any
material respect when made or deemed to be made.


 


21.5                           Cross acceleration


 


(a)                                  Any Financial
Indebtedness of any member of the Group is declared to be or otherwise becomes
due and payable prior to its specified maturity as a result of an event of
default (however described).


 


(b)                                 No Event of Default
will occur under this Clause 21.5 if the aggregate amount of Financial
Indebtedness or commitment for Financial Indebtedness falling within paragraph (a) above
is less than €20,000,000 (or its equivalent in any other currency or
currencies).


 


21.6                           Insolvency


 


(a)                                  A member of the
Group is unable or admits inability to pay its debts as they fall due, suspends
making payments on any of its debts or, by reason of actual or anticipated
financial difficulties, commences negotiations with one or more of its
creditors with a view to rescheduling any of its indebtedness.


 


36





















 


(b)                                 The value of the
assets of any member of the Group is less than its liabilities (taking into
account contingent and prospective liabilities).


 


(c)                                  A moratorium is
declared in respect of any indebtedness of any member of the Group.


 


(d)                                 Any member of the
Group fails to comply with or pay any sum due from it under any material final
judgement or any final order made or given by any court of competent
jurisdiction if the amount due or payable is in excess of €20,000,000.


 


21.7                           Insolvency
proceedings


 


Any corporate action, legal proceedings or other
procedure or step is taken in relation to:


 


(a)                                  the suspension of
payments, a moratorium of any indebtedness, winding-up, dissolution,
administration or reorganisation (by way of voluntary arrangement, scheme of
arrangement or otherwise) of any member of the Group other than a solvent
liquidation or reorganisation of any member of the Group (other than the
Borrower);


 


(b)                                 a composition,
compromise, assignment or arrangement with any creditor of any member of the
Group;


 


(c)                                  the appointment of
a liquidator (other than in respect of a solvent liquidation of a member of the
Group (other than the Borrower)), receiver, administrative receiver,
administrator, compulsory manager or other similar officer in respect of any
member of the Group or any of its assets; or


 


(d)                                 enforcement of any
Security over any assets of any member of the Group,


 


or any analogous procedure or step is taken in any
jurisdiction, provided that this Clause 21.7 shall not apply to the extent any
relevant proceedings are started by a person other than the Borrower and such
proceedings are vacated or discharged within 90 days in the case of proceedings
started in Romania only, or 30 days in the case of proceedings started in any
other jurisdiction.


 


21.8                           Creditors’ process


 


Any expropriation, attachment, sequestration,
distress or execution affects any asset or assets of a member of the Group
valued in excess of €20,000,000 and is not discharged within five Business
Days.


 


21.9                           Unlawfulness


 


It is or becomes unlawful for the Borrower to
perform any of its obligations under the Finance Documents.


 


21.10                     Repudiation


 


The Borrower repudiates a Finance Document or
evidences an intention to repudiate a Finance Document.


 


21.11                     Cessation of
Business


 


The Borrower ceases to carry on the business which
it undertakes at the date of this Agreement, to an extent which would be reasonably
likely to have a Material Adverse Effect.


 


21.12                     Material adverse
change


 


Any event (or any series of events) or circumstances
occurs which the Majority Lenders believe is reasonably likely to have a
Material Adverse Effect.


 


37





















 


21.13                     Nationalisation


 


By or under the authority of any government:


 


(a)                                  the management of
any member of the Group is wholly or partially displaced or the authority of
any member of the Group in the conduct of its business is wholly or partially
curtailed; or


 


(b)                                 all or a majority
of the issued shares of any member of the Group or the whole or any part (the
book value of which is 10 per cent. or more of the book value of the whole) of
its revenues or assets is seized, nationalised, expropriated or compulsorily
acquired.


 


21.14                     Remedy


 


(a)                                  No event of Default
under this Clause 21 (other than those referred to in Clause 21.1 (Non-payment) and Clause 21.2 (Financial covenants) will occur if the
failure to comply or circumstances giving rise to the same is capable of remedy
and is remedied within 21 days of the Agent giving notice to the borrower or
the Borrower becoming aware of the failure to comply.


 


(b)                                 For the purposes of
paragraph (a) above, the events or circumstances referred to in Clause
21.5 (Cross acceleration), Clause
21.6 (Insolvency), Clause 21.7 (Insolvency  proceedings), Clause 21.9 (Unlawfulness),
Clause 21.11 (Cessation of business)
and Clause 21.13 (Nationalisation)
shall be deemed to be incapable of remedy.


 


21.15                     Acceleration


 


Subject to Clause 21.14 (Remedy), on and at any time after the occurrence of an Event
of Default the Agent may, and shall if so directed by the Majority Lenders, by
notice to the Borrower:


 


(a)                                  cancel the Total
Commitments whereupon they shall immediately be cancelled;


 


(b)                                 declare that all or
part of the Loan, together with accrued interest, and all other amounts accrued
or outstanding under the Finance Documents be immediately due and payable,
whereupon they shall become immediately due and payable; and


 


(c)                                  declare that all or
part of the Loan be payable on demand, whereupon they shall immediately become
payable on demand by the Agent on the instructions of the Majority Lenders.


 


38





















 


SECTION 8


 


CHANGES TO PARTIES


 


22.                                 CHANGES TO THE LENDERS


 


22.1                           Assignments and
transfers by the Lenders


 


Subject to this Clause 22, a Lender (the “Existing  Lender”)
may:


 


(a)                                  assign any of its
rights; or


 


(b)                                 transfer by
novation any of its rights and obligations,


 


to another bank or financial institution (the “New Lender”).


 


22.2                           Conditions of
assignment or transfer


 


(a)                                  The consent of the
Borrower is required for an assignment or transfer by an Existing Lender,
unless the assignment or transfer is to another Lender or an Affiliate of a
Lender or an Event of Default is continuing, provided that in any event the New
Lender must be a Qualifying Lender.


 


(b)                                 The consent of the
Borrower to an assignment or transfer must not be unreasonably withheld or
delayed.  The Borrower will be deemed to
have given its consent five Business Days after the Existing Lender has
requested it unless consent is expressly refused by the Borrower within that
time.


 


(c)                                  The consent of the
Borrower to an assignment or transfer must not be withheld solely because the
assignment or transfer may result in an increase to the Mandatory Cost.


 


(d)                                 An assignment will
only be effective on:


 


(i)                                     receipt by the
Agent of written confirmation from the New Lender (in form and substance
satisfactory to the Agent) that the New Lender will assume the same obligations
to the other Finance Parties as it would have been under if it was an Original
Lender; and


 


(ii)                                  performance by the
Agent of all “know your customer” or other checks relating to any person that it
is required to carry out in relation to such assignment to a New Lender, the
completion of which the Agent shall promptly notify to the Existing Lender and
the New Lender.


 


(e)                                  A transfer will
only be effective if the procedure set out in Clause 22.5 (Procedure for transfer) is complied with.


 


(f)                                    If:


 


(i)                                     a Lender assigns or
transfers any of its rights or obligations under the Finance Documents or
changes its Facility Office; and


 


(ii)                                  as a result of
circumstances existing at the date the assignment, transfer or change occurs,
the Borrower would be obliged to make a payment to the New Lender or Lender
acting through its new Facility Office under Clause 12 (Tax gross-up and indemnities) or Clause 13
(Increased Costs),


 


then the New Lender or Lender acting through its new
Facility Office is only entitled to receive payment under those Clauses to the
same extent as the Existing Lender or Lender acting


 


39





















 


through its previous Facility Office would have been
if the assignment, transfer or change had not occurred.


 


(g)                                 Unless the Borrower
and the Agent otherwise agree, a transfer of part of a Commitment or the rights
and obligations of an Existing Lender under this Agreement must be in a minimum
amount of €5,000,000.


 


22.3                           Assignment or
transfer fee


 


The New Lender shall, on the date upon which an
assignment or transfer takes effect, pay to the Agent (for its own account) a
fee of €1,500.


 


22.4                           Limitation of
responsibility of Existing Lenders


 


(a)                                  Unless expressly
agreed to the contrary, an Existing Lender makes no representation or warranty
and assumes no responsibility to a New Lender for:


 


(i)                                     the legality,
validity, effectiveness, adequacy or enforceability of the Finance Documents or
any other documents;


 


(ii)                                  the financial
condition of the Borrower;


 


(iii)                               the performance and
observance by the Borrower of its obligations under the Finance Documents or
any other documents; or


 


(iv)                              the accuracy of any
statements (whether written or oral) made in or in connection with any Finance
Document or any other document,


 


and any representations or warranties implied by law
are excluded.


 


(b)                                 Each New Lender
confirms to the Existing Lender and the other Finance Parties that it:


 


(i)                                     has made (and shall
continue to make) its own independent investigation and assessment of the
financial condition and affairs of the Borrower and its related entities in
connection with its participation in this Agreement and has not relied
exclusively on any information provided to it by the Existing Lender in
connection with any Finance Document; and


 


(ii)                                  will continue to
make its own independent appraisal of the creditworthiness of the Borrower and
its related entities whilst any amount is or may be outstanding under the
Finance Documents or any Commitment is in force.


 


(c)                                  Nothing in any
Finance Document obliges an Existing Lender to:


 


(i)                                     accept a
re-transfer from a New Lender of any of the rights and obligations assigned or
transferred under this Clause 22; or


 


(ii)                                  support any losses
directly or indirectly incurred by the New Lender by reason of the
non-performance by the Borrower of its obligations under the Finance Documents
or otherwise.


 


22.5                           Procedure for
transfer


 


(a)                                  Subject to the
conditions set out in Clause 22.2 (Conditions
of assignment or transfer) a transfer is effected in accordance with
paragraph (c) below when the Agent executes an otherwise duly completed
Transfer Certificate delivered to it by the Existing Lender and the New
Lender.  The Agent shall, subject to
paragraph (b) below, as soon as reasonably practicable after receipt by it


 


40





















 


of a duly completed Transfer
Certificate appearing on its face to comply with the terms of this Agreement
and delivered in accordance with the terms of this Agreement, execute that
Transfer Certificate.


 


(b)                                 The Agent shall
only be obliged to execute a Transfer Certificate delivered to it by the
Existing Lender and the New Lender once it is satisfied it has complied with
all necessary “know your customer” or other similar checks under all applicable
laws and regulations in relation to the transfer to such New Lender.


 


(c)                                  On the Transfer
Date:


 


(i)                                     to the extent that
in the Transfer Certificate the Existing Lender seeks to transfer by novation its
rights and obligations under the Finance Documents the Borrower and the
Existing Lender shall be released from further obligations towards one another
under the Finance Documents and their respective rights against one another
under the Finance Documents shall be cancelled (being the “Discharged Rights and Obligations”);


 


(ii)                                  the Borrower and
the New Lender shall assume obligations towards one another and/or acquire
rights against one another which differ from the Discharged Rights and
Obligations only insofar as the Borrower and the New Lender have assumed and/or
acquired the same in place of the Borrower and the Existing Lender;


 


(iii)                               the Agent, the
Arranger, the New Lender and other Lenders shall acquire the same rights and
assume the same obligations between themselves as they would have acquired and
assumed had the New Lender been an Original Lender with the rights and/or
obligations acquired or assumed by it as a result of the transfer and to that
extent the Agent, the Arranger and the Existing Lender shall each be released
from further obligations to each other under the Finance Documents; and


 


(iv)                              the New Lender
shall become a Party as a “Lender”.


 


22.6                           Copy of Transfer
Certificate to Company


 


The Agent shall, as soon as reasonably practicable after
it has executed a Transfer Certificate, send to the Borrower a copy of that
Transfer Certificate.


 


22.7                           Disclosure of
information


 


Any Lender may disclose to any of its Affiliates and
any other person:


 


(a)                                  to (or through)
whom that Lender assigns or transfers (or may potentially assign or transfer)
all or any of its rights and obligations under this Agreement;


 


(b)                                 with (or through)
whom that Lender enters into (or may potentially enter into) any
sub-participation in relation to, or any other transaction under which payments
are to be made by reference to, this Agreement or the Borrower; or


 


(c)                                  to whom, and to the
extent that, information is required to be disclosed by any applicable law or
regulation,


 


any information about the Borrower, the Group and
the Finance Documents as that Lender shall consider appropriate for the purpose
of that actual or potential assignment, transfer or sub-participation if, in
relation to paragraphs (a) and (b) above, the person to whom the
information is


 


41





















 


to be given has entered into a Confidentiality
Undertaking.  This Clause supersedes any
previous agreement relating to the confidentiality of this information.


 


23.                                 CHANGES TO THE BORROWER


 


23.1                           Assignments and
transfer by Borrower


 


The Borrower may not assign any of its rights or
transfer any of its rights or obligations under the Finance Documents.


 


42





















 


SECTION 9


 


THE FINANCE PARTIES


 


24.                                 ROLE OF THE AGENT AND THE ARRANGER


 


24.1                           Appointment of the
Agent


 


(a)                                  Each other Finance
Party appoints the Agent to act as its agent under and in connection with the
Finance Documents.


 


(b)                                 Each other Finance
Party authorises the Agent to exercise the rights, powers, authorities and discretions
specifically given to the Agent under or in connection with the Finance
Documents together with any other incidental rights, powers, authorities and
discretions.


 


24.2                           Duties of the Agent


 


(a)                                  The Agent shall
promptly forward to a Party the original or a copy of any document which is
delivered to the Agent for that Party by any other Party.


 


(b)                                 Except where a
Finance Document specifically provides otherwise, the Agent is not obliged to
review or check the adequacy, accuracy or completeness of any document it
forwards to another Party.


 


(c)                                  If the Agent
receives notice from a Party referring to this Agreement, describing a Default
and stating that the circumstance described is a Default, it shall promptly
notify the Finance Parties.


 


(d)                                 If the Agent is
aware of the non-payment of any principal, interest or other fee payable to a
Finance Party (other than the Agent or the Arranger) under this Agreement it
shall promptly notify the other Finance Parties.


 


(e)                                  The Agent’s duties
under the Finance Documents are solely mechanical and administrative in nature.


 


24.3                           Role of the
Arranger


 


Except as specifically provided in the Finance
Documents, the Arranger has no obligations of any kind to any other Party under
or in connection with any Finance Document.


 


24.4                           No fiduciary duties


 


(a)                                  Nothing in this
Agreement constitutes the Agent or the Arranger as a trustee or fiduciary of
any other person.


 


(b)                                 Neither the Agent
nor the Arranger shall be bound to account to any Lender for any sum or the
profit element of any sum received by it for its own account.


 


24.5                           Business with the
Group


 


The Agent and the Arranger may accept deposits from,
lend money to and generally engage in any kind of banking or other business
with any member of the Group.


 


24.6                           Rights and discretions
of the Agent


 


(a)                                  The Agent may rely
on:


 


(i)                                     any representation,
notice or document believed by it to be genuine, correct and appropriately
authorised; and


 


43





















 


(ii)                                  any statement made
by a director, authorised signatory or employee of any person regarding any
matters which may reasonably be assumed to be within his knowledge or within
his power to verify.


 


(b)                                 The Agent may
assume (unless it has received notice to the contrary in its capacity as agent
for the Lenders) that:


 


(i)                                     no Default has
occurred (unless it has actual knowledge of a Default arising under Clause 21.1
(Non-payment)); and


 


(ii)                                  any right, power,
authority or discretion vested in any Party or the Majority Lenders has not
been exercised.


 


(c)                                  The Agent may
engage, pay for and rely on the advice or services of any lawyers, accountants,
surveyors or other experts.


 


(d)                                 The Agent may act
in relation to the Finance Documents through its personnel and agents.


 


(e)                                  The Agent may
disclose to any other Party any information it reasonably believes it has
received as agent under this Agreement.


 


(f)                                    Notwithstanding any
other provision of any Finance Document to the contrary, neither the Agent nor
the Arranger is obliged to do or omit to do anything if it would or might in
its reasonable opinion constitute a breach of any law or regulation or a breach
of a fiduciary duty or duty of confidentiality.


 


24.7                           Majority Lenders’
instructions


 


(a)                                  Unless a contrary
indication appears in a Finance Document, the Agent shall (i) exercise any
right, power, authority or discretion vested in it as Agent in accordance with
any instructions given to it by the Majority Lenders (or, if so instructed by
the Majority Lenders, refrain from exercising any right, power, authority or
discretion vested in it as Agent) and (ii) not be liable for any act (or
omission) if it acts (or refrains from taking any action) in accordance with an
instruction of the Majority Lenders.


 


(b)                                 Unless a contrary
indication appears in a Finance Document, any instructions given by the
Majority Lenders will be binding on all the Finance Parties.


 


(c)                                  The Agent may
refrain from acting in accordance with the instructions of the Majority Lenders
(or, if appropriate, the Lenders) until it has received such security as it may
require for any cost, loss or liability (together with any associated VAT)
which it may incur in complying with the instructions.


 


(d)                                 In the absence of
instructions from the Majority Lenders (or, if appropriate, the Lenders), the
Agent may act (or refrain from taking action) as it considers to be in the best
interest of the Lenders.


 


(e)                                  The Agent is not
authorised to act on behalf of a Lender (without first obtaining that Lender’s
consent) in any legal or arbitration proceedings relating to any Finance
Document.


 


24.8                           Responsibility for
documentation


 


Neither the Agent nor the Arranger:


 


(a)                                  is responsible for
the adequacy, accuracy and/or completeness of any information (whether oral or
written) supplied by the Agent, the Arranger, the Borrower or any other


 


44





















 


person given in or in connection with
any Finance Document or the Information Package; or


 


(b)                                 is responsible for
the legality, validity, effectiveness, adequacy or enforceability of any
Finance Document or any other agreement, arrangement or document entered into,
made or executed in anticipation of or in connection with any Finance Document.


 


24.9                           Exclusion of
liability


 


(a)                                  Without limiting
paragraph (b) below, the Agent will not be liable for any action taken by
it under or in connection with any Finance Document, unless directly caused by
its gross negligence or wilful misconduct.


 


(b)                                 No Party (other
than the Agent) may take any proceedings against any officer, employee or agent
of the Agent in respect of any claim it might have against the Agent or in
respect of any act or omission of any kind by that officer, employee or agent
in relation to any Finance Document and any officer, employee or agent of the
Agent may rely on this Clause.


 


(c)                                  The Agent will not
be liable for any delay (or any related consequences) in crediting an account
with an amount required under the Finance Documents to be paid by the Agent if
the Agent has taken all necessary steps as soon as reasonably practicable to
comply with the regulations or operating procedures of any recognised clearing
or settlement system used by the Agent for that purpose.


 


(d)                                 Nothing in this
Agreement shall oblige the Agent or the Arranger to carry out any “know your
customer” or other checks in relation to any person on behalf of any Lender and
each Lender confirms to the Agent and the Arranger that it is solely
responsible for any such checks it is required to carry out and that it may not
rely on any statement in relation to such checks made by the Agent or the
Arranger.


 


24.10                     Lenders’ indemnity
to the Agent


 


Each Lender shall (in proportion to its share of the
Total Commitments or, if the Total Commitments are then zero, to its share of
the Total Commitments immediately prior to their reduction to zero) indemnify
the Agent, within three Business Days of demand, against any cost, loss or
liability incurred by the Agent (otherwise than by reason of the Agent’s gross
negligence or wilful misconduct) in acting as Agent under the Finance Documents
(unless the Agent has been reimbursed by the Borrower pursuant to a Finance
Document).


 


24.11                     Resignation of the
Agent


 


(a)                                  The Agent may
resign and appoint one of its Affiliates resident in a member state of the
European Communities as successor by giving notice to the other Finance Parties
and the Borrower.


 


(b)                                 Alternatively the
Agent may resign by giving notice to the other Finance Parties and the
Borrower, in which case the Majority Lenders (after consultation with the
Borrower) may appoint a successor Agent.


 


(c)                                  If the Majority
Lenders have not appointed a successor Agent in accordance with paragraph (b) above
within 30 days after notice of resignation was given, the Agent (after
consultation with the Borrower) may appoint a successor Agent .


 


45





















 


(d)                                 The retiring Agent
shall, at its own cost, make available to the successor Agent such documents
and records and provide such assistance as the successor Agent may reasonably
request for the purposes of performing its functions as Agent under the Finance
Documents.


 


(e)                                  The Agent’s
resignation notice shall only take effect upon the appointment of a successor.


 


(f)                                    Upon the
appointment of a successor, the retiring Agent shall be discharged from any
further obligation in respect of the Finance Documents but shall remain
entitled to the benefit of this Clause 24. 
Its successor and each of the other Parties shall have the same rights
and obligations amongst themselves as they would have had if such successor had
been an original Party.


 


(g)                                 After consultation
with the Borrower, the Majority Lenders may, by notice to the Agent, require it
to resign in accordance with paragraph (b) above.  In this event, the Agent shall resign in
accordance with paragraph (b) above.


 


24.12                     Confidentiality


 


(a)                                  In acting as agent
for the Finance Parties, the Agent shall be regarded as acting through its
agency division which shall be treated as a separate entity from any other of
its divisions or departments.


 


(b)                                 If information is
received by another division or department of the Agent, it may be treated as
confidential to that division or department and the Agent shall not be deemed
to have notice of it.


 


24.13                     Relationship with
the Lenders


 


(a)                                  The Agent may treat
each Lender as a Lender, entitled to payments under this Agreement and acting
through its Facility Office unless it has received not less than five Business
Days prior notice from that Lender to the contrary in accordance with the terms
of this Agreement.


 


(b)                                 Each Lender shall
supply the Agent with any information required by the Agent in order to
calculate the Mandatory Cost in accordance with Schedule 4 (Mandatory Cost  Formula).


 


24.14                     Credit appraisal by
the Lenders


 


Without affecting the responsibility of the Borrower
for information supplied by it or on its behalf in connection with any Finance
Document, each Lender confirms to the Agent and the Arranger that it has been,
and will continue to be, solely responsible for making its own independent appraisal
and investigation of all risks arising under or in connection with any Finance
Document including but not limited to:


 


(a)                                  the financial
condition, status and nature of each member of the Group;


 


(b)                                 the legality,
validity, effectiveness, adequacy or enforceability of any Finance Document and
any other agreement, arrangement or document entered into, made or executed in
anticipation of, under or in connection with any Finance Document;


 


(c)                                  whether that Lender
has recourse, and the nature and extent of that recourse, against any Party or
any of its respective assets under or in connection with any Finance Document,
the transactions contemplated by the Finance Documents or any other agreement,
arrangement or document entered into, made or executed in anticipation of,
under or in connection with any Finance Document; and


 


46





















 


(d)                                 the adequacy,
accuracy and/or completeness of the Information Package and any other
information provided by the Agent, any Party or by any other person under or in
connection with any Finance Document, the transactions contemplated by the
Finance Documents or any other agreement, arrangement or document entered into,
made or executed in anticipation of, under or in connection with any Finance
Document.


 


24.15                     Reference Banks


 


If a Reference Bank (or, if a Reference Bank is not
a Lender, the Lender of which it is an Affiliate) ceases to be a Lender, the
Agent shall (in consultation with the Borrower) appoint another Lender or an
Affiliate of a Lender to replace that Reference Bank.


 


24.16                     Agent’s Management
Time


 


Any amount payable to the Agent under Clause 14.3 (Indemnity to the Agent), Clause 16 (Costs and expenses) and Clause 24.10 (Lenders’ indemnity to the Agent) shall
include the cost of utilising the Agent’s management time or other resources
and will be calculated on the basis of such reasonable daily or hourly rates as
the Agent may notify to the Borrower and the Lenders, and is in addition to any
fee paid or payable to the Agent under Clause 11 (Fees).


 


24.17                     Deduction from
amounts payable by the Agent


 


If any Party owes an amount to the Agent under the Finance Documents the Agent may, after
giving notice to that Party, deduct an amount not exceeding that amount from
any payment to that Party which the Agent would otherwise be obliged to make
under the Finance Documents and apply the amount deducted in or towards
satisfaction of the amount owed.  For the
purposes of the Finance Documents that Party shall be regarded as having received
any amount so deducted.


 


25.                                 CONDUCT OF BUSINESS BY THE FINANCE PARTIES


 


No provision of this Agreement will:


 


(a)                                  interfere with the
right of any Finance Party to arrange its affairs (tax or otherwise) in
whatever manner it thinks fit;


 


(b)                                 oblige any Finance
Party to investigate or claim any credit, relief, remission or repayment
available to it or the extent, order and manner of any claim; or


 


(c)                                  oblige any Finance
Party to disclose any information relating to its affairs (tax or otherwise) or
any computations in respect of Tax.


 


26.                                 SHARING AMONG THE FINANCE PARTIES


 


26.1                           Payments to Finance
Parties


 


If a Finance Party (a “Recovering Finance Party”)
receives or recovers any amount from the Borrower other than in accordance with
Clause 27 (Payment mechanics) and
applies that amount to a payment due under the Finance Documents then:


 


(a)                                  the Recovering
Finance Party shall, within three Business Days, notify details of the receipt
or recovery to the Agent;


 


(b)                                 the Agent shall
determine whether the receipt or recovery is in excess of the amount the
Recovering Finance Party would have been paid had the receipt or recovery been
received or made by the Agent and distributed in accordance with Clause 27 (Payment


 


47





















 


mechanics), without taking
account of any Tax which would be imposed on the Agent in relation to the
receipt, recovery or distribution; and


 


(c)                                  the Recovering
Finance Party shall, within three Business Days of demand by the Agent, pay to
the Agent an amount (the “Sharing Payment”) equal to such receipt or recovery
less any amount which the Agent determines may be retained by the Recovering
Finance Party as its share of any payment to be made, in accordance with Clause
27.5 (Partial payments).


 


26.2                           Redistribution of
payments


 


The Agent shall treat the Sharing Payment as if it
had been paid by the Borrower and distribute it between the Finance Parties
(other than the Recovering Finance Party) in accordance with Clause 27.5 (Partial payments).


 


26.3                           Recovering Finance
Party’s rights


 


(a)                                  On a distribution
by the Agent under Clause 26.2 (Redistribution
of payments), the Recovering Finance Party will be subrogated to the
rights of the Finance Parties which have shared in the redistribution.


 


(b)                                 If and to the
extent that the Recovering Finance Party is not able to rely on its rights
under paragraph (a) above, the Borrower shall be liable to the Recovering
Finance Party for a debt equal to the Sharing Payment which is immediately due
and payable.


 


26.4                           Reversal of
redistribution


 


If any part of the Sharing Payment received or
recovered by a Recovering Finance Party becomes repayable and is repaid by that
Recovering Finance Party, then:


 


(a)                                  each Finance Party
which has received a share of the relevant Sharing Payment pursuant to Clause
26.2 (Redistribution of payments)
shall, upon request of the Agent, pay to the Agent for account of that
Recovering Finance Party an amount equal to the appropriate part of its share
of the Sharing Payment (together with an amount as is necessary to reimburse
that Recovering Finance Party for its proportion of any interest on the Sharing
Payment which that Recovering Finance Party is required to pay); and


 


(b)                                 that Recovering
Finance Party’s rights of subrogation in respect of any reimbursement shall be
cancelled and the Borrower will be liable to the reimbursing Finance Party for
the amount so reimbursed.


 


26.5                           Exceptions


 


(a)                                  This Clause 26
shall not apply to the extent that the Recovering Finance Party would not,
after making any payment pursuant to this Clause, have a valid and enforceable
claim against the Borrower.


 


(b)                                 A Recovering
Finance Party is not obliged to share with any other Finance Party any amount
which the Recovering Finance Party has received or recovered as a result of
taking legal or arbitration proceedings, if:


 


(i)                                     it notified that
other Finance Party of the legal or arbitration proceedings; and


 


(ii)                                  that other Finance
Party had an opportunity to participate in those legal or arbitration
proceedings but did not do so as soon as reasonably practicable having received
notice and did not take separate legal or arbitration proceedings.


 


48





















 


SECTION 10


 


ADMINISTRATION


 


27.                                 PAYMENT MECHANICS


 


27.1                           Payments to the
Agent


 


(a)                                  On each date on
which the Borrower or a Lender is required to make a payment under a Finance
Document, the Borrower or Lender shall make the same available to the Agent
(unless a contrary indication appears in a Finance Document) for value on the
due date at the time and in such funds specified by the Agent as being
customary at the time for settlement of transactions in the relevant currency
in the place of payment.


 


(b)                                 Payment shall be
made to such account in the principal financial centre of the country of that
currency (or, in relation to euro, in the principal financial centre in a
Participating Member State or London) with such bank as the Agent specifies.


 


27.2                           Distributions by
the Agent


 


Each payment received by the Agent under the Finance
Documents for another Party shall, subject to Clause 27.3 (Distributions to  the  Borrower)
and Clause 27.4 (Clawback), be
made available by the Agent as soon as practicable after receipt to the Party
entitled to receive payment in accordance with this Agreement (in the case of a
Lender, for the account of its Facility Office), to such account as that Party
may notify to the Agent by not less than five Business Days’ notice with a bank
in the principal financial centre of the country of that currency (or, in
relation to euro, in the principal financial centre of a Participating Member
State or London).


 


27.3                           Distributions to
the Borrower


 


The Agent may (with the Borrower’s consent or in
accordance with Clause 28 (Set-off))
apply any amount received by it for the Borrower in or towards payment (on the
date and in the currency and funds of receipt) of any amount due from the
Borrower under the Finance Documents or in or towards purchase of any amount of
any currency to be so applied.


 


27.4                           Clawback


 


(a)                                  Where a sum is to
be paid to the Agent under the Finance Documents for another Party, the Agent
is not obliged to pay that sum to that other Party (or to enter into or perform
any related exchange contract) until it has been able to establish to its
satisfaction that it has actually received that sum.


 


(b)                                 If the Agent pays
an amount to another Party and it proves to be the case that the Agent had not
actually received that amount, then the Party to whom that amount (or the
proceeds of any related exchange contract) was paid by the Agent shall on
demand refund the same to the Agent together with interest on that amount from
the date of payment to the date of receipt by the Agent, calculated by the
Agent to reflect its cost of funds.


 


27.5                           Partial payments


 


(a)                                  If the Agent
receives a payment that is insufficient to discharge all the amounts then due
and payable by the Borrower under the Finance Documents, the Agent shall apply
that payment towards the obligations of the Borrower under the Finance
Documents in the following order:


 


49





















 


(i)                                     first, in or
towards payment pro rata of any unpaid fees, costs and expenses of the Agent or
the Arranger under the Finance Documents;


 


(ii)                                  secondly, in or
towards payment pro rata of any accrued interest, fee or commission due but
unpaid under this Agreement;


 


(iii)                               thirdly, in or
towards payment pro rata of any principal due but unpaid under this Agreement;
and


 


(iv)                              fourthly, in or
towards payment pro rata of any other sum due but unpaid under the Finance
Documents.


 


(b)                                 The Agent shall, if
so directed by the Majority Lenders, vary the order set out in paragraphs (a)(ii) to
(iv) above.


 


(c)                                  Paragraphs (a) and
(b) above will override any appropriation made by the Borrower.


 


27.6                           No set-off by the
Borrower


 


All payments to be made by the Borrower under the
Finance Documents shall be calculated and be made without (and free and clear
of any deduction for) set-off or counterclaim.


 


27.7                           Business Days


 


(a)                                  Any payment which
is due to be made on a day that is not a Business Day shall be made on the next
Business Day in the same calendar month (if there is one) or the preceding
Business Day (if there is not).


 


(b)                                 During any
extension of the due date for payment of any principal or Unpaid Sum under this
Agreement interest is payable on the principal or Unpaid Sum at the rate
payable on the original due date.


 


27.8                           Currency of account


 


(a)                                  Subject to
paragraphs (b) to (e) below, euro is the currency of account and
payment for any sum due from the Borrower under any Finance Document.


 


(b)                                 A repayment of the
Loan or Unpaid Sum or a part of a or Unpaid Sum shall be made in the currency
in which that Loan or Unpaid Sum is denominated on its due date.


 


(c)                                  Each payment of
interest shall be made in the currency in which the sum in respect of which the
interest is payable was denominated when that interest accrued.


 


(d)                                 Each payment in
respect of costs, expenses or Taxes shall be made in the currency in which the
costs, expenses or Taxes are incurred.


 


(e)                                  Any amount
expressed to be payable in a currency other than euro shall be paid in that
other currency.


 


27.9                           Change of currency


 


(a)                                  Unless otherwise
prohibited by law, if more than one currency or currency unit are at the same
time recognised by the central bank of any country as the lawful currency of
that country, then:


 


(i)                                     any reference in
the Finance Documents to, and any obligations arising under the Finance
Documents in, the currency of that country shall be translated into, or paid
in, the currency or currency unit of that country designated by the Agent (after
consultation with the Borrower); and


 


50





















 


(ii)                                  any translation
from one currency or currency unit to another shall be at the official rate of
exchange recognised by the central bank for the conversion of that currency or
currency unit into the other, rounded up or down by the Agent (acting
reasonably).


 


(b)                                 If a change in any
currency of a country occurs, this Agreement will, to the extent the Agent
(acting reasonably and after consultation with the Borrower) specifies to be
necessary, be amended to comply with any generally accepted conventions and
market practice in the Relevant Interbank Market and otherwise to reflect the
change in currency.


 


28.                                 SET-OFF


 


While an Event of Default is continuing, a Finance
Party may set off any matured obligation due from the Borrower under the
Finance Documents (to the extent beneficially owned by that Finance Party)
against any matured obligation owed by that Finance Party to the Borrower,
regardless of the place of payment, booking branch or currency of either
obligation.  If the obligations are in
different currencies, the Finance Party may convert either obligation at a
market rate of exchange in its usual course of business for the purpose of the
set-off.


 


29.                                 NOTICES


 


29.1                           Communications in
writing


 


Any communication to be made under or in connection
with the Finance Documents shall be made in writing and, unless otherwise
stated, may be made by fax or letter.


 


29.2                           Addresses


 


The address and fax number (and the department or
officer, if any, for whose attention the communication is to be made) of each
Party for any communication or document to be made or delivered under or in
connection with the Finance Documents is:


 


(a)                                  in the case of the
Borrower, that identified with its name below;


 


(b)                                 in the case of each
Lender, that notified in writing to the Agent on or prior to the date on which
it becomes a Party; and


 


(c)                                  in the case of the
Agent, that identified with its name below,


 


or any substitute address, fax number or department
or officer as the Party may notify to the Agent (or the Agent may notify to the
other Parties, if a change is made by the Agent) by not less than five Business
Days’ notice.


 


29.3                           Delivery


 


(a)                                  Any communication
or document made or delivered by one person to another under or in connection
with the Finance Documents will only be effective:


 


(i)                                     if by way of fax,
when received in legible form; or


 


(ii)                                  if by way of
letter, when it has been left at the relevant address or five Business Days after
being deposited in the post postage prepaid in an envelope addressed to it at
that address,


 


and, if a particular department or officer is
specified as part of its address details provided under Clause 29.2 (Addresses), if addressed to that
department or officer.


 


51





















 


(b)                                 Any communication
or document to be made or delivered to the Agent will be effective only when
actually received by the Agent and then only if it is expressly marked for the
attention of the department or officer identified with the Agent’s signature
below (or any substitute department or officer as the Agent shall specify for
this purpose).


 


(c)                                  All notices from or
to the Borrower shall be sent through the Agent.


 


29.4                           Notification of
address and fax number


 


Promptly upon receipt of notification of an address
and fax number or change of address or fax number pursuant to Clause 29.2 (Addresses) or changing its own address or
fax number, the Agent shall notify the other Parties.


 


29.5                           Electronic
communication


 


(a)                                  Any communication
to be made between the Agent and a Lender under or in connection with the
Finance Documents may be made by electronic mail or other electronic means, if
the Agent and the relevant Lender:


 


(i)                                     agree that, unless
and until notified to the contrary, this is to be an accepted form of
communication;


 


(ii)                                  notify each other
in writing of their electronic mail address and/or any other information
required to enable the sending and receipt of information by that means; and


 


(iii)                               notify each other
of any change to their address or any other such information supplied by them.


 


(b)                                 Any electronic
communication made between the Agent and a Lender will be effective only when
actually received in readable form and in the case of any electronic
communication made by a Lender to the Agent only if it is addressed in such a
manner as the Agent shall specify for this purpose.


 


29.6                           English language


 


(a)                                  Any notice given
under or in connection with any Finance Document must be in English.


 


(b)                                 All other documents
provided under or in connection with any Finance Document must be:


 


(i)                                     in English; or


 


(ii)                                  if not in English,
and if so required by the Agent, accompanied by a certified English translation
and, in this case, the English translation will prevail unless the document is
a constitutional, statutory or other official document.


 


30.                                 CALCULATIONS AND CERTIFICATES


 


30.1                           Accounts


 


In any litigation or arbitration proceedings arising
out of or in connection with a Finance Document, the entries made in the
accounts maintained by a Finance Party are prima facie evidence of the matters
to which they relate.


 


30.2                           Certificates and
Determinations


 


Any certification or determination by a Finance
Party of a rate or amount under any Finance Document is, in the absence of
manifest error, conclusive evidence of the matters to which it relates.


 


52





















 


30.3                           Day count
convention


 


Any interest, commission or fee accruing under a
Finance Document will accrue from day to day and is calculated on the basis of
the actual number of days elapsed and a year of 360 days or, in any case where
the practice in the Relevant Interbank Market differs, in accordance with that
market practice.


 


31.                                 PARTIAL INVALIDITY


 


If, at any time, any provision of the Finance
Documents is or becomes illegal, invalid or unenforceable in any respect under
any law of any jurisdiction, neither the legality, validity or enforceability
of the remaining provisions nor the legality, validity or enforceability of
such provision under the law of any other jurisdiction will in any way be
affected or impaired.


 


32.                                 REMEDIES AND WAIVERS


 


No failure to exercise, nor any delay in exercising,
on the part of any Finance Party, any right or remedy under the Finance
Documents shall operate as a waiver, nor shall any single or partial exercise
of any right or remedy prevent any further or other exercise or the exercise of
any other right or remedy.  The rights
and remedies provided in this Agreement are cumulative and not exclusive of any
rights or remedies provided by law.


 


33.                                 AMENDMENTS AND WAIVERS


 


33.1                           Required consents


 


(a)                                  Subject to Clause
33.2 (Exceptions) any term of the
Finance Documents may be amended or waived only with the consent of the
Majority Lenders and the Borrower and any such amendment or waiver will be
binding on all Parties.


 


(b)                                 The Agent may
effect, on behalf of any Finance Party, any amendment or waiver permitted by
this Clause.


 


33.2                           Exceptions


 


(a)                            An amendment or
waiver that has the effect of changing or which relates to:


 


(i)                                     the definition of “Majority
Lenders” in Clause 1.1 (Definitions);


 


(ii)                                  an extension to the
date of payment of any amount under the Finance Documents;


 


(iii)                               a reduction in the
Margin or a reduction in the amount of any payment of principal, interest, fees
or commission payable;


 


(iv)                              an increase in or
an extension of any Commitment;


 


(v)                                 a change to the
Borrower other than in accordance with Clause 23 (Changes to the  Borrower);


 


(vi)                              any provision which
expressly requires the consent of all the Lenders; or


 


(vii)                           Clause 2.2 (Finance Parties’ rights and obligations),
Clause 22 (Changes to the Lenders),
Clause 26 (Sharing among the Finance Parties)
or this Clause 33,


 


shall not be made without the prior
consent of all the Lenders.


 


(b)                                 An amendment or
waiver which relates to the rights or obligations of the Agent or the Arranger
may not be effected without the consent of the Agent or the Arranger.


 


53





















 


34.                                 COUNTERPARTS


 


Each Finance Document may be executed in any number
of counterparts, and this has the same effect as if the signatures on the
counterparts were on a single copy of the Finance Document.


 


54





















 


SECTION 11


 


GOVERNING LAW AND ENFORCEMENT


 


35.                                 GOVERNING LAW


 


This Agreement is governed by English law.


 


36.                                 ENFORCEMENT


 


36.1                           Jurisdiction


 


(a)                                  The courts of
England have exclusive jurisdiction to settle any dispute arising out of or in
connection with this Agreement (including a dispute regarding the existence,
validity or termination of this Agreement) (a “Dispute”).


 


(b)                                 The Parties agree
that the courts of England are the most appropriate and convenient courts to
settle Disputes and accordingly no Party will argue to the contrary.


 


(c)                                  This Clause 36.1 is
for the benefit of the Finance Parties only. 
As a result, no Finance Party shall be prevented from taking proceedings
relating to a Dispute in any other courts with jurisdiction.  To the extent allowed by law, the Finance
Parties may take concurrent proceedings in any number of jurisdictions.


 


36.2                           Service of process


 


Without prejudice to any other mode of service
allowed under any relevant law, the Borrower:


 


(a)                                  irrevocably
appoints Vodafone Group Services Limited (currently of Vodafone House, The
Connection, Newbury, Berkshire RG14 2FN, Attention General Counsel) as its
agent for service of process in relation to any proceedings before the English
courts in connection with any Finance Document; and


 


(b)                                 agrees that failure
by a process agent to notify the Borrower of the process will not invalidate
the proceedings concerned.


 


This Agreement has been entered into on the date stated at
the beginning of this Agreement.


 


55





















 


SCHEDULE 1



THE ORIGINAL LENDERS


 


	
  Name of Original Lender

  	
   

  	
  Commitment

  	
   

  
	
   

  	
   

  	
  (€)

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Bank
  Austria Creditanstalt AG

  	
   

  	
  40,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Citibank
  Ireland Financial Services plc

  	
   

  	
  40,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Commerzbank Aktiengesellschaft - pobocka
  zahranicnej banky, Bratislava

  	
   

  	
  20,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Commerzbank,
  Aktiengesellschaft - Filiale Düsseldorf

  	
   

  	
  20,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ING
  Bank N.V. - Bucharest Branch

  	
   

  	
  40,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Raiffeisen
  Zentralbank Österreich AG

  	
   

  	
  40,000,000

  	
   

  



 


56





















 


SCHEDULE 2



CONDITIONS PRECEDENT


 


1.                                       The Borrower


 


(a)                                  A copy of the constitutional
documents of the Borrower.


 


(b)                                 A copy of a
resolution of the board of directors (or equivalent) of the Borrower:


 


(i)                                     approving the terms
of, and the transactions contemplated by, the Finance Documents and resolving
that it execute the Finance Documents;


 


(ii)                                  authorising a
specified person or persons to execute the Finance Documents on its behalf;


 


(iii)                               authorising a
specified person or persons, on its behalf, to sign and/or despatch all
documents and notices (including, if relevant, any Utilisation Request and
Selection Notice) to be signed and/or despatched by it under or in connection
with the Finance Documents; and


 


(iv)                              approving
submission to the shareholders’ meeting.


 


(c)                                  A specimen of the
signature of each person authorised by the resolution referred to in paragraph (b) above.


 


(d)                                 A copy of a
resolution of the shareholders of the Borrower:


 


(i)                                     approving the terms
of, and the transactions contemplated by, the Finance Documents and resolving
that the Borrower execute the Finance Documents;


 


(ii)                                  authorising a
specified person or persons to execute the Finance Documents on behalf of the
Borrower; and


 


(iii)                               authorising a
specified person or persons, on behalf of the Borrower, to sign and/or despatch
all documents and notices (including, if relevant, any Utilisation Request and
Selection Notice) to be signed and/or despatched by the Borrower under or in
connection with the Finance Documents.


 


(e)                                  A certificate of
the Borrower (signed by a director):


 


(i)                                     confirming that
borrowing the Total Commitments would not cause any borrowing or similar limit
binding on the Borrower to be exceeded; and


 


(ii)                                  certifying that
each copy document specified in this Schedule 2 is correct, complete and
in full force and effect as at a date no earlier than the date of this
Agreement.


 


2.                                       Legal opinions


 


(a)                                  A legal opinion of
Allen & Overy, legal advisers to the Arranger and the Agent in
England, substantially in the form distributed to the Original Lenders prior to
signing this Agreement.


 


(b)                                 A legal opinion of
Stoica & Associatii, legal advisers to the Arranger and the Agent in
Romania, substantially in the form distributed to the Original Lenders prior to
signing this Agreement.


 


57





















 


3.                                       Other documents and evidence


 


(a)                                  Evidence that any
process agent referred to in Clause 36.2 (Service
of process), has accepted its appointment.


 


(b)                                 The Original
Financial Statements.


 


(c)                                  Evidence that the
fees, costs and expenses then due from the Borrower pursuant to Clause 11 (Fees) and Clause 16 (Costs and expenses) have been paid or will
be paid on the first Utilisation Date.


 


(d)                                 Evidence that the
Existing Debt will be repaid and the Existing Loan Agreements cancelled on the
Utilisation Date.


 


(e)                                  Copies of each of
the Licenses.


 


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SCHEDULE 3



REQUESTS


 


PART I



UTILISATION REQUEST


 


From:                  MobiFon S.A.


 


To:                              [            ]


 


Dated:


 


Dear
Sirs


 


MobiFon S.A. - €200,000,000 Facility Agreement

dated [                ] (the “Agreement”)


 


1.                                       We refer to the
Agreement. This is a Utilisation Request. Terms defined in the Agreement have
the same meaning in this Utilisation Request unless given a different meaning
in this Utilisation Request.


 


2.                                       We wish to borrow
the Loan on the following terms:


 


	
  Proposed
  Utilisation Date:

  	
   

  	
  [                  ]
  or, if that is not a Business Day, the next Business Day)

  
	
   

  	
   

  	
   

  
	
  Amount:

  	
   

  	
  [                  ]
  or, if less, the Available Facility

  
	
   

  	
   

  	
   

  
	
  Interest Period:

  	
   

  	
  [                  ]

  



 


3.                                       We confirm that each
condition specified in Clause 4.2 (Further
conditions precedent) is satisfied on the date of this Utilisation
Request.


 


4.                                       The proceeds of
this Loan should be credited to [account[s]].


 


5.                                       This Utilisation
Request is irrevocable.


 


 


	
  Yours
  faithfully

  
	
   

  
	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  authorised
  signatory for

  
	
   

  
	
  MobiFon
  S.A.

  



 


59





















 


PART II



SELECTION NOTICE


 


From:                  MobiFon S.A.


 


To:                              [              ]


 


Dated:


 


Dear
Sirs


 


MobiFon S.A. - €200,000,000 Facility Agreement

dated [                ] (the “Agreement”)


 


1.                                       We refer to the
Agreement. This is a Selection Notice. Terms defined in the Agreement have the
same meaning in this Selection Notice unless given a different meaning in this
Selection Notice.


 


2.                                       We refer to the
current Interest Period of the Loan ending on [                  ].


 


3.                                       We request that the
next Interest Period for the Loan is [                     ].


 


4.                                       This Selection
Notice is irrevocable.


 


	
  Yours
  faithfully

  
	
   

  
	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  authorised
  signatory for

  
	
   

  
	
  MobiFon
  S.A.

  



 


60





















 


SCHEDULE 4 



MANDATORY COST FORMULA


 


1.                                       The Mandatory Cost
is an addition to the interest rate to compensate Lenders for the cost of
compliance with (a) the requirements of the Bank of England and/or the
Financial Services Authority (or, in either case, any other authority which
replaces all or any of its functions) or (b) the requirements of the
European Central Bank.


 


2.                                       On the first day of
each Interest Period (or as soon as possible thereafter) the Agent shall
calculate, as a percentage rate, a rate (the “Additional
Cost Rate”) for each Lender, in accordance with the paragraphs set
out below.  The Mandatory Cost will be
calculated by the Agent as a weighted average of the Lenders’ Additional Cost
Rates (weighted in proportion to the percentage participation of each Lender in
the relevant Loan) and will be expressed as a percentage rate per annum.


 


3.                                       The Additional Cost
Rate for any Lender lending from a Facility Office in a Participating Member
State will be the percentage notified by that Lender to the Agent. This
percentage will be certified by that Lender in its notice to the Agent to be
its reasonable determination of the cost (expressed as a percentage of that
Lender’s participation in the Loan made from that Facility Office) of complying
with the minimum reserve requirements of the European Central Bank in respect
of loans made from that Facility Office.


 


4.                                       The Additional Cost
Rate for any Lender lending from a Facility Office in the United Kingdom will
be calculated by the Agent as follows:


 


	
   

  	
  E x 0.01

  	
   per cent. per annum.

  
	
   

  	
  300

  



 


Where:


 


E                                         is designed to compensate Lenders for
amounts payable under the Fees Rules and is calculated by the Agent as
being the average of the most recent rates of charge supplied by the Reference
Banks to the Agent pursuant to paragraph 7 below and expressed in pounds per
£1,000,000.


 


5.                                       For the purposes of
this Schedule:


 


(a)                                  “Fees Rules” means the rules on
periodic fees contained in the FSA Supervision Manual or such other law or
regulation as may be in force from time to time in respect of the payment of
fees for the acceptance of deposits;


 


(b)                                 “Fee Tariffs” means the fee tariffs
specified in the Fees Rules under the activity group A.1 Deposit acceptors
(ignoring any minimum fee or zero rated fee required pursuant to the Fees Rules but
taking into account any applicable discount rate); and


 


(c)                                  “Tariff Base” has the meaning given to it
in, and will be calculated in accordance with, the Fees Rules.


 


6.                                       The resulting
figure shall be rounded to four decimal places.


 


7.                                       If requested by the
Agent, each Reference Bank shall, as soon as practicable after publication by
the Financial Services Authority, supply to the Agent, the rate of charge
payable by that 


 


61





















 


Reference Bank to the
Financial Services Authority pursuant to the Fees Rules in respect of the
relevant financial year of the Financial Services Authority (calculated for
this purpose by that Reference Bank as being the average of the Fee Tariffs
applicable to that Reference Bank for that financial year) and expressed in
pounds per £1,000,000 of the Tariff Base of that Reference Bank.


 


8.                                       Each Lender shall supply
any information required by the Agent for the purpose of calculating its
Additional Cost Rate.  In particular, but
without limitation, each Lender shall supply the following information on or
prior to the date on which it becomes a Lender:


 


(a)                                  the jurisdiction of
its Facility Office; and


 


(b)                                 any other
information that the Agent may reasonably require for such purpose.


 


Each Lender shall promptly notify the Agent of any
change to the information provided by it pursuant to this paragraph.


 


9.                                       The rates of charge
of each Reference Bank for the purpose of E above shall be determined by the
Agent based upon the information supplied to it pursuant to paragraphs 7 and 8
above.


 


10.                                 The Agent shall
have no liability to any person if such determination results in an Additional
Cost Rate which over or under compensates any Lender and shall be entitled to
assume that the information provided by any Lender or Reference Bank pursuant
to paragraphs 3, 7 and 8 above is true and correct in all respects.


 


11.                                 The Agent shall
distribute the additional amounts received as a result of the Mandatory Cost to
the Lenders on the basis of the Additional Cost Rate for each Lender based on
the information provided by each Lender and each Reference Bank pursuant to
paragraphs 3, 7 and 8 above.


 


12.                                 Any determination
by the Agent pursuant to this Schedule in relation to a formula, the
Mandatory Cost, an Additional Cost Rate or any amount payable to a Lender
shall, in the absence of manifest error, be conclusive and binding on all Parties.


 


13.                                 The Agent may from
time to time, after consultation with the Borrower and the Lenders, determine
and notify to all Parties any amendments which are required to be made to this Schedule in
order to comply with any change in law, regulation or any requirements from
time to time imposed by the Bank of England, the Financial Services Authority
or the European Central Bank (or, in any case, any other authority which
replaces all or any of its functions) and any such determination shall, in the
absence of manifest error, be conclusive and binding on all Parties.


 


62





















 


SCHEDULE 5



FORM OF TRANSFER CERTIFICATE


 


To:                              [                 ]
as Agent


 


From:                  [                 ]
(the “Existing Lender”) and [                 ]
(the “New Lender”)


 


Dated:


 


MobiFon S.A. - €200,000,000 Facility Agreement

dated [                 ] (the “Agreement”)


 


1.                                       We refer to the
Agreement. This is a Transfer Certificate. Terms defined in the Agreement have
the same meaning in this Transfer Certificate unless given a different meaning
in this Transfer Certificate.


 


2.                                       We refer to Clause
22.5 (Procedure for transfer):


 


(a)                                  The Existing Lender
and the New Lender agree to the Existing Lender transferring to the New Lender
by novation all or part of the Existing Lender’s Commitment, rights and
obligations referred to in the Schedule in accordance with Clause 22.5 (Procedure for transfer).


 


(b)                                 The proposed
Transfer Date is [                ].


 


(c)                                  The Facility Office
and address, fax number and attention details for notices of the New Lender for
the purposes of Clause 29.2 (Addresses)
are set out in the Schedule.


 


3.                                       The New Lender
expressly acknowledges the limitations on the Existing Lender’s obligations set
out in paragraph (c) of Clause 22.4 (Limitation
of responsibility of Existing Lenders).


 


4.                                       The New Lender
confirms that it is a Qualifying Lender.


 


5.                                       This Transfer
Certificate may be executed in any number of counterparts and this has the same
effect as if the signatures on the counterparts were on a single copy of this
Transfer Certificate.


 


6.                                       This Transfer
Certificate is governed by English law.


 


63





















 


THE SCHEDULE



Commitment/rights and obligations to be transferred


 


[insert
relevant details]


 


[Facility
Office address, fax number and attention details for notices and account
details for payments.]


 


	
  [Existing
  Lender]

  	
   

  	
  [New
  Lender ]

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
  By:

  



 


This
Transfer Certificate is accepted by the Agent and the Transfer Date is
confirmed as [               ].


 


[to be
confirmed]


 


By:


 


64





















 


SCHEDULE 6



FORM OF COMPLIANCE CERTIFICATE


 


	
  To:

  	
  [                  ]
  as Agent

  
	
   

  	
   

  
	
  From:

  	
  MobiFon
  S.A.

  
	
   

  	
   

  
	
  Dated:

  	
   

  



 


Dear
Sirs


 


MobiFon S.A. - €200,000,000 Facility Agreement

dated [                 ] (the “Agreement”)


 


We
refer to the Agreement. This is a Compliance Certificate. Terms defined in the
Agreement have the same meaning in this Compliance Certificate unless given a
different meaning in this Compliance Certificate.


 


1.                                       We confirm that the
ratio of Net Financial Indebtedness on the Relevant Date to Annualised EBITDA
for the Relevant Period was [              ]
: 1.00.


 


2.                                       [We confirm that no
Default is continuing.]*


 


 


	
  Signed:

  	
   

  	
   

  	
  Signed:

  	
   

  	
   

  
	
   

  	
   

  
	
  Director
  of

  MobiFon S.A.

  	
  Director
  of

  MobiFon S.A.

  



 










* If this statement cannot be made, the certificate
should identify any Default that is continuing and the steps, if any, being
taken to remedy it.


 


	
   

  	
   

  
	
   

  	
   

  
	
  MobiFon
  S.A.

  



 


65





















 


SCHEDULE 7



TIMETABLES


 


“D
-   “ refers to the number of Business
Days before the relevant Utilisation Date/the first day of the relevant
Interest Period.


 


	
  Delivery
  of a duly completed Utilisation Request (Clause 5.1 (Delivery of a Utilisation Request)) or a
  Selection Notice (Clause 9.1 (Selection of
  Interest Periods))

  	
   

  	
  D – 4

  10:00 a.m.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Agent
  notifies the Lenders of the Loan in accordance with Clause 5.4 (Lenders’ participation)

  	
   

  	
  D-4

  3:00 p.m.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  EURIBOR
  is fixed

  	
   

  	
  Quotation
  Day as of 11:00 a.m. (Brussels time)

  	
   

  



 


66





















 


The Borrower


 


MobiFon
S.A.


 


CDG
International Center

15, Charles de Gaulle Square

Cod 011857

Bucharest

Romania


 


Fax:
+40 21 302 1455


 


Attention:
Chief Financial Officer


 


By:


 


The Arranger


 


Bank
Austria Creditanstalt AG


 


By:


 


Citibank,
N.A.


 


By:


 


Commerzbank
Aktiengesellschaft


 


By:


 


ING
Bank N.V.


 


By:


 


Raiffeisen
Zentralbank Österreich AG


 


By:


 


67





















 


The Original Lenders


 


Bank
Austria Creditanstalt AG


 


By:


 


Citibank
Ireland Financial Services plc


 


By:


 


Commerzbank
Aktiengesellschaft - pobocka zahranicnej banky, Bratislava


 


By:


 


Commerzbank
Aktiengesellachaft, Filiale Düsseldorf


 


By:


 


ING
Bank N.V. – Bucharest Branch


 


By:


 


Raiffeisen
Zentralbank Österreich AG


 


By:


 


The Agent


 


ING
Bank N.V., London Branch


 


	
  Address:

  	
  60
  London Wall

  
	
   

  	
  London
  EC2M 5TQ

  
	
   

  	
  United
  Kingdom

  



 


Fax:
+44 207 767 7324


 


Attention:
Craig Baker / Joseph Knight


 


68





















 


By:


 


69