EXHIBIT 4.1(i)
LOAN AGREEMENT
dated as of July 21, 2005
between
DEUTSCHE TELEKOM XX
Xxxxxxxxx-Xxxxx-Allee 140
53113 Bonn
Germany
("LENDER")
and
VocalTec Communications Ltd..
0 Xxxxxx Xxxxxx
Xxxxxxxx 00000
Xxxxxx
("BORROWER")
Page 1 of 9
CONTENTS
ss. 1 Loan Facility
ss. 2 Purpose
ss. 3 Disbursal
ss. 4 Loan repayment
ss. 5 Interest, interest payments, interest calculation
ss. 6 Establishment of Escrow Account
ss. 7 Notifications
ss. 8 Miscellaneous
Annex: Terms and Conditions
Page 2 of 9
SS. 1 LOAN FACILITY
The LENDER shall grant a loan of a total amount of
USD 1.000.000,00
(One million 00/100 USD)
SS. 2 PURPOSE
The loan shall be used to cover the BORROWER's financing needs.
SS. 3 DISBURSAL
The total amount of the loan shall be paid to the BORROWER on JULY 22, 2005.
(the Disbursal Date)
On the BORROWERs Bank Account with
HSBC Republic
NY Branch
000 Xxxxx Xxx. Xxx Xxxx XX 00000 XX
For Account of: VocalTec Communication Ltd.
Acc# 000000000
ABA# 000000000
SS. 4 LOAN REPAYMENT
The BORROWER shall repay the loan in USD on July 20, 2006. (the Final Maturity
Date) to the LENDERs bank account with
Deutsche Bank XX Xxxx
Account: 260 000 0005
Swift: DEUTDEDK380
SS. 5 INTEREST, INTEREST PAYMENTS, INTEREST CALCULATION
1. The disbursed loan amount shall be charged interest of 7,05 % p.a.
2. Interest shall be credited to the LENDER's bank account with Deutsche
Bank Bonn account on the Final Maturity Date (Interest Payment Date).
3. For interest calculation the year shall be deemed to consist of 365 days
and each month shall consist of actual days (act/365).
Page 3 of 9
SS. 6 ESTABLISHMENT OF ESCROW ACCOUNT
The BORROWER hereby agrees to deposit the Escrowed Source Code (as defined
below) with an agreed escrow custodian (the "Custodian") in Germany or in any
other jurisdiction agreed to by the parties.
Simultaneously with the entering into this agreement, the LENDER and the
BORROWER shall enter into a source code escrow agreement (the "Escrow
Agreement") under which the source code of all BORROWER products previously
installed at the LENDER and necessary for the operation and maintenance of the
Jules Platform (as described in Annex 1) (the "LENDER's-Products"), including,
but not limited to,
(i) Source Code H 323;
(ii) the Source Code for the Peering Manager Solution;
(iii) the BORROWER'S rights pertaining to equipment and software of
sub-vendors
(together the "Escrowed Source Codes") will be deposited by the BORROWER in
escrow.
Under such Escrow Agreement, the Custodian shall release the Escrowed Source
Codes to the LENDER within thirty (30) working days of the following:
(i) any voluntary reorganization, financial or otherwise, resulting in the
dissolution or liquidation of the BORROWER;
(ii) the BORROWER has ceased its business activities;
(iii) the BORROWER's assets have been liquidated under bankruptcy,
dissolution, or insolvency, or similar statutes, which makes it
impractical for the BORROWER to perform maintenance services under its
existing maintenance agreements with the LENDER; or
(iv) the BORROWER ceases to carry out the maintenance obligations imposed
on it pursuant to such maintenance agreements with the LENDER.
Upon release of the Escrowed Source Codes, the LENDER and/or its affiliates
shall have the transferable, non-exclusive, irrevocable and royalty free
right to use and modify the Escrowed Source Code for the sole purpose of
(i) operation and maintenance of the LENDER's -Products and
(ii) developing and making further improvements to the software for use by
the LENDER and/or its affiliates.
The LENDER and/or its affiliates shall be obligated to maintain the
confidentiality of the released Escrowed Source Code. Other than the rights
specified above for the benefit of the LENDER, the BORROWER shall retain
all right, title, and interest in and to the LENDER's Products and the
relevant Escrowed Source Codes.
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The BORROWER shall obtain, maintain and comply with the terms of any
authorization required under any Israel law or regulation to enable it to
perform its obligations under or for the validity or enforceability of the
Escrow Agreement, including, but not limited to, the consent of the Chief
Scientist of the Israel Ministry of Trade and Commerce for the deposit of the
Escrowed Source Codes into escrow.
All expenses in connection with the deposit of the Escrowed Source Codes under
the Escrow Agreement shall be borne by the BORROWER.
The Escrow Agreement shall be effective for a period of two years with automatic
extension for successive one year periods unless otherwise agreed upon between
the parties to the Escrow Agreement.
The BORROWER represents and warrants that as of the date hereof, no security
interest is existing over the Escrowed Source Code and covenants that it shall
not create any security interest over the Escrowed Source Codes, unless
previously approved in writing by the LENDER, such approval not to be
unreasonably withheld or delayed.
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SS. 7 NOTIFICATIONS
All notifications, announcements, information and messages under the present
agreement shall be sent by registered mail or fax to the following addresses:
For the LENDER: For the BORROWER:
Deutsche Telekom AG Vocal Communications Ltd.
Xxxxxxxxx-Xxxxx-Allee 140 2 Maskit Street
53113 Bonn Xxxxxxxx 00000
Xxxxxxx Xxxxxx
Tel.: x00 000 000 00000 Tel.: x000 0 0000000
Fax: x00 000 000 00000 Fax: x000 0 0000000
Attn.: Xxxxx Xxxxxx Attn.: Xxxx Xxxxxxx
SS. 8 MISCELLANEOUS
1. The Terms and Conditions are part of this Agreement (see annex).
2. No. 1.3 of the Terms and Conditions shall be changed as follows: "The
BORROWER shall promptly make available to the LENDER such information
relating to the financial condition of the Borrower as the LENDER may
reasonably request.".
3. No. 2.1 of the Terms and Conditions shall be changed as follows: "A
premature repayment shall, unless the relevant loan agreement determines
otherwise, only be possible after obtaining the LENDER's prior written
approval".
4. No. 2.2 of the Terms and Conditions shall be changed as follows: "Repaid
amounts shall, unless the relevant loan agreement determines otherwise, not
be available for renewed disbursement".
5. No. 6 of the Terms and Conditions shall be amended as follows: "The
BORROWER is entitled to set-off counterclaims overdue of the same kind
under this Agreement or any other agreement between the parties."
6. No. 8 of the Terms and Conditions shall be amended as follows: "If the
LENDER wants to assign its rights and obligations under this Agreement
pertaining to the loan to a third party that is not member of the Deutsche
Telekom Group, the prior written approval of the BORROWER is required,
however, such approval shall not be unreasonably withheld".
7. Additional interest: If the LENDER does not receive from the BORROWER
payment of any amount due under this Agreement on its due date the BORROWER
agrees to pay on demand to the LENDER interest on such amount from and
including the date of such non-receipt up to and including the date of
actual payment (as well after as before judgement) at the rate per annum
specified in clause 4.1 plus an additional interest margin of 1%.
8. For a period of two years of the date hereof, the BORROWER shall maintain
such licence, maintenance and operation agreements with the LENDER
necessary for the operation and maintenance of the Jules Platform.
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9. Taxation
9.1. Tax Gross-up: All payments made by the BORROWER under this Agreement
shall be made without any deduction or withholding for an account of
any income tax imposed by any taxing or governmental authority. If the
BORROWER is required by law to make any deduction or withholding from
any payment due hereunder, the LENDER then will increase the gross
amount payable by the BORROWER so that, after any deduction or
withholding, the net amount received by the LENDER will not be less
than the LENDER would have received if no deduction or withholding had
been required. LENDER shall use its best efforts to receive credit,
rebate or refund for any amount withheld from the relevant tax
authorities. In the event that any credit, rebate or refund arising
from the aforesaid additional payment made by the BORROWER is granted
to the LENDER by the tax authority or other authority, LENDER shall
transfer such credit rebate or refund to the BORROWER. Besides that,
the LENDER shall be obliged to provide the BORROWER with all official
certificates which are necessary to obtain a tax refund.
9.2. Tax Receipts: If the BORROWER is required by any law or regulation to
make any payment contemplated by Section 9.1. of this Agreement, then
the BORROWER shall notify the LENDER promptly as soon as it becomes
aware of such requirement. The BORROWER shall remit promptly the
amount of such Taxes to the appropriate taxation authority, and in any
event prior to the date on which penalties attach thereto. The
BORROWER will deliver to the LENDER all appropriate receipts or
evidence of any such withholding and payment and co-operate with the
LENDER to enable the LENDER to recover any tax or credit to which it
may be entitled.
10. Confidentiality
Neither party will, without the other party's prior written consent,
publish or otherwise disclose to any person (other than their respective
employees, agents, legal counsel or financial advisors) the fact that the
parties are entering into this agreement, the provisions or subject matter
of this agreement or the fact that discussions or negotiations are taking
place in connection with a potential participation by the LENDER in the
BORROWER's anticipated capital increase.
BONN, JULY 21, 2005 HERZLIYA, JULY 21, 2005
DEUTSCHE TELEKOM AG VOCALTEC COMMUNICATIONS LTD.
------------ ----------- ---------- ------------
Xxxxx Xxxxxx Xxxxxx Xxxx Xxxx Xxxxx Xxxx Xxxxxxx
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ANNEX
TERMS AND CONDITIONS FOR THE GRANTING OF LOANS BY
DEUTSCHE TELEKOM AG
NO. 1 PAYMENT PREREQUISITES
The LENDER is not obliged to pay the loan (nor partial amounts thereof, if
stipulated in this Agreement) if the BORROWER
1. infringes obligations under this Agreement.
2. gives information which contains substantial inaccuracies before the
conclusion or during the implementation of this Agreement.
3. has not provided sufficient details on the financing requirements or the
financing limit before the call for each individual partial amount on the
basis of the following documents:
the current version of the BUDGET, BUSINESS PLANS AS WELL AS THE LIQUIDITY
STATUS which have been approved by the BORROWER's Supervisory Board.
NO. 2 LOAN REPAYMENT
1. A premature repayment shall only be possible after obtaining the LENDER's
prior written approval.
2. Repaid amounts shall not be available for renewed disbursement.
NO. 3 PAYMENTS
1. As a general principle, the payments effected by the BORROWER shall be
transferred free of charge in the respective currency of the contract to
the LENDER's account stated in writing. The LENDER may state a different
bank account by giving written notification thereof at any time.
2. If a payment date is not a bank workday, the payment shall be effected on
the next bank workday. A "bank workday" within the meaning of this
Agreement is the day on which the business premises of the bank, which the
BORROWER was notified of in writing by the LENDER for payments under this
Agreement, are open.
NO. 4 DEFAULT
1. If redemption amounts are not credited to the LENDER's account on the due
date or the full amount thereof is not paid, the LENDER shall be entitled
to demand interest on the outstanding amounts, which shall amount to the
market rates applicable between banks on the first day of default, in
addition to an interest surcharge as of the payment due date under this
Agreement until and including the date on which payment is effected.
2. If the BORROWER should default with other payments, he shall pay to the
LENDER lump-sum damages for the outstanding amount according to No. 4, item
1, as of the payment due date under this Agreement until and including the
date on which payment is effected.
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NO. 5 INTEREST PERIOD
The interest period shall commence on the date (value date) on which the loan is
debited to the LENDER's account.
NO. 6 OFFSETTING, RIGHT OF RETENTION
The BORROWER is not entitled to offset counterclaims from claims under this
Agreement, or to assert a right of retention.
NO. 7 TERMINATION
The LENDER is entitled to terminate this Loan Agreement without observing a
notice period and to immediately call the loan including the accrued interest
and any other amounts owed as due for payment if there is a good cause for such
action.
Good cause exists if the BORROWER
a) provides information before the conclusion or during the implementation of
this Agreement which contains substantial inaccuracies; or
b) falls into arrears with payments agreed under contracts or otherwise with
the LENDER for longer than one month.
NO. 8 TAKING-OVER OF THE AGREEMENT, ASSIGNMENT
The LENDER is entitled to assign the contractual relationship to a third party
in such a manner that this party takes over the Loan Agreement in lieu of the
LENDER. The loan relationship shall pass to the third party with all the rights
and duties under this Agreement. The approval of the BORROWER is not required
for such action.
The claims of the BORROWER under this Agreement are not transferable nor
chargeable.
NO. 9 REPORTING
The BORROWER undertakes
1. to immediately inform the LENDER of unforeseen events which have a
substantial effect on the course of business and the actual and future
condition of the company.
2. to submit the reports agreed to the LENDER in the course of Group
reporting.
NO. 10 FINAL PROVISIONS
1. Amendments and supplements to this Agreement must be made in writing by
both parties hereto.
2. Invalid clauses of this Agreement shall not affect the validity of the
remaining clauses. The parties to this Agreement shall immediately replace
such invalid clauses with appropriate clauses accordingly.
3. Should the LENDER not exercise a right due to him under this Agreement at
all or only temporarily, this shall not constitute a waiver of such right.
4. Applicable law, jurisdiction
a) This Agreement shall be governed by and construed in accordance with
the laws of the Federal Republic of Germany.
b) Place of jurisdiction shall be Bonn, Federal Republic of Germany.
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