*Indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed separately with the Securities and
Exchange Commission.
CONFORMED COPY
MIH LIMITED
- and -
VILLIERS SECURITIES LIMITED
- and -
ABSA BANK LIMITED
-----------------------
AMENDMENT AGREEMENT
in respect of the Facilities Agreement
dated 10 December 1999 relating
to a loan and guarantee facility of
US$62,000,000, to be increased to
US$115,000,000 in accordance with
this AMENDMENT AGREEMENT
------------------------
MIH LIMITED
- and -
ABSA BANK LIMITED
-----------------------
AMENDED AND RESTATED
FACILITIES AGREEMENT
relating to a loan and guarantee
facility of US$115,000,000
------------------------
TABLE OF CONTENTS
1 Interpretation........................................................ 1
2 Conditions Precedent.................................................. 1
3 Representations and Warranties........................................ 2
4 Fees and Expenses and Stamp Duty...................................... 2
5 Amendments to Facilities Agreement.................................... 3
6 Incorporation of Terms of the Facilities Agreement.................... 3
7 Existing Facilities................................................... 3
8 Designation of this Agreement as a Security Document.................. 3
9 Counterparts.......................................................... 3
10 Law and Jurisdiction.................................................. 3
TABLE OF CONTENTS
1 Interpretation........................................................ 1
2 The Facilities........................................................ 8
3 Loan Facility......................................................... 9
4 Repayment.............................................................10
5 Prepayment and Cancellation...........................................10
6 Interest Periods......................................................10
7 Interest..............................................................11
8 Certificates and Determination........................................11
9 Guarantee Facility....................................................11
10 Indemnity.............................................................12
11 Guarantee Commission..................................................13
12 Cash Collateral.......................................................13
13 Payments and Default Interest.........................................14
14 Changes in Circumstances..............................................15
15 Representations and Warranties........................................16
16 Conditions Precedent..................................................17
17 Undertakings..........................................................19
18 Financial Information.................................................22
19 Financial Covenants...................................................23
20 Demand Events.........................................................25
21 Fees..................................................................27
22 Set-off...............................................................27
23 Stamp Duties..........................................................27
24 Delay and Remedies Cumulative.........................................28
25 Notices...............................................................28
26 Currency Indemnity....................................................28
27 Assignments...........................................................28
28 Costs.................................................................29
29 Severability..........................................................29
30 Counterparts..........................................................29
31 Existing Facilities...................................................29
32 Law and Jurisdiction..................................................29
DATE: as of 30 March 2001 CONFORMED COPY
PARTIES:
(1) MIH Limited ("MIH"), a company incorporated in the British Virgin
Islands, registered number I.B.C. No.: 47572;
(2) Villiers Securities Limited ("Villiers"), a company incorporated in
Mauritius, registered number 19334/3571; and
(3) ABSA Bank Limited (the "Bank") acting through its London Branch at
00/00 Xxxxxxxxxxx Xxxxxx Xxxxxx XX0X 0XX.
OPERATIVE PROVISIONS:
1 Interpretation
1.1 In this agreement, unless the context otherwise requires:
"Existing Guarantees" has the meaning given in the Facilities
Agreement set out in Schedule 2 to this agreement;
"Facilities Agreement" means the facilities agreement relating to a
loan and guarantee facility of US$62,000,000 dated 10 December 1999
between the parties to this agreement as amended by a side-letter
dated 20 April 2000 from the Bank to MIH and Villiers;
"Obligors" has the meaning given in the Facilities Agreement set out
in Schedule 2 to this agreement;
"Open TV" has the meaning given in the Facilities Agreement set out in
Schedule 2 to this agreement;
"Open TV Share Charge" has the meaning given in the Facilities
Agreement set out in Schedule 2 to this agreement;
"Security Document" has the meaning given in the Facilities Agreement
set out in Schedule 2 to this agreement;
terms defined and expressions used in the Facilities Agreement have
the same meaning in this agreement unless otherwise stated or the
context does not permit;
a reference to a "Clause" or a "Schedule" is a reference to a clause
or a schedule of this agreement;
a reference to this or any other agreement or document is a reference
to the same as from time to time amended, novated or supplemented,
before or after the date of this agreement.
2 Conditions Precedent
The amendments and confirmations set out in Clause 5 and 6 are
conditional upon and shall not be effective until such time (the
"Effective Time") as the Bank has confirmed to each of MIH and
Villiers that it has received each of the items mentioned in Schedule
1, each in form and substance satisfactory to it, provided that the
Bank may waive on such terms as it thinks fit any of the foregoing in
whole or in part and it is further agreed and acknowledged by the Bank
that if
1
South African Reserve Bank approval is required for the entry into of
any Security Document (other than the Open TV Share Charge and the UBC
Share Charge and this agreement) the Bank will waive any conditions
precedent in so far as they relate solely to the entry into of such
Security Document and it is further agreed and acknowledged that each
Security Document (other than the Open TV Share Charge and the UBC
Share Charge and this agreement) shall include a provision to the
effect that such document shall only take effect to the extent that no
South African Reserve Bank approval is required for the entry into of
such document.
3 Representations and Warranties
3.1 Each of MIH and Villiers makes the representations and warranties in
Clauses 3.2 to 3.6 for the benefit of the Bank as of the date of this
agreement.
3.2 It has the power to make and carry out the terms of this agreement and
has taken all necessary corporate action to authorise the execution,
delivery and performance of this agreement.
3.3 This agreement constitutes the legally binding obligations of it
enforceable in accordance with its respective terms.
3.4 The making and performance of this agreement does not and will not:
3.4.1 violate any provision of:
(a) any law or regulation or any order or decree of any
governmental authority or agency or of any court in
any respect;
(b) the laws and documents incorporating and constituting
it in any respect; or
(c) any mortgage, contract or other undertaking to which
it is a party or which is binding upon it or any of
its assets in any material respect;
3.4.2 result in the creation or imposition of any security interest,
lien, charge or other encumbrance on any of its assets
pursuant to the provisions of any such mortgage, contract or
other undertaking.
3.5 It has received or obtained every consent of, licence from or
exemption by any governmental or administrative body or authority
required to authorise or required in connection with the performance,
validity or enforceability of this agreement and the same are valid
and subsisting.
3.6 The representations and warranties contained in Clauses 15.2 to 15.9
of the Facilities Agreement are true and correct as at the date of
this agreement with reference to the facts and circumstances existing
at the time of this agreement.
4 Fees and Expenses and Stamp Duty
4.1 MIH shall pay to the Bank an arrangement fee of * on the signing date
of this agreement.
2
4.2 MIH shall pay all reasonable costs and expenses and registration
charges (including legal fees and value added tax) incurred or to be
incurred by the Bank in the negotiation and preparation of this
agreement.
4.3 MIH shall pay and indemnify the Bank in respect of any stamp duties
and like taxes or charges (if any) which may be payable or determined
to be payable in connection with the making, performance or
enforcement of this agreement.
5 Amendments to Facilities Agreement
5.1 The Facilities Agreement shall be, and is hereby amended so as to be,
in the form set out in Schedule 2 hereto and shall take effect in such
form from the Effective Time.
5.2 The amendments effected pursuant to Clause 5.1 shall not prejudice any
of the rights or remedies (including in respect of Demand Events)
which may have arisen in favour of the Bank with respect to each or
any of the Obligors prior to the time that the amendments effected
pursuant to Clause 5.1 become effective pursuant to Clause 2 and such
rights and remedies shall be deemed to be continuing and unwaived if
they would have been continuing and unwaived but for the execution,
delivery and performance of this agreement.
6 Incorporation of Terms of the Facilities Agreement
The terms and conditions of the Facilities Agreement are hereby
incorporated mutatis mutandis to the fullest extent not inconsistent
with this agreement and as if any reference to the Facilities
Agreement included a several reference to this agreement and to the
Facilities Agreement as amended by this agreement. This agreement is
supplemental to the Facilities Agreement and shall be read as one with
it. Save as otherwise specified in this agreement, the Facilities
Agreement remains in full force and effect.
7 Existing Facilities
From the Effective Time, Villiers shall cease to be entitled to use
any facilities previously made available by the Bank and MIH shall
cease to be entitled to use any facilities previously made available
by the Bank otherwise than in accordance with the Facilities Agreement
in the form set out in Schedule 2.
8 Designation of this Agreement as a Security Document
This agreement is a Security Document.
9 Counterparts
This agreement may be executed in any number of counterparts, and this
has the same effect as if the signatories on the counterparts were on
a single copy of this agreement.
10 Law and Jurisdiction
10.1 This agreement shall be governed by and construed in accordance with
English law.
3
10.2 Each of MIH and Villiers agrees for the benefit of the Bank that the
courts of England shall have jurisdiction to hear and determine any
suit, action or proceeding and to settle any disputes, which may arise
out of or in connection with this agreement and, for such purposes,
irrevocably submits to the jurisdiction of such courts.
10.3 Each of MIH and Villiers irrevocably waives any objection which they
might now or hereafter have to the courts referred to in Clause 10.2
being nominated as the forum to hear and determine any suit, action or
proceeding, and to settle any disputes, which may arise out of or in
connection with this agreement and agrees not to claim that any such
court is not a convenient or appropriate forum.
10.4 The submission to the jurisdiction of the courts referred to in Clause
10.2 shall not (and shall not be construed so as to) limit the right
of the Bank to take proceedings against MIH or Villiers or any party
to any Security Document in any other court of competent jurisdiction
nor shall the taking of proceedings in any one or more jurisdictions
preclude the taking of proceedings in any other jurisdiction, whether
concurrently or not.
10.5 Each of MIH and Villiers agrees that the process by which any suit,
action or proceeding against it in England is begun may be served on
it by being delivered to Xxxxxx Xxxxx Sapte at 0 Xxxxx Xxxxx, Xxxxxx
XX0X 0XX.
IN WITNESS whereof the parties hereto have caused this agreement to be duly
executed on the date first above written
4
SCHEDULE 1
CONDITIONS PRECEDENT DOCUMENTS
1 Each of the Security Documents duly executed and delivered by the
parties thereto together with (to the extent necessary) duly executed
transfer forms of the relevant shares in favour of the Bank (or its
nominee) and the corresponding share certificates and such other
documents and information as the Bank may in its discretion require to
enable the relevant charge to be perfected together with written
confirmation (and/or other evidence satisfactory to the Bank) from
each of the Obligors that has entered into a Security Document prior
to the date of this agreement that each of the amendments referred to
in this agreement is binding on it and that its obligations, and the
security created by it, contained in each such Security Document are
not discharged, impaired or otherwise affected by any of them and
remain in full force and effect notwithstanding the entry into of this
agreement.
2 In relation to Villiers and each of the Obligors and Open TV:
(i) certified true and up-to-date copies of the constitutional
documents of Villiers and each of the Obligors and Open TV
together with certificates addressed to the Bank from a duly
authorised officer of Villiers and each Obligor setting out
the names and signatures of the persons authorised to execute
on behalf of Villiers or such Obligor this agreement and/or
each Security Document to which it is to become a party after
the date of this agreement and/or the confirmations referred
to in paragraph 1 above and confirming such other matters as
the Bank may require;
(ii) certified true copies of board resolutions or other necessary
corporate action required to authorise the execution, delivery
and performance by Villiers and each of the Obligors of this
agreement and/or each Security Document to which it is to
become a party after the date of this agreement and/or the
confirmations referred to in paragraph 1 above and authorising
appropriate persons to execute and deliver the same on their
respective behalves;
(iii) evidence satisfactory to the Bank that all necessary approvals
have been given or obtained by each party to this agreement
and/or each Security Document to which it is to become a party
after the date of this agreement and/or the confirmations
referred to in paragraph 1 above to give effect to the
transactions contemplated hereby or thereby.
3 A copy, certified true by a director or the secretary of MIH, of the
corporate structure chart of MIH and its Subsidiaries.
4 Such evidence of the appointment of process agents in England and the
acceptance of such appointments as the Bank may require in respect of
the Security Documents.
5 All legal and other matters in relation to the Security Documents and
the Existing Guarantees and the transactions contemplated by this
agreement and the other Security Documents and the Existing Guarantees
shall be in form and substance satisfactory to the Bank.
6 Opinions from its Thai, Xxxxx, Xxxxxxxxxx, Xxxxxxx Xxxxxx Xxxxxxx,
Xxxx Xxxx and Californian legal advisers in relation to the Security
Documents, together with such
5
opinions from legal advisers in such other jurisdictions as the Bank
in its sole and absolute discretion may require.
6
SCHEDULE 2
AMENDED AND RESTATED FACILITIES AGREEMENT
7
DATE: 10 December 1999
PARTIES:
(1) MIH Limited ("MIH"), a company incorporated in the British Virgin
Islands, registered number I.B.C. No.: 47572; and
(2) ABSA Bank Limited (the "Bank") acting through its London Branch at
00/00 Xxxxxxxxxxx Xxxxxx Xxxxxx XX0X 0XX.
WHEREAS the Bank has agreed to make available to the Borrower a loan facility
and a guarantee facility aggregating US$115,000,000 upon and subject to the
terms of this agreement.
OPERATIVE PROVISIONS:
1 Interpretation
1.1 In this agreement, unless the context otherwise requires:
"Advance" means the principal amount of a borrowing made by the
Borrower hereunder or, as the context may require, the principal
amount thereof for the time being outstanding (but, excluding, for the
avoidance of doubt, any Guarantees issued by the Bank at the request
of the Borrower) (together, the "Advances");
"Amendment Agreement" means an amendment agreement dated as of 30
March 2001 between MIH, Villiers and the Bank;
"Borrower" means MIH;
"Business Day" means a day (other than a Saturday or a Sunday) on
which in the City of London and New York City banks are open for
ordinary banking business;
"Default Rate" means the rate determined by the Bank to be the rate
which would have been payable if, during the period of non-payment
thereof, the overdue amount had constituted an Advance under this
agreement, made for successive Interest Periods of such duration as
the Bank may from time to time select, plus an additional 2% per
annum. Such interest shall be compounded at the end of such selected
Interest Period;
"Demand Event" means any of the events referred to in Clause 20.1;
"Existing Guarantees" means the guarantees issued by the Bank in
favour of Ergobank S.A. in respect of facilities granted to
Subsidiaries of NetMed Hellas SA and issued on 30 July 1998 and 25
November 1999 and in the amounts of Greek Drachma 1,920,000,000 and
1,080,000,000 respectively and the guarantee issued by the Bank in
favour of NetMed Hellas SA and issued on 23 February 2000 and in the
amount of Greek Drachma 2,000,000,000 respectively and in each case
includes any replacements thereof that may be issued in the discretion
of the Bank prior to the date that the conditions set forth in Clause
16 have been satisfied;
"Facilities" means the Loan Facility and the Guarantee Facility (each,
a "Facility");
"Final Repayment Date" means the date falling 3 years from the date of
the Amendment Agreement;
1
"Financial Indebtedness" means indebtedness in respect of (i) money
borrowed or raised; (ii) debit balances at any bank; (iii) any bond,
note, loan, loan stock, debenture or similar instrument or security;
(iv) acceptance or documentary credit facilities or xxxx discounting,
note purchase or factoring facilities other than those entered into on
a non-recourse basis; (v) the payment for assets or services acquired
deferred in excess of a period of 30 days; (vi) rental payments under
leases (whether in respect of land, machinery, equipment or otherwise)
which are accounted for as finance leases in accordance with
accounting principles, concepts, bases and policies generally adopted;
and (vii) guarantees, indemnities or other similar assurances against
financial loss in respect of indebtedness of any person in respect of
any of the types referred to in paragraphs (i) to (vi) inclusive of
this definition. For the avoidance of doubt, Financial Indebtedness
shall not include (a) operating leases, and those relating to
transponder leases (whether or not such transponder leases would
otherwise fall within this definition of Financial Indebtedness) (b)
non-interest bearing programme and film rights payable and (c)
performance guarantees in relation to programming (including film
rights) contracts and shall also not include guarantees, indemnities
or other similar assurances against financial loss in respect of any
of such leases, rights or guarantees;
"Guarantee" means a guarantee or bond or similar instrument requested
by the Borrower to the Bank to be issued by the Bank including
(subject to Clause 9.5) the Existing Guarantees (together
"Guarantees");
"Guarantee Facility" means the U.S. Dollar and Optional Currency
guarantee facility referred to in Clause 2.2;
"Guarantors" means MIH, MIH Finance, MIH Luxembourg, MultiChoice,
Myriad Africa, Myriad Asia, Myriad, Mindport, MHL, MHSA, MISA and OTV
Holdings (each, a "Guarantor");
"Interest Period" means, in relation to an Advance, each period
ascertained in accordance with Clause 6.1 commencing on the date on
which such Advance is made;
"Irdeto" means Irdeto Access B.V., a company incorporated in the
Netherlands, registered number 34073774;
"Loan Facility" means the U.S. Dollar revolving loan facility referred
to in Clause 2.1;
"Margin" means, in relation to each Advance, two per cent. per annum;
"Material Adverse Effect" means any effect which, in the reasonable
opinion of the Bank, might reasonably be expected to affect the
business, assets or financial condition of the MIH Group as a whole in
a manner which might reasonably be expected to materially affect the
ability of the Obligors to comply with their obligations under any
Security Document;
"MHL" means Mindport Holdings Limited, a company incorporated in the
British Virgin Islands, registered number 317650;
"MHL Guarantee" means a guarantee and indemnity from MHL to the Bank
in respect of obligations of the Obligors in a form acceptable to the
Bank;
2
"MHSA" means Mindport Holdings S.A., a company incorporated in
Luxembourg, registered number R.C.B. 72.435;
"MHSA Guarantee" means a guarantee and indemnity from MHSA to the Bank
in respect of obligations of the Obligors in a form acceptable to the
Bank;
"MIH China" means MIH China Limited, a company incorporated in Hong
Kong registered No.592359;
"MIH China Share Charge" means a charge or pledge by Myriad Asia in
favour of the Bank in a form acceptable to the Bank over all the
right, title and interest of Myriad Asia in and to its shares in the
capital of MIH China, securing all liabilities of the Obligors to the
Bank from time to time;
"MIH Finance" means MIH Finance (BVI) Limited, a company incorporated
in the British Virgin Islands, registered number 436993;
"MIH Finance Guarantee" means a guarantee and indemnity from MIH
Finance to the Bank in respect of obligations of the Obligors in a
form acceptable to the Bank;
"MIH Group" means MIH and each of its Subsidiaries (other than Open TV
and its Subsidiaries and M-Web Holdings Limited) and "MIH Group
Company" means any one of them;
"MIH Guarantee" means a guarantee and indemnity from MIH to the Bank
in respect of obligations of the Obligors in a form acceptable to the
Bank;
"MIH Luxembourg" means MIH S.a.r.l., a company incorporated in
Luxembourg;
"MIH Luxembourg Guarantee" means a guarantee and indemnity from MIH
Luxembourg to the Bank in respect of obligations of the Obligors in a
form acceptable to the Bank;
"MIH Luxembourg Share Charge" means a pledge by MIH in favour of the
Bank in a form acceptable to the Bank over all the right, title and
interest of MIH in and to its shares in the capital of MIH Luxembourg,
securing all liabilities of the Obligors to the Bank from time to
time;
"Mindport" means Mindport B.V., a company incorporated in the
Netherlands, registered number 34083174;
"Mindport Guarantee" means a guarantee and indemnity from Mindport to
the Bank in respect of obligations of the Obligors in a form
acceptable to the Bank;
"Mindport Share Charge" means a pledge by Mindport in favour of the
Bank in a form acceptable to the Bank over all the right, title and
interest of Mindport in and to its shares in the capital of Irdeto,
securing all liabilities of the Obligors to the Bank from time to
time;
"MISA" means Mindport Investments S.A., a company incorporated in
Luxembourg, registered number R.C.B. 72.436;
"MISA Guarantee" means a guarantee and indemnity from MISA to the Bank
in respect of obligations of the Obligors in a form acceptable to the
Bank;
3
"MISA Share Charge" means a pledge by MISA in favour of the Bank in a
form acceptable to the Bank over all the right, title and interest of
MISA in and to its shares in the capital of Mindport, securing all
liabilities of the Obligors to the Bank from time to time;
"MultiChoice" means MultiChoice Africa Limited, a company incorporated
in the British Virgin Islands, registered number I.B.C. No.: 14927;
"MultiChoice Africa Guarantee" means a guarantee and indemnity from
MultiChoice to the Bank in respect of obligations of the Obligors in a
form acceptable to the Bank;
"Myriad" means Myriad International Holdings B.V., a company
incorporated in the Netherlands, registered number 34099856;
"Myriad Africa" means Myriad Holdings Africa B.V., a company
incorporated in the Netherlands, registered number 34093407;
"Myriad Africa Guarantee" means a guarantee and indemnity from Myriad
Africa to the Bank in respect of obligations of the Obligors in a form
acceptable to the Bank;
"Myriad Asia" means Myriad International Holdings Asia B.V., a company
incorporated in the Netherlands, registered number 34097195;
"Myriad Asia Guarantee" means a guarantee and indemnity from Myriad
Asia to the Bank in respect of obligations of the Obligors in a form
acceptable to the Bank;
"Myriad BV Share Charge" means a pledge or pledges by Myriad in favour
of the Bank in a form acceptable to the Bank over all the right, title
and interest of Myriad in and to its shares in each of Myriad Africa,
Myriad Asia and NetMed, securing all liabilities of the Obligors to
the Bank from time to time;
"Myriad Guarantee" means a guarantee and indemnity from Myriad to the
Bank in respect of obligations of the Obligors in a form acceptable to
the Bank;
"Myriad Share Charge" means a pledge by MIH Luxembourg in favour of
the Bank in a form acceptable to the Bank over all the right, title
and interest of MIH Luxembourg in and to its shares in the capital of
Myriad, securing all liabilities of the Obligors to the Bank from time
to time;
"NASDAQ" means The NASDAQ Stock Market, Inc.;
"NetMed" means NetMed N.V., a company incorporated in the Netherlands,
registered number 34093295;
"New Subscription Proceeds" means the gross proceeds of any issue of
any equity securities after the date of this agreement by MIH in
connection with any listing of the shares in MIH (or any other MIH
Group Company other than an Obligor or other MIH Group Company whose
shares are intended to be the subject of security in favour of the
Bank pursuant to the Security Documents) on NASDAQ including
US$183,000,000 representing the gross proceeds of the placement of
equity securities by MIH during April 2000 less in each case all costs
and expenses of that issue;
"Obligors" means each of the Borrower and the Guarantors and Irdeto
and NetMed (each, an "Obligor");
4
"Open TV" means OpenTV Corp., a company incorporated in the British
Virgin Islands, registered number 346535;
"Open TV Share Charge" means a pledge or charge by OTV Holdings in
favour of the Bank in a form acceptable to the Bank over all the
right, title and interest of OTV Holdings in and to its shares in the
capital of Open TV, securing all liabilities of the Obligors to the
Bank from time to time;
"Optional Currency" means Sterling and any other currency (other than
U.S. Dollars) which the Bank has agreed with the Borrower should be
made available;
"Original Subscription Proceeds" means US$130,000,000;
"OTV Holdings" means OTV Holdings Limited, a company incorporated in
the British Virgin Islands, registered number 347544;
"OTV Holdings Guarantee" means a guarantee and indemnity from OTV
Holdings to the Bank in respect of obligations of the Obligors in a
form acceptable to the Bank;
"Outstanding Guarantee" means at any time a Guarantee issued by the
Bank in respect of which the Bank may have in its opinion any actual
or contingent liability;
"Permitted Disposal" means any disposal:
(i) in the ordinary course of trade and on arm's length terms;
(ii) by any Subsidiary to an Obligor (other than MHL, MHSA, MISA,
Mindport, Irdeto or NetMed) or by any Subsidiary (other than
an Obligor) to any Subsidiary;
(iii) of cash where such disposal is not otherwise prohibited by
this agreement;
(iv) which constitutes the creation of a Permitted Security
Interest;
(v) in exchange for assets (other than cash or cash equivalents)
comparable or superior as to type, value and quality;
(vi) of receivables or property under receivables financing or
securitisation arrangements on commercial terms;
(vii) on arm's length terms where the whole of the proceeds of such
sale, transfer or disposal (after the deduction of all
reasonable costs, fees and expenses) are retained by the MIH
Group pending reinvestment in a manner not otherwise
prohibited by this agreement;
"Permitted Security Interest" means
(i) any Security Interest over or affecting (a) any asset acquired
by a MIH Group Company after the date hereof and subject to
which such asset is acquired or (b) any asset of any company
which becomes a MIH Group Company after the date of this
agreement where such Security Interest is created prior to the
date on which such company becomes a MIH Group Company,
provided that, in each case:
(a) such Security Interest was not created in
contemplation of the acquisition of such asset by a
MIH Group Company or the
5
acquisition of such company;
(b) the amount thereby secured has not increased in
contemplation of, or since the date of, the
acquisition of such asset by a MIH Group Company or
the acquisition of such company;
(c) that Security Interest is discharged within 6 months
of the date of the acquisition;
(ii) any netting or set-off arrangement entered into by any MIH
Group Company in the ordinary course of its banking
arrangements;
(iii) any netting or set-off arrangement under any agreement for any
interest rate swap, currency swap, forward foreign exchange
transactions, cap, floor, collar or option transaction or any
combination thereof or any other derivative transaction
entered into in connection with protection against or benefit
from fluctuation in any rate or price (but not any related
arrangement for the provision of cash collateral or any other
related Security Interest, except as otherwise permitted
hereunder);
(iv) any title transfer or retention of title arrangement entered
into by any MIH Group Company in the ordinary course of its
trading activities on the counterpart's standard or usual
terms or any liens arising in the ordinary course of trade by
operation of law;
(v) any Security Interest created or subsisting with the prior
consent of the Bank or in favour of the Bank;
(vi) any Security Interest subsisting at the date of this agreement
provided that the aggregate value (taking the higher of book
value or market value for the relevant asset) of the assets
subject to such Security Interests does not exceed
US$2,000,000);
(vii) any Security Interest over any asset acquired by a MIH Group
Company which was created solely for the purpose of securing
indebtedness incurred only to finance the price or
construction costs of such asset;
(viii) any Security Interest over shares in companies which are not
Obligors or intended to be the subject of security in favour
of the Bank pursuant to the Security Documents;
(ix) any Security Interest created by any MIH Group Company which
Security Interest is not within paragraphs (i) to (viii) above
provided that the aggregate value (taking the higher of book
value or market value for the relevant asset) of the assets
subject to such Security Interest does not exceed
US$10,000,000;
"Security Assignment" means a security assignment by each of the
Guarantors in favour of the Bank in a form acceptable to the Bank over
all right, title and interest of such Guarantors in and to any
intra-group indebtedness owed to such Guarantor, securing all
liabilities of the Obligors to the Bank from time to time;
"Security Documents" means this agreement, the Amendment Agreement,
the MIH Guarantee, the MIH Finance Guarantee, the MIH Luxembourg
Guarantee, the MultiChoice Africa Guarantee, the Myriad Guarantee, the
Myriad Africa Guarantee, the Myriad Asia Guarantee, the Mindport
Guarantee, the MHL Guarantee, the MHSA Guarantee, the MISA Guarantee,
the OTV Guarantee, the UBC Share Charge, the
6
Open TV Share Charge, the MIH Luxembourg Share Charge, the MIH China
Share Charge, the Myriad Share Charge, the Myriad BV Share Charge, the
Mindport Share Charge, the MISA Share Charge, the Security Assignment,
the Side Letter and any other document or instrument designated as
such by an Obligor and the Bank;
"Security Interest" means (a) any mortgage, pledge, lien, charge,
security assignment, hypothecation, security trust or security
interest and (b) any other agreement or arrangement entered into to
create or confer security over any asset;
"Side Letter" means a side letter dated 20 April 2000 between the Bank
and the Borrower and Villiers;
"Sterling" and "(pound)" means the lawful currency of the United
Kingdom;
"Subsidiary" shall have the meaning attributed to that expression by
Section 736 of the Companies Xxx 0000 and "Subsidiaries" shall be
construed accordingly;
"UBC" means United Broadcasting Corporation Public Company Limited, a
company incorporated in Thailand;
"UBC Share Charge" means a pledge or charge by MIH in favour of the
Bank in a form acceptable to the Bank over all the right, title and
interest of MIH in and to its shares in the capital of UBC, securing
all liabilities of the Obligors to the Bank from time to time;
"U.S. Dollars" and "US$" means the lawful money of the United States
of America;
"US Dollar Amount" means in relation to the Guarantee Facility in
relation to each Guarantee on any proposed issue date of any
Guarantee:
(i) if a Guarantee is or is to be denominated in U.S. Dollars, the
face amount in U.S. Dollars of such Guarantee; or
(ii) if a Guarantee is or is to be denominated in an Optional
Currency, the amount in U.S. Dollars that would be obtained by
converting the face amount of such Guarantee into U.S. Dollars
on the basis of the Bank's spot rate of exchange for the
purchase of U.S. Dollars with that Optional Currency on the
proposed issue date;
"Villiers" means Villiers Securities Limited, a company incorporated
in Mauritius, registered number 19334/3571.
1.2 In this agreement, unless the contrary intention appears, a reference
to:
"control" of a person by another means that other (whether alone or
acting in concert with others, whether directly or indirectly and
whether by the ownership of share capital, the possession of voting
power, contract or otherwise) has the power to appoint and/or remove
all or the majority of the members of the board of directors or other
governing body of that person or of any other person which controls
that person or otherwise controls or has the power to control the
affairs and policies of that person or of any other person which
controls that person;
a "person" shall be construed as a reference to an individual, firm,
company, corporation, government, state or agency of a state or any
association or
7
partnership (whether or not having separate legal personality) of two
or more of them and shall include its successors and permitted
assigns;
a "regulation" includes any regulation, rule, official directive,
request or guideline (whether or not having the force of law) of any
governmental body, agency, department or regulatory, self-regulatory
or other authority or organisation;
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, where 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 Business Day falls in the following calendar month,
in which case it shall end on the preceding Business Day 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);
"security" includes any mortgage, pledge, lien, charge, security
assignment, hypothecation, security trust and any other security of a
real or personal nature;
"tax" includes any tax, levy, impost, duty or other charge of a
similar nature (including any penalty or interest payable in
connection with any failure to pay or delay in paying the same) and
"taxation" shall be construed accordingly;
the winding-up, receivership, administration, insolvency or bankruptcy
of a person, or such a person making an assignment for the benefit of
or composition with creditors or to the occurrence of any attachment,
sequestration, distress or execution affecting any assets of any
person, and any cognate references, shall include any equivalent or
analogous proceedings or events under the laws of any other
jurisdiction;
a provision of law is a reference to that provision as amended or
re-enacted;
a "Clause" is a reference to a clause of this agreement; and
this agreement or any other agreement, deed or document is a reference
to the same as from time to time amended, novated or supplemented.
1.3 As used in this agreement, "including" shall be construed as not
limiting any general words or expressions in connection with which it
is used.
1.4 The index to and the headings in this agreement are for convenience
only and are to be ignored in construing this agreement.
1.5 Unless the context otherwise requires, words importing the singular
number shall include the plural and vice versa.
1.6 Where there is a reference in this agreement or any Security Document
to any amount, limit or threshold specified in U.S. Dollars, in
ascertaining whether or not that amount, limit or threshold has been
attained, broken or achieved, as the case may be, a non-U.S. Dollar
amount shall be counted on the basis of the equivalent in U.S. Dollars
of that amount using the Bank's relevant spot rate of exchange.
2 The Facilities
2.1 Subject to the terms and conditions of this agreement (including but
not limited to the conditions set forth in Clause 16), the Bank agrees
to make available to the Borrower a revolving loan facility whereby
the Bank agrees to make Advances in
8
U.S. Dollars up to a maximum aggregate principal amount not exceeding
US$100,000,000 at any one time.
2.2 Subject to the terms and conditions of this agreement (including but
not limited to the conditions set forth in Clause 16), the Bank agrees
to make available to the Borrower a guarantee facility whereby the
Bank agrees to issue Guarantees at the request of the Borrower
denominated in U.S. Dollars or in any Optional Currency up to a
maximum aggregate principal U.S. Dollar Amount not exceeding
US$15,000,000 at any one time.
3 Loan Facility
3.1 The proceeds of the Advances shall be utilised by the Borrower (a) for
the acquisition of pay-TV, technology and internet related businesses
or (b) for the general corporate purposes of the Borrower *
3.2 The Bank shall not be obliged to concern itself with such utilisation.
3.3 When the Borrower wishes to borrow an Advance hereunder, it shall give
to the Bank notice in writing (which shall be irrevocable) to be
received by the Bank no later than 10.00 a.m. (London time) two
Business Days prior to the proposed date for borrowing specifying:
3.3.1 the date thereof (which must be a Business Day no later than
the date one month before the Final Repayment Date);
3.3.2 the amount in U.S. Dollars thereof (which must be an integral
multiple of US$1,000,000 or the balance of the Loan Facility);
3.3.3 (subject to Clause 6.1) the duration of the first Interest
Period relating to such Advance; and
3.3.4 the purpose as referred to in Clause 3.1 for which the Advance
is to be borrowed including if appropriate the purchase price
and description of the pay-TV, technology or internet related
business and/or company to be acquired.
3.4 The Bank will make each Advance available to an account of the
Borrower at the Bank.
3.5 If any Advance is not advanced after notice of borrowing therefor has
been served pursuant to Clause 3.3 as a result of a failure to fulfil
any of the conditions precedent set out in Clause 16 or as a result of
the Borrower failing to comply with this Clause 3, the Borrower will
pay to the Bank such amount as the Bank may certify (which certificate
shall constitute conclusive evidence of the amount due) as necessary
to compensate the Bank for any losses on account of funds borrowed or
contracted for in order to fund such Advance.
9
4 Repayment
4.1 Subject to the provisions of Clause 20 (Demand Events), the Borrower
shall repay the full amount of each Advance on the last day of the
Interest Period relating to that Advance. Subject to Clause 4.3,
amounts so repaid in accordance with this Clause 4.1 may, subject to
the terms of this agreement, be reborrowed.
4.2 Without prejudice to the Borrower's obligation to repay the full
amount of each Advance on the due date, where on the same day as the
Borrower is due to repay an Advance the Borrower also requests and is
entitled in accordance with this agreement to borrow an Advance, the
amounts to be so repaid and so borrowed shall be netted against each
other to the intent that there shall be an actual transfer of funds
from the Bank to the Borrower or, as the case may be, from the
Borrower to the Bank of the net amount.
4.3 Subject to the provisions of Clause 5.2 and Clause 20 (Demand Events),
all outstanding Advances shall be repaid in full on the Final
Repayment Date.
5 Prepayment and Cancellation
5.1 The Borrower may prepay an Advance (together with accrued interest
thereon) on any Business Day in whole but not in part on giving not
less than fourteen days' prior written notice to the Bank. Such notice
shall be irrevocable and shall constitute an obligation to prepay
accordingly. Any amounts prepaid under this Clause 5.1 may, subject to
the terms of this agreement, be reborrowed. The Borrower will pay to
the Bank such amounts as may be due to it under Clause 13.5 if any
such prepayment is made on a day other than the last day of an
Interest Period relative to such Advance.
5.2 The Borrower may on giving not less than fourteen days' prior written
notice to the Bank cancel without cost or penalty the unutilised
portion of the Loan Facility in whole or in part (but, if in part, in
a minimum amount of US$5,000,000 and an integral multiple of
US$1,000,000). On the expiry of such notice the Loan Facility shall be
cancelled or, as applicable, appropriately reduced. No notice of
cancellation may be withdrawn or revoked. The Borrower shall not be
entitled to cancel any part of the Loan Facility otherwise than in
accordance with the express provisions of this agreement and no amount
of the Loan Facility cancelled may thereafter be utilised.
6 Interest Periods
6.1 Each Interest Period shall, subject as follows, be of a duration of
one, two or three months, as selected by the Borrower in any notice in
writing issued pursuant to Clause 3.3 provided that:
6.1.1 if any Interest Period would end on a day which is not a
Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless such next Business Day
falls in the next calendar month in which event such Interest
Period shall end on the immediately preceding Business Day;
6.1.2 the first Interest Period relative to each Advance (other than
the first Advance) shall end on the same day as the then
current Interest Period relative to the first Advance to the
intent that on the expiration of the first Interest Period
relative to each Advance (other than the first
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Advance) all Advances shall thereafter be treated as one
Advance and, to the extent practicable, all Interest Periods
shall be co-terminous;
6.1.3 if the Borrower fails to select an Interest Period for an
Advance in accordance with Clause 3.3 that Interest Period
shall (subject to the other provisions of this Clause) be one
month; and
6.1.4 the Final Repayment Date shall be the last day of an Interest
Period.
7 Interest
7.1 The Borrower shall pay to the Bank interest on each Advance during
each Interest Period relative thereto at the rate per annum determined
by the Bank to be the aggregate of the Margin and the offered rate
quoted to the Bank by leading banks in the London Interbank Market at
or about 11.00 a.m. (London time) two Business Days' prior to the
first day of such Interest Period for deposits denominated in the
currency of, and of comparable amount to, such Advance for the same
period as that of such Interest Period.
7.2 Save as provided otherwise herein, interest in respect of each Advance
shall be paid in arrears on the last day of each Interest Period
relative thereto.
7.3 Interest determined as aforesaid shall accrue from day to day and be
calculated on the actual number of days elapsed and the basis of a 360
day year and shall be payable both before and after judgment.
7.4 If in relation to an Advance and a particular Interest Period the Bank
shall have determined that by reason of circumstances affecting the
London Interbank Market generally adequate and fair means do not exist
for ascertaining the rate of interest applicable to that Advance
during such Interest Period pursuant to Clause 7.1, the Bank shall as
soon as practicable and in any event prior to the commencement of the
relevant such Interest Period give notice of such determination to the
Borrower. In the event that the Advance is made available by the Bank
or is outstanding, the Bank shall as soon as practicable thereafter
notify the Borrower of a substitute interest rate to be applicable to
the Advance during such Interest Period, reflecting the cost to the
Bank of funding the Advance plus the Margin from such sources as it
may select in good faith. If such substitute rate is not acceptable to
the Borrower, it may prepay the Advance in full within ten Business
Days after such notification on giving to the Bank not less than two
Business Days' notice thereof or on such other date as is mutually
agreed. Such prepayment shall be made together with accrued interest
on the amount so prepaid at the substitute rate notified as aforesaid,
together with all other amounts due to the Bank.
8 Certificates and Determination
Any certification or determination by the Bank of a rate or amount
under this agreement shall, in the absence of manifest error, be
conclusive evidence of the matters to which it relates.
9 Guarantee Facility
9.1 Subject to the terms and conditions of this agreement (including but
not limited to the conditions set forth in Clause 16), the Bank agrees
to issue Guarantees at the request of the Borrower denominated in U.S.
Dollars or in any Optional Currency up to a maximum aggregate
principal U.S. Dollar Amount not exceeding US$15,000,000 at any one
time for its general corporate purposes subject to Clause 9.5 provided
that prior to the date on which the conditions set forth in
11
Clause 16 have been satisfied or at any time whilst those Existing
Guarantees remain Outstanding Guarantees the Bank shall not be obliged
to issue Guarantees hereunder in excess of that amount which is equal
to US$15,000,000 less the principal amount of the Existing Guarantees
and for this purpose the principal amount of an Existing Guarantee
shall be calculated by converting the face amount of such Existing
Guarantee into U.S. Dollars on the basis of the Bank's spot rate of
exchange for the purchase of U.S. Dollars with the currency in which
it is denominated on each proposed issue date of any Guarantee
requested to be issued by the Borrower hereunder.
9.2 When the Borrower wishes the Bank to issue a Guarantee (other than the
Existing Guarantees), it shall give to the Bank notice in writing
(which shall be irrevocable) to be received by the Bank not less than
five Business Days prior to the proposed issue date of the Guarantee:
9.2.1 requesting the issue thereof;
9.2.2 specifying the proposed issue date (which must be a Business
Day no later than the date three months before the Final
Repayment Date); and
9.2.3 accompanied by a copy of such Guarantee initialled by the
Borrower for the purposes of identification and such other
information or documentation relating to such Guarantee as the
Bank may request.
9.3 The Bank shall not be under any obligation to issue any Guarantee
pursuant to this agreement unless (i) it is in a form reasonably
acceptable to the Bank and (ii) it has been initialled for the
purposes of identification by the Borrower and the Bank.
9.4 The Borrower may on giving not less than fourteen days' prior written
notice to the Bank cancel without penalty on the expiry of such notice
the unutilised portion of the Guarantee Facility in whole or in part
(but, if in part, in an integral multiple of US$1,000,000). The
Guarantee Facility shall then at the expiry of such notice be
cancelled or, as applicable, appropriately reduced. No notice of
cancellation may be withdrawn or revoked. The Borrower shall not be
entitled to cancel any part of the Guarantee Facility otherwise than
in accordance with the express provisions of this agreement and no
amount cancelled may thereafter be utilised.
9.5 With effect from the date that the conditions set forth in Clause 16
have been satisfied, each of the Existing Guarantees shall be deemed
to be a Guarantee issued in accordance with the terms of this
agreement and all the terms of this agreement relating to Guarantees
and otherwise applicable shall apply to the Existing Guarantees from
such time.
10 Indemnity
10.1 The Borrower hereby indemnifies and agrees to keep the Bank
indemnified from and against all payments, claims, demands,
liabilities, losses, costs and expenses made, suffered or incurred by
the Bank in relation to or arising out of the issue by it of each
Guarantee and will pay to the Bank on its demand for payment each such
payment, claim, demand, liability, loss, cost and expense made,
suffered or incurred by the Bank in the currency in which the same was
made, suffered or incurred.
10.2 The Borrower irrevocably authorises the Bank to make any payment or
comply with any demand which appears or purports to be claimed or made
under any Guarantee, without any reference to or further authority
from the Borrower, without enquiry into the justification therefor or
the validity, genuineness or
12
accuracy of any statement or certificate received by the Bank with
respect to or under such Guarantee and despite any contestation on the
part of the Borrower, and the Borrower agrees that any such claim or
demand shall be binding on it and shall, as between the Bank and the
Borrower, be accepted by the Borrower as conclusive evidence that the
Bank was liable to pay or comply with the same.
10.3 The Borrower further agrees with the Bank that its obligations under
this Clause shall not in any way be discharged or impaired by:-
10.3.1 any waiver, time or other indulgence that may be granted to or
by the Bank with respect to any Guarantee;
10.3.2 any amendment, extension or variation of any Guarantee or any
other agreement;
10.3.3 any legal limitation, disability, incapacity, insolvency or
other circumstances relating to any person, whether or not
known to the Bank or any other person; or
10.3.4 any invalidity or irregularity in or unenforceability of the
obligations of any person.
10.4 The Borrower further agrees with the Bank that its obligations under
this Clause shall exist independently of and shall not be affected
by:-
10.4.1 any right, claim, assurance or security that the Bank or any
other person may from time to time have, or have failed to
obtain, enforce or assert; or
10.4.2 anything done or omitted to be done which but for this
provision might constitute a legal or equitable discharge of
or defence for it.
10.5 The Borrower further agrees that the Bank may debit any account of it
with the Bank with any sum demanded by the Bank under this Clause 10.
11 Guarantee Commission
On the date of issue of each Guarantee and on each date which falls
three months after the date on which such Guarantee is issued the
Borrower will pay to the Bank a commission calculated at the rate of
one-quarter of one per cent. of the maximum potential liability of the
Bank under such Guarantee as at such date of issue or such
three-monthly date (as the case may be).
12 Cash Collateral
If the Borrower requests and the Bank agrees to issue any Guarantee
with an expiry date falling after the Final Repayment Date, the Bank
may by notice in writing given to the Borrower not less than 10
Business Days before the Final Repayment Date declare that the
Borrower shall provide the Bank with one hundred per cent. cash cover
in respect of the maximum potential liability of the Bank under such
Guarantee and the Borrower shall provide such cash cover on or before
the Final Repayment Date.
13
13 Payments and Default Interest
13.1 All payments to be made by the Borrower under this agreement shall be
made on the due date in immediately available funds to the Bank by
payment in U.S. Dollars (or in the case of a Guarantee denominated in
an Optional Currency or costs, expenses and taxes and the like in the
relevant Optional Currency or in the currency in which they are
incurred (as the case may be)) to the Bank's U.S. Dollar Account
Number 3582 023094 001 at Standard Chartered Bank, 000 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx SWIFT-ID SCBLUS33 or such other account as the Bank
may specify.
13.2 All payments to be made by the Borrower under or in connection with
this agreement shall be made without any set-off or counterclaim and
free of and without deduction for any taxes or other deductions of any
nature whatsoever now or hereafter imposed or made, all of which shall
be for the account of the Borrower. Should any such payment be subject
to any such tax or deduction, the Borrower shall indemnify the Bank
against the same and shall pay to the Bank as provided above such
additional amounts as may be necessary to enable the Bank to receive a
net amount equal to the full amount provided for under this agreement,
had there been no such tax or deduction. The Borrower shall deliver to
the Bank within thirty days of each such payment by the Borrower of
such tax evidence satisfactory to the Bank (including all relevant tax
receipts) that such tax has been duly remitted to the appropriate
authority.
13.3 If the Bank determines, in its absolute discretion, that it has
received, realised, utilised and retained a tax benefit by reason of
any deduction or withholding in respect of which the Borrower has made
an indemnity payment under Clause 13.2, the Bank shall, as and when it
has received all amounts which are then due and payable by the
Obligors under any Security Document, pay to the Borrower (to the
extent that the Bank can do so without prejudicing the amount of the
benefit or repayment and right of the Bank to obtain any other
benefit, relief or allowance which may be available to it) such
amount, if any, as the Bank, in its absolute discretion shall
determine, will leave the Bank in no worse position than it would have
been in if the deduction or withholding had not been required,
provided that:
13.3.1 the Bank shall have an absolute discretion as to the time at
which and the order and manner in which it realises or
utilises any tax benefit and shall not be obliged to arrange
its business or its tax affairs in any particular way in order
to be eligible for any credit or refund or similar benefit;
and
13.3.2 the Bank shall not be obliged to disclose any information
regarding its business, tax affairs or tax computations.
13.4 Whenever any payment under this agreement shall become due on a day
which is not a Business Day, the due date therefor shall be the next
succeeding Business Day if it falls in the same calendar month and the
immediately preceding Business Day if not and interest shall be
adjusted accordingly.
13.5 If the Borrower makes any payment of any principal amount of any
Advance otherwise than on the last day of an Interest Period, the
Borrower will on demand by the Bank pay to the Bank such additional
amounts as the Bank may certify as necessary to compensate it for any
loss or expense sustained or incurred in liquidating or re-deploying
funds acquired or arranged to effect or maintain such Advance.
14
13.6 If the Borrower fails to pay any amount payable by it under this
agreement on the due date therefor, the Borrower shall on demand by
the Bank from time to time pay interest on such overdue amount from
the due date up to the date of actual payment (as well after as before
judgment or winding up) at the Default Rate.
14 Changes in Circumstances
14.1 If:
14.1.1 any change in any law, regulation or official directive
(whether or not having the force of law);
14.1.2 any change in the interpretation or application thereof by any
authority charged with the administration thereof;
14.1.3 compliance by any office of the Bank in good faith with any
request or directive of any applicable monetary or fiscal
agency or authority (whether or not having the force of law);
results in:
14.1.4 the Bank incurring a cost (including the cost of complying
with any reserve, special deposit, liquidity, cash or other
requirement or any capital adequacy rules) as a result of
having entered into this agreement; or
14.1.5 a reduction in the amount of principal or interest receivable
by the Bank under this agreement; or
14.1.6 the Bank making any payment or foregoing any interest or other
return on or calculated by reference to any sum received or
receivable by it under this agreement;
then, upon demand being made to the Borrower by the Bank, the Borrower
shall pay to the Bank such amount as shall compensate the Bank for
such cost, reduction, payment or foregone interest or other return.
The certificate of the Bank setting out the amount shall, in the
absence of manifest error, be conclusive evidence thereof.
14.2 If the Bank is prohibited by law from making, issuing, maintaining or
funding (or it is contrary to any directive of any applicable
authority for the Bank to make, issue, maintain or fund) any Advance
or any Guarantee or any part thereof, then if such Advance has not
already been made or such Guarantee has not been issued, the Bank
shall not be obliged to make available such Advance or to issue such
Guarantee and, if such Advance has already been made or such Guarantee
has already been issued, the Borrower will forthwith on demand by the
Bank repay such Advance together with all accrued interest and all
other amounts due to the Bank under this agreement and provide the
Bank with one hundred per cent. cash cover in respect of the maximum
potential liability of the Bank under such Guarantee and the
Facilities shall be reduced to zero.
14.3 If circumstances arise which would or would upon the giving of notice
result in the Borrower being liable to make any indemnity payment
under Clause 13.2 or to pay any compensation under Clause 14.1 or to
make any repayment under Clause 14.2 then without in any way limiting,
reducing, or otherwise qualifying the Borrower's obligations under any
of such Clauses, the Bank shall in consultation with the
15
Borrower, take such steps as the Bank in its opinion considers are
reasonably open to it to mitigate the effects of such circumstances
including the transfer of its rights and obligations hereunder to
another financial institution willing to participate in the Facilities
provided that the Bank shall be under no obligation to take any such
steps if, in the bona fide opinion of the Bank, such steps would or
might have an adverse effect upon its business, operations or
financial condition or cause it to incur any material costs or
expenses.
15 Representations and Warranties
15.1 The Borrower makes the representations and warranties in Clauses 15.2
to 15.9 for the benefit of the Bank as of the date of this agreement
and on the first day of each Interest Period and on the issue date of
each Guarantee (or, in the case of the representation and warranty in
Clause 15.9, the date of delivery of the relevant corporate structure
chart referred to in Clause 16.1.6 or Clause 18.2.3 (as the case may
be)) as if made on each such day in respect of the circumstances then
prevailing.
15.2 It, and each other Obligor, is a limited liability company validly
existing under the laws of the jurisdiction of its incorporation and
is in good standing and has the power and authority to own its
property and assets and carry on its business as it is now being
conducted.
15.3 It has the power to make and carry out the terms of this agreement and
the other Security Documents to which it is party and has taken all
necessary corporate action to authorise the execution, delivery and
performance of this agreement and such Security Documents and the
borrowing of the Advances and the issue of the Guarantees hereunder
and (other than in the case of the Security Documents (other than each
of the UBC Share Charge and the Open TV Share Charge) where no
representation or warranty is made about any requirement for South
African Reserve Bank approval and the affect of any failure to obtain
such approval) each other Obligor has the power to make and carry out
the terms of the Security Documents to which such Obligor is party and
has taken all necessary corporate action to authorise the execution,
delivery and performance of such Security Documents.
15.4 This agreement and (other than in the case of the Security Documents
(other than each of the UBC Share Charge and the Open TV Share Charge)
where no representation or warranty is made about any requirement for
South African Reserve Bank approval and the affect of any failure to
obtain such approval) the other Security Documents to which it or any
Obligor is party constitute the legally binding obligations of it or
such Obligor enforceable in accordance with their respective terms.
15.5 The making and performance of this agreement and (other than in the
case of the Security Documents (other than each of the UBC Share
Charge and the Open TV Share Charge) where no representation or
warranty is made about any requirement for South African Reserve Bank
approval and the affect of any failure to obtain such approval) the
other Security Documents to which it or any Obligor is party do not
and will not:
16
15.5.1 violate any provision of:
(a) any law or regulation or any order or decree of any
governmental authority or agency or of any court in
any respect;
(b) the laws and documents incorporating and constituting
it or any Obligor in any respect; or
(c) any mortgage, contract or other undertaking to which
it or any Obligor is a party or which is binding upon
it or any Obligor or any of its or such Obligor's
assets in any material respect;
15.5.2 result in the creation or imposition of any security interest,
lien, charge or other encumbrance on any of its or such
Obligor's assets pursuant to the provisions of any such
mortgage, contract or other undertaking (other than in favour
of the Bank).
15.6 It and (other than in the case of the Security Documents (other than
each of the UBC Share Charge and the Open TV Share Charge) where no
representation or warranty is made about any requirement for South
African Reserve Bank approval and the affect of any failure to obtain
such approval) each other Obligor has received or obtained (or will
have received or obtained by the time of its entry into of the
relevant Security Document) every consent of, licence from or
exemption by any governmental or administrative body or authority
required to authorise or required in connection with the performance,
validity or enforceability of this agreement and the other Security
Documents to which it or any Obligor is party, the borrowings and
indemnities by it and any Obligor under this agreement and the
payments by it or any Obligor in accordance with the provisions of
this agreement and the other Security Documents to which it or any
Obligor is party, and the same are (or will be as aforesaid) valid and
subsisting.
15.7 Neither it nor any other Obligor is in default under any agreement to
which it or any Obligor is a party or by which it or any Obligor may
be bound, and no litigation or administrative proceeding is presently
pending or, to the knowledge of it, threatened against it or any
Obligor which might reasonably be expected to have a Material Adverse
Effect.
15.8 No Demand Event, or (save as disclosed pursuant to Clause 17.2.2)
other event which with the passing of time or the giving of notice or
happening of other condition would constitute a Demand Event, has
occurred and is continuing or would result from the making of any
Advance or from the issue of any Guarantee.
15.9 The corporate structure chart referred to in Clause 16.1.6 (as updated
from time to time by any corporate structure chart delivered by the
Borrower to the Bank in accordance with Clause 18.2.3 or otherwise) is
true, complete and up to date.
16 Conditions Precedent
16.1 The obligation of the Bank to make the first Advance pursuant to
Clause 3 or to issue the first Guarantee falling to be issued after
the date of this agreement pursuant to Clause 9 are subject to the
condition that the Bank shall have received all of the following in
form and substance satisfactory to it by no later than 30 April 2001:
16.1.1 certified true and up-to-date copies of the constitutional
documents of each of the Borrower, Villiers, MultiChoice,
Myriad, Myriad Africa, Myriad Asia, Mindport, NetMed, UBC, MIH
China, MHL, MHSA, MISA and Irdeto
17
together with certificates addressed to the Bank from a duly
authorised officer of each Obligor setting out the names and
signatures of the persons authorised to execute on behalf of
such Obligor each Security Document to which it is expressed
to be a party and confirming such other matters as the Bank
may require;
16.1.2 certified true copies of board resolutions or other necessary
corporate action required to authorise the execution, delivery
and performance by each of the Obligors of those Security
Documents to which they are respectively party and authorising
appropriate persons to execute and deliver the same on their
respective behalves;
16.1.3 each of the MIH Guarantee, the MultiChoice Africa Guarantee,
the Myriad Guarantee, the Myriad Africa Guarantee, the Myriad
Asia Guarantee, the Mindport Guarantee, the MHL Guarantee, the
MHSA Guarantee and the MISA Guarantee duly executed and
delivered by the parties thereto;
16.1.4 each of the UBC Share Charge, the Myriad Share Charge, the MIH
China Share Charge, the Myriad BV Share Charge, the MISA Share
Charge and the Mindport Share Charge duly executed and
delivered by the parties thereto together with (to the extent
necessary) duly executed transfer forms of the relevant shares
in favour of the Bank (or its nominee) and the corresponding
share certificates and such other documents and information as
the Bank may in its discretion require to enable the charge to
be perfected;
16.1.5 the Bank's standard account opening documentation, duly
completed and signed on behalf of the Borrower;
16.1.6 a copy, certified true by a director or the secretary of the
Borrower, of the corporate structure chart of the Borrower and
its Subsidiaries;
16.1.7 evidence satisfactory to the Bank that all necessary approvals
have been given or obtained by each party to the Security
Documents to give effect to the transactions contemplated
hereby;
16.1.8 such evidence of the appointment of process agents in England
and the acceptance of such appointments as the Bank may
require in respect of the Security Documents;
16.1.9 all legal and other matters in relation to the Security
Documents and the Existing Guarantees and the transactions
contemplated by this agreement and the other Security
Documents and the Existing Guarantees shall be in form and
substance satisfactory to the Bank;
16.1.10 the Bank shall have received opinions from its Thai, Dutch,
Luxembourg, Mauritius, British Virgin Islands and Hong Kong
legal advisers in relation to the Security Documents, together
with such opinions from legal advisers in such other
jurisdictions as the Bank in its sole and absolute discretion
may require, each in form and substance satisfactory to the
Bank;
provided that the Bank may waive on such terms as it thinks fit any of
the foregoing in whole or in part and it is further agreed and
acknowledged by the Bank that if South African Reserve Bank approval
is required for the entry into of any Security Document (other than
this agreement) the Bank will waive any
18
conditions precedent in so far as they relate solely to the entry into
of such Security Document and it is further agreed and acknowledged
that each Security Document (other than each of the UBC Share Charge
and the Open TV Share Charge and this agreement) shall include a
provision to the effect that such document shall only take effect to
the extent that no South African Reserve Bank approval is required for
the entry into of such document.
16.2 The obligation of the Bank to make any Advance or to issue any
Guarantee under this agreement is subject to the further conditions
that at the time of the making of such Advance or the issue of such
Guarantee:
16.2.1 no Demand Event, or (other than in the case of an Advance that
is drawn down solely to repay the full amount of an Advance on
the due date for repayment of the second Advance such that, in
accordance with Clause 4.2, the Bank is not required to
transfer funds to the Borrower) other event which with the
passing of time or the giving of notice or happening of other
condition would constitute a Demand Event, has occurred and is
continuing or would result from the making of such Advance or
the issue of such Guarantee; and
16.2.2 the representations and warranties contained in Clause 15 are
true and accurate as of such date;
provided that the Bank may waive on such terms as it thinks fit any of
the foregoing in whole or in part.
17 Undertakings
17.1 The undertakings in this Clause 17 remain in force from the date of
this agreement for so long as any sum is outstanding or is or may
become payable by the Borrower to the Bank under this agreement.
17.2 Unless in any particular case the Bank otherwise consents in writing
(such consent not to be unreasonably withheld in the case of Clauses
17.2.8(i) and 17.2.10 below) for the purposes of this agreement (in
which case the Borrower will comply with the terms on and subject to
which that consent is given), the Borrower will and will procure that
each of its Subsidiaries (including without limitation the Obligors
but excluding Open TV and its Subsidiaries and M-Web Holdings Limited)
will:-
17.2.1 not create or assume or have subsisting any Security Interest
on all or any part of its undertaking or assets (present or
future) except for Permitted Security Interests;
17.2.2 promptly on becoming aware of it inform the Bank in writing
about the happening or existence of a Demand Event and of any
other event which, after the passing of time or the giving of
a notice or the doing of anything else, or any one or more of
such things, would constitute a Demand Event, at the same time
informing the Bank about any action taken or proposed to be
taken in connection therewith;
17.2.3 duly and promptly observe and perform each and every
obligation on its part contained in each Security Document and
each other arrangement entered into as part of the obligations
of the Borrower under this agreement;
19
17.2.4 on learning that litigation or administrative or arbitration
proceedings or a dispute with a governmental or other
authority or a labour or other dispute of any kind involving a
potential liability of any MIH Group Company exceeding
US$1,000,000 in aggregate is threatened or pending against it,
and immediately in any case after any such shall have started,
inform the Bank in writing about it;
17.2.5 comply in all material respects with all treaties, laws,
rules, regulations, franchises, permits, orders, consents and
decrees of any administrative, governmental or judicial
authority or organisation or body save where failure to do so
would not have a material adverse effect on its business,
financial condition or assets;
17.2.6 (other than in the case of the Security Documents (other than
the UBC Share Charge and the Open TV Share Charge and this
agreement) where no undertaking is given as regards obtaining
South African Reserve Bank approval) maintain in full force
and effect (or promptly obtain or cause to be obtained) and
comply in all material respects with all the terms of all
authorisations, approvals, consents, licences and exemptions
from and ratifications by, and promptly file, register and
qualify with, every person, court and judicial, administrative
and governmental authority and organisation which, and do, or
cause to be done, all other acts and things which, in any
case, are now or may at any time become necessary or advisable
for the continued legality, validity, priority, admissibility
in evidence and enforceability of each Security Document in
order that it may duly and punctually perform and observe all
of its obligations under and exercise its rights under each
Security Document;
17.2.7 maintain its corporate existence and its right to carry on its
operations and maintain and renew all rights, contracts,
powers, privileges, leases, lands, sanctions and franchises
necessary for the conduct of its operations, and the
performance of each Security Document;
17.2.8 not (either in a single transaction or in a series of
transactions, whether connected or not, and whether at one
time or over a period of time) sell, convey, transfer or
otherwise dispose of:
(i) any shares in any Obligor or which are intended to be
the subject of security in favour of the Bank pursuant
to the Security Documents to any other person other
than in the case of MHL, MHSA, MISA, Mindport or
Irdeto as part of a Permitted Disposal where the Bank
is given security over any replacement assets obtained
in connection with the disposal and OTV Holdings
continues to remain a wholly owned Subsidiary of the
Borrower; or
(ii) any other of its undertaking or assets to any other
person other than Permitted Disposals;
17.2.9 not, whether by acquisition or otherwise, make any alteration
to the nature of its business which might result in a material
change in the general nature of the business conducted by the
MIH Group as a whole as at the date of this agreement being
the ownership and management of pay-TV, technology and
internet related business;
20
17.2.10 (in the case of any Obligor or MIH China only) not enter into
any merger or consolidation into or with any other person
other than in the case of MHL, MHSA, MISA, Mindport or Irdeto
as part of a Permitted Disposal where the Bank is given
security over any replacement assets obtained in connection
with the disposal and OTV Holdings continues to remain a
wholly owned Subsidiary of the Borrower;
17.2.11 other than from the Original Subscription Proceeds and the New
Subscription Proceeds, not acquire any shares comprising more
than 50 per cent. of the issued share capital of any company
unless where the company acquired becomes a wholly owned
Subsidiary, the company acquired executes a guarantee in
favour of the Bank in respect of the obligations of the
Obligors in a form acceptable to the Bank and in all cases the
shares which are acquired are charged or pledged in favour of
the Bank in a form acceptable to the Bank to secure all
liabilities of the Obligors to the Bank from time to time in
either case within 2 months of the relevant acquisition;
17.2.12 effect and maintain such insurance over and in respect of its
assets and business and in such manner and to such extent as
is reasonable and customary for a business enterprise engaged
in the same or a similar business and in comparable
localities;
17.2.13 forthwith on or at any time after the occurrence of a Demand
Event provide the Bank on demand with such additional security
as the Bank shall request;
17.2.14 not grant, or agree to grant, any loans, whether to a
Subsidiary or any other person save that the Borrower may lend
an aggregate of up to the amount of the Original Subscription
Proceeds and any New Subscription Proceeds (i) to its
Subsidiaries or (ii) to other persons on arm's length terms or
better;
17.2.15 not have any of its obligations guaranteed by any other
person, other than its obligations:
(a) which may be guaranteed by any MIH Group Company;
(b) which may be guaranteed by any person in the ordinary
course of business; or
(c) under any lease of premises or other assets in the
ordinary course of business (not being an obligation
in respect of Financial Indebtedness);
17.2.16 ensure that its and the other Obligors' obligations under this
agreement and the other Security Documents do and will rank at
least pari passu with all its and such Obligors' other present
and future unsecured unsubordinated obligations, except for
claims which are mandatorily preferred by bankruptcy,
insolvency or similar laws applying to companies generally,
Provided that, notwithstanding any provision in either this agreement
or the Myriad BV Share Charge to the contrary, Myriad may sell,
convey, transfer or otherwise dispose of any shares in NetMed to any
other person, and NetMed may issue any share capital of NetMed to
Myriad or any person other than Myriad (and the Bank hereby undertakes
to release any such shares from the Myriad BV Share Charge in
21
the case of any such sale, conveyance, transfer or disposal) Provided
that, notwithstanding any such sale, conveyance, transfer, disposal or
issuance, Myriad continues to legally and beneficially own not less
than 52 per cent. of the total number of issued shares in the share
capital of NetMed and to hold not less than 52 per cent. in number of
voting rights and in value of dividend rights in the share capital of
NetMed and not less than 52 per cent. of the total number of issued
shares in the share capital of NetMed and not less than 52 per cent.
in number of voting rights and in value of dividend rights in the
share capital of NetMed continues to be pledged by Myriad to the Bank
in accordance with the Myriad BV Share Charge.
17.3 The Borrower may procure that one of its Subsidiaries becomes a
guarantor or provides security to the Bank in form and substance
satisfactory to the Bank and may request that a Security Document be
released by the Bank in connection with such transaction. The Bank
will consider such a request and if it in its discretion agrees to
such a request it shall release the relevant Security Document on
terms and conditions acceptable to it provided that such release shall
in no sense effect the enforceability of any other Security Documents.
18 Financial Information
18.1 The undertakings in this Clause 18 remain in force from the date of
this agreement for so long as any sum is outstanding or is or may
become payable by the Borrower to the Bank under this agreement.
18.2 Unless in any particular case the Bank otherwise consents in writing
for the purposes of this agreement (in which case the Borrower will
comply with the terms on and subject to which that consent is given):
18.2.1 the Borrower will and will procure that each other Obligor
will deliver to the Bank a copy (certified by a director of
the Borrower) of its unaudited semi-annual accounts (and, in
the case of MIH, its unaudited consolidated semi-annual
accounts), for each of its financial half-years as soon as
possible but in any event no later than 90 days after the end
of each such half-year prepared in accordance with generally
acceptable accounting principles consistently applied;
18.2.2 the Borrower will and will procure that each other Obligor
will deliver to the Bank a copy (certified by a director of
the Borrower) of its audited balance sheet and accounts (and,
in the case of MIH, its audited consolidated balance sheet and
accounts) for each of its financial years as soon as possible,
but in any event no later than 150 days after the end of each
such financial year, prepared in accordance with generally
accepted accounting principles consistently applied and
audited by a firm of independent chartered or certified public
accountants of good international repute;
18.2.3 the Borrower will deliver to the Bank together with the
accounts of the Borrower specified in Clause 18.2.1 and 18.2.2
above a certificate in form and substance satisfactory to the
Bank signed on its behalf by one of its directors setting out
in reasonable detail computations establishing compliance with
each of the financial covenants contained in Clause 19.2
together with a corporate structure chart of the Borrower and
its Subsidiaries;
22
18.2.4 the Borrower will and will procure that each other Obligor
will, promptly after a request to that effect, give to the
Bank such other financial or other information relating to it
or its business as the Bank may from time to time reasonably
request.
19 Financial Covenants
19.1 The undertakings in this Clause 19 remain in force from the date of
this agreement for so long as any sum is outstanding or is or may
become payable by the Borrower to the Bank under this agreement.
19.2 The Borrower shall procure that:
(a) Net Consolidated Financial Indebtedness shall not at any time
exceed thirty per cent. (30%) of Consolidated Market Value at
such time and Consolidated Financial Indebtedness shall not at
any time exceed US$300,000,000; and
(b) the aggregate amount of the UBC Market Valuation and the Open
TV Market Valuation shall at all times exceed US$230,000,000.
19.3 In this Clause 19:
"Cash in Hand" means at any time the aggregate on a consolidated basis
of "Cash and Cash Equivalents" of the Borrower and Myriad as reflected
in the latest audited consolidated annual accounts or unaudited
consolidated semi-annual accounts of the MIH Group provided that "Cash
and Cash Equivalents" of Myriad shall only be taken into account for
such time as Myriad is a wholly owned Subsidiary of the Borrower and
there is no restriction whatsoever on the transfer of such "Cash or
Cash Equivalents" of Myriad from Myriad to the Borrower;
"Consolidated Financial Indebtedness" means at any time the aggregate
on a consolidated basis of the Financial Indebtedness of the MIH Group
(including, for these purposes, Open TV and its Subsidiaries) plus the
aggregate amount of money received by any MIH Group Company from
making a disposal of receivables or property under receivables
financing or securitisation arrangements on commercial terms;
"Consolidated Market Value" means on any day the market capitalisation
of the Borrower based on the mid-market price for its shares quoted on
NASDAQ at close of business on the relevant day (or, if such date is
not a Business Day, the preceding such Business Day) as determined by
the Bank;
"Net Consolidated Financial Indebtedness" means at any time
Consolidated Financial Indebtedness less Cash in Hand at such time;
"Open TV Market Valuation" means at any time the market value of those
shares in Open TV subject to a pledge or charge under the Open TV
Share Charge in favour of the Bank and which are quoted on NASDAQ (or
if not actually quoted on NASDAQ the Bank is satisfied in its
discretion that those shares are fully exchangeable for shares which
are quoted on NASDAQ) based on the mid-market price for shares in Open
TV quoted on NASDAQ at close of business on the relevant day (or, if
such date is not a Business Day, the preceding such Business Day) as
determined by the Bank; and
23
"UBC Market Valuation" means at any time the market value of those
shares in UBC subject to a pledge or charge under the UBC Share Charge
in favour of the Bank and which are quoted on the Stock Exchange of
Thailand based on the mid-market price for shares in UBC on the Stock
Exchange of Thailand at close of business on the relevant date all as
determined by the Bank;
19.4 The financial covenant referred to in Clause 19.2(a) shall be tested
semi-annually each 31 March and 30 September in each year commencing
on 31 March 2000 and the financial covenant referred to in Clause
19.2(b) shall be tested at any time, by reference as appropriate to
the audited consolidated annual accounts or unaudited consolidated
semi-annual accounts of the MIH Group (including, for these purposes,
Open TV and its Subsidiaries) and to market capitalisations determined
by the Bank in accordance with the definitions of "Consolidated Market
Value" or "Open TV Market Valuation" or "UBC Market Valuation". Any
calculation shall be made by the Bank and such calculation shall be
conclusive and binding on the Borrowers except in the case of manifest
error.
19.5 If the accounting principles and practices in the MIH Group's audited
consolidated or unconsolidated annual accounts or unaudited
consolidated or unconsolidated semi-annual accounts change after the
date of this agreement or the shares in the Borrower are no longer
quoted on NASDAQ or the shares in UBC subject to a pledge or charge
under the UBC Share Charge are no longer quoted on the Stock Exchange
of Thailand or the shares in Open TV subject to a pledge or charge
under the Open TV Share Charge are no longer quoted on NASDAQ or if
they were never quoted on NASDAQ the Bank is of the view that those
shares in Open TV are no longer fully exchangeable for shares which
are quoted on NASDAQ or the accounting reference date of any MIH Group
Company (including, for these purposes, Open TV and its Subsidiaries)
changes or any other change in law or accounting principles occurs
after the date of this agreement, the Borrower shall notify the Bank
(or the Bank shall notify the Borrower as the case may be) of such
change and shall, if the Bank requests, consider in good faith changes
to the financial covenants set out in this Clause 19 to reflect such
change provided that if there is no agreement as to the proposed
changes then in the case of the shares in the Borrower no longer being
quoted on NASDAQ or the shares in UBC subject to a pledge or charge
under the UBC Share Charge no longer being quoted on the Stock
Exchange of Thailand or the shares in Open TV subject to a pledge or
charge under the Open TV Share Charge no longer being quoted on NASDAQ
or if they were never quoted on NASDAQ the Bank is of the view that
those shares in Open TV are no longer fully exchangeable for shares
which are quoted on NASDAQ the changes specified by the Bank to
reflect such changes shall prevail and take effect in accordance with
their terms and in all other cases the Borrower shall in addition to
delivering accounts reflecting such change in accordance with this
agreement deliver accounts prepared on the basis that such change had
not been made in accordance with this agreement and the financial
covenants set out in this Clause 19 shall continue to be tested on the
basis of the accounts prepared on the basis that such change had not
been made.
24
20 Demand Events
20.1 The following shall be Demand Events :
20.1.1 any Obligor fails to pay to the Bank on its due date any
amount payable under this agreement or any other Security
Document unless the failure to pay such amount is due solely
to administrative or technical delays in the transmission of
funds which are not the fault of the relevant Obligor and such
amount is paid within 2 Business Days after its due date for
payment; or
20.1.2 the Borrower fails to comply with the terms of Clause 19;
20.1.3 any Obligor fails to pay when due to any other person any
amount payable under any Security Document or fails to comply
with any other provision of this agreement or any other
Security Document (other than those referred to in Clauses
20.1.1. and 20.1.2) and, if such default is capable of remedy,
within the earlier of fourteen days after the Borrower shall
have received notice of such default from the Bank or the
relevant Obligor becoming aware of the default, the relevant
Obligor shall have failed to cure such default;
20.1.4 any Financial Indebtedness (in excess of in aggregate
US$2,500,000) of any Obligor or MIH China becomes due and
payable or capable of being declared due and payable prior to
the stated maturity thereof by reason of default (howsoever
described) or any such indebtedness is not paid when due or
within any originally applicable grace period or any guarantee
of indebtedness in excess of in aggregate US$2,500,000 given
by any Obligor or MIH China is not honoured when due and
called upon or any Security Interest present or future and
created or assumed by any Obligor or MIH China securing
Financial Indebtedness in excess of in aggregate US$2,500,000
becomes enforceable by reason of default (howsoever
described);
20.1.5 any representation or warranty in this agreement or any other
Security Document or in any certificate or statement delivered
under this agreement or any other Security Document or in
writing in connection with this agreement or any other
Security Document proves to be untrue in any material respect
on the date as of which it was made or would, if made at any
time with reference to the facts and circumstances then
subsisting, be untrue in any material respect at that time;
20.1.6 a distress or other execution in excess of in aggregate
US$2,500,000 is levied or enforced or sued out upon or against
any part of the property or assets of any Obligor or MIH China
and is not discharged within seven days of having been so
levied, enforced or sued out;
20.1.7 any Obligor or MIH China becomes bankrupt or insolvent, makes
a general assignment for the benefit of creditors, enters into
any composition or arrangement for the benefit of its
creditors, is unable to pay its debts as they fall due, or
admits in writing its inability to pay its debts as they
mature;
20.1.8 an encumbrancer takes possession or a receiver is appointed of
all or any part (the aggregate value (taking the higher of
book value or market value for the relevant assets) of assets
of which is in excess of $2,500,000) of the assets of any
Obligor or MIH China;
25
20.1.9 (other than in connection with a solvent reconstruction, the
terms of which have been previously approved in writing by the
Bank or a winding up petition which is discharged within 14
days of its presentation and before it is advertised) a
petition is presented or any order is made or resolution
passed for the liquidation or winding-up of any Obligor or MIH
China or any meeting is convened for the purpose of passing
such a resolution or an application to the court is made to
appoint a receiver, administrator, administrative receiver,
trustee in bankruptcy or similar officer in respect of any
Obligor or MIH China or any property of any Obligor or MIH
China or any such appointment is made or an application for an
administration order in relation to any Obligor or MIH China
is presented to the court or any meeting of any Obligor or MIH
China or the Board of Directors of any Obligor or MIH China is
convened for the purpose of considering any resolution to
present an application for such an order;
20.1.10 anything analogous to and having a substantially similar
effect to any of the events specified in Clauses 20.1.6,
20.1.7, 20.1.8 or 20.1.9 above shall happen under the laws of
any applicable jurisdiction in relation to any Obligor or MIH
China;
20.1.11 any Obligor or MIH China shall cease or threaten to cease all
or a substantial part of its operations;
20.1.12 any authorisation, approval or consent required in connection
with the execution, performance, validity and/or
enforceability of this agreement and/or any other Security
Document shall be withdrawn or modified in a manner
unacceptable to the Bank or shall for any reason whatsoever
cease to be in full force and effect;
20.1.13 there shall occur any Material Adverse Effect;
20.1.14 there shall occur any change in the legal or beneficial
ownership of the share capital in any Obligor (other than MIH
or, in the case of any of MHL, MHSA, MISA, Mindport, Irdeto or
NetMed, where such change is made in accordance with this
agreement (including Clauses 17.2.8 and 17.2.10 of this
agreement and the proviso to Clause 17.2 of this agreement))
or Naspers Limited which is incorporated in the Republic of
South Africa shall cease to control MIH;
20.1.15 anything is done or suffered or omitted to be done by any
Obligor or any MIH Group Company which in the reasonable
opinion of the Bank imperils or may imperil the security
granted by any of the Security Documents or which materially
adversely affects or may affect the ability of any Obligor to
perform their obligations under the Security Documents;
20.1.16 this agreement or any other Security Document or any related
document or thing or the security contemplated thereby for any
reason ceases to be in full force and effect or is void or
illegal or is repudiated by an Obligor or the legality,
validity, priority, admissibility in evidence or
enforceability of any of them is contested by any Obligor or
any MIH Group Company or any of its Subsidiaries; or
20.1.17 it becomes unlawful for any Obligor to perform any of its
obligations under this agreement or any other Security
Document.
26
20.2 If a Demand Event shall occur, the Bank may by notice in writing to
the Borrower:
20.2.1 terminate the obligations of the Bank hereunder whereupon the
same shall be so terminated; and/or
20.2.2 declare the Advances and all amounts payable hereunder
immediately due and payable, whereupon the Advances together
with all accrued interest thereon and all amounts payable
hereunder shall become immediately due and payable; and/or
20.2.3 declare that the Borrower shall provide the Bank with one
hundred per cent. cash cover in respect of the maximum
potential liability of the Bank under the Guarantees which the
Borrower shall provide immediately.
20.3 Without prejudice to the foregoing provisions of this Clause 20, the
Borrower shall indemnify the Bank against any loss or expense which
the Bank may sustain or incur as a consequence of the happening of any
Demand Event whether or not the Advances are declared to be
immediately due and payable or demand is made on the Borrower for cash
cover in respect of the Guarantees, including but not limited to any
interest or fees paid or payable on account of any funds borrowed in
order to carry any unpaid amounts.
21 Fees
21.1 The Borrower shall pay to the Bank a commitment fee in U.S. Dollars
computed at the rate of * per cent. per annum on the average daily
amount of the undrawn and unutilised balance of the Loan Facility
contemplated by this agreement, commencing with effect from the date
of this agreement. The commitment fee shall accrue on a daily basis
and shall be payable quarterly in arrears, the first payment to be
made on the date three months after the date of this agreement.
21.2 The Borrower shall pay to the Bank an arrangement fee of * on the date
of this agreement.
22 Set-off
The Borrower hereby authorises the Bank in the event of any
non-payment of any amount under this agreement when due at any time:
22.1.1 to apply any credit balance standing upon any account of it
with any branch of the Bank and in any currency in or towards
satisfaction of any sum due to the Bank under this agreement;
and
22.1.2 in the name of the Borrower and/or the Bank to do all such
acts and execute all such documents as may be necessary or
expedient for any such purpose, including the conversion of
any currency at the Bank's spot rate at the time of such
application.
23 Stamp Duties
The Borrower shall pay and indemnify the Bank in respect of all stamp
duties and like taxes or charges (if any) which may be payable or
determined to be payable in connection with the making, performance or
enforcement of this agreement or any of the other Security Documents.
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24 Delay and Remedies Cumulative
No failure to exercise and no delay in exercising on the part of the
Bank any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, power
or privilege preclude any other or further exercise thereof, or the
exercise of any other right, power or privilege. The Bank's rights and
remedies herein provided are cumulative and not exclusive of any
rights or remedies provided by law.
25 Notices
25.1 All notices or other communications to or upon any party to this
agreement shall be deemed to have been duly given or made when
delivered (in the case of personal delivery or letter) and when
despatched (in the case of fax) to the party to which such notice or
other communication is required to be given or made under this
agreement, addressed to the addressee at its address identified with
its signature below provided that any party hereto may specify any
other address by notice in writing to the other.
25.2 A written notice or other communication includes, for the purposes of
this agreement, one given or made by fax. It shall, however, be
confirmed promptly by letter provided that failure to comply with such
obligation shall not prejudice the effect or validity of the faxed
notice or other communication.
26 Currency Indemnity
26.1 If the Bank receives an amount in respect of the liability of the
Borrower under this agreement or under any Security Document or if
such liability is converted into a claim, proof, judgment or order in
a currency other than the currency (the "contractual currency") in
which the amount is expressed to be payable under this agreement or
the relevant Security Document:
26.1.1 the Borrower shall indemnify the Bank as an independent
obligation against any loss or liability arising out of or as
a result of the conversion;
26.1.2 if the amount received by the Bank, when converted into the
contractual currency at a market rate in the usual course of
its business is less than the amount owed in the contractual
currency, the Borrower shall forthwith on demand pay to the
Bank an amount in the contractual currency equal to the
deficit; and
26.1.3 the Borrower shall pay to the Bank forthwith on demand any
exchange costs and taxes payable in connection with any such
conversion.
26.2 The Borrower waives any right it may have in any jurisdiction to pay
any amount under this agreement or under any Security Document in a
currency other than that in which it is expressed to be payable.
27 Assignments
This agreement shall be binding upon and inure to the benefit of the
Borrower and the Bank and their respective successors and assigns,
except that the Borrower may not assign or transfer all or any of its
rights or obligations hereunder without the prior written consent of
the Bank and the Bank may at any time assign or otherwise transfer all
or any part of its rights hereunder. The Bank may disclose to any
person with whom it may enter into contractual relations in relation
to this
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agreement such information as it may consider appropriate about this
agreement and the Borrower.
28 Costs
The Borrower shall pay all reasonable costs and expenses and
registration charges (including legal fees and value added tax)
incurred or to be incurred by the Bank in the negotiation and
preparation of this agreement and the other Security Documents and any
Guarantee and shall also pay all costs and expenses and registration
charges (including legal fees and value added tax) incurred or to be
incurred by the Bank in the preservation of rights under and
enforcement of this agreement and the other Security Documents.
29 Severability
Any provision of this agreement which is prohibited or unenforceable
in any jurisdiction shall as to such jurisdiction be ineffective to
the extent of such prohibition or unenforceability without
invalidating the remaining provisions of this agreement or affecting
the validity or enforceability of such prohibition in any other
jurisdiction.
30 Counterparts
This agreement may be executed in any number of counterparts and all
of such counterparts taken together shall be deemed to constitute one
and the same instrument.
31 Existing Facilities
From the date of this agreement, the Borrower ceases to be entitled to
use any facilities previously made available by the Bank other than
solely with respect to the Existing Guarantees.
32 Law and Jurisdiction
32.1 This agreement shall be governed by and construed in accordance with
English law.
32.2 The Borrower agrees for the benefit of the Bank that the courts of
England shall have jurisdiction to hear and determine any suit, action
or proceeding and to settle any disputes, which may arise out of or in
connection with this agreement and, for such purposes, irrevocably
submits to the jurisdiction of such courts.
32.3 The Borrower irrevocably waives any objection which it might now or
hereafter have to the courts referred to in Clause 32.2 being
nominated as the forum to hear and determine any suit, action or
proceeding, and to settle any disputes, which may arise out of or in
connection with this agreement and agrees not to claim that any such
court is not a convenient or appropriate forum.
32.4 The submission to the jurisdiction of the courts referred to in Clause
32.2 shall not (and shall not be construed so as to) limit the right
of the Bank to take proceedings against the Borrower or any party to
any Security Document in any other court of competent jurisdiction nor
shall the taking of proceedings in any one or more jurisdictions
preclude the taking of proceedings in any other jurisdiction, whether
concurrently or not.
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32.5 The Borrower agrees that the process by which any suit, action or
proceeding against it in England is begun may be served on it by being
delivered to Xxxxxx Xxxxx Sapte at 0 Xxxxx Xxxxx, Xxxxxx XX0X 0XX.
IN WITNESS whereof the parties hereto have caused this agreement to be duly
executed on the date first above written.
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Signatories
The Borrower
MIH LIMITED
By: Xxxx Xxxxxx
Address: Xxxxxxxxxxxxx 00-00
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Fax: x00 0000 00000
Attention: Group Director: Corporate Finance
The Bank
ABSA BANK LIMITED
By: Xxxxxx Xxxxxxx Xxxxx Xxxxxx
Address: 00-00 Xxxxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Fax: 000 0000 0000
Attention: Corporate Banking
31
Signatories
MIH and Villiers
MIH LIMITED
By: Xxxx Xxxxxx
VILLIERS SECURITIES LIMITED
By: Xxxx Xxxxxx
The Bank
ABSA BANK LIMITED
By: Xxxxxx Xxxxxxx Xxxxx Xxxxx
32
