EXHIBIT 24
ESCROW AGREEMENT
This Escrow Agreement (this "AGREEMENT") is made as of this [ ] day of _______,
20__, by and among CHADFIELD LIMITED, a company incorporated under the laws of
the British Virgin Islands (the "SECURITY TRUSTEE"), SCAILEX CORPORATION LTD., a
company incorporated under the laws of the State of Israel (the "ISSUER"), and
HERMETIC TRUST (1975) LTD. a company incorporated under the laws of the State of
Israel (the "TRUSTEE", and together with the Issuer and the Security Trustee,
the "PARTIES").
WITNESSETH
WHEREAS, the Issuer has issued, on October 28, 2009, US$300,000,000 in aggregate
principal amount of Fixed Rate Secured Bullet Notes due 2014 (the "NOTES") such
Notes to be governed by the terms of that certain trust deed by and between the
Issuer and the Trustee (the "TRUST DEED"); and
WHEREAS, in order to secure its obligations under the Issue Documents (as
defined in the Trust Deed) towards the Noteholders, the Trustee and the Security
Trustee, the Issuer has created that certain Debenture dated as of October 28,
2009 in favour of the Trustee (for the benefit of the Noteholders, the Trustee
and the Security Trustee) (as the same may be amended, supplemented or modified
from time to time, and including any additional debenture created pursuant to
Sections 4(k) and/or 4(r) of the Conditions, the "DEBENTURE"), pursuant to which
the Issuer created on the Purchase Date, INTER ALIA, a first ranking fixed
charge over 17,142,858 ordinary shares having a par value of NIS 0.01 each (the
"SHARES") of Partner Communications Company Ltd. (the "COMPANY"), together with
all rights and privileges attached to such Shares or connected therewith
(including, without limitation, dividends and participation in any
distributions, bonus shares, voting rights, and any other right vested in the
holder of the Shares under any applicable law and the articles of incorporation
of the Company); and
WHEREAS, pursuant to the terms and conditions of the Issue Documents upon any
Excess Distribution or any Share Substitution (each as defined in the Issue
Documents) the Issuer shall create a first ranking fixed charge over additional
Shares (and accompanying rights as aforesaid) ("ADDITIONAL SHARES") in favour of
the Trustee (for the benefit of the Noteholders, the Trustee and the Security
Trustee) in order to secure its obligations under the Issue Documents; and
WHEREAS, pursuant to the Debenture (including any additional debenture executed
in relation to any Additional Shares), the Issuer and the Trustee have agreed
that subject to the prior written consent of the Israeli Minister of
Communications pursuant to Section 4(o) of the Conditions ("MoC APPROVAL"), the
Shares (and all Additional Shares) will be transferred and registered in the
name of the Security Trustee, free and clear of any lien, charge and rights of
any third party (other than under the Debenture) and be maintained in its name
in trust for the Trustee (for the benefit of the Noteholders, the Trustee and
the Security Trustee, as creditors) and the Issuer (as owner), all in accordance
with and subject to the terms and conditions of this Agreement;
WHEREAS, the MoC Approval, a copy of which is attached to this Agreement as
Schedule A, was granted on ________;
WHEREAS, the Parties hereto desire to set forth the terms and conditions of the
escrow with respect to the Shares (and Additional Shares, if any) to be held by
the Security Trustee pursuant to this Agreement;
NOW, THEREFORE, in consideration of the mutual promises and conditions herein
contained, the Parties hereto hereby agree as follows:
1. DEFINITIONS. Unless otherwise defined herein, capitalized terms used in
this Agreement shall have the same meaning as ascribed to them in the Trust
Deed.
2. ESCROW AND SHARES. On the date hereof:
(i) The Trustee shall deliver to the Security Trustee: (a) the share
transfer deed(s) pursuant to which the Issuer shall transfer the Shares
(and Additional Shares, if any) in the name of the Security Trustee; and
(b) the share certificate(s) evidencing the Shares (and Additional Shares,
if any); To the extent the Trustee shall not have possession of share
transfer deed(s) or share certificate(s) in relation to any Additional
Shares or that share transfer deed(s) or share certificate(s) in relation
to any of the Shares and/or Additional Shares previously in the possession
of the Trustee shall have been destroyed, lost or otherwise misplaced, then
subject to the rendering by the Trustee of (i) reliable evidence to the
destruction, loss or misplacement of such share transfer deed(s) or share
certificate(s), and (ii) guarantees and indemnities, as may be reasonably
required by the Company in accordance with its customary business practice,
the Issuer shall cause the Company to issue and deliver to the Security
Trustee duly executed replacement documents;
(ii) The Security Trustee shall sign the share transfer deed(s) as
transferee and the Issuer shall cause the Company to register the Security
Trustee as the holder of the Shares (and Additional Shares, if any) in the
Company's shareholders' register and deliver (a) proof of such registration
to the Security Trustee in the form of a certified copy of the Company's
shareholders' register evidencing the registration of the Shares (and
Additional Shares, if any) in the name of the Security Trustee and (b) a
new share certificate(s) in the name of the Security Trustee evidencing the
Shares (and Additional Shares, if any);
(iii) The Security Trustee shall sign a revocable proxy to the benefit
of the Issuer in the form attached hereto as EXHIBIT A (the "PROXY") which
shall provide that until such time as the Company receives written
revocation of the Proxy executed by the Security Trustee (with a copy to
the Issuer and the Trustee), the Issuer shall have the right to participate
as proxy and vote by virtue of the Shares (and Additional Shares, if any)
registered in the name of the Security Trustee in all general meetings of
the Company's shareholders; and
(iv) The Security Trustee shall sign a revocable instruction letter to
the Company in the form attached hereto as EXHIBIT B (the "INSTRUCTION
LETTER") which shall provide that until such time as the Company receives
written notice executed by the Security Trustee (with a copy to the Issuer
and the Trustee), as set forth in Section 4(i) below, any dividends payable
by virtue of the Shares (and Additional Shares, if any) registered in the
name of the Security Trustee shall be paid directly to the Issuer, or to
any other person or entity as the Issuer shall direct in writing.
It is hereby clarified and agreed that if and to the extent that
following the date hereof and performance of the actions set forth in this
Section 2 above, the Issuer shall pledge any Additional Shares in favour of
the Trustee (for the benefit of the Noteholders, the Trustee and the
Security Trustee) in order to secure its obligations under the Issue
Documents, then the parties shall perform the above actions, MUTATIS
MUTANDIS, in relation to any such Additional Shares (and the provisions of
this Agreement shall govern such Additional Shares).
3. ESCROW PERIOD. The Shares (and Additional Shares, if any) shall be held
by the Security Trustee in trust for the benefit of (i) the Noteholders, the
Trustee and the Security Trustee, as creditors, and (ii) the Issuer, as owner,
for the entire period in which Shares (and Additional Shares, if any) shall be
pledged in favour of the Trustee or until the Trustee or the Noteholder/s, as
the case may be, exercise their rights with respect to the Shares (and
Additional Shares, if any) pursuant to the terms of the Debenture (which ever
occurs earlier) (the "ESCROW PERIOD").
4. INSTRUCTING THE SECURITY TRUSTEE. Unless otherwise specified in writing
by the Trustee, the Security Trustee shall only accept instructions from the
Trustee.
(i) In the event that the Trustee shall serve written notice on the
Security Trustee that a Default has occurred under the terms of the Notes,
the Security Trustee shall send a written notice to the Company (with a
copy to the Issuer and the Trustee) (a) terminating the Proxy and the
Instruction Letter and (b) instructing the Company to pay any dividends
payable by virtue of the Shares (and Additional Shares, if any) registered
in the name of the Security Trustee to account no. 101-014504 in the name
of the Issuer at HSBC Bank plc Tel-Aviv branch, and this until further
notice from the Security Trustee, in each case unless otherwise instructed
by the Trustee.
(ii) In the event that the Trustee shall serve written notice on the
Security Trustee that an Event of Default has occurred, the Security
Trustee shall (a) to the extent the Security Trustee was not instructed to
terminate the Proxy and/or the Instructions Letter prior to such date, send
a written notice to the Company terminating the Proxy and the Instructions
Letter and instruct the Company to pay dividends payable by virtue of the
Shares (and Additional Shares, if any) registered in the name of the
Security Trustee to the account specified in Section 4(i)(b) above; and (b)
take such action as the Trustee shall direct in order to enforce the
security interest created under the Debenture (including any additional
debenture executed in relation to any Additional Shares).
(iii) In the event that the Trustee shall serve written notice on the
Security Trustee notifying the Security Trustee that all amounts due in
respect of the Notes have been paid in full, the Security Trustee shall
transfer the Shares (and Additional Shares, if any) into the name of the
Issuer by delivery to the Issuer of share certificate or certificates
evidencing the Shares (and Additional Shares, if any) and a signed share
transfer deed in the form of EXHIBIT C in the name of the Issuer.
5. COMMUNICATION WITH SECURITY TRUSTEE; ADDITIONAL ACTIONS BY THE SECURITY
TRUSTEE
(i) The Security Trustee shall only accept instructions by telefax,
hand delivery or mail or by a combination of these methods.
(ii) The Security Trustee shall be entitled to request information
relating to any instructions so as to satisfy itself that such instructions
comply with the requirements of this Agreement and do not in any manner
contravene any applicable law.
(iii) It is agreed that any obligation on the part of the Security
Trustee hereunder is at all times subject to the condition that (a) the
action requested is lawful and (b) there is not in force any regulatory
order, instruction or request contrary to the action requested. The
Security Trustee shall be entitled to determine, in its sole discretion,
whether the conditions stated in (a) or (b) above are satisfied.
6. EXCULPATORY PROVISIONS.
(i) The Security Trustee shall be obligated only for the performance
of such duties as are specifically set forth herein. The Security Trustee
shall not be liable for forgeries or false documentations or presentations
provided to it and which it relied upon in good faith. The Security Trustee
shall not be liable for any act done or omitted hereunder as Security
Trustee except for any act done or omitted with willful misconduct, willful
default or fraud.
The duties of the Security Trustee shall be entirely administrative and not
discretionary. The Security Trustee shall be obligated to act only in accordance
with written instructions received by it as provided in this Agreement.
Notwithstanding the aforesaid, the Security Trustee will be authorized to comply
with any orders, judgments or decrees of any court with competent jurisdiction
and shall not be liable, and shall not be deemed to have acted with willful
misconduct, willful default or fraud as a result of its compliance with the
same. In case the Security Trustee obeys or complies with any such order,
judgment or decree of any competent court, the Security Trustee shall not be
liable to any of the other Parties hereto or to any other person by reason of
such compliance, notwithstanding any such order, judgment or decree being
subsequently reversed, modified, annulled, set aside or vacated.
The Security Trustee may consult with a reputable Israeli legal counsel, in
connection with its duties hereunder or as to any other matter relating to this
Agreement, and such reasonable fees and expenses may be charged to, and paid by
the Issuer, in respect of any question arising under this Agreement, and the
Security Trustee shall not be liable, and shall not be deemed to have acted with
willful misconduct, willful default or fraud for any action taken or omitted in
good faith upon advice of such counsel.
The Security Trustee shall not be required to expend or risk any of its own
funds or otherwise incur any financial liability (including tax liability) in
the performance of any of its duties hereunder and it shall be fully reimbursed
by the Issuer for such financial liability incurred by it.
The Security Trustee will be under no obligation whatsoever to review any
additional documents between the Issuer and the Trustee other than this
Agreement.
(ii) The Security Trustee shall not be liable in any respect on
account of the identity, authority or rights of the Parties executing or
delivering or purporting to execute or deliver this Agreement or any
documents or papers deposited or called for thereunder and it may rely
absolutely upon the genuineness and authorization of the signature and
purported signature of any Party and upon any instruction, notice, release,
receipt or other document delivered to it pursuant to this Agreement.
(iii) At such time as the Security Trustee shall no longer be
registered as the owner of the Shares (and the Additional Shares, if any)
in accordance with the terms of this Agreement, including but not limited
to by reason of the Security Trustee's resignation in accordance with the
terms hereof, the Security Trustee shall have no further duties,
responsibilities or obligations hereunder.
(iv) If any controversy arises between the Parties hereto or with any
third Person, the Security Trustee shall not be required to determine the
same or to take any action, but the Security Trustee in its discretion may
institute such interpleader or other proceedings, in any court of competent
jurisdiction, in connection therewith as the Security Trustee may deem
proper, and in following either course, the Security Trustee shall not be
liable and shall be indemnified and held harmless by the Issuer in respect
thereof to the Security Trustee's satisfaction.
(v) Should the Security Trustee be subject to regulatory investigation
in any country due to actions on the part of any of the Parties or any
connected and/or related Person, it is declared that the Security Trustee
is authorized to comply with all statutory, professional and regulatory
requirements in a reasonable manner, including the disclosure of the
identity of the Parties and the transactions carried out through the
Parties.
7. ALTERATION OF DUTIES. The duties of the Security Trustee may be altered,
amended, modified or revoked only by a written document signed by all Parties
including the Security Trustee.
8. RESPONSIBILITIES OF ISSUER. The Issuer hereby covenants and agrees to
(i) fulfill all obligations of a shareholder under any Applicable Law and/or the
Articles of Association of the Company, including by virtue of being an
Interested Party in the Company and (ii) report to the Trustee as to any
resolution which was passed at the general meetings of the Company in which the
Issuer was given a power of attorney to vote, whether or not the Issuer actually
voted, provided, however, that solely in relation to sub-section (ii) of this
Section 8, as long as the Company's securities are listed on the Tel-Aviv Stock
Exchange, the Issuer shall be exempt from such obligation if it referred the
Trustee, in accordance with Section 4.11 of the Debenture, to the Company's
report advising the public on the convening of such general meeting.
Notwithstanding any other provision contained herein, the Security Trustee shall
not be obliged to provide the Issuer with notices or any other information of
any kind whatsoever which shall be received by the Security Trustee from the
Company. The Issuer hereby acknowledges (and the Security Trustee agrees) that
insofar as the Issuer requires such notices or other of information as
aforesaid, it may obtain such relevant notices or information from the Company
or otherwise, notwithstanding that the Issuer does not appear or shall not
appear in the register of shareholders of the Company.
9. RESIGNATION AND REMOVAL OF THE SECURITY TRUSTEE.
Notwithstanding any other provision contained herein, the Security Trustee
may resign as Security Trustee at any time with or without cause by giving at
least 30 (thirty) days' prior written notice to each of the Issuer and the
Trustee, provided that the retirement of any Security Trustee shall become
effective only after an alternate security trustee shall have been appointed as
set forth below.
In addition, the Issuer and the Trustee (subject to approval by way of an
Extraordinary Resolution or a Written Resolution pursuant to the Trust Deed) may
jointly remove the Security Trustee as Security Trustee at any time with or
without cause, by an instrument (which may be executed in counterparts) given to
the Security Trustee, which instrument shall designate the effective date of
such removal.
In the event of any such resignation or removal, a successor Security
Trustee, which shall be a bank, law firm, or trust company organized under the
laws of the State of Israel, shall be appointed by the Trustee (subject to
approval by way of an Extraordinary Resolution or a Written Resolution pursuant
to the Trust Deed) with the approval of the Issuer, which approval shall not be
unreasonably withheld or delayed. Any such successor Security Trustee shall
deliver to the Issuer and the Trustee a written instrument accepting such
appointment, and thereupon and subject to approval by the Ministry of
Communications it shall succeed all the rights and duties of the Security
Trustee hereunder and shall be entitled to receive and hold the Shares (and
Additional Shares, if any) according to the terms of this Agreement, provided
that the Security Trustee may not transfer the Shares (and Additional Shares, if
any) to any successor Security Trustee until it has received written notice from
the Issuer and the Trustee of such appointment and acceptance, such notice to
include the identity of the successor Security Trustee.
10. FURTHER INSTRUMENTS. If the Security Trustee reasonably requires other
or further instruments in connection with the performance of its duties
hereunder, the necessary Parties shall join in furnishing such instruments
without delay.
11. DISPUTES. It is understood and agreed that should any dispute arise
with respect to the delivery and/or ownership or right of possession of the
Shares (and Additional Shares, if any) registered in the name of the Security
Trustee hereunder, the Security Trustee is authorized and directed to act in
accordance with, and in reliance upon, the terms hereof.
12. ESCROW FEES AND EXPENSES. The reasonable fees of any successor Security
Trustee, which is not an affiliate of the Investor, and the reasonable expenses
of the Security Trustee (including any successor Security Trustee) shall be paid
for by the Issuer.
13. INDEMNIFICATION. In consideration of the Security Trustee's acceptance
of this appointment, the Issuer agrees, to indemnify and hold the Security
Trustee and any of its employees and representatives (the "INDEMNIFIED PERSONS")
harmless as to any liability, claim, loss, damage, cost or other expense
incurred by any Indemnified Person by reason of its having accepted such
appointment or in carrying out the terms hereof, and to reimburse such
Indemnified Person for all its reasonable costs and expenses, including, among
other things, counsel fees and expenses, reasonably incurred by reason of any
matter as to which an indemnity is paid; PROVIDED, HOWEVER, that no indemnity
will be paid in case of the Security Trustee's willful misconduct, willful
default, fraud or gross negligence in relation to its duties under this
Agreement.
14. GENERAL.
(i) Any notice given hereunder shall be sent to the following
addresses:
FOR THE ISSUER:
If to the Issuer: Scailex Corporation Ltd.
48 Xxx Xxxx Xxxxx St,
Segula Xxxxxxxxxx Xxxx,
Xxxxxx Xxxxx, Xxxxxx 00000
Facsimile: x000 0 000 0000
Attn.: CEO
With a copy to (which shall Xxxxx Xxxxxxx & Co.
not constitute notice): Advocates
0 Xxxxxx Xxxxxx Xx.
Xxx Xxxx, Xxxxxx 00000
Facsimile: +972 - 3 - 6963801
Attn: Xxxxx Xxxxxxx, Adv.
If to the Trustee Hermetic Trust (1975) Ltd.
000 Xxxxxxxx Xxxxxx
Xxx-Xxxx, Xxxxxx
Facsimile: x000-0-0000000
Attn: Chairman of Board or Joint CEO
If to the Security Trustee Chadfield Limited,
P.O. Box 957, Offshore Corporations
Centre, Road Town,
Tortola, the British Virgin Islands
Facsimile No.:x0000 000 0000;
Attn: Director.
With copies to (which shall c/o 0 Xxxxxxx Xxxxxx, #00-00 Xxx Xxxxxxx,
not constitute notice): Singapore;
Facsimile No: x00 0000 0000
Attn: Xxxxx Sng, Director
x/x 00/X, Xxxxxxxxx Xxxxx,
00 Xxxxxxxx Xxxx
Xxxx Xxxx
Xxxxxxxxx: + 852 2128 1778
Attn: Company Secretary
or to such other address as any Party may have furnished in writing to the
other Parties in the manner provided above. Every notice or other communication
sent to or delivered in person or by courier service shall be deemed to have
been given upon delivery, those given by facsimile transmission shall be deemed
given on the Business Day following transmission with confirmed answer back, and
all notices and other communications sent by registered mail (or air mail if the
posting is international) shall be deemed given five (5) Business Days after
posting. All notices shall be made in English.
The captions in this Agreement are for convenience only and shall not be
considered a part of or affect the construction or interpretation of any
provision of this Agreement.
(ii) This Agreement may be executed in any number of counterparts,
each of which when so executed shall constitute an original copy hereof,
but all of which together shall constitute one agreement.
(iii) No Party may, without the prior express written consent of each
other Party, assign this Agreement in whole or in part. This Agreement
shall be binding upon and inure to the benefit of the respective successors
and assigns of the Parties hereto
(iv) As between the Parties hereto, in the event that the terms of
this Agreement conflict in any way with the provisions of the Debenture or
any of the other documents referred to in the Debenture, the provisions of
this Agreement shall prevail.
(v) This Agreement and all matters arising from or connected with it
are governed by, and shall be construed in accordance with, the laws of the
State of Israel, without regard to conflict of law principles thereof.
(vi) The competent courts of Tel Aviv - Jaffa have exclusive
jurisdiction to settle any dispute (a "Dispute"), arising from or connected
with this Agreement (including a dispute regarding the existence, validity
or termination of this Agreement) or the consequences of its nullity.
(vii) The Parties hereto acknowledge and agree that English shall be
the governing language in this Escrow Agreement, irrespective of any
translations, whether official or unofficial, into any other language.
[REMINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, each of the Parties has executed this Agreement as of
the date first above written.
SCAILEX CORPORATION LTD.
_____________________________________
By: ______________________________
Name: ______________________________
Title: ______________________________
HERMETIC TRUST (1975) LTD.
_____________________________________
By: ______________________________
Name: ______________________________
Title: ______________________________
CHADFIELD LIMITED
_____________________________________
By: ______________________________
Name: ______________________________
Title: ______________________________
EXHIBIT A
FORM OF PROXY
The undersigned, CHADFIELD LIMITED being the registered holder of 17,142,858
ordinary shares of Partner Communications Company Ltd. (the "COMPANY") numbered
_________ to (and including) _____________ hereby appoints Scailex Corporation
Ltd. to act as its proxy to, participate and vote by virtue of the said shares
at any meeting of the shareholders of the Company and at any adjournment
thereof.
This proxy shall remain in full force and effect until such time as you receive
written revocation of the same executed by the undersigned.
Signed this_____day of______________, 2009
________________________
CHADFIELD LIMITED
By: ______________
Title: ___________
EXHIBIT B
FORM OF INSTRUCTION LETTER
The undersigned, Chadfield Limited being the registered holder of 17,142,858
ordinary shares of Partner Communications Company Ltd. (the "COMPANY") numbered
_________ to (and including) _____________ hereby instructs the Company that any
dividends payable in respect of the shares registered in the name of Chadfield
Limited shall be paid directly to Scailex Corporation Ltd. ("SCAILEX") (to such
account as Scailex shall notify you in writing from time to time) or to any
other person or entity as Scailex shall direct in writing, until such time as
the Company receives written revocation of this Instruction Letter executed by
the undersigned.
Signed this_____day of______________, 2009
________________________
CHADFIELD LIMITED
By: ______________
Title: ___________
EXHIBIT C
SHARE TRANSFER DEED
DEED OF TRANSFER
The undersigned, _______________ (hereinafter: the "TRANSFEROR") of
___________________________, do hereby transfer to
__________________________________ (hereinafter: the "TRANSFEREE") of
__________________________________, __________________ Ordinary Shares of
nominal value NIS 0.01 each, (hereinafter the "SHARES"), in Partner
Communications Company Ltd. (hereinafter: the "COMPANY") to hold unto the
Transferee, its executors, administrators and assigns, subject to the same terms
and conditions on which we held the same at the time of the execution hereof,
and the undersigned, the said Transferee, do hereby agree to take the said
Shares subject to the aforesaid terms and conditions.
IN WITNESS WHEREOF WE HAVE HEREUNTO SET OUR HANDS THIS _____ DAY OF _________,
_____
The Transferor: The Transferee:
___________________________ __________________________
Name: ______________________ Name: ______________________
Title: ______________________ Title: ______________________
Signatures : __________________ Signatures : __________________
Witness to the Signature of the Witness to the Signature of the
Transferor: Transferee:
Name: ______________________ Name: ______________________
Signatures : __________________ Signatures : __________________
