EXHIBIT 6
SCAILEX CORPORATION LTD.
US$300,000,000
FIXED RATE SECURED BULLET NOTES DUE APRIL 27, 2014
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PLACEMENT AGREEMENT
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CONTENTS
CLAUSE PAGE
1. Interpretation 1
2. Issue of the Notes 3
3. Representations and Warranties by the Issuer 4
4. Undertakings by the Issuer 5
5. REDEMPTION 6
6. RIGHT OF FIRST REFUSAL 6
7. TAXES OF INVESTOR 6
8. Closing 7
9. Termination 8
10. Time 10
11. Notices 10
12. Law and Jurisdiction 12
13. Counterparts 12
14. AMENDMENT 12
15. LANGUAGE 12
THIS AGREEMENT (including any Schedules, Annexes and Exhibits hereto, as may be
amended, supplemented, or otherwise modified from time to time, the "AGREEMENT")
is made on October 28, 2009
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BETWEEN
(1) SCAILEX CORPORATION LTD., a company incorporated under the laws of the
State of Israel under company number 00-000000-0, with its principal place
of business at 00 Xxx Xxxx Xxxxx Xx., Xxxxxx Xxxxxxxxxx Xxxx, Xxxxxx Xxxxx,
Xxxxxx 00000(the "ISSUER"); and
(2) ADVENT INVESTMENTS PTE LTD, a company incorporated under the laws of
Singapore, with its principal place of business at 0 Xxxxxxx Xxxxxx,
#00-00, Xxxxxxxx Xxxxx, Xxxxxxxxx 00000, ("INVESTOR").
WHEREAS
(A) The Issuer has authorised the creation and issue of US$300,000,000 in
aggregate principal amount of Fixed Rate Secured Bullet Notes due April 27,
2014 (the "NOTES").
(B) On the Purchase Date, subject to the terms of this Agreement, the Issuer
will issue and the Investor will purchase US$300,000,000 of the Notes.
(C) The Notes will be in registered form and in the minimum denominations of
US$100,000. Each person in whose name Notes are from time to time being
registered in the Register ("NOTEHOLDER") shall be the Noteholder of those
Notes and its interest in those Notes will be evidenced by certificates
(each, a "CERTIFICATE").
(D) The Notes will be constituted by the Trust Deed entered into between the
Issuer and Hermetic Trust (1975) Ltd. (the "TRUSTEE") as trustee for the
holders of the Notes from time to time.
IT IS AGREED as follows:
1. INTERPRETATION
1.1 DEFINITIONS
In this Agreement the following expressions shall have the following
meanings:
"AFFILIATE" shall have the meaning assigned to such term in the SPA;
"AGREEMENT" shall have the meaning assigned to such term in the preamble;
"BUSINESS DAY" means any day on which banks are open for business in the
State of Israel and New York City;
"COMPANY" means Partner Communications Company Ltd, Registration Number
00-000000-0;
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"CONDITIONS" means, in respect of the Notes, the Terms and Conditions of
the Notes to be endorsed on the Certificates of the Notes as scheduled to
the Trust Deed, and any reference to a numbered "CONDITION" is to the
correspondingly numbered provision thereof;
"CONDITIONS PRECEDENT" means the conditions precedent set out in Clause 8.3
(CONDITIONS PRECEDENT FOR PURCHASE DATE);
"DEBENTURE" means (i) the debenture in the form of Schedule 1 hereto (as
may be amended, supplemented, or otherwise modified from time to time)
pursuant to which, INTER ALIA, the Issuer creates a first ranking Fixed
Charge on 17,142,858 Shares, together with all rights and privileges
attached to such Shares or connected therewith (including, without
limitation, dividends and participation in any distributions, bonus shares,
voting rights, and any other right vested in the holder of Shares under any
Applicable Law and the articles of incorporation of the Company) and a
first ranking fixed and floating charge over account no. 101-014504 in the
name of Issuer at HSBC Bank plc (Tel-Aviv branch) (including, without
limitation, all amounts and assets deposited therein from time to time);
and (ii) any additional debenture created pursuant to Sections 4(k) and/or
4(r) of the Conditions;
"EVENT OF DEFAULT" means any one of those circumstances described in
Section 10 of the Conditions (EVENTS OF DEFAULT);
"ISSUE DOCUMENTS" shall have the meaning assigned to such term in the
Conditions;
"NOTES" as defined in the recitals hereto;
"PERSON" shall have the meaning assigned to such term in the Conditions;
"PURCHASE DATE" means, the Closing Date as defined in the SPA;
"SHARES" means ordinary shares of the Company with par value of NIS0.01
each.
"SPA" means a certain Share Purchase Agreement dated 12 August 2009,
between the Issuer (as purchaser) and the Investor (as seller) as may be
amended, supplemented, or otherwise modified from time to time;
"SUBSIDIARY" means any entity in which any Person holds: (i) more than 50%
of the issued share capital or participation interests; (ii) such share
capital as carries directly or indirectly, more than 50% of the shareholder
votes in a general meeting; or (iii) the ability to appoint or elect more
than 50% of the directors or equivalent of such entity;
"TRUST DEED" shall mean the Trust Deed attached in the form of Schedule 2
hereto, as may be amended, supplemented, or otherwise modified from time to
time;
"US$" and "US DOLLARS" denote the lawful currency for the time being of the
United States of America.
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1.2 CLAUSES AND SCHEDULES
Any reference in this Agreement to a Clause, a sub-clause or a Schedule is,
unless otherwise stated, to a clause or sub-clause hereof or a schedule
hereto.
1.3 LEGISLATION
Any reference in any Issue Document to any legislation (whether primary
legislation or regulations or other subsidiary legislation made pursuant to
primary legislation) shall be construed as a reference to such legislation
as the same may have been, or may from time to time be, amended or
re-enacted.
1.4 HEADINGS
Headings and sub-headings are for ease of reference only and shall not
affect the construction of this Agreement.
1.5 ADDITIONAL DEFINITIONS
Any capitalized terms herein not otherwise defined shall have the meaning
assigned thereto in the other Issue Documents or, if such terms are not
defined in any other Issue Document, they shall have the meaning assigned
thereto in the SPA, in each case unless the context otherwise requires.
2. ISSUE OF THE NOTES
2.1 UNDERTAKING TO ISSUE
The Issuer undertakes to the Investor that, subject to and in accordance
with the provisions of this Agreement and the other Issue Documents:
2.1.1 ISSUE OF NOTES: the Notes will be issued by the Issuer to the
Investor, on the Purchase Date, in accordance with this Agreement and
the Trust Deed PROVIDED, HOWEVER, THAT the aggregate principal amount
of the Notes to be issued, subject to the terms of this Agreement, on
the Purchase Date shall be US$300,000,000; and
2.1.2 ISSUE DOCUMENTATION: it will, on or before the Purchase Date, execute
the Issue Documents.
2.2 INVESTOR ALLOCATION OF NOTES TOWARDS PURCHASE PRICE UNDER SPA
The Investor undertakes to the Issuer that, subject to and in accordance
with the provisions of this Agreement, US$300,000,000 of the Notes issued
to the Investor by the Issuer on the Purchase Date shall be allocated
towards the Base Purchase Price on such terms and conditions set forth in
Section 2.2 of the SPA. For the avoidance of doubt, no funds shall be
transferred from the Investor to the Issuer as consideration for the
issuance of the Notes.
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3. REPRESENTATIONS AND WARRANTIES BY THE ISSUER
3.1 ISSUER'S REPRESENTATIONS
The Issuer represents and warrants to the Investor that:
3.1.1 INCORPORATION, CAPACITY AND AUTHORISATION: the Issuer is duly
incorporated, validly existing under the laws of the State of Israel
with full power and capacity to own or lease its property and assets
and to conduct its business and is lawfully qualified to do business
in the State of Israel; the Issuer has full power and capacity to
create and issue the Notes on the Purchase Date, to execute this
Agreement and the other Issue Documents and to undertake and perform
the obligations expressed to be assumed by it herein and therein, and
the Issuer has taken all necessary action to approve and authorise the
same;
3.1.2 NO VIOLATION/DEFAULT: the Issuer is not (i) in breach of its
constitutive documents or (ii) in default in the performance of any
obligation, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or
instrument to which it is a party or by which it or any of its
properties may be bound which, in either case at the reasonable
discretion of Noteholders comprising not less than 66.7% of the
Principal Amount Outstanding, may adversely affect the rights of the
Noteholders in any material respect;
3.1.3 NO BREACH: the creation, issue and sale of the Notes by the Issuer on
the Purchase Date by the execution of this Agreement and the other
Issue Documents and the undertaking and performance by the Issuer of
the obligations expressed to be assumed by it herein and therein will
not conflict with, or result in a breach of or default under, the laws
of the State of Israel, any agreement or instrument to which the
Issuer is a party or by which it is bound or in respect of
indebtedness in relation to which it is a surety, which in either case
at the reasonable discretion of Noteholders comprising not less than
66.7% of the Principal Amount Outstanding, may adversely affect the
rights of the Noteholders in any material respect;
3.1.4 LEGAL, VALID, BINDING AND ENFORCEABLE: this Agreement constitutes
and, upon execution and delivery by or on behalf of the Issuer, the
other Issue Documents will constitute legal, valid, binding and
enforceable obligations of the Issuer. On the Purchase Date the
Debenture will validly and effectively create the security it purports
to create as described therein;
3.1.5 STATUS: the Notes will constitute direct, general and unconditional
obligations of the Issuer which (i) rank PARI PASSU among themselves
and (ii) will, as a result of the Debenture, rank senior to all
existing and future indebtedness of the Issuer in respect of the
Shares pledged under the Debenture;
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3.1.6 APPROVALS: all authorisations, consents and approvals required by the
Issuer and/or the Company in connection with the creation, issue and
sale of the Notes on the Purchase Date, the execution of this
Agreement and the other Issue Documents, the performance by the Issuer
of the obligations expressed to be undertaken by it herein and therein
have been obtained and are in full force and effect;
3.1.7 NO EVENT OF DEFAULT: no event has occurred which is or would (with
the passage of time, the giving of notice or the making of any
determination) become an Event of Default; and
3.1.8 LISTING: the Issue Documents are in proper form and contain all
necessary content for purposes of registration of the Notes for
trading on the TACT (Tel-Aviv Continuous Trading) Institutional Board
of the Tel Aviv Stock Exchange ("TACT") as of the date hereof, other
than minor amendments or supplements which may be requested by the Tel
Aviv Stock Exchange which will not alter the commercial terms and
conditions set forth in the Issue Documents.
3.2 CONSTRUCTIVE KNOWLEDGE
The representations and warranties in Clause 3.1 (ISSUER'S REPRESENTATIONS)
shall continue in full force and effect notwithstanding the constructive
knowledge of the Investor with respect to any of the matters referred to in
the representations and warranties, any investigation by or on behalf of
the Investor or completion of the placement and issue of the Notes.
4. UNDERTAKINGS BY THE ISSUER
4.1 DELIVERY OF CERTIFICATES
The Issuer shall make arrangements reasonably satisfactory to Investor to
ensure that the Certificates are delivered to the Trustee, on or prior to
the Purchase Date, for authentication in the form required by, and
otherwise in accordance with, the Trust Deed.
4.2 FURTHER ASSURANCE
The Issuer shall from time to time do and execute, or arrange for the doing
or execution of each act, document and thing required in order to perfect
or maintain the perfection of the Security Interest created pursuant to the
Debenture.
4.3 CLOSING CERTIFICATE
The Issuer shall deliver to the Investor on the Purchase Date a closing
certificate addressed to the Investor and signed by a duly authorised
signatory on behalf of the Issuer in the form set out in Schedule 3 (Form
of Closing Certificate).
4.4 LISTING
The Issuer shall (i) cause the registration of, and take all necessary and
advisable steps to register the Notes for trading on the TACT, and the
Notes shall be fully registered for trading on the TACT no later than 30
days after the Purchase Date, (ii) receive all necessary Authorisations
required for registering the Notes for trading on the TACT, and (iii) pay
all required fees, costs and expenses in connection with the registration
of the Notes for trading on the TACT.
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5. REDEMPTION
So long as the Investor is the sole holder of US$300,000,000 of the Notes,
the Issuer may redeem the Notes otherwise than as provided in Condition
7(a) (Scheduled redemption) or (b) (Mandatory Redemption), at any time
subject to the following conditions: (i) upon delivery of fourteen Business
Days prior written notice to the Trustee and the Investor; and (ii) such
redemption shall include the full outstanding aggregate amounts of
principal and interest accrued and due until the actual redemption date
with respect to such portion of the Notes being so redeemed. For the
avoidance of doubt (a) no Security Interests shall be released or otherwise
waived as a result of any partial redemption or purchase in accordance with
this Clause 5 or Condition 7; (b) no discount shall be made on account of
any early redemption; and (c) upon any Person (other than the Investor)
becoming a Noteholder the right of redemption pursuant to this Clause 5
shall be cancelled and be without any further force and effect.
6. RIGHT OF FIRST REFUSAL
Unless a Default shall have occurred and be continuing, the Issuer shall
have a Right of First Refusal with respect to any sale of Notes by the
Investor or any Affiliate thereof to any Person that is not an Affiliate of
the Investor, provided that immediately upon exercising any such Right of
First Refusal, the Issuer shall have redeemed and forever retired the Notes
purchased by it pursuant to this Clause 6.
The Investor shall promptly notify the Issuer in writing of any sale or
transfer of any Notes which is subject to the Issuer's Right of First
Refusal (such notice to include the key terms of such sale or transfer),
and the Issuer, within 3 Business Days of receiving such notice, shall
notify the Investor in writing whether it wishes to exercise such Right of
First Refusal. Any such notice by the Issuer shall be unconditional and
irrevocable with respect to all of the Notes being offered and upon the
same terms and conditions as the proposed sale or transfer contemplated by
the Investor. If the Issuer does not respond within the above 3 Business
Days timeframe, the Investor shall have 28 days in which to sell the Notes
so offered on terms no less favourable to the Investor than those notified
to the Issuer. If the Investor does not sell the Notes during such 28 days
period, any subsequent sale or transfer of such Notes shall be subject to a
Right of First Refusal pursuant to the terms of this Clause 6.
7. TAXES OF INVESTOR
7.1 TAXES
All payments in respect of the obligations of the Issuer payable to the
Investor as Noteholder under the Issue Documents shall be made free and
clear of, and without withholding or deduction for or on account of, any
taxes, duties or levies of whatever nature imposed, levied, collected or
withheld by or on behalf of the State of Israel, unless such withholding or
deduction is required by Applicable Law. In such event, the Issuer shall
gross-up and pay such additional amounts as will result in the receipt by
the Investor of such amounts as would have been received by it if no such
withholding or deduction had been required; provided that the Investor
shall have used commercially reasonable efforts to obtain an exemption or
reduce the rate of any such withholding or deduction.
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Any amounts which the Issuer withholds from any interest payment in
accordance with Condition 9(a) will be paid by the Issuer to the Israeli
Tax Authority on behalf of the Investor within the required time for such
payment under any Applicable Law, and the Issuer will promptly provide the
Investor with a valid certificate of payment to the Israeli Tax Authority.
The Issuer shall indemnify the Investor for any penalty, interest or other
cost or expense resulting from any failure to comply with the requirements
of this Clause 7.1.
7.2 VAT
All amounts payable to the Investor as Noteholder under the Issue Documents
do not include any Value Added Tax ("VAT") liability, and to the extent
required to be paid under any Applicable Law, the Issuer shall bear and
indemnify the Investor for any such VAT liability.
7.3 PREFERENCE OF CLAUSE 7 OVER OTHER ISSUE DOCUMENTS
The terms of this Clause 7 shall supersede and prevail over Condition 8(b),
Condition 9 and Section 5.5 of the Trust Deed (and any other contrary
provision in any Issue Document) with respect to the Investor and its
Affiliates only.
7.4 ASSIGNABILITY
The Investor shall be entitled to assign its rights and privileges under
this Clause 7 to any of its Affiliates to whom Notes have been transferred
or sold; PROVIDED, however, that such assignment shall not result in any
increased financial burden on the Issuer. This Clause 7 shall override any
other provision to the contrary in any other Issue Document.
8. CLOSING
8.1 CLOSING
Subject to Clause 8.3 (CONDITIONS PRECEDENT), the closing of the issue of
the Notes shall take place on the Purchase Date, whereupon:
8.1.1 CERTIFICATES: the Issuer shall:
(a) REGISTRATION: cause the Notes in the aggregate principal amount
of US$300,000,000 to be registered in the Register in the name of
the Investor; and
(b) DELIVERY: deliver the Certificates, duly executed on behalf of
the Issuer and authenticated in accordance with the Trust Deed;
8.1.2 ALLOCATION OF PROCEEDS: the parties hereto hereby acknowledge and
agree that the aggregate principal amount of the Notes issued to the
Investor on the Purchase Date shall be allocated towards to Base
Purchase Price on such terms and conditions set forth in Section 2.2
of the SPA. For the avoidance of doubt, no funds shall be transferred
from the Investor to the Issuer as consideration for the issuance of
the Notes; and
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8.1.3 DELIVERY OF DOCUMENTS: the Issuer shall deliver to the Trustee the
share certificate(s) and share transfer deed as contemplated under
Section 3A.2 of the Trust Deed.
8.2 [RESERVED].
8.3 CONDITIONS PRECEDENT
The Investor shall only be under obligation to purchase the Notes if:
8.3.1 ISSUE DOCUMENTs: the Issue Documents and all documents ancillary
thereto are executed and delivered on or before the Purchase Date by
or on behalf of all parties thereto;
8.3.2 MOC APPROVAL: the transactions contemplated by the Issue Documents
including without limitations the pledge of the Shares under the
Debenture for the benefit of the Noteholders shall have been approved
by the Israeli Ministry of Communications, to the extent required,
such approval (if required) to be in form and substance reasonably
satisfactory to the Investor;
8.3.3 CONCURRENT TRANSACTIONS: all conditions precedent to the consummation
of the acquisition of the Purchase Shares and other transactions
contemplated by the SPA shall have been satisfied or waived in
accordance with the terms and conditions of the SPA;
8.3.4 ACCURACY OF REPRESENTATIONS: the representations and warranties by
the Issuer in this Agreement are true and correct on the Purchase
Date; and
8.3.5 CREATION OF SECURITY INTERESTS UNDER DEBENTURE: there having been
delivered by the Issuer to the Investor on or prior to the Purchase
Date, evidence of the grant of Security Interests under the Debenture.
PROVIDED, HOWEVER, THAT the Investor may, at its discretion, waive
satisfaction of any of the conditions specified in this Clause 8.3.
9. TERMINATION
9.1 RIGHT TO TERMINATE
At any time (i) prior to the Purchase Date (in the event of termination
under Clause 9.1.1), or (ii) at or after the Purchase Date (in the event of
termination under Clause 9.1.2), the Investor or the Issuer may give a
termination notice to the other party to terminate this Agreement as
provided in Clause 9.2 (CONSEQUENCES) if:
9.1.1 TERMINATION OF SPA: the SPA is terminated in accordance with its
terms.
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9.1.2 FAILURE OF CONDITION PRECEDENT: any of the conditions in Clause 8.3
(CONDITIONS PRECEDENT FOR PURCHASE DATE) is not satisfied or waived by
the Investor or the Issuer, as the case may be, on the Purchase Date.
9.2 CONSEQUENCES
Upon the giving of a termination notice under Clause 9.1 (RIGHT TO
TERMINATE), the parties hereto will be discharged from performance of their
respective obligations under this Agreement and the other Issue Documents.
10. TIME
Any date or period specified herein may be postponed or extended by mutual
agreement among the parties but, as regards any date or period originally
fixed or so postponed or extended, time shall be of the essence.
11. NOTICES
11.1 ADDRESSES FOR NOTICES
All notices and other communications hereunder shall be made in writing and
in English (by letter or fax) and shall be sent as follows:
If to the Investor: Advent Investments Pte Ltd
0 Xxxxxxx Xxxxxx
#00-00 Xxx Xxxxxxx
Xxxxxxxxx
Facsimile: x00 0000 0000
Attn.: The Board of Directors
With a copy to (which shall c/o 22/F, Xxxxxxxxx House
not constitute notice): 00 Xxxxxxxx Xxxx,
Xxxx Xxxx
Facsimile: x000 0000 0000
Attn.: The Company Secretary
With a copy to (which xxxxx Xxxxxx, Xxx & Xxxxxx
not constitute notice): Asia House, 0 Xxxxxxxx Xxxxxx,
Xxx Xxxx, Xxxxxx 00000
Facsimile: x000 0 000 0000
Attn: Xxxx Xxxxx, Adv. & Xxxx Xxx, Adv.
If to the Issuer: Scailex Corporation Ltd.
00 Xxx Xxxx Xxxxx Xx,
Xxxxxx Xxxxxxxxxx Xxxx,
Xxxxxx Xxxxx, Xxxxxx 00000
Facsimile: x000 0 000 0000
Attn.: CEO
With a copy to (which shall Xxxxx Xxxxxxx & Co.
not constitute notice): Advocates
0 Xxxxxx Xxxxxx Xx.
Xxx Xxxx, Xxxxxx 00000
Facsimile: +972 - 3 - 6963801
Attn: Xxxxx Xxxxxxx, Adv.
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11.2 EFFECTIVENESS
Every notice or other communication sent in accordance with Clause 11.1
(ADDRESSES FOR NOTICES) delivered in person or by courier service shall be
deemed to have been given upon delivery, those given by facsimile
transmission shall be deemed given on the Business Day following
transmission with confirmed answer back, and all notices and other
communications sent by registered mail (or air mail if the posting is
international) shall be deemed given five (5) Business Days after posting.
All notices shall be made in English.
12. LAW AND JURISDICTION
12.1 GOVERNING LAW
This Agreement and all matters arising from or connected with it are
governed by, and shall be construed in accordance with, the laws of the
State of Israel, without regard to conflict of law principles thereof.
12.2 ISRAELI COURTS
The competent courts of Tel Aviv - Jaffa have exclusive jurisdiction to
settle any dispute (a "DISPUTE"), arising from or connected with this
Agreement (including a dispute regarding the existence, validity or
termination of this Agreement) or the consequences of its nullity.
13. COUNTERPARTS
This Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which when so
executed shall constitute one and the same binding agreement between the
parties.
14. AMENDMENT
This Agreement may be amended or modified only by a written document signed
by the Issuer and the Investor.
15. LANGUAGE
The parties hereto acknowledge and agree that English shall be the
governing language in the Issue Documents, irrespective of any
translations, whether official or unofficial, into any other language.
AS WITNESS the hands of the duly authorised representatives of the parties to
this Agreement the day and year first before written.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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SIGNATURES
SCAILEX CORPORATION LTD.
By: /s/
--------------------------------
ADVENT INVESTMENTS PTE LTD
By: /s/
--------------------------------
SCHEDULE 1
FORM OF DEBENTURE
SCHEDULE 2
FORM OF TRUST DEED
SCHEDULE 3
FORM OF CLOSING CERTIFICATE
[LETTERHEAD OF ISSUER]
Advent Investments Pte Ltd
0 Xxxxxxx Xxxxxx
#00-00 Xxx Xxxxxxx
Xxxxxxxxx
Facsimile: x00 0000 0000
Attn.: The Board of Directors
[PURCHASE DATE]
Dear Sirs,
SCAILEX CORPORATION LTD.
US$300,000,000 FIXED RATE SECURED BULLET NOTES DUE APRIL 27, 2014
We, the undersigned, being duly authorised officers of Scailex Corporation Ltd.
(the "ISSUER"), refer to the placement agreement dated October 28, 2009 (the
"PLACEMENT AGREEMENT") in respect of the issue of US$300,000,000 Fixed Rate
Secured Bullet Notes due April 27, 2014 (the "NOTES"). Expressions which are
given defined meanings in the Placement Agreement have the same meanings herein.
As required by Clause 4.3 (CLOSING CERTIFICATE) of the Placement Agreement, we
hereby certify on behalf of the Issuer that:
(a) the representations and warranties in the Placement Agreement are true
and correct as though they had been made and given today with
references to the facts and circumstances now subsisting; and
(b) there has been no failure by the Issuer to comply with any of its
undertakings in the Placement Agreement and all other Issue Documents.
Yours faithfully,
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duly authorised
for and on behalf of
SCAILEX CORPORATION LTD.
Acknowledged and agreed,
------------------------
duly authorised
for and on behalf of
ADVENT INVESTMENTS PTE LTD
