3/2012 Information about conclusion of an agreement to suspend the enforcement proceedings against the Issuer?s subsidiary

The Management Board of Trakcja - Tiltra S.A. (the “Company”) hereby announces that today it became aware about conclusion on 11 January 2012, by  Poldim S.A. with its registered office in Tarnow („Poldim”) of an agreement to suspend the enforcement proceedings (the ”Agreement”). The Agreement was concluded between Poldim and Bank Polska Kasa Opieki S.A. with its registered office in Warsaw, Raiffeisen Bank Polska S.A. with its registered office in Warsaw, Powszechna Kasa Oszczędności Bank Polski S.A. with its registered office in Warsaw, Bank Millennium S.A. with its registered office in Warsaw, ING Bank Śląski S.A. with its registered office in Katowice (hereinafter collectively referred to as: the “Creditors”). The agreement was concluded in view of, taken into consideration by the Creditors, the possibility of debt restructuring of the following entities:

1. Poldim;
2. NRR Grupa Poldim sp. z o.o.;
3. Poldim Mielec sp. z o.o.;
4. Poldim Dębica S.A.;
5. Poldim Mosty sp. z o.o.;
6. Silentio Investments sp. z o.o.

 

and the need to provide the group of companies, referred to hereinabove (the “Group”), with a possibility to continue to conduct their activities and perform their obligations related to the economic activities, conducted by each of the Group’s companies.

 

Pursuant to the Agreement each of the Creditors undertook that in the period from the date of the Agreement until 28 February 2012, or until the expiry of the Agreement (whichever occurs first) (the “Suspension Period”):

1. they shall not take (and where taken – they shall cease, as of the date of the Agreement), in connection with any enforceable title, any activities related to the assertion or securing of any claims (collectively referred to as the “Claims”) available to a given Creditor, against any member of the Group or against warrantors or guarantors ("Guarantors") of any obligations entered into by members of the Group, arising from the agreements concluded with participation of the Creditors of the financial documents (“Financial Documents”), or documents related thereto (including, but not limited to the security documents), and in particular shall not file any applications for the Claim’s securing; within the performance of an obligation to cease the enforcement, the Creditors who initiated the enforcement proceedings against any company of the Group or any Guarantor on the date of conclusion of the Agreement shall file the applications for a suspension of the enforcement proceedings (suspension of any enforcement actions, including not transferring the recovered funds to the Creditors) and shall submit Poldim copies of the relevant applications including confirmation of their receipt, confirming their submission to the competent Enforcement Officer who is conducting the enforcement proceedings; after expiry of the Transition Period (defined below), in the performance of their obligation to cease the enforcement proceedings, the Creditors who initiated the enforcement proceedings against any company of the Group or any Guarantor, on the first working day after expiry of the Transition Period, shall file the application for discontinuance of the conducted enforcement proceedings and provide Poldim with copies of the relevant applications including confirmation of their receipt, confirming their submission to the competent Enforcement Officer who is conducting the enforcement proceedings;
2. if the Creditor has obtained or shall obtain the enforceable title, it shall take neither a factual nor legal action based on such the enforceable title (in particular, it shall not file any application for initiation of the enforcement proceedings or the establishment of security under such a title).
3. Moreover, none of the Creditors, shall, during the Suspension Period:
   1. file an application for bankruptcy declaration, nor take any action (either directly or through third parties) aiming to initiate any insolvency proceedings of any kind with respect to Poldim or another member of the Group;
   2. deduct its Claims against any claims of Poldim or of another member of the Group;
   3. Subject to paragraph (d) below, shall not assert repayment of the Claims, as well as shall not credit any of the amounts transferred to the bank accounts held by a given Creditor for any company of the Group or the Guarantor for payment of the outstanding claims for a given Creditor, while during the Transition Period the funds held in the bank accounts kept by a given Creditor for any company of the Group or the Guarantor shall be seized by a given Creditor, and after expiry of the Transition Period the above funds shall be unseized and made available to the authorized company of the Group or the Guarantor;
   4. exercise any rights under the Claim security agreements, provided that:

(i)    during the Transition Period (as defined below) funds paid by debtors of Poldim and of other companies of the Group, in respect of trade claims transferred to a given Creditor before the date of conclusion of the Agreement (securing its due Claims) will be seized by a given Creditor on its own banking account, while during the Suspension Period they will not be credited for the debt repayment of a given Creditor to Poldim or to another company of the Group, and after expiry of the Transition Period, the funds deposited during the Transition Period and thereafter by debtors of Poldim and of other companies of the Group for any trade claims, transferred to a given Creditor prior to the date of the Agreement shall be transferred to the bank account indicated by Poldim; to avoid doubt, in the event of termination of the Agreement the funds, which were seized by the authorized Creditors will be credited for the debt repayment of a given Creditor to Poldim or to another company of the Group

(ii)   during the Transition Period (as defined below) the funds received by Bank Polska Kasa Opieki S.A. in the course of the enforcement proceedings conducted in connection with the suspension of the conducted proceedings shall be seized by the Enforcement Officer acting on behalf of Bank Polska Kasa Opieki S.A. and shall not be transferred to that bank - as a creditor, and shall not be credited for the outstanding debt of Bank Polska Kasa Opieki S.A. repayment to Poldim or to another company of the Group, while after expiry of the Transition Period, the funds collected by the Enforcement Officer acting on behalf of Bank Polska Kasa Opieki S.A.  in case of discontinuance of the enforcement proceedings shall be transferred to the bank account indicated by Poldim; to avoid doubt, in the case of termination of the Agreement the funds referred to hereinabove shall be credited for repayment of the outstanding debt of Bank Polska Kasa Opieki S.A. to Poldim or to another company of the Group;

(iii)  with respect to the Claims of ING Bank Śląski S.A. secured by a registered pledge on the road salt stocks, owned by Poldim, located in the selected Poldim’s warehouses, the funds derived from sales by Poldim of the pledge’s subject matter, conducted in the course of Poldim’s economic activity, shall be credited for repayment of the Claims of ING Bank Śląski S.A. under the multiproduct agreement concluded with the aforementioned bank;

 (iv)   with respect to the Claims of Bank Millennium S.A. under the factoring agreement, the funds paid by the Poldim contractors to Bank Millennium S.A., which invoices have within the factoring agreement been purchased out by Bank Millennium S.A., will be credited for the repayment of debts of Bank Millennium S.A. for the invoices repurchased until 14.12.2011, under the abovementioned factoring agreement. To avoid doubt, Bank Millennium S.A. shall not exercise the right of recourse against Poldim during the Suspension Period;

1. shall neither assign nor transfer, in whole or in part, its rights or obligations arising from agreements and other actions resulting in Claims, in particular under the Financial Documents.

 

During the Suspension Period, Poldim shall not take any actions and shall cause the other Group’s companies not to take any actions which would result in the Claims payment or which otherwise would lead to a breach of the Agreement.

 

The interest on Claims as well as any fees or commissions payable in connection with the Claims shall accrue during the Suspension Period, but the Creditors shall receive them after the Suspension Period or after the expiry of the Agreement.

 

The agreement is valid from 11 January 2012.

The agreement was concluded under the resolute condition consisting in abstaining from making by Powszechna Kasa Oszczędności Bank Polski  S.A., Bank Millenium S.A. and ING Bank Śląski S.A., within the period until 17 January 2012 (“Transition Period”) any statements on their agreement to transfer to the bank account indicated by Poldim of all and any funds deposited during the Transition Period and thereafter by debtors  of Poldim and of other companies of the Group in respect of trade claims transferred to Powszechna Kasa Oszczędności Bank Polski  S.A., Bank Millenium S.A. or ING Bank Śląski S.A. before the date of conclusion of the Agreement. To avoid doubt, upon the transfer to the bank account indicated by Poldim the funds will become ownership of a given company of the Group or of the Guarantor. 

 

Each of the Creditors shall be entitled to terminate the Agreement (with the result that the Agreement shall expire on the date of service of the notice of termination to the other Parties) in the event of occurrence of any of the following situations:

1. filing by any member of the Group of an application for initiation of the recovery proceedings or bankruptcy of any member of the Group;
2. filing by any person or entity (in particular, by the Creditor, any bank or financial institution not being the Creditor or a public authority) of an application for bankruptcy of any company of the Group, unless, within 3 working days after filing of the application, that application is withdrawn, rejected or dismissed, or Poldim or another company of the Group proves to the Creditors that the application is manifestly unfounded or has no significant impact on the financial or legal situation of Poldim and other Companies of the Group, or rights of the Creditors, and the Creditors confirm the assessment presented by Poldim or another company of the Group;
3. the initiation by any person or entity (in particular, the Creditor, any bank or financial institution, not being a creditor, or a public authority) of the enforcement or security (civil or administrative) proceedings or the occurrence of similar events regarding any assets of any company of the Group, unless within 3 working days from the initiation of the proceedings or occurrence of the event, that proceedings is discontinued or Poldim or another company of the Group proves to the creditors that the application for initiating of the proceedings is manifestly unfounded or has no significant impact on the financial or legal situation of Poldim and other companies of the Group, or rights of the Creditors, and the Creditors shall confirm the assessment presented by Poldim or another company of the Group;
4. establishment by Poldim or another company of the Group, after the conclusion of the Agreement, of any (i) collateral for any Creditor or any bank or financial institution, not being a creditor, without the simultaneous establishment of analogous collateral for all other Creditors, under the pari passu principle, (ii ) collateral for any entity, in the form of mortgage, plain, financial or registry pledge, alienation of assignment for collateral or deposit,
5. performance by Poldim or another company of the Group of operations, which will result in the future obligation to establish a security referred to in paragraph above;
6. breach by any of the Creditors of provisions of the Agreement, which in the opinion of any other Creditors will prevent the conclusion by the Parties to an agreement establishing the terms of the financial restructuring of the Group;
7. breach by members of the Group of any obligations arising from the statement made by the Group companies, concerning the prohibition of depletion of wealth to the detriment of creditors, or the requirement to obtain consent of the Creditors to conclude agreements regarding he financial debt;
8. expiry of the Transition Period

 

Legal basis: Article 56 paragraph 1 point 1 of the Act of 29 July 2005 on Public Offering, Conditions Governing the Introduction of Financial Instruments to Organized Trading and Public Companies (Journal of Laws No. 184, item 1439 as amended)

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