EXHIBIT 10.25
DATED 1999
PRIMUS TELECOMMUNICATIONS LIMITED
as Borrower
- and -
ERICSSON I.F.S.
as Lender
________________________________
GBP 21,250,000
MULTI-CURRENCY CREDIT
FACILITY AGREEMENT
________________________________
EVERSHEDS
S O L I C I T O R S
International Banking and Finance Department
Senator House, 00 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Tel: x00 00 0000 0000 Fax: x00 00 0000 0000
TABLE OF CONTENTS
CONTENTS
Clause Page
1. DEFINITIONS AND INTERPRETATION........................................... 1
2. THE FACILITY............................................................. 7
3. PURPOSE.................................................................. 7
4. CONDITIONS PRECEDENT..................................................... 7
5. AVAILABILITY OF THE FACILITY............................................. 7
6. AVAILABILITY OF THE MULTI-CURRENCY OPTION................................ 9
7. AMOUNTS OF ADVANCES...................................................... 10
8. INTEREST PERIODS......................................................... 10
9. INTEREST................................................................. 10
10. ALTERNATIVE INTEREST RATES............................................... 11
11. REPAYMENT................................................................ 11
12. PREPAYMENT............................................................... 12
13. REPRESENTATIONS AND WARRANTIES........................................... 12
14. COVENANTS................................................................ 13
15. EVENTS OF DEFAULT........................................................ 17
16. PAYMENTS................................................................. 20
17. PAYMENT AND EXCHANGE RATE INDEMNITIES.................................... 21
18. CHANGES IN CIRCUMSTANCES, TERMINATION OF COMMITMENT AND INCREASED COSTS.. 22
19. SET-OFF.................................................................. 23
20. WAIVERS.................................................................. 24
21. COSTS AND EXPENSES....................................................... 24
22. BENEFIT OF AGREEMENT AND TRANSFERS....................................... 24
23. NOTICES.................................................................. 25
24. CONFIDENTIALITY.......................................................... 25
25. LAW...................................................................... 26
THE FIRST SCHEDULE............................................................ 27
THE SECOND SCHEDULE........................................................... 30
THE THIRD SCHEDULE............................................................ 32
ANNEXURE A.................................................................... 43
THE FOURTH SCHEDULE........................................................... 44
EXECUTION PAGE................................................................ 46
MULTI-CURRENCY CREDIT FACILITY AGREEMENT
DATED: 1999
PARTIES:
(1) PRIMUS TELECOMMUNICATIONS LIMITED as Borrower;
(2) ERICSSON I.F.S. as Lender.
RECITALS:
(A) Under the terms of the Supply Contract, the Borrower has agreed to
purchase, and the Supplier has agreed to supply the Equipment, the Software
and related services.
(B) The Lender has agreed to provide finance to the Borrower in the maximum
aggregate principal amount of the Facility Amount in order to assist the
Borrower and the Primus Affiliates with certain of their respective payment
obligations in relation to the Equipment and Software under Purchase Orders
issued in accordance with the terms of the Supply Contract.
OPERATIVE TERMS:
1. DEFINITIONS AND INTERPRETATION
1.1 Unless otherwise defined in this Agreement or the context otherwise
requires, terms defined in the Supply Contract shall have the same meaning
when used in this Agreement.
1.2 In this Agreement:
"Advance" means an advance made by the Lender as referred to in Clause 5,
being any amount up to the aggregate VAT exclusive amount due under all
invoices specified in the Notice of Drawdown in respect of such Advance,
(in each case as the same may from time to time be reduced by prepayment
and/or repayment) made or to be made under this Agreement (together the
"Advances");
"Affiliate" of a company or corporate body means any company or corporate
body:
(i) which is controlled, direct or indirectly, by the first mentioned
company or corporate body; and/or
(ii) more than half the issued equity capital of which is beneficially
owned, direct or indirectly, by the first mentioned company or
corporate body; and/or
(iii) which is a Affiliate of another Affiliate of the first mentioned
company or corporate body; and/or
(iv) unless the context otherwise requires, which is a subsidiary
undertaking (within the meaning of section 21 of the Companies Act
1989) of the first mentioned company or corporate body
and, for these purposes, a company or corporate body will be treated as
being controlled by another if that other company or corporate body is able
to direct its affairs and/or to control the composition of its board of
directors or equivalent body;
"Affiliate Undertaking" means the guarantee indemnity and undertaking to be
given by each Primus Affiliate in the form set out in the Third Schedule
(or with such amendments to it as the Lender may agree);
"Agreed Value" means, in relation to any Equipment, the full replacement
value of such Equipment;
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"Agreement" means, at any point in time, this document as amended, varied,
supplemented or novated up to that point in time;
"Applicable Margin" means a rate of 5.8 per cent. per annum;
"Applicable Schedule" means, in relation to each Advance, a schedule of
payments in the form attached to the Notice of Drawdown for such Advance;
"Available Facility"means, save as otherwise provided in this Agreement,
the Commitment less (1) the Sterling Amount or the equivalent amount of an
Optional Currency of each Advance which is then outstanding under this
Agreement and (2) any amount which is due to be repaid on a Repayment Date;
"Availability Period" means, subject to the terms of Clause 5.3, a period
commencing on the date of this Agreement and terminating on the Termination
Date;
"Borrower" means Primus Telecommunications Limited, a company incorporated
in England with registered number 02937312 and having its registered office
at 0 Xxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX (and includes its successors and
permitted assigns and any person with whom it may amalgamate);
"Charge" means:
(i) in respect of Equipment and Software to be purchased by the Borrower
pursuant to a Purchase Order, a fixed charge to be executed by the
Borrower in relation to such Equipment and Software; and
(ii) in respect of Equipment and Software to be purchased by a Primus
Affiliate pursuant to a Purchase Order, a security interest having
the characteristics of a fixed charge (as that expression is
understood under English law) in relation to such Equipment and
Software,
each to be in form and content satisfactory to the Lender (together the
"Charges");
"Commencement Date" means the 1 January, 1999, being the date for
commencement of the third stage of EMU;
"Commitment" means (Pounds)21,250,000 as such amount may be reduced,
cancelled or terminated in accordance with the terms of this Agreement (or
as otherwise may be agreed in writing between the Lender and the Borrower);
"Disposition" means an assignment, novation or transfer of any or all of
the Lender's rights or obligations or interest in, under and to this
Agreement and/or any of the Documents;
"Documents" means this Agreement, the Equipment Charge, the Charges, the
Guarantee and any Affiliate Undertakings (each a "Document");
"Drawdown Date" means, in relation to an Advance, the date upon which the
Borrower has requested such Advance to be advanced to it pursuant to clause
5 or (as the context requires) the date on which such Advance is actually
advanced to the Borrower under this Agreement;
"EMU" means economic and monetary union as contemplated by the Treaty;
"EMU Legislation" means Council Regulation (EC) No 974/98 on the
introduction of the euro and the other legislative measures of the Council
of the European Union for the introduction and operation of the euro;
"Equipment" means the items of Hardware and Software purchased by the
Borrower pursuant to the Supply Contract;
"Equipment Charge" means an equipment charge of even date with this
Agreement and made between the Borrower and the Lender;
"Ericsson Affiliate" means any Affiliate of Telefonaktiebolaget LM Ericsson
from time to time;
2
"Event of Default" means any of those events specified in Clause 15;
"Facility" means the multi-currency credit facility granted to the Borrower
in this Agreement;
"Facility Amount" means the amount specified in Clause 2.2 (or the
equivalent in an Optional Currency) (or as otherwise may be agreed in
writing between the Lender and the Borrower);
"Final Acceptance Date" means, in relation to each Purchase Order, the
date of Final Acceptance as calculated in accordance with the terms of
Clause 21 of the Supply Contract;
"Final Repayment Date" means, in relation to the Facility, the earlier of
(i) the final Repayment Date in respect of the last Advance made in
accordance with Clause 5.5 and (2) the date falling sixty months after the
Termination Date;
"Frame Agreement" means, the frame agreement dated on or about the date of
this Agreement and made between the Supplier and the Borrower (as such
frame agreement may be amended, varied, supplemented or novated from time
to time);
"Guarantee" means a guarantee of even date with this Agreement and made
between the Guarantor and the Lender (in a form approved by the Lender);
"Guarantor" means Primus Telecommunications Group Inc, a company
incorporated in under the laws of the State of Delaware, USA, and having
its principal place of business at 0000 Xxx Xxxxxx Xxxx, XxXxxx, Xxxxxxxx
00000, X.X.X. (and includes its successors and permitted assigns and any
person with whom it may amalgamate);
"Hardware" means the Hardware as specified in the Purchase Order;
"Interest Payment Date" means, in relation to an Advance, the date for
payment of interest in respect of such Advance as referred to in Clause
9.1;
"Interest Period" means, save as otherwise provided in this Agreement, any
of those periods mentioned in Clause 8.2;
"Lender" means Ericsson I.F.S., a company incorporated in Ireland with
registered number 150734 and having its registered office at Xxxxxxxxxxxxx
Xxxxx, 0 Xxxxxxxxxxxxx Xxxxx, XXXX, Xxxxxx 0, Republic of Ireland (and
includes its successors and permitted assigns and any person with whom it
may amalgamate);
"LIBOR" means the arithmetic mean (rounded up to the next higher one
hundred thousandth of a percentage point) of the rate per annum of the
offered quotations for deposits in the currency of the relevant Advance for
a period equal or comparable to the relevant Interest Period in an amount
comparable to the Advance:
(i) which appear on the page designated as page "LIBP" on the Reuters
Monitor Money Rates Service as of 10.00 a.m. (London time) in the
case of Sterling (or such other page as may be appropriate for the
relevant Optional Currency) (or such other pages as may replace page
LIBP or the relevant page for the relevant Optional Currency on that
service); or
(ii) (in circumstances where fewer than two quotations appear on the LIBP
page (or such other page as may be appropriate for the relevant
Optional Currency) or there is no LIBP page (or such other page as
may be appropriate for the relevant Optional Currency) for such date)
which are offered by the Reference Banks (or, as the case may be,
such of the Reference Banks as shall offer quotations) as of 10.00
a.m. (London time);
"Loan" means the aggregate principal amount for the time being outstanding
under this Agreement;
"Loss Date" shall have the meaning ascribed to it in Clause 14.4;
3
"Maximum Amount" means the aggregate maximum amount to be advanced by the
Lender in relation to each Purchase Order (being 85% of the Price
(exclusive of VAT) payable under each such Purchase Order);
"Notice of Drawdown" means a notice substantially in the form set out in
the First Schedule or in such other form as may be acceptable to the Lender
or as the Lender may require from time to time;
"Optional Currency" means, subject to Clause 17, euros, Dollars and any
other currency which is freely transferable and freely convertible into
Sterling;
"Original Sterling Amount" in relation to an Advance means:
(i) when such Advance came into existence as a result of a drawing under
the Facility, the amount specified as such in the Notice of Drawdown
relating thereto; and
(ii) when such Advance came into existence upon the consolidation of two
or more Advances, the aggregate of the amounts specified as such in
the Notices of Drawdown relating to each of the Advances so
consolidated;
"Participating Member State" means a state which adopts the euro in
accordance with the Treaty;
"Potential Event of Default" means any event which would become (with the
passage of time, the giving of notice, the making of any determination
under this Agreement or any combination thereof) an Event of Default;
"Preliminary Payment" means the payment to be made by the Borrower (or, as
appropriate, the relevant Primus Affiliate) of 15% of the Price under each
Purchase Order in accordance with the terms of the Supply Contract;
"Primus Affiliate" means any Affiliate of the Guarantor from time to time
to whom the Borrower's rights and obligations under the Supply Contract or
a Purchase Order have been novated, assigned or otherwise transferred;
"Primus Notes" means the notes issued by the Guarantor (i) dated 30 July
1997 in an amount up to $225 million due 2004 and bearing interest at the
rate of 11 3/4%, (ii) dated 14 May 1998 in an amount up to $150 million due
2008 and bearing interest at the rate of 9O%, and (iii) dated 29 January
1999 in an amount up to $200 million due 2009 and bearing interest at the
rate of 11 1/4% and all future notes and bonds issued by the Guarantor;
"Purchase Order" means a Purchase Order entered into pursuant to the terms
of the Supply Contract;
"Quotation Date" in relation to any period for which an interest rate is to
be determined under this Agreement means the day on which quotations would
ordinarily be given by prime banks in the London Interbank Market for
deposits in the currency in relation to which such rate is to be determined
for delivery on the first day of that period provided that, if, for any
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such period, quotations would ordinarily be given on more than one date,
the Quotation Date for that period shall be the last of those dates;
"Reference Banks" means the principal London offices of Barclays Bank PLC,
Lloyds Bank Plc and National Westminster Bank plc or such other bank or
banks as may from time to time be agreed between the Lender and the
Borrower;
"Repayment Date" shall have the meaning ascribed to it in Clause 11.1;
"Software" means the Software as specified in the Purchase Order;
"Sterling Amount" means:
(i) in relation to an Advance, its Original Sterling Amount as reduced
by the proportion (if any) of such Advance which has been prepaid
and/or repaid; and
(ii) in relation to the Loan, the aggregate of the Sterling Amounts of
the outstanding Advances;
4
"Supplier" means Ericsson Limited, a company incorporated in England with
company number 942215 and having its registered office at
Telecommunications Centre, Ericsson Way, Xxxxxxx Hill, West Sussex RH15 9UB
(and includes its successors and assigns and any person with whom it may
amalgamate);
"Supply Contract" means the supply contract dated 6 December 1996 and made
between the Supplier and the Borrower, as amended and supplemented by the
Frame Agreement (or otherwise as such supply contract may be amended,
varied, supplemented or novated from time to time);
"Termination Date" means the date falling two years after the date of this
Agreement;
"Total Loss" means, in relation to any Equipment, (i) its actual,
constructive, compromised, arranged or agreed total loss; or (ii) its
destruction, damage beyond repair or being rendered permanently unfit for
normal use for any reason whatsoever;
"Total Loss Date" means (i) in the case of an actual total loss or
destruction, damage beyond repair, or being rendered permanently unfit, the
date on which such loss, destruction, damage or rendition occurs; and (ii)
in the case of a constructive, compromised, arranged or agreed total loss,
whichever shall be the earlier of (a) the date being 30 days after the date
on which notice claiming such total loss is issued to the insurers or
brokers, and (b) the date on which such loss is agreed or compromised by
the insurers,
"Total Loss Proceeds" means the proceeds of any insurance, or any
compensation or similar payment, arising in respect of a Total Loss.
"Treaty" means the treaty establishing the European Community signed in
Rome on 25th March 1957 as amended from time to time;
1.3 Any reference in this Agreement to:
a "business day" shall be construed as a reference to a day (other than a
Saturday or Sunday) on which banks are generally open for business in
London and Dublin and, if such reference relates to the date for the
payment or purchase of any amount denominated in:
(a) any Optional Currency (other than euros), in the principal financial
centre of the country of such Optional Currency; or
(b) euros, in such other principal financial centre of any participating
Member State as the Lender may nominate for the purpose and for the
avoidance of doubt, in relation to a payment or rate fixing in euros,
which is also a day on which the Trans European Automated Real-time
Gross settlement Express Transfer System (TARGET) is operating;
a "Clause" shall, subject to any contrary indication, be construed as a
reference to a clause of this Agreement;
a "currency" includes, without limitation, euros;
an "encumbrance" shall be construed as a reference to any mortgage, pledge,
lien, charge, equity, assignment by way of security, hypothecation,
security interest and any other security arrangement and, if entered into
for the purpose of raising borrowed money, any deferred purchase, title
retention, financial lease, sale and repurchase or sale and lease-back
arrangement and any royalty, over-riding royalty, net profits interest or
production payment of any kind;
"euro unit" means a euro as defined in the second sentence of Article 2 of
Council Regulation (EC) No 974/98 on the introduction of the euro;
"indebtedness" shall be construed so as to include any obligation (whether
incurred as principal or as surety) for the payment or repayment of money,
whether present or future, actual or contingent;
"indebtedness for borrowed money" shall be construed so as to mean any
indebtedness incurred in respect of:
(a) any moneys borrowed or raised under a credit or loan facility;
5
(b) any debenture, bond, note, loan stock or similar instrument (whether
or not issued or raised for a cash consideration);
(c) amounts raised under any acceptance credit facility;
(d) amounts raised under any xxxx discounting or note purchase facility;
(e) any lease or hire purchase agreement entered into primarily as a
method of raising finance or for financing the acquisition of the
asset leased or hired;
(f) amounts raised under any other transaction having the commercial
effect of a borrowing entered into by a person in order to enable such
person (or, if such person is liable jointly or severally, with, or a
surety for, any other person in respect of such indebtedness, such
other person) to finance its operations or capital requirements but
excluding any amounts owing for assets purchased or services obtained
in the ordinary course of trading where the credit is provided on
terms usual in the course of similar businesses and does not in any
event exceed 60 days;
a "month" is a reference to a period starting on one day in a calendar
month and ending on the numerically corresponding day in the next calendar
month save that, when any such period would otherwise end on a day which is
not a business day, it shall end on the next business day, unless that day
falls in the calendar month succeeding that in which it would otherwise
have ended, in which case it shall end on the preceding business day
provided that, if a period starts on the last business day in a calendar
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month or if there is no numerically corresponding day in the month in which
that period ends, that period shall end on the last business day in that
later month (and references to "months" shall be construed accordingly);
"national currency unit" means the unit of currency (other than the euro
unit) of a Participating Member State;
a "person" shall be construed as a reference to any person, firm, company,
corporation, government, state or agency of a state or any association or
partnership (whether or not having separate legal personality) of two or
more of the foregoing;
"repay" (or any derivative form thereof) shall, subject to any contrary
indication, be construed to include "prepay" (or, as the case may be, the
corresponding derivative form thereof);
a "Schedule" shall, subject to any contrary indication, be construed as a
reference to a schedule to this Agreement;
a "subsidiary" means an entity from time to time of which a person has
direct or indirect control, or owns directly or indirectly, more than fifty
per cent. (50%) of the share capital or a similar right of ownership;
"tax" or "taxes" shall be construed so as to include any tax, levy, impost,
duty or other charge of a similar nature (including, without limitation,
any penalty or interest payable in connection with any failure to pay or
any delay in paying any of the same); and
the "winding-up", "dissolution" or "administration" of a company shall be
construed so as to include any equivalent or analogous proceedings under
the law of the jurisdiction in which such company is incorporated or any
jurisdiction in which such company carries on business.
1.4 "euro" and "euros" denotes the single currency of the Participating Member
States introduced on the Commencement Date; "GBP", "Sterling" and
"(Pounds)" denotes the lawful currency of the United Kingdom; "USD",
"Dollars" and "$" denotes the lawful currency of the United States of
America.
1.5 Any provision of this Agreement that is expressed to come into effect as
from the Commencement Date shall, to the extent that it relates to the
currency of a member state of the European Community which is not a
Participating Member State on the Commencement Date, come into effect in
relation to the currency as from the date on which that state becomes a
Participating Member State.
1.6 The Lender and the Borrower may at any time agree so as to bind the
Borrower and the Lender that any references in this Agreement to a business
day, day-count fraction or other convention (whether for the
6
calculation of interest, determination of payment dates or otherwise)
shall, with effect from or after the Commencement Date, if different on
account of implementation of EMU, be amended to comply with any generally
accepted conventions and market practice from time to time applicable to
euro denominated obligations in the London Interbank Market. The agreement
of the Lender and the Borrower under this Clause 1.6 is not be unreasonably
withheld or delayed.
1.7 Save where the contrary is indicated, any reference in this Agreement to:
1.7.1 this Agreement or any other agreement or document shall be construed
as a reference to this Agreement or, as the case may be, such other
agreement or document as the same may have been, or may from time to
time be, amended, varied, novated or supplemented;
1.7.2 a statute shall be construed as a reference to such statute as the
same may have been, or may from time to time be, amended or re-
enacted; and
1.7.3 a time of day shall be construed as a reference to London time.
1.8 Clause and Schedule headings are for ease of reference only.
2. THE FACILITY
2.1 The Lender agrees to make available to the Borrower, upon the terms and
subject to the conditions of this Agreement, a multi-currency credit
facility of up to the Facility Amount or its equivalent from time to time
in other Optional Currencies;
2.2 For the purpose of the definition of Facility Amount in Clause 1.2 the
Sterling Amount is (Pounds)21,250,000.
3. PURPOSE
3.1 The Facility is intended for the purpose of satisfying certain of the
payment obligations of the Borrower (or, as appropriate, any Primus
Affiliate) in respect of the Hardware and Software under Purchase Orders to
be issued in accordance with the terms of the Supply Contract and,
accordingly, the Borrower shall apply all amounts raised by it under this
Agreement in or towards satisfaction of the respective payment obligations
under each such Purchase Order. In this connection, if a Primus Affiliate
is obliged to make a payment under a Purchase Order then the Lender hereby
consents to the Borrower making the proceeds of an Advance relating to such
Purchase Order available to such Primus Affiliate so that such Primus
Affiliate can comply with such payment obligation.
3.2 Without prejudice to the obligations of the Borrower under Clause 3.1, the
Lender shall not be obliged to concern itself with the application of
amounts raised by the Borrower under this Agreement.
4. CONDITIONS PRECEDENT
4.1 The Lender will have no obligation under the Facility until it shall have
received in form and content satisfactory to it (in its absolute
discretion) all of the documents listed in Part A of the Second Schedule.
5. AVAILABILITY OF THE FACILITY
5.1 Subject to the other terms of this Agreement, the Lender will make an
Advance available to the Borrower in accordance with the following
provisions of this Clause 5.
5.2 Once a Purchase Order has been executed by both the Supplier and the
Borrower, the Borrower (or, as appropriate, the relevant Primus Affiliate
if that Purchase Order has been novated by the Borrower to the relevant
Primus Affiliate) will have an obligation to pay to the Supplier (or, as
appropriate, the relevant Ericsson Affiliate if that Purchase Order has
been novated by the Supplier to the relevant Ericsson Affiliate) the
Preliminary Payment in accordance with the terms of the Supply Contract.
5.3 Once the Preliminary Payment has been paid to the Supplier (or, as
appropriate, the relevant Ericsson Affiliate) the Borrower may request an
Advance to be made by the Lender, provided that the following conditions
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are fulfilled:
7
5.3.1 by 10.00 a.m. (London time) on the seventh business day before the
proposed date for the making of such Advance, the Lender has
received from the Borrower a Notice of Drawdown (which shall be
irrevocable) in relation to such Advance, receipt of which shall
oblige the Borrower to borrow the amount requested in such Notice
on the date stated in such Notice upon the terms and subject to the
conditions contained in this Agreement;
5.3.2 the proposed date for the making of such Advance is a business day
during the Availability Period;
5.3.3 the currency of the proposed Advance must be in Sterling or an
Optional Currency;
5.3.4 the proposed Original Sterling Amount of each Advance is (a) a
minimum amount of (Pounds)250,000 or the equivalent amount of an
Optional Currency and is less than the amount of the Available
Facility or (b) equal to the amount of the Available Facility;
5.3.5 the Advance cannot exceed the balance of the Price due under the
Purchase Order in relation to which the Preliminary Payment has
been made;
5.3.6 the Lender has not determined that deposits in Sterling or in the
applicable Optional Currency (after applying the provisions of
Clause 6.2 as appropriate) of the amount of such Advance are not
being offered to prime banks in the London Interbank Market (by
reason of circumstances affecting the London Interbank Market
generally) for the proposed duration of the first Interest Period
of such Advance;
5.3.7 either:
5.3.7.1 no event has occurred which is an Event of Default or a
Potential Event of Default; and
5.3.7.2 the representations set out in Clause 13 are true on
and as of the proposed date for the making of such
Advance
or the Lender agrees (notwithstanding any matter mentioned at (a)
or (b) above) to make such Advance available;
5.3.8 the long term corporate credit rating of the Guarantor as published
from time to time by Standard & Poors has not fallen below the
level of CCC+;
5.3.9 the Notice of Drawdown specifies the purpose to which the Advance
is to be put and has attached to it copies of all relevant invoices
issued to the Borrower or Primus Affiliates (as applicable) by the
Supplier or Ericsson Affiliates (as appropriate) in respect of each
Purchase Order specified in the Notice of Drawdown; and
5.3.10 the Lender shall be satisfied that the Supplier (or, as
appropriate, the relevant Ericsson Affiliate) has received the
Preliminary Payment in respect of each Purchase Order specified in
the Notice of Drawdown,
5.4 The Lender will have no obligation to make available an Advance unless and
until:
5.4.1 it shall have received from the Borrower the Applicable Schedule in
respect of such Advance as duly accepted on behalf of the Borrower;
and
5.4.2 it shall have received in form and content satisfactory to it (in
its absolute discretion):
5.4.2.1 in the case of an Advance being made available in
connection with payment obligations of the Borrower
under a Purchase Order, all of the documents listed in
paragraph 1 of Part B of the Second Schedule; and
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5.4.2.2 in the case of an Advance being made available in
connection with payment obligations of a Primus
Affiliate under a Purchase Order, all of the documents
listed in paragraph 2 of Part B of the Second Schedule.
5.5 Subject to the terms of this Agreement (including, without limitation, the
satisfaction of the Lender with the conditions set out in Clauses 5.3 and
5.4), the Lender agrees that on the Drawdown Date in relation to each
Advance, it will make available to the Borrower the amount of such Advance
in the currency and in accordance with the Borrower's instructions as set
out in the relevant Notice of Drawdown.
5.6 If and to the extent that the Facility has not been fully drawn by close of
business on the Termination Date, the Available Facility shall then be
immediately cancelled.
6. AVAILABILITY OF THE MULTI-CURRENCY OPTION
6.1 The Borrower may in the Notice of Drawdown relating to any proposed Advance
request that the relevant Advance be denominated in any Optional Currency
provided that such Optional Currency is specified as the currency of
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payment in the relevant Purchase Order. Otherwise each Advance shall be
denominated in Sterling.
6.2 If the Borrower requests that an Advance be denominated in an Optional
Currency as provided in Clause 6.1 and:
6.2.1 no later than 5.00 p.m. on the third business day preceding the
first day of the first Interest Period in relation to such Advance,
the Lender is notified that:
6.2.1.1 (by reason of circumstances affecting the London
Interbank Market generally) such Optional Currency is not
available to it in the London Interbank Market; or
6.2.1.2 (by reason of circumstances affecting the London
Interbank Market generally) that the rate at which such
deposits are available will not or does not accurately
reflect the cost to the Lender of making or funding such
Advance; or
6.2.1.3 that it is contrary to any applicable law, regulation or
official directive (whether or not having the force of
law) for the Lender to fund such Advance in such
Optional Currency; or
6.2.2 the Lender, no later than 11.00 a.m. on the Quotation Date for such
Interest Period, notifies the Borrower that the Lender is of the
opinion that, by reason of circumstances affecting the London
Interbank Market generally, it is not feasible for such Advance to
be made in such Optional Currency or, as the case may be,
denominated in such Optional Currency during such Interest Period,
then, the Lender will:
6.2.3 (if possible) give the Borrower prior notice of the same; and
6.2.4 use its reasonable endeavours to agree with the Borrower an
alternative currency in which to make such Advance available and to
obtain the agreement of the relevant Primus Affiliate to accept
payment in such alternative currency,
failing which such Advance shall be denominated in Sterling.
7. AMOUNTS OF ADVANCES
7.1 The amount of an Advance during an Interest Period relating thereto (in
determining which it shall be assumed that any part of such Advance falling
to be repaid on or before the last day of the preceding Interest Period
relating thereto is duly repaid) shall be the Sterling Amount of such
Advance during such Interest Period or, if such Advance is to be
denominated in an Optional Currency during such Interest Period, the amount
of such Optional Currency which could be purchased with the Sterling Amount
of such
9
Advance at the spot rate of exchange quoted to the Lender at 11.00 a.m. on
the Quotation Date for such Interest Period for the purchase of such
Optional Currency with Sterling (in an amount equal to the original
Sterling Amount of such Advance) for delivery two business days
thereafter.
8. INTEREST PERIODS
8.1 The period for which an Advance is outstanding will be divided into
successive periods each of which (other than the first) will start on the
day following the last day of the preceding such period.
8.2 The duration of each Interest Period shall, save as otherwise provided in
this Agreement, be:
8.2.1 in the case of the first Interest Period in relation to each
Advance, the period commencing on the Drawdown Date in relation to
such Advance and ending on the day before the Repayment Date next
following the Drawdown Date in relation to such Advance; and
8.2.2 in the case of each subsequent Interest Period in relation to each
Advance, the period commencing on the preceding Repayment Date in
relation to such Advance and ending on the day before the next
Repayment Date in relation to such Advance,
Provided that:
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8.2.2.1 if such Advance to which such Interest Period relates is
denominated in a currency for which the Repayment Date is
not a business day, then the Repayment Date in relation
to such Advance shall be the immediately succeeding
business day for such currency; and
8.2.2.2 the last Interest Period shall expire on the Final
Repayment Date in respect of such Advance.
9. INTEREST
9.1 On each Interest Payment Date the Borrower shall pay accrued interest in
arrears in respect of each Advance as calculated in accordance with the
terms of Clause 9.2. The first Interest Payment Date in relation to an
Advance shall be the first Repayment Date next following the Drawdown Date
in relation to such Advance and each subsequent Interest Payment Date in
relation to such Advance shall be the next succeeding Repayment Date in
relation to such Advance.
9.2 Subject to Clause 9.3, the rate of interest applicable to an Advance from
time to time during an Interest Period relating to it shall be the rate
per annum which is the sum of (a) the Applicable Margin and (b) LIBOR on
the Quotation Date therefor.
9.3 If the Lender shall secure an export credit guarantee from EKN (the
Swedish Export Credit Guarantee Board) in terms acceptable to the Lender
(and the Lender shall use its reasonable endeavours to procure the same in
respect of each Advance), then the rate per annum calculated in accordance
with Clause 9.2 shall be reduced by 2.0 per cent. per annum provided that
-------------
such reduction shall only apply:
9.3.1 for the duration of such EKN guarantee; and
9.3.2 for that portion of the Loan the subject of such EKN guarantee.
9.4 The Lender shall notify the Borrower in writing as soon as reasonably
practicable following the issue of a Notice of Drawdown as to whether an
EKN guarantee shall apply to the proposed Advance.
10. ALTERNATIVE INTEREST RATES
10.1 If, in relation to any Advance and any Interest Period relating thereto,:
10.1.1 the Lender determines that at 11.00 a.m. on the Quotation Date for
such Interest Period none of the Reference Banks was offering to
prime banks in the London Interbank Market deposits
10
in Sterling or in the applicable Optional Currency for the
proposed duration of such Interest Period; and
10.1.2 before the close of business in London on the Quotation Date for
such Interest Period, the Lender, shall determine that by reason
of circumstances affecting the London Interbank Market generally,
adequate and reasonable means do not exist for ascertaining the
interest rate applicable to such Interest Period
then, notwithstanding the provisions of Clauses 8 and 9;
10.1.3 the duration of that Interest Period shall be such period (being
of a similar duration to the originally requested period as
possible) as is selected by the Lender after consultation with the
Borrower; and
10.1.4 the rate of interest applicable to such Advance from time to time
during such Interest Period shall be the rate per annum which is
the sum of the Applicable Margin and the rate per annum notified
to the Borrower on the Quotation Date for such Interest Period to
be that which expresses as a percentage rate per annum the cost to
the Lender of funding from whatever sources it may select such
Advance during such Interest Period and the Lender agrees that it
will ensure that such cost is the lowest cost of funding
reasonably obtainable by it and not more than the cost to the
Lender of funding at that time advances to other prime customers
in the same currency and in the same amount as such Advance.
10.2 If (i) either of the events mentioned in Clauses 10.1.1 and 10.1.2 occurs
or (ii) by reason of circumstances generally affecting the London
Interbank Market during any period of three consecutive business days
there are no deposits in Sterling or the applicable Optional Currency
available to prime banks in the London Interbank Market, then:
10.2.1 the Lender shall notify the Borrower of such event;
10.2.2 if the Lender or the Borrower so require, within five business
days of such notification, the Lender and the Borrower shall enter
into negotiations with a view to agreeing a substitute basis (i)
for determining the rates of interest from time to time applicable
to the Advances and/or (ii) upon which the Advances may be
maintained (whether in Sterling or some other currency) thereafter
and any such substitute basis that is agreed shall take effect in
accordance with its terms and be binding on each party to this
Agreement; and
10.2.3 if the Lender and the Borrower have failed to reach agreement in
accordance with Clause 10.2.2 within fifteen business days from
the date of the notice sent by the Lender to the Borrower pursuant
to Clause 10.2.1 (or such longer period as the parties may agree
in writing), then the rate of interest applicable to each Advance
from time to time during an Interest Period relating thereto shall
be the rate per annum which is the sum of the Applicable Margin at
such time and the rate per annum which expresses as a percentage
rate per annum the cost to the Lender of funding from whatever
sources it may reasonably select such Advance during such Interest
Period and the Lender agrees that it will ensure that such cost is
the lowest cost of funding reasonably obtainable by it and not
more than the cost to the Lender of funding at that time advances
to other prime customers in the same currency and in the same
amount as such Advance.
11. REPAYMENT
11.1 The Borrower shall repay to the Lender the amount of each Advance by
twenty equal consecutive quarterly instalments payable on 15 February, 15
May, 15 August and 15 November in each year (each a "Repayment Date") as
set out in the Applicable Schedule relating to such Advance, the first
such instalment to be repayable on the first Repayment Date falling after
the Drawdown Date in relation to such Advance. On the Final Repayment Date
in respect of the last Advance outstanding under this Agreement, the
Borrower shall additionally pay to the Lender all other amounts then
outstanding or payable under this Agreement;
11.2 Amounts repaid under this Agreement may not be reborrowed.
11
12. PREPAYMENT
12.1 The Borrower may prepay the whole or any part of any Advance on a
Repayment Date provided that:
-------------
12.1.1 the Lender shall have received from the Borrower not less than
seven (7) days' irrevocable notice of its intention to make such
prepayment and specifying the amount and date on which such
prepayment is to be made;
12.1.2 the amount of such partial prepayment shall not be less than
(Pounds)100,000 or the balance of the Advance then outstanding (or
the equivalent in an Optional Currency);
12.1.3 each prepayment under this Agreement shall be made together with
accrued interest on the amount prepaid and all other amounts
payable on such repayment under the terms of this Agreement
(including, without limitation, any sums due pursuant to the terms
of Clause 18); and
12.1.4 each partial prepayment under this Clause shall be applied (in
inverse chronological order) against the repayment of the Advance
or part thereof in accordance with Clause 11.
12.2 In circumstances where the rate of interest applicable to any Advance is
being calculated in accordance with Clause 10.2.3, the Borrower may prepay
the whole (but not part) of such Advance provided that:
-------------
12.2.1 the Lender shall have received from the Borrower irrevocable
notice of its intention to make such prepayment within 15 business
days from the date of the notice sent by the Lender to the
Borrower pursuant to Clause 10.2.1 and specifying the amount and
date on which such prepayment is to be made; and
12.2.2 each such prepayment shall be made together with accrued interest
on the amount prepaid and all other amounts payable on such
repayment under the terms of this Agreement (including, without
limitation, any sums due pursuant to the terms of Clause 17.2 or
Clause 18).
12.3 The Borrower shall not prepay or repay all or any part of any Advance or
the Loan except at the times and in the manner expressly provided for in
this Agreement.
12.4 The Borrower shall prepay the Loan if all or any part of the Primus Notes
are prepaid or redeemed prior to their scheduled maturity.
13. REPRESENTATIONS AND WARRANTIES
13.1 The Borrower represents that:
13.1.1 it is a company duly incorporated and validly existing under the
laws of England and Wales and has the corporate power and
authority to carry on its business as presently conducted and to
perform its obligations under this Agreement and, so far as the
Borrower is aware, is the holder of all necessary licences issued
by all governmental authorities having jurisdiction to authorise
or permit the Borrower to carry on its business as presently
conducted and to operate the Equipment and to perform and comply
with its obligations hereunder;
13.1.2 neither the execution and delivery hereof nor the consummation of
the transactions contemplated hereby nor compliance by the
Borrower with any terms and provisions hereof will contravene any
law applicable to the Borrower or result in any breach of, or
constitute any default under, or result in the creation of any
encumbrance upon any property or assets of the Borrower under any
indenture, mortgage, chattel mortgage, conditional sales contract,
bank loan or credit agreement, or other agreement or instrument to
which the Borrower is a party or by which the Borrower or its
property or assets may be bound or affected (other than the
Charges and the Equipment Charge);
13.1.3 the execution, performance and delivery by the Borrower of this
Agreement have been duly authorised by all necessary corporate
action on the part of the Borrower and, with respect to the
execution and delivery of this Agreement the Borrower has obtained
and complied with
12
every necessary consent, licence, approval, order, or authorisation
of, or registration with, or the giving of prior notice to, any
government entity having jurisdiction all of which are valid and
subsisting;
13.1.4 this Agreement has been duly entered into and delivered by the
Borrower and constitutes the valid, legal and binding obligation of
the Borrower enforceable in accordance with its terms (except as
limited to (a) equitable principles, and (b) bankruptcy,
insolvency, reorganisation, moratorium or any laws affecting the
rights of creditors generally), and the provisions hereof will not
contravene any laws applicable to the Borrower which is in force or
the memorandum or articles of association of the Borrower or result
in any breach of, or constitute any default under or result in the
creation of any encumbrance upon any property or assets of the
Borrower under any indenture, mortgage, chattel mortgage,
conditional sales contract, bank loan or credit agreement, or other
agreement or instrument to which the Borrower is a party or by
which the Borrower or its properties or assets may be bound or
affected;
13.1.5 the Borrower has taken all necessary action under the laws
applicable to the Borrower in order to ensure the validity,
effectiveness and enforceability of this Agreement;
13.1.6 there are no suits or legal proceedings (including any
administrative proceeding) instituted against the Borrower or, so
far as the Borrower is aware, pending or threatened in writing
before any court or administrative agency against the Borrower
which, if adversely determined, would have a material adverse
affect upon its financial condition or business or its ability to
perform its obligations hereunder;
13.1.7 the obligations of the Borrower under this Agreement are or will
be, upon execution hereof by the Borrower, direct, general and
unconditional obligations of the Borrower and rank or, as the case
may be, will rank at least pari passu with all other present and
future unsecured and unsubordinated external obligations (including
contingent obligations) of the Borrower, with the exception of such
obligations as are mandatorily preferred by law and not by reason
of any encumbrance; and
13.1.8 no Event of Default or Potential Event of Default has occurred and
is continuing.
14. COVENANTS
14.1 The Borrower hereby undertakes with the Lender that, from the date of this
Agreement and for so long as the Loan or any other monies payable under
this Agreement remain outstanding, it will:
14.1.1 remain in and continue to operate substantially the same or similar
business as presently engaged in (and so that the Borrower will not
enter into any transaction or do anything which may result in a
fundamental change in the nature or business of the Borrower),
preserve its corporate existence and not make any change to its
memorandum or articles of association which may have a material
adverse effect on the Lender's rights or remedies hereunder;
14.1.2 not without the prior written consent of the Lender (which may be
withheld in the absolute discretion of the Lender) create or permit
to subsist any encumbrance or any agreement to give an encumbrance
in relation to the Equipment;
14.1.3 notify the Lender immediately upon it becoming aware of the
occurrence of any Event of Default or Potential Event of Default or
of any occurrence or circumstance which gives rise to a breach of
the Borrower's representations and warranties (whether or not
constituting an Event of Default or Potential Event of Default) or
the Borrower's undertakings under this Agreement;
14.1.4 use all reasonable endeavours to obtain and maintain all necessary
government and other consents, licences and permits in respect of
which the Borrower is aware are necessary and take all action which
the Borrower reasonably considers necessary for the continued due
performance of the Borrower's obligations under this Agreement, or
for the use and operation of the Equipment and in order for the
Borrower (or as appropriate, each Primus Affiliate) to
13
remain in and continue to operate substantially the same or similar
business as presently engaged in;
14.1.5 use all reasonable endeavours to avoid putting the Equipment, or
procure that the Equipment is not put, into a position where the
Borrower reasonably believes that it would be in material jeopardy
provided that the Borrower shall not be in breach of the terms of
-------- ----
this Clause in relation to any action or matter carried out with
the prior written consent of the Lender;
14.1.6 take all necessary steps, or procure that all necessary steps are
taken, to complete and file all registrations (of a regulatory
nature) with relevant authorities in respect of the Equipment which
the Borrower should reasonably be aware should be made in order to
protect the interest of the Lender (including, without limitation,
the execution and delivery by the Borrower (or, as appropriate,
each Primus Affiliate) of a Charge in relation to such Equipment);
14.1.7 not assign its rights or interests under any of the Documents to
any person;
14.1.8 keep accurate and complete records of the Equipment and permit the
Lender and its authorised representatives to examine and take
copies of such records at any time upon giving reasonable notice;
14.1.9 not permit and procure that each Primus Affiliate does not permit
the Equipment or any part thereof to be subject to penalty,
forfeiture, seizure, arrest, impounding, detention, confiscations,
taking in execution, appropriation or destruction nor abandon such
Equipment or any part thereof;
14.1.10 other than in the case of a dispute with a third party (except
where such dispute poses a reasonable threat to the Lender's
security), discharge and procure that each Primus Affiliate
discharges all fees, charges and outgoings payable to any third
party in relation to the use or operation of the Equipment or any
premises where such Equipment is situated;
14.1.11 not declare, pay or make any dividend or other distribution other
than in the ordinary course of business;
14.1.12 as soon as any notice is issued to prepay the Primus Notes (or if
no notice is issued at the same time as any prepayment), notify the
Lender of the amount of such prepayment;
14.2 Financial Information
The Borrower shall:
14.2.1 as soon as same become available but in any event within 30 days of
the end of each quarterly accounting period to which they relate,
deliver to the Lender copies of the quarterly management accounts
(comprising profit and loss account, cashflow statement and balance
sheet) of the Borrower;
14.2.2 as soon as same become available but in any event within 120 days
of the end of each of its financial years, deliver to the Lender
copies of the audited financial statements (comprising profit and
loss account, cashflow statement and balance sheet) of the
Borrower;
14.3 Insurances
From the date of this Agreement and for so long as the Loan or any other
monies payable under any of the Documents remain outstanding, the Borrower
shall (at its own expense) keep the Equipment or procure that the Equipment
is kept fully insured in accordance with the terms of this Clause 14.3.
Such insurances shall be as are normally maintained by prudent companies
carrying on similar businesses and in form and substance reasonably
satisfactory to the Lender through such brokers and with such prudent
insurers as may be reasonably approved by the Lender and in a form of
policy against all loss or damage to the Equipment (inclusive of fire,
theft and accident) for the full replacement value of the Equipment and all
liability to third parties, for bodily injury or damage to property arising
in connection with the Equipment.
14
14.3.1 The Borrower shall procure that:
14.3.1.1 the Lender shall be a named additional assured and sole
loss payee in respect of each policy of insurance from
time to time effected pursuant to this Clause 14.3 in
respect of the amount of the loss relative to the
Equipment; and
14.3.1.2 the amount equal to the full replacement value of the
Equipment shall be stated on the basis that the insurers
shall agree to waive any right of set-off in respect of
unpaid premiums and shall be adjusted by such amount as
the Borrower (after consultation with its insurance
advisers) considers appropriate if the insurers decline
to issue such a waiver.
14.3.2 If any insurances or reinsurance required by this Clause 14.3 are
effected by the Borrower directly with insurers or reinsurers and
without the intermediary of brokers:
14.3.2.1 the Borrower shall be entitled to satisfy its obligations
to supply evidence of such insurances or reinsurance to
the Lender by procuring the supply of such evidence from
the insurers or reinsurers, provided that such evidence
-------------
includes all the matters referred to in this Clause 14.3;
and
14.3.2.2 references to brokers in this Clause 14.3 shall be
disregarded in relation to such insurances or
reinsurance.
14.3.3 The Borrower shall comply (or procure the compliance) with all
legal requirements as to insurance of the Equipment or any part
thereof which may from time to time be imposed by the laws of the
country in which any Equipment is installed and/or used insofar as
they affect or concern the operation of the Equipment and, in
particular, those requirements compliance with which is necessary
to ensure that:
14.3.3.1 the Equipment is not in danger of detention or
forfeiture;
14.3.3.2 the insurances and reinsurances remain valid and in full
force and effect; and
14.3.3.3 the interests of the Lender in the insurances and the
Equipment or any part thereof are not thereby prejudiced.
14.3.4 If the Lender makes a Disposition to any other person or entity in
accordance with the terms of Clause 22.1 hereof, then the Borrower
shall (upon request and subject to the agreement of the insurers)
procure that such person or entity shall be added as additional
assured in any policy effected under this Clause 14.3, so as to
enjoy the same rights and insurances enjoyed by the Lender under
the insurance policy or policies and any amendments thereof.
14.3.5 The Borrower shall not use the Equipment (and shall procure that
the Equipment is not used) or cause or permit the same to be used
for any purpose or in any manner not covered by any insurance, or
for any purpose or in any manner which is contrary to any
applicable law. The Borrower shall comply with the terms and
conditions of each and every policy of insurance and shall not do,
consent or agree to any act or omission which may invalidate or
render unenforceable the whole or part of any such insurance.
14.3.6 The Lender may from time to time require the Borrower (at the
Borrower's expense) to effect such other insurances, or such
variations to the terms of the existing insurances, as the Lender
may by notice to the Borrower reasonably require in order fully to
protect the interests of the Lender.
14.3.7 The Borrower shall not without the prior written consent of the
Lender maintain insurances or reinsurances with respect to the
Equipment other than those required under this Clause 14.3.
15
14.3.8 If the Lender wishes to revoke its approval of any insurer or
insurers, then it shall consult with the Borrower and the Borrower
and the Lender shall consider with the brokers to the Borrower for
the time being approved by the Lender whether such insurance shall
be changed to protect the interests of the parties insured. If the
brokers consider that such insurance should be changed, the
Borrower shall then arrange (with effect from the next annual
renewal date of such insurances) alternative insurance cover
reasonably satisfactory to the Lender and complying with this
Clause 14.3.
14.3.9 The Borrower shall provide the Lender with any information
reasonably requested by the Lender from time to time (other than
the amounts of premium paid or payable) concerning the insurances
or reinsurance maintained with respect to the Equipment (and any
part of it).
14.3.10 If at any time the Borrower fails to maintain insurances in
compliance with any provision of this Clause 14.3, the Lender shall
be entitled but not bound (without prejudice to any other rights
which it may have or acquire under this Agreement by reason of such
failure) to pay any premiums due or to effect or maintain
insurances satisfactory to the Lender or otherwise remedy such
failure in such manner as the Lender considers appropriate (and the
Borrower shall immediately reimburse the Lender in full for any
amount so expended).
14.3.11 The Borrower shall furnish to the Lender:
14.3.11.1 on reasonable request and at subsequent renewals prior
to each of the renewal dates, executed copies of
endorsements evidencing the insurance required to be
maintained pursuant to this Clause 14.3;
14.3.11.2 on request, evidence of any insurance required
hereunder; and
14.3.11.3 on request, evidence of payment of premium or premium
instalment due in respect of such insurances.
14.4 Total Loss
If in respect of Equipment a Total Loss occurs, then without prejudice to
the continuing obligations of the Borrower under this Agreement the Lender
and the Borrower shall proceed diligently and co-operate fully with each
other in the recovery of the Total Loss Proceeds.
14.4.1 On the date (the "Loss Date") which shall be the earlier of the
following dates:
14.4.1.1 the date on which the Total Loss Proceeds in respect of
such Equipment are received by the Lender; and
14.4.1.2 45 days after the Total Loss Date,
the Borrower shall pay to the Lender an amount (the "Total Loss
Amount") notified by the Lender to the Borrower, being the amount
equal to (a) the Agreed Value (calculated as at the Total Loss
Date) less (b) an amount equal to any Total Loss Proceeds received
by the Lender by the Loss Date.
14.4.2 The Lender shall apply the Total Loss Proceeds and the Total Loss
Amount pursuant to Clause 14.4 in discharge of any amounts accrued
but unpaid under the Documents.
14.5 Other Loss or Damage
If any Equipment or any part thereof suffers loss or damage not
constituting a Total Loss of such Equipment, all the obligations of the
Borrower under this Agreement shall continue in full force, and the
Borrower shall at the Borrower's expense promptly procure the repair of
such damaged Equipment. So long as no Event of Default has occurred and is
continuing, any insurance proceeds:
16
14.5.1 received by the Lender which exceed (Pounds)100,000 or its
equivalent in an Optional Currency shall, at the election of the
Borrower, be applied by the Lender either in direct payment of the
cost of such repair or in reimbursement of the Borrower for the
cost of such repair; and
14.5.2 equal to or less than (Pounds)100,000 or its equivalent shall be
paid to the Borrower and the Borrower shall apply the same at its
election as aforesaid.
15. EVENTS OF DEFAULT
15.1 If:
15.1.1 the Borrower fails to pay any amount due from it under this
Agreement within three (3) business days of the due date (in the
currency and in the manner specified in this Agreement) or the
Guarantor fails to pay any amount due from it under the Guarantee
at the time (in the manner and in the currency specified in the
Guarantee); or
15.1.2 the Borrower fails to perform any material obligation expressed to
be assumed by it under Clause 14; or
15.1.3 the Borrower fails duly to perform any other term or condition of
this Agreement or the other Documents or the Guarantor fails duly
to perform any term or condition of the Guarantee or any Primus
Affiliate fails duly to perform any term or condition of an
Affiliate Undertaking which breach, if (in the Lender's opinion)
capable of remedy, has not been remedied within fourteen (14) days
of the Lender's notification of such failure to the Borrower; or
15.1.4 any representation or warranty made by the Borrower contained in
this Agreement, or made by the Guarantor contained in the
Guarantee, or made by any Primus Affiliate contained in any
Affiliate Undertaking, is untrue or incorrect when made and which
would have a material adverse effect on the ability of the Borrower
or the Guarantor or any Primus Affiliate to perform its obligations
under this Agreement or the Guarantee or any Affiliate Undertaking
(as the case may be) in any material respect when such event
occurs; or
15.1.5 the Borrower is unable to or shall admit inability to pay its debts
as they fall due or ceases or threatens to cease to carry on
business; or
15.1.6 dissolution or any similar proceeding shall be instituted by or
against the Borrower or if a petition is presented and served for
the liquidation of the Borrower (save for a petition for the
liquidation of the Borrower which is discharged, withdrawn or
compromised within ten (10) business days of its service or in
respect of which an order is granted restraining advertisement
within seven (7) business days of its service) or if the Borrower
enters into compulsory or voluntary liquidation (not being
voluntary liquidation for the purposes of reconstruction or
amalgamation on terms which have been previously approved by the
Lender in writing, such approval not to be unreasonably withheld or
delayed); or
15.1.7 a receiver, administrator, administrative receiver or receiver and
manager or trustee or similar officer is appointed in respect of
the Borrower or any part of its assets; or
15.1.8 the Borrower has any distress for rent or other seizure under
execution or other legal process made in respect of its assets and
such distress, seizure or other legal process is not discharged or
paid out within thirty (30) days; or
15.1.9 the Borrower or an Primus Affiliate shall do, cause to be done or
permit to suffer any act or thing whereby the Lender's rights in
the Equipment are prejudiced or put in material risk of jeopardy,
in either case, to an extent which materially affects the Lender's
rights in the Equipment; or
15.1.10 any indebtedness or obligations of the Borrower for the repayment
of any borrowed monies in excess of (Pounds)100,000 becomes due and
payable prior to the specified maturity date thereof and is not
paid within fifteen (15) days of becoming due or otherwise resolved
with such creditor and such default shall continue for fifteen (15)
days after the Lender shall have given
17
the Borrower written notice specifying such default and demanding
the same to be remedied; or
15.1.11 any security created by any encumbrance created by the Borrower
where the amount secured is (Pounds)100,000 or more becomes
enforceable and either:
15.1.11.1 the indebtedness is not paid or is not otherwise
resolved with the beneficiary of the encumbrance within
fifteen (15) days of such indebtedness becoming
enforceable (whether or not such beneficiary takes
steps to enforce the same) and such default continues
for fifteen (15) days after the Lender shall have given
the Borrower written notice specifying such default and
demanding the same to be remedied; or
15.1.11.2 the beneficiary of such encumbrance takes steps to
enforce such encumbrance; or
15.1.12 the Equipment shall become encumbered by any encumbrances (save for
encumbrances created in favour of the Lender) or if the Equipment
is distrained against or otherwise seized under execution or other
legal process and not discharged or paid within 48 hours of the
distress being levied;
15.1.13 any other event should occur which would have a material adverse
effect on the ability of the Borrower, the Guarantor or any Primus
Affiliate to perform its obligations and such event shall continue
for fourteen (14) days after the Lender has given the Borrower
written notice specifying the event and demanding the same to be
remedied;
15.1.14 any event occurs under the laws of the country of incorporation of
any Primus Affiliate which has an analogous or equivalent effect to
any of the events specified in Clauses 15.1.5 to 15.1.12;
15.1.15 either the Borrower or any Primus Affiliate which owns or uses any
of the Equipment ceases to be a subsidiary of the Guarantor;
15.1.16 in respect of the Guarantor, a Change of Control occurs. For the
purpose of this Event of Default, the expression "Change of
Control" shall mean such time as:
15.1.16.1 a "person" or "group" (within the meaning of Sections
13(d) and 14(d)(2) of the US Exchange Act) becomes the
ultimate "beneficial owner" (as defined in Rule 13d-3
under the US Exchange Act) of more than 50% of the
total voting power of the then outstanding shares or
other securities of the Guarantor (on a fully diluted
basis) which ordinarily entitle the holders thereof to
voting rights;
15.1.16.2 individuals who at the beginning of any period of two
consecutive calendar years constituted the board of
directors (together with any directors who are members
of the board of directors then still in office who
either were members of the board of directors at the
beginning of such period or whose election or
nomination for election was previously so approved)
cease for any reason to constitute a majority of the
members of such board of directors then in office;
15.1.16.3 the sale, lease, transfer, conveyance or other
disposition (other than by way of merger or
consolidation), in one or a series of related
transactions, of all or substantially all of the assets
of the Guarantor and its subsidiaries taken as a whole
to any such "person" or "group" (other than to the
Guarantor, the Borrower or any Primus Affiliate);
15.1.16.4 the merger or consolidation of the Guarantor with or
into any corporation or the merger of another
corporation with or into the Guarantor with the effect
that immediately after such transaction any such
"person" or "group" or persons or entities shall have
become the beneficial owner of securities of the
surviving corporation of such merger or consolidation
representing a majority of the total
18
voting power of the then outstanding shares or other
securities of the surviving corporation which
ordinarily entitle the holders thereof to voting
rights; or
15.1.16.5 the adoption of a plan relating to the liquidation or
dissolution of the Guarantor.
15.1.17 the Borrower or any Primus Affiliate hereafter borrows monies or
incurs any indebtedness (which shall exclude any indebtedness
incurred in the ordinary course of business on arms length terms)
from the Guarantor or any Affiliate of the Guarantor on terms that
the principal sum borrowed or indebtedness incurred is repayable or
payable or any interest is payable in priority to or is not
subordinated to any amounts due to the Lender by the Borrower under
this Agreement;
15.1.18 payment demand is made for or the Borrower repays any moneys
borrowed from or indebtedness due to or the Borrower pays any other
moneys or liabilities (including interest on borrowings) to the
Guarantor or any Affiliate of the Guarantor (other than payments or
demands in the ordinary course of business on arms length terms);
15.1.19 the Borrower or any Primus Affiliate declares or pays any dividend
or makes any distribution to its members (including on a reduction
of capital) other than in the ordinary course of business;
15.1.20 any event shall occur which may reasonably be expected to be
materially detrimental to the Lender's right or ability to enforce
or recover or realise the security for the Borrower's obligations
hereunder granted to the Lender under any of the Documents;
15.1.21 any government or other consent, license or permit required for the
Borrower (or as appropriate, any Primus Affiliate) to remain in and
continue to operate substantially in the same business as it is
presently engaged in is revoked or otherwise cancelled and which
would materially adversely affect the ability of the Borrower (or,
as appropriate, the relevant Primus Affiliate) to make payment of
any amount due from any of them under any of the Documents to which
they are a party;
15.1.22 any of the Documents ceases to be in full force and effect or
ceases to be legal, valid and binding in accordance with its terms;
15.1.23 at any time it is or becomes unlawful for any of the Borrower, the
Guarantor or any Primus Affiliate to perform or comply with any or
all of its obligations under any of the Documents to which it is a
party;
15.1.24 the Borrower repudiates this Agreement or does or causes to be done
any act or thing evidencing an intention to repudiate this
Agreement;
15.1.25 any circumstances arise which give reasonable grounds in the
opinion of the Lender to the belief that any of the Borrower, the
Guarantor or any Primus Affiliate may not (or may be unable to)
perform or comply with its obligations under any Document to which
it is a party;
15.1.26 there shall, in the reasonable opinion of the Lender, occur any
circumstance or any material adverse change in the business, assets
or conditions of the Borrower or the Guarantor from that existing
at the date of this Agreement which has, or is reasonably likely to
have, a material adverse effect on the financial condition of the
Borrower or, as the case may be, the Guarantor or imperil, delay or
prevent fulfilment by the Borrower or, as the case may be, the
Guarantor of their respective obligations under, or as contemplated
by, the Documents to which either is a party;
15.1.27 any amount under the Primus Notes is not paid when due or becomes
(or would with the giving of notice or lapse of time become) due
and payable prior to the date when it would otherwise have become
due;
then, and in any such case and at any time thereafter, the Lender may by
written notice to the Borrower:
19
15.1.27.1 declare the Advances to be immediately due and payable
(whereupon the same shall become so payable together
with accrued interest thereon and any other amounts
then owed by the Borrower hereunder) or declare the
Advances to be due and payable on demand of the Lender;
and/or
15.1.27.2 declare that any undrawn portion of the Facility shall
be cancelled, whereupon the same shall be cancelled and
the Available Facility shall be reduced to zero.
15.2 If, pursuant to Clause 15.1, the Lender declares the Advances to be due and
payable on demand of the Lender, then, and at any time thereafter, the
Lender may by written notice to the Borrower:
15.2.1 call for repayment of the Advances on such date as it may specify
in such notice (whereupon the same shall become due and payable
on such date together with accrued interest thereon and any other
sums then owed by the Borrower under this Agreement) or withdraw
its declaration with effect from such date as it may specify in
such notice; and/or
15.2.2 select as the duration of any Interest Period which begins whilst
such declaration remains in effect a period of six months or
less.
16. PAYMENTS
16.1 All payments of whatsoever nature due to be made under or in connection
with this Agreement shall be made to the Lender in the currency in which
the funds were advanced or are due in immediately available funds by such
time during normal banking hours in a financial centre of the country whose
lawful currency that currency is (in the case of euros, in the principal
financial centre of such of the Participating Member States) or London or
as the Lender may reasonably specify, on the due date, to such account in
the name of the Lender as it shall previously have specified to the
Borrower.
16.2 Subject to the other provisions of this Agreement, if any amount becomes
due for payment under this Agreement on a day which is not a business day,
such payment shall be made on the next succeeding business day and interest
and other periodic payments shall be increased accordingly.
16.3 All interest under this Agreement shall accrue from day to day as well
after as before any demand therefor, judgment or the winding up or similar
process of the obligor, and shall be calculated by reference to the number
of days elapsed and (i) in the case of Sterling, a year of 365 days or (ii)
in the case of any other Optional Currency, 360 days (unless otherwise
customary in the relevant Euro-currency market).
16.4 All payments due under this Agreement shall, unless the law or any
regulation otherwise requires or in the case of manifest error, be paid in
full without set-off or counter-claim and free and clear of and without any
deduction or withholding or payment for or on account of any taxes (other
than taxes on the overall net income of the payee). If the Borrower is
required by any law or regulation to make any deduction or withholding from
any amount payable by it under this Agreement the Borrower shall promptly
notify the Lender and (subject to Clause 18.3) the amount payable by the
Borrower in respect of which such deduction or withholding is required to
be made shall be increased to the extent necessary to ensure that, after
the making of such deduction or withholding, the Lender to whom it is made
receives and is beneficially entitled to, free from any such deduction or
withholding, a net amount equal to the amount which it would have received
and been so entitled to had no such deduction or withholding been made.
16.5 If the Lender has received a tax benefit by reason of any deduction or
withholding in respect of which the Borrower has made an increased payment
under Clause 16.4 and provided the Lender has received all amounts which
are then due and payable by the Borrower under any of the provisions of
this Agreement, the Lender shall pay to the Borrower upon utilisation of
the tax benefit to secure a saving of tax that would otherwise have been
payable (to the extent that the Lender can do so without prejudicing the
amount of that tax benefit and the right of the Lender to obtain or utilise
any other benefit relief or allowance which may be available to it) such
amount, if any, as the Lender shall determine will leave the Lender in no
better and no worse position than the Lender would have been if the
deduction or withholding had been required.
16.6 The Lender shall maintain in its books a control account in which shall be
recorded (i) the amount of any Advance made or arising under this
Agreement, (ii) the amount of all principal, interest and other amounts
20
due or to become due under or in connection with this Agreement from the
Borrower to the Lender and (iii) the amount received or recovered by the
Lender under or in connection with this Agreement.
16.7 In any cause of action or proceedings arising out of or in connection with
this Agreement the entries made in the account maintained pursuant to
Clause 16.6 shall be prima facie evidence of the existence and amount of
the obligations recorded in such accounts and a certificate as to any such
entry of the Lender shall, in the absence of manifest error, be prima
facie evidence in respect thereof.
16.8 If more than one currency or currency unit are at the same time recognised
by any country as the lawful currency of that country (other than as a
result of the introduction of the euro by a participating member state),
then:
16.8.1 any reference in this Agreement to, and any obligations arising
under this Agreement in, the currency of that country shall be
translated into, or paid in, the currency or currency unit of that
country designated by the Lender; and
16.8.2 any translation from one currency or currency unit to another
shall be at the official rate of exchange recognised by the
central bank for the conversion of that currency or currency unit
into the other, rounded up or down by the Lender acting
reasonably.
16.9 If a change in any currency of a country occurs (other than as a result of
the introduction of the euro by a participating member state), this
Agreement will be amended to the extent the Lender acting reasonably and
in good faith determines is necessary to reflect the change in currency
and to put the Borrower and the Lender in the same position, so far as
possible, that they would have been in if no change in currency had
occurred.
16.10 If and to the extent that any EMU Legislation provides that an amount
denominated either in the euro or in the national currency unit of a given
Participating Member State and payable within that Participating Member
State by crediting an account of the creditor can be paid by the debtor
either in the euro unit or in that national currency unit, the relevant
person shall be entitled to pay that amount either in the euro unit or in
the national currency unit.
17. PAYMENT AND EXCHANGE RATE INDEMNITIES
17.1 Without prejudice to the other provisions of this Agreement, if the
Borrower fails to pay when due any amount due or to become due under this
Agreement (whether of principal, interest or otherwise and including any
amounts which fall due under this Clause), it shall, from the date when
such amount fell due, pay interest on the unpaid amount up to the date of
actual receipt of payment by the payee, as well after as before judgment,
or its winding-up or similar process, at the rate which is two per cent.
per annum plus the arithmetic mean (rounded up, if necessary, to the
nearest whole multiple of one-sixteenth per cent.) of the rates notified
to the Borrower by the Lender to be that at which deposits of the amount
of the unpaid amount, and for such period not exceeding three months as
the Lender may select, are offered by prime banks to the Lender in the
London Interbank Market at or about 11.00 a.m. (London time) on the second
business day before the start of the period in question. Such interest
shall be payable at the end of each period selected as aforesaid and so
long as the amount remains unpaid the resultant interest shall be
compounded at the end of such period and interest shall continue to be
calculated on the same basis at the end of each succeeding period as
aforesaid.
17.2 If any Advance or any part thereof is, for any reason whatsoever
(including, without limitation, pursuant to Clause 12.1 but excluding a
pre-payment pursuant to Clause 12.2 and a repayment pursuant to Clause
18.1), paid to the Lender on a day which is not its original maturity or
if, following receipt of a Notice of Drawdown under Clause 5.1, a proposed
Advance is not made for whatever reason (except for the fault of
Ericsson), the Borrower will pay the Lender on request such amounts as may
be necessary to compensate the Lender (as certified by the Lender together
with reasonable evidence of the calculation of such amount) for any loss
or premium or penalty incurred by it in respect of the liquidation or re-
employment of funds allocated or borrowed for the purpose of maintaining
that Advance (including, if appropriate, such amounts as are necessary to
compensate the Lender for closing out all or part of any related hedging
arrangements).
21
17.3 If under any applicable law and whether pursuant to a judgment being made
or registered against any party to this Agreement or its liquidation,
insolvency or analogous process or for any other reason, any payment due
under or in connection with this Agreement is made or falls to be
satisfied in a currency (an "alternative currency") different from that
in which the payment due is expressed to be payable (the "required
currency"), then to the extent that the payment actually received by the
party entitled to it falls short of the amount expressed to be payable
under the terms of this Agreement (when converted into the required
currency at the rate of exchange ruling (i) on the date of payment or if
that is not practicable, as soon thereafter as is practicable, or (ii) in
the case of liquidation, insolvency or analogous process of a party to
this Agreement at the rate of exchange on the latest date permitted by
applicable law for the determination of liabilities in such liquidation,
insolvency or analogous process), the payer shall indemnify and hold
harmless the party entitled thereto against the amount of such shortfall.
For these purposes "rate of exchange" means the rate at which the party
entitled to the payment under this Agreement is able on the relevant date
to purchase the required currency with the alternative currency, and
shall take into account any premium and other costs of exchange.
17.4 The indemnity in Clause 17.3 shall constitute a separate and independent
obligation of the party obliged to make the payment from its other
obligations under this Agreement and shall give rise to a separate and
independent cause of action against the party obliged to make the
payment. Any such deficiency as aforesaid shall be deemed to constitute a
loss suffered by the relevant party and the party claiming under this
Agreement shall make available to the party obliged to make the payment
calculations as to how such loss has been computed.
17.5 If the Lender at any time determines that:
17.5.1 for reasons affecting the market in euros generally, euros are not
freely available in the international Interbank market;
17.5.2 the euro has ceased to be utilised as the basic accounting unit of
the European Economic Communities;
17.5.3 the euro has ceased to be used in the European Monetary System; or
17.5.4 it is illegal, impossible or impracticable for payments to be made
under this Agreement in euros.
then, the Lender may, in its discretion, but after consultation with the
Borrower, declare (such declaration to be binding on all the parties
hereto) that the repayment of any Advance denominated in euro and any
payment of interest thereon that is due and unpaid at the time of, or
becomes due after, such declaration shall be made in a specified
component currency, in which case the amount so to be paid in such
component currency shall be computed on the basis of the equivalent of
the euro in such component currency determined in accordance with the
provisions of Council Regulation (EC) no 3320/94 of the 22nd December,
1994 (as amended from time to time) and the rates to be used shall be the
Lender's rates for the purchase in the London foreign exchange market of
the replacement currency with each of the components at or about 11.00
a.m. two business days before the day the relevant payment in the
replacement currency is due.
18. CHANGES IN CIRCUMSTANCES, TERMINATION OF COMMITMENT AND INCREASED COSTS
18.1 If any change in applicable law or regulation or in the interpretation
thereof makes it unlawful in any jurisdiction for the Borrower to perform
its obligations under this Agreement with regard to the Lender or for the
Lender to make or fund or maintain the Advances or otherwise to give
effect to its obligations contemplated by this Agreement in respect of
the Facility, then (i) the Lender shall be discharged from all
obligations to make or maintain Advances and (ii) the Borrower shall
(subject to Clause 18.3) as soon as possible but in any event within
thirty business days of demand pay to the Lender without premium or
penalty the outstanding principal amount of the Loan together with
accrued interest and any other amount expressed to be payable to the
Lender under or in accordance with the terms of this Agreement.
22
18.2 The Borrower shall (subject to Clause 18.3) from time to time immediately
on demand pay to the Lender such amounts as the Lender may reasonably
determine are sufficient to indemnify it against the cost to it, by reason
of its continuing to perform its obligations under this Agreement, of
complying with the provisions of any new or amended law or regulation or of
any request from or requirement (whether or not having the force of law) of
any central bank or other fiscal, monetary or other authority (including
any relating to taxation, reserve asset, special deposit, cash ratio,
liquidity or capital adequacy requirements or any other form of banking or
monetary control) or any change in the interpretation or administration of
such laws or regulations or request or requirement when taken in
conjunction with the performance of its obligations to the Borrower under
this Agreement provided that any such change applies generally to lending
-------------
institutions and not solely to the Lender. Any determination by the Lender
of such cost shall, in the absence of manifest error, be conclusive and
binding upon the Borrower for the purposes of this Agreement.
For the purposes of this Clause, the word "cost" shall be deemed to include
(but without limitation):
18.2.1.1 the cost of making, funding or maintaining all or any
of a class of obligations which include the obligations
undertaken or to be undertaken by the Lender under this
Agreement;
18.2.1.2 any payment (not being a payment on the Lender's
overall net income) on or calculated by reference to
obligations of a class or kind including the Lender's
obligations under this Agreement;
18.2.1.3 any deposit or restriction on lending relating or
proportional to any class or kind of obligations which
include the obligations undertaken or to be undertaken
by the Lender under this Agreement;
18.2.1.4 any reduction in the Lender's income by reason of any
of the foregoing to the extent that the same may be
attributable to or in proportion to the Lender's
obligations under this Agreement.
18.3 If any circumstances arise by reason of which the Borrower is obliged to
make any increased payment or the Lender is entitled to make any claim
under any of Clauses 16.4, 18.1 or 18.2 then, without in any way limiting,
reducing or otherwise qualifying the Borrower's obligations or the rights
of the Lender under any of those Clauses upon becoming aware of the same
the Lender shall, in consultation with the Borrower and to the extent that
it can do so without prejudice to its own position, take reasonable steps
to mitigate such effects on the Borrower of such circumstances including
the filing of any return, claim, declaration or similar document or the
transfer of its rights and obligations to another financial institution in
a manner which will avoid the circumstances in question or of its lending
office to another jurisdiction in a manner which will avoid the
circumstances in question and on terms mutually acceptable to the Borrower
and the Lender, provided that the Lender shall not be under any obligation
-------------
to take any such action, if, in the reasonable opinion of the Lender, to do
so would or might have an adverse effect upon its business, operations or
financial condition or be contrary to its policies.
19. SET-OFF
19.1 The Borrower authorises the Lender to apply any credit balance to which the
Borrower is then entitled on any account of the Borrower with the Lender at
any of its offices in or towards satisfaction of any amount then due and
payable on the occurrence of an Event of Default from the Borrower to the
Lender under this Agreement. For this purpose the Lender is authorised to
purchase with the monies standing to the credit of any such account such
other currencies as may be necessary to effect such application. The
Lender shall not be obliged to exercise any right given to it by this
Clause. The Lender shall notify the Borrower forthwith upon the exercise
or purported exercise of any right of set-off giving full details in
relation thereto.
20. WAIVERS
20.1 No failure to exercise nor any delay in exercising on the part of the
Lender of any right or remedy under this Agreement shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right
23
or remedy prevent any other exercise thereof or the exercise of any other
such right or remedy. The rights and remedies provided under or in
connection with this Agreement are cumulative and not exclusive of any
rights or remedies provided by law.
21. COSTS AND EXPENSES
21.1 The Borrower shall:
21.1.1 on demand reimburse the Lender for all out-of-pocket costs and
expenses (including, without limitation, legal fees) reasonably
incurred by it in the negotiation, preparation, execution and
delivery of the Documents and any other documents to be delivered
at any time pursuant to the Documents, provided that the Lender's
-------------
out-of-pocket costs and expenses shall be capped at a maximum of
(Pounds)30,000 (excluding VAT and disbursements) in respect of the
Documents to be delivered at the date of this Agreement (subject to
a proportionate increase in circumstances specified at the meeting
between the Lender and the Borrower on 5 July 1999);
21.1.2 pay to the Lender on demand an amount equal to all stamp and other
duties and taxes to which the Documents and/or any other documents
to be delivered at any time pursuant to the Documents are or at any
time may be subject and shall indemnify the Lender against any
liabilities, costs, claims and expenses resulting from any omission
to pay or delay in paying any such duty or tax; and
21.1.3 pay to the Lender on demand all reasonable costs, fees and expenses
(including, but not limited to, legal fees and expenses) and taxes
thereon incurred by the Lender in connection with:
(a) any variation of, or amendment or supplement to, any of the
terms of the Documents which has been requested by the
Borrower or any Primus Affiliate; and/or
(b) any consent or waiver required from the Lender in relation to
the Documents,
and in each case, regardless of whether the same is actually implemented,
completed or granted, as the case may be.
21.1.4 if an Event of Default shall have occurred and be continuing and
notice thereof shall have been given to the Borrower, pay to the
Lender on demand all relevant expenses (including the costs of
preparation of documents) payable or incurred by the Lender in
contemplation of or otherwise in connection with the enforcement of
or preservation of any rights under any of the Documents or
otherwise in respect of money owing under any of the Documents or
in respect of any breach of any representation, warranty, covenant
or undertaking herein contained, provided that such expenses were
reasonably incurred.
22. BENEFIT OF AGREEMENT AND TRANSFERS
22.1 The Lender is entitled to make a Disposition to any other person or entity,
provided that (i) the Lender shall not make a Disposition to a competitor
-------------
of the Borrower or to any person connected to such competitor (here, for
the purposes of this Clause 22.1, "connected" shall have the meaning
ascribed to it in Section 839A of the Income and Corporation Taxes Act
1988) or (ii) as a result of any such Disposition the Borrower will not be
liable to pay an additional amount pursuant to this Agreement which
additional amount would not have been payable had no such Disposition
occurred.
22.2 The Borrower shall not be entitled to assign or transfer this Agreement or
all or any of its rights, benefits, obligations and liabilities under this
Agreement to any other party.
23. NOTICES
23.1 Any communication or notice to be made or given by one person to another in
connection with this Agreement shall be made or given by letter or
facsimile transmission and (unless that person has by fifteen days' written
notice to the other specified another address or facsimile number) shall be
made or given to that person at the address or facsimile number specified
below, each communication or notice by letter being deemed to have been
made or given upon hand delivery to such address or, as the case may be,
two
24
business days after being posted to it postage prepaid in an envelope
addressed to it at that address and each communication or notice by
facsimile transmission being deemed to have been made or given when sent
provided that the sender has received a transmission receipt confirming
-------------
full transmission of the relevant facsimile, in each case.
The parties' addresses for notices are as follows:
The Lender:
Address: Xxxxxxxxxxxxx Xxxxx
0 Xxxxxxxxxxxxx Xxxxx
XXXX
Xxxxxx 0
Republic of Ireland
Attention: Operations Manager
Facsimile No: x000 0 000 0000
Each of the Borrower and the Guarantor (two copies of each):
Address: Primus Telecommunications Limited
0 Xxxxxxxx Xxxxxx
Xxxxxx XX0X ONE
Attention: Xxxxxx Xxxx/Xxxxxx Xxxxxxx
Facsimile No: x00 000 000 0000
Address: Primus Telecommunications Group Inc.
0000 Xxx Xxxxxx Xxxx
XxXxxx
Xxxxxxxx 00000
Xxxxxx Xxxxxx of America
Attention: Xxxx Xxxxxx/Xxxxx Xxxxxxx
Facsimile No: x0 000 000 0000
23.2 Each communication or document made or delivered by one party to another
pursuant to this Agreement shall be in the English language or accompanied
by a true and accurate translation thereof in English.
23.3 This Agreement may be executed in any number of counterparts, each of which
shall constitute an original document.
24. CONFIDENTIALITY
The terms and conditions of this Agreement and all disclosures made and
material exchanged or provided under or in connection with this Agreement
and all non-publicly available information about the Borrower and its
Affiliates are confidential and shall neither be disclosed (in whole or in
part) to any person nor published without the prior written consent of the
parties hereto (save that disclosure can be made to any person to whom it
is intended to make a Disposition and who has signed a confidentiality
undertaking approved (such approval not to be unreasonably withheld or
delayed) by the Borrower), provided that this Clause shall not prevent
-------------
disclosure as required by law or ministerial or judicial or parliamentary
or regulatory authority or to the legal or audit or taxation advisers or
bankers or other professional advisers of any party to this Agreement.
25. LAW
25.1 This Agreement shall be governed by and construed in accordance with
English law.
SIGNED and DELIVERED by each of the parties on the date specified at the
beginning.
25
THE FIRST SCHEDULE
NOTICE OF DRAWDOWN
To: Ericsson I.F.S.
Xxxxxxxxxxxxx Xxxxx
0 Xxxxxxxxxxxxx Xxxxx
XXXX
Xxxxxx 0
Republic of Ireland
Attention: [ ]
Date:
Dear Sirs,
NOTICE OF DRAWDOWN
We refer to the loan agreement dated [ ] 1999 (the "Agreement") entered into
between yourselves as Lender and ourselves as Borrower pursuant to which a
credit facility of up to the Facility Amount has been made available to us.
Terms defined in the Agreement shall have the same meanings when used herein.
We refer to Clause 5.3 of the Agreement and hereby request the following
Advance:
(a) the purpose of the proposed Advance is for the satisfaction of the
obligations of [the Borrower/name of Primus Affiliate] under Purchase
Orders in relation to the [purchase of Equipment/purchase of
Software/combined purchase of items of Equipment/Software/installation of
any of the above] and we attach hereto a schedule of the relevant invoices
together with copies of such invoices (the "Invoices");
(b) the amount of the proposed Advance is ____________, being the aggregate
VAT exclusive amount due under the Invoices;
(c) the currency of the proposed Advance is _____________;
(d) the Drawdown Date of the proposed Advance is the date of payment of the
Invoice; and
(e) the payment instructions for the proposed Advance are [account details of
Supplier]:
Bank:
Address:
Sort code:
Account name:
Account number:
We confirm that:
(i) we have paid 15% of the amount due under all relevant Purchase Orders and
we attach a receipted invoice from [Supplier/Ericsson Affiliate];
(ii) the representations and warranties made by us in Clause 13 of the
Agreement are true and accurate on the date hereof as if made on such
date;
(iii) the undertakings contained in Clause 14 have at all times been complied
with; and
26
(iv) no Event of Default or Potential Event of Default has occurred and is
continuing or would result from the making of the proposed Advance.
We ask that you complete and return to us the schedule of payment instalments
(as referred to in Clause 11.1 of the Agreement) which will apply in respect of
the Advance hereby requested (in the form of the Schedule set out below). After
receiving such completed schedule of payment instalments from you and subject to
being satisfied with it, we agree to sign and return it to you prior to the
Drawdown Date specified above.
Signed by:
_________________________________
Authorised Signatory
for and on behalf of
PRIMUS TELECOMMUNICATIONS LIMITED
Schedule of payments relating to the Advance
requested by the Notice of Drawdown dated ________
1. 2. 3.
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Payment Payment Principal element of each Payment*
Type Dates
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1.
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2.
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*NB 1. The amount of each Payment will be the sum of (a) the principal element
set out above and (b) an amount for accrued interest .
2. The Lender shall complete columns 2 and 3 in relation to the payment
dates and the principal element of each Payment prior the Drawdown Date
for the applicable Advance.
3. Interest will be payable on each Repayment Date calculated at the rate
set out in Clause 9.2 of the Loan Agreement.
Signed by:
____________________________
Authorised Signatory
for and on behalf of
ERICSSON I.F.S.
Dated:
Accepted:
____________________________
Authorised Signatory
for and on behalf of
PRIMUS TELECOMMUNICATIONS LIMITED
Dated:
28
THE SECOND SCHEDULE
CONDITION PRECEDENT DOCUMENTS
Part A (General Conditions Precedent)
1. In relation to the Borrower:
(a) a copy, certified to be a true and up-to-date copy by a duly
authorised officer of the Borrower, of the memorandum and articles of
association of the Borrower;
(b) a copy, certified to be a true copy by a duly authorised officer of
the Borrower, of a resolution of the board of directors of the
Borrower approving the terms of, and the transactions contemplated by,
this Agreement and resolving that it execute the Documents to which it
is a party, and authorising a specified person or persons to execute
on its behalf each of such Documents and to sign and/or despatch all
other documents and notices to be signed and/or despatched by it under
or in connection with such Documents;
(c) a certificate of a duly authorised officer of the Borrower setting out
the names and signatures of the persons authorised to sign, on behalf
of the Borrower, each of the Documents to which it is a party and any
documents to be delivered by the Borrower pursuant hereto or thereto.
2. In relation to the Guarantor:
(a) a copy, certified to be a true and up-to-date copy by a duly
authorised officer of the Guarantor, of the memorandum and articles of
association of the Guarantor;
(b) a copy, certified to be a true copy by a duly authorised officer of
the Guarantor, of a resolution of the board of directors of the
Guarantor approving the terms of, and the transactions contemplated
by, this Agreement and resolving that it execute the Documents to
which it is a party, and authorising a specified person or persons to
execute on its behalf each of such Documents and to sign and/or
despatch all other documents and notices to be signed and/or
despatched by it under or in connection with such Documents;
(c) a certificate of a duly authorised officer of the Guarantor setting
out the names and signatures of the persons authorised to sign, on
behalf of the Guarantor, each of the Documents to which it is a party
and any documents to be delivered by the Guarantor pursuant hereto or
thereto.
3. This Agreement duly executed by the Borrower and the Lender.
4. The Equipment Charge duly executed by the Borrower and the Lender.
5. The Guarantee executed by the Guarantor.
6. A copy of any other authorisation or other document, opinion or assurance
which the Lender considers to be necessary in connection with the entry
into and performance of, and the transactions contemplated by or for the
validity and enforceability of any of the Documents.
7. An opinion of Xxxxxx Xxxxxxxx, US legal counsel, acceptable to the Lender
in respect of the Guarantor.
Part B (Conditions Precedent to each Advance)
In respect of each Advance:
1. When the Equipment is to be purchased by the Borrower pursuant to any
Purchase Orders specified in the Drawdown Notice for such Advance:
29
1.1 a Charge duly executed by the Borrower;
1.2 if called upon to do so by the Lender, a letter addressed to the Lender
from the landlord of the premises at which the relevant Equipment is to be
installed or located whereby such Landlord waives all rights it may
otherwise have in such Equipment;
1.3 in relation to the Borrower:
(a) a copy, certified to be a true copy by a duly authorised officer of
the Borrower, of a resolution of the board of directors of the
Borrower approving the terms of, and the transaction contemplated by,
the Charge and resolving that it execute the Charge, and authorising a
specified person or persons to execute on its behalf the Charge and to
sign and/or despatch all other documents and notices to be signed
and/or despatched by it under or in connection with the Charge;
(b) a certificate of a duly authorised officer of the Borrower confirming
the memorandum and articles of association of the Borrower remain
unchanged since the last certified copy thereof was delivered to the
Lender under this Agreement and setting out the names and signatures
of the persons authorised to execute on its behalf the Charge and any
documents be delivered by the Borrower pursuant thereto;
2. When the Equipment is to be purchased by any Primus Affiliate pursuant to
any Purchase Orders specified in the Drawdown Notice for such Advance:
2.1 an Affiliate Undertaking duly executed by the relevant Primus Affiliate and
any documents to be delivered by such Primus Affiliate pursuant thereto;
2.2 a Charge duly executed by the relevant Primus Affiliate;
2.3 if called upon to do so by the Lender, a letter addressed to the Lender
from the Landlord of the premises at which the relevant equipment is to be
installed or located whereby such Landlord waives all rights it may
otherwise have in such Equipment;
2.4 in relation to the relevant Primus Affiliate:
(a) a copy, certified to be a true and up-to-date copy by a duly
authorised officer of such Primus Affiliate, of the constitutional
documents of such Primus Affiliate;
(b) a copy, certified to be a true copy by a duly authorised officer of
such Primus Affiliate, of a resolution of the board of directors of
such Primus Affiliate approving the terms of, and the transactions
contemplated by, the Documents to which it is a party and resolving
that it execute such Documents, and authorising a specified person or
persons to execute on its behalf such Documents and to sign and/or
despatch all other documents and notices to be signed and/or
despatched by it under or in connection with such Documents;
(c) a certificate of a duly authorised officer of such Primus Affiliate
setting out the names and signatures of the persons authorised to
execute on its behalf each of the Documents to which it is a party and
any documents to be delivered by such Primus Affiliate pursuant hereto
or thereto;
2.5 an opinion of the local legal counsel to the relevant Primus Affiliate
addressed to the Lender substantially in the form of the Fourth Schedule.
30
THE THIRD SCHEDULE
AFFILIATE UNDERTAKING
DATED
[PRIMUS AFFILIATE]
as Affiliate
and
ERICSSON I.F.S.
as Lender
and
PRIMUS TELECOMMUNICATIONS LIMITED
as Company
_________________________________
GUARANTEE UNDERTAKING
AND INDEMNITY
_________________________________
EVERSHEDS
S O L I C I T O R S
International Banking and Finance Department
Senator House, 00 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Tel: x00 00 0000 0000 Fax: x00 00 0000 0000
31
CONTENTS
1. DEFINITIONS AND INTERPRETATION....................... 34
2. GUARANTEE............................................ 35
3. INDEMNITY............................................ 35
4. CONTINUING SECURITY.................................. 36
5. ADDITIONAL SECURITY.................................. 36
6. OBLIGATION AS PRIMARY OBLIGOR........................ 36
7. DEEMED EFFECTIVENESS................................. 36
8. AFFILIATE'S REPRESENTATIONS AND WARRANTIES........... 37
9. RIGHTS OF THE LENDER................................. 37
10. RESTRICTION OF AFFILIATE'S RIGHTS AGAINST THE COMPANY 38
11. ENFORCEMENT.......................................... 39
12. COSTS & EXPENSES..................................... 40
13. NOTICES.............................................. 40
14. MISCELLANEOUS PROVISIONS............................. 40
15. LAW AND JURISDICTION................................. 41
EXECUTION PAGE........................................... 42
ANNEXURE A............................................... 43
THE FOURTH SCHEDULE...................................... 44
EXECUTION PAGE........................................... 46
32
GUARANTEE UNDERTAKING AND INDEMNITY
DATED:
BETWEEN:
(1) [PRIMUS AFFILIATE] as Affiliate;
(2) ERICSSON I.F.S. as Lender; and
(3) PRIMUS TELECOMMUNICATIONS LIMITED as Company.
RECITALS
(A) Under the terms of the Facility Agreement, the Lender has agreed to provide
a loan facility to the Company for the purpose of satisfying certain of the
payment obligations of the Company (or, as appropriate, any Primus
Affiliate) under Purchase Orders to be issued in accordance the terms of
the Supply Contract.
(B) The Company has requested that an Advance be made available by the Lender
so that the proceeds thereof (or part of them) can be advanced by the
Company to the Affiliate and applied towards the Affiliate's purchase of
the System which the Lender has agreed to do on condition that the
Affiliate enters into this Guarantee.
OPERATIVE TERMS
1. DEFINITIONS AND INTERPRETATION
1.1 Unless otherwise defined in this Guarantee or the context otherwise
requires, terms defined in or by reference in the Facility Agreement shall
have the same meaning when used in this Guarantee.
1.2 In this Guarantee:
"Affiliate" means [insert name and details of the relevant Primus
Affiliate] (and includes its successors and permitted assigns and any
person with whom it may amalgamate);
"Company" means Primus Telecommunications Limited, a company incorporated
in England with registered number 02937312 and having its registered office
at 0 Xxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX (and includes its successors and
permitted assigns and any person with whom it may amalgamate);
"Facility Agreement" means an agreement of even date between the Company
(as borrower) and the Lender (as lender) in respect of multi-currency loan
facility of up to GBP 21,250,000;
"Guaranteed Amounts" means all the sums referred to in Clause 2.1.1;
"Lender" means Ericsson I.F.S., a company incorporated in Ireland with
registered number 150734 and having its registered office at Xxxxxxxxxxxxx
Xxxxx, 0 Xxxxxxxxxxxxx Xxxxx, XXXX, Xxxxxx 0, Republic of Ireland (and
includes its successors and permitted assigns in accordance with Clause 14
and any person with whom it may amalgamate);
"Outstanding Amount" means such part of the Guaranteed Amounts as shall
from time to time be due and payable from the Company to the Lender;
"Outstanding Obligations" means any obligation on the part of the Company
assumed under the Facility Agreement in relation to the System which has
fallen due for performance in accordance with its terms;
"Parent" means Primus Telecommunications Group Inc., a company incorporated
in under the laws of the State of Delaware, USA, and having its principal
place of business at 0000 Xxx Xxxxxx Xxxx, XxXxxx, Xxxxxxxx 00000, X.X.X.
(and includes its successors and permitted assigns and any person with whom
it may amalgamate);
33
"System" means those items of Equipment, Software, Services, Training,
Installation and otherwise specified in an invoice issued by [the
Lender/Ericsson Affiliate] to the Affiliate pursuant to the Supply
Contract, a copy of which invoice is attached hereto as Annexure A.
1.3 In this Guarantee, unless the context otherwise requires:
1.3.1 any references to "person" or "persons" shall include, without
limitation, individuals, partnerships, corporations, government
agencies, committees, departments, authorities and other bodies,
corporate or unincorporated, whether having distinct legal
personality or not;
1.3.2 words (including words and expressions defined) denoting the
singular shall include the plural and vice; words importing neuter
gender shall include the masculine or feminine gender;
1.3.3 any reference to this "Guarantee" or any other agreement or document
shall be construed as a reference to this Guarantee Undertaking and
Indemnity or, as the case may be, such other agreement or document
as the same may have been, or may from time to time be, amended,
varied, novated, supplemented or extended;
1.3.4 "business day" means a day (excluding Saturday or Sunday) on which
banks are open for business in London;
1.3.5 an "en cumbrance" shall be construed as a reference to any mortgage,
pledge, lien, charge, equity, assignment by way of security,
hypothecation, security interest, title retention and any other
security arrangement and, if entered into for the purpose of raising
borrowed money, any deferred purchase, title retention, financial
lease, sale and repurchase or sale and lease-back arrangement and
any royalty, over-riding royalty, net profits interest or production
payment of any kind;
1.3.6 any reference to a statute shall be construed as a reference to such
statute as the same may have been, or may from time to time be,
amended or re-enacted; and
1.3.7 any reference to a "Clause" or "Annexure" shall be construed as a
reference to a Clause of or an Annexure to this Guarantee.
1.4 Clause headings are for ease of reference only.
2. GUARANTEE
2.1 In consideration of the Lender agreeing to make the relevant Advance (or
part of it) available for the purpose described in Recital (B) above, the
Affiliate hereby unconditionally guarantees to the Lender:
2.1.1 the due and prompt payment by the Company of all monies which are
now or shall for the time being be due owing or incurred by the
Company under the Facility Agreement in relation to the Advance
referred to in Recital (B) or that portion of it which was applied
towards the Affiliate's purchase of the System, together with all
interest and other charges due under the Facility Agreement in
relation to such amount (as well after as before any judgment)
obtained in respect thereof;
2.1.2 the due performance and observance by the Company of the obligations
on the part of the Company assumed under the Facility Agreement in
relation to the System.
3. INDEMNITY
3.1 In addition to its obligations under Clause 2 and as a separate, continuing
and independent obligation, the Affiliate hereby irrevocably agrees to
indemnify and keep the Lender fully and effectively indemnified from and
against all actions and proceedings, costs, damages, expenses, claims,
demands and losses whatsoever arising as a result of any one or more of the
following:
34
3.1.1 any failure by the Company to make any payment of any Outstanding
Amounts;
3.1.2 the guarantee in Clause 2 being or becoming unenforceable or it
being or becoming unlawful for the Affiliate to give the guarantee
set out in Clause 2;
3.1.3 the obligations of the Company under the Facility Agreement in
respect of the System becoming illegal or unenforceable;
3.1.4 the rights of the Lender under the Facility Agreement in respect of
the System being unenforceable or in any way being incapable of
being enforced in accordance with their terms or otherwise.
4. CONTINUING SECURITY
4.1 The Affiliate hereby acknowledges that:
4.1.1 the guarantee, undertaking and indemnity contained in this Guarantee
shall continue in full force and effect until all the Guaranteed
Amounts have been paid in full and all other obligations of the
Company under the Facility Agreement in respect of the System have
been performed or discharged; and
4.1.2 it shall not be released from its obligations or liabilities under
this Guarantee by any intermediate payment or performance or
satisfaction of any Outstanding Amounts or Outstanding Obligations,
but rather that this Guarantee shall continue and be binding as a
continuing security of the Affiliate.
5. ADDITIONAL SECURITY
5.1 The Affiliate acknowledges that this Guarantee shall be in addition to and
shall not be in any way affected or prejudiced by any collateral or other
security (whether merely personal or involving an encumbrance on any
property and whether from the Company or any other person whatsoever) now
or hereafter held by the Lender (or any person on behalf of the Lender) in
respect of all or any part of the monies hereby secured or obligations
hereby guaranteed nor shall such collateral or other security or any lien
to which the Lender may be otherwise entitled or the liability of any
person or persons not parties hereto for all or any part of such monies be
in any way prejudiced or affected by this Guarantee and the Lender may at
its discretion give time for payment or make any other arrangement with
any other person or persons without prejudice to this Guarantee or any
liability of the Affiliate hereunder.
6. OBLIGATION AS PRIMARY OBLIGOR
6.1 The Affiliate acknowledges that its liability under this Guarantee shall
be as a sole or primary obligor and not merely as surety and shall not be
impaired or discharged by reason of any matter, act or omission whereby
the liability of the Affiliate would have been discharged if it had been a
principal debtor.
6.2 The Affiliate hereby waives all and any of its rights as surety which may
at any time be inconsistent with any of the provisions of this Guarantee.
7. DEEMED EFFECTIVENESS
7.1 The Affiliate acknowledges that its obligations in the Guarantee shall be
deemed to be effective whether or not the Company shall have incurred any
obligations to the Lender under the Facility Agreement before or upon or
after the date hereof.
8. AFFILIATE'S REPRESENTATIONS AND WARRANTIES
8.1 The Affiliate hereby represents and warrants to the Lender as follows:
35
8.1.1 it is a corporation duly organised and validly existing under the
laws of [country of incorporation] and has all requisite corporate
power and authority to execute and deliver this Guarantee and to
perform its obligations hereunder;
8.1.2 the execution and delivery of this Guarantee and performance of its
obligations hereunder has been duly authorised by appropriate
corporate action and does not cause it to be in breach of any
agreement or undertaking;
8.1.3 this Guarantee constitutes legal and valid obligations binding on it
and enforceable against it;
8.1.4 all governmental and other organisations' approvals, licences and
consents and declarations to any applicable governmental or other
authorities and agencies in respect of the execution by the
Affiliate of this Guarantee and for the performance and observance
by it of its obligations hereunder or to render the guarantee,
undertakings and indemnity contained herein legal, valid binding,
enforceable and admissible in evidence have been obtained and remain
in full force and effect.
9. RIGHTS OF THE LENDER
9.1 Indulgence and giving of Time
The Lender may at any time, without in any case affecting the guarantee,
undertakings and indemnity contained in this Guarantee in its absolute
discretion and with or without the assent or knowledge of the Affiliate:
9.1.1 give time to the Company and/or of any other person contingently or
otherwise liable for the monies hereby secured or the obligations
hereby assumed for payment of any or all monies hereby secured or
performance or observance of obligations hereby assumed or compound
with, accept compositions from or make any other arrangement with
the Company or any such other person or persons liable in respect of
such monies or obligations;
9.1.2 neglect or forbear to enforce payment of any or all monies hereby
secured or performance or observance of obligations hereby assumed
and (without prejudice to the generality of the foregoing) grant any
indulgence or forbearance to or fail to assert or delay in asserting
any right or remedy against the Company and/or any other person
liable (whether contingently or otherwise) in respect of such monies
or obligations or fail or delay in pursuing any rights or remedies
against the Company or such other person;
9.1.3 deal with, accept, vary, exchange, renew, abstain from perfecting or
release any security or other guarantees, indemnities or rights now
held or to be held by the Lender for or on account of all or any of
the monies hereby secured or obligations hereby assumed; or
9.1.4 amend, add to or vary the terms of the Facility Agreement and/or any
other arrangement with any person or persons contingently or
otherwise liable for the monies hereby secured or obligations hereby
assumed.
9.2 Other means of Payment
The Lender may:
9.2.1 (but shall not be obliged to) resort for its benefit to any other
means of payment or performance or observance of obligations under
the Facility Agreement at any time in any other way it thinks fit
without thereby diminishing the liability of the Affiliate under
this Guarantee; and
9.2.2 enforce this Guarantee either for:
36
9.2.2.1 the payment of the balance of any Outstanding Amount after
resorting to other means of payment; or
9.2.2.2 the due performance or observance of certain Outstanding
Obligations after resorting to enforcement of some
Outstanding Obligations only; or
9.2.2.3 the payment of any Outstanding Amount notwithstanding that
other means of payment of money have not been resorted to and
without entitling the Affiliate to any benefit from such
other means of payment.
9.3 Suspense Account
For the purpose of enabling the Lender to xxx the Company or prove in its
liquidation, receivership, insolvency or administration for all monies
hereby secured or all obligations hereby undertaken to be performed by the
Affiliate or to preserve intact the liability of any person (including the
Affiliate), the Lender may at any time place and keep for such time as it
may think prudent any money received, recovered or realised under this
Guarantee in one or more separate or suspense accounts to the credit of the
Affiliate (or such other person as it shall think fit) without any
intermediate obligation on the Lender's part to apply the same or any part
thereof in or towards the discharge of the monies owing or obligations to
be observed or performed and without any intermediate right on the
Affiliate's part to xxx the Company or prove in the liquidation,
receivership or insolvency of the Company in competition with the Lender or
so as to diminish any dividend or other advantage that would or might
accrue to the Lender or so as to treat the liability of the Company as
diminished.
9.4 Foreign Currency
The Lender may apply monies received recovered or realised by the Lender
under this Guarantee in or towards payment of the purchase of any currency
required in the discharge of any obligations hereby secured which under the
terms of the Facility Agreement fall to be discharged in a different
currency from the respective payment by the Affiliate (whether or not such
purchase price includes a premium over any official or any other rate of
exchange) and in or towards payment of any costs, charges and expenses
incurred by the Lender in connection with the acquisition by the Lender of
such currency.
10. RESTRICTION ON AFFILIATE'S RIGHTS AGAINST THE COMPANY
10.1 No counter-security without the Lender's consent
The Affiliate hereby warrants that it has not and covenants that it will
not in respect of all or any part of the monies hereby secured take from
the Company (or from any subsidiary or holding company of the Company or
subsidiary of the Company's holding company), whether directly or
indirectly, without the prior written consent of the Lender any promissory
note, xxxx of exchange, mortgage, charge, assignment by way of security or
any other counter-security, whether merely personal or involving a charge
on any property whatsoever of the Company (or any subsidiary or holding
company thereof) and whether it (or any person claiming through it by
endorsement, assignment or otherwise) would or might on the liquidation of
the Company and to the prejudice of the Lender increase the proofs in such
liquidation or diminish the assets distributable amongst the creditors of
the Company.
10.2 Hold counter-security in Trust
The Affiliate hereby covenants to hold any such counter-security which the
Affiliate may have taken or may take with such consent upon trust for the
Lender as a security to the Lender for the fulfilment of the obligations of
the Affiliate under this Guarantee and forthwith to deposit such counter-
security with the Lender (or any agent nominated by the Lender for such
purpose) and the Affiliate shall account to the Lender or such agent (as
the case may be) for all monies at any time received by it in respect
thereof.
10.3 Competition and Set-Off
37
Unless and until all the monies hereby secured shall have been discharged
and satisfied in full and the Affiliate shall have been discharged, the
Affiliate shall not be entitled as against the Lender by paying off part
only of the Guaranteed Amounts or performance in part of the obligations
hereby assumed or by any other means or on any other ground to claim in the
liquidation of the Company any set-off or counterclaim against the Company
or claim or prove in competition with the Lender in respect of any payment
by it under this Guarantee or be entitled to claim or have the benefit of
any set-off, counterclaim or proof against or dividend, composition or
payment by the Company or the benefit of any other security which the
Lender may now or hereafter hold for the monies hereby secured or to have
any share therein.
10.4 Insolvent Company
10.4.1 The liquidation, receivership or insolvency of the Company shall
not affect or terminate the liability of the Affiliate under this
Guarantee.
10.4.2 All dividends, compositions and payments received by the Lender or
any trustee or agent of the Lender from the Company or any person
or persons or company liable or his or their estates and the
proceeds of any securities realised shall be taken and applied as
payments in gross without any right on the part of the Affiliate to
stand in the place of the Lender in respect of or to claim the
benefit of any such dividends, compositions or payments or security
released, received or held by the Lender until such time as the
Lender shall have received the full amount of its claim against the
Company in respect of all monies hereby secured.
11. ENFORCEMENT
11.1 Payment or Performance on Demand
Forthwith on the occurrence of any breach by the Company of any term or
provision on its part contained in the Facility Agreement in respect of the
System or upon any part of the Guaranteed Amounts having become due and
payable by the Company to the Lender, the Affiliate shall (without
prejudice to the generality of any provision of this Guarantee) on demand
of the Lender pay to the Lender such Outstanding Amounts or perform such
Outstanding Obligations.
11.2 Demand for Payment or Performance
The demand referred to in Clause 11.1 shall mean a demand for payment of an
Outstanding Amount or performance or observance of an Outstanding
Obligation made by the Lender (or on behalf of the Lender by any agent,
solicitor, secretary, manager, director or alternate director or other
officer or servant of the Lender) on the Affiliate by notice in writing and
such demand may be made when or at any time after the Lender becomes
entitled to call for payment of the Outstanding Amount or performance of
the Outstanding Obligation and separate demands may be made in respect of
separate amounts or obligations at different times.
11.3 No Withholding
Subject to Clause 11.4:
11.3.1 the Affiliate shall pay all monies due under this Guarantee in full
without any deduction, set-off, counterclaim or withholding
whatsoever; and
11.3.2 if the Affiliate shall be required by law to make any deduction or
withholding from any payment, then the Affiliate shall ensure that
such deduction or withholding will not exceed the minimum legal
liability therefor and shall forthwith pay to the Lender such
additional amount as will result in the receipt by the Lender of a
net amount equal to the amount it would have received had no such
deduction or withholding been required to be made.
11.4 If the Lender has received a tax benefit by reason of any deduction or
withholding in respect of which the Affiliate has made an increased payment
under Clause 11.3 and provided the Lender has received all amounts which
are then due and payable by the Affiliate under any of the provisions of
this Guarantee, the
38
Lender shall pay to the Affiliate upon utilisation of the tax benefit to
secure a saving of tax that would otherwise have been payable (to the
extent that the Lender can do so without prejudicing the amount of that tax
benefit and the right of the Lender to obtain or utilise any other benefit
relief or allowance which may be available to it) such amount, if any, as
the Lender shall determine will leave the Lender in no better and no worse
position than the Lender would have been if the deduction or withholding
had been required.
12. COSTS AND EXPENSES
12.1 The Affiliate hereby covenants to pay to the Lender on demand the legal and
other costs, charges and expenses from time to time reasonably incurred by
the Lender in any way in connection with the enforcement or discharge of
this Guarantee.
13. NOTICES
13.1 Any communication or notice to be made or given by the Lender to the
Affiliate in connection with this Guarantee shall be made or given by
letter or facsimile transmission and (unless the Affiliate has by fifteen
days' written notice to the Lender specified another address or facsimile
number) shall be made or given to the Affiliate at the address or facsimile
number specified below, each communication or notice by letter being deemed
to have been made or given upon hand delivery to such address or, as the
case may be, five business days after being posted to it postage prepaid in
an envelope addressed to it at that address and each communication or
notice by facsimile transmission being deemed to have been made or given
when sent provided that the sender has received a transmission receipt
confirming full transmission of the relevant facsimile, in each case.
The Affiliate's address and facsimile number for communications and notices
are as follows:
Address: [ ]
Attention: [ ]
Fax number: [ ]
14. MISCELLANEOUS PROVISIONS
14.1 Successors
This Guarantee shall enure to the benefit of and be binding upon the
respective parties hereto and any person to whom the Lender has made a
Disposition in accordance with Clause 22 of the Facility Agreement
14.2 Severability
14.2.1 If at any time any one or more of the provisions of this Guarantee
is or becomes invalid, illegal or unenforceable in any respect or
under any applicable law, then the validity, legality and
enforceability of the remaining provisions hereof shall not in any
way be affected or impaired thereby.
14.2.2 If at any time the guarantee and/or indemnity contained in this
Guarantee is or becomes invalid or unenforceable in whole or in
part against the Affiliate, then the guarantee and/or the indemnity
(as the case may be) shall be deemed to continue in full force and
effect save to the extent that such guarantee and/or the indemnity
has become invalid or unenforceable.
14.3 Waivers
No delays by the Lender in exercising or the omission by the Lender to
exercise any right, power or privilege under this Guarantee shall impair
such right, power or privilege or be construed as a waiver of such right,
power or privilege, nor shall any singular or partial exercise of any
right, power or privilege preclude any further exercise thereof or the
exercise of any other right, power or privilege.
39
14.4 Exercise of Rights
The rights and remedies provided in this Guarantee are cumulative and not
exclusive of any rights and remedies provided by law or otherwise.
14.5 Amendments
No modification of any provision of this Guarantee shall be binding unless
the same shall be evidenced in writing duly executed by the Affiliate, the
Lender and the Company.
15. LAW AND JURISDICTION
15.1 Governing Law
This Guarantee is governed by, and shall be construed in accordance with,
English law.
15.2 Submission to jurisdiction
For the benefit of the Lender, the Affiliate agrees that the courts of
England are to have jurisdiction to settle any disputes which may anise in
connection with the legal relationships established by this Guarantee
(including, without limitation, claims for set-off or counterclaim) or
otherwise arising in connection with this Guarantee.
15.3 The Affiliate irrevocably waives any objections on the ground of venue or
forum non conveniens or any similar grounds.
15.4 The submission to jurisdiction of the courts contained in Clause 15.2 shall
not (and shall not be construed so as to) limit the right of the Lender to
take any proceedings against the Affiliate in any other court of competent
jurisdiction nor shall the taking of the proceedings in any one or more
jurisdictions preclude the taking of proceedings in any other jurisdiction,
whether concurrently or not.
15.5 Process Agent
The Affiliate shall at all times maintain an agent for service of process
in England. Such agent shall be the Company and any writ, judgment or
other notice of legal process shall be sufficiently served on the Affiliate
if delivered to the Company at its address above.
15.6 The Company hereby acknowledges and consents to such appointment.
IN WITNESS WHEREOF this Guarantee Undertaking and Indemnity has been executed
and delivered as a deed by the Affiliate and executed under hand by the Lender
on the date stated at the beginning.
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EXECUTION PAGE
AFFILIATE
EXECUTED for )
[PRIMUS AFFILIATE] )
by: )
......................
Director
......................
Director
LENDER
SIGNED for and on behalf of )
ERICSSON I.F.S. by: )
......................
Authorised Signatory
COMPANY
SIGNED for and on behalf of )
PRIMUS TELECOMMUNICATIONS LIMITED )
by: )
......................
Authorised Signatory
41
ANNEXURE A
[A copy of the relevant invoice is to be attached]
42
THE FOURTH SCHEDULE
FORM OF LEGAL OPINION TO BE GIVEN BY
LOCAL LEGAL COUNSEL TO PRIMUS AFFILIATE
[TO BE TYPED ON LOCAL LEGAL COUNSEL'S LETTERHEADED NOTEPAPER]
To: Ericsson I.F.S.
Xxxxxxxxxxxxx Xxxxx
0 Xxxxxxxxxxxxx Xxxxx
XXXX
Xxxxxx 0
Republic of Ireland
Dear Sirs
1. Introduction
1.1 We give this opinion as special counsel on behalf of Ericsson IFS in
connection with a facility agreement dated _______ 1999 (the "Facility
Agreement") between Primus Telecommunications Limited (as borrower) and
Ericsson IFS (as lender) relating to a multi-currency credit facility of
up to an aggregate amount of (Pounds)21,250,000. Terms defined in or by
reference in the Facility Agreement shall have the same meanings herein.
2. DOCUMENTS EXAMINED
2.1 For the purpose of this opinion, we have examined and rely on:
2.1.1 an executed copy of [describe the applicable Affiliate
Undertaking];
2.1.2 an executed copy of [describe the applicable Charge];
2.1.3 [list any other documents that local counsel examined in order to
give this opinion].
3. OPINION
3.1 Based on and subject to the documents we have examined and the
assumptions, exceptions, qualifications and reservations set out
herein/1/, we are of the opinion that:
3.1.1 the Company is duly constituted and validly existing under the laws
of its state of incorporation;
3.1.2 the Company has full power, capacity and authority to own its
assets, to carry on its business as is now being carried on and to
discharge liabilities and perform obligations of the nature
specified in the Affiliate Undertaking and the Charge;
3.1.3 the Affiliate Undertaking and the Charge constitutes the Company's
legal, valid and binding obligations enforceable against it;
3.1.4 the persons who execute the Affiliate Undertaking and the Charge on
behalf of the Company are duly authorised to do so and to bind the
Company to its obligations under the Affiliate Undertaking and the
Charge;
_______________
/1/ Local counsel should include such assumptions, exceptions,
qualifications and reservations as are necessary to take account of
local law.
43
3.1.5 the execution and delivery of the Affiliate Undertaking and the
Charge and the performance of the obligations and discharge of the
liabilities, contemplated therein do not and will not violate any
law or regulation in the [insert applicable jurisdiction] and are
not in conflict or inconsistent with the terms of any [insert
applicable jurisdiction] law;
3.1.6 all actions, conditions, consents and other requirements of [insert
applicable jurisdiction] law and of the Company's constitutional
documentation have been taken, fulfilled and observed so as to
enable the Company to incur and perform the obligations and
discharge the liabilities created by the Affiliate Undertaking and
the Charge;
3.1.7 it is not necessary for the legality, validity and enforceability or
admissibility in evidence of the Affiliate Undertaking and the
Charge that either of the documents be filed and recorded or
registered with any court or authority in or of [insert applicable
jurisdiction] and that no stamp duty, registration or other similar
tax is payable in [insert applicable jurisdiction];
3.1.8 the choice of English law to govern the Affiliate Undertaking and
the Charge is a valid choice under the laws of [insert applicable
jurisdiction] and will be enforced by a court in [insert applicable
jurisdiction] and that the Company's submission to the jurisdiction
of the English courts and its appointment of an agent to service of
process in England is valid;
3.1.9 it is not a requirement under [insert applicable jurisdiction] law
that the Lender be licenced, qualified or entitled to carry on
business in [insert applicable jurisdiction] in order to be able to
enter into, execute, deliver and enforce its rights under either of
the Affiliate Undertaking and the Charge;
3.1.10 the Lender will not become subject to taxation in [insert applicable
jurisdiction] solely by virtue of entering into the Affiliate
Undertaking and the Charge; and
3.1.11 no further action whatsoever (whether on the part of the Lender, the
Borrower, the Company or any other party) is required to ensure
that, following the occurrence of an Event of Default, the Lender
can recover actual physical possession of the equipment to which the
Charge relates;
3.1.12 [any other aspects which Counsel considers relevant].
NB Counsel is also required to advise as to whether any priority or
subordination arrangements will be required to be entered into with creditors of
the Company in order to ensure that the Lender has a first ranking security
interest created in its favour over the equipment to which the Charge relates.
44
EXECUTION PAGE
BORROWER
PRIMUS TELECOMMUNICATIONS LIMITED
By: ___________________________
Name:
Title:
LENDER
ERICSSON I.F.S.
By: ___________________________
Name:
Title:
45
