Exhibit 10.81
PLEDGE
THIS PLEDGE is made on the 10th day of September 1998 between the
following parties:
(1) ADVENT INVESTMENTS PTE. LTD., a company incorporated under the
laws of Singapore (Company number: 199408473H), having its
registered office at 0 Xxxx Xxxxxx'x Xxxxxx, #00-00 Xxxxx
Xxxxxxxx, Xxxxxxxxx ("Advent")
(2) BANK LEUMI LE-ISRAEL B.M., as trustee for the benefit of the
Secured Creditors ("the Trustee")
WHEREAS:
(A) the Banks are willing to make certain loan facilities available to Partner
and other Borrowers (if any) on the terms and subject to the conditions set
out in the Facility Agreement. One of those conditions is that Advent,
being a shareholder of Partner, create this Pledge thereby granting to the
Trustee for the benefit of the Secured Creditors (including the Trustee) a
first-ranking pledge with respect to the Pledged Assets as security for the
Secured Obligations, such pledge to be held by the Trustee on trust for the
Secured Creditors; and
(B) Advent is willing, as security for the Secured Obligations, to create in
favour of the Trustee (as trustee for the benefit of the Secured Creditors
(including the Trustee)), a first-ranking pledge over the Pledged Assets in
accordance with the terms of this Pledge below; and
(C) in accordance with the Equity Undertaking, Advent is willing, as security
for its obligations under Section 2 of the Equity Undertaking, to create in
favour of the Trustee (as trustee for the benefit of the Secured Creditors
(including the Trustee)), a first-ranking fixed pledge and charge over the
Advent Cash Collateral Account, in accordance with the terms of this Pledge
below; and
-2-
(D) the Trustee is holding the benefit of this Pledge on trust for the Secured
Creditors in accordance with the terms of the Security Trust Deed; and
(E) the Trustee acknowledges that realisation of the pledge under this Pledge
is subject to the restrictions in relation to such realisation imposed
under the Licence, namely, that the prior written consent of the Minister
of Communications may be required prior to any such realisation.
1. INTERPRETATION
1.1. In this Pledge, the following terms have the meanings given to them in
this clause 1.1:
1.1.1. "Account Bank" - means the Trustee or such other
Israeli bank as the Trustee shall
direct from time to time in
accordance with clause 1.2.4 below;
1.1.2. "Advent Cash Collateral - means a bank account (in Israel) of
Account" Advent with the Security Trustee
denominated in either US Dollars or
NIS into which moneys are to be
paid pursuant to Sections 14
(Events of Default) or 15 (Cash
Collateral) of the Equity
Undertaking;
1.1.3. "Advent Unutilised - means the Unutilised Cash Account
Cash Account" (as defined in the Facility
Agreement) in relation to Advent;
1.1.4. "Business Day" - means a day on which banks are
generally open for business in
Tel-Aviv;
1.1.5. "Default Rate" - means the default rate specified in
clause 23.2 (Default Interest) of
the Facility
-3-
Agreement, save that where any
default interest is payable in
respect of a Secured Obligation not
mentioned in the said clause 23.2,
then, to the extent such Secured
Obligation is payable or deemed
payable under any Facility Document
in: (i) US Dollars, then, for the
purposes of ascertaining and
calculating the applicable Default
Rate thereon, such Secured
Obligation shall be treated, for
the purpose of this definition, as
an International Advance; or (ii)
NIS, then, for the purposes of
ascertaining and calculating the
applicable Default Rate thereon,
such Secured Obligation shall be
treated, for the purpose of this
definition, as an Israeli Advance
denominated in NIS;
1.1.6. "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:
1.1.7. "Enforcement Event" - means the occurrence of any Event
of Default (as described in Section
22 of the Facility Agreement, a
copy of which clause is annexed
hereto as Annexure A);
-4-
1.1.8. "Existing Shares" - means 25,500 Class A voting
ordinary shares, nominal value NIS
1.00 each in the share capital of
Partner and 21,174 Class B
non-voting ordinary shares, nominal
value NIS 1.00 each, in the share
capital of Partner, registered in
the name of Advent;
1.1.9. "Facility Agreement" - means the Facility Agreement dated
August 13, 1998 made between (1)
Partner as the Borrower; (2) ABN
AMRO Bank N.V., Bank Hapoalim B.M.,
the Trustee, Chase Manhattan plc,
and Citibank, N.A. as the
Arrangers; (3) Chase Manhattan
International Limited and Bank
Hapoalim B.M., as the Facility
Agents; (4) the Trustee as Security
Trustee; (5) Chase Manhattan
International Limited as
Co-ordinating Agent; and (6) the
Banks;
1.1.10. "Obligor" - means all the Borrowers and
Guarantors (as such terms are
defined in the Facility Agreement);
1.1.11. "Optional Israeli Banks" - means Bank Hapoalim B.M., Israel
Discount Bank Ltd., the First
international Bank of Israel Ltd.
and United Mizrahi Bank Ltd.;
1.1.12. "Partner" - means Partner Communications
Company Ltd., a company
incorporated in Israel (registered
number 51-253592-3);
1.1.13. "Pledged Assets" - means the Shares, Related Rights in
respect thereof, and the
Shareholders' Loans and the
Realisation Account;
-5-
1.1.14. "Realisation Account" - means each account maintained from
time to time by Advent for the
purposes of clause 7 at the main
branch of the Account Bank or such
other branch of the Account Bank as
the Trustee may from time to time
approve;
1.1.15. "Receiver" - means a receiver, receiver and
administrator, an administrator or
similar such officer (whether
appointed provisionally,
temporarily, or otherwise and
whether appointed pursuant to this
Pledge, pursuant to any law, by a
court or otherwise);
1.1.16. "Related Rights" - means in relation to the Shares,
all dividends or other moneys paid
or payable in relation thereto and
all shares, warrants, securities,
rights, moneys or property accruing
or offered at any time in relation
to the Shares by way of redemption,
substitution, exchange, bonus,
pursuant to option rights or
otherwise; excluding all dividends
or other moneys received by Advent
by way of Permitted Distributions;
1.1.17. "Reservations" - means the reservations listed in
Annexure B hereto;
1.1.18. "Secured Creditors" - means the Security Trustee, the
Coordinating Agent, the Facility
Agents, the Arrangers, the Banks,
the Secured Interest Rate Hedge
Providers, Bank Leumi Le-lsrael
B.M., in its capacity as issuer of
the BLL Performance Bond 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);
-6-
1.1.19. "Secured Obligations" - means all present and future
obligations and liabilities
(whether actual or contingent,
whether owed jointly or severally,
or in any other capacity
whatsoever), of Partner and any
other Obligor to the Secured
Creditors (or any of them) under
each of the Facility Documents as
well as all amounts owed by Advent
under this Pledge, together with
all costs, charges and expenses
(including legal fees) incurred by
any Secured Creditor in connection
with the protection, preservation
or enforcement of its respective
rights under the Facility
Documents;
1.1.20. "Security Period" - means the period beginning on the
date of this Pledge and ending on
the date upon which the Trustee is
reasonably satisfied that: (a) none
of the Secured Creditors is under
any commitment, obligation or
liability (whether actual or
contingent) to make advances or
provide other financial
accommodation to Partner or any
other Borrower under the Facility
Documents; and (b) all the Secured
Obligations which have arisen have
been unconditionally and
irrevocably paid and discharged in
full or the security hereby created
has been unconditionally and
irrevocably released and discharged
by the Trustee;
1.1.21. "Shareholders'
Agreement" - means the agreement between the
shareholders of Partner, confirmed
and accepted by Partner, dated
October 23,
-7-
- 1997, as amended by Addenda dated
October 26, 1997, February 18, 1998
and Addendum No. 3 and No. 4 as
delivered to the Co-ordinating
Agent pursuant to paragraph 4(viii)
of Schedule 4 of the Facility
Agreement, as such agreement may
further be amended from time to
time;
1.1.22. "Shareholders' Loans" - means all rights of whatsoever
nature of Advent under or in
connection with any Shareholder
Loan Agreement, excluding: (i)
amounts of Shareholders' Loans
given pursuant to any Person of
Means Letter by way of a deposit in
the Advent Unutilised Cash Account,
so long as such amounts are so
deposited in such account:, (ii)
the right to receive, pursuant to
clause 3.1(a)(ii) of the Equity
Undertaking, payment of funds
credited to the Charged Account;
and (iii) all moneys received by
Advent with respect to such
Shareholders' Loans by way of
Permitted Distributions;
1.1.23. "Shares" - means the Existing Shares and all
other shares or securities
convertible into shares, in the
capital of Partner held or to be
held by Advent at any time during
the Security Period.
1.2.1. Unless otherwise defined in this Pledge, terms defined and
references construed in the Facility Agreement shall have the
same meaning and construction in this Pledge.
1.2.2. Any payment made under any Facility Document which is capable of
being avoided or otherwise set aside on liquidation of Partner or
otherwise, shall, for as long as such payment is
-8-
capable of being avoided or set aside, not be considered to have
been irrevocably paid for the purposes of this Pledge.
1.2.3. Unless otherwise stated, all references in this Pledge to this
Pledge or to any other agreement or document shall be construed
as a reference to this Pledge or such agreement or document as
amended, varied, assigned, novated or supplemented from time to
time and any reference to this Pledge or such other agreement or
document shall, unless otherwise stated, include any agreement or
document affecting such amendment, variation, assignment,
novation or supplementation. References to this Pledge shall
include any agreement or document entered into pursuant to or in
accordance with the provisions hereof.
1.2.4. The Trustee shall be entitled to direct that any bank or
financial institution, other than itself, be the Account Bank;
provided that, such bank or financial institution is: (i) one of
the Optional Israeli Banks, or (ii) another Israeli bank or
financial institution approved by Advent, which approval may not
be unreasonably withheld, and further provided that there shall
not be more than one Account Bank at any time. In the event of a
direction by the Trustee as aforesaid, the amount (if any)
standing to the credit of the Realisation Account maintained with
the Trustee or, if applicable, a previous Realisation Account
shall be transferred to the corresponding Realisation Account
maintained with the new Account Bank forthwith upon such
direction taking effect. Advent hereby irrevocably gives all
authorisations and instructions necessary for any such transfer
to be made and shall do all such things as the Trustee may
reasonably request in order to facilitate any change of Account
Bank as may be directed by the Trustee, from time to time, or any
transfer of credit balances (including the execution of such
bank's or financial institution's standard terms of operation of
account forms, bank mandate forms and other standard forms
necessary to open an account) and the Trustee is hereby
irrevocably constituted Advent's attorney to do any such things
should Advent fail to do so within 10 Business Days of being
requested to do so by the Trustee.
-9-
1.2.5. The recitals and Annexures hereto form an integral part hereof.
1.2.6. Except as expressly provided, references to clauses, paragraphs
and Annexures shall be construed as references to clauses and
paragraphs of, and Annexures to, this Pledge.
1.2.7. References to any statutory provision or regulation shall be
deemed to include references to such statutory provision and/or
regulation as re-enacted, amended, supplemented, extended or
replaced from time to time (whether before or after the date of
this Pledge) and are to include any order, regulation or other
subordinate legislation made under or deriving validity from such
statutory provision and/or regulation.
1.2.8. Headings are inserted for convenience only and shall be ignored
in construing this Pledge.
1.2.9. References to "including" and "in particular" shall not be
construed restrictively but shall mean, "including, without
prejudice to the generality of the foregoing", "including,
without limitation" and "in particular, but without prejudice to
the generality of the foregoing", respectively.
1.2.10. References to "writing" include facsimile transmission legibly
received, except in relation to any certificate, notice,
resolution or other document which is expressly required by this
Pledge to be signed in the original, and "written" has
corresponding meaning.
1.2.11. Any consent, agreement or approval required from the Trustee
under this Pledge must be obtained in writing and shall be of no
effect if it is not in writing.
1.2.12. References to "this Pledge" shall, unless the context otherwise
requires, include also all other pledges and charges in favour of
the Trustee made pursuant to this Pledge.
-10-
2. PLEDGE
2.1. Advent hereby grants to and settles upon the Security Trustee, to hold
same on trust for the benefit of the Secured Creditors (including the
Security Trustee), the terms of such trust being as specified in the
Security Trust Deed (an agreement binding the Security Trustee and the
Secured Creditors only), the security interests and rights, including
the pledges, assignments by way of charge, other charges or other
security interests or rights created or to be created pursuant to, and
in accordance with, the provisions of this Pledge.
2.2. Advent, as a continuing security for the full and punctual payment,
discharge and performance of all the Secured Obligations in accordance
with the Facility Documents and in accordance with Section 12 of the
Pledges Law, 1967, hereby:
2.2.1. pledges by way of a first-ranking fixed pledge (to the extent
applicable to Shares) and pledges and assigns, by way of charge
as a first-ranking fixed pledge and charge (to the extent
applicable to all Related Rights other than the Shares), in
favour of the Trustee (as trustee for the Secured Creditors): (i)
the Existing Shares and all Related Rights in respect thereof and
all right, title and interest of Advent in connection therewith,
and (ii) all other Shares and Related Rights in respect thereof
and all right, title and interest of Advent in connection
therewith. For the removal of doubt, the Pledged Assets Include
also all rights of Advent (as a shareholder of Partner), whether
under law and/or under the Memorandum and Articles of Association
of Partner, which derive from the Shares or any Related Rights in
respect thereof; and
2.2.2. pledges and assigns by way of charge as a first-ranking fixed
pledge and charge, in favour of the Trustee (as trustee for the
Secured Creditors), all right, title and interest of Advent in or
arising in connection with the Shareholders' Loans.
For the avoidance of any doubt, the Trustee and the Secured Creditors
shall not be entitled to claim or receive payment from Advent in
respect of the Secured Obligations, or to have recourse to
-11-
any of its assets (save for its rights pursuant to clause 6.3
hereunder in respect of the Advent Cash Collateral Account), pursuant
to this Pledge, except, solely and exclusively, by way of realisation
of the Pledged Assets pursuant to the Pledges Law, 1967 and to the
extent only of the amounts, if any, received from such realisation;
provided that the Trustee and the Secured Creditors shall be entitled
to bring an application for realisation or other relief under Section
21 of the Pledges Law, 1967, only if such claim is not based on: (i)
an alleged reduction or loss in the value of the Shares or other
Pledged Assets; or (ii) an allegation of the existence of
circumstances which constitute an Enforcement Event (without reference
to any cure period or notice period).
2.3. In order to secure the rights of the Trustee in respect of the Pledged
Assets, Advent hereby undertakes as follows:
2.3.1. to deposit with the Trustee, upon the date of signature of this
Pledge:
(i) original share certificates in the name of Advent in respect
of the Existing Shares;
(ii) share transfer forms in respect of all the Existing Shares,
in the form required under the Articles of Association of
Partner, duly executed by Advent as transferor, and with the
transferee, the date and the consideration left blank; and
2.3.2. to deposit with the Trustee on or prior to the date the first
Drawdown Request is received by the International Facility Agent
or the Israeli Facility Agent, as the case may be:
(i) an addendum to the Shareholders' Agreement, duly executed by
the parties thereto in the same form as delivered to the
Co-ordinating Agent pursuant to paragraph 4(viii) of
Schedule 4 of the Facility Agreement
-12-
and otherwise confirmed and accepted by Partner, amending
the Shareholders' Agreement such that:
(a) any rights of first refusal, limitations on transfer of
shares in Partner or other provisions of the
Shareholders' Agreement which may restrict the pledge
of the Pledged Assets or any of them in accordance
with this Pledge or which may restrict the free
transfer of any Pledged Assets in the course of
realisation of any security under this Pledge, shall
not apply to this Pledge or to any other Share Pledge
or to any transfer made as part of any realisation
under this Pledge or under any other Share Pledge
(except as otherwise required under the Licence);
(b) the Shareholders of Partner shall be obliged (as an
obligation also in favour of the Trustee (for the
benefit of the Secured Creditors) (including the
Trustee)) to procure that the provision of Partner's
Articles of Association to be inserted pursuant to
clause 2.3.2(ii)(c) below is at all times valid and
enforced; and
(c) upon a sale or transfer of more than 50% of the issued
share capital and voting rights of Partner made as part
of the realisation of the Pledged Assets or any part
thereof, in accordance with this Pledge and/or any
other Share Pledge, the Shareholders' Agreement shall
terminate and no longer have any force or effect;
(ii) a protocol of a special resolution of the shareholders of
Partner, in the same form as delivered to the Coordinating
Agent pursuant to paragraph 4(ix) of
-13-
Schedule 4 of the Facility Agreement, duly passed, amending
the Articles of Association of Partner, such that:
(a) the provisions of Articles 22-27 (inclusive) of the
Articles of Association shall not apply to the pledges
being the subject of this Pledge or of any other Share
Pledge or to any transfer of any pledged assets made
within the framework of the realisation of any such
pledge and that any rights of first refusal,
limitations on transfer of shares in Partner and other
provisions of the Articles of Association which may in
any way restrict the pledging of the Pledged Assets as
contemplated under this Pledge or the pledging of any
other pledged assets as contemplated under any other
Share Pledge or the free transfer of any Pledged Assets
in the course of realisation under this Pledge or the
free transfer of any pledged assets in the course of
realisation of any other Share Pledge, shall not apply
to any such pledging or to any such transfer made
within the framework of realisation as aforesaid;
(b) the Board of Directors of Partner shall approve any
transfer of shares of Partner (which is not prohibited
under the Licence or under any law) made in the course
of realisation of any Shares pursuant to this Pledge
and/or any other Share Pledge, which transfer is not
prohibited under the Licence or under any law, and
shall register any such transfer in the Register of
Members of Partner, promptly following receipt of the
relevant share certificates and duly executed share
transfer forms;
(c) Partner shall not issue any shares or other securities
convertible into shares, including to Advent, unless
the Trustee is reasonably satisfied that such shares or
other securities convertible into shares and all
Related Rights in respect thereof shall immediately
upon the issue thereof be duly pledged by way of a
-14-
first-ranking fixed pledge in favour of the Trustee
(for the benefit of the Secured Creditors) pursuant to
a pledge in a form, mutatis mutandis, the same as this
Pledge which is duly registered and valid, all to the
reasonable satisfaction of the Trustee, and the
transferee is not an individual guarantor ("Arev
Yachid"), within the meaning of the Guarantee Law,
1967; and
(d) upon a sale or transfer of more than 50% of the issued
share capital and voting rights of Partner made as part
of the realisation of the Pledged Assets or any part
thereof in accordance with any of the Share Pledges,
all provisions of the Articles of Association, to the
extent they refer to or reflect any provisions of the
Shareholders' Agreement (including the relevant parts
of Articles 12.1, 23.10, 46.1, 46.2, 69.3 and 69.4),
shall terminate and no longer have any force or effect;
2.3.3. to sign and deliver to the Trustee on the date of signature
hereof all documents as are necessary in the reasonable opinion
of the Trustee, for the purposes of registering the pledges
hereby created with the Registrar of Pledges and/or the Registrar
of Companies and/or the Singapore Registrar of Companies, as
applicable;
2.3.4 to procure that Partner sign on the date of signature hereof the
acknowledgment of the pledge and pledge and assignment by way of
charge (as the case may be) of the Pledged Assets pursuant to
this Pledge, appearing on the signature page of this Pledge;
2.3.5 promptly following the first request of the Trustee, to take all
steps as the Trustee may reasonably require so that the pledge or
pledges created hereunder or pursuant hereto shall be valid and
binding against other creditors of Advent and to execute and/or
deliver to the Trustee any additional and/or new pledge or
amendment of this Pledge and any other documents as the
-15-
Trustee shall reasonably require for this purpose, including, to
the extent reasonably required by the Trustee, pledge with
respect to any Shares constituting Related Rights in respect of
the Existing Shares, share certificates in respect of such shares
or other securities and share transfer forms, mutatis mutandis as
referred to in clauses 2.3.1(i) and (ii) in respect of such
shares or other securities and notices of pledge and other
documents required to be deposited with the Registrar of Pledges
in order to register any such other pledges and to be lodged with
the Registry of Companies in Singapore in order to register the
charges created hereunder or thereunder.
2.4. Without derogating from clause 2.3 above, Advent hereby undertakes:
2.4.1. to execute promptly following the acquisition by it of any shares
or other securities in Partner (other than the Existing Shares
or Related Rights in respect thereof), or the making by it of
any Shareholders' Loans (to the extent the Trustee reasonably
believes that the same is not effectively pledged hereunder), a
pledge in the same form, mutatis mutandis, as this Pledge, in
respect of such shares or other securities or such Shareholders'
Loans, as the case may be;
2.4.2. immediately upon the acquisition by Advent of such other Shares
or Related Rights in connection therewith, to deposit with the
Trustee the original share (or, if applicable, other)
certificates in respect thereof, together with duly executed
share transfer deeds, mutatis mutandis, as referred to in clause
2.3.1 (ii) above; and
2.4.3. to take all the same steps, mutatis mutandis, to perfect the
aforesaid pledges as set out in clause 2.3 above.
2.5. Advent, as a continuing security for the full and punctual payment,
discharge and performance of all the obligations of Advent pursuant to
Section 2 of the Equity Undertaking hereby charges in favour of the
Trustee (as trustee for the benefit of the Secured Creditors), by way
of a first-ranking fixed pledge and charge, all moneys (including
interest) from time to time standing to the credit of the Advent Cash
-16-
Collateral Account and the debt to Advent represented thereby. For the
removal of doubt, notwithstanding anything to the contrary in this
Pledge, Advent shall be entitled to act in respect to the Advent Cash
Collateral Account in the manner permitted to it under, and subject to
the terms and conditions of, Section 15 of the Equity Undertaking.
2.6. Advent shall not be entitled, and hereby waives any right pursuant to
Section 13(b) of the Pledge Law, 1967 to redeem any pledge given
hereunder, provided that Advent shall be entitled to redeem its
pledges hereunder only: (i) in the event that all the Secured
Obligations are paid and discharged in full in accordance with all the
terms and conditions of the Facility Agreement which would be
applicable were the Obligors to voluntarily prepay all the Secured
Obligations in accordance with the applicable provisions of the
Facility Agreement and otherwise in accordance with all the relevant
Facility Documents, and (ii) if at such time none of the Banks is
under any commitment, obligation or liability (whether actual or
contingent) under any of the Facility Documents to make advances or
provide other financial accommodation to Partner or any other
Borrower.
2.7. For the removal of doubt, nothing in this Pledge shall be construed as
prohibiting any amendment of the terms of any Shareholder Loan,
provided that following such amendment, the conditions of the
Shareholder Loan comply with the Shareholders' Loan Agreement
(Schedule 4 to the Equity Undertaking) and such Shareholder Loan
otherwise complies with all applicable provisions of the Facility
Documents.
3. REPRESENTATIONS AND WARRANTIES
Advent, as at the date of the entering into of this Pledge by all the
parties hereto, makes the representations and warranties set out in clauses
3.1 to 3.12 below and acknowledges that the Secured Creditors have entered
into the Facility Documents in reliance on those representations and
warranties (in addition to any other warranties and representations as set
out in the Facility Documents):
3.1. Advent is a company limited by shares, duly Incorporated under the
laws of Singapore with power to enter into this Pledge and to
-17-
exercise its rights and perform its obligations hereunder and all
corporate and other action required to authorise its execution of this
Pledge and the performance by it of its obligations hereunder have
duly been taken.
3.2. The obligations expressed to be assumed by Advent in this Pledge are
legal and valid obligations binding on Advent and enforceable in
accordance with the terms hereof, subject to the Reservations.
3.3. All the Existing Shares are validly issued and fully paid-up.
3.4. No Receiver, liquidator or similar officer has been appointed with
respect to Advent or any material part of its assets nor is it aware
of any petition or proceedings for such appointment pending.
3.5. The entering into of this Pledge (after its execution by all the
parties hereto) by Advent and the exercise of Advent's rights and
performance of Advent's obligations hereunder do not and will not: (a)
(in circumstances or to an extent which will have a material adverse
effect on its ability to comply with its obligations under this
Pledge) conflict with any agreement, charge or other instrument or
document to which it is a party or which is binding upon it or any of
its assets, (b) conflict with its documents of incorporation or
constitutive documents, or (c) conflict with any applicable law,
regulation or official judicial order:
3.6. This Pledge creates those first-ranking pledges and charges as set
forth herein.
3.7. Under the laws of its jurisdiction of incorporation, it is not
necessary for creation and perfection of this Pledge that this Pledge
be filed, recorded or enrolled with any court or other authority or
that any stamp, registration or similar tax be paid on or in relation
to this Pledge, save as set out in Annexure C hereto.
3.8. Advent is the legal and beneficial owner of the Existing Shares and
any Related Rights in respect thereof, free and clear of any
Encumbrance (save for the pledges created pursuant to this Pledge) or
other rights of third parties of whatsoever nature (save for rights of
-18-
Shareholders pursuant to the Shareholders' Agreement or the Articles
of Association of Partner which do not derogate from the provisions
referred to in clause 2.3.2(i) above). Advent is the legal and
beneficial owner of the Shareholders' Loans, free and clear of any
Encumbrance or other rights of third parties of whatsoever nature,
save for the pledges created pursuant to this Pledge and save for the
rights granted pursuant to the Subordination Agreement. Advent is the
legal and beneficial owner of the Advent Cash Collateral Account and
the debt to Advent represented thereby (if any), free and clear of any
Encumbrance (save for the pledges created pursuant to this Pledge)
subject to the provisions of the Equity Undertaking.
3.9. No person has any right or option to purchase the Existing Shares or
any of them or any Related Rights in respect thereof, the
Shareholders' Loans or the Advent Cash Collateral Account, except and
to the extent set forth in the Shareholders' Agreement.
3.10. There is no restriction or limit (whether under the Shareholders'
Agreement, Memorandum and Articles of Association of Partner or
otherwise) on the transfer or pledge of the Shares, the Shareholders'
Loans or the Advent Cash Collateral Account pursuant to this Pledge or
upon realisation of the pledges and charges hereunder, except as may
be applicable under the Licence or under applicable law.
3.11. No consent, approval, authorisation or other action by any party is
required to be obtained by or with respect to Advent which has not
been obtained either: (i) for the pledges created pursuant to this
Pledge or for the execution, delivery or performance of this Pledge by
Advent, or (ii) for the realisation by the Trustee of the rights or
remedies provided in this Pledge, save for consents which may be
required under the Licence, save for the provisions of the Pledges
Law, 1967 prescribing methods of realisation of pledges and save for
payment of stamp duty and registration requirements.
3.12. The copies of the Memorandum and Articles of Association of Partner
and of the Shareholders' Agreement to be delivered to the
Co-ordinating Agent pursuant to paragraphs 1 and 5 respectively of
-19-
Schedule 4 of the Facility Agreement are, complete, accurate and
updated in all respects.
3.13. The representations and warranties set out in this clause 3 above are
made only on the date hereof.
4. CONTINUING SECURITY
4.1. The security over the Pledged Assets constituted by, and the
obligations of Advent contained in, this Pledge shall constitute and
be continuing security and obligations notwithstanding any settlement
of account or other matter or thing whatsoever and shall not be
considered satisfied by any intermediate payment of all or any of the
obligations of Partner or any other Obligor under the Facility
Documents (or any of them) and shall continue in full force and effect
until the end of the Security Period. The security over the Advent
Cash Collateral Account constituted by, and the obligations of Advent
insofar as relating to the Advent Cash Collateral Account contained
in, this Pledge shall constitute continuing security and obligations
and shall not be considered satisfied by an intermediate payment of
the obligations of Advent under Section 2 of the Equity Undertaking,
and shall continue in full force and effect until Advent shall have
fulfilled all of its obligations under Section 2 of the Equity
Undertaking.
4.2. Where any discharge (whether in respect of the obligations of Partner
or any other Obligor or of Advent with respect to any of its
obligations under Section 2 of the Equity Undertaking or of any
security for any of the aforegoing obligations or otherwise) is made
in whole or in part or any arrangement is made on the faith of any
payment, security or other disposition which is avoided, reduced or
must be restored on insolvency, liquidation or otherwise, the
liability of Advent under this Pledge shall continue as if the
discharge or arrangement had not occurred.
4.3.1. No concession or compromise of any claim that any payment,
security or other disposition is liable to avoidance or
restoration shall in any way affect the security granted
hereunder or Advent's obligations hereunder.
-20-
4.3.2. Neither the liability of Advent under this Pledge nor the rights,
powers and remedies conferred on the Trustee in respect of Advent
under this Pledge will be affected or waived by any of the acts,
omissions, circumstances, matters or things listed below, whether
or not known to Advent or the Secured Creditors or the Trustee
(or any of them), which, but for this provision, would release or
prejudice any of such liability, rights, powers and remedies or
prejudice or diminish such liability, rights, powers and
remedies in whole or in part:
(i) any time, waiver or other indulgence granted to, or
composition with, Partner, any Obligor or any other
person;
(ii) any failure to exercise any right or remedy under any
Facility Document;
(iii) the single or partial exercise of any right under any
Facility Documents or of any other right or remedy;
(iv) the taking, variation, compromise, exchange, renewal or
release of, refusal or neglect to perfect, take up or
enforce, any rights against, or security over, assets of
Partner or any other person or any failure to realise the
full value of any other security;
(v) any incapacity or lack of powers, authority or legal
personality of or dissolution or change in the members or
status of, Partner or any other person;
(vi) any variation (however fundamental) or replacement of a
Facility Document or any other relevant document or security
or any variation, waiver or release of any Secured
Obligation;
(vii) any unenforceability, illegality or invalidity of any
obligation of Partner or any other person under any Facility
Document or any other relevant document or
-21-
security, to the intent that Advent's obligations under this
Pledge shall remain in full force, and this Pledge shall be
construed accordingly, as if there were no unenforceability,
illegality or invalidity;
(viii) the winding-up, dissolution, administration or
reorganisation of Partner, any other Obligor or any other
person or any change in its status, function, control or
ownership.
4.4. Advent waives any right it may have of first requiring any Secured
Creditor and or the Trustee to proceed against or enforce any other
rights or security or claim payment from Partner or any other person
before the enforcement by the Trustee of the security constituted
hereby.
4.5. Advent shall not, and hereby waives any right to, by virtue of any
payment made, security realised or moneys received hereunder for or on
account of the liability of any other person:
4.5.1. be subrogated to or otherwise take the benefit of (whether in
whole or in part) any rights, security or moneys held, received
or receivable by the Trustee pursuant to this Pledge or be
entitled to any right of contribution or indemnity;
4.5.2. claim, rank, prove or vote as a creditor of any other person or
its estate; or
4.5.3. receive, claim or have the benefit of any payment, distribution
or security from or on account of any other person or exercise
any right of set-off as against any other person.
Advent will hold in trust for and forthwith pay or transfer to the
Trustee any payment or distribution or benefit of security received by
it contrary to the above. If Advent exercises any right of set-off
contrary to the above, it will forthwith pay an amount equal to the
amount set-off to the Trustee.
-22-
The foregoing in this clause 4.5 shall not prevent Advent from: (i)
bringing a claim against Partner or any other Obligor, provided that:
(a) such a claim may be brought only after all the Secured Obligations
have been unconditionally and irrevocably paid and discharged in full,
and (b) there has been no realisation of all or any part of the
Pledged Assets or of all or any of the pledged assets (other than Cash
Collateral Accounts) under any other Share Pledges; or (ii) bringing a
claim against any Shareholder.
4.6. This Pledge is in addition to, independent of, and is not in any way
prejudiced by, any other guarantee or security now or hereafter held
by the Trustee or any of the Secured Creditors in respect of any of
the Secured Obligations or in respect of the obligations of Advent
under the Equity Undertaking.
4.7. The rights and remedies provided by this Pledge are cumulative and are
not exclusive of any rights or remedies provided by law.
4.8. The obligations, warranties, representations, undertakings, agreements
and covenants of Advent under this Pledge are in addition to, and
shall not be prejudiced or restricted by, nor shall they prejudice or
restrict, any obligations, warranties, representations, undertakings,
agreements or covenants in any other Facility Document.
Notwithstanding the foregoing, to the extent any provision of any
Facility Document (other than this Pledge) conflicts with the terms
hereof, the provisions of this Pledge shall prevail.
5. UNDERTAKINGS BY ADVENT
Advent hereby undertakes to the Trustee:
5.1. not to sell, assign or otherwise transfer all or any of the Pledged
Assets or the Advent Cash Collateral Account or the debt to Advent
represented thereby, unless: (i) such Pledged Assets or the Advent
Cash Collateral Account or the debt to Advent represented thereby are
sold, assigned or transferred subject to the first-ranking pledge
created pursuant to this Pledge and in accordance with the provisions
hereof; (ii) such pledges over the aforesaid sold,
-23-
assigned or transferred Pledged Assets or the Advent Cash Collateral
Account or the debt to Advent represented thereby are duly registered
and valid and have the same priority as they would have had, had such
transferee been the original signatory of this Pledge and owner of the
Pledged Assets and the Advent Cash Collateral Account, in place of
Advent; (iii) all registrations or amendments to registrations and all
filings (including, of amended deeds of pledge) have been made which
are in the reasonable opinion of the Trustee required for the purposes
of (i) and (ii) above; (iv) the transferee of such Pledged Assets or
the Advent Cash Collateral Account or the debt to Advent represented
thereby is duly and validly bound by this Pledge or by another pledge,
mutatis mutandis, in the same form as this Pledge in respect of such
Pledged Assets or the Advent Cash Collateral Account or the debt to
Advent represented thereby as if the original signatory thereof in the
place of Advent and such transferee is not an individual guarantor
("Arev Yachid") within the meaning of the Guarantee Law, 1967; (v) any
such sale, assignment or transfer is permitted pursuant to the
Licence, or permission as required under the Licence has been granted
in relation thereto, and (vi) such sale, assignment or transfer is
permitted under the Facility Documents and all provisions of the
Facility Documents applicable in the case of such sale, assignment or
transfer of such Pledged Assets or the Advent Cash Collateral Account
or the debt to Advent represented thereby have been complied with. At
the request of Advent, the Trustee undertakes promptly to carry out
all actions reasonably required to be carried out by it as the holder
of the pledges and charges created under this Agreement in order to
facilitate a sale, assignment or transfer permitted by, and made in
accordance with this clause 5.1 above;
5.2. not to pledge, charge or grant any other Encumbrances (of whatsoever
nature and howsoever ranking) in respect of or any other right or
interest in favour of any third party in relation to, any of the
Pledged Assets or in relation to the Advent Cash Collateral Account or
the debt to Advent represented thereby (save for any transfer
permitted by, and made in accordance with, the provisions of this
Pledge);
-24-
5.3. at any time and from time to time upon the written request of the
Trustee, promptly to execute and deliver to the Trustee any and all
such further notices, instruments and documents as the Trustee may
deem reasonably necessary for it to obtain valid and enforceable
first-ranking pledges as contemplated under this Pledge and to obtain
the full benefit of the rights and powers herein granted;
5.4. save as may be permitted pursuant to the Equity Undertaking, not to
transfer any moneys out of the Advent Cash Collateral Account;
5.5. to notify the Trustee promptly in any case where attachment is levied,
or execution proceedings are instituted against, or a Receiver is
appointed over, or any similar act occurs or any similar proceedings
are instituted in respect of, the Pledged Assets or any part thereof,
or the Advent Cash Collateral Account and to notify the third party
who initiated or requested the same or any Receiver appointed of the
existence of the pledges herein contained in favour of the Trustee,
and to take, within 10 days of such attachment, execution proceedings,
appointment of Receiver or similar act or proceedings as aforesaid,
all necessary measures at the expense of Advent for the discharge or
cancellation of the same as soon as practicable;
5.6. to pledge in favour of the Trustee all Shares and all Related Rights
of whatsoever nature and whenever acquired by it, all in accordance
with the provisions of clause 2 above;
5.7. not, after the date hereof, to acquire any Shares or Related Rights
nor to make any Shareholders' Loans, unless Advent is the legal and
beneficial owner of such Shares, Related Rights or Shareholders'
Loans, free and clear of any Encumbrance (save for the pledges created
pursuant to this Pledge);
5.8. to oppose any change in the Memorandum and/or Articles of Association
of Partner which will amend or derogate from the provisions referred
to in clause 2.3.2(ii) above or in any way lead to any restrictions
whatsoever on the ability of the Trustee to realise its rights under
this Pledge;
-25-
5.9. to procure that no Affiliate of Advent shall grant to Partner any
Shareholder Loan, unless such Affiliate shall prior thereto have taken
all steps as reasonably required by the Trustee to pledge its rights
in respect thereof in favour of the Trustee (for the benefit of the
Secured Creditors) in accordance with a pledge, in mutatis mutandis,
the same form as this agreement (to the extent relating to
Shareholders' Loans) and such Affiliate shall have taken all steps
reasonably required by the Trustee to perfect such pledge.
6. DEFAULT AND REALISATION
6.1. Upon, and only upon, the occurrence of an Enforcement Event which is
continuing and a declaration in accordance with clause 22.22(c) or (d)
of the Facility Agreement that all the Advances are payable on demand
or immediately due and payable, the Trustee shall, provided that the
Trustee shall have given Advent the Required Prior Notice (as defined
below), be entitled to realise its rights under this Pledge, including
the realisation and sale of the Pledged Assets, in whole or in part,
whether by the appointment of a Receiver and/or by the Israeli
Execution office and/or by order of court and/or whether by any other
method permitted under the Pledges Law, 1967, as the Trustee shall see
fit and to apply the proceeds thereof on account of the Secured
Obligations, all without the Trustee first being required to realise
any other guarantee or collateral or other securities, if such be held
by the Trustee. For the purposes of this clause 6.1, "the Required
Prior Notice" shall mean: (i) 20 Business Days prior notice, in the
event that all the Advances have been declared payable on demand
pursuant to clause 22.22(c) of the Facility Agreement, or (ii) 10
Business Days prior notice, in the event that the Advances have been
declared immediately due and payable, whether, for the removal of
doubt, pursuant to clause 22.22(c) or (d) of the Facility Agreement;
provided that (for the removal of doubt), if prior to the expiry of 20
Business Days following the date of a notice as referred to in (i)
above (an "On Demand Notice"), a notice is given as referred to in
(ii) above (an "Immediately Due Notice"), then: (a) in the event that
more than 10 Business Days has elapsed between the date of the On
Demand Notice and the date of the Immediately Due Notice, the Required
Prior Notice shall be 20 Business Days from the date of the On Demand
Notice, and (b) in
-26-
the event that less than 10 Business Days has elapsed between the date
of the On Demand Notice and the date of the Immediately Due Notice,
the Required Prior Notice shall be 10 Business Days from the date of
the Immediately Due Notice. In realising its rights as aforesaid, the
Trustee shall be required to observe all the requirements of the
Licence in relation to such realisation, including the requirements of
clause 22 of the Licence that if any such realisation shall cause a
variation in the ownership of 10% or more of any means of control (as
defined in the Licence) of Partner, such realisation may not be
effected unless the prior written consent of the Minister of
Communications has been obtained.
6.2. Any and all sums to be received from the realisation of the Pledged
Assets or any part thereof, shall be applied in the following order of
priority:
6.2.1. firstly, to the discharge of all the costs, fees and expenses
incurred and which may be incurred in connection with the
collection of the Secured Obligations, including the costs, fees
and expenses referred to in clause 7.2 below and the costs and
remuneration of a Receiver, if applicable, in such amount as
shall be reasonably prescribed by the Trustee or approved by the
court or the Israeli Execution Office or any other competent
authority;
6.2.2. secondly, in or towards payment of the Secured Obligations, or
such part of them as is then due and payable, all in accordance
with clause 29 of the Facility Agreement;
6.2.3. thirdly, subject to clause 7, in payment of the surplus (if any)
to Advent,
or in such other order as the Trustee shall determine among the
paragraphs of clause 6.2.
6.3. The Trustee (and, for the removal of doubt, the Secured Creditors, to
the extent relevant) shall be entitled to realise the Advent Cash
Collateral Account and the debt to Advent represented thereby only
upon or following: (i) the delivery of a Contribution Notice (as
defined
-27-
in the Equity Undertaking) in respect of Advent under clause 2.2
(Requirement for Drawdown) of the Equity Undertaking or the making of
any demand in respect of Advent pursuant to clause 2.3 (Equity
Milestones) of the Equity Undertaking, and (ii) receipt of the
instructions of an Instructing Group to such effect, provided that
such realisation shall be in respect of an amount up to the amount
payable pursuant to such Contribution Notice or demand (as applicable)
and that all amounts realised as aforesaid shall be transferred by the
Security Trustee to the Charged Account (as defined in the Equity
Undertaking).
6.4. The Trustee shall be exempt from taking any action whatsoever in
connection with any Pledged Assets or the Advent Cash Collateral
Account. The Trustee shall not be liable for any loss or damage which
may be caused as a result of the exercise or purported exercise of the
powers, authorities, rights or discretions vested in the Trustee in
accordance with this Pledge or otherwise caused in connection herewith
(other than, and to the extent of, any such loss or damage which
resulted from the gross negligence or wilful misconduct (including
wilful omission) of the Trustee) and Advent undertakes to indemnify
the Trustee in any event that the Trustee is sued for any such loss or
damage by others or in respect of any other matter or thing done or
omitted to be done by the Trustee (in each such case, other than, and
to the extent of, any such loss or damage which resulted from the
gross negligence or wilful misconduct (Including wilful omission) of
the Trustee).
7. CONTINGENCIES
7.1. If the Trustee realises the security constituted by this Pledge
(whether by the appointment of a Receiver or otherwise) at a time when
the Secured Obligations (or any part thereof) shall not have fallen
due under the Facility Documents (but at a time when amounts may
become so due or are contingently due), the Trustee shall pay the
proceeds of any recoveries if, to the extent applicable, not otherwise
applied under clauses 6.2.1 and 6.2.2, into such number of Realisation
Accounts with the Account Bank in the name of Advent, which
Realisation Accounts shall be charged by way of a first-ranking fixed
charge in favour of the Trustee (for the benefit of
-28-
the Secured Creditors) as security for the full discharge of the
Secured Obligations. Advent hereby undertakes to execute all such
documents as the Trustee shall reasonably require in order to create
and perfect such charges over the Realisation Accounts as aforesaid.
7.2. The Trustee may withdraw amounts standing to the credit of the
Realisation Accounts to:
7.2.1. meet all costs, fees, charges and expenses incurred and payments
made by the Trustee (or any Receiver) in the course of the
enforcement of this Pledge;
7.2.2. pay remuneration to any Receiver in respect of the realisation of
this Pledge as and when the same becomes due and payable; and
7.2.3. meet amounts due and payable by Partner or any other Obligor
under the Facility Documents as and when the same become due and
payable,
in each case, together with interest thereon at the Default Rate from
the date the same become due and payable until the date the same are
unconditionally and irrevocably paid and discharged in full.
7.3. Amounts standing to the credit of each Realisation Account shall bear
interest at the Account Bank's rate of interest for similar (if any)
deposits in the relevant currency from time to time.
7.4. Advent will not be entitled to withdraw any moneys (including
interest) standing to the credit of any Realisation Account until the
expiry of the Security Period.
8. BOOKS OF ACCOUNTS
8.1. Advent confirms that the respective books, accounts and entries of the
Trustee and of the Facility Agents shall be deemed to be correct and
shall, in the absence of manifest or proven error, be prima facie
evidence for or against Advent in all their particulars.
-29-
8.2. A certificate by the Trustee or any Facility Agent setting out the
amount of any Secured Obligation shall, in the absence of manifest or
proven error, be prima facie evidence of such amount for or against
Advent.
9. COSTS, EXPENSES AND INTEREST
9.1. Advent shall cooperate with the other shareholders of Partner to
procure, in its capacity as a Shareholder, that Partner shall, from
time to time, on the demand of the Trustee, reimburse the Trustee for
all reasonable costs and expenses submitted to Partner supported by
appropriate evidence thereof (including legal fees but excluding any
charges for management time) together with any VAT thereon incurred by
the Trustee in connection with the negotiation, preparation and
execution of this Pledge (and any amendments thereto) and the
completion of the transactions herein contemplated, including the
registration of each pledge herein created or contemplated hereby,
subject to any limits agreed from time to time between Partner and the
Trustee, as well as all costs of stamping and registering this Pledge
and/or any other document ancillary hereto and/or to be entered into
hereunder.
9.2. Advent shall (in its capacity as a shareholder) cooperate with the
other shareholders of Partner to procure that Partner shall, from time
to time on demand of the Trustee, reimburse the Trustee for all costs
and expenses (including legal fees) together with any VAT thereon
incurred in or in connection with the preservation and/or enforcement
of any of the rights of the Trustee under this Pledge or otherwise in
connection with any claims or proceedings in relation to this Pledge.
9.3. The Trustee and every Receiver and any attorney, agent or other person
appointed by the Trustee, any such Receiver or the court in connection
with this Pledge shall be entitled to be indemnified out of the
Pledged Assets in respect of all liabilities and expenses properly
incurred by them in the execution of any of the powers, authorities or
discretions vested in them pursuant hereto and/or by law and against
all actions, proceedings, costs, claims and demands in respect of any
matter or thing done or omitted pursuant to this
-30-
Pledge in any way relating to the Pledged Assets or the Advent Cash
Collateral Account (except that resulting from gross negligence or
wilful misconduct (including wilful omission) by the Trustee, Receiver
or any such other person) and the Trustee may retain and pay all sums
in respect of the same out of any moneys received under the powers
hereby conferred.
9.4. In the event that the Trustee issues proceedings against Advent for
the payment of any amount due or to become due to the Trustee pursuant
to this Pledge, the Trustee shall be entitled to claim in respect of
the period from the issue of the proceedings until full payment
thereof, interest at the Default Rate.
10. FURTHER ASSURANCES
Advent shall at its own expense execute and do all such acts and things as
the Trustee may from time to time reasonably require in order to perfect or
protect the security intended to be created hereby over the Pledged Assets
or any part thereof or the Advent Cash Collateral Account or facilitate the
realisation of the Pledged Assets or any part thereof or exercise of all
powers, authorities and discretions vested in the Trustee or any Receiver
of the Pledged Assets or any part thereof, all in accordance with this
Pledge and applicable law. To that intent, Advent shall in particular
execute all pledges, share transfer forms, other transfers and assignments
of the Shares or other rights as may, in each such case, be reasonably
required by the Trustee and give all notices (including notices of all
assignments made by Advent hereunder), orders and directions and make all
registrations which may be reasonably required by the Trustee.
11. DELEGATION BY TRUSTEE
The Trustee may at any time and from time to time delegate by power of
attorney or in any other manner to any person or persons all or any of the
powers, authorities and discretions exercisable by the Trustee under this
Pledge. Any such delegation may be made upon such terms and subject to such
regulations as the Trustee may think fit, provided that nothing in this
clause 11 shall confer upon the Trustee the power to allow any delegate to
sub-delegate any such rights, powers, authorities and discretions. The
Trustee shall not be in any way liable or responsible to
-31-
Advent, any Secured Creditor or any other person for any loss or damage
arising from any default, omission, misconduct or negligent act on the part
of any such delegate, save where such loss or damage arises due to the
wilful misconduct (including wilful omission) or wilful default or gross
negligence of such delegate and the Trustee is considered by a final
decision of a court to have been grossly negligent in its delegation to the
delegate concerned.
12. POWER OF ATTORNEY
12.1. Solely for the purposes of securing the due performance of Advent's
obligations under or pursuant to this Pledge, Advent hereby
irrevocably appoints the Trustee and every delegate, as referred to in
clause 11, to be its attorney acting severally, and on its behalf and
in its name or otherwise to execute and do all such acts and things
which Advent expressly ought to do under the covenants and provisions
contained in this Pledge (including to make any demand upon or to give
any notice or receipt in connection with any of the Shareholders'
Loans and to execute, deliver and register any pledges, charges,
assignments or other security) and, generally, in its name and on its
behalf to exercise all or any of the powers, authorities and
discretions expressly conferred by or pursuant to this Pledge or by
law on the Trustee or any such delegate and (without prejudice to the
generality of the foregoing) to perfect any security granted hereunder
or pursuant hereto. The Trustee or any delegate as aforesaid shall
only exercise such power of attorney if Advent fails to perform all or
any of the acts or obligations which are expressly required to be
performed by it under this Pledge within 3 Business Days of being
required to so perform any such act or obligation, or earlier in the
event that in the reasonable opinion of the Trustee the rights of the
Trustee under this Pledge may be prejudiced by the delay.
12.2. Advent shall at the request of the Trustee execute powers of attorney
in favour of the Trustee in such forms as may be reasonably required-
by the Trustee so as to enable the Trustee to make
-32-
transfers from the Advent Cash Collateral Account to the Charged
Account in accordance with Section 15 of the Equity Undertaking.
13. WAIVER BY ADVENT
Subject to and without derogating from any other provisions of this Pledge
which exclude the application of, or constitute a waiver by Advent of,
certain defences or rights under the Guarantee Law, 1967 (which defences or
rights would, but for such provisions, have been available to Advent):
13.1. Advent hereby waives all rights and defences under Sections 2, 4-6
inclusive, 8-11 inclusive and 13-17 inclusive of the Guarantee Law,
1967 and confirms that such provisions of the Guarantee Law, 1967
shall not apply to this Pledge;
13.2. Advent shall be entitled to rely on Section 7 of the Guarantee Law,
1967, to the extent applicable; and
13.3. Advent shall be entitled to rely on Section 12 of the Guarantee Law,
1967, to the extent applicable, but only in the event that: (i) all
the Secured Obligations have been unconditionally and irrevocably paid
and discharged in full; (ii) there has been no realisation of all or
any part of the Pledged Assets or of all or any of the pledged assets
(other than Cash Collateral Accounts) under any other Share Pledge;
(iii) the Trustee shall have received written instructions and
undertakings executed by all the Shareholders who have paid amounts on
account of the Secured Obligations and are entitled to rely on Section
12, detailing the names of the Shareholders to whom the relevant
security interests should be transferred and undertaking to indemnify
the Trustee and the Secured Creditors against any claims, losses,
damages, expenses, costs, charges, liability or proceedings which may
be brought, made or preferred against, or suffered, incurred or
sustained by, the Trustee or any Secured Creditor in relation to, in
connection with, or arising out of, the
-33-
transfer of security Interests as aforesaid; and (iv) all consents,
approvals, authorisations and permits necessary under the Licence,
under law or under contract in order to perform such transfer have
been obtained and there is no impediment under the Licence, law or
contract to such transfer.
14. REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of the
Trustee or Advent of any right or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any right of
remedy prevent any further or other exercise thereof or the exercise of any
other right or remedy.
15. PARTIAL INVALIDITY
If, at any time, any provision hereof is or becomes illegal, invalid of
unenforceable in any respect or any of the security intended to be created
by or pursuant to this Pledge is ineffective, neither the legality,
validity or enforceability of the remaining provisions hereof or the
effectiveness of any of the remaining such security, shall in any way be
affected or impaired thereby.
16. COUNTERPARTS
This Pledge 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.
17. NOTICES
17.1. Each communication to be made hereunder shall be made in writing and,
unless otherwise stated, shall be made by facsimile, telex or letter.
17.2. Any communication or document to be made or delivered by one person to
another pursuant to this Pledge shall (unless that other
-34-
person has by 15 Business Days' written notice to the other
specified another address) be made or delivered to that other
person at the address identified with its signature below and
shall be deemed to have been made or delivered when despatched
and confirmation of receipt by the intended recipient has been
received (in the case of any communication made by telex or fax)
or (in the case of any communication made by letter) when left at
that address or (as the case may be) 5 Business Days after being
deposited in the postage prepaid in an envelope addressed to it
at that address provided that any communication or document to be
made or delivered to the Trustee shall be effective only when
received by the Trustee and then only if the same is expressly
marked for the attention of the department or officer identified
with the Trustee's signature below (or such other department or
officer as the Trustee shall from time to time specify for this
purpose);
17.2.1. to Advent: c/x Xxxxxxxxx Telecommunications Ltd.
18/F Two Harbourfront
00 Xxx Xxxx Xxxxxx
Xxxxxxx, Xxxxxxx
Xxxx Xxxx
Facsimile: x000 0000 0000
Attention: Xx. Xxxxx X. Xxxxxxx
Group Director of Finance
with a copy to: Xxxxxxxxx Whampoa Limited
00xx Xxxxx, Xxxxxxxxx Xxxxx
00 Xxxxxxxx Xxxx
Xxxxxxx, Xxxx Xxxx
Facsimile: x000 0000 0000
Attention: Xx. Xxxxx X. Xxxx
Group Finance Director
17.2.2. to the Trustee: 0xx Xxxxx
00 Xxxxxx Xxxxxx Xxxxxx
Xxx-Xxxx
Xxxxxx
Facsimile: x000 0 000 0000
Attention: Xxxx Xxxxx, Corporate Division,
Communications Sector
-35-
with a copy to: Stuart Gnessen, Adv.
00 Xxxx Xx'xx Xxxxxx
Xxx-Xxxx
Xxxxxx
Facsimile: x000 0 000 0000
18. ASSIGNMENT
Advent hereby irrevocably and unconditionally consents to the Trustee being
able, at any time, without any further consent being required from Advent,
to assign this Pledge and its rights and/or obligations arising thereunder
in whole to any Optional Israeli Bank or other Israeli bank approved by
Partner (which approval shall not be unreasonably withheld) which is
appointed in accordance with the provisions of the Security Trust Deed, to
act, in place of the Trustee, as trustee for the benefit of the Secured
Creditors and any such assignee may also reassign the said rights as
aforesaid to an Optional Israeli Bank or any other Israeli bank approved as
aforesaid without any further consent being required from Advent. Such
assignment may be effected by endorsement on this Pledge or in any other
way the Trustee or any subsequent assignor deems fit.
19. GOVERNING LAW
This Pledge shall be governed by, and construed in accordance with, the
laws of the State of Israel.
20. JURISDICTION
20.1. Advent hereby irrevocably agrees, for the benefit of the Trustee, as
trustee for the Secured Creditors, that the courts of Tel-Aviv shall
have jurisdiction to hear and determine any suit, action or
proceedings and to settle any disputes, which may arise out of or in
connection with this Pledge (respectively, "Proceedings" and
"Disputes") and, for such purposes, irrevocably submits to the
jurisdiction of such courts.
-36-
20.2. Advent hereby irrevocably waives any objection which it might now or
hereafter have to the courts referred to in clause 20.1 being
nominated as the forum to hear and determine any Proceedings and to
settle any Disputes and agrees not to claim that any such court is not
a convenient or appropriate forum.
20.3. Advent agrees that the process by which any Proceedings are begun may
be served on it by being delivered in connection with any Proceedings
in Israel to Xxxxxxxxx Xxxxxx Xxxxx, Xxxxx Limited of 00 Xxxx Xxxxx
Xxxxxxxxx, Xxx-Xxxx 00000, Xxxxxx. If the appointment of the persons
mentioned in this clause 20.3 ceases to be effective, Advent shall
immediately appoint a further person in Israel to accept service of
process on its behalf in Israel and, failing such appointment within
15 days, the Trustee shall be entitled to appoint such person by
notice to Advent. Nothing contained herein shall affect the right to
serve process in any other manner permitted by law.
20.4. The submissions to the jurisdiction of the courts referred to in
clause 20.1 shall not (and shall not be construed so as to) limit the
right of the Trustee to take Proceedings against Advent in any other
court of competent jurisdiction, nor shall the taking of Proceedings
in any one or more jurisdictions preclude the taking of Proceedings in
any other jurisdiction (whether concurrently or not) if and to the
extent permitted by applicable law.
21. TERMINATION
For the removal of doubt, this Pledge shall terminate: (i) insofar as
relating to the Pledged Assets, upon the expiry of the Security Period, and
(ii) in respect of the Advent Cash Collateral Account, upon full discharge
and/or payment by Advent of all its obligations under Section 2 of the
Equity Undertaking.
-37-
22. NO AMENDMENT
This Pledge shall not be amended, modified or altered unless the written
consent of all parties hereto to such amendment, modification or
alteration has been obtained.
IN WITNESS WHEREOF the parties have signed this Pledge on the date written at
the beginning of this document.
for ADVENT INVESTMENTS PTE. LTD. for BANK LEUMI LE-ISRAEL B.M.
By: [signature] By: [signature]
---------------------------------- -----------------------------------
Title: DIRECTOR Title:
-------------------------------
We, the undersigned, Partner Communications Company Ltd., acknowledge the
pledges created pursuant to the above pledge of the Pledged Assets, including
the pledges and assignment by way of charge, as a first-ranking fixed pledge and
charge, in favour of the Trustee of the Shareholders' Loans (all capitalised
terms used herein as defined in the above Pledge).
for PARTNER COMMUNICATIONS COMPANY LTD.
By: [signature]
----------------------------------
Title: CEO
By: [signature]
----------------------------------
Title: CEO
ANNEXURE A
EVENT OF DEFAULT
References in this Annexure A are to the Facility Agreement. Terms not otherwise
defined herein shall bear the meaning set out in the Facility Agreement.
22.1 Events of Default Each of the events set out in Clause 22.2 (Non-Payment)
to 22.21 (Equiry Undertaking) is an Event of Default (whether or not caused by
any reason outside the control of any or all of the Obligors or of any other
person).
22.2 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, provided that this sub-Clause 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 five Business Days after the due date
for payment.
22.3 Breach of Obligations
(a) There is any breach of the provisions of Clause 2.2 (Purpose), Clauses 20.6
(Negative Pledge) to 20.8 (Disposals) (inclusive), 20.10 (Loans and
guarantees) to 20.15 (Share Capital) (inclusive), 20.22 (Borrowings) and,
subject to the provisions of Section 21 (Curative Equiry), 20.32 (Financial
Undertakings).
(b) 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 days after the earlier of the Obligor becoming aware of
such default and receipt by the Obligor of written notice from the
Co-ordinating Agent requiring the failure to be remedied, that Obligor
shall have failed to cure such default.
22.4 Misrepresentation/Breach of Warranty
(a) Any representation or warranty contained in Clauses 19.7 (Consents), 19.8
(c) or (d) (Accounts), 19.10(b) (Tax Liabilities), 19.12 (Information
Memorandum and Reports), 19.13 (Ownership of Assets), 19.14 (Documents),
19.15(a) (Intellectual Property Rights), 19.16 (Environmental Matters),
19.18 (Material Contracts) or 19.21 (The Parent) 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 19.5(c) (Non Conflict),
19.6(b) (No Default), 19.10 (Tax Liabilities) or 19.15(b) (Intellectual
Property Rights) is incorrect or misleading in any respect when deemed
repeated pursuant to Clause 19.22 (Repetition).
(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.
1
22.5 Cross-acceleration
(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, 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, 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, or
its equivalent, or more become enforceable and steps are taken to enforce
the same; or
(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, or its equivalent, within
30 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.
(e) For the purposes of this Clause 22.5 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.
22.6 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.
22.7 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.
22.8 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
2
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 22.8 shall not apply to:
(a) any such action relating to a solvent reconstruction, amalgamation,
reorganisation or merger of such Obligor save where the Co-ordinating 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.
22.9 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 $5,000,000 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 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.
22.10 Analogous Events Any event occurs which under the laws of Israel has a
similar or analogous effect or purpose to any of those events mentioned in
Clause 22.7 (Insolvency and Rescheduling). Clause 22.8 (Winding up) or Clause
22.9 (Execution or Distress).
22.11 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 per cent, 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 shekels
for dollars or any relevant Optional Currency in each such case which
will apply to payments made or to be made under any of the Facilities,
22.12 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
3
previously approved in writing by an Instructing Group) or all or a material
part of the Business is abandoned.
22.13 Proceedings There is current or pending any litigation, dispute,
arbitration, administrative, regulatory or other proceedings or enquiry
concerning or involving any member of the Group which is reasonably likely to
have a Material Adverse Effect.
22.14 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 the Borrower is unable to
demonstrate to the reasonable satisfaction of the Instructing Group within
30 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 arising
from any breach of the Licence.
22.15 Material Adverse Change Any event or series of events occur which in the
reasonable opinion of an Instructing Group after discussion with the Parent, 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.
22.16 Breach of Material Contracts
(a) Any Obligor falls 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.
4
22.17 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.
22.18 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 the Parent within 90 days from the date of such
failure, repudiation or purported or threatened repudiation.
22.19 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 (including, for
the avoidance of doubt, any of Clauses 3 (The Business of the
Company), 11 (Funding Requirements), 12 (Transfers), 13 (Transfer in
the Event of Default), 14 (General Provisions Applicable to
Transfers), 19 (Termination of the Shareholder Agreement ) or the
guarantees of Shareholders contained in the Shareholders Agreement is
amended or waivers granted in relation thereto or any new provisions
are included in the Shareholders Agreement (other than pursuant to
Addendum No.4 thereto and any other amendments thereto or new
provisions included therein which are satisfactory to the
Co-ordinating Agent for the purposes of Schedule 4 (Conditions
Precedent) of this 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 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 the Co-ordinating Agent
(acting on the instructions of an Instructing Group) within 14 days
after the earlier of the relevant Chargor becoming aware of the same
and receipt by the relevant Chargor of written notice from the
Co-ordinating 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 days after
the earlier of the Chargor becoming aware of such default and receipt
by the Chargor of written notice from the Co-
5
ordinating 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 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.
22.20 MRT Operator HWL ceases to control (as defined in the Licence) the entity
which is the MRT Operator (as defined in the Licence) and in respect of any
replacement MRT Operator the Controlling Corporation (as defined in the Licence)
thereof is not, in the opinion of an Instructing Group, an entity of comparable
standing and experience provided that this Clause 20.20 shall only apply so long
as a MRT Operator is required pursuant to the Licence.
22.21 Equity Undertaking
(a) (i) Any Shareholder fails to comply with its undertakings or obligations
under Clause 2 or Clause 14 of the Equity Undertaking (the "relevant
non-payment") and (ii) the Relevant Guarantor or L/C Bank, following a
demand under the terms of the Relevant Guarantee (as defined in the Equity
Undertaking) or Shareholder L/C (as defined in the Equity Undertaking) in
relation to the relevant non-payment, fails to make payment in full in
respect of the relevant non-payment by the latest date provided for in the
Relevant Guarantee or Shareholder L/C and in the case of a non-payment by
HTL (as Relevant Guarantor), HWL fails to make payment in full in respect
thereof by the latest date provided for in the HWL Counter-Guarantee;
(b) at any time it is or becomes unlawful for any Equity Undertaking Obligor to
perform or comply with any or all of its obligations under Clause 2, Clause
6 or Clause 14 of the Equity Undertaking;
(c) any of the obligations of any Equity Undertaking Obligor under Clause 2,
Clause 6 or Clause 14 of the Equity Undertaking are not or cease to be
legal, valid, binding and enforceable, subject to the Reservations;
(d) any Equity Undertaking Obligor repudiates (or threatens or purports to
repudiate) its obligations under Clause 2, Clause 6 or Clause 14 of the
Equity Undertaking.
unless, in each case, remedied within 30 days from the date thereof by another
Equity Undertaking Obligor contributing any shortfall in Equity (if any) and
agreeing to the satisfaction of the Co-ordinating Agent (acting on the
instructions of an Instructing Group) to assume the future obligations of the
defaulting Equity Undertaking Obligor under the Equity Undertaking.
6
ANNEXURE B
RESERVATIONS
1. The principle that equitable remedies are remedies which may be granted or
refused at the discretion of the court (regardless of whether such remedy
is considered in a proceeding at law or in equity).
2. The limitation on enforcement as a result of laws relating to bankruptcy,
insolvency, liquidation, reorganization, court schemes, moratoria,
administration and other laws affecting the rights of creditors generally.
3. The time-barring of claims under applicable provisions of the Singapore
Limitation Act, Chapter 163 of Singapore.
4. Rules against penalties and similar principles.
5. The role of court discretion in determination of issues involving public
policy, security or sovereignty.
6. Certain statutory preferences and other priorities arising by law may rank
ahead of the security created by the pledgor.
7. Any other qualifications or reservations as to matters of law only
contained in the legal opinion given by Xxxxx & Xxxxxxxx under the terms of
the Facility Documents in connection with this Pledge.
ANNEXURE C
Particulars of the charges created under this Pledge have to be lodged for
registration with the Registrar of Companies in Singapore within 30 days of the
creation of such charge (where the instrument creating such charge is executed
in Singapore) or within 37 days of creation of such charge (where the instrument
creating such charge is executed outside Singapore).
Stamp duty of S$500 (five hundred Singapore Dollars) is payable in respect of
this Pledge.
AMENDMENT
to a
PLEDGE MADE ON
10TH SEPTEMBER 1998
between:
(1) ADVENT INVESTMENTS PTE LTD., a company incorporated under the
laws of Singapore (company number 199408473H), having its
registered office at 0 Xxxx Xxxxxx'x Xxxxxx, #00-00 Xxxxx
Xxxxxxxx, Xxxxxxxxx ("Advent");
and
(2) BANK LEUMI LE-ISRAEL B.M., as trustee for the benefit of the
Secured Creditors ("the Trustee")
WHEREAS:
(A) pursuant to a Pledge made on 10th September 1998 ("the Main Pledge"),
Advent created in favour of the Trustee, as trustee for the benefit of the
Secured Creditors, first-ranking pledges over each of the Pledged Assets
and the Advent Cash Collateral Account; and
(B) it has been agreed between the Banks, on the one hand, and Partner, the
Shareholders (including Advent), HTL, Matav Cable and Elbit, on the other
hand, that, inter alia, the Equity Undertaking shall no longer have any
further effect and, accordingly, the Advent Cash Collateral Account shall
no longer be pledged under the Main Pledge; and
(C) it has been agreed that, in the light of the above and of certain
amendments to the Facility Agreement, the Main Pledge shall be amended in
the manner set out in this Amendment to a Pledge ("this Amendment")
below,
-2-
1. Unless otherwise defined in this Amendment, terms defined and references
contained in the Main Pledge, shall have the same meaning and construction
in this Amendment.
2. The Main Pledge is hereby amended as follows:
2.1. Clause 1.1.2 shall be deleted.
2.2. The definition of "Shareholders' Agreement" in clause 1.1.21 is
deleted and replaced by the following:
"1.1.21 'Shareholders Agreement' means the relationship
agreement between the shareholders of Partner dated
October 10, 1999, or any other agreement between the
shareholders of Partner replacing such agreement and
falling within the definition of 'Shareholders
Agreement' within the meaning of such term in the
Facility Agreement;"
2.3. In the definition of "Shareholders' Loans" in clause 1.1.22,
subparagraph (ii) shall be deleted and subparagraph (iii) shall be
renumbered subparagraph (ii).
2.4. In clause 2.2, last paragraph, the words "(save for its rights
pursuant to clause 6.3 hereunder in respect of the Advent Cash
Collateral Account)" in lines 4 and 5 shall be deleted.
2.5. Clause 2.5 shall be deleted.
2.6. Clause 2.7 shall be deleted and replaced by the following:
"2.7 For the removal of doubt, nothing in this Pledge shall be
construed as prohibiting any amendment of the terms of any
Shareholder Loan, provided that following such amendment,
such Shareholder Loan complies with all applicable
provisions of the Facility Documents."
2.7. The second sentence of clause 4.1 shall be deleted.
2.8. In clause 4.2, the words, "or of Advent with respect to any of its
obligations under Section 2 of the Equity Undertaking" in lines 2 and
3 shall be deleted.
-3-
2.9. In clause 4.5, last paragraph, the words "(other than Cash Collateral
Accounts)" in the second last line shall be deleted.
2.10. In clause 4.6, lines 4 and 5, the words, "or in respect of the
obligations of Advent under the Equity Undertaking" shall be deleted.
2.11. In clauses 5.1 and 5.2, all references to the "Advent Cash Collateral
Account or the debt to Advent represented thereby" shall be deleted.
2.12. Clause 5.4 shall be deleted.
2.13. In clause 5.8, the words in line 3, "referred to in clause 2.3.2(ii)
above" shall be deleted and replaced by the words, "of Article 10.13
of the Articles of Association in force as at the date of this
Amendment".
2.14. Clause 6.3 shall be deleted.
2.15. In clause 6.4, first sentence, the words "or the Advent Cash
Collateral Account" in lines 2 and 3, shall be deleted.
2.16. In clause 9.3, lines 9 and 10, the words, "or the Advent Cash
Collateral Account" shall be deleted.
2.17. In clause 10, line 4, the words, "or the Advent Cash Collateral
Account" shall be deleted.
2.18. Clause 12.2 shall be deleted.
2.19. In clause 13.3, line 6, the words, "(other than Cash Collateral
Accounts)" shall be deleted.
2.20. Clause 21 shall be deleted and replaced by the following:
"21. For the removal of doubt, this Pledge shall terminate upon
the expiry of the Security Period."
2.21. In Annexure A:
(i) clause 22.19(a)(iii) is deleted and replaced with the following:
"any material provision of the Shareholders Agreement is
amended or waivers granted in
-4-
relation thereto or any new provisions are included in the
Shareholders Agreement";
(ii) clause 22.21 (Equity Undertaking) is deleted in its entirety.
3. For the sake of clarification only:
3.1. with respect to the definition of "Existing Shares" in clause 1.1.8,
it is hereby clarified that the 25,500 Class A voting ordinary shares,
nominal value NIS 1.00 each in the share capital of Partner and 21,174
Class B non-voting ordinary shares, nominal value NIS 1.00 each in the
share capital of Partner, registered in the name of Advent, have been
divided and converted into 4,667,400 ordinary shares of nominal value
NIS 0.01 each, numbered 1-2,550,000 (inclusive) and
5,000,001-7,117,400 (inclusive), in the share capital of Partner, all
registered in the name of Advent and the definition of "Existing
Shares" should be construed accordingly; and
3.2. with respect to the definition of "Partner" in clause 1.1.12, the
registered number of Partner has been changed to "00-000000-0" and the
definition of "Partner" should be construed accordingly.
4. Save as amended expressly pursuant to this Amendment, the provisions of the
Main Pledge shall continue in full force and effect and the Main Pledge and
this Amendment shall be read and construed as one agreement.
5. This Amendment shall be governed by and construed in accordance with the
laws of the State of Israel.
6.1. Advent hereby irrevocably agrees, for the benefit of the Trustee, as
Trustee for the Secured Creditors, that the courts of Tel-Aviv shall
have jurisdiction to hear and determine any suit, action or
proceedings and to settle any disputes, which may arise out of or in
connection with this Amendment (respectively, "Proceedings" and
"Disputes") and, for such purposes, irrevocably submits to the
jurisdiction of such courts.
6.2. Advent hereby Irrevocably waives any objection which it might now or
hereafter have to the courts referred to in clause 6.1 being nominated
as the forum to hear and determine any Proceedings and to settle any
Disputes and agrees not to claim that any such court is not a
convenient or appropriate forum.
-5-
6.3. Advent agrees that the process by which any Proceedings are begun may
be served on it by being delivered in connection with any Proceedings
in Israel to Xxxxxxxxx Xxxxxx Xxxxx, Xxxxx Limited of 00 Xxxx Xxxxx
Xxxxxxxxx, Xxx-Xxxx 00000, Xxxxxx. If the appointment of the persons
mentioned in this clause 6.3 ceases to be effective, Advent shall
immediately appoint a further person in Israel to accept service of
process on its behalf in Israel and, failing such appointment within
15 days, the Trustee shall be entitled to appoint such person by
notice to Advent. Nothing contained herein shall affect the right to
serve process in any other manner permitted by law.
6.4. The submissions to the jurisdiction of the courts referred to in
clause 6.1 shall not (and shall not be construed so as to) limit the
right of the Trustee to take Proceedings against Advent in any other
court of competent jurisdiction, nor shall the taking of Proceedings
in any one or more jurisdictions preclude the taking of Proceedings in
any other jurisdiction (whether concurrently or not) if and to the
extent permitted by applicable law.
IN WITNESS WHEREOF, the parties have signed this Amendment on the 7 day of
August, 2000.
for: ADVENT INVESTMENTS PTE LTD. for: BANK LEUMI LE-ISRAEL B.M.
By: [signature] By: [signature]
---------------------------------- -----------------------------------
Title: Title:
------------------------------- --------------------------------
We, the undersigned, Partner Communications Company Limited, acknowledge and
agree to the amendments to the Main Pledge (as such term is defined above) set
out above.
for: PARTNER COMMUNICATIONS
COMPANY LIMITED
By: [signature]
----------------------------------
Title:
-------------------------------
SECOND AMENDMENT
to a
PLEDGE MADE ON
10TH SEPTEMBER 1998
between:
(1) ADVENT INVESTMENTS PTE LTD., a company incorporated under the
laws of Singapore (company number 199408473H), having its
registered office at 0 Xxxx Xxxxxx'x Xxxxxx, #00-00 Xxxxx
Xxxxxxxx, Xxxxxxxxx ("Advent");
and
(2) BANK LEUMI LE-ISRAEL B.M., as trustee for the benefit of the
Secured Creditors ("the Trustee")
WHEREAS:
(A) pursuant to a Pledge made on 10th September 1998 ("the Main Pledge"),
Advent created in favour of the Trustee, as trustee for the benefit of the
Secured Creditors, first-ranking pledges over, inter alia, each of the
Pledged Assets; and
(B) the Main Pledge was amended pursuant to an Amendment dated 1 August 2000
("the First Amendment"); and
(C) it has been agreed that in the light of amendments to the Facility
Agreement under an Amending and Rescheduling Agreement dated 9 July 2000,
which amendments come into force on the date of signature of this
Amendment, the Main Pledge shall be further amended in the manner set out
in this Amendment below ("the Second Amendment"),
-2-
1. Unless otherwise defined in this Second Amendment, terms defined and
references contained in the Main Pledge, shall have the same meaning and
construction in this Second Amendment. For the removal of doubt, references
to clauses of the Facility Agreement are references to clauses in the
conformed copy of the Facility Agreement of even date herewith.
2. The Main Pledge is hereby amended as follows:
2.1. Clause 1.1.5 shall be deleted and replaced by the following:
"1.1.5 'Default Rate' - means the default rate of interest
as determined in accordance with
clause 8.3 of the Facility
Agreement;"
2.2. In clause 1.1.7, the reference to "Section 22" is hereby deleted and
replaced by "clause 17" and Annexure A to the Main Pledge is hereby
replaced by a new Annexure A in the form annexed hereto and marked
Annexure "A".
2.3. In clause 1.1.9, the following words should be added after the words
"(6) the Banks":
" , as such agreement has been amended, inter alia, by an
---
Amending and Rescheduling Agreement dated 9 July, 2000, the
banks parties to the Facility Agreement as at the Effective
Date being 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.;"
2.4. In clause 1.1.10, the words "all the Borrowers" shall be deleted and
replaced by "Partner".
2.5. The word "Banks" wherever it appears in the Main Pledge shall be
replaced by "Participating Banks".
2.6. In clause 1.1.18, the word "Co-Ordinating Agent" and the letter "s" in
the event of each of "Facility Agents" and "the Arrangers" are hereby
deleted.
2.7. In clause 1.1.22, the word "Agreement" in line 4 (after the words
"Shareholder Loan") shall be deleted.
-3-
2.8. In clause 5.5, the words "or the Advent Cash Collateral Account"
shall be deleted.
2.9. In clause 6.1, the references to "clauses 22.22(c)" shall be replaced
by "clause 17.25(c)" and the references to clause "22.22(d)" shall be
replaced by clause "17.25(d)", a copy of clauses 17.25(c) and (d)
being attached hereto as Annexure "B".
2.10. In clause 6.2.2, the reference to "clause 29" shall be replaced, by
"clause 23".
3. Save as amended expressly pursuant to this Second Amendment and pursuant to
the First Amendment, the provisions of the Main Pledge shall continue in
full force and effect and the Main Pledge, the First Amendment and this
Second Amendment shall be read and construed as one agreement.
4. This Second Amendment shall be governed by and construed in accordance with
the laws of the State of Israel.
5.1. Advent hereby irrevocably agrees, for the benefit of the Trustee, as
Trustee for the Secured Creditors, that the courts of Tel-Aviv shall
have jurisdiction to hear and determine any suit, action or
proceedings and to settle any disputes, which may arise out of or in
connection with this Second Amendment (respectively, "Proceedings" and
"Disputes") and, for such purposes, irrevocably submits to the
jurisdiction of such courts.
5.2. Advent hereby irrevocably waives any objection which it might now or
hereafter have to the courts referred to in clause 5.1 being nominated
as the forum to hear and determine any Proceedings and to settle any
Disputes and agrees not to claim that any such court is not a
convenient or appropriate forum.
5.3. Advent agrees that the process by which any Proceedings are begun may
be served on it by being delivered in connection with any Proceedings
in Israel to Xxxxxxxxx Xxxxxx Xxxxx, Xxxxx Limited of 00 Xxxx Xxxxx
Xxxxxxxxx, Xxx-Xxxx 00000, Xxxxxx. If the appointment of the persons
mentioned in this clause 5.3 ceases to be effective, Advent shall
immediately appoint a further person in Israel to accept service of
process on its behalf in Israel and, failing such appointment within
15 (fifteen) days, the Trustee shall be entitled to
appoint such person by notice to Advent Nothing contained herein shall
affect the right to serve process in any other manner permitted
by law.
5.4. The submissions to the jurisdiction of the courts referred to in
clause 5.1 shall not (end shall not be construed so as to) limit the
right of the Trustee to take Proceedings against Advent in any other
court of competent jurisdiction, nor shall the taking of Proceedings
in any one or more jurisdictions preclude the taking of Proceedings in
any other jurisdiction (whether concurrently or not) if and to the
extent permitted by applicable law.
IN WITNESS WHEREOF, the parties have signed this Second Amendment on the
7 day of August, 2000.
for: ADVENT INVESTMENTS PTE LTD. for BANK LEUMI LE-ISRAEL B.M.
By: [signature] By: [signature]
---------------------------------- -----------------------------------
Title: Director Title:
--------------------------------
We, the undersigned, Partner Communications Company Limited acknowledge and
agree to the amendments to the Main Pledge (as such term is defined above) set
out above.
ANNEXURE "A"
to
AMENDED SHARE PLEDGES
17. DEFAULT
17.1. 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).
17.2. 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, 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.
17.3. Breach of Obligations
(a) There is any breach of any of clauses 2.1.2, 2.4 (Purpose), 16.2
(Financial Information), 16.6 (Negative Pledge), 16.7 (Sale and
Leaseback), 16.8 (Disposals), 16.10 (Loans and Guarantees) to
16.15 (Share Capital) (inclusive), 16.21 (Acquisitions and
Mergers), 16.22 (Borrowings), 16.23 (Arm's-Length Terms), 16.32
(Financial Undertakings) or 16.35 (Reserve Account) to 16.41
(Copy to the Ministry) (inclusive), above.
(b) 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
-2-
Agent requiring the failure to be remedied, that Obligor shall
have failed to cure such default.
17.4. 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 (Reports), 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).
(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.
17.5. 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,
-3-
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.
(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.
17.6. 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
-4-
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.
17.7. 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.
17.8. 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.
17.9. 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
-5-
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 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.
17.10. 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).
17.11. 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.
17.12. 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
-6-
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.
17.13. Proceedings
There is current or pending any litigation, dispute, arbitration,
administrative, regulatory or other proceedings or enquiry concerning
or involving any member of the Group which is reasonably likely to
have a Material Adverse Effect.
17.14. 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.
-7-
(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.
17.15. 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.
17.16. 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.
17.17. 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.
17.18. 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
-8-
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.
17.19. 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
-9-
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 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.
17.20. 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.
17.21. 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 1.1.129(f)
above.
17.22. Mandatory Prepayment
In the event that Partner shall fail to make any mandatory prepayment
in accordance with clause 7 (Mandatory Prepayment) above (including
pursuant to clause 7.1 above) within the time limits respectively
specified therefor under the relevant subsections of clause 7
(Mandatory Prepayment).
-10-
17.23. 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.
17.24. 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.
17.25. 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
-11-
(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).
17.26. 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.
17.27. 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.
ANNEXURE "B"
to
AMENDED SHARE PLEDGES
Clauses 17.25(c) and (d) of the Facility Agreement
(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).
THIRD AMENDMENT
to a
PLEDGE MADE ON
10TH SEPTEMBER 1998
between:
(1) ADVENT INVESTMENTS PTE LTD., a company incorporated under the
laws of Singapore (company number 199408473H), having its
registered office at 00 Xxx Xxxxxx Xxxx, #00-00, Xxxxxx Xxxxxx,
Xxxxxxxxx ("Advent");
and
(2) BANK LEUMI LE-ISRAEL B.M., as trustee for the benefit of the
Secured Creditors ("the Trustee")
WHEREAS:
(A) pursuant to a Pledge made on 10 September 1998, Advent created in favour of
the Trustee, as trustee for the benefit of the Secured Creditors,
first-ranking pledges over, inter alia, each of the Pledged Assets; and
(B) such Pledge, as aforesaid, was amended pursuant to an Amendment dated 1
August 2000 ("the First Amendment") and a further Amendment dated 7 August
2000 ("the Second Amendment") (such Pledge, amended as aforesaid, "the
Main Pledge"); and
(C) it has been agreed that in the light of an amendment to the Facility
Agreement dated 30 January 2002, the Main Pledge shall be further amended
in the manner set out in this Amendment below ("the Third Amendment"),
1. Unless otherwise defined in this Third Amendment, terms defined and
references contained in the Main Pledge, shall have the same meaning
-2-
and construction in this Third Amendment. For the removal of doubt,
references to clauses of the Facility Agreement are references to clauses
in the conformed copy of the Facility Agreement of even date herewith.
2. The Main Pledge is hereby amended as follows:
2.1. In clause 1.1.18, the words "Bank Leumi Le-Israel B.M., in its
capacity as issuer of the BLL Performance Bond" shall be deleted and
replaced by "Israel Discount Bank Ltd., in its capacity as issuer of
the IDB Performance Bond".
2.2. In clause 1.2.1, the following shall be added to the end thereof:
"References in this Pledge to clauses of the Facility Agreement
are references to clauses in the conformed copy of the Facility
Agreement of 7 August 2000."
3. Save as amended expressly pursuant to this Third Amendment, the provisions
of the Main Pledge shall continue in full force and effect and the Main
Pledge and this Third Amendment shall be read and construed as one
agreement.
4. This Third Amendment shall be governed by and construed in accordance with
the laws of the State of Israel.
5.1. Advent hereby irrevocably agrees, for the benefit of the Trustee, as
Trustee for the Secured Creditors, that the courts of Tel-Aviv shall
have Jurisdiction to hear and determine any suit, action or
proceedings and to settle any disputes, which may arise out of or in
connection with this Third Amendment (respectively "Proceedings" and
"Disputes") and, for such purposes, irrevocably submits to the
jurisdiction of such courts.
5.2. Advent hereby irrevocably waives any objection which it might now or
hereafter have to the courts referred to in clause 5.1 being nominated
as the forum to hear and determine any Proceedings and to settle any
Disputes and agrees not to claim that any such court is not a
convenient or appropriate forum.
5.3. Advent agrees that the process by which any Proceedings are begun may
be served on it by being delivered in connection with any Proceedings
in Israel to Gross, Kleinhendler, Hodak, Halevy, Xxxxxxxxx & Co., Law
Offices, of 1 Azrieli Centre, Circular Tower, Xxxxxx Xxxxxx Xxxxx,
Xxx-Xxxx 00000, Xxxxxx. If the appointment of
-3-
the persons mentioned in this clause 5.3 ceases to be effective,
Advent shall immediately appoint a further person in Israel to accept
service of process on its behalf in Israel and, failing such
appointment within 15 (fifteen) days, the Trustee shall be entitled to
appoint such person by notice to Advent. Nothing contained herein
shall affect the right to serve process in any other manner permitted
by law.
5.4. The submissions to the jurisdiction of the courts referred to in
clause 5.1 shall not (and shall not be construed so as to) limit the
right of the Trustee to take Proceedings against Advent in any other
court of competent jurisdiction, nor shall the taking of Proceedings
in any one or more jurisdictions preclude the taking of Proceedings in
any other jurisdiction (whether concurrently or not) if and to the
extent permitted by applicable law.
IN WITNESS WHEREOF, the parties have signed this Third Amendment on the 13 day
of March, 2002.
for: ADVENT INVESTMENTS PTE LTD. for BANK LEUMI LE-ISRAEL B.M.
By: [signature] By: [signature]
---------------------------------- -----------------------------------
Title: Director Title:
--------------------------------
We, the undersigned, Partner Communications Company Limited, acknowledged and
agree to the amendments to the Main Pledge (as such term is defined above) set
out above.
for: PARTNER COMMUNICATIONS
COMPANY LIMITED
By: [signature]
----------------------------------
Title:
-------------------------------
