AMENDMENT TO OPTION AGREEMENT
This Amendment to Option Agreement (this "Amendment"), dated February 4, 1999,
is between United Pan-Europe Communications N.V., a company organized under the
laws of The Netherlands (together with its successors and assigns, the
"Company"), DIC Communication and Technology Ltd., a corporation organized and
existing under the laws the State of Israel ("DIC"), and PEC Israel Economic
Corporation, a corporation organized and existing under the laws of the State of
Maine, United States of America ("PEC"). DIC and PEC, collectively, are
hereafter referred to as "DPC".
RECITALS
WHEREAS, DPC and UPC have executed an Option Agreement dated November 5,
1998 (the "Option Agreement"); and
WHEREAS, DPC and UPC have agreed to amend the Option Agreement (including
certain exhibits and agreements to be executed pursuant thereto) and replace the
Prior Note (as defined below) in accordance with the terms of hereof;
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. The Option Agreement is hereby amended as follows:
A. The following definitions are added to Section 1 of the Option
Agreement:
"Further Option" has the meaning set forth in Section 2(m).
"Further Option Closing" has the meaning set forth in Section 3(c)(i).
"Further Option Closing Date" has the meaning set forth in Section
3(c)(i).
"Further Option Exercise Notice" has the meaning set forth in Section
2(m).
"Further Option Note" means the promissory note dated February 9, 1999
in the original principal amount of US$45 million, in substantially the
form attached hereto as Exhibit E, to be issued by Borrower to DIC Loans
pursuant hereto.
"Further Option Purchase Price" means an amount, in immediately
available Dollar funds, equal to (i) US$45 million plus (ii) the unpaid and
outstanding Interest (as defined in the Further Option Note) thereon from
and after November 9, 1998 through the Further Option Closing Date at a
rate of 8% per annum computed in the same manner as set forth in the
Further Option Note.
"Further Option Share Price" means the greater of (i) the Minimal
Price, or (ii) the average closing price per share of the Company's
ordinary shares on the Amsterdam Stock Exchange, as reported by the
Official Price Gazette of the Amsterdam Exchanges
N.V., for the 30-day period ending on the date immediately preceding the
date of delivery of the Further Option Exercise Notice.
"Further Option Shares" has the meaning set forth in Section 2(m).
"Minimal Price" means the price per share at which the Company's
ordinary shares are sold in the IPO (the "IPO Price"); provided that (i) if
at any time during the period after the Closing Date and on or before the
date of delivery of the Further Option Exercise Notice to the Company, the
Company declares any distribution on its ordinary shares payable in
ordinary shares of the Company, or the class of its ordinary shares is
subdivided into a greater number of shares or is combined into a smaller
number of shares, then the Minimal Price shall be equal to the IPO Price
adjusted pro rata to the increase or decrease of ordinary shares or any
fraction thereof per ordinary share as a result of such distribution,
subdivision or combination (the "Adjusted Price"), and (ii) if at any time
during such period the Company offers to all of the holders of its
outstanding ordinary shares rights to subscribe for and acquire from the
Company ordinary shares or securities convertible into ordinary shares of
the Company (the "Rights") for a consideration resulting in an aggregate
payment per share to the Company (the "Rights Price") which is less than
the IPO Price or the Adjusted Price then in effect (if any), then the
Minimal Price shall be equal to the product of dividing (x) the sum of the
IPO Price or the Adjusted Price (if any), whichever is then in effect, plus
the Rights Price by (y) the sum of one share plus the number of shares
(including any fraction thereof) purchasable upon the exercise of the
Rights offered by the Company in respect of one ordinary share of the
Company.
"Prior Note" means the Promissory Note dated November 9, 1998 in the
original principal amount of $90,000,000 issued by the Borrower to DIC
Loans, which Promissory Note will be replaced and superseded by the
Replacement Notes in accordance with this Agreement.
"Replacement Notes" means the Note and the Further Option Note, which
together will replace the Prior Note (which will thereupon be superseded).
In addition, the following definitions are hereby amended to read, in
their entirety, as follows:
"Additional Amount" has the meaning set forth in the Note or the
Further Option Note, as applicable.
"Interest" has the meaning set forth in the Note or the Further Option
Note, as applicable.
"Maturity Date" has the meaning set forth in the Note or the Further
Option Note, as applicable.
"Note" means the promissory dated February 9, 1999 in the original
principal amount of US$45 million, in substantially the form attached
hereto as Exhibit E, to be issued by Borrower to DIC Loans and which will
be repaid or canceled at the Closing of the Option if the Option is
exercised.
B. Section 2 of the Option Agreement is hereby amended to add a new
clause (m) which reads, in its entirety, as follows:
"(m) Grant of Further Option. If the Option has been duly
exercised hereunder and Holder has satisfied its obligations and
acquired the Option Shares in accordance with Section 3(a), then
Holder shall have the option (the "Further Option") to purchase from
the Company upon issue additional Ordinary Shares (the "Further Option
Shares") as provided in this Section 2(m). The Further Option may be
exercised in whole, but not in part, at any time on or before
September 30, 2000, in accordance with the terms of this Section 2(m),
by delivery of a written notice in the form of Exhibit A-1 (a "Further
Option Exercise Notice"), duly completed and executed, to the Company
at the Administrative Office (or such other place as the Company has
specified by not less than ten (10) Business Day's prior written
notice to Holder) and compliance with the terms of Section 3(c).
Except as otherwise expressly set forth herein, delivery of a Further
Option Exercise Notice is irrevocable and will unconditionally
obligate Holder and the Company to satisfy each of the Closing
obligations set forth in Section 3(c). Any failure by Holder to duly
deliver a Further Option Exercise Notice by September 30, 2000 will
result in the termination of the Further Option.
C. Section 3 of the Option Agreement is amended to insert the words
"50% of the collateral under" immediately before the words "the
Pledge" in clause 3(a)(ii)(B). In addition, Section 3 is amended to
delete clause (c) in its entirety and add new clauses (c) and (d)
which read, in their entirety, as follows:
"(c) Closing of the Further Option.
(i) Closing Date. The closing of the purchase of the
Further Option Shares by Holder (the "Further Option Closing") shall
occur at the Company's Administrative Office (or such other place as
the Company has specified by not less than ten (10) Business Day's
prior written notice to Holder) on the date (the "Further Option
Closing Date") that is 30 days after the date of delivery to the
Company of the Further Option Exercise notice (or, if such day is not
a Business Day, then the next Business Day thereafter) or such earlier
date as the Parties mutually agree.
(ii) Obligations of the Holder at the Further Option Closing. At
the Further Option Closing, the Holder shall:
(A) pay to the Company an amount equal to the Further Option
Purchase Price plus the Additional Amount due under the
Further Option Note, either (i) in immediately available
Dollar funds, such payment to be made in accordance with
the written payment instructions delivered to Holder by
the Company (which instructions shall be given to Holder
not less that three (3) Business Days prior to the
Further Option Closing Date); or if the Company so
elects in its discretion,
(ii) by delivering and surrendering, or causing to be
delivered and surrendered, to the Company the Further
Option Note together with the full and unconditional
release of the Pledge; and
(B) cause to be executed and delivered by each Person
receiving Further Option Shares in connection with the
exercise of the Further Option, the Shareholders'
Agreement and the Registration Rights Agreement if such
Person is not a party to such agreements at such time.
(iii) Obligations of the Company at the Further Option Closing. At
the Further Option Closing, the Company shall:
(A) issue to Holder the number of Ordinary Shares that is
equal to (i) the Further Option Purchase Price, divided
by (ii) the Further Option Share Price. Duly executed
share certificates representing such Ordinary Shares
shall be delivered to, and in the name of, the
appropriate recipient(s) thereof and shall, upon
issuance, be duly authorized, fully paid, non-assessable
and free and clear of all Encumbrances created by or
originating with the Company or its Affiliates;
(B) deliver to Holder an opinion of counsel to the Company,
reasonably acceptable to Holder, stating that the
Further Option Shares have been duly authorized and
validly issued, that the share certificates of the
Company representing the Further Option Shares have been
duly authorized and executed by the Company.
(C) deliver to Holder a certificate of a responsible officer
of the Company, reasonably acceptable to Holder, to the
effect that all approvals, consents and authorizations
of any third party required for the consummation by the
Company of the transactions contemplated by the Further
Option have been obtained.
(d) Obligations in connection with the Closings.
(i) Taxes. The Company, on the one hand, and Holder, on the
other hand, shall each bear half of any and all
documentary, stamp or similar taxes payable or to become
payable in respect of the issue or delivery of the Option
Shares, the Further Option Shares and the Additional Shares
to Holder hereunder.
(ii) Maturity Date. If the Closing Date determined in accordance
with clause (i) of Section 3(a) will occur after the
Maturity Date, DPC shall at their sole effort, cost and
expense arrange for an extension
of such maturity date to (A) a date consistent with the
Company being able to use the payment of the Purchase Price
for repayment of the Note, or (B) the date that is 180 days
after revocation of the subject Exercise Notice by Holder,
as applicable.
(iii) Payment by Delivery of Notes.
(A) If the Company elects to require that the amount due
from Holder under clause (a)(ii) of this Section 3 shall be
paid by delivery of the Note in accordance with clause
(a)(ii)(A)(ii) of this Section 3, the Company shall provide
written notice of such election to Holder prior to the
Closing Date determined in accordance with clause (i) of
Section 3(a). If such Closing Date is to occur prior to the
date that is twenty-five (25) Business Days after the date
such notice was received by Holder and Holder is not in
possession of the Note, the Closing shall occur in escrow on
the Closing Date by executing and depositing in escrow with
counsel to the Company all agreements, share certificates
and other documents and instruments to be executed and
delivered by the parties at the Closing (other than the Note
and the Pledge Release), and all such agreements, share
certificates and other documents and instruments shall be
held in escrow by such counsel to the Company subject only
to satisfaction of Holder's binding and irrevocable
obligation to deliver the Note and the Pledge Release on or
prior to the last day of such twenty-five (25) Business Day
period.
(B) If the Company elects to require that the amount due
from Holder under clause (c)(ii) of this Section 3 shall be
paid by delivery of the Note in accordance with clause
(c)(ii)(A)(ii) of this Section 3, the Company shall provide
written notice of such election to Holder promptly upon
receipt of the Further Option Exercise Notice.
(iv) Certain Expenses.
(A) Surrender Costs. If the Company elects to require that
the amount due from Holder under clause (a)(ii) of this
Section 3 shall be paid by delivery of the Note in
accordance with clause (a)(ii)(A)(ii) of this Section 3, and
the exercise of the Option is made or deemed made pursuant
to Section 2(b) hereof, the Company shall reimburse to
Holder at the Closing an amount equal to the cost actually
incurred by Holder to acquire the Note for such purpose (the
"Surrender Costs"), such amount to be calculated in
accordance with Schedule 3(c) hereof. The Company shall not
be obligated to reimburse Holder or any other Person for all
or any part of the Surrender Costs if the Option is
exercised or deemed to have been exercised not in connection
with a Potential Termination Event.
(B) Finance Costs. If Holder desires to satisfy its
obligation to pay the amount due therefrom under clause
(a)(ii) or (c)(ii) of this Section 3 by delivering the
subject Note and Pledge Release, Holder shall provide
written notice thereof to the Company not less than ten (10)
Business Days prior to the Closing. If the Company
thereafter notifies Holder in writing not less than five (5)
Business Days prior to the Closing that such amount must be
paid in cash pursuant to clause (a)(ii)(A)(i) or
(c)(ii)(A)(i) of this Section 3, the Company shall reimburse
to Holder at the Closing an amount equal to the cost
actually and reasonably incurred by Holder to finance the
payment of such amount in cash. Holder will attempt to
advise the Company in advance of the amount of such finance
costs.
(v) Repayment of Notes. Should a notice of payment in cash be
given by the Company in the event referred to and in
accordance with clause (d)(iv)(B) of this Section 3, the
Company shall make the necessary arrangements so that the
subject Note will be repaid in full at the subject Closing
from the proceeds of the payment in cash made by Holder to
the Company at the subject Closing. For such purpose, and
without derogating from the generality of the foregoing, the
Company shall establish or cause to be established a special
bank account to be used solely for receiving Holder's
payment in cash and repaying the subject Note therefrom.
Such bank account and the identity of the Person in whose
name it is maintained shall be specified in the Company's
notice of payment in cash. At the subject Closing (A) the
amount due from Holder under clause (a)(ii) or clause
(c)(ii) of this Section 3 will be paid in immediately
available Dollar funds to such bank account, and (B) the
Company shall deliver to Holder a certified copy of
irrevocable written instruction of the Person in whose name
such bank account is maintained to the bank with which it is
maintained to transfer from such bank account on the
applicable Closing Date, in immediately available Dollar
funds, the amount necessary to repay in full the subject
Note on such date.
(vi) Distributions by the Company after delivery of Further
Option Exercise Notice. In the event that Holder shall duly
and timely exercise the Further Option, and the Company
shall effect any distribution on or any exchange of or any
offering in respect of its ordinary shares held by all of
its shareholders at a record date therefor falling at any
time during the period commencing on the date of delivery of
the Further Option Exercise Notice to the Company and ending
on the Further Option Closing Date, the Further Option
Shares shall be deemed to be issued and outstanding at such
record date and Holder shall be included among such
shareholders for the purpose of such distribution, exchange
or offering. However Holder shall be entitled to receive its
share of such distribution, exchange or offering, to the
extent applicable in respect of the Further Option Shares,
only if and
when the Further Option Closing actually occurs in
accordance with the terms hereof.
D. Section 4 of the Option Agreement is hereby amended to read, in its
entirety, as follows:
(b) Capitalization. All of the outstanding shares of capital
stock of the Company have been duly authorized and validly issued and
are fully paid and nonassessable. The obligation of the Company to
issue the Option Shares, the Further Option Shares and the Additional
Shares under the terms of this Agreement, if applicable, has been duly
authorized by the Company, and upon the proper exercise of the Option
the Further Option and the 20% Option, in each case if applicable and
in accordance with their respective terms, such ordinary shares will
be validly issued, fully paid, non-assessable and free and clear of
Encumbrances created by or originating with the Company or its
Affiliates.
E. Section 6 of the Option Agreement is hereby amended (i) to provide
that each reference therein to Option refers to and includes the
Further Option as well and that each reference to Option Shares
therein refers to and includes the Further Option Shares as well, and
(ii) to insert the following at the end of clause (c) of Section 6:
"and Section 3(c)(ii)(A)(ii)".
F. Section 8 of the Option Agreement is hereby amended to provide that
each reference therein to the Option refers to and includes the
Further Option as well.
G. Section 9 of the Option Agreement is hereby amended to read, in its
entirety, as follows:
(a) Indemnification by Holder. Holder hereby agrees to fully indemnify
the Company for any loss or damage incurred by the Company as a consequence of
Holder's failure to timely satisfy all obligations of Holder under this
Agreement. In addition, if Holder fails to perform on or before the Closing Date
or the Further Option Closing Date, as applicable, its obligations hereunder to
be performed on or before such date, the Company shall have the right to elect,
by providing written notice hereunder to Holder, either (i) to terminate the
Option or the Further Option, as applicable, and all rights of Holder hereunder;
or (ii) to require Holder to fully perform each such obligation including,
without limitation, payment in full of the Purchase Price or the Further Option
Purchase Price, as applicable, and all other amounts due pursuant to such
obligations.
(b) Indemnification by the Company. The Company hereby agrees to fully
indemnify Holder for any loss or damage incurred by Holder as a consequence of
the Company's failure to timely satisfy all obligations of the Company under
this Agreement. In addition, if the Company fails to perform on or before the
Closing Date or the Further Option Closing Date, as applicable, its obligations
hereunder to be performed on or before such date, Holder shall have the right to
elect, by providing written notice hereunder to the Company, either (i) to
require the Company to fully perform each such obligation including, without
limitation, the issuance and delivery of the Option Shares, the Further Option
Shares or the Additional Shares, as applicable, or (ii) revoke the exercise of
the Option, the Further Option or the 20% Option, as applicable.
H. A new Schedule A-1 is hereby added which reads, in its entirety, as
follows:
EXHIBIT A-1
FORM OF FURTHER OPTION EXERCISE NOTICE
United Pan-Europe Communications N.V.
[Address]
Gentlemen:
Reference is made to that certain Option Agreement dated November 5, 1998
(the "Agreement"), between United Pan-Europe Communications N.V., a company
organized under the laws of The Netherlands (the "Company"), DIC
Communication and Technology Ltd., a corporation organized and existing
under the laws of Israel ("DIC"), and PEC Israel Economic Corporation, a
corporation organized and existing under the laws of Maine, U.S.A. ("PEC").
All capitalized terms used and not otherwise defined herein shall have the
meaning set forth in the Agreement. In accordance with the provisions of
Section 2(m) of the Agreement, we hereby jointly exercise the Further Option
and agree to purchase the Further Option Shares on the Further Option
Closing Date in accordance with, and subject to, the Agreement. The Further
Option Shares shall be issued to Holder and its Affiliates as follows:
Please provide us on or before the third (3rd) Business Day prior to the
Further Option Closing Date with written instructions regarding the transfer
to the Company's account of the Further Option Purchase Price and other sums
due from us under the Agreement in connection with the exercise of the
Further Option.
[DIC COMMUNICATION AND TECHNOLOGY LTD.]
By:
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Date:
--------------------------------
[PEC ISRAEL ECONOMIC CORPORATION]
By:
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Date:
--------------------------------
I. Exhibit C to the Option Agreement, the Form of Registration Rights
Agreement, is hereby amended to delete the phrase "90-day period" in
Section 5 and insert the phrase "180-day period" in its place, and (ii)
to provide that the holders of Registrable Securities shall be entitled
only to (a) one (1) Demand Registration, which will require the written
request of Shareholders holding at least 50% of the Registrable
Securities acquired upon the exercise of the Option, and (b) if the
Further Option is exercised and not otherwise, one (1) additional
Demand Registration, which will require the written request of
Shareholders holding at least 50% of the number of Registrable
Securities acquired upon the exercise of the Further Option.
J. Exhibit D to the Option Agreement, the Form of Shareholders Agreement,
is hereby amended (i) to delete the phrase "fifty percent (50%)" and
insert instead the phrase "one hundred percent (100%)" in Section 2,
and (ii) to delete the phrase "on the date hereof" and insert instead
the phrase "at such time and resulting from the exercise of the Option
and/or the Further Option" in Section 3.3(b).
2. The Company hereby confirms that the Representations and Warranties set
forth in clause (c) and (d) of Section 4 of the Option Agreement are true
and accurate on the date hereof with respect to the Option Agreement, as
amended by this Amendment. The Company shall cause the Borrower to replace
the Prior Note by the Replacement Notes by issuing and delivering to DIC
Loans or to its order not later than February 9, 1999 and against delivery
of the Prior Note to a representative of the Borrower, the Replacement
Notes together with a legal opinion of the same counsel and in
substantially the same form as delivered to DIC Loans together with the
Prior Note. Such replacement shall take place at the offices of DIC Loans
in Israel.
3. DPC hereby represents and warrants that it has all corporate power and
authority to enter into this Amendment and perform the obligations under
the Option Agreement as amended hereby including, without limitation, the
right to acquire the Prior Note and deliver the Prior Note to the Borrower
for replacement thereof with the Replacement Notes and to cause the
unconditional release of 50% of the collateral under the Pledge in
connection therewith. This Amendment, together with all rights of DPC under
the Option Agreement, shall terminate and DPC shall have no further rights
thereunder if DPC does not so deliver the Prior Note for replacement by
February 9, 1999, or does not cause the Pledge to be so amended at the
Closing of the Option.
4. This Amendment shall terminate and be of no further force or effect if the
Closing has not occurred on or before April 30, 1999. In such case, each
of the terms and conditions of the Option Agreement as originally executed
shall be reinstated and the Option Agreement shall be interpreted as if it
had not been amended hereby. The parties agree to take such steps as are
necessary to effect their intent as set forth in this paragraph 2. In
addition, the Company agrees to deliver to Holder a new IPO Notice in the
event that this Amendment is terminated in accordance with this paragraph 2
and the Company at such time proposes to effect an IPO. In addition, if
the IPO referenced in the IPO Notice dated January 25, 1999 has not been
consummated, and the Option Exercise Notice dated February 1, 1999 has been
revoked as a result thereof in accordance with the Option
Agreement, the terms of the Option Agreement as currently in effect will
again be applicable.
5. The Parties agree to cooperate and take such actions as are necessary or
appropriate to effect the transactions contemplated hereby.
6. This Amendment supercedes all prior agreements and understandings in
connection with the subject matter hereof. This Amendment shall be governed
by and construed in accordance with the laws of The Netherlands. Except as
otherwise set forth herein, each of the terms and conditions of the Option
Agreement shall remain in full force and effect.
7. The Option Exercise Notice dated February 1, 1999 delivered by DPC to the
Company shall be deemed an exercise on such date of the Option under the
Option Agreement as amended hereby, and remains in effect.
8. All obligations of the parties hereto, and their respective affiliates,
under the Funding Agreement and all agreements and arrangements thereunder
or in connection therewith, other than the Note, the Option Agreement and
the Pledge Agreement, to the extent applicable with respect to the Note or
any obligations or liabilities incurred pursuant thereto or in connection
therewith, shall continue to apply mutatis mutandi with respect to any such
obligations or liabilities incurred pursuant to the Replacement Notes. The
parties will execute, and will cause their affiliates to execute, such
documents and agreements as reasonably requested to effect the intent of
this paragraph 8.
9. This Amendment constitutes an integral part of the Agreement.
This Amendment is executed by the parties on the date first written above.
UNITED PAN-EUROPE COMMUNICATIONS N.V.
By: /s/ A.H.E. Van Voskuijlen
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Name: A.H.E. Van Voskuijlen
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Title: Attorney-in-Fact
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DIC COMMUNICATION AND TECHNOLOGY LTD.
By: /s/ Xxx Book /s/ Xxxxxx Xxxxx
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Name: Xxx Book Xxxxxx Xxxxx
---------------------------------
Title: Director Legal Counsel
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PEC ISRAEL ECONOMIC CORPORATION
By: /s/ Xxxxx X.Xxxxxxx
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Name: Xxxxx X.Xxxxxxx
---------------------------------
Title: Executive Vice President
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EXHIBIT E TO OPTION AGREEMENT
FORM OF
PROMISSORY NOTE
Made and signed in Tel Aviv, Israel on February 9, 1999
FOR VALUE RECEIVED, the undersigned, Cable Network Zuid - Oost Brabant Holding
B.V. (the "Company"), a corporation organized under the laws of The Netherlands,
will pay to the order of DIC Loans Ltd., a corporation organized under the laws
of the State of Israel, the principal amount of US $45,000,000 (the "Original
Amount"), together with the Interest (as defined herein) and the Additional
Amount (as defined herein) in accordance with the terms and provisions hereof.
1. Definitions. For all purposes of this Promissory Note:
(A) The "Additional Amount" means an amount equal to 6% of the Original
Amount.
(B) "Business Day" means any day on which trading in Dollars is carried
out in The First International Bank of Israel Ltd. and on which banks
in Israel, in the United States of America and in The Netherlands are
generally open to the public for the conduct of commercial banking
transactions.
(C) "Dollars" of "US $" means United States dollars, the lawful currency
of the United States of America.
(E) The "Commencement Date" means the 9th day of each of February, May,
August and November in each calendar year.
(F) "Holder" means the Holder of this Promissory Note who is the Payee
hereunder or any Person to whom this Note has been negotiated.
(G) The "Interest" means the unpaid amount of interest from time to time
due pursuant to Section 2 hereof.
(H) An "Interest Period" means a period of three consecutive months in
which the Original Amount is outstanding beginning on any Commencement
Date and ending on the day immediately preceding the subsequent
Commencement Date.
(I) The "Maturity Date" means November 9, 2000 or, if such date is not a
Business Day, the first Business Day immediately thereafter.
(J) A "Prepayment Date" means the first Business Day immediately
succeeding the end of any Interest Period.
(K) The "Promissory Note" means this Promissory Note.
2. Interest. The Original Amount will bear interest at the rate of 8% per
annum. Such interest shall be computed in respect of any Interest Period
for the number of days
elapsed during which the Original Amount shall be outstanding in such
Interest Period (on the basis of 360 days in a year). The interest accrued
in respect of any Interest Period shall be added to and become an integral
part of the Original Amount for the purpose of computing such interest in
respect of any subsequent Interest Period.
3. Payment on Maturity. The Company shall pay the Original Amount together
with the Interest and the Additional Amount in one lump sum (the "Payable
Amount") on the Maturity Date.
4. Prepayment. Notwithstanding Section 3 hereof to the contrary, the Company
may prepay this Promissory Note, in whole but not in part, before the
Maturity Date on any Prepayment Date but not on any other day, provided
that a written notice of prepayment shall have been given by the Company to
Holder pursuant to Section 7 hereof at least three consecutive months
before the Prepayment Date. In the event of such prepayment, the Company
shall pay to the Holder the Payable Amount on the Prepayment Date.
5. Overdue Amounts. If the Company fails to pay in full any amount payable by
the Company hereunder on the due date (an "Overdue Amount"), the Company
will pay on the date it pays such Overdue Amount interest on the Overdue
Amount at the rate of 13% per annum for the actual number of days during
the period from and including such due date to but excluding the date of
actual payment of the Overdue Amount.
6. Value Added Tax. If and to the extent that any Value Added Tax is
applicable under law in respect of any of the amounts payable hereunder,
such amount shall be paid together with the Value Added Tax applicable in
respect thereof.
7. Payment Account; Address for Prepayment Notices. Until the date that is
three (3) Business Days after any other address or bank account details are
notified in writing by Holder from time to time to the Company at the
Company's address specified below its signature, all payments due hereunder
from the Company shall be made, and a written notice of the Company's
intention to make prepayment pursuant to Section 4 hereof shall be given to
Holder, by the Company to the bank account or at the address, respectively,
as follows:
The bank account for making payments due hereunder:
The First International Bank of Israel Ltd.
Tel-Aviv Main Branch
0 Xxxx Xx'xx Xxxxxx
Xxx-Xxxx, Xxxxxx
Account No. 438952
The address for giving a notice of intent to make prepayment:
The First International Bank of Israel Ltd.
Tel-Aviv Main Branch
0 Xxxx Xx'xx Xxxxxx
Xxx-Xxxx, Xxxxxx
Attention: the Branch Manager
Notwithstanding the foregoing to the contrary, no change of bank account
shall be permitted if it would result in the Company having to pay any
increased cost with respect to its obligations under this Promissory Note.
8. Security. Pursuant to a Pledge Agreement dated November 9, 1998, (the
"Pledge Agreement") between Tishdoret Achzakot Ltd., a corporation
organized under the laws of the State of Israel ("Pledgor"), which is an
affiliate of the Company, The First International Bank of Israel Ltd. and
FIBI-On Ltd. (collectively, the "Pledgee") signed by the parties thereto,
all payments due under this Promissory Note are secured by a fixed pledge
of 3,523,120 Ordinary Shares, par value NIS 1.00 per share, of Tevel Israel
International Communications Ltd., a corporation organized under the laws
of the State of Israel ("Tevel") owned by Pledgor, and by a floating charge
over all of the assets of Pledgor except for 3,523,121 Ordinary Shares, par
value NIS 1.00 per share, of Tevel owned by Pledgor.
9. Payments Generally; Tax Gross Up. All payments to be paid hereunder shall
be made to Holder in Dollars, free and clear of any taxes, deductions,
withholdings and charges and without any set off or counterclaim, by
depositing such payments in freely transferable and immediately available
funds to the bank account referred to in Section 7 hereof. Notwithstanding
the foregoing to the contrary, if the Company is required by any taxing
authority of any jurisdiction to deduct or withhold any amount in respect
of any payment payable under this Promissory Note, then the amount of the
relevant payment under this Promissory Note shall be increased as is
necessary to yield and remit to such bank account the full amount of the
respective payment due to be paid under this Promissory Note after
provision for payment of such deduction or withholding.
10. Governing Law. This Promissory Note shall be governed by, and construed in
accordance with the laws of, the State of Israel without reference to any
conflict of law principles thereof.
Signature of the Company:
CABLE NETWORK ZUID-OOST BRABANT HOLDING B.V.:
By:
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Name:
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Title:
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Address of the Company:
Xxxx. Xxxxxxxxxxxx 000
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Attn: General Counsel
