EXHIBIT NO. 4.(a).41
AMENDING AGREEMENT
TO THE FACILITY AGREEMENT
Made and entered into as of the 31st day of December 2002, by and
between:
(1) PARTNER COMMUNICATIONS COMPANY LTD. ("PARTNER")
and
(2) BANK LEUMI LE-ISRAEL B.M.; ISRAEL DISCOUNT BANK LTD; BANK
HAPOALIM B.M.; THE FIRST INTERNATIONAL BANK OF ISRAEL LTD;
UNITED MIZRAHI BANK LTD.; MERCANTILE DISCOUNT BANK LTD.; and
CITIBANK N.A. (together, "THE PARTICIPATING BANKS")
and
(3) BANK LEUMI LE-ISRAEL B.M., in its respective capacities as
Arranger, Facility Agent and Security Trustee
and
(4) BANK HAPOALIM B.M., in its capacity as Coordinating Agent
WHEREAS: Partner, the Participating Banks, the Arranger, the Facility
Agent and the Security Trustee are parties to a facility
agreement dated
13 August 1998, as amended and restated through to 28 November
2002 ("THE FACILITY AGREEMENT"); and
WHEREAS: Partner and the Participating Banks have agreed: (i) that
Facility A shall be reduced and that a new Facility, Facility
C (as defined in the Restated Facility Agreement), shall be
granted to Partner; (ii) that Bank Hapoalim shall act as
Coordinating Agent under the Facility Agreement; and (iii) to
make further amendments to the Facility Agreement, all the
aforegoing subject to the terms and conditions set out in this
Amending Agreement below,
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. INTERPRETATION
1.1. In this Agreement, including the Exhibits hereto:
1.1.1. "AMENDING AGREEMENT" - means this Amending Agreement;
1.1.2. "COMMENCEMENT DATE" - means the 5th (fifth) Business Day (or such
other Business Day as the Instructing Group and Partner may agree)
following the date on which the Instructing Group is satisfied
that the condition precedent referred to in clause 3 below has
been fulfilled in a form and substance reasonably satisfactory to
the Instructing Group;
1.1.3. "RESTATED
FACILITY AGREEMENT" - means the Facility Agreement, as amended and
restated by this Amending Agreement, the terms of which are set
out in EXHIBIT 1 hereto and initialled, for the purposes of
identification, by the parties hereto.
1.2. Capitalised terms, words and expressions defined in the
Facility Agreement not otherwise defined herein shall bear the
same meaning as in the Facility Agreement and all provisions
of the Facility Agreement concerning matters of construction
and interpretation shall apply to this Amending Agreement.
1.3. All references in this Amending Agreement to specific numbered
clauses of the Facility Agreement are references to those
numbered clauses as set forth in the conformed copy of the
Facility Agreement signed on 7 August 2000, as amended by
further amendments made thereafter to the Facility Agreement,
(as referred to in the first recital to this Amending
Agreement).
(2)
2. AMENDMENT AND RESTATEMENT OF THE FACILITY AGREEMENT
With effect from the Commencement Date, the Facility Agreement (including
the Schedules attached thereto) shall be amended and restated so that it
shall be read and construed for all purposes as set forth in Exhibit 1
hereto (which Exhibit shall, for the avoidance of doubt, constitute the
definitive and binding version of the Facility Agreement as amended by
this Amending Agreement).
3. CONDITION PRECEDENT
This Amending Agreement is subject to the condition precedent that the
Facility Agent shall have received all of the following documents:
3.1. a copy, certified a true copy by a duly authorised officer of
Partner, of the Charter of Partner;
3.2. copies, certified as true copies by a duly authorised officer of
Partner, of a Board resolution, audit committee resolution and
shareholders' resolution of Partner approving the execution,
delivery and performance of this Amending Agreement and the terms
and conditions thereof and a board resolution authorising a named
person or persons to sign each of such Facility Documents and any
other documents to be delivered by it pursuant thereto;
3.3. a certificate of a duly authorised officer of Partner setting out
the names and signatures of the persons authorised to sign on its
behalf, this Amending Agreement and any other documents to be
delivered by it pursuant thereto;
3.4. an opinion of Gross, Kleinhendler, Hodak, Halevy, ▇▇▇▇▇▇▇▇▇ & Co.,
external Israeli counsel to Partner.
In the event that such condition precedent shall not have been fulfilled
to the Instructing Group's satisfaction on or before 10:00 a.m., on 5
January 2003 or such later date as the Facility Agent (upon the
instructions of the Instructing Group) may agree in writing, then, other
than clause 7 below, this Amending Agreement shall cease to have any
force or effect and none of the parties hereto shall have any liability
in respect therewith and the provisions of the Facility Agreement shall
remain in full force and effect, unchanged.
(3)
4. REPRESENTATIONS AND WARRANTIES
4.1. Partner hereby represents and warrants to each of the Finance
Parties: (i) that it has power to enter into this Amending
Agreement and to perform its obligations hereunder and has taken
all necessary action to authorise the entry into and performance
of the transactions contemplated hereunder; and (ii) that this
Amending Agreement constitutes its legal, valid, binding and
enforceable obligations.
4.2. Partner, in respect of itself and each other Obligor, hereby makes
the representations and warranties set out in clauses 15.2 to
15.20 of the Facility Agreement to each of the Finance Parties (as
if, for the avoidance of doubt, each reference in such
representations and warranties to "the Facility Documents"
includes a reference to "this Amending Agreement" and "the
Restated Facility Agreement") and such representations and
warranties, together with the representations and warranties set
out in clause 4.1 above, shall be deemed repeated, on the
Commencement Date and, subject to the provisions of the Restated
Facility Agreement relating to repetition of representations and
warranties, also on each date that a Drawdown Request (as defined
in the Restated Facility Agreement) is made.
4.3. Without derogating from the generality of the aforegoing, Partner
hereby represents and warrants that the period of the Licence has
been extended until 1 February 2022.
5. COMMISSION
Partner shall, on the Commencement Date, or if the Commencement Date
shall occur before 1 January 2003, on 1 January 2003, pay: (i) to each of
the Participating Banks an upfront fee in an amount equal to the
proportion which such Participating Bank's aggregate Commitments bears to
the aggregate Commitments of all the Participating Banks as at 31
December 2002, of US $450,000 (four hundred and fifty thousand United
States Dollars); and (ii) to the Arranger the fee specified in the letter
dated 8 December 2002 from the Arranger to Partner.
6. GOVERNING LAW AND JURISDICTION
This Amending Agreement shall be governed by and shall be construed in
accordance with Israeli law and the competent court of Tel-Aviv-Jaffa
shall have exclusive jurisdiction to hear any matters, provided that the
Facility Agent and the Participating Banks shall be entitled to ▇▇▇
Partner in any jurisdiction in which it has an office or holds assets.
7. COUNTERPARTS
(4)
This Amending Agreement may be executed in any number of counterparts and
all of such counterparts taken together shall be deemed to constitute one
and the same instrument.
8. COPY TO THE MINISTRY
Partner shall, as soon as practicable, but not later than 30 (thirty)
days after the Commencement Date, deliver to the Ministry, for
information purposes, a copy of the Restated Facility Agreement.
9. INCORPORATION OF TERMS
The provisions of clauses 29 (Partial Invalidity), 30 (Amendments) and 37
(Notices) of the Facility Agreement shall be incorporated into this
Amending Agreement as if set out in full in this Amending Agreement and
as if reference in those clauses to the "Facility Documents" or
"hereunder" are references to this Amending Agreement.
IN WITNESS WHEREOF, THE PARTIES HAVE SIGNED THIS AMENDING AGREEMENT EFFECTIVE AS
OF THE DATE FIRST MENTIONED ABOVE.
PARTNER:
for: PARTNER COMMUNICATIONS
COMPANY LTD.
By:
-------------------------------
Title:
----------------------------
THE PARTICIPATING BANKS:
for: BANK LEUMI LE-ISRAEL B.M. for: ISRAEL DISCOUNT BANK LTD.
By: By:
------------------------------- -------------------------------
Title: Title:
---------------------------- ----------------------------
for: BANK HAPOALIM B.M. for: THE FIRST INTERNATIONAL
BANK OF ISRAEL LTD.
By: By:
------------------------------- -------------------------------
Title: Title:
---------------------------- ----------------------------
(5)
for: UNITED MIZRAHI BANK LTD. for: MERCANTILE DISCOUNT
BANK LTD.
By: By:
------------------------------- ------------------------------
Title: Title:
---------------------------- ----------------------------
for: CITIBANK N.A.
By:
-------------------------------
Title:
----------------------------
for: BANK LEUMI LE-ISRAEL B.M. for: BANK HAPOALIM B.M.
(in its capacity as Security Trustee, (in its capacity as
Arranger and Facility Agent) Coordinating Agent)
By: By:
------------------------------- ------------------------------
Title: Title:
---------------------------- ---------------------------
(6)
Exhibit "1"
AMENDED AND RESTATED
FACILITY AGREEMENT
DATED 13 AUGUST 1998
(AS AMENDED AND RESTATED BY THE PARTIES THROUGH
31 DECEMBER 2002), BETWEEN, INTER ALIA, PARTNER
COMMUNICATIONS COMPANY LTD., AS THE
BORROWER AND THE PARTICIPATING BANKS
(7)
TABLE OF CONTENTS
CLAUSE NO. PAGE
===============================================================================================================================
1. INTERPRETATION.......................................................................1
1.1. Definitions...................................................................1
1.2. Accounts......................................................................1
1.3. Interpretation................................................................1
1.4. Currency Symbols..............................................................1
1.5. Statutes......................................................................1
1.6. Agreements....................................................................1
2. THE FACILITIES.......................................................................1
2.1. The Facilities................................................................1
2.2. Conversion of Outstanding Advances--Deleted...................................1
2.3. Lenders' Rights and Obligations...............................................1
2.4. Purpose.......................................................................1
3. CONDITIONS PRECEDENT--Deleted........................................................1
4. DRAWDOWNS............................................................................1
4.1. First Drawdown Request--Deleted...............................................1
4.2. Drawdown Request..............................................................1
4.3. Participating Bank's Participation............................................1
4.4. Notification of Advance--Deleted..............................................1
4.5. Outstandings in Proportion to Commitments.....................................1
5. REPAYMENT............................................................................1
5.1. Repayment of Facility A Loan..................................................1
5.2. Repayment of Facility B Loan..................................................1
5.3. Repayment of Facility C Loan..................................................1
5.4. Currency of Repayment.........................................................1
6. VOLUNTARY PREPAYMENT AND REBORROWING.................................................1
6.1. Prepayment....................................................................1
6.2. Conditions to Prepay..........................................................1
6.3. Effects of Notice of Prepayment...............................................1
6.4. Reborrowing...................................................................1
7. MANDATORY PREPAYMENT.................................................................1
7.1. Non-Compliance with Corrective Milestones--Deleted............................1
7.2. Disposals.....................................................................1
7.3. Investment by Partner in Subsidiaries.........................................1
7.4. Terms for Mandatory Prepayment................................................1
8. INTEREST.............................................................................1
8.1. Interest Rate.................................................................1
8.2. Payment of Interest...........................................................1
8.3. Default Interest..............................................................1
9. SUBSTITUTE INTEREST RATES............................................................1
9.1. Unavailable or Indeterminable Interest Rate...................................1
9.2. Negotiations for Determining Alternative Basis................................1
9.3. Agreed Alternative Basis......................................................1
9.4. Failure to Agree on Alternative Basis.........................................1
9.5. Return to Regular Determination Basis.........................................1
10. COMMISSIONS, FEES AND EXPENSES.......................................................1
TABLE OF CONTENTS
(continued)
CLAUSE NO. PAGE
===============================================================================================================================
10.1. Commitment Commission--Facility A and Facility B..............................1
10.2. Applicable Percentage.........................................................1
10.2A. Commitment Commission--Facility C............................................67
10.3. Annual Payment to Security Trustee............................................1
10.4. Facility Agent's Fee..........................................................1
10.5. Payment of Upfront Fee--Deleted...............................................1
10.5A Coordinating Agent's Fee.....................................................68
10.6. Expenses......................................................................1
10.7. Stamp Taxes...................................................................1
10.8. Customary Commissions and Charges.............................................1
11. TAXES................................................................................1
11.1. Tax Gross-Up..................................................................1
11.2. Notification of Requirement to Deduct Tax.....................................1
11.3. Evidence of Payment of Tax....................................................1
11.4. Tax Saving....................................................................1
12. INCREASED COSTS......................................................................1
12.1. Increased Costs...............................................................1
12.2. Exceptions....................................................................1
13. ILLEGALITY...........................................................................1
14. MITIGATION...........................................................................1
14.1. Mitigation....................................................................1
14.2. Replacement of a Bank.........................................................1
15. REPRESENTATIONS AND WARRANTIES.......................................................1
15.1. Representations and Warranties................................................1
15.2. Status........................................................................1
15.3. Powers and Authority..........................................................1
15.4. Legal Validity................................................................1
15.5. Non-Conflict..................................................................1
15.6. No Default...................................................................76
15.7. Consents......................................................................1
15.8. Accounts......................................................................1
15.9. Litigation....................................................................1
15.10. Tax Liabilities...............................................................1
15.11. Encumbrance...................................................................1
15.12. Business Plan.................................................................1
15.13. Ownership of Assets...........................................................1
15.14. Documents.....................................................................1
15.15. Intellectual Property Rights..................................................1
15.16. Environmental Matters.........................................................1
15.17. Ranking of Security...........................................................1
15.18. Material Contracts............................................................1
15.19. Ownership of Partner..........................................................1
15.20. Borrowings....................................................................1
15.21. Repetition....................................................................1
16. UNDERTAKINGS.........................................................................1
16.1. Duration......................................................................1
16.2. Financial Information........................................................83
16.3. Information-Miscellaneous.....................................................1
(b)
TABLE OF CONTENTS
(continued)
CLAUSE NO. PAGE
===============================================================================================================================
16.4. Audit and Accounting Dates....................................................1
16.5. Accounting Standards..........................................................1
16.6. Negative Pledge...............................................................1
16.7. Sale and Leaseback............................................................1
16.8. Disposals.....................................................................1
16.9. Pari Passu Ranking............................................................1
16.10. Loans and Guarantees.........................................................94
16.11. Operating Leases..............................................................1
16.12. Receivables Discounting.......................................................1
16.13. Investments...................................................................1
16.14. Restricted Distributions......................................................1
16.15. Share Capital.................................................................1
16.16. Intellectual Property Rights..................................................1
16.17. Environmental Matters.........................................................1
16.18. Insurance.....................................................................1
16.19. Notification of Default.......................................................1
16.20. Change of Business............................................................1
16.21. Acquisitions and Mergers......................................................1
16.22. Borrowings....................................................................1
16.23. Arm's-Length Terms............................................................1
16.24. Compliance with Laws..........................................................1
16.25. Consents and Authorisations.................................................107
16.26. Licence.......................................................................1
16.27. Material Contracts and Constitutional Documents...............................1
16.28. Auditors......................................................................1
16.29. Hedging Agreements............................................................1
16.30. Subsidiaries..................................................................1
16.31. Taxation......................................................................1
16.32. Financial Undertakings........................................................1
16.33. Access........................................................................1
16.34. Interconnection...............................................................1
16.35. Reserve Account...............................................................1
16.36. Utilisation of Proceeds of Facilities.........................................1
16.37. Loans, Guarantees and Investments in Subsidiaries.............................1
16.38. Share Pledges.................................................................1
16.39. Non-Acquisition by Subsidiary.................................................1
17. DEFAULT............................................................................118
17.1. Events of Default.............................................................1
17.2. Non-Payment...................................................................1
17.3. Breach of Obligations.........................................................1
17.4. Misrepresentation/Breach of Warranty..........................................1
17.5. Cross-Acceleration and Cross-Default..........................................1
17.6. Invalidity....................................................................1
17.7. Insolvency and Rescheduling...................................................1
17.8. Winding-Up....................................................................1
17.9. Execution or Distress.........................................................1
17.10. Analogous Events..............................................................1
17.11. Governmental Intervention.....................................................1
17.12. Cessation.....................................................................1
(c)
TABLE OF CONTENTS
(continued)
CLAUSE NO. PAGE
===============================================================================================================================
17.13. Proceedings...................................................................1
17.14. Breach of the Licence or any Authorisation....................................1
17.15. Material Adverse Change.......................................................1
17.16. Breach of Material Contracts..................................................1
17.17. Repudiation...................................................................1
17.18. Counterparties................................................................1
17.19. Shareholders..................................................................1
17.20. Change of Ownership...........................................................1
17.21. Balance in Reserve Account....................................................1
17.22. Mandatory Prepayment..........................................................1
17.23. No Trading in Securities......................................................1
17.24. Non-Compliance with any Securities Authority..................................1
17.25. Acceleration..................................................................1
17.26. Advances Due on Demand........................................................1
17.27. Indemnity.....................................................................1
18. AGENCY PROVISIONS....................................................................1
18.1. Appointment...................................................................1
18.2. Facility Agent's Obligation...................................................1
18.2A Coordinating Agent's Obligation.............................................130
18.3. Discretions...................................................................1
18.4. Excluded Obligations..........................................................1
18.5. Indemnification...............................................................1
18.6. Exclusion of Liabilities......................................................1
18.7. No Actions....................................................................1
18.8. Participating Bank's Responsibility...........................................1
18.9. Resignation...................................................................1
18.10. Successor Agent.............................................................134
18.11. Rights and Obligations........................................................1
18.12. Business with the Group.......................................................1
19. BROKEN FUNDING INDEMNITY.............................................................1
19.1. Broken Funding Indemnity for US Dollars and Euros.............................1
19.2. Broken Funding Indemnity for NIS..............................................1
19.3. Partner's Indemnity...........................................................1
20. CURRENCY OF ACCOUNT..................................................................1
20.1. Currency of Account...........................................................1
20.2. Currency Indemnity............................................................1
21. PAYMENTS WITHOUT SET-OFF.............................................................1
22. SET-OFF..............................................................................1
23. APPLICATION AND REDISTRIBUTION OF PAYMENTS...........................................1
23.1. Application of Payments.......................................................1
23.2. Partial Payments..............................................................1
23.3. Redistribution on or after Default Date.......................................1
23.4. Repayable Recoveries..........................................................1
23.5. Recoveries Through Legal Proceedings..........................................1
24. CALCULATIONS AND EVIDENCE OF DEBT....................................................1
24.1. Basis of Accrual..............................................................1
24.2. Evidence of Debt..............................................................1
24.3. Prima Facie Evidence..........................................................1
(d)
TABLE OF CONTENTS
(continued)
CLAUSE NO. PAGE
===============================================================================================================================
24.4. Certificates of Participating Banks...........................................1
25. GUARANTEE AND INDEMNITY..............................................................1
25.1. Guarantee.....................................................................1
25.2. Indemnity.....................................................................1
25.3. Additional Security...........................................................1
25.4. Continuing Obligations........................................................1
25.5. Obligations not Discharged....................................................1
25.6. Settlement Conditional........................................................1
25.7. Exercise of Rights............................................................1
25.8. Deferral of Guarantor's Rights................................................1
25.9. Suspense Accounts.............................................................1
25.10. Waiver by Guarantor...........................................................1
26. ADDITIONAL GUARANTORS AND SECURITY...................................................1
26.1. Additional Guarantors.........................................................1
26.2. Security......................................................................1
27. ASSIGNMENTS AND TRANSFERS............................................................1
27.1. Binding Agreement.............................................................1
27.2. No Assignments and Transfers by the Obligors..................................1
27.3. Assignments and Transfers by Participating Banks..............................1
27.4. Assignments by Participating Banks............................................1
27.5. Transfers by Participating Banks..............................................1
27.6. Disclosure of Information.....................................................1
27.7. No Increased Costs............................................................1
28. COSTS AND EXPENSES...................................................................1
28.1. Agents' Costs.................................................................1
28.2. Amendment Costs...............................................................1
28.3. Participating Banks' Liabilities for Costs....................................1
29. PARTIAL INVALIDITY...................................................................1
30. AMENDMENTS...........................................................................1
31. INFORMATION..........................................................................1
32. RELEASE OF SHARE PLEDGES.............................................................1
32.1. Share Pledges.................................................................1
32.2. Release of Share Pledges......................................................1
32.3. Distribution of Tapuz Shares--Deleted.........................................1
33. RESPONSE TO REQUESTS FOR APPROVAL OR CONFIRMATION....................................1
34. COUNTERPARTS.........................................................................1
35. GOVERNING LAW AND JURISDICTION.......................................................1
36. REMEDIES AND WAIVERS.................................................................1
37. NOTICES..............................................................................1
37.1. Communications through Facility Agent.........................................1
37.2. Manner of Delivery............................................................1
38. CONFIDENTIALITY......................................................................1
39. ENTIRE AGREEMENT.....................................................................1
(e)
SCHEDULES DESCRIPTION
========================================================================================================================
SCHEDULE 1 Participating Banks' respective Commitments
SCHEDULE 2 Form of Drawdown Request
SCHEDULE 3 List of Facility Documents
SCHEDULE 4 Form of Guarantor Accession Agreement
SCHEDULE 5 List of Material Contracts
SCHEDULE 6 Shareholder Loans Subordination Conditions
SCHEDULE 7 Reservations
SCHEDULE 8 List of Security Documents
SCHEDULE 9 Principal Shareholders in Partner
SCHEDULE 10 Form of Transfer Certificate
SCHEDULE 11 Deleted
SCHEDULE 12 Deleted
SCHEDULE 13 Deleted
SCHEDULE 14 Deleted
SCHEDULE 15 Part A--Schedule for Reduction of Facility A
Part B--Schedule for Reduction of Facility C
SCHEDULE 16 Certificate by Partner's Chief Financial Officer permitting prepayment from Permitted
Sources
SCHEDULE 17 Pending Legal Actions concerning Partner
SCHEDULE 18 Tax Liabilities
SCHEDULE 19 Quarterly report to be submitted to the Participating Banks and the Facility Agent
SCHEDULE 20 Form of letter by Partner to the Auditors
SCHEDULE 21 Deleted
SCHEDULE 22 Deleted
SCHEDULE 23 Documents required in relation to Acceding Guarantors
THIS AGREEMENT was made on 13 August 1998 and amended and restated
by the parties through 31 December 2002, the parties hereto, as at
31 December 2002, being:
(1) PARTNER COMMUNICATIONS COMPANY LTD. ("PARTNER")
AND
(2) BANK LEUMI LE-ISRAEL B.M., ISRAEL DISCOUNT BANK LTD., BANK
HAPOALIM B.M., THE FIRST INTERNATIONAL BANK OF ISRAEL LTD.,
UNITED MIZRAHI BANK LTD., MERCANTILE DISCOUNT BANK LTD. and
CITIBANK N.A.
(together, "THE PARTICIPATING BANKS")
AND
(3) BANK LEUMI LE-ISRAEL B.M., in its respective capacities as
Arranger, Facility Agent and Security Trustee
AND
(4) BANK HAPOALIM B.M., in its capacity as Coordinating Agent
10. INTERPRETATION
10.1. DEFINITIONS
In this Agreement, the following terms have the meanings given to them
in this clause 1.1:
10.1.1. "ACCOUNTING PERIOD" in relation to any person means any
period of approximately 3 (three) months, 6 (six) months or 1
(one) year for which Accounts of such person are prepared;
(1)
-2-
10.1.2. "ACCOUNTS" means at any time and from time to time:
(a) the latest audited non-consolidated annual financial
statements of Partner;
(b) the latest audited annual financial statements of each
Subsidiary of Partner;
(c) the latest unaudited reviewed non-consolidated half-
yearly financial statements of Partner;
(d) the latest unaudited reviewed half-yearly financial
statements of each Subsidiary of Partner;
(e) the latest audited consolidated annual financial
statements of Partner;
(f) the latest unaudited reviewed quarterly consolidated
financial statements of Partner,
delivered or required to be delivered to the Participating
Banks hereunder (together with all those notes thereto and
certificates required to be attached thereto), or such of
those accounts as the context requires;
10.1.3. "ACQUISITION" means the acquisition directly or indirectly
(whether by one transaction or by a series of related
transactions) of any interest whatsoever in the share capital
(or equivalent) or the business or undertaking (including any
franchise rights) or assets constituting a separate business
or undertaking of any company or other person;
10.1.4. "ADDITIONAL GUARANTOR" means any entity which becomes party to
this Agreement as a Guarantor by virtue of its execution of a
Guarantor Accession Agreement;
10.1.5. "ADSCR" means EBITDA after SAC/Debt Service;
10.1.6. "ADVANCE" means an advance made or to be made under the
Facilities or the principal amount thereof (for the removal
of doubt, together with any Linkage Differentials in
respect of such principal) outstanding from time to time;
10.1.7. "AFFILIATE" means in relation to a Participating Bank, and to
any other company or any corporation, the Holding Company of
that
-3-
Participating Bank, company or corporation and any person over
20% (twenty percent) of whose capital is beneficially owned,
or the majority of whose voting rights are exercised, directly
or indirectly by that Participating Bank, company or
corporation or any Holding Company of that Participating Bank,
company or corporation provided that, for the purpose of
clause 27.3 (Assignments and Transfers by Participating Banks)
below the reference to 20% (twenty percent) shall be deemed to
be a reference to 50% (fifty percent);
10.1.8. "AGENTS" means the Facility Agent, the Coordinating Agent, the
Security Trustee and the Arranger;
10.1.9. "AMENDING AND RESCHEDULING AGREEMENT" means the Amending and
Rescheduling Agreement dated 9 July 2000 between the parties
to this Agreement, amending the Original Facility Agreement
with effect from the Effective Date;
10.1.10. "APPLICABLE ACCOUNTING PRINCIPLES" means in relation to
Partner or any Subsidiary of Partner, the accounting
principles and practices generally accepted in its
jurisdiction of incorporation and/or where its securities are
listed for trading, reconciled to the extent necessary in
accordance with the generally accepted accounting principles
in the United States of America;
10.1.11. "ARRANGER" means Bank Leumi Le-Israel B.M.;
10.1.12. "AUDITORS" means any internationally recognised firm of
accountants or a leading firm of independent Israeli auditors
affiliated to an internationally recognised firm of
accountants;
10.1.13. "AUTHORISATIONS" means at any time all consents, approvals,
authorisations, concessions, permits and licences (including
Environmental Licences but excluding the Licence), and all
filings, registrations and agreements with any government or
other regulatory authority necessary in order to enable the
Group to install, establish, maintain and operate the Network
at such time;
10.1.14. "AVAILABLE COMMITMENT" means the Available Facility A
Commitment, the Available Facility B Commitment and the
Available Facility C Commitment or any of them, as the context
may require;
10.1.15. "AVAILABLE FACILITY A COMMITMENT" means, in relation to a
Participating Bank at any time, its Commitment under Facility
A at such time, less the difference between: (i) the aggregate
Original
-4-
Dollar Amount of all Advances made by such Participating Bank
(and taking into account, where relevant, any Advances not yet
made but Drawdown Requests in respect of which have been
submitted to such Participating Bank) under Facility A at such
time; and (ii) the Original Dollar Amount of all Advances
under Facility A prepaid or repaid by Partner to such
Participating Bank, which are capable of being reborrowed
under clauses 5.1.2.(c), 6.4.1, 7.2.2 or 7.3 (Investment by
Partner in Subsidiaries) below;
10.1.16. "AVAILABLE FACILITY B COMMITMENT" means, in relation to a
Participating Bank at any time, its Commitment under Facility
B at such time less the Dollar Amount of the aggregate amount
of all outstanding Advances (for the removal of doubt,
together with any Linkage Differentials on such Advances) made
by such Participating Bank (and taking into account, where
relevant, any Advances not yet made but Drawdown Requests in
respect of which have been submitted to such Participating
Bank) under Facility B at such time;
10.1.17. "AVAILABLE FACILITY C COMMITMENT" means, in relation to a
Participating Bank at any time, its Commitment under Facility
C at such time, less the difference between: (i) the aggregate
Original Dollar Amount of all Advances made by such
Participating Bank (and taking into account, where relevant,
any Advances not yet made but Drawdown Requests in respect of
which have been submitted to such Participating Bank) under
Facility C at such time; and (ii) the Original Dollar Amount
of all Advances under Facility C prepaid or repaid by Partner
to such Participating Bank, which are capable of being
reborrowed under clauses 5.3.2.(c), 6.4.1, 7.2.2 or 7.3
(Investment by Partner in Subsidiaries) below;
10.1.18. "AVAILABILITY PERIOD FACILITY A" means the period ending on
31 March 2003;
10.1.19. "AVAILABILITY PERIOD FACILITY C" means the period ending on
December 31, 2004;
10.1.20. "BANK HAPOALIM" means Bank Hapoalim B.M.;
10.1.21. "BEZEQ" means Bezeq, Israel Telecommunication Corporation
Ltd., a company incorporated under the laws of Israel;
10.1.22. "BEZEQ INTERCONNECTION AGREEMENT" means the Interconnection
Agreement entered into or to be entered into with Bezeq or any
other agreement with Bezeq (whether written or expressed by
conduct)
-5-
pursuant to which Bezeq provides interconnection
infrastructure and services to Partner;
10.1.23. "BLL" means Bank Leumi Le-Israel B.M.;
10.1.24. "BOND RATE" means the rate which is the aggregate of:
(a) the arithmetic mean of the Average Daily Yield; the
"AVERAGE DAILY YIELD" being the arithmetic mean of the
gross yield to maturity (rounded upwards, if necessary,
to four decimal places) as published by the
Tel-Aviv
Stock Exchange Ltd. ("TASE"), of six series of fixed
rate bonds issued by the State of Israel and listed on
the TASE and having a remaining period until maturity
the same as, or closest to, the average duration (taking
account of repayments) of the relevant Advance during
the Duration Period of such Advance, denominated in NIS
and fully linked to the Cost of Living Index, in each of
the 10 (ten) (or, in the event that under clause
1.1.105(b) below the minimum prior notice for Drawdown
of the relevant Advance is 5 (five) Business Days, then
5 (five)) trading days of the TASE immediately preceding
the beginning of the Duration Period of such Advance;
all as determined by the Participating Bank by which
such Advance is to be made on the first day of such
Duration Period; and
(b) 0.60% (nought point sixty percent);
10.1.25. "BORROWING" means any Indebtedness in respect of or pursuant
to:
(a) monies borrowed or monies raised which are in the nature
of borrowings or having the commercial effect of
borrowing (including monies raised by the sale of
receivables, invoices, bills or notes or other financial
assets on terms that recourse may be had to the vendor
in the event of non-payment of such receivables,
invoices, bills or financial assets when due) and monies
raised under acceptance credit facilities and through
the issue of bonds, notes, debentures, bills, loan
stocks and other debt securities (including any debt
security convertible, but not at the relevant time
converted, into share capital);
(b) the acquisition cost of assets or services to the extent
payable on deferred payment terms more than 180 (one
hundred and eighty) days after the time of acquisition
or possession thereof by the party liable (whether or
not evidenced by any bond, note, debenture, loan stock
or other debt security), excluding any such
-6-
cost payable on deferred payment terms which are treated
as trade creditors in accordance with the Applicable
Accounting Principles;
(c) monies received in consideration for the supply of goods
and/or services to the extent received more than 6 (six)
months before the due date for such supply (but
excluding any liability in respect of bona fide progress
payments and deposits received from customers in the
ordinary course of trade or any other liability treated
as trade creditors in accordance with the Applicable
Accounting Principles) where such arrangement is entered
into primarily as a method of raising finance;
(d) leases (whether in respect of land, machinery, equipment
or otherwise) and hire purchase agreements, conditional
sale agreements, sale and lease back, sale and
repurchase and similar agreements and instruments,
provided in the case of leases they are treated as
finance leases in accordance with Applicable Accounting
Principles; and/or
(e) any guarantee, indemnity or other legally binding
instrument to assure payment of, or against loss in
respect of non-payment of, any of the indebtedness
specified in this definition and any counter-indemnity
in respect of any thereof or in respect of any letter of
credit or guarantee issued by any bank or other
financial institution in respect of any indebtedness
referred to in this definition;
provided that in computing an amount of Borrowings of any
person or persons:
(i) in respect of paragraph (d) only the liability for
future payments under the finance lease as determined in
accordance with the Applicable Accounting Principles
shall be included;
(ii) any item falling within paragraph (e) shall be included
only to the extent that the same is required by the
Applicable Accounting Principles to be quantified in the
consolidated balance sheet included in consolidated
Accounts of the Group, or in any notes to those
Accounts, were any then to be prepared;
(iii) any item falling within paragraph (e) shall not be
included if it relates to indebtedness of another
member of the Group already taken into account for the
purposes of such calculation; and
-7-
(iv) such computation shall exclude any double counting;
10.1.26. "BUSINESS" means the business of installing, establishing,
maintaining and operating a wireless telephony service in
Israel as contemplated by the License and any other related
business or activity which may be conveniently or
advantageously carried on in connection or conjunction with
such business;
10.1.27. "BUSINESS DAY" means:
(a) with respect to payment or purchase of sums denominated
in:
(i) US Dollars, as a reference to a day (other than a
Saturday or Sunday) on which banks generally are
open for business in New York and
Tel-Aviv;
(ii) Euros, as a reference to a day on which the
Trans-European Automated Real-Time Gross Settlement
Express Transfer payment system is open for
settlement of payments in Euros and on which banks
generally are open for business in
Tel-Aviv and
(iii) NIS, as a reference to a day (other than a
Saturday) on which banks generally are open for
business in
Tel-Aviv; and
(b) in all other cases, as a reference to a day (other than
a Saturday) on which banks generally are open for
business in Tel Aviv;
10.1.28. "BUSINESS PLAN" means the business plan (including the long
term management forecasts contained therein) of Partner dated
7 July 2002, a copy of which was delivered to the Facility
Agent and to the Coordinating Agent on 11 July 2002, as such
business plan is updated from time to time pursuant to this
Agreement;
10.1.29. "CAPITAL ADEQUACY REQUIREMENT" means a request or requirement
relating to the maintenance of capital from any central bank
or other fiscal, monetary or other authority;
10.1.30. "CAPITAL EXPENDITURE" means any expenditure which should be
treated as capital expenditure in the audited non-consolidated
Accounts of Partner in accordance with the Applicable
Accounting Principles;
-8-
10.1.31. a "CHANGE OF OWNERSHIP" shall occur when:
(a) the HTL Group ceases to hold, directly or indirectly,
a portion of Partner's equity share capital which
carries at least 30% (thirty percent) of the voting
rights in Partner; or
(b) the HTL Group, Matav, Elbit, Eurocom Communications
Limited, Hapoalim Electronic Communication Ltd. and
Tapuz Cellular Systems Ltd. taken together, cease to
hold, directly or indirectly, a portion of Partner's
equity share capital which carries at least 51%
(fifty-one percent) of the voting rights in Partner; or
(c) HWL ceases to hold, directly or indirectly, at least 51%
(fifty-one percent) of the equity share capital of HTL.
For the avoidance of doubt, in calculating any indirect
percentage ownership interest, account shall be taken of any
intermediate holding companies which are not wholly-owned
Subsidiaries and the indirect percentage ownership interest
shall be reduced on a proportionate basis accordingly;
10.1.32. "CHARGOR" means any Shareholder which is party to a Share
Pledge and "CHARGORS" means all of them;
10.1.33. "CHARTER" means, in respect of any company, corporation,
partnership, governmental agency or other enterprise, its
founding act, articles of incorporation and by-laws,
memorandum and articles of association, articles of
partnership, statute or similar instrument and other founding
documents;
10.1.34. "COMMITMENT" means, in relation to a Participating Bank and a
Facility at any time, the amount in US Dollars set opposite
its name in SCHEDULE 1 (Participating Banks' respective
Commitments) in relation to such Facility as reduced or
cancelled from time to time in accordance with this Agreement;
10.1.35. "COMMENCEMENT DATE" shall have the same meaning ascribed to
such term in the Amending Agreement to the Facility Agreement
dated as of 31 December 2002 made between: (1) Partner; (2)
the Participating Banks; (3) BLL, in its respective capacities
as, Arranger, Facility Agent and Security Trustee; and (4)
Bank Hapoalim, in its capacity as Coordinating Agent;
-9-
10.1.36. "CONTRIBUTION" means, in relation to a Participating Bank at
any time, the aggregate Dollar Amount of all Advances (for the
removal of doubt, together with any Linkage Differentials on
such Advances) made by such Participating Bank under each of
Loan A, Loan B and Loan C outstanding at such time or, as the
context may require, the aggregate Dollar Amount of all such
Advances;
10.1.37. "COORDINATING AGENT" means Bank Hapoalim or, in the event Bank
Hapoalim shall resign as Coordinating Agent pursuant to clause
18.9 (Resignation) below, the Facility Agent and its
respective successors as referred to in clause 18.10
(Successor Agent) below;
10.1.38. "COST OF LIVING INDEX" means the index known as the Consumer
Price Index (Cost of Living Index) including fruit and
vegetables and published by the Israeli Central Bureau of
Statistics, including such index even if published by any
other official Israeli institution, and also including every
official index in substitution therefor, whether based on the
same data on which the existing index is based or not. If such
index be substituted by another index published by any such
body or institution and such body or institution has not
prescribed the relationship between the former and the
substitute index, such relationship shall be prescribed by the
Israeli Central Bureau of Statistics and, in the event such
relationship has not been so prescribed, the Facility Agent
shall determine the relationship between such index and the
substitute index in consultation with economic experts
selected by it and applied by the Facility Agent to its other
linked accounts;
10.1.39. "COUNTERPARTY" means each party to a Material Contract set out
in paragraphs (a), (c) and (d) of Schedule 5 (Material
Contracts) hereto) and Bezeq or any successor providing
equivalent interconnection services to Bezeq, in each case
other than an Obligor;
10.1.40. "CURRENCY HEDGE PROVIDER" means any counterparty to any
Currency Hedging Agreement entered into by Partner.
10.1.41. "CURRENCY HEDGING AGREEMENT" means any agreement entered into
by Partner for the purposes of entering into one or more
Currency Hedging Transactions.
10.1.42. "CURRENCY HEDGING TRANSACTION" includes any foreign exchange
transaction, currency swap transaction, cross currency rate
swap
-10-
transaction, currency option or other similar transaction
(including any option with respect thereto and any combination
in respect thereof);
10.1.43. "DANGEROUS SUBSTANCE" means any radioactive or electromagnetic
emissions and any natural or artificial substance (whether in
the form of a solid, liquid, gas or vapour) the generation,
transportation, storage, treatment, use or disposal of which
(whether alone or in combination with any other substance) and
including (without limitation) any controlled, special,
hazardous, toxic, radioactive or dangerous waste, gives rise
to a risk of causing harm to man or any other living organism
or damaging the Environment or public health;
10.1.44. "DEBENTURE" means the debenture dated 10 September 1998
between Partner and the Security Trustee, as amended;
10.1.45. "DEBT SERVICE" means, in relation to each Ratio Period. the
sum of: (i) Financial Costs in respect of such Ratio Period;
(ii) the scheduled repayments of principal under the
Facilities (together with any Linkage Differentials (to the
extent not taken into account in the Financial Costs in
respect of any preceding Ratio Period (provided that such
preceding Ratio Period commences from 1 January 2002 or
thereafter)) in respect of such principal), in respect of such
Ratio Period; and (iii) scheduled repayments of principal
under Permitted Borrowings (together with any Linkage
Differentials in respect of such principal), in respect of
such Ratio Period;
10.1.46. "DEFAULT DATE" means the first date on which the Facility
Agent serves a notice under clause 17.26 (Advances Due on
Demand) below or the date after an Event of Default which an
Instructing Group determines is the Default Date;
10.1.47. "DOLLAR AMOUNT" means at any time:
(a) in relation to an Advance denominated in US Dollars, the
outstanding amount of such Advance at such time;
(b) in relation to an Advance denominated in NIS, the Dollar
equivalent of the outstanding NIS amount of such Advance
at such time, together, for the removal of doubt, with
all Linkage Differentials on such Advance;
(c) in relation to an Advance denominated in Euros, the
Dollar equivalent of the outstanding Euro amount of such
Advance at such time;
-11-
10.1.48. "DORMANT COMPANY" means any Subsidiary of Partner
designated as a dormant company provided that (and for
so long only as) it does not trade (whether for itself
or as agent for another) or does not own legally and/or
beneficially any property or assets;
10.1.49. "DOUBLE TAXATION TREATY" means any convention or
agreement between the government of Israel and any other
government for the avoidance of double taxation;
10.1.50. "DRAWDOWN DATE" means, in respect of any Drawdown
Request, the proposed date for the making of the
relevant Advance as set out in the relevant Drawdown
Request;
10.1.51. "DRAWDOWN REQUEST" means a notice substantially in the
form set out in SCHEDULE 2 (Drawdown Request) hereto;
10.1.52. "DURATION PERIOD" means:
(a) in relation to an Advance made under Facility A or
Facility C, the period commencing on the date on
which the relevant Advance is made and expiring on
the expiry date designated in the relevant Drawdown
Request; provided that: (i) such expiry date shall
not be less than 12 (twelve) months after the date
such Advance is to be made under the relevant
Drawdown Request; (ii) such period is a period
customary at the relevant Participating Bank, having
regard to the currency, amount and type of Advance
requested under the relevant Drawdown Request; (iii)
in the case of an Advance under Facility A, such
expiry date shall not be later than the Facility A
Maturity Date and, in the case of an Advance under
Facility C, such expiry date shall not be later than
the Facility C Maturity Date; and (iv) such expiry
date shall be the last Interest Payment Date for
such Advance; and
(b) in relation to an Advance made under Facility B, the
period commencing on the date on which the relevant
Advance is made and expiring on the expiry date
designated in the relevant Drawdown Request;
provided that: (i) such expiry date shall not be
more than 12 (twelve) months after the date such
Advance is to be made under the relevant Drawdown
Request; (ii) such expiry date shall be the last
Interest Payment Date for such Advance; (iii) such
period is a period customary at the relevant
Participating Bank, having regard to the currency,
amount and
-12-
type of Advance requested under the relevant
Drawdown Request; and (iv) such expiry date shall
not be later than June 30, 2008;
-13-
10.1.53. "EBITDA AFTER SAC" means, in respect of any Ratio Period:
(1) the sum of the following, all as appearing in Partner's
non-consolidated Accounts for such Ratio Period:
(a) the net profit of Partner before extraordinary
items; provided that, for the removal of doubt:
(i) all expenses other than Capital Expenditure
shall be costs for the purposes of determining
EBITDA; and (ii) Capital Expenditure as referred to
above does not include SAC;
(b) the amount of Taxes set against the net profits of
Partner in the Accounts and (without double
counting) any provision by Partner for Taxes;
(c) any amortisation and depreciation reflected in such
Accounts;
(d) any Net Financial Expenses,
less:
(2) any non-cash profits included in Partner's non-
consolidated Accounts in respect of such Ratio Period.
For the purposes of the aforegoing, "NET FINANCIAL EXPENSES"
means, for any Ratio Period, the Financial Costs for such
Ratio Period, less the Interest receivable for such Ratio
Period (as certified by Partner's Auditors and specified in
the notes to the Accounts to be delivered pursuant to the
provisions of this Agreement);
10.1.54. "THE EFFECTIVE DATE" means 7 August 2000;
10.1.55. "ELBIT" means Elbit Limited, a company incorporated in Israel
with registered number ▇▇-▇▇▇▇▇▇-▇;
10.1.56. "ENCUMBRANCE" means: (a) a mortgage, charge, pledge, lien or
other security interest securing any obligation of any person,
(b) any arrangement under which money or claims to, or the
benefit of, a bank or other account may be set-off or made
subject to a combination of accounts so as to effect payment
of sums owed or payable to any person or (c) any other type of
preferential arrangement (including title transfer and
retention arrangements) having a similar effect;
-14-
10.1.57. "ENVIRONMENT" means all, or any of, the following media, the
air (including the air within buildings and the air within
other natural or man-made structures above or below ground),
water (including ground and surface water) and land (including
surface and sub-surface soil);
10.1.58. "ENVIRONMENTAL CLAIM" means any claim by any person:
(a) in respect of any loss or liability suffered or incurred
by that person as a result of or in connection with any
violation of Environmental Law; or
(b) that arises as a result of or in connection with
Environmental Contamination and that could give rise to
any remedy or penalty (whether interim or final) that
may be enforced or assessed by private or public legal
action or administrative order or proceedings including
any such claim that arises from injury to persons or
property;
10.1.59. "ENVIRONMENTAL CONTAMINATION" includes each of the following
and their consequences:
(a) any release, emission, leakage or spillage of any
Dangerous Substance at or from any site owned or
occupied by any member of the Group or from any cell
phone or accessory supplied by any member of the Group
into any part of the Environment; or
(b) any accident, fire, explosion or sudden event at any
site owned or occupied by any member of the Group which
is directly caused by or attributable to any Dangerous
Substance; or
(c) any other pollution of the Environment arising at or
from any site owned or occupied by any member of the
Group.
For the purposes of this definition, for the removal of doubt,
a site occupied by any member of the Group shall be deemed to
include also any site on or in which an antenna for
transmitting or receiving signals has been erected or placed
by or on behalf of any member of the Group;
10.1.60. "ENVIRONMENTAL LAW" means all applicable laws and regulations
concerning pollution, the Environment or Dangerous Substances;
-15-
10.1.61. "ENVIRONMENTAL LICENCE" means any permit, licence,
authorisation, consent or other approval required by any
Environmental Law applicable to the Group;
10.1.62. "ESCROW ACCOUNT" means the account with such Israeli bank as
Partner elects, with the prior consent of the Facility Agent
(which consent shall only be given if an Encumbrance can be
granted over such account in favour of the Security Trustee
and no other Encumbrance exists over such account) in the name
of Partner pledged in favour of the Security Trustee pursuant
to the Debenture;
10.1.63. "EVENT OF DEFAULT" means any circumstances described as such
in clause 17 (Default) below;
10.1.64. "EXCESS CASH FLOW" means, for any Ratio Period, EBITDA after
SAC for such Ratio Period, less the following:
(a) Taxes payable by Partner in respect of such Ratio
Period;
(b) Capital Expenditure paid during such Ratio Period;
(c) all Interest payable (whether or not paid) on any
Advance, Partner being deemed to have drawn all the
Facilities in full, provided by a Participating Bank
under the Facilities and commissions or other charges
arising from any banking or other financial services
provided by the Participating Banks to Partner for such
Ratio Period, plus all Linkage Differentials and
similar amounts payable, including accrued (whether or
not paid) in respect of principal of all Advances in
such Ratio Period to the extent such Linkage
Differentials and similar amounts were not already
taken into account for the purpose of computing Excess
Cash Flow in a prior Ratio Period;
(d) all scheduled payments (whether or not paid) of
Advances, Partner being deemed to have drawn all the
Facilities in full (including all Linkage Differentials
in respect of such Advances), but without double
accounting in respect of Linkage Differentials referred
to in (c) above; and
(e) all scheduled payments (whether or not paid) of
Interest and principal in respect of all Permitted
Borrowings (other than under the Facilities) for such
Ratio Period, plus all Linkage Differentials and similar
amounts payable, including accrued (whether or not paid)
in respect of such Permitted Borrowings in
-16-
such Ratio Period to the extent such Linkage
Differentials and similar amounts were not already taken
into account for the purpose of computing Excess Cash
Flow in a prior Ratio Period;
(f) losses during the relevant Ratio Period constituting
extraordinary items and payable in cash;
10.1.65. "FACILITIES" means Facility A, Facility B and Facility C and
"FACILITY" means any one of them as the context so requires;
10.1.66. "FACILITY A" means the fixed-term Dollar, NIS and/or Euro loan
facility granted to Partner pursuant to clause 2.1.1(a) below;
10.1.67. "FACILITY A MATURITY DATE" means 30 June 2008, or if the day
determined in accordance with the aforegoing is not a Business
Day, the immediately preceding Business Day;
10.1.68. "FACILITY AGENT" means BLL or any successor Facility Agent
appointed in accordance with clause 18.10 (Successor Agent)
below;
10.1.69. "FACILITY B" means the revolving Dollar, NIS and/or Euro loan
facility granted to Partner pursuant to clause 2.1.1(b) below;
10.1.70. "FACILITY C" means the fixed-term NIS loan facility granted to
Partner pursuant to clause 2.1.1(c) below;
10.1.71. "FACILITY C MATURITY DATE" means 30 June 2009;
10.1.72. "FACILITY DEBT COVER RATIO" means, in relation to each Ratio
Period, EBITDA after SAC for such Ratio Period, divided by the
aggregate Contributions as at the last day of the Ratio
Period;
10.1.73. "FACILITY DOCUMENTS" means those documents listed in SCHEDULE
3 (Facility Documents);
10.1.74. "FACILITY OFFICE" means, in relation to a Finance Party, the
office designated by it for service of notices in clause 37.2
(Manner of Delivery) below or such other address as may be
designated by it, from time to time, to Partner and the
Coordinating Agent for the purposes of this Agreement (or, in
the case of a Transferee, at the end of the Transfer
Certificate to which it is a party as Transferee). For the
purposes of clause 14.1 (Mitigation) and clause 27.7 (No
Increased Costs) below, a change in, or substitution of, a
Facility
-17-
Office shall only be deemed to occur where such change or
substitution is to an office located outside the State of
Israel;
10.1.75. "FINANCE PARTY" means the Facility Agent, the Arranger, the
Coordinating Agent, each Participating Bank and the Security
Trustee;
10.1.76. "FINANCIAL COSTS" means, for any Ratio Period, all Interest
expenses (whether or not capitalised) of Partner during such
Ratio Period, as well as all other costs, expenses,
commissions (including credit card commissions) and other
charges of whatsoever nature appearing in the item "Financial
Expenses" in the Accounts for such Ratio Period (all the above
as certified by Partner's Auditors and specified in the notes
to the Accounts to be delivered pursuant to the provisions of
this Agreement); save for:
(a) Interest accrued during such Ratio Period on
Shareholder Loans which is not permitted to be paid
pursuant to this Agreement;
(b) amounts accrued during such Ratio Period in respect of
the principal outstanding on the Senior Secured Notes,
due 2010, issued by Partner on August 10, 2000, as a
result of a change in the rate of exchange between the
US Dollar and the NIS; and
(c) all fees and expenses paid by Partner to the
Participating Banks on or before 31 December 2000,
pursuant to the terms of this Agreement, in respect of
the Facilities and which were deducted during such Ratio
Period;
10.1.77. "FINANCIAL YEAR" means in relation to Partner, the accounting
year commencing on 1 January and ending on the following 31
December, or such other annual Accounting Period of Partner as
Partner may, with the consent of an Instructing Group,
designate as its accounting year;
10.1.78. "FIXED CHARGE COVERAGE RATIO" means for any Ratio Period: (a)
EBITDA after SAC for such Ratio Period, divided by: (b) the
sum of: (i) Debt Service for such Ratio Period; (ii) Capital
Expenditure actually paid during such Ratio Period, less
equity and/or loan capital and/or income not deriving from the
ordinary course of Business of Partner; in each case received
by Partner and designated at the time of such receipt, for use
in financing such Capital Expenditure only, and in fact
utilised for such designated Capital Expenditure during such
Ratio Period; provided that, for the removal of doubt, loan
capital as referred to herein shall not include any amount
received by Partner
-18-
within the framework of the Facilities; and (iii) Tax payments
actually made by Partner during such Ratio Period;
10.1.79. "GROUP" means Partner and its Subsidiaries from time to time;
10.1.80. "GUARANTOR" means each Additional Guarantor;
10.1.81. "GUARANTOR ACCESSION AGREEMENT" means an agreement
substantially in the form of SCHEDULE 4 (Guarantor Accession
Agreement) to this Agreement made pursuant to clause 26.1
(Additional Guarantors) below;
10.1.82. "HEDGING AGREEMENT" means any Interest Rate Hedging Agreements
and any Currency Hedging Agreements.
10.1.83. "HEDGING TRANSACTIONS" means any Interest Rate Hedging
Transactions and any Currency Hedging Transactions;
10.1.84. "HOLDING COMPANY" of a company or corporation means any
company or corporation of which the first-mentioned company or
corporation is a Subsidiary;
10.1.85. "HTL" means Telecommunications Limited, a company incorporated
in Hong Kong under registered number 166461;
10.1.86. "HTL GROUP" means HTL and its Subsidiaries;
10.1.87. "HWL" means ▇▇▇▇▇▇▇▇▇ Whampoa Limited, a company incorporated
in Hong Kong under registered number 054532;
10.1.88. "HWL GROUP" means HWL and its Subsidiaries;
10.1.89. "HWL HEDGING SUBSIDIARY" means any wholly owned Subsidiary of
HWL which may from time to time enter into Interest Rate
Hedging Transactions with Partner in accordance with clause
18.29(h) (Hedging Agreements) below;
10.1.90. "IDB PERFORMANCE BOND" means the performance guarantee in the
maximum amount of NIS, equal, in accordance with the
representative rate of exchange of the US Dollar published by
the Bank of Israel, known on the date of actual payment, to
US $10,000,000 (ten million United States Dollars) issued or
to be issued by Israel Discount Bank Ltd. in favour of the
Ministry at the request of Partner;
-19-
10.1.91. "IDB PERFORMANCE BOND COUNTER INDEMNITY" means an agreement
entered into or to be entered into between Israel Discount
Bank Ltd. and Partner, pursuant to which Partner undertakes to
indemnify Israel Discount Bank Ltd. in respect of any amounts
payable under or in connection with the IDB Performance Bond;
10.1.92. "INCREASED COSTS" shall bear the meaning ascribed thereto in
clause 12.1 (Increased Costs) below;
10.1.93. "INDEBTEDNESS" means any obligation (whether incurred as
principal or as surety) for the payment or repayment of money,
whether present or future, actual or contingent;
10.1.94. "INSTRUCTING GROUP" means: (a) prior to any acceleration
pursuant to clauses 17.25(c) (Acceleration) or (d) or clause
17.26 (Advances Due on Demand) below, but including with
respect to a decision to declare such acceleration, a
Participating Bank or group of Participating Banks whose
Commitments as at the Commencement Date amount in aggregate to
more than 67% (sixty-seven percent) of the aggregate
Commitments; and (b) after a decision to accelerate as
aforesaid, a Participating Bank or group of Participating
Banks whose Contributions amount in aggregate to more than 67%
(sixty-seven percent) of the aggregate Contributions;
10.1.95. "INSURANCE ADVISER" means Sedgwick Limited acting through its
trading division Sedgwick Bankrisk;
10.1.96. "INSURANCE REPORT" means the insurance report dated 8 July
1998 prepared by the Insurance Adviser addressed to Chase
Manhattan International Ltd. on behalf of the Banks and the
Arrangers (as such terms were defined in the Original Facility
Agreement);
10.1.97. "INTELLECTUAL PROPERTY RIGHTS" means all know-how, patents,
trademarks, designs, trading names, copyrights and other
intellectual property rights (in each case whether registered
or not and including all applications for the same);
10.1.98. "INTERCONNECTION AGREEMENT" means each bilateral
interconnection agreement to be entered into between Partner
and each of Bezeq and the other telecommunications operators
in Israel;
10.1.99. "INTEREST" means:
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(a) interest and amounts in the nature of interest
(including the interest element of finance leases,
Linkage Differentials and any similar payment in
respect of indexation in each case with respect to
such interest);
(b) prepayment penalties or premiums incurred in
repaying or prepaying any Borrowing (including, for
the avoidance of doubt, amounts payable pursuant to
clause 19 (Broken Funding Indemnity) below));
(c) discount fees and acceptance fees payable or
deducted in respect of any Borrowing (including all
commissions payable in connection with any letter of
credit); and
(d) any net payment (or, if appropriate in the context,
receipt) under any interest rate hedging agreement
or instrument, taking into account any premiums
payable;
-21-
10.1.100. "INTEREST PAYMENT DATE" means the last day of an Interest
Period;
10.1.101. "INTEREST PERIOD" means:
(i) in relation to an Advance under Facility A, successive
periods of 3 (three) months, during the Availability
Period Facility A, and successive Quarters during the
period after the Availability Period Facility A;
provided that any Interest Period commencing before the
last day of the Availability Period Facility A shall end
no later than the last day of the Availability Period
Facility A;
(ii) in relation to an Advance under Facility B, the period
commencing on the date of the making of such Advance and
ending on the date on which Interest of the type payable
on such Advance would be paid or capitalised in
accordance with the customary practice of the relevant
Participating Bank; and
(iii) in relation to an Advance under Facility C, successive
periods of 3 (three) months during the Availability
Period Facility C and successive Quarters during the
period after the Availability Period Facility C;
provided that any Interest Period commencing before the
last day of the Availability Period Facility C shall end
no later than the last day of the Availability Period
Facility C;
provided that:
(a) each subsequent Interest Period shall commence on the
expiry of the previous one;
(b) any Interest Period which would otherwise end on a
non-Business Day shall end on the preceding Business
Day;
(c) an Interest Period for any Advance shall not extend
beyond: (A) the Repayment Date for such Advance; or (B)
the Termination Date applicable to its Facility; and
(d) in relation to any sums due and payable but unpaid by an
Obligor under the Facility Documents, "INTEREST PERIOD"
shall mean each period determined in accordance with
clause 8.3.1 below;
10.1.102. "INTEREST RATE HEDGE PROVIDER" means any counterparty to any
Interest Rate Hedging Agreement entered into by Partner;
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10.1.103. "INTEREST RATE HEDGING AGREEMENT" means any agreement entered
into by Partner for the purposes of entering into one or more
Interest Rate Hedging Transactions;
10.1.104. "INTEREST RATE HEDGING TRANSACTION" includes any rate swap
transaction, basis swap, forward rate transaction, commodity
swap, commodity option, equity or equity index swap, equity or
equity index option, interest rate option, cap transaction,
floor transaction, collar transaction or other similar
transaction (including any option with respect thereto and any
combination in respect thereof);
10.1.105. "LATEST DRAWDOWN REQUEST DATE" means:
(a) subject to paragraph (c) below, in respect of an Advance
denominated in NIS, the rate of Interest on which is
based on an on-call rate, prime rate or a fixed unlinked
rate: (i) for Advances, the aggregate amount of which
for any Participating Bank on any Drawdown Date does not
exceed the NIS equivalent of US $50,000,000 (fifty
million United States Dollars), the date falling 5
(five) Business Days prior to such Drawdown Date; and
(ii) for Advances, the aggregate amount of which for any
Participating Bank on any Drawdown Date equals or
exceeds the NIS equivalent of US $50,000,000
(fifty million United States Dollars), the date falling
10 (ten) Business Days prior to such Drawdown Date;
(b) in respect of an Advance denominated in NIS, the rate of
Interest on which is based on a fixed linked rate
(including the Bond Rate): (i) for Advances, the
aggregate amount of which for any Participating Bank on
any Drawdown Date does not exceed the NIS equivalent of
US $25,000,000 (twenty-five million United States
Dollars), the date falling 5 (five) Business Days prior
to such Drawdown Date; (ii) for Advances, the aggregate
amount of which for any Participating Bank on any
Drawdown Date equals or exceeds the NIS equivalent of
US $25,000,000 (twenty-five million United States
Dollars) but does not exceed the NIS equivalent of US
$50,000,000 (fifty million United States Dollars), the
date falling 10 (ten) Business Days prior to such
Drawdown Date; and (iii) for Advances, the aggregate
amount of which for any Participating Bank on any
Drawdown Date exceeds the NIS equivalent of US
$50,000,000 (fifty million United States Dollars), the
date falling 20 (twenty) Business Days prior to such
Drawdown Date;
-23-
(c) in respect of an Advance under Facility B denominated in
NIS, the Interest rate on which is based on an on-call
rate or prime rate: (i) for Advances, the aggregate
amount of which for any Participating Bank on any
Drawdown Date does not exceed the NIS equivalent of US
$25,000,000 (twenty-five million United States Dollars),
such Drawdown Date; (ii) for Advances, the aggregate
amount of which for any Participating Bank on any
Drawdown Date equals or exceeds the NIS equivalent of US
$25,000,000 (twenty-five million United States Dollars),
the Business Day prior to such Drawdown Date;
(d) in the case of an Advance denominated in US Dollars or
Euros:(i) for Advances, the aggregate amount of which
for any Participating Bank on any Drawdown Date does not
exceed the NIS equivalent of US $10,000,000 (ten million
United States Dollars), such Drawdown Date; (ii) for
Advances, the aggregate amount of which for any
Participating Bank on any Drawdown Date equals or
exceeds the NIS equivalent of US $10,000,000 (ten
million United States Dollars) but does not exceed the
NIS equivalent of US $25,000,000 (twenty-five million
United States Dollars), the date falling 3 (three)
Business Days prior to such Drawdown Date; (iii) for
Advances, the aggregate amount of which for any
Participating Bank on any Drawdown Date equals or
exceeds the NIS equivalent of US $25,000,000
(twenty-five million United States Dollars) but does not
exceed the NIS equivalent of US $50,000,000 (fifty
million United States Dollars), the date falling 5
(five) Business Days prior to such Drawdown Date; and
(iv) for Advances, the aggregate amount of which for any
Participating Bank on any Drawdown Date equals or
exceeds the NIS equivalent of US $50,000,000 (fifty
million United States Dollars), the date falling 10
(ten) Business Days prior to such Drawdown Date;
10.1.106. "LIBOR" means, with respect to each Advance, the rate per
annum (rounded upward, if necessary, to the nearest whole
multiple of 1/8% (one-eight of one percent)) for Dollar
deposits or Euro deposits, as the case may be, for a period
equal to 1 (one) month, 3 (three) months, 6 (six) months or 1
(one) year (as selected by Partner in the Drawdown Request for
such Advance (provided that, the period selected as aforesaid
does not exceed the term of such Advance) offered in the
London Interbank market, as quoted at or about 11:00 a.m.
(London time) on the Business Day falling 2 (two) Business
Days prior to the Drawdown Date for such Advance and if the
period of LIBOR selected by Partner as aforesaid is shorter
than the term of such
-24-
Advance, then also on the Business Day falling 2 (two)
Business Days prior to each 1 (one) month (in the case of
selection of a period of 1 (one) month) or, in other cases,
each subsequent Interest Period, falling within the term of
such Advance following expiry of each period selected by
Partner as aforesaid ("THE INTEREST DETERMINATION DATE") on
the display designated as page LIBOR 01 to
subscribers of the REUTERS service ("REUTERS") or, in the
absence of such page or pages, or if Reuters shall, for any
reason whatsoever, amend, change or otherwise alter the data
basis or the reference banks used by it on the date of
signature of this Agreement, for quotations under said page
LIBOR 01 , the rate of Interest as quoted at or about
11:00 a.m. London time on the relevant Interest Determination
Date on such other page or pages of Reuters as shall be
determined by an Instructing Group for a period equal to such
1 (one), 3 (three), 6 (six) or 12 (twelve) month period, as
the case may be (rounded upward, if necessary, to the nearest
whole multiple of 1/8% (one-eight of one percent));
10.1.107. "LICENCE" means the Licence dated 7 April, 1998 (and
terminating on 1 February 2022) granted to Partner for
providing mobile radio telephone services using the cellular
method together with a permit to install and use equipment in
the network and frequency allocation as, without derogating
from clause 16.26 (Licence) below or any other provision
hereof, may be amended from time to time;
10.1.108. "LINKAGE DIFFERENTIALS" means any amount to be added to the
principal of, or Interest in respect of, any Advance
denominated in NIS as a result of any increase in the Cost of
Living Index;
10.1.109. "LOAN" means, at any time, the aggregate Dollar Amount of Loan
A, Loan B and Loan C for the time being outstanding hereunder
or any of them as the context so requires and "LOANS" shall be
construed to mean each of them respectively;
10.1.110. "LOAN A" means at any time, the aggregate Dollar Amount for
the time being outstanding in relation to all Advances under
Facility A (including, for the removal of doubt, all Linkage
Differentials, if any, on such Advances);
10.1.111. "LOAN B" means at any time, the aggregate Dollar Amount for
the time being outstanding in relation to all Advances under
Facility B (including, for the removal of doubt, all Linkage
Differentials, if any, on such Advances);
-25-
10.1.112. "LOAN C" means, at any time, the aggregate Dollar Amount for
the time being outstanding in relation to all Advances under
Facility C (including, for the removal of doubt, all Linkage
Differentials, if any, on such Advances);
10.1.113. "MAINTENANCE AGREEMENT" means the system services contract
dated 29 May 1998 between Partner and Ericsson Radio Systems
A.B. as annexed to the Principal Supplier Contract;
10.1.114. "MARGIN" means:
(A) with respect to Facility A and Facility B:
(a) in relation to the Availability Period Facility A,
0.9% (nought point nine percent) per annum;
(b) in relation to the period from the expiry of the
Availability Period Facility A until the date on
which all amounts owing under the Facilities have
been repaid, 0.9% (nought point nine percent) per
annum; provided that: (1) in the event that for any
one year Ratio Period: (I) each of the Facility Debt
Cover Ratio, Total Debt Cover Ratio, Fixed Charge
Coverage Ratio and ADSCR for such one year Ratio
Period equals at least 135% (one hundred and
thirty-five percent) of such minimum ratio required
for such one year Ratio Period pursuant to clause
16.32 below; and (II) by the end of such Ratio
Period, Partner shall have repaid (disregarding, for
this purpose, any amount which has been repaid or
prepaid and is capable of being reborrowed under the
terms of this Agreement) to the Participating Banks
on account of the Facilities, an amount equal to at
least 50% (fifty percent) of the Total Commitments,
then, for the period from the Interest Payment Date
following receipt by the Participating Banks of the
Accounts for such year and confirmation by the
Coordinating Agent to Partner that the Margin may be
reduced in the manner set out in this subclause (A)
below until the date of publication of the Accounts
for the next succeeding one year Ratio Period only,
the Margin shall be 0.7% (nought point seven
percent); and (2) in the event that for any one year
Ratio Period: (I) each of the Facility Debt Cover
Ratio, Total Debt Cover Ratio, Fixed Charge Coverage
Ratio and ADSCR for such one year Ratio Period
equals at least 175% (one hundred and seventy-five
-26-
percent) of such minimum ratio required for such one
year Ratio Period pursuant to clause 16.32 below;
and (II) by the end of such Ratio Period, Partner
shall have repaid (disregarding, for this purpose,
any amount which has been repaid or prepaid and is
capable of being reborrowed under the terms of this
Agreement) to the Participating Banks on account of
the Facilities, an amount equal to at least 50%
(fifty percent) of the Total Commitments, then, for
the period from the Interest Payment Date following
receipt by the Participating Banks of the Accounts
for such year and confirmation by the Coordinating
Agent to Partner that the Margin may be reduced in
the manner set out in this subclause (A) below until
the date of publication of the Accounts for the next
succeeding one year Ratio Period only, the Margin
shall be 0.45% (nought point four five percent).
-27-
Provided that:
(i) if and for so long as an Event of Default
(including the non-payment of any amount when
due) has occurred and is continuing, the
Margin during such period shall be 2.9% (two
point nine) percent per annum; provided that,
if such Event of Default does not relate to
non-payment of any amount when due and the
Participating Banks waive their rights to
declare the Advances due and payable as a
result of such Event of Default, the Margin,
for so long as such Event of Default is
continuing, shall be 1.9% (one point nine
percent) per annum;
(ii) for the removal of doubt, the Margin may
increase and decrease in accordance with the
above; and
(iii) with regard to the Margin for the one year
Ratio Period of 2007 and, thereafter, the
Margin shall not be decreased unless it shall
have been decreased for the one year Ratio
Period of 2006.
The Coordinating Agent shall, within 10 (ten)
Business Days after receipt by it from Partner of
the Accounts for any one year Ratio Period, together
with all information required to determine the
ratios referred to above, deliver to Partner, with a
copy to the Participating Banks, a notice confirming
that the Margin shall be decreased, increased or
remain constant, all in accordance with (b) above;
provided that, if it transpires after delivery of
confirmation by the Coordinating Agent as aforesaid
that the Margin as specified in such confirmation is
in fact incorrect, then the correct Margin (as
determined in accordance with (b) above) shall be
applied retroactively with effect from the first
Interest Payment Date in respect of which the
correct Margin should have been applicable in
accordance with (b) above and each of the
Participating Banks shall reimburse Partner or, as
the case may be, Partner shall pay any shortfall to
each of the Participating Banks, resulting from such
incorrect Margin as aforesaid;
-28-
and
(B) with respect to Facility C, 1.25% (one point two five
percent) per annum; provided that, if and for so long as
an Event of Default (including the non-payment of any
amount when due) has occurred and is continuing, the
Margin during such period shall be 3.25% (three point
two five percent) per annum; provided further that, if
such Event of Default does not relate to non-payment of
any amount when due and the Participating Banks waive
their rights to declare the Advances due and payable as
a result of such Event of Default, the Margin, for so
long as such Event of Default is continuing, shall be
2.25% (two point two five percent) per annum;
10.1.115. "MATAV" means Matav-Cable Systems Media Limited, a company
incorporated in Israel with registered number ▇▇-▇▇▇▇▇▇-▇;
10.1.116. "MATERIAL ADVERSE EFFECT" means any effect which is or is
likely to be materially adverse to:
(a) the business or financial condition of the Group taken
as a whole; or
(b) the ability of any Obligor to perform its obligations in
any material respect under any of the Facility
Documents;
10.1.117. "MATERIAL CONTRACTS" means those Material Contracts set out in
SCHEDULE 5 (Material Contracts) hereto;
10.1.118. "MINISTRY" means the Ministry of Communications of the Israeli
Government;
10.1.119. "NET PROCEEDS" means the aggregate value of consideration
received by any Obligor or Obligors in respect of a sale,
transfer, loan or other disposal of assets (including shares
in other Group members) from an Obligor to any third party
which is not an Obligor after deduction of:
(a) all amounts paid or provided for or on account of
Taxes applicable to, or to any gain resulting from, the
disposal or the discharge of any liability secured on
the relevant assets; and
(b) all costs, fees, expenses and the like properly incurred
by continuing members of the Group in arranging and
effecting that disposal;
-29-
10.1.120. "NETWORK" means any network operated by the Group and operated
or run by it pursuant to the Licence (including all apparatus,
equipment and telecommunication systems of every description
which it is authorised to operate or run under the Licence);
10.1.121. "NUMBER OF SUBSCRIBERS" means, for any Ratio Period, the
actual number of Partner subscribers as at the last day of
such Ratio Period (for the removal of doubt, disregarding any
subscriber which shall have ceased to be a subscriber prior to
the end of such Ratio Period), as certified in writing by the
Auditors;
10.1.122. "OBLIGOR" means Partner and each Guarantor;
10.1.123. "ORIGINAL DOLLAR AMOUNT" means, in relation to:
(a) an Advance denominated in US Dollars, the amount thereof
as at the date of the making of such Advance; and
(b) an Advance denominated in NIS or Euros, the Dollar
equivalent thereof as at the date of the making of such
Advance;
10.1.124. "ORIGINAL FACILITY AGREEMENT" means the Facility Agreement
dated 13 August 1998 (as amended and restated by an Amendment
and Waiver Letter dated 21 October 1999 and by a letter dated
20 June 2000, but not by the Amending and Rescheduling
Agreement or any subsequent amendment) between, inter alia,
Partner and the Banks;
10.1.125. "PARTICIPATING BANKS" means:
(a) BLL, Israel Discount Bank Ltd., Bank Hapoalim, The First
International Bank of Israel Ltd., United Mizrahi Bank
Ltd. Mercantile Discount Bank Ltd. and Citibank N.A.;
and
(b) any financial institution which has become a party to
this Agreement in accordance with the provisions of this
Agreement
(in each case, other than one which has ceased to be a party
to this Agreement in accordance with the terms hereof and the
term "PARTICIPATING BANK" shall mean any of them) and any
reference to a "Participating Bank" shall, unless the context
otherwise requires, be deemed to include reference to such
Participating Bank, in its capacity as a Secured Interest Rate
Hedge Provider and, in the case of Israel
-30-
Discount Bank Ltd., as the Counterparty to the IDB Performance
Bond Counter Indemnity;
10.1.126. "PERMITTED BORROWING" means:
(a) Borrowing arising pursuant to the Facility Documents;
(b) Permitted Loan Capital;
(c) Borrowing or otherwise incurring Indebtedness by Partner
from banks and/or other financial institutions of up to
US $50,000,000 (fifty million United States Dollars),
otherwise than as permitted pursuant to paragraphs (a),
(b), (d)-(f) (inclusive) in respect of loans and
credits, performance guarantees and letters of credit;
provided that, the aggregate amount of such loans and
credits do not exceed US $25,000,000 (twenty-five
million United States Dollars) or its equivalent at any
time;
(d) Borrowing arising pursuant to Hedging Transactions
permitted pursuant to this Agreement;
(e) Borrowing created or subsisting with the prior written
consent of an Instructing Group; and
(f) Borrowing arising pursuant to the IDB Performance Bond
Counter Indemnity;
provided that, with respect to Borrowings referred to in
paragraphs (c), (d) (other than with respect to Borrowings
pursuant to Interest Rate Hedging Agreements with
-31-
counterparties which are Participating Banks and are thus
secured under the Security Documents) and (e) above:
(i) all such Borrowings received from any of the
Participating Banks shall be subordinated to the
Facilities as to collateral but may be secured by way of
second ranking collateral over those assets secured by
the Security Documents (ranking subordinate to the
rights of the Participating Banks, Israel Discount Bank
Ltd. (in respect of Borrowing arising pursuant to the
IDB Performance Bond Counter Indemnity) and the Security
Trustee in respect of the collateral created pursuant to
the Security Documents); and
(ii) Borrowings as aforesaid received from any source other
than from a Participating Bank shall not be secured by
any collateral whatsoever;
(iii) no payment shall be made in respect of Borrowings
referred to in paragraphs (c) (other than with respect
to performance guarantees and letters of credit) and (e)
above unless the conditions referred to in (b), (c), (d)
and (f) of clause 16.14 (Restricted Distribution) below
(provided that, for this purpose, the words "Potential
Event of Default" shall be deleted from (f) of the
definition of "Permitted Distribution" in clause 16.14
(Restricted Distribution) below) are fulfilled, it being
agreed that any such payment, for the purpose hereof, is
deemed to be a distribution for the purpose of clause
16.14 (Restricted Distribution) below; and
(iv) Partner shall notify all providers of such Borrowings of
the subordination conditions referred to in paragraphs
(i) to (iii) (inclusive) above;
10.1.127. "PERMITTED DISPOSALS" means:
(a) disposals in the ordinary course of business on or on
terms no less favourable to the Group than arm's-length
terms;
(b) disposals of assets in exchange for or for investment in
other assets performing substantially the same function
which are comparable or superior as to type, value and
quality;
(c) (i) disposals of shares of a Subsidiary on arm's length
terms where the business of that Subsidiary is not
carried on
-32-
pursuant to the Licence or required for the
efficient operation of the business of an Obligor
and such business has been, or is in the process of
being, terminated;
(ii)disposals of surplus, obsolete or redundant plant
and equipment or other assets, or of land or
buildings in connection with the termination of any
business or operation not carried on pursuant to the
Licence or not required for the efficient operation
of its business, in each case on arm's length terms;
(d) the expenditure of cash in payment for assets or
services acquired on arm's length terms in the course of
its business carried on in compliance with the terms of
the Facility Documents;
(e) the payment of Permitted Distributions in compliance
with the Facility Documents;
(f) the disposal of Intellectual Property Rights, in
compliance with clause 16.16 (Intellectual Property
Rights) below;
(g) disposals in connection with sale and leaseback
transactions permitted by clause 16.7 (Sale and
Leaseback) below;
(h) disposal of assets on arm's length terms not otherwise
permitted pursuant to (a) to (g) (inclusive), the Net
Proceeds of which aggregated with the Net Proceeds of
all other such disposals in any annual Accounting Period
do not exceed US $3,000,000 (three million United States
Dollars) or its equivalent; or
(i) any other disposal with the prior written consent of the
Facility Agent (acting on the instructions of an
Instructing Group);
10.1.128. "PERMITTED DISTRIBUTIONS" shall bear the meaning assigned to
such term in clause 16.14 (Restricted Distributions) below;
10.1.129. "PERMITTED ENCUMBRANCES" means any Encumbrance:
(a) constituted or evidenced by the Security Documents;
(b) arising by operation of law in the ordinary course of
business;
-33-
(c) over goods and documents of title to goods arising
in the ordinary course of letter of credit
transactions entered into in the ordinary course of
trade and not prohibited under the Facility
Documents;
(d) existing at the time of acquisition on or over any
asset acquired by it in the ordinary course of
business on arm's length terms after the Effective
Date, where such Encumbrance was not created in
contemplation of, or in connection with, the
acquisition, provided always that the amount secured
by such Encumbrance: (i) if a Borrowing, is a
Permitted Borrowing; and (ii) shall not increase
after the date of acquisition;
(e) constituting operating leases or hire purchase
arrangements affecting assets of any Obligor as
permitted by the Facility Documents;
(f) rising by way of rights of set-off arising by
operation of law;
(g) arising in relation to the netting of bank account
balances;
(h) arising by way of any retention of title of goods
supplied where such retention is agreed in the
ordinary course of its business;
(i) created (other than by way of a floating charge)
over specific assets or rights otherwise than
pursuant to paragraphs (a) to (h) above (inclusive)
securing Borrowings not exceeding an aggregate
amount of US $1,000,000 (one million United States
Dollars) (or its equivalent in other currencies);
(j) created, to the extent permitted, under paragraph
(i) of the definition of "Permitted Borrowings" as
referred to in clause 1.1.126 above;
10.1.130. "PERMITTED INVESTMENTS" means investments in the following:
(a) a demand or time deposit of any Participating Bank
or any other depositary institution or trust company
whose short term unsecured obligations are rated at
▇▇▇▇▇ "▇▇" by Standard & Poor's ("S&P") or at least
"P1" by ▇▇▇▇▇'▇ Investors Service Inc. ("MOODY'S");
-34-
(b) commercial paper issued by any Participating Bank or
rated on the date of acquisition thereof at ▇▇▇▇▇
"▇▇" by S&P or at least "P1" by Moody's;
(c) bonds, notes and/or securities issued or guaranteed
by either the Government of Israel or the Government
of the United States of America;
provided that, any investment made pursuant to paragraphs
(a) and (b) above:
(i) in or guaranteed by a single bank or other body
corporate in excess of US $20,000,000 (twenty
million United States Dollars) shall not be
permitted provided that this paragraph (i) shall not
apply to deposits; and
(ii) shall be denominated in either NIS or US Dollars;
10.1.131. "PERMITTED LOAN CAPITAL" means the aggregate amount of
Shareholder Loans and debentures (including, notes and
other similar debt instruments) issued privately or
publicly by Partner, all subject to the following
conditions:
(a) such Shareholder Loans and debentures shall be
subordinated to the rights of the Participating
Banks under the Facilities and to the rights of the
Participating Banks with respect to Borrowings
referred to in clause 1.1.126(c), (d), (e) and (f),
with respect to principal, Interest and all other
amounts payable under this Agreement, such
subordination, in the case of the debentures, to be
on terms and conditions satisfactory to an
Instructing Group and, in the case of the
Shareholder Loans, to be on the terms and conditions
set out in SCHEDULE 6 (Shareholder Loans) hereto;
(b) the aggregate maximum Dollar amount (or if not
denominated in US Dollars, the Dollar equivalent
thereof (from time to time)) of such debentures
shall at no time exceed US $300,000,000 (three
hundred million United States Dollars);
(c) the terms and conditions of such debentures
(including relating to covenants) shall be subject
to the prior written approval of an Instructing
Group, given through the Facility Agent. The
Participating Banks shall be entitled to withhold
their approval of any such terms and conditions in
their sole discretion, provided that, if an
Instructing Group is reasonably satisfied that
-35-
all of the restrictions imposed on Partner under the
proposed terms and conditions of such debentures are
less harsh to Partner than those applying under this
Agreement and the subordination of such debentures
is on terms and conditions satisfactory to an
Instructing Group as referred to in (a) above, then
the Participating Banks shall, subject to compliance
with the other provisions of this clause 1.1.131,
consent thereto. The Participating Banks shall,
within 10 (ten) Business Days of receipt of
documentation relating to the debentures as
aforesaid, which includes all the terms and
conditions of such debentures, respond to a request
from Partner for approval of such terms and
conditions;
(d) such Shareholder Loans and debentures shall:
(i) not contain any financial covenants, save for a
covenant enabling Partner to incur additional
indebtedness under such Shareholder Loans and
debentures (subject at all times to the maximum
amount specified in (b) above and, for the
removal of doubt, subject at all times to the
provisions of this Agreement restricting the
ability of Partner to incur Indebtedness), in
the event that the ratio of Partner's aggregate
Indebtedness to its consolidated EBITDA for its
most recent 4 (four) fiscal Quarters or for its
most recent 2 (two) fiscal Quarters (annualised)
meets the minimum ratio specified in such
Shareholder Loans or debentures; and
(ii)provide that if an event of default shall occur
under such debentures, no amount shall be
payable by Partner under the debentures until
such time as all amounts owing by Partner under
the Facilities have been paid in full;
(e) save by way of Permitted Distribution, no repayment
of whatsoever nature on account of Interest or
principal of any such Shareholder Loans or principal
of any such debentures shall be made prior to full
payment of all amounts owing by Partner under the
Facilities and of all amounts owing to the
Participating Banks with respect to Borrowings
referred to in clause 1.1.126(c), (d), (e) and (f);
(f) immediately following issue of any such debentures
and thereafter from time to time, Partner shall
deduct from the proceeds of each such debentures and
deposit in an account
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("THE RESERVE ACCOUNT") with one of the
Participating Banks, duly pledged in favour of the
Security Trustee (as trustee for itself and the
Secured Creditors pursuant to the Debenture), as
security for payment of all amounts under the
Facilities, such amounts so that at all times the
Reserve Account contains an aggregate amount equal
to scheduled Interest payments in respect of such
debentures for the immediately following 12 (twelve)
month period, all the aforegoing until the earlier
of: (i) 31 December 2003; or (ii) the date of
receipt by the Participating Banks of Accounts for
the first one year Ratio Period (if any) in respect
of which all the conditions have been met for
reducing the Margin with respect to Facility A and
Facility B to 0.45% (nought point four five percent)
per annum, in accordance with clause 1.1.114(A)(b)
above; and
(g) any such Shareholder Loans shall be subordinated to
any such debentures as aforesaid in this clause
1.1.131, on terms and conditions satisfactory to an
Instructing Group;
10.1.132. "PERMITTED SOURCES" means Permitted Borrowings referred to
in paragraphs (b), (c) and (e) of the definition of
"Permitted Borrowings", the proceeds from the issue by
Partner of share capital and Excess Cash Flow;
10.1.133. "POTENTIAL EVENT OF DEFAULT" means any event which would
(but for the passage of time, the giving of notice, the
making of any determination hereunder or any combination
thereof in each case as specified in clause 17 (Default)
below) be an Event of Default;
10.1.134. "PRINCIPAL SUPPLIER CONTRACT" means the turnkey contract
between Partner and Ericsson Radio Systems A.B. dated 29
May 1998 for the provision of the transmission and
switching equipment, cell site construction and value added
services platform and including, for the avoidance of
doubt, the terms and conditions of civil works annexed
thereto;
10.1.135. "PROPORTION" means, in relation to a Participating Bank at
any time, the proportion borne by its Contribution to the
aggregate Contributions outstanding at such time or, as the
case may be, its Contribution with respect to Facility A,
Facility B or Facility C, as the context requires, to the
aggregate Contributions under Facility A, Facility B or
Facility C at such time;
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10.1.136. "QUARTER" means each period commencing on the day after a
Quarter Day and ending on the next following Quarter Day;
10.1.137. "QUARTER DAY" means 31 March, 30 June, 30 September and 31
December in any year and "QUARTER DAY" means any of them;
10.1.138. "RATIO PERIOD" means: (i) each period of 6 (six) calendar
months ending on June 30, during the period of this
Agreement; and (ii) each period of 1 (one) calendar year
during the period of this Agreement; the periods referred
to in (i) are also referred to as "SIX MONTH RATIO PERIODS"
and the periods referred to in (ii) are also referred to as
"ONE YEAR RATIO PERIODS";
10.1.139. "REPAYMENT DATE" means in relation to an Advance, the date
on which the Duration Period for such Advance expires;
10.1.140. "REPRESENTATIVE RATE" means, with respect to any currency
other than NIS, the representative rate of exchange of the
NIS and such currency, last published by the Bank of Israel
immediately prior to the relevant date of payment or
calculation (as the case may be) and, if the Bank of Israel
shall cease to publish a representative rate, then any
other rate of exchange of the NIS and such currency,
officially published which comes in place of such
representative rate, last published immediately prior to
the relevant date of payment or calculation (as the case
may be) and in the absence of any such official rate, then
the average of the selling and buying rates of exchange of
such currency, for NIS (for cheques and remittances)
prevailing at the Facility Agent at the end of the last
Business Day prior to the relevant date of payment or
calculation (as the case may be);
10.1.141. "RESERVATIONS" means the reservations set out in SCHEDULE 7
(Reservations);
10.1.142. "RESERVE ACCOUNT" shall have the meaning ascribed to such
term in clause 1.1.131(f) above;
10.1.143. "RESTRICTED PERSON" means:
(a) the Shareholders, any Affiliate of a Shareholder or
any partnership in which any of the Shareholders or
any of their Affiliates is a partner (either
directly or through any intermediate partnerships);
or
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(b) any person of which a Shareholder is an Affiliate or
any partnership in which any such person is a
partner (either directly or through intermediate
partnerships); or
(c) any Subordinated Creditor or any Affiliate of a
Subordinated Creditor or any partnership in which a
Subordinated Creditor or any of their Affiliates is
a partner (either directly or through any
intermediate partnerships);
10.1.144. "RESTRICTED PURCHASE" means any payment (whether in cash,
property, securities or otherwise) on account of the
purchase, redemption, reduction or other acquisition or
retirement of any of the share capital of any member of the
Group not held by a member of the Group;
10.1.145. "SAC" means, for any Ratio Period, Partner's subscriber
acquisition costs paid or accrued during such Ratio Period,
being the sum of: (i) the costs paid or accrued during such
Ratio Period of acquisition by Partner of handsets and
accessories, less revenues received or receivable by
Partner during such Ratio Period from the sale of such
handsets and accessories; (ii) dealers' commissions and
other payments of a similar nature paid or accrued during
such Ratio Period in respect of the sale of handsets and
accessories; and (iii) preparation and distribution costs
paid or accrued during such Ratio Period for handsets and
accessories;
10.1.146. "SECURED CREDITORS" means the Security Trustee, the
Facility Agent, the Coordinating Agent, the Participating
Banks, the Arranger, Israel Discount Bank Ltd. (in respect
of the IDB Performance Bond Counter Indemnity), any Secured
Interest Rate Hedge Provider and any other persons who
shall have acceded to the Security Trust Deed (other than a
party which has ceased to be a party thereto in accordance
with the terms of the Security Trust Deed);
10.1.147. "SECURED INTEREST RATE HEDGE PROVIDER" shall bear the
meaning assigned to such term in clause 16.29(d) (Hedging
Agreements) below;
10.1.148. "SECURED INTEREST RATE HEDGING AGREEMENT" means each
Interest Rate Hedging Agreement where the counterparty is a
Participating Bank;
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10.1.149. "SECURITY DOCUMENTS" means those documents listed in
paragraphs (a)-(f), or contemplated by paragraph (g), of
SCHEDULE 8 (Security Documents);
10.1.150. "SECURITY TRUST DEED" means the security trust and
intercreditor agreement dated 18 August 1998;
10.1.151. "SHAREHOLDER LOANS" means the aggregate amount of
subordinated debt made available by way of loans from the
Shareholders (or any Affiliate thereof) from time to time
to Partner, which loans, in each case, are subordinated in
accordance with the provisions of Schedule 6 (Shareholder
Loans) hereto;
10.1.152. "SHAREHOLDERS" means the shareholders in Partner listed in
SCHEDULE 9 (Principal Shareholders in Partner) hereto or
their permitted successors or assigns (as permitted
pursuant to the terms of the Facility Documents);
10.1.153. "SHAREHOLDERS AGREEMENT" means the relationship agreement
between the shareholders of Partner dated 10 October, 1999;
10.1.154. "SHARE PLEDGES" means the pledges over shares and
Shareholder Loans granted by each of the Shareholders in
favour of the Security Trustee prior to the Commencement
Date, together with any other pledge given by any
Shareholder or any Affiliate at any time in favour of the
Security Trustee pursuant to the terms of any Facility
Document and "SHARE PLEDGE" means any of them;
10.1.155. "STRATEGIC INVESTOR" shall bear the meaning ascribed to
such term in clause 16.15 (Share Capital) below;
10.1.156. "SUBORDINATED CREDITOR" means any provider of Subordinated
Debt;
10.1.157. "SUBORDINATED DEBT" means Borrowing made available by any
person (other than Shareholders or their respective
Affiliates) from time to time to any Obligor which is
subordinated to the Facilities and all other obligations
secured under the Security Documents on terms and
conditions reasonably satisfactory to the Facility Agent
(acting on the instructions of an Instructing Group)
(including (if necessary) any consequential amendments
approved by an Instructing Group to the financial ratios
and covenants set out in this Agreement occasioned by the
nature of such Subordinated Debt) other than Shareholder
Loans;
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10.1.158. "SUBSIDIARY" of a company or corporation means any company
or corporation:
(a) which is controlled, directly or indirectly, by the
first-mentioned company or corporation;
(b) at least half the issued share capital of which is
beneficially owned, directly or indirectly, by the
first-mentioned company or corporation; or
(c) which is a Subsidiary of another Subsidiary of the
first-mentioned company or corporation
and, for these purposes, a company or corporation shall be
treated as being controlled by another if that other
company or corporation is able to direct its affairs and/or
to control the composition of its board of directors or
equivalent body;
10.1.159. "SUPPLIER CONTRACTS" means the Principal Supplier
Contract and the Maintenance Agreement and "SUPPLIER
CONTRACT" means any of them;
10.1.160. "TAX ON OVERALL NET INCOME" of a person shall be construed
as a reference to Tax (other than Tax deducted or withheld
from any payment) imposed on that person by any
jurisdiction on:
(a) the net income, profits or gains of that person
worldwide; or
(b) such of its income, profits or gains as arise in or
relate to the jurisdiction in which it is resident or
in which its principal office (and/or its Facility
Office) is located;
10.1.161. "TAXES" means all income and other taxes and levies,
imposts, duties, charges, deductions and withholdings in
the nature or on account of tax together with interest
thereon and penalties and fees with respect thereto, if
any, and any payments made on or in respect thereof, and
"TAX" and "TAXATION" shall be construed accordingly;
10.1.162. "TELECOMMUNICATIONS LAWS" means the Telecommunications Law
1982 of Israel (as amended) and all other Israeli laws,
statutes, regulations and judgments and all other laws
having effect in Israel relating to telecommunications
applicable to Partner and/or the business carried on by
Partner;
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10.1.163. "TERMINATION DATE" means: (a) in relation to Facility A,
the Facility A Maturity Date or, if earlier, the date upon
which the Available Facility A Commitment for each of the
Participating Banks is cancelled in full or reduced to
zero; (b) in relation to Facility B, 30 June 2008 or, if
earlier, the date upon which the Available Facility B
Commitment for each of the Participating Banks is cancelled
in full or reduced to zero; and (c) in relation to Facility
C, the Facility C Maturity Date or, if earlier, the date
upon which the Available Facility C Commitment for each of
the Participating Banks is cancelled in full or reduced to
zero;
10.1.164. "TOTAL COMMITMENTS" means the aggregate Commitments of all
the Participating Banks for all the Facilities;
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10.1.165. "TOTAL DEBT" means, for any Ratio Period, the sum of:
(i) the sum of the aggregate Contributions and
outstanding Interest under the Facilities, both as at
the last day of the Ratio Period;
(ii) the excess (if any) of supplier's credit over
current assets, as appearing in the Accounts for
such Ratio Period. For the removal of doubt, nothing
herein contained shall derogate from the provisions
of this Agreement prohibiting Borrowing, other than
Permitted Borrowing; and
(iii) the balance on the last day of the Ratio Period of:
(a) all Permitted Borrowings (other than as referred
to in clause 1.1.126(d) above and other than
Shareholder Loans (including, for the avoidance of
doubt, any Linkage Differentials in respect of such
balance)) and any Interest or other amounts payable
on account of such Permitted Borrowings, all or any
part of the principal of which Permitted Borrowings
is payable or repayable by Partner prior to the date
by which the Facilities shall have been repaid in
full pursuant to clause 5 (Repayment) below; and (b)
that amount of the principal of all Shareholder
Loans (including, for the avoidance of doubt, any
Linkage Differentials in respect of such amount)
which is payable or repayable by Partner prior to
the date by which the Facilities shall have been
repaid in full pursuant to clause 5 (Repayment)
below and any Interest or other amounts payable on
account of such Shareholder Loans; all the above as
set out in the Accounts in respect of such Ratio
Period to be delivered pursuant to the provisions of
this Agreement.
10.1.166. "TOTAL DEBT COVER RATIO" means in relation to each Ratio
Period, EBITDA after SAC for such Ratio Period, divided by
Total Debt;
10.1.167. "TRANSFER CERTIFICATE" means a certificate substantially in
the form set out in SCHEDULE 10 (Transfer Certificate)
signed by a Participating Bank and a Transferee whereby:
(a) such Participating Bank seeks to procure the transfer
to such Transferee of all or a part of such
Participating Bank's rights, benefits and obligations
hereunder as contemplated in clause 27.3 (Assignments
and Transfers by Participating Banks) below; and
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(b) such Transferee undertakes to perform the
obligations it will assume as a result of delivery
of such certificate to the Facility Agent as is
contemplated in clause 27.5 (Transfers by
Participating Banks) below;
10.1.168. "TRANSFER DATE" means, in relation to any Transfer
Certificate, the date for the making of the transfer as
specified in the schedule to such Transfer Certificate;
10.1.169. "TRANSFEREE" means a bank or other financial institution to
which a Participating Bank seeks to transfer all or part of
such Participating Bank's rights, benefits and obligations
hereunder and under the Facility Documents;
10.1.170. "UNUTILISED CASH ACCOUNT" means each account opened by
Partner for the purpose of payments contemplated under the
2.7 Letter; provided that, Partner shall maintain a
separate Unutilised Cash Account in relation to each
Shareholder, and "RELEVANT UNUTILISED CASH ACCOUNT" shall
be construed accordingly;
10.1.171. "VENTURE SUBSIDIARY" shall bear the meaning ascribed to
such term in clause 16.15 (Share Capital) below.
10.2. ACCOUNTS
10.2.1. All accounting expressions which are not otherwise defined
herein shall be construed in accordance with the Applicable
Accounting Principles.
10.2.2. Each of "ADSCR", "CAPITAL EXPENDITURE", "DEBT SERVICE",
"EBITDA AFTER SAC", "EXCESS CASH FLOW", "FACILITY DEBT
COVER RATIO", "FIXED CHARGE COVERAGE RATIO", "FINANCIAL
COSTS", "INTEREST", "SAC", "TOTAL DEBT" and "TOTAL DEBT
COVER RATIO" for any Ratio Period, shall be determined from
the non-consolidated Accounts of Partner for the period of
6 (six) months or 1 (one) year, as the case may be, ending
on the last day of such Ratio Period and delivered pursuant
to this Agreement (adjusted to the extent necessary to
determine compliance with clause 16.32 (Financial
Undertakings) below), or if not included in the Accounts,
shall be determined from a certificate signed by the
Auditors delivered to the Participating Banks together with
the Accounts. Without limiting the generality of the
aforegoing, Partner shall procure that the Accounts shall
include notes detailing all defined terms referred to above
and all elements of such terms, to the extent not
customarily detailed in the Accounts,
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including: (i) all expenses which have been capitalised;
(ii) all Interest scheduled to be paid during the relevant
Ratio Period to which such Accounts relate; (iii) all
scheduled repayments of principal of Borrowings; (iv)
supplier's credit; and (v) those Taxes paid during the
relevant Ratio Period and reserves made for Taxes but not
paid during such Ratio Period (without derogating from any
rights the Participating Banks may have arising from the
failure to comply with the aforegoing, in the event that
the Auditors fail to distinguish in a set of such Accounts
between Taxes paid and reserves for Taxes not paid during a
Ratio Period, then, for the purposes of any calculation to
be made in connection with clause 16.32 (Financial
Undertakings) below, all Taxes referred to in any such
Accounts shall be deemed to have been paid during the Ratio
Period in respect of which such Accounts were prepared).
All of the terms referred to in this clause 1.2.2 shall be
expressed in NIS (and if stated in another currency, the
equivalent thereof in NIS) unless the context otherwise
requires.
10.3. INTERPRETATION
Any reference in this Agreement to:
10.3.1. the "EQUIVALENT" on any given date in one currency (the
"FIRST CURRENCY") of an amount denominated in another
currency (the "SECOND CURRENCY") means the amount of the
first currency which could be purchased with the amount of
the second currency at: (i) in the case that one of the two
relevant currencies is NIS, the Representative Rate for the
other currency; or (ii) in the case that neither of the
relevant currencies is NIS, the rate equal to a fraction,
the numerator of which is the Representative Rate of the
second currency and the denominator of which is the
Representative Rate of the first currency;
10.3.2. the "FACILITY AGENT", "COORDINATING AGENT", "SECURITY
TRUSTEE", "ARRANGER", any "SECURED Creditor" or any
"PARTICIPATING BANK" shall be construed so as to include
its and any subsequent permitted successors, Transferees
and permitted assigns in accordance with their respective
interests;
10.3.3. a "LAW" includes any regulation, rule, official directive,
request or guideline (having the force of law) of any
governmental body, agency, department or regulatory,
self-regulatory or other authority or organisation,
including, without limitation, the position (guidelines) of
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the Examiner of Banks with respect to proper conduct of
bank affairs ("▇▇▇▇▇ Bankai Takin");
10.3.4. a "MONTH" is a reference to a period starting on one day in
a calendar month and ending on the numerically
corresponding day in the next succeeding calendar month
save that, where any such period would otherwise end on a
day which is not a Business Day, it shall end on the next
succeeding Business Day, unless that day falls in the
calendar month succeeding that in which it would otherwise
have ended, in which case it shall end on the immediately
preceding Business Day provided that, if a period starts on
the last Business Day in a calendar month or if there is no
numerically corresponding day in the month in which that
period ends, that period shall end on the last Business Day
in that later month;
10.3.5. a "PERSON" shall be construed as a reference to any person,
firm, company, corporation, government, state or agency of
a state or any association or partnership (whether or not
having separate legal personality) or two or more of the
foregoing;
10.3.6. any "SHAREHOLDER" shall be construed so as to include its
permitted and any subsequent permitted successors in
accordance with its respective interests;
10.3.7. "VAT" shall be construed as a reference to value added tax
including any similar tax which may be imposed in place
thereof from time to time;
10.3.8. a "WHOLLY-OWNED SUBSIDIARY" of a company or corporation
shall be construed as a reference to any company or
corporation which has no other members except that other
company or corporation and that other company's or
corporation's wholly-owned Subsidiaries or persons acting
on behalf of that other company or corporation or its
wholly-owned Subsidiaries;
10.3.9. the "WINDING-UP", "DISSOLUTION" or "ADMINISTRATION" of a
company or corporation shall be construed so as to include
any equivalent or analogous proceedings under the law of
the jurisdiction in which such company or corporation is
incorporated or any jurisdiction in which such company or
corporation carries on business including the seeking of
liquidation, winding-up, reorganisation, dissolution,
administration, arrangement, adjustment, protection or
relief of debtors;
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10.3.10. "INCLUDING" and "INCLUDES" means, including, without
limiting the generality of any description preceding such
terms.
10.4. CURRENCY SYMBOLS
10.4.1. "EURO" means the single currency introduced in the third
stage of economic and monetary issues pursuant to the
Treaty establishing the European Community, as amended from
time to time; and
10.4.2. "$", "USD", "DOLLARS", "US DOLLARS" and "DOLLARS" denote
the lawful currency of the United States of America. "NIS"
and "SHEQELS" denote the lawful currency of Israel.
10.5. STATUTES
Any reference in this Agreement to a statute shall be construed as
a reference to such statute as the same may have been, or may from
time to time be, amended or re-enacted.
10.6. AGREEMENTS
Save where the contrary is indicated, any reference in this
Agreement to this Agreement or any other agreement or document
shall be construed as a reference to this Agreement or, as the
case may be, such other agreement or document as the same may have
been, or may from time to time be, amended, varied, assigned,
novated or supplemented in accordance with the terms hereof.
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11. THE FACILITIES
11.1. THE FACILITIES
11.1.1. The Facilities granted to Partner hereunder by the
Participating Banks shall, with effect from the
Commencement Date and subject to the terms and conditions
of this Agreement, be as follows:
(a) a NIS and, subject to clause 2.1.2 below, US Dollar
and Euro multicurrency term loan facility in an
aggregate amount equal to the total Facility A
Commitments;
(b) a NIS and, subject to clause 2.1.2 below, US Dollar
and Euro multicurrency revolving loan facility in an
aggregate amount equal to the total Facility B
Commitments; and
(c) a NIS term loan facility in an aggregate amount in
NIS equivalent to the total Facility C Commitments.
11.1.2. For the purpose of this clause 2.1.2, "AMOUNT OF THE
OUTSTANDING A AND B ADVANCES" shall mean the aggregate
outstanding from time to time of: (i) the aggregate
Original Dollar Amounts of all outstanding Advances under
Facility A; and (ii) the aggregate of the Dollar Amounts
under Facility B of all Advances, including any Linkage
Differentials.
Notwithstanding anything contained in this Agreement to the
contrary, Partner shall procure that:
(a) not less than 60% (sixty percent) of an amount equal
to the Amount of the Outstanding A and B Advances
shall, at any time, be denominated and owing in NIS;
and
(b) not more than 40% (forty percent) of an amount equal
to the Amount of the Outstanding A and B Advances
shall, at any time, be denominated and owing in
Dollars or Euros; provided that not more than 35%
(thirty-five percent) of such amount which may be
denominated and owing in Dollars or Euros as
aforesaid, shall, at any time, be denominated and
owing in Euros.
For the removal of doubt, no Participating Bank shall be
bound to monitor or verify compliance by Partner with the
above. The failure
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by Partner to comply with the above provisions shall
constitute an Event of Default as referred to in clause 17
(Default) below.
11.2. CONVERSION OF OUTSTANDING ADVANCES
[Deleted.]
11.3. LENDERS' RIGHTS AND OBLIGATIONS
11.3.1. The obligations of each Participating Bank under this
Agreement shall be several.
11.3.2. The obligations of each Participating Bank (acting as such)
under this Agreement shall be to contribute its Available
Commitment in respect of each Facility to be advanced
hereunder. The failure by any Participating Bank to perform
any of its obligations under this Agreement, shall not
affect the obligations of Partner or any other
Participating Bank towards any other party hereto, nor
shall the Facility Agent, the Security Trustee, the
Arranger, the Coordinating Agent or any other Participating
Bank be liable or responsible for the failure by such
Participating Bank to perform its obligations under this
Agreement.
11.4. PURPOSE
Partner shall, subject to the terms of this Agreement, apply all
amounts borrowed by it under the Facilities for the purposes of:
11.4.1. financing the purchase of equipment, maintenance expenses,
operating losses and daily operating expenses properly
incurred in the establishment and operation of a wireless
telephone service, as contemplated by the Licence,
including capitalised financial expenses (if there is a
shortfall in Partner's cash flow after financial expenses)
and the financing of Partner's working capital needs for
its Business, as well as for the establishment and
operation of second and-a-half and third generation (known
as 2.5 and 3G) wireless telephone services, all as
contemplated in the version of the Business Plan dated 7
July 2002 delivered to the Facility Agent and the
Coordinating Agent on 11 July 2002; and
11.4.2. the subscription or acquisition of such share or loan
capital in companies which carry on business in the
telecommunications sector in accordance with and subject to
the limitations and restrictions set
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out in clause 16.37(a)
(Loans, Guarantees and Investments in Subsidiaries) below.
No Participating Bank shall be bound to monitor or verify the
application of any amount borrowed pursuant to this Agreement.
12. CONDITIONS PRECEDENT
[Deleted.]
13. DRAWDOWNS
13.1. FIRST DRAWDOWN REQUEST
[Deleted.]
13.2. DRAWDOWN REQUEST
A drawdown under the Facilities (including a drawdown constituting
a reborrowing permitted under this Agreement) shall be made by way
of delivery by Partner to the Participating Bank from whom it
wishes to receive an Advance (with, in the case of a Drawdown
under Facility A or Facility C, a copy thereof being
simultaneously delivered to the Coordinating Agent), of a duly
completed Drawdown Request. A Drawdown Request is irrevocable and
shall not be regarded as having been duly completed and delivered
unless:
13.2.1. it identifies the Facility to be utilised;
13.2.2. it identifies the Participating Bank from whom Partner
wishes to receive an Advance;
13.2.3. the amount of the Advance requested does not exceed the
Available Commitment in relation to the Facility requested
of the relevant Participating Bank;
13.2.4. it is received not later than 12 noon (
Tel-Aviv time) on
the Latest Drawdown Request Date;
13.2.5. the proposed date for the making of such Advance is a
Business Day and, in the case of: (i) Facility A (other
than a drawdown in respect of a reborrowing permitted under
this Agreement) is within the Availability Period Facility
A; or (ii) Facility C (other than a
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drawdown in respect of a reborrowing permitted under this
Agreement) is within the Availability Period Facility C;
13.2.6. with respect to Facility A and Facility B, without
derogating from clause 2.1.2 above, the currency of the
Advance requested is Dollars, Euros or NIS and, with
respect to Facility C, the currency of the Advance
requested is NIS;
13.2.7. in the case of a Facility A Advance or a Facility C
Advance, the proposed Original Dollar Amount of such
Advance is a minimum amount of US $10,000,000 (ten million
United States Dollars);
13.2.8. in the case of a Facility B Advance, the proposed Original
Dollar Amount of such Advance is a minimum amount of US
$3,000,000 (three million United States Dollars); provided
that: (a) in the case of a Facility B Advance drawn for the
purposes only of paying Interest (whether in respect of
Facility A or Facility B) during the Availability Period
Facility A or of paying Interest in respect of Facility C
during the Availability Period Facility C which, in each
case, is applied immediately after such drawing in payment
of such Interest, such minimum requirement shall not be
applicable; and (b) any Participating Bank may, with
respect to any Facility B Advance, agree with Partner that
such Advance shall be in an amount less than the minimum as
aforesaid;
13.2.9. no Event of Default or Potential Event of Default hereunder
has occurred and is continuing which has not been waived by
an Instructing Group in accordance with the terms of this
Agreement and no Event of Default or Potential Event of
Default shall occur as a result of such Advance and the
representations and warranties referred to in clause 15
(Representations and Warranties) below which are deemed to
be repeated pursuant to the terms thereof are true and
accurate in all respects on and as of the proposed date for
the making of such Advance by reference to the facts and
circumstances then existing;
13.2.10. no Change of Ownership has occurred.
13.3. PARTICIPATING BANK'S PARTICIPATION
If the conditions set out in clause 4.2 (Drawdown Request) above
have been met in relation to a Drawdown Request, then, subject to
the provisions of this Agreement, the Participating Bank from whom
such Advance was requested under such Drawdown Request shall
advance (subject to the
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proviso set out in this clause 4.3) to Partner the amount
requested in such Drawdown Request under its Available Facility A
Commitment, Available Facility B Commitment or Available Facility
C Commitment, as applicable, such Advance to be governed by the
terms of this Agreement and by such other terms and conditions,
including relating to types of Advances, commissions and other
terms relating to banking facilities (to the extent that such
other terms and conditions are not inconsistent with the terms and
conditions of this Agreement) as are agreed to between Partner and
such Participating Bank with respect to such Advance; provided
that, for the avoidance of doubt, if the relevant Available
Commitment of the relevant Participating Bank is reduced in
accordance with the provisions hereof after the relevant
Participating Bank has received such Drawdown Request, then the
amount of such Advance shall be reduced accordingly.
13.4. NOTIFICATION OF ADVANCE
[Deleted.]
13.5. OUTSTANDINGS IN PROPORTION TO COMMITMENTS
Notwithstanding anything to the contrary in this Agreement,
Partner shall procure that its drawdowns of Advances from each
Participating Bank under each of the Facilities and its repayments
and prepayments to each Participating Bank under each of the
Facilities, are made in proportion to such Participating Bank's
Commitment with respect to such Facility, such that: (a) with
respect to each of Facility A and Facility C, at all times, the
Proportion of such Participating Bank with respect to such
Facility is equal to the proportion which such Participating
Bank's Commitment in respect of such Facility constitutes of the
aggregate Commitments for such Facility; and (b) with respect to
Facility B, as at the last day of each Quarter, the Proportion of
such Participating Bank with respect to Facility B is equal to the
proportion which such Participating Bank's Commitment in respect
of Facility B constitutes of the aggregate Commitments for
Facility B. For the removal of doubt, no Participating Bank shall
be bound to monitor or verify compliance by Partner with the
above.
14. REPAYMENT
14.1. REPAYMENT OF FACILITY A LOAN
14.1.1. As from the expiry of the Availability Period Facility A,
each Participating Bank's Commitment for Facility A shall
be reduced, on each Quarter Date, to the amount set out
opposite its name, in relation to such Quarter Date, in
PART A of SCHEDULE 15 (Reduction of
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Facility A) (each such Quarter Date, "A FACILITY A
COMMITMENT REDUCTION DATE").
(a) Partner shall, on or before each Facility A
Commitment Reduction Date, repay to each
Participating Bank Advances in an aggregate amount,
such that after such repayment, the aggregate
Original Dollar Amount of all outstanding Advances
made by such Participating Bank under Facility A,
equals or is less than the amount set out opposite
such Participating Bank's name in Part A of Schedule
15 (Reduction of Facility A) on such Facility A
Commitment Reduction Date. For the removal of doubt:
(i) all Advances repaid as aforesaid shall be repaid
together with Interest, Linkage Differentials and
other amounts (if any) payable to each such
Participating Bank under such Facility in respect of
such Advances; and (ii) Partner, in making all
repayments, shall comply with clause 4.5(a)
(Outstandings in Proportion to Commitments--Facility
A) above.
(b) Without derogating from clause 5.1.2(a) above,
Partner shall repay to each Participating Bank that
has made an Advance under Facility A, such Advance
(together with Interest thereon, Linkage
Differentials and other amounts (if any) payable to
such Participating Bank in relation to such Advance
under this Agreement) on the Repayment Date for such
Advance.
(c) Subject to clause 5.1.1 above, Partner shall be
entitled to reborrow under Facility A, an amount up
to the Original Dollar Amount (or, if such
reborrowing shall be denominated in NIS or Euro, the
equivalent thereof at the date of such reborrowing)
of all Advances repaid pursuant to clause 5.1.2(b)
from the Participating Bank to whom such repayment
was made; provided that, such reborrowing is within
such Participating Bank's Available Commitment for
Facility A at the time of such reborrowing.
(d) Any part of any Commitment under Facility A of a
Participating Bank which remains undrawn at the end
of the Availability Period Facility A, shall be
automatically and immediately cancelled.
14.2. REPAYMENT OF FACILITY B LOAN
14.2.1. Partner shall repay to each Participating Bank each
outstanding Advance made by a Participating Bank under
Facility B (together with
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Interest, Linkage Differentials and other amounts (if
any) payable to each such Participating Bank under
Facility B with respect to such Advance) on its
Repayment Date. For the removal of doubt, all
outstanding Advances under Facility B (together with
Interest, Linkage Differentials and other amounts (if
any) payable with respect to such Advances) shall be
repaid by no later than 30 June 2008.
14.2.2. Subject to the provisions of this clause 5.2.2 below, if
before 12 noon
Tel-Aviv time on the Latest Drawdown Request
Date before the Repayment Date of an Advance made by a
Participating Bank under Facility B ("THE ORIGINAL
ADVANCE"), Partner has not:
(a) delivered a Drawdown Request to the relevant
Participating Bank under Facility B in accordance
with clause 4.2 (Drawdown Request) above, for a new
Advance in respect of the Original Advance made by
such Participating Bank; or
(b) notified the relevant Participating Bank that it
proposes to repay the Original Advance on its
Repayment Date without requesting such Participating
Bank for a new Advance under Facility B in respect
of the Original Advance made by such Participating
Bank,
then a duly completed Drawdown Request shall be deemed to
have been delivered to the relevant Participating Bank, in
accordance with clause 4.2 (Drawdown Request), for an
Advance ("THE NEW ADVANCE") under Facility B and in the
same principal amount (together with all Linkage
Differentials in respect thereof, if applicable), Duration
Period and currency of denomination and based on the same
type of rate of Interest as the Original Advance, save
that:
(i) that part of the rate of Interest of the New Advance
based on Cost of Funds (as referred to in clause 8.1
(Interest Rate) below) of the relevant Participating
Bank shall be determined by such Participating Bank
in relation to such Participating Bank's Cost of
Funds for making Advances of the same type, amount,
duration and currency denomination as the deemed New
Advance as at the date such New Advance is deemed to
have been made and, for the removal of doubt, the
Margin shall be that prevailing during such new
Duration Period;
(ii) if, on the date such New Advance is made, the
Original Dollar Amount of such New Advance exceeds
the Available Commitment of the relevant
Participating Bank under
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Facility B, Partner shall,
on such date, pay to the relevant Participating
Bank, an amount equal to the amount by which such
New Advance would (but for the operation of this
paragraph (ii)) exceed such Available Commitment and
the New Advance shall be the amount of the Available
Facility B Commitment of such Participating Bank;
and
(iii) no Advance shall be made pursuant to this clause
5.2.2 if the Duration Period in respect of such
Advance shall extend beyond 30 June 2008; and
(iv) no Advance shall be made pursuant to this clause
5.2.2, unless the provisions of clause 4.2.9 above
have been complied with in respect of such Advance.
14.3. REPAYMENT OF FACILITY C LOAN
14.3.1. As from the expiry of the Availability Period Facility C,
each Participating Bank's Commitment for Facility C shall
be reduced, on each Quarter Date, to the amount set out
opposite its name, in relation to such Quarter Date, in
Part B of Schedule 15 (Reduction of Facility C) (each such
Quarter Date, "A FACILITY C COMMITMENT REDUCTION DATE").
(a) Partner shall, on or before each Facility C
Commitment Reduction Date, repay to each
Participating Bank Advances in an aggregate amount,
such that after such repayment, the aggregate
Original Dollar Amount of all outstanding Advances
made by such Participating Bank under Facility C,
equals or is less than the amount set out opposite
such Participating Bank's name in PART B of SCHEDULE
15 (Reduction of Facility C) on such Facility C
Commitment Reduction Date. For the removal of doubt:
(i) all Advances repaid as aforesaid shall be repaid
together with Interest, Linkage Differentials and
other amounts (if any) payable to each such
Participating Bank under such Facility in respect of
such Advances; and (ii) Partner, in making all
repayments, shall comply with clause 4.5(a)
(Outstandings in Proportion to Commitments--Facility
C ) above.
(b) Without derogating from clause 5.3.2(a) above,
Partner shall repay to each Participating Bank that
has made an Advance under Facility C, such Advance
(together with Interest thereon, Linkage
Differentials and other amounts (if any) payable to
such
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Participating Bank in relation to such Advance
under this Agreement) on the Repayment Date for such
Advance.
(c) Subject to clause 5.3.1 above, Partner shall be
entitled to reborrow under Facility C, an amount up
to the NIS equivalent of the Original Dollar Amount
as at the date of such reborrowing, of all Advances
repaid pursuant to clause 5.3.2(b) from the
Participating Bank to whom such repayment was made;
provided that, such reborrowing is within such
Participating Bank's Available Commitment for
Facility C at the time of such reborrowing.
(d) Any part of any Commitment under Facility C of a
Participating Bank which remains undrawn at the end
of the Availability Period Facility C, shall be
automatically and immediately cancelled.
14.4. CURRENCY OF REPAYMENT
All repayments shall be made in the currency in which the relevant
Advance was made.
15. VOLUNTARY PREPAYMENT AND REBORROWING
15.1. PREPAYMENT
Partner may, in the manner set out below, prepay a Participating
Bank in whole or in part, any outstanding Advances made by such
Participating Bank; provided that such prepayments are made in
such a manner so as to ensure compliance by Partner with clause
4.5 (Outstandings in Proportion to Commitments) above.
15.2. CONDITIONS TO PREPAY
No prepayment may be made under clause 6.1 (Prepayment) above
unless:
15.2.1. Partner shall have given due notice to the relevant
Participating Bank (with a copy thereof being sent
simultaneously to the Facility Agent and the Coordinating
Agent). Such notice must specify the date or dates upon
which the prepayment is to be made, the amount of the
prepayment and the currency of the outstanding Advance to
be prepaid as aforesaid and must be given at least:
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(i) in respect of a prepayment to a Participating Bank
of up to US $25,000,000 (twenty-five million United
States Dollars) (or the Dollar equivalent thereof),
10 (ten) days prior to such prepayment;
(ii) in respect of a prepayment to a Participating Bank
of between US $25,000,000 (twenty-five million
United States Dollars) and US $50,000,000 (fifty
million United States Dollars) (or the Dollar
equivalent thereof), 15 (fifteen) days prior to such
prepayment;
(iii) in respect of a prepayment to a Participating Bank
of between US $50,000,000 (fifty million United
States Dollars) and US $75,000,000 (seventy-five
million United States Dollars) (or the Dollar
equivalent thereof), 25 (twenty-five) days prior to
such prepayment; or
(iv) in respect of a prepayment to a Participating Bank
in excess of US $75,000,000 (seventy-five million
United States Dollars) (or the Dollar equivalent
thereof), 30 (thirty) days prior to such prepayment;
15.2.2. in the event that such prepayment is to be funded from
Permitted Sources, there is attached to such notice a
certificate of Partner, in the form set out in SCHEDULE 16
(Certificate by Partner's Chief Financial Officer) signed
by the Chief Financial Officer of Partner, confirming that
all the monies to be utilised by Partner to make the
relevant prepayment are from Permitted Sources and
specifying details of the relevant Permitted Source; and
15.2.3. such prepayment shall be in a minimum amount of US
$5,000,000 (five million United States Dollars) or the
Dollar equivalent thereof, as applicable.
15.3. EFFECTS OF NOTICE OF PREPAYMENT
15.3.1. A notice of prepayment given by Partner to a Participating
Bank, as referred to in clause 6.2 (Conditions to Prepay)
above, shall be irrevocable and shall oblige Partner to
make the relevant prepayment on the date specified therefor
in such notice of prepayment.
15.3.2. All prepayments shall be made together with: (a) any
accrued but unpaid Interest on the amount being prepaid
(including all amounts payable on account of broken funding
as referred to in clause 19
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(Broken Funding) below); (b) a prepayment commission equal
to 0.1% (nought point one percent) of the amount of the
Advance prepaid, for each 12 (twelve) months by which the
date of prepayment is earlier than the relevant Repayment
Date, pro rata for part of 12 (twelve) months; and (c) if
such prepayment is made other than from Permitted Sources:
(i) with respect to Advances under Facility A or Facility
B, a commission at a rate equal, if prepaid during the
Availability Period Facility A, to 0.5% (nought point five
percent) of the amount being prepaid; or if prepaid after
the Availability Period Facility A, such percentage reduced
annually by 0.1% (nought point one percent) per annum, such
that if prepayment is made during the first year after the
Availability Period Facility A, such commission will be
0.4% (nought point four percent) of the amount of the
prepayment, if a prepayment is made during the second year
after the Availability Period Facility A, such commission
will be 0.3% (nought point three percent) and so on and so
forth; provided that, such percentage shall in no event be
less than 0.1% (nought point one percent); and (ii) with
respect to Advances under Facility C, a commission at a
rate equal, if prepaid during the Availability Period
Facility C, to 0.5% (nought point five percent) of the
amount being prepaid; or if prepaid after the Availability
Period Facility C, such percentage reduced annually by 0.1%
(nought point one percent) per annum, such that if
prepayment is made during the first year after the
Availability Period Facility C, such commission will be
0.4% (nought point four percent) of the amount of the
prepayment, if a prepayment is made during the second year
after the Availability Period Facility C, such commission
will be 0.3% (nought point three percent) and so on and so
forth; provided that, such percentage shall in no event be
less than 0.1% (nought point one percent).
15.3.3. A prepayment of an Advance shall be made in the currency in
which such Advance was made.
15.3.4. A prepayment of an Advance shall be made together with all
Linkage Differentials and other amounts, if any, accrued in
connection with such Advance.
15.3.5. Partner shall not repay all or any part of the Loans,
except at the times and in the manner expressly provided in
this Agreement.
15.4. REBORROWING
15.4.1. Subject to clause 4.5 above, Partner shall be entitled: (a)
until the Facility A Maturity Date, to reborrow, under
Facility A, the Original
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Dollar Amount of all Advances prepaid from Permitted
Sources, from the Participating Bank to whom such
prepayment was made; provided that, such reborrowing is
within such Participating Bank's Available Facility A
Commitment at the time of such reborrowing; and (b) until
the Facility C Maturity Date, to reborrow, under Facility
C, the Original Dollar Amount of all Advances prepaid from
Permitted Sources, from the Participating Bank to whom such
prepayment was made; provided that, such reborrowing is
within such Participating Bank's Available Facility C
Commitment at the time of such reborrowing.
15.4.2. Save as expressly set out in clause 6.4.1 above and clause
7.2.2 below, Partner may not reborrow any part of Facility
A or Facility C which is prepaid.
15.4.3. (a) Partner may, by giving to the Facility Agent not
less than 5 (five) Business Days' prior notice to
that effect, cancel the whole or any part of any
Facility, any such cancellation to reduce the
Available Commitments of each of the Participating
Banks under such Facility pro rata to their
respective Commitments under such Facility.
(b) Any notice of cancellation given by Partner as
aforesaid shall be irrevocable and shall specify the
date upon which such cancellation is to be made, the
Facility to be cancelled and the amount of such
cancellation.
(c) Partner shall not be entitled to borrow any amount
of a Facility which has been cancelled.
15.4.4. Any part of Facility B which is prepaid or repaid may be
reborrowed in accordance with the terms of this Agreement;
provided that, such reborrowing is within such
Participating Bank's Available Facility B Commitment at the
time of such reborrowing.
16. MANDATORY PREPAYMENT
16.1. NON-COMPLIANCE WITH CORRECTIVE MILESTONES
[Deleted.]
16.2. DISPOSALS
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16.2.1. If Partner sells, transfers, lends, leases or otherwise
disposes of any of its assets (including securities Partner
holds (directly or indirectly) in any Subsidiary (for the
removal of doubt, subject to any such disposal being
permitted under the Facility Documents)), Partner shall
prepay an amount equal to the Net Proceeds resulting from
such sale, transfer, loan, lease or disposal (provided such
Net Proceeds are greater than US $1,000,000 (one million
United States Dollars) or its equivalent and, when
aggregated with any other Net Proceeds received during the
Financial Year in which the relevant Net Proceeds are
received, exceed an aggregate amount equal to US $2,500,000
(two million five hundred thousand United States Dollars)
or its equivalent) on the next Business Day after receipt
of Net Proceeds from such sale, transfer, loan, lease or
disposal.
For the purposes of this clause 7.2.1, in the event that
any such sale of assets is made for full value for cash and
that the proceeds of such sale have been applied within 30
(thirty) days after such sale in the acquisition or
improvement of assets of the Business, then such sale of
assets shall not constitute a disposal.
16.2.2. A mandatory prepayment made under clause 7.2.1 above, shall
be capable of being reborrowed; provided that, such
reborrowing is within the relevant Participating Bank's
Available Facility A Commitment or Available Facility C
Commitment, as applicable, at the time of such reborrowing.
16.3. INVESTMENT BY PARTNER IN SUBSIDIARIES
In the event Partner makes any investment, whether by way of share
or loan capital (including guarantees) in any Subsidiary in the
manner permitted under 16.37(a) (Loans, Guarantees and Investments
in Subsidiaries) below which exceeds, in the aggregate, US
$5,000,000 (five million United States Dollars) or its equivalent,
and: (i) such investment was funded, directly or indirectly, from
the proceeds of the Facilities; and (ii) Partner raises financing,
at any time, by way of Permitted Loan Capital comprising
debentures, Partner shall, within 10 (ten) Business Days after
raising any such Permitted Loan Capital comprising debentures,
mandatorily prepay to the Participating Banks all amounts raised
as aforesaid until an amount equal to such excess over US
$5,000,000 (five million United States Dollars) (together with all
Interest, Linkage Differentials and other amounts accrued in
connection therewith) has been prepaid. For the removal of doubt,
a mandatory prepayment made under this clause 7.3 shall be capable
of being reborrowed, provided that, such reborrowing is within the
relevant Participating Bank's Available Facility A Commitment or
Available Facility C Commitment, as the case may be, at the time
of such reborrowing.
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16.4. TERMS FOR MANDATORY PREPAYMENT
16.4.1. Unless specifically otherwise stated in this Agreement,
Partner shall not be entitled to reborrow any amount
mandatorily prepaid.
16.4.2. In making a mandatory prepayment under this clause 7,
Partner shall:
(a) make proportional prepayments to each of the
Participating Banks in accordance with clause 4.5
(Outstandings in Proportion to Commitments) above;
(b) without derogating from (a) above, be at liberty to
choose on account of which Facility or Facilities
any such mandatory prepayment is being made,
provided that:
(i) Partner shall give notice to the Facility
Agent and to each of the Participating Banks
as soon as reasonably practicable (and, in
any event, at least 1 (one) Business Day
before the date Partner is obliged to make
any such prepayment) containing details of
all amounts to be prepaid as aforesaid and
the amount and currency of the Advances to be
prepaid to the Participating Banks on a
Facility-by-Facility basis;
(ii) in effecting any such mandatory prepayment,
Partner shall ensure that the amount of any
Advances outstanding to any Participating
Bank under any Facility is not greater than
such Participating Bank's Available Facility
A Commitment, Available Facility B Commitment
or Available Facility C Commitment (as the
case may be); and
(iii) any mandatory prepayment shall be made
together with any accrued but unpaid Interest
on the amount being prepaid (including
amounts payable on account of broken funding
as referred to in clause 19 (Broken Funding)
below), Linkage Differentials and all other
amounts accrued in connection with such
amount being prepaid; and
(c) in the event that Partner shall fail to elect to
make a choice as referred to in clause 7.4.2 above
in respect of any particular mandatory prepayment,
then any such prepayment shall be paid to the
Participating Banks pro rata to, and on account of,
the
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Original Dollar Amount of their respective
outstanding Advances under each of Facility A and
Facility C and pro rata as amongst each of such
Advances, as at the date immediately before such
mandatory prepayment is payable under the
Facilities.
16.4.3. A mandatory prepayment of an Advance shall be made in the
currency in which such Advance was made.
17. INTEREST
17.1. INTEREST RATE
The rate of Interest on each Advance made under the Facilities for
each Interest Period will be the percent per annum which is the
aggregate of:
17.1.1. the Margin (with respect to the relevant Facility); and
17.1.2. the Cost of Funds of the applicable Participating Bank in
providing the relevant Advance.
"COST OF FUNDS" shall mean, in relation to an Advance, the rate of
Interest which is deemed by the relevant Participating Bank,
providing such Advance, as reflecting such Participating Bank's
cost, before the application of any margin, for the purpose of
determining the rate of Interest to be charged by such
Participating Bank in respect of loans of the same type as the
Advance requested under the relevant Drawdown Request, to its
customers in amounts similar to the amount requested as aforesaid
and for similar periods as such drawing; provided that, with
respect to NIS denominated Advances requested from a Participating
Bank under a Drawdown Request designating that the applicable
Interest rate be a fixed linked Interest rate, Partner shall be
entitled on the date that it is notified by such Participating
Bank of its Cost of Funds for such Advance, to notify such
Participating Bank that instead of such Cost of Funds, as
notified, the Cost of Funds shall be the Bond Rate. For the
removal of doubt, in the event that a Participating Bank shall
determine its Cost of Funds for any Advance under Facility A or
Facility B on the basis of LIBOR, "LIBOR" shall have the meaning
assigned to such term in clause 1.1.106 above.
17.2. PAYMENT OF INTEREST
Partner shall pay to each Participating Bank in respect of each
Advance made by such Participating Bank all Interest accruing on
such Advance
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during any Interest Period on the Interest Payment Date for such
Interest Period.
17.3. DEFAULT INTEREST
17.3.1. If Partner fails to pay any sum payable by it to a
Participating Bank under a Facility Document on account of
repayment or prepayment of an Advance, Interest thereon or
Linkage Differentials or otherwise any other sum payable
under any Facility Document (any such sum, "AN UNPAID SUM")
on its due date, Interest shall accrue, notwithstanding
that any Event of Default arising from such failure may be
subsequently waived by the Participating Banks, on such
unpaid sum from the due date up to the date of actual
payment at the rate of Interest referred to in clause 8.1
(Interest Rate); provided that, if such unpaid sum is on
account of:
(a) an Advance, or Linkage Differentials thereon (not
constituting Interest), the Margin shall, for the
removal of doubt, be, in relation to an Advance (or
Linkage Differentials, as aforesaid, thereon) under
Facility A or Facility B (or Linkage Differentials,
as aforesaid, thereon), 2.9% (two point nine
percent) or, if such Event of Default does not
relate to the non-payment of monies and the
Participating Banks waive their rights to declare
the Advances due and payable as a result of such
Event of Default as aforesaid, then 1.9% (one point
nine percent) or, in relation to an Advance under
Facility C (or Linkage Differentials, as aforesaid,
thereon), 3.25% (three point two five percent) or,
if such Event of Default does not relate to the
non-payment of monies and the Participating Banks
waive their rights to declare the Advances due and
payable as a result of such Event of Default as
aforesaid, then 2.25% (two point two five percent);
or
(b) Interest, then such unpaid sum shall be deemed, for
the purposes of calculating Interest as aforesaid,
an Advance of the same type and currency and from
the same Facility as that on which such Interest had
accrued; or
(c) any amount payable under any Facility Document (save
for repayment or prepayment of an Advance, Interest
thereon or Linkage Differentials), then such unpaid
sum shall be deemed, for the purpose of calculating
Interest as aforesaid, an Advance under Facility B,
denominated in the same currency in which such
unpaid sum is payable and of such type as the
relevant Participating Bank, acting reasonably, may
elect);
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provided that, if such unpaid sum, failed to be paid as
aforesaid, remains owing after the relevant Repayment Date,
Interest Payment Date or due date, as the case may be, or
if such unpaid sum is, pursuant to this Agreement due and
payable, then the relevant Participating Bank shall be
entitled to determine its Cost of Funds (as referred to in
clause 8.1 (Interest Rate) above) on the unpaid sum as at
the date such sum became due and payable, as if the unpaid
sum had, during the period of non-payment, constituted an
Advance made by such Participating Bank of the same type,
in the same currency and under the same Facility as such
unpaid sum is on account of (or if such unpaid sum is not
on account of any Advance, Linkage Differentials or
Interest thereon, then such unpaid sum shall be deemed to
be on account of an Advance under Facility B, denominated
in the currency and of such type as referred to in
paragraph (c) above of this clause 8.3.1) on such date and
on the first day of each Interest Period (as defined below)
therefor. The period beginning on such due date and ending
on the date of actual payment shall be divided into
successive periods, each of which (other than the first)
shall start on the last day of such preceding period and
the duration of which shall be selected by the relevant
Participating Bank (such periods, "INTEREST PERIODS"). Any
Interest accruing under this clause 8.3 shall be
immediately due and payable by Partner on demand of the
relevant Participating Bank.
17.3.2. 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.
17.3.3. Reference to a "Participating Bank" and/or "the
Participating Banks" in this clause 8.3 shall also be
deemed to include a reference to such Participating Bank,
whether in its capacity as such and whether in its capacity
as Facility Agent and/or Arranger and/or Security Trustee
and/or a Secured Creditor (as applicable).
17.3.4. Any unpaid sum (together with all Linkage Differentials in
respect thereof) shall (for the purposes of this clause
8.3, clause 12.1 (Increased Costs) and clause 19 (Broken
Funding Indemnity) together with any indemnities of Partner
in this Agreement) be treated as an advance and accordingly
in this clause 8.3, clause 12.1 (Increased Costs) and
clause 19 (Broken Funding Indemnity) the term "ADVANCE"
includes any unpaid sum (together with all Linkage
Differentials in respect thereof) and the term "INTEREST
PERIOD", in
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relation to an unpaid sum, includes each such period
relating thereto as is mentioned in this clause 8.3.
18. SUBSTITUTE INTEREST RATES
18.1. UNAVAILABLE OR INDETERMINABLE INTEREST RATE
If and whenever, with respect to any Advance and any Interest
Period relating thereto, at any time prior to such Interest
Period, a Participating Bank determines that any rate determined
pursuant to clause 8.1.2 above is not available or that such rate
does not constitute an accurate base for the determination of the
cost to such Participating Bank of such Advance, then such
Participating Bank shall forthwith give notice ("A DETERMINATION
NOTICE") of such event to Partner and to the Facility Agent (a
Determination Notice to contain particulars of the relevant
circumstances giving rise to its issue) and the Cost of Funds for
such Advance for such Interest Period shall be determined in
accordance with this clause 9 below.
18.2. NEGOTIATIONS FOR DETERMINING ALTERNATIVE BASIS
Within 5 (five) Business Days of receipt of such notification, the
relevant Participating Bank and Partner shall enter into
negotiations in good faith for a period of up to 30 (thirty) days
with a view to agreeing an alternative basis for determining the
Cost of Funds applicable to such Advance for such Interest Period.
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18.3. AGREED ALTERNATIVE BASIS
Any alternative basis agreed under clause 9.2 (Negotiations for
Determining Alternative Basis) above will be binding on Partner
and such Participating Bank once agreed and effective from the
commencement of the Interest Period concerned.
18.4. FAILURE TO AGREE ON ALTERNATIVE BASIS
If no alternative basis is agreed in accordance with clause 9.2
(Negotiations for Determining Alternative Basis) above, such
Participating Bank shall certify on or before the last day of the
Interest Period to which the notification relates, or, if earlier,
within 10 (ten) days after the expiry of the 30 (thirty) day
period referred to in clause 9.2 (Negotiations for Determining
Alternative Basis) above an alternative basis for determining the
Cost of Funds for such Interest Period of such Advance and so long
as this clause 9 applies and no alternative basis has been agreed
in accordance with clause 9.2 (Negotiations for Determining
Alternative Basis) above, the Cost of Funds applicable to such
Advance for the relevant Interest Period shall be the rate
notified by such Participating Bank in accordance with this clause
9.4 above.
18.5. RETURN TO REGULAR DETERMINATION BASIS
So long as any alternative basis is in force in accordance with
this clause 9, the relevant Participating Bank shall, from time to
time, but not less frequently than monthly, review with Partner
whether or not the circumstances referred to in clause 9.1
(Unavailable or Indeterminable Interest Rate) still prevail with a
view to returning to the normal provisions of this Agreement in
relation to determining Cost of Funds as soon as reasonably
practicable.
19. COMMISSIONS, FEES AND EXPENSES
19.1. COMMITMENT COMMISSION--FACILITY A AND FACILITY B
Partner shall pay to each Participating Bank, with respect to
Facility A and Facility B (taken together), a commitment
commission of the Applicable Percentage (as defined in clause 10.2
(Applicable Percentage) below) per annum of the daily amount of
the undrawn aggregate Commitments of the relevant Participating
Bank with respect to Facility A and Facility B. For the removal of
doubt, such commitment commission shall be calculated on the
aggregate undrawn Commitments for Facility A and Facility B, taken
together. The commitment commission under such Facilities shall be
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payable quarterly, in arrears, until the Termination Date. If the
Termination Date shall not be a Quarter Day, then the Commitment
commission in respect of the period commencing from the preceding
Quarter Day to the Termination Date shall be paid on the
Termination Date.
19.2. APPLICABLE PERCENTAGE
The Applicable Percentage shall be:
19.2.1. 0.125% (nought point one two five percent), in relation to
the aggregate Commitments of a Participating Bank, with
respect to Facility A and Facility B, of which at least 80%
(eighty percent) thereof is being utilised by Partner;
19.2.2. 0.25% (nought point two five percent), in relation to the
aggregate Commitments of a Participating Bank, with respect
to Facility A and Facility B, of which less than 80%
(eighty percent) but more than 50% (fifty percent) thereof
is being utilised by Partner;
19.2.3. 0.375% (nought point three seven five percent), in relation
to the aggregate Commitments of a Participating Bank, with
respect to Facility A and Facility B, of which 50% (fifty
percent) or a lower percentage thereof is being utilised by
Partner.
10.2A. COMMITMENT COMMISSION--FACILITY C
Partner shall pay to each Participating Bank a commitment
commission at the rate of 0.35% (nought point three five percent)
per annum of the daily amount of the undrawn Commitment of the
relevant Participating Bank under Facility C. The commitment
commission shall accrue from the Commencement Date and shall be
payable quarterly, in arrears, until the Termination Date. If the
Termination Date shall not be a Quarter Day, then the Commitment
commission in respect of the period commencing from the preceding
Quarter Day to the Termination Date shall be paid on the
Termination Date.
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19.3. ANNUAL PAYMENT TO SECURITY TRUSTEE
Partner shall pay to the Security Trustee for its own account the
fees specified in the letter dated 9 July 2000 from the Security
Trustee to Partner at the times and in the amounts specified in
such letter.
19.4. FACILITY AGENT'S FEE
Partner shall pay to the Facility Agent for its own account the
fees specified in the letter dated 9 July 2000 from the Facility
Agent to Partner at the times and in the amounts specified in such
letter.
19.5. PAYMENT OF UPFRONT FEE
[Deleted.]
10.5A COORDINATING AGENT'S FEE
Partner shall pay to the Coordinating Agent the fees specified in
the letter dated as of 31 December 2002 from the Coordinating
Agent to Partner at the times and in the amounts specified in such
letter.
19.6. EXPENSES
19.6.1. Partner shall pay to the Facility Agent on demand all costs
and expenses (including, without limitation, legal fees for
external counsel and of an independent engineer and other
out-of-pocket expenses) incurred by the Agents in
connection with the negotiation, preparation and execution
of the Facility Documents and all amendments or
restatements to any of the Facility Documents and the
completion of the transactions therein contemplated,
subject to such limits (if any) agreed in writing between
Partner and the Facility Agent. All expenses payable
pursuant to this clause 10.6.1 shall be paid together with
VAT (if any) thereon.
19.6.2. Partner shall, from time to time, on demand, reimburse each
Agent or Participating Bank for all costs and expenses
(including, without limitation, legal fees for external
counsel and other out-of-pocket expenses) incurred in
connection with the preservation and/or enforcement of any
of the rights of the Participating Banks and the Agents
under the Facility Documents. All expenses payable pursuant
to this clause 10.6.2 shall be paid together with VAT (if
any) thereon.
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19.7. STAMP TAXES
Partner shall pay all stamp, documentary, registration or other
like duties or Taxes imposed on or payable in connection with the
this Agreement or any of the Facility Documents and shall
indemnify the Agents and the Participating Banks against any
liabilities, costs, claims and expenses resulting from any failure
to pay or any delay in paying any such duties or Taxes.
19.8. CUSTOMARY COMMISSIONS AND CHARGES
Partner shall pay to each Participating Bank their respective
commissions, fees and reasonable expenses usually payable to banks
in connection with banking transactions to be performed by the
relevant Participating Banks, in connection with the Facilities.
20. TAXES
20.1. TAX GROSS-UP
All payments to be made by each Obligor to any Finance Party
hereunder shall be made free and clear of and without deduction
for or on account of Tax unless the relevant Obligor is required
by law to make such payment subject to the deduction or
withholding of Tax, in which case the sum payable by such Obligor
in respect of which such deduction or withholding is required to
be made shall be increased to the extent necessary to ensure that,
after the making of the required deduction or withholding, such
Finance Party receives and retains (free from any liability in
respect of any such deduction or withholding) a net sum equal to
the sum which it would have received and so retained had no such
deduction or withholding been made or required to be made.
20.2. NOTIFICATION OF REQUIREMENT TO DEDUCT TAX
If, at any time, any Obligor is required by law to make any
deduction or withholding from any sum payable by it hereunder (or
if thereafter there is any change in the rates at which or the
manner in which such deductions or withholdings are calculated),
such Obligor shall as soon as reasonably practicable notify the
relevant Finance Party.
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20.3. EVIDENCE OF PAYMENT OF TAX
If any Obligor makes any payment hereunder in respect of which it
is required to make any deduction or withholding, it shall pay the
full amount required to be deducted or withheld to the relevant
taxation or other authority within the time allowed for such
payment under applicable law and shall deliver to the Facility
Agent and to the Finance Party, to whom a payment has been made,
which required any such deduction or withholding, as soon as
reasonably practicable after it has made such payment to the
applicable authority, an original receipt (or a certified copy
thereof) issued by such authority evidencing the payment to such
authority of all amounts so required to be deducted or withheld in
respect of the payment made to such Finance Party.
20.4. TAX SAVING
(a) In the event that, following the imposition of any
Tax on any payment by any Obligor in consequence of
which the relevant Obligor is required under clause
11.1 (Tax Gross-Up) above to pay such tax or to pay
any additional amount in respect of it, any Finance
Party shall in its sole opinion and based on its own
interpretation of any relevant laws or regulations
(but acting in good faith) receive or be granted a
repayment of Tax or a credit against or remission
for or deduction from or in respect of any Tax
payable by it, taking into account all tax
jurisdictions applicable to the Finance Party and
any direct or indirect controlling shareholders of
the Finance Party (any of the foregoing, to the
extent so reasonably identifiable and quantifiable,
being referred to as a "SAVING"), such Finance Party
shall, to the extent that it can do so without
prejudice to the retention of the relevant saving
and subject to the relevant Obligor's obligation to
repay the amount to such Finance Party if the
relevant saving is subsequently disallowed or
cancelled (which repayment shall be made promptly on
receipt of notice by the relevant Obligor from such
person of such disallowance or cancellation),
reimburse the relevant Obligor promptly after
receipt of such saving by such person with such
amount as such person shall in its sole opinion but
in good faith have concluded to be the finally
determined amount or value of the relevant saving.
(b) Nothing contained in this Agreement shall interfere
with the right of any Finance Party to arrange its
tax and other affairs in whatever manner it thinks
fit and, in particular, no Finance Party shall be
under any obligation to claim relief from Tax on its
corporate profits, or from any similar Tax
liability, in respect of the Tax, or to claim relief
in priority to any other claims, reliefs, credits or
deductions available
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to it or to disclose details of its Tax affairs. No
Finance Party shall be required to disclose any
confidential information relating to the
organisation of its affairs.
(c) Each Finance Party will notify the relevant Obligor
promptly of the receipt by such person of any saving
and of such Finance Party's opinion as to the amount
or value of that saving.
21. INCREASED COSTS
21.1. INCREASED COSTS
Subject to clause 12.2 (Exceptions) below, if, by reason of:
(a) any change in or the introduction of, or any change
in the interpretation, administration or application
by any competent court, authority or organisation in
the relevant jurisdiction generally of, any law,
regulation or treaty or in or of any official
directive, guideline or official request from, or
the rules of, any governmental, fiscal, monetary or
regulatory (including self-regulatory) authority,
organisation or agency (including, position
(guidelines) of the Examiner of Banks with respect
to proper conduct of bank affairs ("▇▇▇▇▇ Bankai
Takin") (whether or not having, in any such case,
the force of law but, if not having the force of
law, being a regulation, treaty, official directive,
guidelines, official request or rule which it is the
practice of banks in the relevant jurisdiction to
comply with) after the date of this Agreement which
affects banks or financial institutions of the same
type as any Finance Party in that jurisdiction; or
(b) compliance by any Finance Party (or its Holding
Company) with any such change or introduction;
including, in each case, those relating to Taxation, reserves,
special deposit, cash ratio, liquidity or capital adequacy
requirements or other forms of banking, fiscal, monetary or
regulatory controls:
(i) any Finance Party (or any Holding Company of such
Finance Party) incurs an increased cost as a result
of its (or such Holding Company's) having entered
into, and/or performing and/or maintaining and/or
funding its (or such Holding Company's) obligations
under, any Facility Document; or
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(ii) any Finance Party (or any Holding Company of such Finance
Party) incurs an increased cost in making, funding or
maintaining all or any Advances comprised in a class of
Advances formed by or including its (or such Holding
Company's) participation in some or all of the Advances
made or to be made under this Agreement; or
(iii) any amount receivable by any Finance Party under any
Facility Document is reduced (save to the extent matched by
a reduction in the cost of providing the Facilities) or the
effective rate of return to any Finance Party (or any
Holding Company of such Finance Party) under any Facility
Document or on its (or such Holding Company's) capital
employed for the purposes of this Agreement is reduced; or
(iv) any Finance Party (or any Holding Company of such Finance
Party) makes any payment or forgoes any Interest or other
return on or calculated by reference to any amount received
or receivable by it (or by such Holding Company) from any
Obligor or the Facility Agent or the Security Trustee or
any other Finance Party under any Facility Document;
and such increased cost (or the relevant proportion thereof),
reduction, payment, forgone Interest or other return is not
compensated for by any other provision of this Agreement, then and
in each such case:
(A) such Finance Party shall notify Partner of that
event promptly upon its becoming aware of the event
including, in reasonable detail, particulars of the
event; and
(B) within 5 (five) Business Days after receipt by
Partner of a demand from time to time by such
Finance Party accompanied by a certificate of such
Finance Party specifying the amount of compensation
claimed and setting out the calculation of the
amount in reasonable detail, Partner shall pay to
such Finance Party (or, as the case may be, Holding
Company of such Finance Party) such amount as shall
compensate such Finance Party (or such Holding
Company) for such increased cost (or, in the case of
(iii) above, the portion of such increased cost as
is attributable to its making, funding or
maintaining Advances), reduction, payment or forgone
Interest or other return. Nothing in this clause
12.1 shall oblige any Finance Party (or any Holding
Company of such Bank) to disclose any confidential
information relating to the organisation of its
affairs.
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21.2. EXCEPTIONS
Clause 12.1 (Increased Costs) above shall not apply so as to
oblige Partner to compensate any Finance Party for any increased
cost, reduction, payment or forgone Interest or other return
resulting from any change in or the introduction of, or any change
in the interpretation or application of, any law, regulation,
treaty, directive, request or rules relating to, or any change in
the rate of, Tax on Overall Net Income of such Finance Party.
22. ILLEGALITY
If any change in, or the introduction of, any law, regulation, treaty or
official directive, guideline, official request or rule of any
governmental, fiscal, monetary or regulatory (including self regulatory)
authority, organisation or agency (including, position (guidelines) of
the Examiner of Banks with respect to proper conduct of bank affairs
("▇▇▇▇▇ Bankai Takin") having jurisdiction (whether or not having, in any
such case, the force of law but, if not having the force of law, being
one with which it is the practice of banks in the relevant jurisdiction
to comply) (together "LAWS"), or any change in the interpretation,
administration or application of Laws by a competent court or the
relevant authority, organisation or agency or compliance by any Finance
Party with any such change or introduction of Laws or change in
interpretation, administration or application of Laws, shall make it (or
make it apparent that it is) unlawful or a breach of Laws for any Finance
Party to make available or fund or maintain the Advances or any part of
the Advances under this Agreement or to give effect to its obligations
and exercise its rights as contemplated by this Agreement, that Finance
Party may, by notice to Partner, with a copy sent to the Facility Agent,
declare that to the extent necessary to avoid any such illegality or
breach of Laws its obligations to Partner under the Facility Documents
shall be terminated forthwith or, if later, on the latest date to which
the obligations may remain in effect without causing such Finance Party
to be in breach of Laws, whereupon:
(a) PREPAY: Partner will forthwith, or by such later date as shall be
immediately prior to the illegality or breach in question taking
effect, prepay all outstanding Advances made by such Finance Party
together with all Interest and other charges accrued thereon to
the date of the prepayment (as well as amounts payable under
clause 19 (Broken Funding Indemnity) below) and all other amounts
payable to such Finance Party under the Facility Documents as
shall be necessary to avoid any such illegality or breach by such
Finance Party of any Laws; and
(b) COMMITMENTS: to the extent necessary to avoid any such illegality
or breach of Laws such Finance Party's Commitments shall be
cancelled and reduced to nil.
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23. MITIGATION
23.1. MITIGATION
If circumstances arise in respect of any Finance Party which
would, or upon the giving of notice would, result in the operation
of clause 9 (Substitute Interest Rates), 11 (Taxes), 12 (Increased
Costs) or 13 (Illegality) to the detriment of Partner, such
Finance Party shall promptly upon becoming aware of the same
notify Partner and, upon the written request of Partner, shall
enter into discussions with Partner with a view to determining
what mitigating action might be taken by such Finance Party,
including transfer of its participation in the Facilities and its
Commitments to another bank or financial institution.
Without limiting or reducing the obligations of the Obligors (or
any of them) under clauses 9 (Substitute Interest Rates), 11
(Taxes), 12 (Increased Costs) or 13 (Illegality), the relevant
Finance Party shall, upon the written request of Partner, take
such reasonable steps as may be practical and open to it to
mitigate or remove the effects of such circumstances or transfer
of its participation in the Facilities and its Commitment to
another bank or financial institution reasonably acceptable to
Partner or the restructuring of its participation in this
Agreement in a manner which will avoid the circumstances in
question and on terms acceptable to the Facility Agent,
Participating Banks and Partner, provided that nothing in this
clause 14.1 shall oblige any Finance Party to take any such step
if, in the opinion of such Finance Party (such opinion being
conclusive) any such step might reasonably be expected to have an
adverse effect upon its business, operations or financial
condition or the management of its Tax affairs or its return in
relation to the outstanding Advances made by it or cause it to
incur any material costs or expenses.
23.2. REPLACEMENT OF A BANK
If such circumstances as are referred to in clause 14.1
(Mitigation) shall arise, the Facility Agent, at the request of
Partner, will consult with Partner with a view to identifying and
approaching bank(s) and financial institution(s) acceptable to
Partner who may be willing to become party to this Agreement as
Participating Bank(s) in replacement for the relevant
Participating Bank(s).
24. REPRESENTATIONS AND WARRANTIES
24.1. REPRESENTATIONS AND WARRANTIES
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Partner, in respect of itself and each other Obligor, and each
other Obligor in respect of itself, makes the representations and
warranties set out in this clause 15 to each of the Finance
Parties.
24.2. STATUS
It is a company limited by shares, duly incorporated and validly
existing under the laws of the place of its incorporation and has
the power to own its property and assets and carry on its business
as it is now being and will be conducted. No event has occurred
with respect of it which would constitute an Event of Default
under clause 17.8 (Winding-Up) below were the proviso to such
clause deleted.
24.3. POWERS AND AUTHORITY
It has the power to enter into and perform the Facility Documents
and Material Contracts to which it is a party and the transactions
to be implemented pursuant thereto and has taken all necessary
action to authorise the entry into and performance of those
documents and transactions. Without limiting the generality of the
aforegoing, Partner represents and warrants that: (a) it has power
to enter into all Facility Documents to which it is a party and to
perform its obligations thereunder and hereunder and has taken all
necessary action to authorise the entry into and performance of
the transactions contemplated thereunder and hereunder; and (b)
this Agreement constitutes its legal, valid, binding and
enforceable obligations.
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24.4. LEGAL VALIDITY
Each Facility Document and Material Contract to which it is at any
time a party (when executed by it or on its behalf) constitutes
its legal, valid, binding and enforceable obligations and (without
limiting the generality of the foregoing) each Security Document
to which it is a party validly and effectively creates the
Encumbrances which that Security Document purports to create or,
as the case may be, accurately evidences an Encumbrance which has
been validly created, in each case subject to the Reservations.
24.5. NON-CONFLICT
The entry into and performance of each Facility Document and
Material Contract to which it is a party and the transactions to
be implemented pursuant thereto do not and will not conflict with:
(a) any law or regulation or any official or judicial order
applicable to it, in any respect, or
(b) its constitutional documents or any of its resolutions
(having current effect) in any respect, or
(c) any agreement or instrument to which it or any Subsidiary
of it is a party or which is binding upon any of them or on
its assets or those of any such Subsidiary, in such a
manner or to such an extent which would be reasonably
likely to have a Material Adverse Effect or in a manner or
to an extent which is reasonably likely to result in any
liability on the part of any of the Finance Parties to any
third party by reason of any such conflict,
nor will it result in the creation or imposition of any
Encumbrance on any of its assets or those of any of its
Subsidiaries (save for any Encumbrance created pursuant to the
Security Documents).
24.6. NO DEFAULT
(a) No Event of Default has occurred and is continuing which
has not been waived; and
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(b) No event has occurred and is continuing which has not been
waived and which constitutes or which, with the giving of
notice, expiry of any cure period, determination of
materiality or satisfaction of any other condition in each
case provided for in any such agreement or document, is
reasonably likely to constitute a default under or in
respect of any other agreement or document to which it or
any Subsidiary of it is a party in such a manner or to such
an extent which would be reasonably likely to have a
Material Adverse Effect.
24.7. CONSENTS
(a) All Authorisations, exemptions and other matters required
by law (including, for the avoidance of doubt, the Licence)
for or in consequence of the entry into and performance by
it of and/or the validity of any of the Facility Documents
or Material Contracts to which it is a party or the
transactions to be implemented pursuant thereto, the
failure to obtain or effect which would be reasonably
likely materially to affect the interests of the
Participating Banks under the Facility Documents, have been
obtained or effected or will be obtained or effected prior
to the date required by law, save for registration with the
Pledges Registry, the Registrar of Companies, the Land
Registry and the Patents Registry, as applicable.
(b) The Licence is in full force and effect and each Obligor is
in compliance in all material respects with all provisions
thereof such that the Licence is not the subject of any
pending or, to the best of its knowledge, threatened
attack, suspension or revocation by any competent
authority. The period of the Licence is until 1 February
2022. All the Authorisations are in full force and effect,
it is in compliance in all material respects with all
provisions thereof and the Authorisations are not the
subject of any pending or, to the best of its knowledge,
threatened attack or revocation by any competent authority.
To the best of its knowledge, it is not aware of any
material breach of any Authorisation.
24.8. ACCOUNTS
(a) Its Accounts most recently delivered to the Coordinating
Agent (or, if prior to the Commencement Date, to the
Facility Agent) and, where applicable, the Participating
Banks under clause 16.2.1 below, for the members of the
Group have been prepared, save as disclosed in notes to or
accompanying those Accounts, in accordance with the
provisions of clause 16.5 (Accounting Standards) below and
fairly present in all material respects its and (if
consolidated Accounts) its Subsidiaries'
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financial position as at the date to which the same were
prepared and/or (as appropriate) the results of operations
and (in the case of annual Accounts) changes in financial
position during the Accounting Period, subject, in the case
of half yearly and quarterly Accounts, to normal year end
adjustments made in accordance with Applicable Accounting
Principles.
(b) Save for any disposal or acquisition of any interest in any
company or any business or any merger of any members of the
Group, or any dissolution or liquidation of any member of
the Group (in each case as permitted by the terms hereof),
each of the consolidated Accounts of the Group delivered to
the Coordinating Agent (or, if prior to the Commencement
Date, to the Facility Agent) and, where applicable, the
Participating Banks under clause 16.2.1 below includes or
consolidates into such Accounts the results of each member
of the Group for the relevant Accounting Period.
(c) All forecasts and projections contained in the Business
Plan delivered to the Coordinating Agent (or, if prior to
the Commencement Date, to the Facility Agent) and, where
applicable, the Participating Banks under clause 16.2.1
below were arrived at after careful consideration, were
fair and were based on reasonable grounds and as at the
date of their delivery to the Coordinating Agent (or, if
prior to the Commencement Date, to the Facility Agent) and,
where applicable, the Participating Banks were not
misleading in any material respect.
(d) Nothing has occurred since the date of signature of the
Amending and Rescheduling Agreement or, if later, the date
of the audited consolidated Accounts most recently
delivered to the Coordinating Agent (or, if prior to the
Commencement Date, to the Facility Agent) and, where
applicable, the Participating Banks pursuant to clause
16.2.1 below which would have a material adverse effect on
the business, operations or financial condition of the
Group (taken as a whole) (other than as contemplated in the
Business Plan) (for which purposes the Facility Agent shall
consult with Partner prior to any determination as to the
occurrence of such an effect).
24.9. LITIGATION
Except as described in SCHEDULE 17 (Claims served on Partner or
any of its Subsidiaries) or specifically stated in the notes to
the latest set of Accounts of Partner delivered to the Facility
Agent before the Commencement Date, no litigation, arbitration or
administrative or regulatory proceedings or investigations for
which process or initiation claims have been served on it
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or any of its Subsidiaries are current and, to its knowledge, no
litigation, arbitration, administrative or regulatory proceedings
involving it or any of its Subsidiaries are pending or threatened
which, if adversely determined, would have a Material Adverse
Effect or which involves a liquidated claim or alleged liability
which is likely to be in excess of US $15,000,000 (fifteen million
United States Dollars) or its equivalent.
24.10. TAX LIABILITIES
Except as described in SCHEDULE 18 (Tax Claims asserted against
Partner or any of its Subsidiaries) or specifically stated in the
notes to the latest set of Accounts of Partner delivered to the
Facility Agent before the Commencement Date, no claims are being
asserted against it or any of its Subsidiaries with respect to
Taxes which are reasonably likely to be determined adversely to it
or to such Subsidiary, in each case, which, if so adversely
determined, would have a Material Adverse Effect. It is not
materially overdue in the filing of any Tax returns required to be
filed by it (where such late filing might result in any material
fine or penalty on it) and it has paid all Taxes shown to be due
on any Tax returns required to be filed by it or on any
assessments made against it for non-payment, or a claim for
payment, non-payment of which would in each such case have a
Material Adverse Effect.
24.11. ENCUMBRANCE
No Encumbrance exists over its or any of its Subsidiaries' assets
which would cause a breach of clause 16.6 (Negative Pledge) below.
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24.12. BUSINESS PLAN
Any factual information provided by an Obligor for the purposes of
the Business Plan 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. All forecasts and projections contained in the
Business Plan are fair and were prepared on the basis of recent
historical information and on the basis of reasonable assumptions.
Nothing has occurred or been omitted from the Business Plan and no
information has been given or withheld that results in the
information contained in the Business Plan being untrue or
misleading in any material respect.
24.13. OWNERSHIP OF ASSETS
As at the time this representation is given or repeated, it has
good title to or valid leases or licences of or is otherwise
lawfully entitled to use all material assets necessary to conduct
its business as and to the extent conducted by it at such time.
24.14. DOCUMENTS
The documents delivered to the Facility Agent by or on behalf of
any Obligor pursuant to clause 3 (Conditions Precedent) of the
Original Facility Agreement, clause 3 (Conditions Precedent) of
the Amending and Rescheduling Agreement, clause 3 of the Amending
Agreement dated as of 31 December 2002 and under any other
provision of the Facility Documents were genuine and in the case
of copy documents, were at the date of delivery true, complete and
accurate copies in all material respects, of originals which had
not been amended, varied, supplemented or superseded in any way
which would be likely materially to affect the interests of the
Finance Parties under the Facility Documents.
24.15. INTELLECTUAL PROPERTY RIGHTS
(a) It (or another Obligor) owns or has the legal right to use
all the Intellectual Property Rights which are material to
the Business and the conduct of the business of any member
of the Group from time to time or are required by it in
order for it to carry on its business in all material
respects as it is then being conducted and as far as it is
aware it does not, in carrying on its business, infringe
any Intellectual Property Rights of any third party in any
way which would have a Material Adverse Effect.
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(b) None of the Intellectual Property Rights which are material
in the context of the business of any member of the Group
is, to its knowledge, being infringed nor, to its
knowledge, is there any threatened infringement of those
Intellectual Property Rights, by any third party which
would be reasonably likely to have a Material Adverse
Effect.
(c) All registered Intellectual Property Rights owned by it and
which are material to the conduct of the business of any
member of the Group are subsisting and in full force and
effect.
24.16. ENVIRONMENTAL MATTERS
(a) It: (i) has obtained all requisite Environmental Licences
required for the carrying on of its business as currently
conducted and (ii) has at all times complied with the terms
and conditions of such Environmental Licences and (iii) has
at all times complied with all other applicable
Environmental Law, which in each such case, if not obtained
or complied with, would have a Material Adverse Effect.
(b) There is no Environmental Claim pending or threatened
against that Obligor which is reasonably likely to be
decided against that Obligor and which, if so decided,
would have a Material Adverse Effect.
(c) So far as each Obligor is aware, no Dangerous Substance has
been used, disposed of, generated, stored, transported,
dumped, released, deposited, buried or emitted at, on, from
or under any premises (whether or not owned, leased,
occupied or controlled by any Obligor or any of its
Subsidiaries and including any offsite waste management or
disposal location utilised by any Obligor or any such
Subsidiary) in circumstances where this would be reasonably
likely to result in a liability on any Obligor which would
have a Material Adverse Effect.
24.17. RANKING OF SECURITY
The security conferred by the Security Documents constitutes a
priority security interest of the type therein described over the
security assets therein referred to which are not subject to any
prior or pari passu Encumbrances except as permitted by clause
16.6 (Negative Pledge) below.
24.18. MATERIAL CONTRACTS
(a) The Material Contracts to which any Obligor is party are in
full force and effect.
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(b) No Obligor is and, so far as it is aware (after having made
all reasonable enquiries within the relevant Obligor), no
Counterparty is, in breach of any material term of any
Material Contracts.
(c) There are no material disputes subsisting between any
Obligor and any other party to any Material Contract.
(d) No waivers have been granted by or in favour of any Obligor
pursuant to any material term of any Material Contract in
any respect which would be reasonably likely to be adverse
to the interests of the Participating Banks under the
Facility Documents.
(e) No material amendments have been made to any Material
Contract in any respect which would be reasonably likely to
be adverse to the interests of the Participating Banks
under the Facility Documents, save for amendments on or
prior to the date of signature of the Amending and
Rescheduling Agreement which have been disclosed to the
Facility Agent in writing prior to the date thereof.
(f) There are no other agreements which are material to the
Business (or any part thereof) and would be reasonably
likely to affect adversely the decision of a Participating
Bank when considering the provision of the Facilities on
the terms and subject to the conditions set out herein.
24.19. OWNERSHIP OF PARTNER
The share capital in Partner is owned by the Shareholders in the
respective percentages as set out in Schedule 9 (Principal
Shareholders of Partner) and Partner has no Subsidiaries save for
the Guarantors.
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24.20. BORROWINGS
No Obligor has any Borrowings other than Borrowings which qualify
as Permitted Borrowings.
24.21. REPETITION
The representations and warranties set out in this clause 15 shall
survive the execution of the Amending and Rescheduling Agreement
and the making of each Advance hereunder and shall be deemed to be
repeated on the Commencement Date and (except in the case of the
second sentence of clause 15.2 (Status), clauses 15.7 (Consents),
15.8(d) (Accounts), 15.9 (Litigation), 15.12 (Business Plan),
15.14 (Documents), 15.18 (Material Contracts), 15.19 (Ownership of
Partner) and 15.20 (Borrowings)) shall be deemed to be repeated on
the date of delivery of each Drawdown Request hereunder and on
each date on which Advance is made and on the first day of each
Interest Period, with reference to the facts and circumstances
then subsisting, as if made at each such time.
25. UNDERTAKINGS
25.1. DURATION
The undertakings in this clause 16 shall remain in force so long
as any amount is or may be outstanding under any Facility Document
or any Commitment is in force.
25.2. FINANCIAL INFORMATION
25.2.1. Partner shall furnish or procure that there shall be
furnished to the Participating Banks and the Coordinating
Agent:
(a) as soon as the Accounts referred to in (i) and (ii)
below are published (and in any event within 120
(one hundred and twenty) days) after the end of each
annual Accounting Period):
(i) the audited consolidated Accounts of the
Group for that financial year (which shall
include notes setting out nominal NIS
figures); and
(ii) in the case of Partner and each Subsidiary of
Partner, the non-consolidated audited
Accounts for that financial year for Partner
and for each Subsidiary of Partner;
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(b) as soon as practicable (and in any event within 70
(seventy days)) after the end of the first half-year
of each of its financial years, the unaudited
non-consolidated reviewed Accounts of Partner and of
each Subsidiary of Partner, for that half-year;
(c) as soon as practicable (and in any event within 45
(forty-five) days after the end of each of the first
3 (three) Quarters), the unaudited non-consolidated
reviewed financial statements of Partner and the
unaudited consolidated reviewed Accounts of Partner,
for that Quarter;
(d) as soon as practicable (and in any event within 45
(forty-five) days after the end of each Quarter, a
report in an agreed form setting out statistics
covering the level of, inter alia, subscribers,
subscriber penetration, build-out, revenue per
subscriber, churn and Capital Expenditure of Partner
for that Quarter and on a cumulative basis for the
calendar year in which such Quarter falls, such
reports to distinguish between subscribers for each
of GSM and 3rd Generation UMTS and Capital
Expenditure in the 3rd Generation UMTS network;
(e) at the same time as the annual and semi-annual
Accounts are delivered pursuant to paragraph (a)
above, a certificate of the Auditors, in a form
reasonably satisfactory to the Instructing Group:
(i) setting out in reasonable detail
computations establishing, as at the date of
such Accounts, whether each of the financial
ratios set out in clause 16.32 (Financial
Undertakings) below were complied with; and
(ii) setting out in reasonable detail
computations establishing the Excess Cash
Flow as at the date of such Accounts; and
(iii) stating that the Auditors did not, in the
course of their audit or review, as
applicable, discover any breach of the
obligations set out in clause 16.32
(Financial Undertakings) below;
All Accounts as aforesaid shall, in addition to any
other requirements under this clause 16.2.1, contain
all the notes and be accompanied by all the
certificates referred to in clause 1.2.2 above;
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(f) not less than 15 (fifteen) days nor more
than 90 (ninety) days before the end of each
annual Accounting Period, a revised business
plan and revised cash flow projections
approved by the Board of Directors of
Partner containing cash flow projections to
30 June 2009 in substantially the same form
as in the Business Plan; provided that the
obligation to provide the revised business
plan and cash flow projections referred to
in this paragraph (f) shall cease on the
date on which Partner has repaid at least
75% (seventy-five percent) of the
Facilities, such that the aggregate
Commitments shall be no more than 25%
(twenty-five percent) of the aggregate
Facilities as at the Commencement Date;
provided that, in respect of the one year
Ratio Period immediately preceding such
date, the Margin for Facility A and Facility
B has in accordance with clause 1.1.114
above been reduced to 0.7% (nought point
seven percent).
25.2.2. Partner shall supply to the Coordinating Agent:
(a) together with the quarterly Accounts specified in
clause 16.2.1 above; and
(b) (in the case of paragraph (iii) below,) promptly at
any other time, if the Coordinating Agent so
reasonably requests,
a certificate signed by the Chief Financial Officer of Partner
on its behalf setting out in reasonable detail computations
establishing, as at the date of such Accounts, whether each of
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the financial ratios set out in clause 16.32 (Financial
Undertakings) below were complied with and certifying that:
(i) the relevant Accounts fairly present (in relation to
the relevant Accounting Period), the financial
position of the relevant Obligor;
(ii) the relevant Accounts were prepared in accordance
with the Applicable Accounting Principles; and
(iii) no Event of Default or Potential Event of Default is
outstanding or, if an Event of Default or Potential
Event of Default is outstanding, specifying the Event
of Default or Potential Event of Default and the
steps, if any, being taken to remedy it.
(c) together with the quarterly Accounts specified in
clause 16.2.1 above, as to the amount of Partner's
Excess Cash Flow for such Quarter.
25.2.3. If in the course of any annual Accounting Period Partner
updates or revises any of the assumptions underlying the
projections furnished to the Participating Banks pursuant to
clause 16.2.1(f) above in any material respect, Partner shall
furnish or procure that there shall be furnished to the
Participating Banks such updated assumptions.
25.2.4. The format of any financial reports (including, annual audited
accounts, quarterly reports and the such like) to be delivered
under this clause 16.2.1 shall, in addition, be in a format
consistent with the Business Plan.
25.2.5. As soon as practicable (and, in any event, within 5 (five)
Business Days after the end of each Quarter), Partner shall
send to the Coordinating Agent (with sufficient copies for
each of the Participating Banks):
(a) a certificate signed by Partner's General Manager and
Chief Financial Officer certifying that Partner is in
full compliance with all of the terms and conditions of
each of the Facility Documents and if not so in
compliance, specifying the relevant non-compliance and
the steps, if any, being taken to remedy it;
(b) a report certified by the General Manager and Chief
Financial Officer of Partner detailing the occurrences
of any of the following that have taken place during
the preceding Quarter:
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(i) a Permitted Investment made or resolved to
be made by Partner in an aggregate amount
equal to or in excess of US $10,000,000 (ten
million United States Dollars);
(ii) the receipt of any Permitted Borrowing (save
for Permitted Borrowings as referred to in
clauses 1.1.126(a) and (f)) that has taken
place (including, the entering into of any
agreement whereunder Partner may receive any
Permitted Borrowing), the amount of which
Permitted Borrowing equals or exceeds US
$2,500,000 (two million five hundred
thousand United States Dollars), as well as
the receipt of any type of Permitted
Borrowings, the cumulative aggregate of
which equals or exceeds US $10,000,000 (ten
million United States Dollars));
(iii) a resolution of any organ of Partner to
make, or evidencing any intention to make,
whether conditionally or unconditionally,
preparations for the issuance of a
prospectus and/or any offer to the public
(whether or not any such offer requires the
approval or publication of a prospectus), in
any jurisdiction, relating to the sale or
offer of any securities or debentures of
Partner;
(iv) any loans, guarantees or investments made by
Partner as referred to in clause 16.37
(Loans, Guarantees and Investments in
Subsidiaries) below;
(v) any disposal as referred to in clause 7.2.1
above, the Dollar Amount (or, if denominated
in a currency other than US Dollars, the
Dollar equivalent) of the Net Proceeds of
which exceeds when aggregated with the Net
Proceeds of all such other disposals in the
Fiscal Year in which such Quarter occurs, US
$2,500,000 (two million five hundred
thousand United States Dollars).
25.2.6. Partner's ability to make any Permitted Investment under
this Agreement will be conditional upon such Permitted
Investment being first pledged in favour of the Security
Trustee (acting as trustee for itself and for the Secured
Creditors) by way of a first pledge and charge under the
Debenture or any other charge, in a form satisfactory to
the Security Trustee.
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25.2.7. Without derogating from any other obligations imposed on
Partner under this Agreement to provide information,
Partner shall furnish to the Facility Agent and the
Coordinating Agent (with sufficient copies for each of the
Participating Banks):
(i) promptly, all filings, documents, forms, reports and
notices filed by or on behalf of Partner, or by any
of its Shareholders with respect to Partner (to the
extent Partner is aware of such Shareholders'
filing), with the US Securities and Exchange
Commission, the London Stock Exchange, NASDAQ, any
other stock exchange or any securities regulatory
authority, from time to time; and
(ii) promptly, all such other information as shall
reasonably be requested, from time to time, by any
of the Participating Banks.
(iii) as soon as practicable (and in any event within 5
(five) Business Days) after each Quarter, a report
setting out in a form as set out in SCHEDULE 19
(Quarterly Report), details of:
(a) with respect to each of Facility A and
Facility C, all Drawdown Requests made
during the preceding Quarter (such
information to include the amount of the
Advance requested by Partner under each such
Drawdown Request, the currency of the
Advance requested as aforesaid, the amount
and/or currency advanced by a Participating
Bank if different to that requested under
the relevant Drawdown Request, the type of
Advance and rate of Interest applicable and
the identity of the Participating Banks to
whom such Drawdown Requests were made) and,
with respect to Facility B, the aggregate
amount of Advances requested by Partner from
each Participating Bank during the preceding
Quarter (such information to include the
aggregate of Advances classified also in
accordance with each currency, each type of
Advance and each type of rate of Interest
applicable). Each Participating Bank shall
after receipt of such report, advise Partner
in writing (with a copy to the Coordinating
Agent) as to whether such report, to the
extent relating to such Participating Bank,
is accurate and, if not, shall indicate
which part of such report is inaccurate;
(b) all payments made during the preceding
Quarter by Partner under the Facilities (or,
in the case of Facility B,
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the aggregate of such payments during such
Quarter), specifying the identity of the
Participating Banks to whom any such
payments were made, the currency of such
payment, the amount of such payment, whether
such payments were made on account of
Interest, Linkage Differentials, if
applicable, principal of the outstanding
Advances or on account of any other amount,
whether, in the case of a prepayment
pursuant to clause 6 (Voluntary Prepayment
and Reborrowing) above, any of such payments
were made from a Permitted Source (and, if
so, a copy of the certificate referred to in
clause 6 (Voluntary Prepayment and
Reborrowing) above relating thereto shall be
attached to such report), or a mandatory
prepayment (together with details thereof)
and which of the Facilities any of such
payments were made on account of);
(c) the outstanding amounts owed by Partner to
each Participating Bank under each of the
Facilities: (i) expressed in US Dollars (or,
if denominated in NIS or Euros, in their
Dollar equivalent); (ii) expressed in the
currency of which such amounts are due; and
(iii) specifying the percentage of the
Amount of the Outstanding A and B Advances
(as defined in clause 2.1.2 above)
denominated in each of US Dollars, Euros and
NIS as at the Quarter Day for such Quarter.
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25.3. INFORMATION-MISCELLANEOUS
Partner shall furnish or procure that there shall be furnished to the
Facility Agent in sufficient copies for each of the Participating
Banks:
(a) promptly, all notices, reports or other documents required by
statute or any applicable rules to be despatched by any
Obligor to its shareholders generally (or any class of them)
and all notices, reports or other documents relating to the
financial difficulties or debt obligations of any Obligor
despatched by or on behalf of any Obligor to its creditors
generally (in their capacity as creditors);
(b) as soon as the same are instituted or, to its knowledge,
threatened, details of any litigation, arbitration or
administrative proceedings involving it or any of its
Subsidiaries which, if adversely determined, would have a
Material Adverse Effect or which involves a liquidated claim
or alleged liability which is likely to be in excess of US
$15,000,000 (fifteen million United States Dollars) or its
equivalent;
(c) promptly, such further information regarding its financial
condition, business and assets and that of the Group and/or
any member thereof (including any requested amplification or
explanation of any item in any Accounts, any business plan,
forecasts, projection or other material provided by any
Obligor hereunder) as the Facility Agent or any Participating
Bank may reasonably request from time to time provided that
where any information is subject to a confidentiality
agreement entered into by the relevant member of the Group in
the ordinary course of its business, it shall use its
reasonable endeavours to obtain, or shall procure that the
relevant member of the Group uses its reasonable endeavours to
obtain, consent to disclose such information but if such
consent is not forthcoming, this clause 16.3 will not be
breached by the failure to deliver the information subject to
the confidentiality agreement with someone other than a
Restricted Person;
(d) promptly, upon being notified of the same, details of the
occurrence of a Change of Ownership or details of any proposed
Change of Ownership of which it is aware;
(e) promptly on request by the Facility Agent, a copy of any
agreements and arrangements between the Shareholders (or any
Affiliates of the Shareholders) which may replace or amend the
Shareholders Agreement.
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25.4. AUDIT AND ACCOUNTING DATES
Partner will ensure that:
(a) the annual Accounts to be delivered to the Coordinating Agent
and the Participating Banks pursuant to clause 16.2.1 above
are audited by the Auditors;
(b) each Obligor shall at all times have duly appointed Auditors;
and
(c) Partner will not, and no Obligor will, change its financial
year end without the prior written consent of the Facility
Agent other than (in the case of any other Obligor) to conform
its financial year end to that of Partner.
25.5. ACCOUNTING STANDARDS
(a) Partner will ensure that:
(i) all Accounts shall be prepared in accordance with the
Applicable Accounting Principles (consistently
applied) or shall indicate in notes to or
accompanying such Accounts any material departures
from the Applicable Accounting Principles;
(ii) each set of Accounts delivered to the Coordinating
Agent and the Participating Banks is prepared on
substantially the same basis (including, for the
avoidance of doubt, adopting the same treatment and
classification of items of income and expenditure) as
was used in the preparation of the Accounts
previously delivered to the Coordinating Agent (or,
prior to the Commencement Date, to the Facility
Agent) and the Participating Banks, provided that in
the case of the first set of Accounts so delivered
they shall be prepared on the same basis as was used
in the preparation of the financial statements
included in the Business Plan previously delivered to
the Coordinating Agent (or, prior to the Commencement
Date, to the Facility Agent) and the Participating
Banks, save to the extent that good practice or law
requires otherwise; and
(iii) in the event that any Accounts are delivered which
are not prepared on a substantially consistent basis
(including, for the avoidance of doubt, a consistent
treatment and classification of items of income and
expenditure) to Accounts previously
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delivered hereunder, such Accounts are accompanied by
an explanation of any changes to the accounting basis
used in respect of the accounting basis used in the
Business Plan and with a reconciliation of all
changes to allow for consistent testing of the
covenants in clause 16.32 (Financial Undertakings)
below.
(b) Partner will ensure that all Accounts shall fairly present in
all material respects (subject to adjustments which fall to be
made at the end of the financial year in accordance with
Applicable Accounting Principles) the consolidated financial
position and results of operations of the relevant member of
the Group and its Subsidiaries (in the case of consolidated
Accounts) or its financial position and results of operations
(in the case of unconsolidated Accounts), as at the end of and
for the Accounting Period to which they relate.
(c) Partner shall, at the same time as it delivers to the
Coordinating Agent any audited consolidated annual Accounts of
the Group pursuant to clause 16.2.1 above deliver to the
Coordinating Agent a letter explaining any differences between
the format, headings and characterisations used in such
audited consolidated annual Accounts of the Group and in the
half-yearly or quarterly consolidated Accounts of the Group
delivered pursuant to clause 16.2.1 above where those
differences would affect the ability of the Facility Agent to
calculate the components of the financial ratios in clause
16.32 (Financial Undertakings) below.
25.6. NEGATIVE PLEDGE
No Obligor will, and each Obligor will procure that none of its
Subsidiaries will, without the prior consent of the Facility Agent,
acting on the instructions of an Instructing Group, create or permit to
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subsist any Encumbrance on the whole or any part of its respective
present or future business, assets or undertaking, except:
(i) that Partner may create or permit to subsist a Permitted
Encumbrance;
(ii) without derogating from the second sentence of clause 16.22
(Borrowings) below, that a Subsidiary (other than a Venture
Subsidiary and any Subsidiary of a Venture Subsidiary) may
create or permit to subsist a Permitted Encumbrance; and
(iii) that a Venture Subsidiary and any Subsidiary of a Venture
Subsidiary may create or permit to subsist an Encumbrance to
the extent, and only to the extent, any such Encumbrance
secures Borrowings that such Venture Subsidiary or Subsidiary,
as the case may be, is entitled to incur pursuant to the
second sentence of clause 16.22 (Borrowings) below;
provided that any order of attachment or injunction restraining
disposal of assets or similar legal process arising in connection with
court proceedings being contested in good faith with a reasonable
prospect of success which does not result from proceedings which would
constitute an Event of Default pursuant to clause 17.9 (Execution or
Distress) below shall not constitute a breach of this clause 16.6.
25.7. SALE AND LEASEBACK
No Obligor will, and each Obligor will procure that none of its
Subsidiaries will sell, transfer or otherwise dispose of any of its
assets or any interest therein on terms whereby such asset is or may be
leased to or re-acquired or acquired by any member of the Group in
circumstances where the transaction is entered into primarily as a
method of raising finance or of financing the acquisition of an asset
except pursuant to finance leases permitted under clause 16.22
(Borrowings) below.
25.8. DISPOSALS
No Obligor will, and each Obligor will procure that none of its
Subsidiaries will, either in a single transaction or in a series of
transactions whether related or not and whether voluntarily or
involuntarily, sell, transfer, lease or otherwise dispose of all or any
part of or interest in its respective assets or undertaking to any
person who is not an Obligor, other than a Permitted Disposal. Nothing
in this clause 16.8, however, will permit the disposal of any assets
which are the subject of fixed security created by any Security
Document except in accordance with the relevant Security Document
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without the consent of all Participating Banks. Without derogating from
the last sentence of this clause 16.8, without the consent of the
Instructing Group, no such sale, transfer, lease or disposal of all or
any part of or interest in any asset or undertaking shall be made to an
Affiliate of Partner unless it is made on arm's length terms.
25.9. PARI PASSU RANKING
Each Obligor undertakes that its obligations under this Agreement rank
and will at all times rank at least pari passu in right and priority of
payment and in point of security (save by reason of and to the extent
of the security afforded thereto by the Security Documents) with all
its other present and future unsecured and unsubordinated obligations,
other than obligations which are mandatorily preferred by law applying
to companies generally.
25.10. LOANS AND GUARANTEES
No Obligor will, and each Obligor will procure that none of its
Subsidiaries will:
(a) make any loans; or
(b) give any guarantee to or for the benefit of any person,
other than loans or guarantees:
(i) arising under the Facility Documents;
(ii) arising in the ordinary course of its business;
(iii) to, or in respect of the obligations of, another Obligor; or
(iv) permitted under clause 16.37 (Loans, Guarantees and
Investments in Subsidiaries) below.
25.11. OPERATING LEASES
No Obligor will, and each Obligor will procure that none of its
Subsidiaries will, after the date of this Agreement enter into any
operating lease of or in respect of equipment, machinery or plant
(other than any private circuits, leased lines and motor vehicles and
other than any computer or information technology systems used in the
ordinary course of business of any member of the Group) if the
equipment, machinery or plant concerned is of such importance in the
business of the Group taken as a whole that such business
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would be materially and adversely affected were the leases for such
equipment, machinery or plant to be terminated early and the right to
possession of the equipment, machinery or plant lost to the Group.
25.12. RECEIVABLES DISCOUNTING
No Obligor will, and each Obligor will procure that none of its
Subsidiaries will sell or otherwise dispose of any of its receivables
other than: (i) the sale, on arm's' length terms, of debts owing to the
Group which are more than 90 (ninety) days' overdue; or (ii) the sale,
on arm's length terms, of debts owing to the Group incurred in
connection with the sales of handsets, provided the aggregate amount of
receivables permitted to be sold pursuant to this paragraph (ii) shall
not at any time exceed an aggregate amount equal to US $20,000,000
(twenty million United States Dollars) or its equivalent.
25.13. INVESTMENTS
No Obligor will, and each Obligor will procure that none of its
Subsidiaries will, make any investment with cash other than a Permitted
Investment or in the business of the Group as permitted hereby or such
other investments as are permitted under clause 16.37 (Loans,
Guarantees and Investments in Subsidiaries) below.
25.14. RESTRICTED DISTRIBUTIONS
Partner will not and will procure that no member of the Group will:
(i) make or resolve to make any distribution (including, any
distribution defined as such under the Companies Law, 1999),
dividend or other similar payment (in cash or in kind) on or
in respect of any share capital or equivalent of a member of
the Group (except to Partner and, in the case of a Strategic
Investor in a Venture Subsidiary, except for distributions by
such Subsidiary to such Strategic Investor) or any repayment,
prepayment or payment (in cash or in kind) of the principal
of, or Interest (whether or not capitalised) or any other
amount on or in respect of Subordinated Debt or Shareholder
Loans (except to Partner and, in the case of a Strategic
Investor in a Venture Subsidiary, except for distributions by
such Subsidiary to such Strategic Investor), other than a
Permitted Distribution;
(ii) make or resolve to make any purchase, redemption, repurchase,
defeasance, retirement, return or repayment of any of its
share capital or equivalent or any loan capital or any
debenture of a member of the
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Group (other than by way of a reduction of share capital
without any payment to Shareholders), except to or for the
benefit of Partner;
(iii) make or resolve to make any other transfer of assets to or
Restricted Purchases from any Shareholder or other Restricted
Person (except as permitted under clause 16.23 (Arm's-Length
Terms) below); or
(iv) exercise any right of set-off in respect of any Shareholder
Loans or Subordinated Debt.
Where any payment is proposed to be made under this clause 16.14,
Partner shall, prior to making such payment, provide to the Instructing
Group not less than 10 Business Days before the proposed date for
payment, a certificate signed by an authorised signatory of Partner
showing:
(x) the date and amount of such proposed payment; and
(y) such calculations in reasonable details as are necessary to
show how the payment figure was arrived at and that the
provisions of the definition of 'Permitted Distributions' have
been complied with.
"PERMITTED DISTRIBUTION" means:
(i) a distribution of dividends on or in respect of any share
capital of Partner;
(ii) a distribution of principal, Interest or any other payments
under any Shareholder Loans;
(iii) a distribution of principal under any Subordinated Debt
(including, for the avoidance of doubt, debentures included in
Permitted Loan Capital);
(iv) a distribution of Interest under any Permitted Loan Capital
comprising debentures,
on condition, with respect to (i)-(iii) (inclusive) above, that all the
conditions referred to in (a)-(j) below are fulfilled and, on
condition, with respect to (iv) above, that the conditions referred to
in (b), (c), (d), (f) and (j) are fulfilled:
(a) Partner is able, in accordance with its Cash Flow as shown in
its most recent Accounts, to pay all outstanding operating
expenditure
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requirements (including Taxes and investment requirements) and
would remain able to do so after such payment;
(b) no amount due to be paid to the Security Trustee or any other
Agent under the Facility Agreement, on or before the date of
payment of the distribution, is unpaid;
(c) no amount due to be paid to any Participating Bank, on or
before the date of payment of the distribution, on account of
Interest on any Advance provided by a Participating Bank under
the Facilities, or on account of commitment commissions or
other charges arising from any banking or other financial
services provided by a Participating Bank to Partner, is
unpaid;
(d) no amount due to any Participating Bank, on or before the date
of payment of the distribution, on account of any repayment of
any of the Facilities, is unpaid;
(e) Permitted Distributions may not, in a given Financial Year,
exceed, in aggregate, an amount equal to 50% (fifty percent)
of Excess Cash Flow arising in relation to the previous
Financial Year;
(f) no Event of Default or Potential Event of Default is
outstanding or would exist after such payment;
(g) such distribution is made no earlier than one year after the
expiry of the Availability Period Facility C;
(h) Partner has repaid (disregarding, for this purpose, any amount
which has been prepaid and is capable of being reborrowed
under the terms of this Agreement) to the Participating Banks
on account of the Facilities an amount equal to at least 50%
(fifty percent) of the Total Commitments;
(i) with respect to distributions to be made:
(a) in any one year Ratio Period ("THE DISTRIBUTION
RATIO PERIOD") during the period 2003-2007
(inclusive), each of the Facility Debt Cover Ratio,
Total Debt Cover Ratio, Fixed Charge Coverage Ratio
and ADSCR for the one year Ratio Period immediately
preceding the Distribution Ratio Period, shall be
not less than 135% (one hundred and thirty-five
percent) of such minimum ratio required for such
immediately preceding one year Ratio Period pursuant
to the table in clause 16.32 below;
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(b) in the one year Ratio Period 2008, the Total Debt
Cover Ratio for the 2007 one year Ratio Period shall
be not less than 135% (one hundred and thirty-five
percent); and
(c) in the one year Ratio Period 2009, the Total Debt
Cover Ratio for the 2008 one year Ratio Period shall
be not less than 280% (two hundred and eighty
percent)
(j) Partner shall have complied with the provisions of clause
1.1.131(f) above.
25.15. SHARE CAPITAL
(a) Save only as permitted pursuant to the provisions of this
clause 16.15 below, no Obligor, other than Partner, will and
Partner will procure that, none of its Subsidiaries will,
issue any new share capital or grant any option over any
shares to any person other than to Partner or any wholly-owned
Subsidiary of Partner. Any shares or options issued to Partner
or any wholly-owned Subsidiary of Partner as aforesaid shall
first be charged in favour of the Security Trustee (as trustee
for itself and the Secured Creditors), as security for, inter
alia, Partner's obligations under the Facility Documents, to
the reasonable satisfaction of the Security Trustee.
Notwithstanding the foregoing, in the event a Strategic
Investor agrees to subscribe for shares in a Subsidiary for an
aggregate issuance price, payable on allotment in cash that
reflects the fair market value of such shares and that, upon
such subscription, such Strategic Investor would, if an
Affiliate of Partner, hold 20% (twenty percent) or more or, if
not an Affiliate of Partner, 10% (ten percent) or more of the
issued share capital and voting rights of the Subsidiary,
then, provided that: (i) Partner provides the Participating
Banks with a certificate to the Instructing Group's
satisfaction from an independent appraiser reasonably
acceptable to an Instructing Group certifying that the issue
price for such shares is their fair market value; and (ii) in
the case that the Strategic Investor is an Affiliate of
Partner, the subscription is otherwise on arm's length terms,
Partner shall be entitled to request the Facility Agent,
acting on the instructions of an Instructing Group, to: (1)
waive the requirements under this clause 16.15 that: (a) do
not permit the issuance of shares in such Subsidiary agreed to
be subscribed for by such Strategic Investor; (b) require
security to be granted over the shares to be issued to the
Strategic Investor in favour of the Security Trustee (as
trustee for itself and the Participating Banks); and (c)
require security to be given to the Security Trustee (as
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trustee for itself and the Secured Creditors) over the shares
of any Subsidiary of such Subsidiary; and (2) release such
Subsidiary from the obligation to guarantee the obligations of
Partner under the Facility Documents. Any such request shall
be signed by the General Manager of Partner and shall provide
all such information regarding any such proposed subscription
necessary, so as to enable the Participating Banks to
consider, on a case-by-case basis, whether to give such
consent, such consent not to be unreasonably withheld. Any
Subsidiary in respect of which the Participating Banks shall
have given a waiver and release in accordance with this clause
16.15 above (which, pursuant to this clause 16.15, has issued
shares to such Strategic Investor as aforesaid), shall
hereinafter be referred to as "A VENTURE SUBSIDIARY".
"STRATEGIC INVESTOR" shall mean a person or an Affiliate
thereof (which is not an Affiliate of Partner or any of its
substantial shareholders, as defined in the Companies Law,
1999) which is a reputable well-established company in the
telecommunications' or associated fields and can reasonably be
expected to add value to the business of the Venture
Subsidiary.
(b) Partner agrees that any rights of first refusal, limitations
on the transfer of Shares in Partner or other provisions of
the Shareholders Agreement which may restrict the pledge of
the Pledged Assets (as defined in the Share Pledges) (or any
of them in accordance with the Share Pledges) or which may
restrict the free transfer of any Pledged Assets in the course
of realisation of any security under the Share Pledges, shall
not apply to the Share Pledges or to any transfer made as part
of any realisation under the Share Pledges (except as
otherwise required under the Licence).
(c) Partner undertakes that it shall not issue any shares or other
securities convertible into shares which would cause a Change
of Ownership to occur.
25.16. INTELLECTUAL PROPERTY RIGHTS
Each Obligor will, and will procure that each of its Subsidiaries will:
(a) make such registrations and pay such fees and similar amounts
as are necessary to keep those registered Intellectual
Property Rights owned by the Group: (i) which are material to
the conduct of the business of any member of the Group from
time to time; or (ii) over which the Participating Banks have
been granted fixed security pursuant to the
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Security Documents (if any) in force and to record its
interest in those Intellectual Property Rights;
(b) take such steps as are necessary and commercially reasonable
(including the institution of legal proceedings) to prevent
third parties infringing those Intellectual Property Rights
referred to in paragraph (a) above and (without prejudice to
paragraph (a) above) take such other steps as are reasonably
practicable to maintain and preserve its interests in those
rights;
(c) promptly upon being required to do so by the Security Trustee,
comply with all proper instructions of the Security Trustee
which the Security Trustee is entitled to give under the
Security Documents in respect of its Intellectual Property
Rights referred to in paragraph (a)(ii) above;
(d) not sell, transfer, lease, license on an exclusive basis or
otherwise dispose of all or any part of its interest in any of
the Intellectual Property Rights referred to in paragraph (a)
above (whether in a single transaction or in a series of
transactions whether related or not and whether voluntarily or
involuntarily) save:
(i) as effected pursuant to any of the Security
Documents; or
(ii) for any licence arrangements in respect of those
rights entered into with any Obligor for so long as
it remains an Obligor; or
(iii) for any licence arrangements in respect of those
rights entered into with any third party, where those
licence arrangements are entered into on arm's length
terms and in the ordinary course of business and
which do not materially and adversely affect the
interests of the Participating Banks under the
Facility Documents or the conduct of business of any
member of the Group; and
(e) not permit any registration of any of the Intellectual
Property Rights referred to in paragraph (a) above to be
abandoned, cancelled or lapsed or to be liable to any claim of
abandonment for non-use or otherwise.
25.17. ENVIRONMENTAL MATTERS
Each Obligor will and will procure that each of its Subsidiaries will:
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(a) (i) obtain all requisite Environmental Licences; (ii) comply
with the terms and conditions of all Environmental Licences
applicable to it; and (iii) comply with all other applicable
Environmental Law, in each case where failure to do so would
have a Material Adverse Effect; and
(b) promptly upon receipt of the same, notify the Coordinating
Agent and the Security Trustee of any claim, notice or other
communication served on it in respect of any alleged breach of
or corrective or remedial obligation or liability under any
Environmental Law which would, if substantiated have a
Material Adverse Effect.
25.18. INSURANCE
(a) Each Obligor will, and will procure that each of its
Subsidiaries will, with effect from the date upon which the
first Advance is requested by Partner hereunder, insure and
keep insured all such properties and assets of such Obligor or
Subsidiary with insurance companies or underwriters (including
facultative reinsurance companies) approved by the Facility
Agent (such approval not to be unreasonably withheld or
delayed) to such extent, at such times and against such risks
as described in pages 29-31 of the Insurance Report (including
with respect to deductibles, exclusions and exceptions) (other
than departures from such basis which are not adverse in any
material respect (taking into account market availability and
cost and the views of any insurance advisers) to the interests
of the Finance Parties, or otherwise as the Facility Agent
(acting on the instructions of the Instructing Group) may
approve).
(b) Each Obligor will, and will procure that each of its
Subsidiaries will, with reasonable promptness after becoming
aware of the relevant requirement, effect and maintain all
insurances required by the terms of any applicable law or any
contract binding on it (including for the avoidance of doubt,
the Licence).
(c) Partner will ensure that it has such insurance coverage in
respect of any risks or liabilities other than those specified
in the Insurance Report as would from time to time generally
be insured by a prudent operator of a GSM telephony network
(including also 2.5 generation and 3rd generation) (financed
on a project finance basis) of a size, and with general
characteristics (including location) comparable to the
Business which does not self-insure (except by means of
reasonable deductibles required by insurers generally) and
having regard to all the circumstances (including the
interests of the Participating Banks), and taking into
account, among other things, market availability in respect
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of risks, liabilities and amounts of insurance and the
financial position of Partner.
(d) Subject as hereinafter provided, Partner may, or any Obligor
may, at any time, effect such other insurances in addition to
or supplementing those referred to in this clause 16.18 as it
may think fit. Provided that such supplementary insurance
shall not adversely affect any insured party's rights or
ability to recover under the insurance referred to in this
clause 16.18 and Partner shall notify the Facility Agent at
least annually of any material insurances effected since the
previous such notification pursuant to this paragraph (d).
(e) Each Obligor will promptly supply to the Facility Agent on
request evidence reasonably satisfactory to the Facility Agent
of payment of all premiums and other amounts payable by it
under, and a certified copy of, each insurance policy required
to be taken out and maintained by it pursuant to this clause
16.18 (or, in the case of any marine cargo insurance policy
taken out by the Counterparty to the Principal Supplier
Contract, a certified summary of key terms) together with such
other information as to the insurance policies taken out
pursuant hereto (including regarding renewals thereof) as the
Facility Agent may reasonably request (except for
miscellaneous insurances as referred to in the schedule to the
Insurance Report).
(f) Partner shall ensure that, in respect of each policy of
insurance and reinsurance taken out by any Obligor pursuant to
this clause 16.18 (except for miscellaneous insurances as
referred to in the schedule to the Insurance Report):
(i) a clause is endorsed upon such policy whereby the
insurer agrees that the insurance cover shall not be
invalidated so far as the Security Trustee is
concerned by any breach of the insuring conditions or
any other act or omission unknown to or beyond the
control of the Security Trustee on the part of the
relevant Obligor or any other person;
(ii) an undertaking is endorsed upon such policy by the
insurer to notify the Security Trustee promptly in
writing if the premium or other moneys payable under
such policy are not paid when due and to refrain from
cancelling such policy by reason only of the
non-payment of such monies for a period of at least
30 (thirty) days from the due date;
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(iii) a provision is endorsed upon such policy to the
effect that the relevant insurance company waives any
rights of contribution arising against any other
insurance taken out by the Agents and the
Participating Banks (or any of them) in respect of
payments made by it and any rights of subrogation
arising in respect of the rights of the Agents and
the Participating Banks (or any of them) under the
Facility Documents,
(iv) a notice of assignment is duly given to the brokers
or the underwriters and insurance companies in
accordance with the Debenture;
(v) the Security Trustee (for the benefit of itself and
the Secured Creditors) is joined as an additional
insured thereunder and the interest of the Security
Trustee (for the benefit of itself and the Secured
Creditors) is duly noted and endorsed upon all slips,
cover notes, policies or other instruments of
insurance issued or to be issued in connection
therewith;
subject to each of such clauses, undertakings and provisions
being viable commercially in the Israeli and international
insurance market.
If facultative reinsurance is effected in relation to any
policy of insurance taken out pursuant hereto, Partner shall
use all reasonable endeavours to ensure that, if practicable
in the insurance market and achievable at no material extra
cost, a provision is endorsed thereon whereby each reinsurer
agrees that in the event of a claim under the policy of the
reassured, in lieu of payment to the reassured, their
successors in interest and assigns, the reinsurers shall pay
that portion of any loss due direct to the insured parties
(less the premium, if any, due to the reinsurers) and whereby
it is understood and agreed that any such payment shall fully
discharge the reinsurers from any and all further liability in
connection therewith. If Partner cannot effect reinsurance
with such a provision endorsed thereon, in place of
reinsurance it will: (i) place the relevant insurance on a
co-insured basis with insurers approved by the Facility Agent
(such approval not to be unreasonably withheld or delayed); or
(ii) obtain an assignment of facultative reinsurance by the
insurers to the Security Trustee.
(g) Each Obligor will ensure that (except for public liability and
miscellaneous insurances (as referred to in the schedule to
the Insurance Report)) all of the insurance policies required
to be taken out and maintained by it pursuant to this clause
16.18 shall contain loss payee provisions acceptable to the
Security Trustee noting the
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Security Trustee's interest thereon and naming the Security
Trustee as the payee in circumstances where an Event of
Default has been notified in writing to the insurer or broker
as applicable by the Security Trustee and is continuing
unwaived.
(h) Save in the circumstances referred to in clause 16.18(i)
below, all moneys received or receivable under any insurances
in respect of property or assets damaged or destroyed or
business interruption shall promptly (subject to the rights
and claims of any person having prior rights thereto) be
applied: (i) subject to (ii) below, at the option of Partner,
either: (A) in repairing, replacing, restoring or rebuilding
the property or assets damaged or destroyed or (in the case of
business interruption insurance) in the Business as Partner
reasonably see fit as permitted pursuant to this Agreement or
(in the case of third party liability cover) in satisfaction
of the third party liability in question; or (B) in payment of
amounts due under the Facility Documents; or (ii) on and after
the occurrence of any Event of Default and for so long as such
event is continuing, at the option of the Security Trustee:
(A) to prepay the outstanding Advances in accordance with
clause 6 (Voluntary Prepayment and Reborrowing) above, as if
such prepayment was a voluntary prepayment; or (B) in
repairing, replacing, restoring or rebuilding the property or
assets damaged or destroyed or (in the case of business
interruption insurance) in the Business as the Security
Trustee reasonably see fit as permitted pursuant to this
Agreement or (in the case of third party liability cover) in
satisfaction of the third party liability in question and if
any such moneys shall be received by Partner where the
circumstances in sub-paragraph (ii) apply, Partner shall
(subject to the rights and claims of any person as aforesaid)
hold such moneys upon trust for the Security Trustee pending
payment to the Security Trustee for application in accordance
with the Security Trust Deed, or as the case may be,
application by Partner in repairing, replacing, restoring or
rebuilding the property or assets damaged or destroyed.
(i) All moneys received or receivable under any insurances whilst
a Potential Event of Default (but not an Event of Default) has
occurred and is continuing shall be placed to the credit of a
blocked account subject to an encumbrance in favour of the
Security Trustee until the Potential Event of Default ceases
to exist or is waived (in which case Partner may apply
insurance proceeds in accordance with clause 16.18(h)(i)
above) or the relevant Potential Event of Default becomes an
Event of Default (in which case the Security Trustee may apply
insurance proceeds in accordance with clause 16.18(h)(ii)
above).
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(j) Partner shall:
(i) promptly notify the Facility Agent of any insurance
claim where the amount of such claim exceeds US
$2,500,000 (two million five hundred thousand United
States Dollars) (or its equivalent, on the date on
which the claim is made, in the currency in which
such claim is made);
(ii) take all action reasonably within its power to
procure that nothing is done or offered to be done
whereby any of the insurances taken out hereunder may
be rendered void, voidable, unenforceable, suspended
or impaired in whole or in part or to otherwise
render any sum paid out under any such policy
repayable in whole or in part.
(k) If, at any time, owing to changes in the Israeli or
international insurance market or in the capacity or
availability or cost of insurance coverage in those
markets or any other change in circumstances giving
rise to changes in the insurance coverage being
necessary or desirable, Partner or, as the case may
be, the Facility Agent serve notice upon one another
that it believes that the insurance provisions in
this Agreement no longer reflect the insurance
coverage of the risks or liabilities which would be
insured by a prudent operator of a GSM telephony
network (including also 2.5 generation and 3rd
generation) (financed on a project finance basis) of
a size, and with the characteristics (including, with
limitation, location), comparable to that of the
Group which does not self-insure (except by means of
reasonable deductibles required by insurers
generally) or that the premia for any insurances
effected pursuant hereto are unreasonably expensive
in the context of Partner's business and financial
condition, as soon as practicable thereafter, Partner
and the Facility Agent shall consult, in good faith,
and take reasonable steps to ensure that the
insurance arrangements to be effected by Partner are
revised such that the level of insurance of risks or
liabilities to be covered are those which would be
insured by a prudent operator of a GSM telephony
network (including also 2.5 generation and 3rd
generation) (financed on a project finance basis) of
a size, with the characteristics (including location)
comparable to that of Partner which does not
self-insure (except by means of reasonable
deductibles required by insurers generally).
25.19. NOTIFICATION OF DEFAULT
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Each Obligor shall notify the Facility Agent of any Event of Default or
Potential Event of Default of which it is aware (and the steps, if any,
being taken to remedy it) promptly upon becoming aware of it.
25.20. CHANGE OF BUSINESS
(a) No Obligor will, and each Obligor will procure that none of
its Subsidiaries will:
(i) make or threaten to make any substantial change in
the nature of its respective business (save as
contemplated in the Business Plan or as may result
from a disposal of assets permitted by this
Agreement); or
(ii) carry on any business other than the Business;
provided that, in respect of a Venture Subsidiary or
any Subsidiary thereof, such Venture Subsidiary or
Subsidiary thereof may carry on a business which is
in the telecommunications sector.
(b) No Obligor shall bid for any other telephone licence (other
than any licence for activities ancillary to its GSM business
and its business of establishing and operating second
and-a-half and third generation (known as 2.5 and 3G) wireless
telephone services (all as contemplated in the version of the
Business Plan dated 7 July 2002 delivered to the Facility
Agent on 11 July 2002 which would use existing infrastructure
and require no material Capital Expenditure) unless: (i) it
shall have received the prior written consent of an
Instructing Group (not to be unreasonably withheld); (ii) the
financing of such bid and all activities contemplated thereby
shall be financed from a source other than under the
Facilities; and (iii) the making of such bid, or the carrying
out of any activities contemplated by such bid, would not
result in a Material Adverse Effect.
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25.21. ACQUISITIONS AND MERGERS
Neither Partner nor any of the Subsidiaries shall enter into or resolve
to approve any merger or consolidation, scheme of reconstruction,
liquidation, or to transfer its Business or part thereof to, or make
any Acquisition, other than: (a) disposals permitted pursuant to clause
16.8 (Disposals) above; (b) Acquisitions or mergers or consolidations
to which the prior consent of all the Participating Banks has been
obtained; (c) Acquisitions, the funding of which is from the Permitted
Loan Capital or the sale by Partner of securities permitted hereunder;
or (d) Acquisitions by Subsidiaries.
25.22. BORROWINGS
Partner shall not incur any Borrowings, other than Permitted
Borrowings. A Subsidiary of Partner shall be entitled to incur
Borrowings, provided that, the debt to equity ratio (as the terms
"debt" and "equity" are defined in accordance with Applicable
Accounting Principles; "equity" to include shareholder loans made to
such Subsidiary) of such Subsidiary in accordance with such
Subsidiary's consolidated Accounts shall at all times not exceed 60:40.
25.23. ARM'S-LENGTH TERMS
No Obligor will, and each Obligor will procure that none of its
Subsidiaries will incur any liability to or for the benefit of any
Restricted Person (other than in relation to Shareholder Loans or
Paid-in Equity) otherwise than under agreements which are on terms no
worse to the Group than on an arm's length terms in the ordinary course
of business and, in respect of agreements entered into after the date
of this Agreement, where there have been bona fide negotiations
relating to such terms.
25.24. COMPLIANCE WITH LAWS
Each Obligor will, and will procure that each of its Subsidiaries will,
comply in all respects material to the Participating Banks with all
applicable laws, rules, regulations and orders of any governmental
authority, having jurisdiction over it or any of its assets.
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25.25. CONSENTS AND AUTHORISATIONS
(a) Each Obligor will, and will procure that each of its
Subsidiaries will, obtain or cause to be obtained:
(i) every consent, authorisation, licence or approval of,
or registration with or declaration to, governmental
or public bodies or authorities or courts; and
(ii) every notarisation, filing, recording, registration
or enrolment in any court or public office in Israel,
in each case required by any Obligor to authorise, or required
by any Obligor in connection with, the execution, delivery,
validity, enforceability or admissibility in evidence of the
Facility Documents and Material Contracts or the performance
by any Obligor of its respective obligations under the
Facility Documents and Material Contracts to which it is a
party.
(b) Each Obligor will, and will procure that each of its
Subsidiaries will obtain or cause to be obtained every
Authorisation relevant to it and ensure that: (i) none of the
Authorisations is revoked, cancelled, suspended, withdrawn,
terminated, expires and is not renewed or otherwise ceases to
be in full force and effect; and (ii) no Authorisation is
modified and no member of the Group commits any breach of the
terms or conditions of any Authorisation which, in the case of
(i) or (ii), would or is reasonably likely to have a Material
Adverse Effect.
25.26. LICENCE
Partner:
(a) will notify the Facility Agent promptly upon the occurrence of
any breach of the Licence or upon the receipt of any notice or
communication between the Ministry and Partner or any other
member of the Group in connection with the Licence which
either: (i) claims a breach of the Licence; or (ii) which
could reasonably be expected to give rise to a revocation,
termination, amendment, suspension or withdrawal of the
Licence; or (iii) which otherwise may be likely to have a
Material Adverse Effect (including, for the avoidance of
doubt, any notice or communication regarding the non-extension
of the Licence or any reduction of frequency spectrum).
Partner will do all such things (at the expense of Partner) as
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reasonably requested by the Facility Agent if the Facility
Agent reasonably believes: (x) the Licence to be in danger of
revocation, termination, amendment, suspension or withdrawal,
to mitigate the revocation, termination, amendment, suspension
or withdrawal of the Licence, or (y) that any such matters so
notified to it may be reasonably likely to have an adverse
effect upon the interests of the Finance Parties under the
Facility Documents. Partner shall, at the request of the
Facility Agent, consult with the Facility Agent in good faith
with a view to the making of any oral or written submissions
or responses to be made in relation to any matter or thing
which gives rise to the Facility Agent having any such
reasonable belief as referred to above and to the possibility
of representatives of the Finance Parties attending any
meetings with the Ministry in connection therewith. Following
the occurrence of an Event of Default or a Potential Event of
Default which is continuing, upon the request of the Facility
Agent, Partner shall use its reasonable endeavours to make
oral or written submissions to the Ministry on behalf of the
Finance Parties and, if required by the Facility Agent, seek
the Ministry's agreement to representatives of the Finance
Parties attending any meetings with the Ministry;
(b) will do all such things and take such steps as are necessary
to ensure the Licence remains in full force and effect and,
will not take any steps or action which would prejudice in any
material respect its ability to renew the Licence and will
notify the Facility Agent promptly upon the receipt of any
material notice or communication in connection with such
renewal;
(c) will not dispose of any of its rights under the Licence;
(d) will not agree to any material amendment to or material
variation of the Licence or waive any material right
thereunder;
(e) will deliver to the Facility Agent in sufficient copies for
the Agents and the Participating Banks any notice or
communications referred to in paragraph (a) of this clause
16.26 together with copies of all other material notices
between Partner and the Ministry.
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25.27. MATERIAL CONTRACTS AND CONSTITUTIONAL DOCUMENTS
(a) Each Obligor shall comply with the terms of each of the
Material Contracts to which it is party save to the extent
that failure to comply with any such term would not be
reasonably likely to result in a Material Adverse Effect.
(b) No Obligor shall, without the prior written consent of the
Facility Agent (acting on the instructions of an Instructing
Group), amend, cancel, supplement, supersede or waive any term
of a Material Contract to which it is a party in any respect
save to extent that the same is not materially adverse to the
interests of the Participating Banks under the Facility
Documents.
(c) Partner shall notify the Facility Agent promptly after the
entry into by any Obligor of any agreement, deed or contract
which it reasonably considers may constitute a Material
Contract.
(d) Each Obligor shall take all reasonable action necessary to
perfect, preserve and enforce all of its rights under the
Material Contracts (if any) to which it is a party.
(e) No Obligor shall amend its Charter in any respect materially
adverse to the interests of the Participating Banks without
the prior written consent of the Facility Agent (acting on the
instructions of an Instructing Group).
25.28. AUDITORS
(a) If Partner wishes to change its Auditors it will notify the
Facility Agent as to the reasons for any such proposed change
and if the Facility Agent so requests, will instruct the audit
partner of each of the outgoing firm of Auditors and the
replacement firm of Auditors to discuss the financial position
of the Group with the Facility Agent.
(b) Partner will authorise the Auditors to discuss the Group's
and/or any Group member's financial position with the Facility
Agent on its reasonable request or at the reasonable request
of the Facility Agent, at the expense of Partner, pursuant to
a letter to be sent by Partner to the Auditors in the form set
out in SCHEDULE 20 (Letter to Auditors) hereto. If the
Facility Agent so requests any discussion with the Auditors,
the Facility Agent shall give Partner reasonable notice of any
meeting or other forum used for such discussion which shall
take place at a reasonable time and the Facility Agent shall
(if so requested
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by Partner) enable a representative of Partner to be present at the
relevant discussion.
25.29. HEDGING AGREEMENTS
(a) Partner shall ensure it manages its Interest rate and currency
exchange exposure in a prudent manner and shall on the last
Business Day of each month notify details of any Hedging
Transactions entered into during the preceding month to the
Facility Agent.
(b) Partner shall not enter into any Hedging Transaction other
than:
(i) Interest Rate Hedging Transactions entered into for
the purposes of clause 16.29(a) (Hedging Agreements);
(ii) spot foreign exchange contracts entered into in the
ordinary course of business; and
(iii) foreign exchange transactions, currency swaps or
currency options entered into for the purposes of
hedging actual or projected foreign exchange
exposures arising in the ordinary course of business
carried on in compliance with the terms of this
Agreement.
(c) Partner shall not enter into any Hedging Transactions for any
speculative purpose.
(d) Partner shall only enter into Interest Rate Hedging Agreements
with Counterparties which are: (i) Participating Banks; (ii)
financial institutions rated at least "A-" by S&P or
equivalent by ▇▇▇▇▇'▇; (iii) the Arranger; or (iv) subject to
paragraph (g) below, HWL or any HWL Hedging Subsidiary. Such
Counterparties will be Secured Creditors provided that the
relevant Interest Rate Hedge Provider is a Participating Bank
(in such capacity a "SECURED INTEREST RATE HEDGE PROVIDER").
(e) Partner shall enter into Currency Hedging Agreements other
than spot foreign exchange contracts entered into in the
ordinary course of business with counterparties which are: (i)
Participating Banks; or (ii) other financial institutions
rated at least "A-" by S&P or "A3" by ▇▇▇▇▇'▇; or (iii) the
Arranger.
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(f) Partner shall ensure that at all times its rights and benefits
under any Hedging Agreement are assigned by way of security to
the Security Trustee.
(g) Partner may only enter into Interest Rate Hedging Transactions
with HWL or any HWL Hedging Subsidiary provided that:
(i) each Interest Rate Hedging Agreement is documented
pursuant to an 1992 ISDA Master Agreement
(Multi-currency-Cross Border) Agreement (together
with the applicable Schedule and confirmation);
(ii) HWL is rated not less than "A" by S&P or equivalent
by ▇▇▇▇▇'▇ at the time such Interest Rate Hedging
Transaction is entered into;
(iii) Partner certifies that such Interest Rate Hedging
Transaction is on terms at least as favourable to
Partner as those available to Partner in the market,
which certificate shall attach quotes from two
leading banks which generally operate in the swap
market;
(iv) for the avoidance of doubt HWL may not be a Secured
Interest Rate Hedge Provider; and
(v) (1) HWL and (in the case of any HWL Hedging
Subsidiary), the relevant HWL Hedging
Subsidiary, shall have first executed an
undertaking in substantially the same form as
was given, prior to its release on 3 November
1999, by HWL under clauses 7.2 and 7.3 of the
HWL Counter Guarantee (as defined in the
Original Facility Agreement), save that HWL
and, if applicable, the HWL Hedging
Subsidiary, shall, in such undertaking, submit
to the exclusive jurisdiction of the competent
courts of
Tel-Aviv-Jaffa and appoint, in
connection therewith, an agent for service of
proceedings located in Israel and that such
undertaking shall otherwise be in form and
substance satisfactory to the Facility Agent;
(2) that, in the case of any HWL Hedging
Subsidiary, HWL has executed a guarantee in
favour of Partner in respect of the relevant
HWL Hedging Subsidiary's obligations arising
under the Interest Rate Hedging Transaction
concerned;
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(3) that there has been provided to the Facility Agent
such constitutive board resolutions and certificates
in relation to paragraphs (1) and (2) above as it may
reasonably require, together with a legal opinion in
form and substance satisfactory to the Facility
Agent; and
(4) that where any undertaking as referred to in (1)
above, has been given, that HWL and, if applicable,
any HWL Hedging Subsidiary that has given an
undertaking as aforesaid, are in full compliance with
the same.
25.30. SUBSIDIARIES
No Obligor shall, without the prior written consent of the Instructing
Group, acquire (by subscription or otherwise) any shares or
equity-related securities in any other entity and, in particular but
without limitation, shall not acquire or establish any new Subsidiary
unless such Subsidiary:
(a) is a Dormant Company; or
(b) is a Venture Subsidiary or a Subsidiary of a Venture
Subsidiary; or
(c) is a wholly-owned Subsidiary that becomes an Additional
Guarantor in accordance with clause 26.1 (Additional
Guarantors) and provides such Encumbrances in respect of the
Facilities as required pursuant to clause 26.2 (Security).
25.31. TAXATION
Each Obligor shall file or cause to be filed all tax returns required
to be filed in all jurisdictions in which it is situated or carries on
business or otherwise subject to pay Tax and will promptly pay all
Taxes which are due and payable on such returns or any assessment made
against it except for non-payment, or a claim for payment, non-payment
of which would in each such case not have a Material Adverse Effect.
25.32. FINANCIAL UNDERTAKINGS
The covenants set out in this clause 16.32 (Financial Undertakings)
below for any Ratio Period shall be based on the Accounts (including
the Auditors' certificates and notes referred to in clause 1.2.2 above)
for such Ratio Period (whether Accounts for 6 (six) months, in the case
of six month Ratio Periods, or for 1 (one) year, in the case of one
year Ratio Periods), subject, with respect to six month Ratio Periods,
to those adjustments set out below.
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Partner will procure that for each of the one year Ratio Periods set
out below, and for each of the six month Ratio Periods set out below,
each of the financial ratios set out in the table below shall be no
less than the percentage set out in the table for such one year Ratio
Period or six month Ratio Period, as the case may be, opposite such
financial ratios:
FACILITY DEBT TOTAL DEBT FIXED CHARGE
COVER RATIO COVER RATIO COVERAGE RATIO ADSCR YEAR
============================ =========================== ========================== =========================
1st Six
1st Six One Year 1st Six One Year Month One Year 1st Six One Year
Month Ratio Ratio Month Ratio Ratio Ratio Ratio Month Ratio Ratio
Period Period Period Period Period Period Period Period
2002 33% 25% 83% 200%
2003 35% 37% 26% 27% 75% 75% 200% 200%
2004 38% 40% 28% 29% 88% 95% 183% 172%
2005 45% 50% 31% 33% 97% 99% 150% 150%
2006 57% 65% 39% 45% 102% 105% 150% 150%
2007 65% 65% 45% 45% 105% 105% 150% 150%
2008 65% 45% 105% 165%
Provided that, in the event that:
(a) for any Ratio Period there is, with respect to not more than 2
(two) ratios (and if there is a deviation with respect to 2
(two) ratios, one of which is ADSCR) a deviation from the
requirement set out in the above table for such ratio of not
more than 5% (five percent) (such that the actual ratio shall
not be less than 95% (ninety-five percent) of the ratio as
required in the table); and
(b) there has not been in respect of any one or both of the ratios
referred to in (a) above (in respect of which there is a
deviation of 5% (five percent) or less for such Ratio Period),
any deviation in any one of the 3 (three) Ratio Periods
(disregarding, for the avoidance of doubt, any Ratio Period
prior to the 2002 one year Ratio Period) preceding such Ratio
Period,
then Partner shall be deemed to have complied with this clause 16.32.2
in respect of such Ratio Period.
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For the purposes of all the conditions in this clause 16.32, insofar as
applicable to six month Ratio Periods, in calculating EBITDA after SAC,
the amount of EBITDA after SAC must be multiplied by 2 (two).
For the removal of doubt, the permitted deviations referred to in this
clause 16.32 (Financial Undertakings) above are permitted only for the
purposes of this clause 16.32 (Financial Undertakings) and not for any
other purpose under this Agreement.
25.33. ACCESS
At any time whilst a Potential Event of Default or Event of Default is
continuing, or the Facility Agent reasonably believes a Potential Event
of Default or Event of Default may be in existence: (a) Partner shall
ensure, as far as it is able, that at reasonable times, on reasonable
prior notice by the Facility Agent (acting upon the instructions of an
Instructing Group), any professional adviser to the Facility Agent or
representative of the Facility Agent or any other Agent be afforded
access to, and be permitted to inspect or observe, all or any part of
the Business subject to any reasonable confidentiality undertaking
required by it; and (b) Partner shall permit any professional adviser
to the Facility Agent or representative of the Facility Agent or the
Agents, at reasonable times and on reasonable prior notice by the
Facility Agent, to have access to books, records, accounts, documents,
computer programmes, data or other information in the possession of or
available to it subject to any reasonable confidentiality undertaking
required by it and to take such copies as may be considered appropriate
by such representative or professional adviser acting reasonably.
25.34. INTERCONNECTION
(a) Partner shall keep the Facility Agent promptly informed of all
material developments relating to the entry into the Bezeq
Interconnection Agreement. Promptly following execution of any
Interconnection Agreement, Partner shall deliver to the
Facility Agent a copy of such Interconnection Agreement
(provided that Partner may delete any reference contained
therein which it reasonably believes to be commercially
sensitive price or tariff information prior to the supply of
such Interconnection Agreement).
(b) Each of the parties hereto agree that the Facility Agent may
only supply copies of any Interconnection Agreement delivered
to it under clause 16.34(a) (Interconnection) above to (i) the
Security Trustee if such Interconnection Agreement is assigned
by way of security in favour of the Security Trustee; and (ii)
any other Finance Party
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(including the Security Trustee) if any Potential Event of
Default or Event of Default of whatsoever nature is
outstanding or if the Facility Agent reasonably believes that
a Potential Event of Default or Event of Default may have
occurred by reason of any event, matter or circumstance
occurring with respect to such Interconnection Agreement.
(c) Partner shall ensure that Interconnection Agreements are
entered into with such other persons (apart from Bezeq) and on
such terms as may in each case be reasonably necessary or
appropriate for the purposes of carrying out the Business as
contemplated by the Business Plan.
(d) Partner shall promptly notify the Facility Agent upon it
becoming aware of any action or inaction or intended action or
inaction of Bezeq which is reasonably likely to have a
materially adverse effect on the provision of interconnection
infrastructure and services by Bezeq to Partner.
25.35. RESERVE ACCOUNT
Partner shall, in accordance with clause 1.1.131(f) above, establish,
maintain and supplement the Reserve Account, charged, in accordance
with clause 1.1.131(f) above, in favour of the Security Trustee (as
trustee for itself and the Secured Creditors pursuant to the
Debenture), unless and until no longer required to do so pursuant to
paragraphs (i) or (ii) of clause 1.1.131(f).
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25.36. UTILISATION OF PROCEEDS OF FACILITIES
Partner shall not utilise the proceeds from any Advance received under
the Facilities, except for those purposes referred to in clause 2 (The
Facilities) of this Agreement.
25.37. LOANS, GUARANTEES AND INVESTMENTS IN SUBSIDIARIES
(a) Partner shall be permitted to utilise the proceeds of Advances
under the Facilities in order to make loans, to give
guarantees in respect of, or to make investments in the share
capital of, a Subsidiary in which Partner holds, at least, 75%
(seventy-five percent) of the issued share capital and voting
rights, provided that: (i) the business of such Subsidiary is
exclusively in the field of the Business; (ii) the aggregate
amount of any such loans, guarantees or investments in any
such Subsidiary shall not exceed, individually, US $2,000,000
(two million United States Dollars); and (iii) the aggregate
amount, at any time, of any such investments, loans and
guarantees in all such Subsidiaries shall not exceed US
$5,000,000 (five million United States Dollars), all subject
to the provisions of clause 7.3 (Investment by Partner in
Subsidiaries) above.
(b) Partner shall be permitted to make loans, to give guarantees
in respect of, or make investments in, the share capital of:
(i) any Subsidiary, after the Effective Date, from the
proceeds of Permitted Loan Capital or the issue of
shares in Partner;
(ii) subject to clauses 16.22 (Borrowings) and 16.8
(Disposals) above, any Subsidiary, where such loan,
guarantee or investment is made for the purpose of
financing the purchase from Partner of assets;
provided that: (1) in the case of an asset which is
the subject of fixed security under any Security
Document (or an asset which comprises of any shares
held by Partner), such assets are acquired by such
Subsidiary subject to such fixed security under the
Security Documents, such security is duly registered
and valid and has the same priority as if such
Subsidiary had originally pledged such asset under
such Security Document in place of Partner and, (2)
in any other case, such Subsidiary shall have first
granted a first-ranking fixed charge over such assets
in favour of the Security Trustee (for the benefit of
itself and the Secured Creditors) in a form
substantially similar to the security granted by
Partner under the Debenture; and that (3) in the
event the consideration payable
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for such assets is in excess of US $10,000,000 (ten
million United States Dollars) (or is in excess of
such amount when aggregated with other consideration
paid in respect of any other assets purchased from
Partner as aforesaid during the preceding 12 (twelve)
months), a certificate, in a form reasonably
acceptable to the Instructing Group, from an
appraiser certifying that the consideration paid for
all of such assets was its fair value, is provided to
the Participating Banks prior to such purchase.
(c) Save as permitted under this clause 16.37 above,
Partner shall not be entitled to make loans to, give
guarantees in respect of, or make investments in the
share capital of, any Subsidiary.
25.38. SHARE PLEDGES
Subject to clause 34.2 (Release of Share Pledges) below, Partner shall
procure that at all times not less than 51% (fifty-one percent) of
Partner's issued share capital (including, for this purpose, any
securities convertible or realisable into shares of Partner), from time
to time, are pledged by the Chargors under the Share Pledges and
Partner shall not issue any such shares or securities, unless
immediately prior to such issue, the number of shares pledged by the
Chargors as aforesaid is such that immediately after such issue,
Partner shall comply with the provisions of this clause 16.38.
25.39. NON-ACQUISITION BY SUBSIDIARY
Partner shall procure that no Subsidiary of Partner shall acquire any
share or other securities of Partner, nor the rights with respect to
any Indebtedness owed to Partner.
26. DEFAULT
26.1. EVENTS OF DEFAULT
Each of the events set out in clause 17.2 (Non-Payment) to clause 17.24
(Non-Compliance with any Securities Authority) (inclusive) below is an
Event of Default (whether or not caused by any reason outside the
control of any or all of the Obligors or any other person).
26.2. NON-PAYMENT
Any Obligor does not pay on the due date any amount payable by it under
any Facility Document at the place and in the funds expressed to be
payable,
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provided that this clause 17.2 (Non-Payment) shall not apply: (i) to
unpaid amounts of principal which are paid in full within two Business
Days of the due date for payment; or (ii) to unpaid amounts of Interest
or other amounts (except principal) which are paid in full within 5
(five) Business Days after the due date for payment.
26.3. BREACH OF OBLIGATIONS
(a) There is any breach of any of clauses 2.1.2, 2.4 (Purpose),
4.5(b) (Outstandings in Proportion to Commitments--Facility
B), 16.6 (Negative Pledge), 16.7 (Sale and Leaseback), 16.8
(Disposals), 16.10 (Loans and Guarantees) to 16.15 (Share
Capital) (inclusive), 16.22 (Borrowings), 16.32 (Financial
Undertakings) or 16.35 (Reserve Account) to 16.39
(Non-Acquisition by Subsidiary) (inclusive), above.
(b) Partner fails to comply with the provisions of clause 4.5(a)
(Outstandings in Proportion to Commitments--Facility A and
Facility C) above and within 21 (twenty-one) days after the
earlier of Partner becoming aware of such default and receipt
by Partner of written notice from the Coordinating Agent
requiring the failure to be remedied, Partner shall have
failed to cure such default.
(c) Any Obligor fails to comply with any undertaking or obligation
contained in any Facility Document and, if such default is
capable of remedy within such period, within 30 (thirty) days
after the earlier of the Obligor becoming aware of such
default and receipt by the Obligor of written notice from the
Facility Agent requiring the failure to be remedied, that
Obligor shall have failed to cure such default.
26.4. MISREPRESENTATION/BREACH OF WARRANTY
(a) Any representation or warranty contained in clauses 15.7
(Consents), 15.8(c) or (d) (Accounts), 15.10 (Tax
Liabilities), 15.12 (Business Plan), 15.13 (Ownership of
Assets), 15.14 (Documents), 15.15(a) (Intellectual Property
Rights), 15.16 (Environmental Matters) or 15.18 (Material
Contracts) is incorrect or misleading in any respect when made
or deemed repeated by reference to the facts and circumstances
then subsisting.
(b) Any representation or warranty contained in clauses 15.5(c)
(Non Conflict), 15.6(b) (No Default), 15.10 (Tax Liabilities)
or 15.15(b) (Intellectual Property Rights) is incorrect or
misleading in any respect when deemed repeated pursuant to
clause 15.21 (Repetition).
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(c) Any other representation or warranty made or repeated by or on
behalf of any Obligor in any Facility Document, or in any
certificate or statement delivered by or on behalf of any
Obligor or other member of the Group under any Facility
Document, is incorrect or misleading in any material respect
when made or deemed to be made or repeated by reference to the
facts and circumstances then subsisting.
26.5. CROSS-ACCELERATION AND CROSS-DEFAULT
(a) Any amount in respect of Borrowings of any one or more members
of the Group (taken together if more than one) which aggregate
US $5,000,000 (five million United States Dollars), or its
equivalent, or more at any one time outstanding:
(i) becomes prematurely due and payable;
(ii) becomes due for redemption before its normal maturity
date; or
(iii) is placed on demand,
in each such case by reason of the occurrence of an event of
default (howsoever characterised) or any event having the same
effect resulting from a default by a member of the Group.
(b) Any amount in respect of such Borrowings which aggregate US
$5,000,000 (five million United States Dollars), or its
equivalent, or more, are not paid when due (whether falling
due by demand, at scheduled maturity or otherwise) or within
any applicable grace period provided for in the document
evidencing or constituting those Borrowings.
(c) Any Encumbrances over any assets of any one or more members of
the Group (taken together if more than one) securing an
aggregate of US $5,000,000 (five million United States
Dollars), or its equivalent, or more become enforceable and
steps are taken to enforce the same.
(d) Any Obligor fails to discharge in full any judgment debt
entered against it in excess of an aggregate amount of US
$5,000,000 (five million United States Dollars), or its
equivalent, within 30 (thirty) days of the relevant judgment
being entered against the relevant Obligor unless such
judgment is being contested in good faith on reasonable
grounds following external legal advice.
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(e) For the purposes of this clause 17.5 only, "BORROWINGS" shall
include Indebtedness pursuant to Hedging Transactions and, in
any such case the "amount" in respect of such Hedging
Transactions shall be the amount under the relevant Hedging
Transaction which becomes prematurely due and payable, due for
redemption before its normal maturity date, placed on demand
or is not paid when due or within any applicable grace period.
(f) There is any event of default under any debenture comprising
Permitted Loan Capital.
26.6. INVALIDITY
Any of the Facility Documents shall cease to be in full force
and effect in any material respect or shall cease to
constitute the legal, valid, binding and enforceable
obligation of any Obligor party to it or, in the case of any
Security Document, fail to provide effective perfected
security in favour of the Security Trustee (for the benefit of
itself and the Secured Creditors) over the assets over which
security is intended to be given by that Security Document
(save for any Reservations), or it shall be unlawful for any
Obligor to perform any of its material obligations under any
of the Facility Documents.
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26.7. INSOLVENCY AND RESCHEDULING
Any Obligor is unable to pay its debts as they fall due or admits
inability to pay its debts as they fall due, commences negotiations
with any one or more of its creditors with a view to the general
readjustment or rescheduling of its Indebtedness or makes a general
assignment for the benefit of or a composition with its creditors.
26.8. WINDING-UP
Any Obligor takes any corporate action or other steps are taken or
legal proceedings are started (or are consented to or any order is
made) for its winding-up, liquidation, bankruptcy, dissolution,
administration or re-organisation (or for the suspension of payments
generally or any process giving protection against creditors) or for
the appointment of a liquidator, receiver, administrator,
administrative receiver, conservator, custodian, trustee or similar
officer of it or of all or any material part of its revenues or assets
or such a person is appointed provided that this clause 17.8 shall not
apply to:
(a) any such action relating to a solvent reconstruction,
amalgamation, reorganisation or merger of such Obligor save
where the Facility Agent (acting on the instructions of an
Instructing Group) believes that such action will reasonably
be expected to have an adverse effect on the ability of that
Obligor to comply with its obligations under the Facility
Documents; or
(b) any such action which is frivolous or vexatious and which such
Obligor is contesting in good faith on reasonable grounds or
in respect of which an Instructing Group is satisfied that the
ability of that Obligor to comply with its obligations under
the Facility Documents will not be materially and adversely
affected and which in either case is discharged or dismissed
as soon as reasonably practicable.
26.9. EXECUTION OR DISTRESS
Any distress, execution, attachment, sequestration or other process
arising out of any claim by any third party against any member of the
Group for an aggregate amount of US $5,000,000 (five million United
States Dollars) or its equivalent (taking all such members of the Group
together) or more affects any material asset of any Obligor save where
(i) that Obligor is, in good faith on reasonable grounds, contesting
the distress, execution, attachment, sequestration or other process by
appropriate proceedings diligently pursued and (ii) an Instructing
Group is satisfied that the ability of
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that Obligor to comply with its obligations under the Facility
Documents will not be materially and adversely affected whilst such
distress, execution, attachment, diligence or other process is being so
contested.
26.10. ANALOGOUS EVENTS
Any event occurs which has a similar or analogous effect or purpose to
any of those events mentioned in clause 17.7 (Insolvency and
Rescheduling), clause 17.8 (Winding-Up) or clause 17.9 (Execution or
Distress).
26.11. GOVERNMENTAL INTERVENTION
By or under the authority of the Government of Israel or any other
competent Israeli authority:
(a) all or the majority of the management of any Obligor is
displaced or the authority of any Obligor in the conduct of
its business is wholly or materially curtailed; or
(b) all or a majority of the issued shares of any Obligor or the
whole or any part (the book value of which is 10% (ten
percent) or more of the book value of the whole) of the
revenues or assets of any Obligor is seized, nationalised,
expropriated or compulsorily acquired; or
(c) any law is introduced after the date hereof imposing material
restrictions on the free transfer of funds out of Israel
and/or the exchange of sheqels for dollars or Euros in each
such case which will apply to payments made or to be made
under any of the Facilities.
26.12. CESSATION
Any Obligor ceases, or threatens to cease, to carry on all or a
substantial part of its business (save in consequence of any
reorganisation, reconstruction or amalgamation permitted under this
Agreement and save as may result from any disposal of assets permitted
by the terms of this Agreement or where such business or part thereof
is carried on by another Obligor or for any solvent liquidation,
dissolution or winding-up of any member of the Group previously
approved in writing by an Instructing Group) or all or a material part
of the Business is abandoned.
26.13. PROCEEDINGS
There is current or pending any litigation, dispute, arbitration,
administrative, regulatory or other proceedings or enquiry concerning
or
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involving any member of the Group which is reasonably likely to have a
Material Adverse Effect.
26.14. BREACH OF THE LICENCE OR ANY AUTHORISATION
(a) The Licence or any Authorisation necessary for any Obligor to
comply with its obligations under the Facility Documents is in
whole or in part:
(i) surrendered, terminated, withdrawn, suspended,
cancelled or revoked or does not remain in full force
and effect or otherwise expires and is not renewed
prior to its expiry (in each case, without
replacement by a Licence(s) or Authorisation, as
applicable having substantially equivalent effect);
or
(ii) modified in any material respect or breached (unless,
in the case of any Authorisation, such modification
or breach is reasonably likely not to have a Material
Adverse Effect);
provided that any change in the spectrum made available under
the Licence will be construed to be a modification of the
Licence for the purposes of this paragraph (a).
(b) Any event occurs which is reasonably likely to give rise to
the revocation, termination, cancellation or suspension of the
Licence (without replacement) in such circumstance where
Partner is unable to demonstrate to the reasonable
satisfaction of the Instructing Group within 30 (thirty) days
of such event occurring that such termination, suspension or
revocation will not occur.
(c) For the avoidance of doubt, nothing in this Agreement shall be
construed as a waiver by the Finance Parties of their rights
under this clause 17.14 arising from any breach of the
Licence.
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26.15. MATERIAL ADVERSE CHANGE
Any event or series of events occur which in the reasonable opinion of
an Instructing Group after discussion with Partner, is likely to have a
material adverse effect on the business or financial condition of the
Group (as a whole) or on the ability of any Obligor to perform its
material obligations under the Facility Documents.
26.16. BREACH OF MATERIAL CONTRACTS
(a) Any Obligor fails duly to perform or comply with any
obligation expressed to be assumed by it in any of the
Material Contracts to which it is a party (other than the
Licence), where such failure would be reasonably likely to
have a Material Adverse Effect.
(b) Any Authorisation necessary for any Obligor to comply with any
Material Contract or any Material Contract (other than the
Licence) is cancelled, suspended, withdrawn, revoked or
terminated or expires by effluxion of time in a manner or
circumstances (in whole or in part) without being replaced as
soon as reasonably practicable on terms not materially less
favourable than such Material Contract.
26.17. REPUDIATION
Any Obligor repudiates or purports to repudiate or threatens to
repudiate any of the Facility Documents or Material Contracts to which
it is a party.
26.18. COUNTERPARTIES
Any Counterparty:
(a) fails duly to perform or comply with any obligation expressed
to be assumed by it in any Material Contract to which it is a
party where such failure would be reasonably likely to have a
Material Adverse Effect; or
(b) repudiates, or purports or threatens to repudiate, any
Material Contract to which it is a party
and (in the case of any Supplier Contract) a replacement contract on
terms not materially less favourable with an internationally recognised
equivalent supplier is not entered into by Partner within 90 (ninety)
days from the date of such failure, repudiation or purported or
threatened repudiation.
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26.19. SHAREHOLDERS
(a) (i) The Shareholders Agreement ceases to be valid,
binding and enforceable; or
(ii) the Shareholders Agreement is revoked, terminated,
cancelled or suspended without being at such time
replaced with a new shareholders agreement with all
material terms being acceptable to an Instructing
Group; or
(iii) any material provision of the Shareholders Agreement
is amended or waivers granted in relation thereto or
any new provisions are included in the Shareholders
Agreement; or
(iv) any party to the Shareholders Agreement is in breach
of any term thereof and if such breach is capable of
remedy, is not remedied within 30 (thirty) days
and such event or circumstance is reasonably likely to result
in a Material Adverse Effect.
(b) (i) Any of the representations and warranties by any
Chargor in any Share Pledge to which it is a party
are incorrect or misleading in any material respect
when made by such Chargor by reference to the facts
and circumstances then existing if the fact, matter
or event giving rise to such representation being
incorrect or misleading is not remedied or cured to
the satisfaction of Facility Agent (acting on the
instructions of an Instructing Group) within 14
(fourteen) days after the earlier of the relevant
Chargor becoming aware of the same and receipt by the
relevant Chargor of written notice from Facility
Agent requiring the remedy of the relevant fact,
matter or event.
(ii) Any Chargor fails to comply with any undertaking or
obligation contained in any Share Pledge to which it
is a party and, if such default is capable of remedy
within such period, within 30 (thirty) days after the
earlier of the Chargor becoming aware of such default
and receipt by the Chargor of written notice from
Facility Agent requiring the failure to be remedied,
that Chargor shall have failed to cure such default.
(iii) Any Share Pledge shall cease to be in full force and
effect in any material respect or shall cease to
constitute the legal, valid, binding and enforceable
obligation of any Chargor party to it or
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fail to provide effective perfected security in
accordance with the terms of the Share Pledge in
favour of the Security Trustee (for the benefit of
itself and the Secured Creditors) over the assets
over which security is intended to be given by that
Share Pledge (save for any Reservations), or it shall
be unlawful for any Chargor to perform any of its
material obligations under any of the Share Pledges.
(iv) Any Chargor repudiates or purports to repudiate or
threatens to repudiate in writing the Share Pledge to
which it is a party.
26.20. CHANGE OF OWNERSHIP
Upon the occurrence of a Change of Ownership, unless Partner has
received the prior consent of the Participating Banks to such
occurrence.
26.21. BALANCE IN RESERVE ACCOUNT
If the balance standing to the credit of the Reserve Account shall at
any time be less than the amount required under clause 1.1.131(f)
above.
26.22. MANDATORY PREPAYMENT
In the event that Partner shall fail to make any mandatory prepayment
in accordance with clause 7 (Mandatory Prepayment) above within the
time limits respectively specified therefor under the relevant
subsections of clause 7 (Mandatory Prepayment).
26.23. NO TRADING IN SECURITIES
In the event that with respect to any shares or other securities
convertible into shares of Partner which are traded on a stock
exchange, there is no trading in such shares or other convertible
securities for a consecutive period of 10 (ten) or more days on which
trading is conducted on such stock exchange.
26.24. NON-COMPLIANCE WITH ANY SECURITIES AUTHORITY
In the event that Partner breaches or fails to comply with any material
undertakings or obligations entered into by it, or imposed on it, in
favour of any securities authority in any country or state in which
share, securities or debentures of Partner are traded or fails to
comply with any material rules, regulations or other law of any such
securities authority.
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26.25. ACCELERATION
Upon the occurrence of an Event of Default and at any time thereafter
while the same is continuing, the Facility Agent may, and shall if so
directed by an Instructing Group, by notice to Partner:
(a) declare that an Event of Default has occurred; and/or
(b) declare that any undrawn portion of all or any of the
Available Facilities shall be cancelled forthwith, whereupon
the same shall be so cancelled and the applicable Available
Facility or Facilities shall be zero and all fees payable in
relation to the Available Facilities shall become immediately
due and payable; and/or
(c) declare that the Advances or any one or more of them (as
specified in such notice), together with all Interest and
Linkage Differentials accrued on those Advances and all other
amounts (including amounts due under clause 19.1 (Broken
Funding Indemnity), to the extent applicable) payable by
Partner (as specified in such notice) or any of them under the
Facility Documents from time to time, shall thenceforth be
repayable on demand being made by the Facility Agent (and in
the event of any such demand those Advances, such Interest and
such other amounts shall be immediately due and payable);
and/or
(d) declare the Advances or any one or more of them (as specified
in such notice) immediately due and payable, whereupon they
shall become immediately due and payable together with all
Interest and Linkage Differentials accrued on those Advances
and all other amounts payable by Partner under the Facility
Documents (including amounts due under clause 19.1 (Broken
Funding Indemnity), to the extent applicable).
26.26. ADVANCES DUE ON DEMAND
If, pursuant to clause 17.25 (Acceleration), the Facility Agent
declares the Advances to be due and payable on demand then, and at any
time thereafter so long as any Event of Default is continuing or has
not been waived, the Facility Agent may by written notice to Partner
(upon instruction from an Instructing Group) require repayment of the
Advances on such date as the Facility Agent (upon instruction from an
Instructing Group) may specify in such notice (whereupon the same shall
become due and payable on such date together with accrued Interest and
Linkage Differentials thereon and any other sums then owed by Partner
hereunder) or withdraw such declaration with effect from such date as
it may specify in such notice.
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26.27. INDEMNITY
Partner shall indemnify each Finance Party against any losses, charges
or expenses which such Finance Party may sustain or incur as a
consequence of:
(a) the occurrence of any Event of Default or Potential Event of
Default; or
(b) the operation of clause 17.25 (Acceleration),
including any losses, charges or expenses on account of funds acquired,
contracted for or utilised to fund any amount payable under this
Agreement, any amount repaid or prepaid or any Advance (as the case may
be). A certificate of such Finance Party as to the amount of any such
loss or expense shall be prima facie evidence in the absence of
manifest error.
27. AGENCY PROVISIONS
27.1. APPOINTMENT
27.1.1. Each Participating Bank hereby appoints the Facility Agent to
act as its agent in connection with the Facility Documents as
specified therein and authorises the Facility Agent to
exercise such rights, powers, authorities and discretions as
are specifically delegated to the Facility Agent,
respectively, by the terms thereof, together with all such
rights, powers, authorities and discretions as are reasonably
incidental thereto. The Facility Agent shall, however, not
have any duties, obligations or liabilities to the
Participating Banks or any of them beyond those expressly
stated in this Agreement. In acting in its capacity hereunder,
the Facility Agent acts solely as the agent of each of the
Participating Banks and shall not assume any obligations to,
or fiduciary relationship with, the Participating Banks.
27.1.2. Each Participating Bank hereby appoints the Coordinating Agent
to act as its agent in connection with the Facility Documents
as specified therein and authorises the Coordinating Agent to
exercise such rights, powers, authorities and discretions as
are specifically delegated to the Coordinating Agent,
respectively, by the terms thereof, together with all such
rights, powers, authorities and discretions as are reasonably
incidental thereto. The Coordinating Agent shall, however, not
have any duties, obligations or liabilities to the
Participating Banks or any of them beyond those expressly
stated in this Agreement. In acting in
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its capacity hereunder, the Coordinating Agent acts solely as
the agent of each of the Participating Banks and shall not
assume any obligations to, or fiduciary relationship with, the
Participating Banks.
27.2. FACILITY AGENT'S OBLIGATION
Without derogating from clause 18.8 (Participating Bank's
Responsibility) below, the Facility Agent shall:
27.2.1. promptly inform each Participating Bank of the contents of any
notice or document received by it in its capacity as Facility Agent
from Partner under any of the Facility Documents;
27.2.2. monitor the compliance of Partner with the Facility Documents to
which it is a party and promptly notify each Participating Bank of
the occurrence of any Event of Default of which it becomes aware
(including, monitor compliance with the financial undertakings
specified in clause 16.32 (Financial Undertakings) above;
27.2.3. receive from Partner and each of the Participating Banks reports
regarding all Advances made, amounts prepaid, repaid and paid
(whether on account of principal, Interest or otherwise), including
details as to the currency and amount of each Advance and payment,
and the dates thereof;
27.2.4. collect from Partner and make the payments of the commissions,
fees, expenses and stamp duties as referred to in clauses 10.6
(Expenses) and 10.7 (Stamp Taxes) above.
18.2A COORDINATING AGENT'S OBLIGATION
Without derogating from clause 18.8 (Participating Bank's
Responsibility) below, the Coordinating Agent shall:
18.2A.1. deliver to the Facility Agent and the Participating Banks copies of
any notice or document received by it in its capacity as
Coordinating Agent under the Facility Documents; and
18.2A.2. based, solely, on the documents provided to the Coordinating Agent
by Partner under clauses 4.2, 6.2.1 and 16.2.7 above, monitor
(provided that the Coordinating Agent shall be under no obligation
to monitor more frequently than once per Quarter) the compliance of
Partner with its obligations under clause 4.5(a) (Outstandings in
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Proportion to Commitments--Facility A and Facility C) and promptly
notify the Facility Agent of any non-compliance therewith.
27.3. DISCRETIONS
Each of the Facility Agent and the Coordinating Agent may:
27.3.1. assume, unless it has, in its capacity as agent for the
Participating Banks received notice to the contrary from any other
party to any of the Facility Documents, that: (a) any
representation made by Partner in connection therewith is true; and
(b) any right, power, authority or discretion vested therein upon
an Instructing Group or any other person or group of persons has
not been exercised;
27.3.2. engage and pay for the advice or services of any lawyers,
accountants or other experts whose advice or services may seem to
it necessary, expedient or desirable and rely upon any advice so
obtained;
27.3.3. rely as to any matters of fact which might reasonably be expected
to be within the knowledge of Partner upon a certificate signed by
or on behalf of Partner;
27.3.4. rely upon any communication or document believed by it to be
genuine; and
27.3.5. refrain from exercising any right, power of appointment or other
power or discretion vested in it as agent under any of the Facility
Documents or making any determination of acceptability, any
judgment or agreement in the capacity as agent, unless and until
instructed by an Instructing Group as to whether or not such right,
power or discretion is to be exercised and, if it is to be
exercised, as to the manner in which it should be exercised.
27.4. EXCLUDED OBLIGATIONS
Notwithstanding anything to the contrary expressed or implied in any of
the Facility Documents, neither the Facility Agent nor the Coordinating
Agent shall:
27.4.1. be bound to enquire as to whether or not any representation made by
Partner in connection with any of the Facility Documents is true;
27.4.2. be bound to account to any Participating Bank for any sum or the
profit element of any sum received by them for their own account;
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27.4.3. be bound to disclose to any other person any information relating
to Partner if such disclosure would or might in their opinion
constitute a breach of any law or regulation or be otherwise
actionable at the suit of any person; or
27.4.4. be under any obligations other than those for which express
provision is made herein or any of the Facility Documents.
27.5. INDEMNIFICATION
To the extent that Partner does not do so on demand or is not obliged
to do so, each Participating Bank shall, from time to time on demand by
the Facility Agent or the Coordinating Agent, indemnify the Agents, in
its Proportion against any and all costs, claims, losses, expenses
(including legal fees) and liabilities, together with any VAT thereon
which the Facility Agent or the Coordinating Agent may incur, otherwise
than by reason of its own gross negligence or wilful misconduct, in
acting in its capacity as the Facility Agent or the Coordinating Agent
hereunder.
27.6. EXCLUSION OF LIABILITIES
Neither the Facility Agent nor the Coordinating Agent accepts any
responsibility for the accuracy and/or completeness of any information
supplied by Partner in connection with any of the Facility Documents or
for the legality, validity, adequacy or enforceability of any of the
Facility Documents and the Facility Agent shall not be under any
liability as a result of taking or omitting to take any action in
relation to any of the Facility Documents, save in the case of gross
negligence or wilful misconduct. Neither the Facility Agent nor the
Coordinating Agent shall have any liability for any loss or damage
arising from any act, default, omission or misconduct on the part of
any persons whose services have been engaged as contemplated pursuant
to clause 18.3.2 above, save where such loss or damage arises due to
the gross negligence or wilful misconduct of such person and the
Facility Agent or the Coordinating Agent (as the case may be) is
considered by a final decision of a court or arbitral tribunal to have
failed to have taken reasonable care in the selection of the person
providing the services concerned.
27.7. NO ACTIONS
Each of the Participating Banks agrees that it will not assert or seek
to assert against any director, officer or employee of the Facility
Agent or the
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Coordinating Agent any claim it might have against any of them in
respect of the matters referred to in clause 18.6 (Exclusion of
Liabilities).
27.8. PARTICIPATING BANK'S RESPONSIBILITY
It is understood and agreed by each Participating Bank that it has
itself been, and will continue to be, solely responsible for making its
own independent appraisal of and investigations into the financial
condition, creditworthiness, condition, affairs, status and nature of
Partner and that (as between the Facility Agent and the Coordinating
Agent, on the one hand and the Participating Banks on the other hand)
each Participating Bank shall also be responsible for monitoring
compliance by Partner with its obligations under this Agreement
(including monitoring compliance with the financial undertakings
specified in clause 16.32 (Financial Undertakings) above). Each
Participating Bank warrants to the Facility Agent and the Coordinating
Agent that it has not relied on and will not hereafter rely on the
Facility Agent or the Coordinating Agent:
27.8.1. to check or enquire on its behalf into the adequacy, accuracy or
completeness of any information provided by Partner or its advisers
in connection with the Facility Documents, this Agreement or the
transactions therein contemplated (whether or not such information
has been or is hereafter circulated to such Participating Bank by
the Facility Agent or the Coordinating Agent or any of them); or
27.8.2. to assess or keep under review on its behalf the financial
condition, creditworthiness, condition, affairs, status or nature
of Partner.
In addition, each Participating Bank shall give to the Facility Agent
and the Coordinating Agent notice regarding the occurrences of any
Default of which such Participating Bank becomes aware (including
non-compliance with the financial undertakings specified in clause
16.32 (Financial Undertakings) above).
27.9. RESIGNATION
The Facility Agent may resign, provided that no such resignation shall
be effective until a successor for the Facility Agent is appointed in
accordance with the succeeding provisions of clause 18.10 (Successor
Agent) below. Bank Hapoalim may resign as Coordinating Agent by giving
notice to such effect to Partner and the Facility Agent, such
resignation to become effective upon service of such notice as
aforesaid. Upon such resignation by Bank Hapoalim, as aforesaid, the
Facility Agent shall be appointed as the successor to the Coordinating
Agent.
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27.10. SUCCESSOR AGENT
If the Facility Agent gives notice of its resignation pursuant to
clause 18.9 (Resignation) above, then any reputable and experienced
bank or other financial institution may, with the prior written consent
of Partner (such consent not to be unreasonably withheld), be appointed
as a successor to the Facility Agent (such successor to the Facility
Agent, for the avoidance of doubt, shall, in the event the Facility
Agent is the Coordinating Agent pursuant to clause 18.9 (Resignation)
above, also be appointed as successor to the Coordinating Agent) by an
Instructing Group during the period of such notice but, if no such
successor is so appointed, the Facility Agent may itself appoint as its
successor any reputable and experienced bank or other financial
institution.
27.11. RIGHTS AND OBLIGATIONS
If a successor to the Facility Agent or the Coordinating Agent (as the
case may be) is appointed under the provisions of clause 18.10
(Successor Agent), then: (a) the departing Facility Agent or the
Coordinating Agent (as the case may be) shall be discharged from any
further obligation under the Facility Documents, in its capacity as
Facility Agent or the Coordinating Agent (as the case may be), but
shall remain entitled to the benefit of the provisions of this clause
18.11; and (b) its successors and each of the other parties hereto
shall have the same rights and obligations amongst themselves as they
would have had if such successor had been a party hereto.
27.12. BUSINESS WITH THE GROUP
The Facility Agent, the Arranger and the Coordinating Agent may accept
deposits from, lend money to and generally engage in any kind of
banking or other business with Partner.
28. BROKEN FUNDING INDEMNITY
28.1. BROKEN FUNDING INDEMNITY FOR US DOLLARS AND EUROS
If any Participating Bank receives or recovers all or any part of any
Advance (not denominated in NIS) made by such Participating Bank
otherwise than on the last day of the Duration Period relating to that
Advance, Partner shall pay, on demand, to such Participating Bank an
amount equal to the amount (if any) (but excluding, for the avoidance
of doubt, any loss of margin) by which: (a) the additional Interest
which would
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have been payable on the amount so received or recovered had it been
received or recovered on the last day of such Duration Period exceeds
(b) the amount of Interest which in the reasonable opinion of the
relevant Participating Bank would have been payable to such
Participating Bank on the last day of such Duration Period in respect
of a deposit in the relevant currency of the amount so received or
recovered equal to the amount so received or recovered placed by it
with a prime bank in London for a period starting on the third Business
Day following the date of such receipt or recovery and ending on the
last day of such Duration Period.
28.2. BROKEN FUNDING INDEMNITY FOR NIS
If any Participating Bank receives or recovers all or any part of any
Advance (denominated in NIS) made by such Participating Bank otherwise
than on the scheduled date of repayment of such amount, Partner shall
pay, on demand, to such Participating Bank:
(a) in the event that the rate of Interest on such Advance was
based on a prime rate or on an on-call rate and the payment to
the relevant Participating Bank was made without the giving to
such Participating Bank of at least seven Business Days' prior
written notice regarding such payment, an amount equal to the
Interest which would have been payable under this Agreement on
the amount so received or recovered in respect of the period
of 7 (seven) Business Days (or, if prior written notice was
given, the number of Business Days below 7 (seven) of which
prior written notice was in fact given) after the date of such
receipt or recovery;
(b) in the event that the rate of Interest on such Advance was
based on the Bond Rate or a fixed linked rate, and
(i) the remaining average period (taking into account
scheduled repayments of such Advance) of the Duration
Period for such Advance is 1 (one) year or more, the
net present value of the amount, if any (excluding,
for the avoidance of doubt, any loss of margin) by
which: (1) the amount of Interest which would have
been payable under this Agreement on the amount so
received or recovered on the dates specified
therefore during such Duration Period, exceeds (2)
the amount of Interest which would be payable on the
amount so received or recovered at the Bond Rate less
0.6% (nought point six percent) as at the date or
dates of such receipt or recovery, for a period equal
to the remaining average period (taking into account
scheduled repayments of such Advance) of such
Duration Period; or
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(ii) the remaining average period (taking into account
scheduled repayments of such Advance) of the Duration
Period for such Advance is less than 1 (one) year,
the net present value of the amount, if any
(excluding, for the avoidance of doubt, any loss of
margin) by which: (1) the amount of Interest which
would have been payable under this Agreement on the
amount so received or recovered on the dates
specified therefor during such Duration Period
exceeds (2) the arithmetic mean of the Average Daily
Yield; "THE AVERAGE DAILY YIELD" being the arithmetic
mean of the gross yields to maturity (rounded
upwards, if necessary, to four decimal places) as
published by the
Tel-Aviv Stock Exchange ("TASE") of
all of the series of fixed rate bonds issued by the
State of Israel listed on the TASE, with a remaining
period to maturity of between 6 (six) months and 1
(one) year which are denominated in NIS and fully
linked to the Cost of Living Index on the 5 (five)
trading days of the TASE immediately preceding the
date of actual payment, all as determined by the
Facility Agent;
(c) in the event that rate of Interest on such Advance was based
on a fixed unlinked rate and:
(i) the remaining average period (taking into account
scheduled repayments of such Advance) of the Duration
Period for such Advance is 1 (one) year or less, the
net present value of the amount (excluding, for the
avoidance of doubt, any loss of margin) by which: (1)
the amount of Interest which would have been payable
under this Agreement on the amount so received or
recovered had it been received or recovered on the
dates specified therefore during such Duration
Period, exceeds (2) the amount of Interest which
would have been payable on the amount so received or
recovered at the Interest rate on short-term loan
notes issued by the Bank of Israel (▇▇▇▇▇) for a
period equal to the remaining average period (taking
into account scheduled repayments of such Advance) of
such Duration Period; or
(ii) the remaining average period (taking into account
scheduled repayments of such Advance) of such Rate
Period is more than one year, the net present value
of the amount, if any (excluding, for the avoidance
of doubt, any loss of margin) by which: (1) the
amount of Interest which would have been payable
under this Agreement on the amount so received or
recovered on the dates
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specified therefor during the relevant Rate Period
exceeds (2) the arithmetic mean of the Average Daily
Yield; "THE AVERAGE DAILY YIELD" being the arithmetic
mean of the gross yields to maturity (rounded
upwards, if necessary, to four decimal places) as
published by the TASE of six, or if less, less,
series of fixed rate bonds issued by the State of
Israel listed on the TASE, with a remaining period to
maturity similar to the remaining average period
(taking into account scheduled repayments of such
Advance) of such Rate Period, which are denominated
in NIS and not linked to the Cost of Living Index, on
the 5 (five) trading days of the TASE immediately
preceding the date of actual payment, all as
determined by the Facility Agent;
(d) In each of paragraphs (i) and (ii) of (b) and (c) above,
the net present value shall be discounted at the rate
referred to in (2) of the relevant paragraph.
28.3. PARTNER'S INDEMNITY
Partner undertakes to indemnify each Participating Bank against any
loss it may suffer or incur as a result of its funding or making
arrangements to fund an Advance requested by Partner hereunder but not
made by reason of the operation of any one or more of the provisions
hereof (other than by reason of a default by such Participating Bank),
upon provision by any Participating Bank claiming hereunder of a
written statement setting out in reasonable detail the basis of the
calculation.
29. CURRENCY OF ACCOUNT
29.1. CURRENCY OF ACCOUNT
With respect to all of the Facilities:
(a) each repayment of an Advance or part thereof shall be made in
the currency in which such Advance was made;
(b) each payment of Interest shall be made in the currency in
which the sum in respect of which such Interest is payable is
denominated;
(c) any amount expressed to be payable in another currency shall
be paid in that other currency;
(d) each payment in respect of costs and expenses shall be made in
the currency in which the same were incurred; and
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(e) each payment pursuant to clause 13.1 (Increased Costs) shall
be made in the currency specified by the party claiming
thereunder.
29.2. CURRENCY INDEMNITY
If any sum due from Partner under any Facility Document or any order or
judgment given or made in relation thereto has to be converted from the
currency ("THE FIRST CURRENCY") in which the same is payable thereunder
or under such order or judgment into another currency ("THE SECOND
CURRENCY") for the purpose of: (a) making or filing a claim or proof
against Partner; (b) obtaining an order or judgment in any court or
other tribunal; or (c) enforcing any order or judgment given or made in
relation thereto, Partner shall indemnify and hold harmless each of the
persons to whom such sum is due from and against any loss suffered or
incurred as a result of any difference between (i) the rate of exchange
used for such purpose to convert the sum in question from the first
currency into the second currency; and (ii) the rate or rates of
exchange at which such person may in the ordinary course of business
purchase the first currency with the second currency upon receipt of a
sum paid to it in satisfaction, in whole or in part, of any such order,
judgment, claim or proof.
30. PAYMENTS WITHOUT SET-OFF
All payments required to be made by Partner under the Facility
Documents shall be calculated without reference to any set-off or
counterclaim and shall be made free and clear of and without any
deduction for or on account of any set-off or counterclaim.
31. SET-OFF
Each Finance Party may (but shall not be obliged to) set-off against
any obligation of any Obligor due and payable by it to or for the
account of such Finance Party under this Agreement and not paid on the
due date or within any applicable grace period any moneys held by such
Finance Party for the account of such Obligor at any office of such
Finance Party anywhere and in any currency, whether or not matured.
Such Finance Party may effect such currency exchanges as are
appropriate to implement the set-off and any usual charges in relation
to such currency exchanges shall be paid by such Obligor. Any Finance
Party which has set off shall give notice of that fact to the relevant
Obligor as soon as reasonably practicable.
32. APPLICATION AND REDISTRIBUTION OF PAYMENTS
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32.1. APPLICATION OF PAYMENTS
(a) If after the Default Date the Security Trustee or any Receiver
appointed under any Security Document receives payment
insufficient to discharge all amounts then due and payable by
the Obligors under the Facility Documents, the Security
Trustee or Receiver, as applicable, shall apply such payment
towards the obligations of the Obligors under the Facility
Documents in the following order (after converting the payment
into the currency necessary to make payment of all amounts due
as aforesaid in the equivalent of the currencies in which such
amounts are due):
(i) first, in or towards payment of any unpaid fees,
costs and expenses of the Facility Agent, the
Coordinating Agent, the Security Trustee and/or any
Receiver pro rata between the amounts of such unpaid
fees, costs and expenses;
(ii) secondly, in or towards payment pro rata to the
Dollar equivalent of all amounts due to: (1) each
Participating Bank under the Facility Documents; and
(2) Israel Discount Bank Ltd., pursuant to the IDB
Performance Bond Counter Indemnity; and
(iii) thirdly, in or towards payment, pro rata, to all
amounts due to each Participating Bank on account of
Borrowings, as referred to in paragraphs (c), (d) and
(e) of the definition of "Permitted Borrowings",
received by any Obligor from any such Participating
Bank.
(b) The Facility Agent shall, if so directed by all the Secured
Creditors, vary the order set out in sub-paragraphs (a)(i),
(ii) and (iii) above.
(c) Paragraphs (a) and (b) above will override any appropriation
made by any Obligor or Shareholder.
(d) For the purposes of this clause 23.1 any Dollar equivalent
shall be calculated as at the date 2 (two) Business Days prior
to the date the Security Trustee or the Receiver, as
applicable, makes any relevant application.
32.2. PARTIAL PAYMENTS
(a) If a Finance Party receives before the Default Date a payment
that is insufficient to discharge all the amounts then due and
payable to such
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Finance Party by an Obligor under the Facility Documents, then
that Finance Party shall apply such payment towards the
obligations of the Obligor to such Finance Party, under the
Facility Documents, in the following order:
(i) first, in or towards payment of any unpaid fees,
costs and expenses of such Finance Party under the
Facility Documents;
(ii) secondly, in or towards payment of any accrued
Interest or commission due to such Finance Party but
unpaid, under this Agreement;
(iii) thirdly, in or towards payment of any principal,
together with Linkage Differentials, due to such
Finance Party but unpaid, under this Agreement; and
(iv) fourthly, in or towards payment of any other sum due
to such Finance Party but unpaid, under the Facility
Documents.
(b) A Finance Party shall be at liberty to vary the order set out
in paragraphs (a)(i) to (iv) (inclusive) above.
(c) Paragraphs (a) and (b) above will override any appropriation
made by an Obligor.
32.3. REDISTRIBUTION ON OR AFTER DEFAULT DATE
Subject to clause 23.5 (Recoveries Through Legal Proceedings), if, at
any time on or after the Default Date, the proportion which any Secured
Creditor ("A RECOVERING SECURED CREDITOR") has received or recovered
from any Obligor or any Shareholder (whether by payment, the exercise
of a right of set-off or combination of accounts or otherwise) other
than in accordance with the applicable priority at the relevant time
set out in clause 23.1 (Application of Proceeds), in respect of its
portion of all sums due from any Obligor or Shareholder under the
Facility Documents on or after the Default Date is greater (the excess
proportion being herein called "AN EXCESS SUM") than the proportion of
such sum due so received or recovered by the Secured Creditor or
Creditors receiving or recovering the smallest proportion thereof
(including a nil receipt), then:
(a) such Recovering Secured Creditor shall inform the Security
Trustee of such receipt or recovery and pay to the Security
Trustee an amount equal to such Excess Sum;
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(b) as between the relevant person and such Recovering Secured
Creditor, the Excess Sum shall be treated as not having been
paid; and
(c) the Security Trustee shall treat the amount received by it
from such Recovering Secured Creditor pursuant to paragraph
(a) above as if such amount had been received by it from the
relevant person on account of such sum and shall pay the same
to the persons entitled thereto (including such Recovering
Secured Creditor) pro rata to their respective entitlements
thereto in accordance with clause 23.1 (Application of
Proceeds).
32.4. REPAYABLE RECOVERIES
If any sum ("A RELEVANT SUM") received or recovered by a Recovering
Secured Creditor in respect of any amount owing to it by any Obligor or
Shareholder becomes repayable and is repaid by such Recovering Secured
Creditor, then:
(a) each Secured Creditor (other than a Recovering Secured
Creditor) which has received a share of such Relevant Sum by
reason of the implementation of clause 23.3 (Redistribution on
or after Default Date) shall, upon request of the Security
Trustee, pay to the Security Trustee for account of such
Recovering Secured Creditor an amount equal to its share of
such Relevant Sum; and
(b) as between the relevant Obligor or Shareholder and each such
Secured Creditor, the amount repaid by such Secured Creditor
pursuant to paragraph (a) above shall be treated as not having
been paid.
32.5. RECOVERIES THROUGH LEGAL PROCEEDINGS
(a) If any Participating Bank shall commence any action or
proceeding in any court to enforce its rights (if so permitted
or contemplated) under any of the Facility Documents after
consultation with the other Participating Banks and with the
consent of an Instructing Group (such consent not to be
unreasonably withheld) and, as a result thereof or in
connection therewith, shall receive any Excess Sum (as defined
in clause 23.3 (Redistribution on or after Default Date)),
then such Participating Bank shall not be required to share
any portion of such amount with any Participating Bank or
other Secured Creditor which has the legal right to, but does
not, join in such action or proceeding or commence and
diligently prosecute a separate action or proceeding to
enforce its rights in another court.
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(b) Any Participating Bank may (upon giving to the other
Participating Banks no less than 10 (ten) Business Days'
notice to such effect) commence any action or proceeding in
any court to enforce its rights (if so permitted or
contemplated) under any of the Facility Documents without
consulting any other Participating Bank, but such
Participating Bank shall be required to share any Excess Sum
received with the other Participating Banks.
33. CALCULATIONS AND EVIDENCE OF DEBT
33.1. BASIS OF ACCRUAL
Interest and commitment commission shall accrue from day to day and
shall be calculated on the basis of a year of 360 (three hundred and
sixty) days in relation to amounts denominated in US Dollars or Euros
(or 365 (three hundred and sixty-five days) in relation to Interest on
amounts denominated in NIS) and the actual number of days elapsed.
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33.2. EVIDENCE OF DEBT
Each Participating Bank shall maintain, in accordance with its usual
practice, accounts evidencing the amounts from time to time lent by and
owing to it hereunder.
33.3. PRIMA FACIE EVIDENCE
In any legal action or proceeding arising out of or in connection with
this Agreement: (a) the entries made in the accounts maintained
pursuant to clause 24.2 (Evidence of Debt) above shall, in the absence
of manifest or proven error, be prima facie evidence of the existence
and amounts of the specified obligations of Partner; and (b) a
certificate of any Participating Bank signed by a relevant senior
officer as to its Cost of Funds for the purpose of determining the
Interest rate in respect of an Advance shall constitute prima facie
evidence of such Cost of Funds.
33.4. CERTIFICATES OF PARTICIPATING BANKS
A certificate of a Finance Party as to: (a) the amount by which a sum
payable to it hereunder is to be increased under clause 11.1 (Tax
Gross-Up) above; or (b) the amount for the time being required to
indemnify it against any such cost, payment or liability as is
mentioned in clause 12.1 (Increased Costs) above shall, in the absence
of manifest or proven error, be prima facie evidence of the existence
and amounts of the specified obligations of Partner.
34. GUARANTEE AND INDEMNITY
34.1. GUARANTEE
Each Guarantor irrevocably and unconditionally guarantees to the
Agents, the Arranger and the other Secured Creditors the due and
punctual observance and performance of all the terms, conditions and
undertakings on the part of Partner contained in this Agreement and the
other Facility Documents and agrees to pay to the Facility Agent, the
Coordinating Agent and each Participating Bank from time to time on
demand any and every sum or sums of money which Partner is at any time
liable to pay to the Agents, the Arranger, the Coordinating Agent and
the Participating Banks or any of them under or pursuant to this
Agreement and the other Facility Documents (whether actual or
contingent) and which has become due and payable but has not been paid
at the time such demand is made.
34.2. INDEMNITY
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Each Guarantor irrevocably and unconditionally agrees as a primary
obligation and not merely as surety to indemnify the Agents, the
Arranger and the Participating Banks from time to time on demand by the
Facility Agent (upon instruction of an Instructing Group) from and
against any loss incurred by the Agents, the Arranger and such
Participating Bank or any of them as a result of any of the obligations
of Partner under or pursuant to this Agreement or any other Facility
Document being or becoming void, voidable, unenforceable or ineffective
as against Partner for any reason whatsoever, whether or not known to
the Agents, the Arranger and the Participating Banks or any of them or
any other person, the amount of such loss being the amount which the
person or persons suffering it would otherwise have been entitled to
recover from Partner.
34.3. ADDITIONAL SECURITY
The obligations of each Guarantor herein contained shall be in addition
to and independent of every other security held by the Security Trustee
upon trust for the Agents, the Arranger and the Participating Banks or
any of them may at any time hold in respect of any of Partner's
obligations hereunder.
34.4. CONTINUING OBLIGATIONS
The obligations of each Guarantor herein contained shall constitute and
be continuing obligations notwithstanding any settlement of account or
other matter or thing whatsoever and shall not be considered satisfied
by any intermediate payment or satisfaction of all or any of the
obligations of Partner under this Agreement and shall continue in full
force and effect until final payment in full of all amounts owing by
Partner hereunder and total satisfaction of all Partner's actual and
contingent obligations hereunder.
34.5. OBLIGATIONS NOT DISCHARGED
Neither the obligations of any Guarantor herein contained nor the
rights, powers and remedies conferred in respect of any Guarantor upon
the Agents, the Arranger and the Participating Banks or any of
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them by this Agreement or by law shall be discharged, impaired or
otherwise affected by:
(a) the winding-up, dissolution, administration or re-organisation
of Partner or any other person or any change in its status,
function, control or ownership;
(b) any of the obligations of Partner or any other person
hereunder or under any other security taken in respect of any
of its obligations hereunder being or becoming illegal,
invalid, unenforceable or ineffective in any respect;
(c) time or other indulgence being granted or agreed to be granted
to Partner in respect of its obligations hereunder or under
any such other security;
(d) any amendment to, or any variation, waiver or release of, any
obligation of Partner hereunder or under any such other
security;
(e) any failure to take, or fully to take, any security
contemplated hereby or otherwise agreed to be taken in respect
of Partner's obligations hereunder;
(f) any failure to realise or fully to realise the value of, or
any release, discharge, exchange or substitution of, any
security taken in respect of Partner's obligations hereunder;
or
(g) any other act, event or omission which, but for this clause
25.5, might operate to discharge, impair or otherwise affect
any of the obligations of any Guarantor herein contained or
any of the rights, powers or remedies conferred upon the
Agents, the Arranger and the Participating Banks or any of
them by this Agreement or by law.
34.6. SETTLEMENT CONDITIONAL
Any settlement or discharge between any Guarantor and the Agents, the
Arranger and the Participating Banks or any of them shall be
conditional upon no security or payment to the Agents, the Arranger and
the Participating Banks or any of them by Partner or any Guarantor or
any other person on behalf of Partner or, as the case may be, any
Guarantor being avoided or reduced by virtue of any provisions or
enactments relating to bankruptcy, insolvency, liquidation or similar
laws of general application for the time being in force and, if any
such security or payment is so avoided or reduced, the Agents, the
Arranger and the Participating Banks
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shall each be entitled to recover the value or amount of such security
or payment from the relevant Guarantor subsequently as if such
settlement or discharge had not occurred.
34.7. EXERCISE OF RIGHTS
Neither the Agents, the Arranger nor the Participating Banks nor any of
them shall be obliged before exercising any of the rights, powers or
remedies conferred upon them in respect of any Guarantor by this
Agreement or by law:
(a) to make any demand of Partner;
(b) to take any action or obtain judgment in any court against
Partner;
(c) to make or file any claim or proof in a winding-up or
dissolution of Partner; or
(d) to enforce or seek to enforce any other security taken in
respect of any of the obligations of Partner hereunder.
34.8. DEFERRAL OF GUARANTOR'S RIGHTS
Each Guarantor agrees that, so long as any amounts are or may be owed
by Partner hereunder or Partner is under any actual or contingent
obligations hereunder, any rights which the relevant Guarantor may at
any time have by reason of performance by it of its obligations
hereunder or in respect of any other moneys for the time being due to
the relevant Guarantor from the Partner:
(a) to claim payment from or be indemnified by Partner; and/or
(b) to claim any contribution from any other guarantor of
Partner's obligations hereunder or in respect of any such
other moneys; and/or
(c) to take the benefit (in whole or in part and whether by way of
subrogation or otherwise) of any rights of the Agents, the
Arranger and the Participating Banks hereunder or of any other
person in respect of such moneys or of any other security
taken pursuant to, or in connection with, this Agreement by
all or any of the Agents, the Arranger and the Participating
Banks or taken by any other person in respect of such moneys,
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shall be exercised by the relevant Guarantor only if and to
the extent that the Facility Agent (upon instructions from an
Instructing Group) so requires and in such manner and upon
such terms as the Facility Agent (upon instructions from an
Instructing Group) may specify and the relevant Guarantor
further agrees to hold any moneys at any time received by it
as a result of the exercise of any such rights on trust for
and on behalf of, and to the order of, the Participating Banks
for application in or towards payment of any sums at any time
owed by Partner hereunder.
34.9. SUSPENSE ACCOUNTS
All moneys received, recovered or realised by a Participating Bank by
virtue of clause 25.1 (Guarantee) or clause 25.2 (Indemnity) may, in
that Participating Bank's discretion, be credited to a suspense or
impersonal account and may be held in such account for so long as such
Participating Bank thinks fit pending the application from time to time
(as such Participating Bank may think fit) of such moneys in or towards
the payment and discharge of any amounts owing by any of the Obligors
to such Participating Bank hereunder.
34.10. WAIVER BY GUARANTOR
Without derogating from any other provisions of this Agreement which
exclude the application of, or constitute a waiver by a Guarantor of,
certain defences or rights under the Guarantee Law, 1967 ("THE
GUARANTEE LAW") (which defences or rights would, but for such
provision, have been available to such Guarantor), each Guarantor
hereby waives all rights and defences under the Guarantee Law and
confirms that the provisions of the Guarantee Law affording such rights
or defences to a guarantor shall not apply to this Agreement.
35. ADDITIONAL GUARANTORS AND SECURITY
35.1. ADDITIONAL GUARANTORS
(a) The Obligors shall procure that any Subsidiary (other than a
Venture Subsidiary or a Subsidiary of a Venture Subsidiary)
shall become, as soon as practicable and in any event within
30 (thirty) days of becoming a Subsidiary, an Additional
Guarantor by entering into a Guarantor Accession Agreement.
(b) On each date that a Guarantor Accession Agreement is entered
into Partner shall procure that certified copies of each of
the documents listed in SCHEDULE 23 (Documents Required for
Acceding Guarantors)
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are delivered in respect of the Additional Guarantor, the
Guarantor Accession Agreement duly executed and any security
document required for the purposes of compliance with clause
26.2 (Security) each in form and substance reasonably
satisfactory to the Facility Agent.
35.2. SECURITY
The Obligors shall procure that on the date that a Guarantor Accession
Agreement is delivered in accordance with clause 32.1 (Additional
Guarantors) above, the Subsidiary shall grant security in favour of the
Security Trustee (for the benefit of itself and the Secured Creditors)
which is similar to the security granted by the Debenture.
36. ASSIGNMENTS AND TRANSFERS
36.1. BINDING AGREEMENT
This Agreement shall be binding upon and enure to the benefit of each
party hereto and its or any subsequent successors, Transferees and
permitted assigns.
36.2. NO ASSIGNMENTS AND TRANSFERS BY THE OBLIGORS
No Obligor shall be entitled to assign or transfer all or any of its
rights, benefits and obligations under any of the Facility Documents.
36.3. ASSIGNMENTS AND TRANSFERS BY PARTICIPATING BANKS
Any Participating Bank may with the consent of Partner (such consent
not to be unreasonably withheld or delayed) unless such assignment or
transfer is to an Affiliate of a Participating Bank or an Event of
Default has occurred and is continuing (in which event no consents will
be required), at any time, assign all or any of its rights and benefits
under the Facility Documents or transfer in accordance with clause 27.5
(Transfers by Participating Banks) all or any of its rights, benefits
and obligations under the Facility Documents to any bank or financial
institution. Subject to the aforegoing, a Participating Bank may assign
to any person, in whole or in part, any of its rights, benefits and
obligations under the Facility Documents. An assignment by a
Participating Bank of the whole or part of its outstanding Advances
shall be made together with an assignment of the Commitment in respect
thereof. An assignment or transfer of any such Advance shall be in
respect of at least a minimum amount of US $5,000,000 (five million
United States Dollars) (or its equivalent). Where a Participating Bank
has
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transferred to a Transferee any part of its Commitment under Facility A
or Facility C, as the case may be, such Transferee's Commitment under
such Facility (transferred to it as aforesaid) and, if applicable, the
Commitment under Facility A or Facility C, as the case may be, of the
relevant transferring Participating Bank (to the extent not transferred
as aforesaid), shall be reduced, on each Facility A Commitment
Reduction Date or Facility C Commitment Reduction Date, as the case may
be, by the same percentage as the other Participating Banks' respective
Commitments under such Facility are reduced under clause 5.1.1 or
5.3.1, as applicable, of this Agreement.
36.4. ASSIGNMENTS BY PARTICIPATING BANKS
If any Participating Bank assigns all or any of its rights and benefits
under the Facility Documents in accordance with clause 27.3
(Assignments and Transfers by Participating Banks), then, unless and
until the assignee has agreed with the Agents, the Arranger and the
other Participating Banks that it shall be under the same obligations
towards each of them as it would have been under if it had been an
original party to each of the Facility Documents as a Participating
Bank (whereupon such assignee shall become a party to the Facility
Documents as a "PARTICIPATING BANK"), the Agents, the Arranger and the
other Participating Banks shall not be obliged to recognise such
assignee as having the rights against each of them which it would have
had if it had been such a party to the Facility Documents. For the
avoidance of doubt, a Participating Bank that has assigned all its
interest and which is a counterparty to an Interest Rate Hedging
Agreement shall, upon such assignment, cease to be a Secured Interest
Rate Hedge Provider.
36.5. TRANSFERS BY PARTICIPATING BANKS
If any Participating Bank wishes to transfer all or any of its rights,
benefits and/or obligations under the Facility Documents as
contemplated in clause 27.3 (Assignments and Transfers by Participating
Banks), then such transfer may be effected by the delivery to the
Facility Agent of a duly completed and duly executed Transfer
Certificate (together with a copy to Partner for information purposes
only), accompanied by such other documentation as may be required for
the purposes of such transfer under the Security Documents, in which
event, on the later of the Transfer Date specified in such Transfer
Certificate and the 5th (fifth) Business Day after (or such earlier
Business Day endorsed by the Facility Agent on such Transfer
Certificate falling on or after) the date of delivery of such Transfer
Certificate to the Facility Agent:
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(a) to the extent that in such Transfer Certificate the
Participating Bank party thereto seeks to transfer its rights,
benefits and obligations under the Facility Documents, each of
the Obligors and such Participating Bank shall be released
from further obligations towards one another hereunder and
their respective rights against one another shall be cancelled
(such rights and obligations being referred to in this clause
27.5 as "DISCHARGED RIGHTS AND OBLIGATIONS");
(b) the Obligors and the Transferee party thereto shall assume
obligations towards one another and/or acquire rights against
one another which differ from such discharged rights and
obligations only insofar as such Obligor and such Transferee
have assumed and/or acquired the same in place of such Obligor
and such Participating Bank;
(c) the Agents, the Arranger, such Transferee and the other
Participating Banks shall acquire the same rights and benefits
and assume the same obligations between themselves as they
would have acquired and assumed had such Transferee been an
original party to the Facility Documents as a Participating
Bank with the rights, benefits and/or obligations acquired or
assumed by it as a result of such transfer; and
(d) such Transferee shall become a party to the Facility Documents
as a "PARTICIPATING BANK".
36.6. DISCLOSURE OF INFORMATION
Any Participating Bank may at any time disclose to any actual or
potential assignee or Transferee or subparticipant (or other party
entering into contractual arrangements to assume risks in relation to
the Facilities or any of them) in respect of the Facility Documents
such information about the Business, the Facility Documents, the
Material Contracts and the Obligors as such Participating Bank shall
consider appropriate but only having first obtained from such potential
assignee or Transferee or subparticipant or equivalent a
confidentiality undertaking equivalent in effect to the confidentiality
arrangements set out in clause 38 (Confidentiality) in writing
addressed to the relevant Participating Bank and Partner.
36.7. NO INCREASED COSTS
If any assignment or transfer of all or any part of the rights or
obligations of a Participating Bank pursuant to this clause 27 or if
any change in or substitution of a Participating Bank's Facility Office
would, but for this clause 27, result, as a consequence of
circumstances prevailing or foreseeable at that time, in any Obligor
having any obligation to pay any
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amount under clause 11.1 (Tax Gross-Up) or clause 12.1 (Increased
Costs) then, unless such assignment, transfer or change in or
substitution of Facility Office arises as a consequence of the
provisions of clause 14.1 (Mitigation) or is made with the written
consent of Partner, the assignee, or Transferee or Participating Bank
acting through its new Facility Office shall be entitled to receive
such amounts only to that extent that the relevant assignor, or
transferor or Participating Bank acting through its relevant Facility
Office would have been so entitled had there been no assignment, or
transfer, change in or substitution of Facility Office (as the case may
be).
37. COSTS AND EXPENSES
37.1. AGENTS' COSTS
Partner shall, from time to time on demand of the relevant Agent (and
without prejudice to the provisions of clause 10.6.2 above and clause
28.2 (Amendment Costs)) compensate the relevant Agent for all costs and
expenses (including telephone, fax, copying, travel, personnel and
legal costs) incurred by such Agent in connection with its taking such
action as it may deem appropriate or in complying with any instructions
from an Instructing Group or any request by any Obligor or in
connection with:
(a) the granting or proposed granting of any waiver or consent
requested under any of the Facility Documents by any Obligor;
(b) any actual, potential or suspected breach by any Obligor of
its obligations under any of the Facility Documents;
(c) the occurrence of any event which is an Event of Default or a
Potential Event of Default; or
(d) any amendment or proposed amendment to any of the Facility
Documents requested by any Obligor.
37.2. AMENDMENT COSTS
If any amendment or waiver is requested, required or agreed by Partner
in accordance with clause 30 (Amendments) then Partner shall, on demand
of the Facility Agent (acting on its own motion or otherwise upon the
request of the Arranger or a Participating Bank), reimburse the Agents,
the Arranger and the Participating Banks for all reasonable costs and
expenses submitted to Partner together with appropriate evidence
thereof (including legal fees but excluding any charges for management
time) together with any VAT
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thereon incurred by the Agents, the Arranger and the Participating
Banks in responding to or complying with such requests.
37.3. PARTICIPATING BANKS' LIABILITIES FOR COSTS
If Partner fails to perform any of its obligations under this clause 28
and clauses 10.6 (Expenses) and 10.7 (Stamp Taxes) above, each
Participating Bank shall, in its Proportion (or, if the Loan has been
repaid in full, immediately prior to the final repayment thereof),
indemnify each of the Agents and the Arranger against any loss incurred
by any of them as a result of such failure and Partner shall forthwith
reimburse each Participating Bank for any payment made by it pursuant
to this clause 28 and clauses 10.6 (Expenses) and 10.7 (Stamp Taxes)
above.
38. PARTIAL INVALIDITY
If any provision of any of the Facility Documents is or becomes
illegal, invalid or unenforceable in any respect under the law of any
jurisdiction, neither the legality, validity or enforceability of the
remaining provisions hereof nor the legality, validity or
enforceability of such provision under the law of any other
jurisdiction shall in any way be affected or impaired thereby.
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39. AMENDMENTS
The Facility Agent, if it has the prior written consent of an
Instructing Group, and Partner may, from time to time, agree in writing
to amend any of the Facility Documents or to waive, prospectively or
retrospectively, any of the requirements of any of the Facility
Documents and any amendments or waivers so agreed shall be binding on
all the Participating Banks, the Arranger, the Facility Agent, the
Coordinating Agent and the Obligors provided that:
(a) no such waiver or amendment shall subject any party hereto to
any new or additional obligations without the consent of such
party;
(b) without the prior written consent of all the Participating
Banks and Partner, no such amendment or waiver shall:
(i) amend or waive any provision of clause 23
(Application and Redistribution of Payments) or this
clause 30;
(ii) reduce the proportion of any amount received or
recovered (whether by way of set-off, combination of
accounts or otherwise) in respect of any amount due
from any Obligor hereunder to which any Participating
Bank is entitled;
(iii) change the principal amount of or currency of any
Advance, or defer any payment date other than in
accordance with the terms of this Agreement;
(iv) change the Margin, change the amount or currency or
defer the date for any payment of interest, fees or
any other amount payable hereunder to all or any of
the Agents, the Arranger and the Participating Banks;
(v) defer the Termination Date;
(vi) amend the definition of "Instructing Group"; or
(vii) amend any provision which contemplates the need for
the consent or approval of all the Participating
Banks;
(c) the Security Trustee shall not release any security over any
asset or assets or any part thereof constituted pursuant to
any Security Document without the consent of all of the
Secured Creditors, if the relevant asset, assets or part
thereof over which such security is constituted will not be,
immediately following such release, disposed of or transferred
outside the Group
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following such release or if the proceeds of sale or
replacement assets will not be subject to first ranking
security interests in favour of the Security Trustee (for the
benefit of itself and the Secured Creditors); and
(d) notwithstanding any other provisions hereof, the Facility
Agent shall not be obliged to agree to any such amendment or
waiver if the same would:
(i) amend or waive any provision of this clause 30,
clauses 10.6 (Expenses), 10.7 (Stamp Taxes), 28
(Costs and Expenses) or 18 (Agency Provisions) above;
or
(ii) otherwise amend or waive any of the Agents' rights
under any of the Facility Documents or subject the
Agents or the Arranger to any additional obligations
under any of the Facility Documents.
40. INFORMATION
Without derogating from clause 27.6 (Disclosure of Information) above,
Partner hereby agrees that the Participating Banks may at any time,
amongst themselves, disclose to each other any information in respect
of: (i) Drawdown Requests received, Advances made and payments received
from or by Partner, as the case may be, under the Facilities; and (ii)
any other information in respect of the Business, the Facility
Documents, the Material Contracts and obligations as the Participating
Bank, disclosing the same, deems appropriate.
41. RELEASE OF SHARE PLEDGES
41.1. SHARE PLEDGES
In the event that in any one year Ratio Period ("THE DETERMINING RATIO
PERIOD"):
41.1.1. Partner shall (as of the end of the Determining Ratio Period) have
made payment under the Facilities to the Participating Banks
(disregarding for this purpose, any repayment or prepayment
capable of being reborrowed under this Agreement) of an amount
equal to half the amount of the Total Commitments; and
41.1.2. (a) if the Determining Ratio Period falls during the period
2003-2007 (inclusive), each of the Facility Debt Cover Ratio,
Total Debt Cover Ratio, Fixed Charge Coverage Ratio and ADSCR
for the one year Ratio Period immediately preceding the
Determining Ratio Period was not less than 135% (one hundred
and thirty-five percent) of such minimum ratio required for
such
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immediately preceding one year Ratio Period pursuant to the
table in clause 16.32 below; or
(b) if the Determining Ratio Period is the one year Ratio Period
2008, the Total Debt Cover Ratio for the 2007 one year Ratio
Period was not less than 135% (one hundred and thirty-five
percent); or
(c) if the Determining Ratio Period is the one year Ratio Period
2009, the Total Debt Cover Ratio for the 2008 one year Ratio
Period was not less than 280% (two hundred and eighty
percent),
then the Participating Banks shall, as soon as reasonably practicable
after the publication and receipt by the Participating Banks of the
Accounts for the Determining Ratio Period, procure the irrevocable
release of the Share Pledges over the Chargors' shares in Partner.
41.2. RELEASE OF SHARE PLEDGES
Upon the release of all such Share Pledges, the provisions of clause
17.19(b) (Shareholders) above shall thereupon cease to have any force
or effect (except in relation to any antecedent breach thereof).
41.3. DISTRIBUTION OF TAPUZ SHARES
[Deleted.]
42. RESPONSE TO REQUESTS FOR APPROVAL OR CONFIRMATION
42.1. Save where expressly stated otherwise in this Agreement, the Facility
Agent shall endeavour to respond promptly to any request by Partner for
an approval or confirmation in accordance with this Agreement and
shall, in any event, respond by not later than 14 (fourteen) Business
Days after receipt of the said request, together with all reports,
statements and other information required hereunder to be supplied by
Partner, together with such request; failing which response, the
Facility Agent shall be deemed not to have given its consent.
42.2. Save where expressly stated otherwise in this Agreement, the
Participating Banks shall endeavour to respond promptly to any request
by Partner for an approval or confirmation in accordance with this
Agreement and shall, in any event, respond by not later than 21
(twenty-one) Business Days after receipt of the said request, together
with all reports, statements and other
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information required hereunder to be supplied by Partner, together with
such request; failing which response, the Participating Banks shall be
deemed not to have given their consent.
43. COUNTERPARTS
This Agreement may be executed in any number of counterparts and all of
such counterparts taken together shall be deemed to constitute one and
the same instrument.
44. GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and shall be construed in
accordance with Israeli law and the competent court of
Tel-Aviv-Jaffa
shall have exclusive jurisdiction to hear any matters, provided that
the Facility Agent and the Participating Banks shall be entitled to ▇▇▇
Partner or any other Obligor in any jurisdiction in which it has an
office or holds assets.
45. REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of the
Agents, the Arranger and the Participating Banks or any of them, any
right or remedy hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of any right or remedy prevent any
further or other exercise thereof or the exercise of any other right or
remedy. The rights and remedies herein provided are cumulative and not
exclusive of any rights or remedies provided by law.
46. NOTICES
46.1. COMMUNICATIONS THROUGH FACILITY AGENT
Every notice, request, demand or other communication under this
Agreement to be given by Partner to any other party shall be given to
such party, with a copy to the Facility Agent, to be delivered in
accordance with clause 37.2 (Manner of Delivery) below. Every notice,
request, demand or other communication under this Agreement to be given
to Partner shall be delivered to Partner in accordance with clause 37.2
(Manner of Delivery) below, with a copy to be given to the Facility
Agent.
46.2. MANNER OF DELIVERY
(a) Notices to be given hereunder shall be in writing and may be
given personally, by facsimile or, if not available, as
required by clause 37.2(b) below. Any notice to be given
personally or by
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facsimile to the Facility Agent, the Coordinating Agent or any
Participating Bank must be given during normal banking hours
of the Facility Agent, the Coordinating Agent or any
Participating Bank to the persons and at the addresses
respectively designated below. If notice is sent by facsimile,
it shall be deemed to have been served when confirmation of
receipt by the intended recipient has been received. All
notices given by facsimile shall be confirmed by letter
despatched in the manner provided in clause 37.2(b) within 24
(twenty-four) hours of transmission.
(b) Any other notices to be given hereunder shall be served on a
party by prepaid express registered letter (or nearest
equivalent) to its address given below or such other address
as may from time to time be notified for this purpose and any
notice so served shall be deemed to have been served within 5
(five) days after the time at which such notice was posted and
in proving such service, it shall be sufficient to prove that
the notice was properly addressed and posted:
to Partner at: ▇ ▇▇▇▇ ▇▇▇▇▇▇
Afeq Industrial ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
Facsimile: 067 815 282
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇,
Treasurer
with a copy to: Gross, Kleinhendler, Hodak,
Halevy, ▇▇▇▇▇▇▇▇▇ & Co.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇-▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
Facsimile: (▇▇) ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Adv.
to the Facility Agent at: Bank Leumi Le-Israel B.M.
Technology Section
Corporate Division
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇-▇▇▇▇
Facsimile: (▇▇) ▇▇▇ ▇▇▇▇
Attention: Sector Manager
to the Coordinating
Agent at: Bank Hapoalim B.M.
Telecommunications and
Infrastructure Sector
Corporate Division
Zion ▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Tel-Aviv
Facsimile: (▇▇) ▇▇▇ ▇▇▇▇
Attention: Manager of
Telecommunications and
Infrastructure Sector
to the Participating
Banks at--
(i) BLL: Technology Section
Corporate Division
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇-▇▇▇▇
Facsimile: (▇▇) ▇▇▇ ▇▇▇▇
Attention: Sector Manager
(ii) ISRAEL DISCOUNT
BANK LTD.: ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Tel-Aviv
Facsimile: (▇▇) ▇▇▇ ▇▇▇▇
Attention: Senior Manager
(iii) BANK HAPOALIM : Telecommunications and
Infrastructure Sector
Corporate Division
Zion ▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Tel-Aviv
Facsimile: (▇▇) ▇▇▇ ▇▇▇▇
Attention: Manager of
Telecommunications and
Infrastructure Sector
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(iv) THE FIRST INTERNATIONAL
BANK OF ISRAEL LTD.: The First International
Bank of Israel Ltd.
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Haifa
Facsimile: (▇▇) ▇▇▇ ▇▇▇▇
Attention: Branch Manager
(v) UNITED MIZRAHI
BANK LTD.: ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Tel-Aviv
Facsimile: (▇▇) ▇▇▇ ▇▇▇▇
Attention: Manager, Tel-Aviv
Main Branch
(vi) MERCANTILE
DISCOUNT BANK LTD.: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Tel-Aviv
Facsimile: (▇▇) ▇▇▇ ▇▇▇▇
Attention: Head of Corporate
Division
(viii) CITIBANK N.A.: Tel-Aviv Branch
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇ ▇▇'▇▇▇▇▇'▇ ▇▇▇▇▇▇
▇▇▇-▇▇▇▇
▇▇▇▇▇▇
Facsimile: (▇▇) ▇▇▇ ▇▇▇▇
Attention: Branch Manager
(vii) in the case the address designed by it to the
of a Facility Agent and Partner for
Transferee: such purpose at the end of the
Transfer Certificate to which it
is a party as Transferee;
(viii) or, in respect delivered to such other address
of a as may be designated by it for
Finance Party: such purpose by notice to the
Facility Agent and Partner.
47. CONFIDENTIALITY
Subject to clause 27.6 (Disclosure of Information) the Arranger, each
Participating Bank and Agent shall keep confidential all confidential
information concerning Partner, the Shareholders, the Business and the
terms and conditions of the Facility Documents and the Material
Contracts, and will not disclose any such information to any third party
without the prior written consent of Partner unless such disclosure is:
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(a) made in connection with any proceedings arising out of or in
connection with any Facility Document, to the extent that such a
party reasonably considers it necessary to protect its interests;
or
(b) required by an order of a court of competent jurisdiction; or
(c) made or required pursuant to any law or legal process in
accordance with which the relevant party concerned is required to
act or otherwise required to be disclosed by any banking or other
regulatory or examining authorities or enquirers (whether
governmental or otherwise); or
(d) made to its auditors for the purpose of enabling them to undertake
any audit or to its legal advisers when seeking bona fide legal
advice in connection with the Facility Documents or otherwise to
any of its officers and employees considered to need to know the
information concerned.
The restriction contained in this clause 38 shall continue to bind the
Arranger, each Participating Bank and Agent after termination of, or
after the termination of its participation in, the Facilities, without
limit in time.
For the purpose of the above, "CONFIDENTIAL INFORMATION" shall exclude:
(i) information which at the time of disclosure to the Arranger, any
Participating Bank or Agent (or any of their advisers) is in the
public domain (other than through a breach of this clause 38 by
the Arranger, such Participating Bank or Agent);
(ii) information which, after such disclosure, becomes generally
available to third parties or otherwise in the public domain by
publication or through no fault of the Arranger, any Participating
Bank or the Facility Agent (or any of their advisers); and
(iii) information which is lawfully in the possession of the Arranger,
any Participating Bank or Agent (or any of their advisers) prior
to such disclosure or subsequently comes into any of their
respective possessions, other than by reason of any breach of any
confidentiality undertaking in favour of Partner.
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48. ENTIRE AGREEMENT
This document constitutes an amended and restated version of the Facility
Agreement, as amended, rescheduled and restated through 31 December 2002
and shall be deemed to be the binding version of the Facility Agreement.
IN WITNESS WHEREOF, THE PARTIES HAVE SIGNED THIS AGREEMENT ON THE DATE FIRST
MENTIONED ABOVE.
PARTNER:
for: PARTNER COMMUNICATIONS
COMPANY LTD.
By:
------------------------
Title:
------------------------
THE PARTICIPATING BANKS:
for: BANK LEUMI LE-ISRAEL B.M. for: ISRAEL DISCOUNT BANK LTD.
By: By:
------------------------ -----------------------
Title: Title:
------------------------ -----------------------
for: BANK HAPOALIM B.M. for: THE FIRST INTERNATIONAL
BANK OF ISRAEL LTD.
By: By:
------------------------ -----------------------
Title: Title:
------------------------ -----------------------
for: UNITED MIZRAHI BANK LTD. for: MERCANTILE DISCOUNT
BANK LTD.
By: By:
------------------------ -----------------------
Title: Title
------------------------ -----------------------
for: CITIBANK N.A.
By:
------------------------
Title:
------------------------
for: BANK LEUMI LE-ISRAEL B.M. for: BANK HAPOALIM B.M.
(in its capacity as Security (in its capacity as
Trustee, Arranger and Facility Coordinating Agent)
Agent)
By: By:
------------------------ -----------------------
Title Title
------------------------ -----------------------
