EXHIBIT 10.83
PLEDGE
THIS PLEDGE is made on the 23 day of June, 2004 between
the following parties:
(1) ADVENT INVESTMENTS PTE LTD., a company
incorporated under the laws of Singapore
(company number 199408473H), having its
registered office at 0 Xxxx Xxxxxx'x Xxxxxx,
#00-00 Xxxxx Xxxxxxxx, Xxxxxxxxx ("Advent")
(2) BANK LEUMI LE-ISRAEL B.M., as trustee for the
benefit of the Secured Creditors ("the Trustee")
WHEREAS:
(A) the Banks have made certain loan facilities available to Partner on the
terms and subject to the conditions set out in the Facility Agreement.
One of those conditions is that Advent, being a shareholder of Partner,
grant to the Trustee for the benefit of the Secured Creditors (including
the Trustee) a first-ranking pledge with respect, inter alia, to the
Shares and other Pledged Assets as security for the Secured Obligations,
such pledge to be held by the Trustee on trust for the Secured
Creditors; and
(B) Advent is willing, as security for the Secured Obligations, to create in
favour of the Trustee (as trustee for the benefit of the Secured
Creditors (including the Trustee)), a first-ranking fixed pledge over
the Pledged Assets in accordance with the terms of this Pledge below;
and
(D) the Trustee is holding the benefit of this Pledge on trust for the
Secured Creditors in accordance with the terms of the Security Trust
Deed; and
(E) the Trustee acknowledges that realisation of the pledge under this
Pledge is subject to the restrictions in relation to such realisation
imposed under the Licence, namely, that the prior written consent of the
Minister of Communications may be required prior to any such
realisation.
1. INTERPRETATION
1.1. In this Pledge, the following terms have the meanings given to them in
this clause 1.1:
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1.1.1. "Account Bank" - means the Trustee or such
other Israeli bank as the
Trustee shall direct from
time to time in accordance
with clause 1.2.4 below;
1.1.2. "Business Day" - means a day on which banks
are generally open for
business in Tel-Aviv;
1.1.3. "Default Rate" - means the default rate of
interest as determined in
clause 8.3 of the Facility
Agreement;
1.1.4. "Encumbrance" - means: (a) a mortgage,
charge, pledge, lien or
other security interest
securing any obligation of
any person, (b) any
arrangement under which
money or claims to, or the
benefit of, a bank or other
account may be set-off or
made subject to a
combination of accounts so
as to effect payment of sums
owed or payable to any
person, or (c) any other
type of preferential
arrangement (including title
transfer and retention
arrangements) having a
similar effect;
1.1.5. "Enforcement Event" - means the occurrence of any
Event of Default (as
described in clause 17 of
the Facility Agreement, a
copy of which clause is
annexed hereto as Annexure
A);
1.1.6. "Facility Agreement" - means the Facility Agreement
dated August 13, 1998, as
amended and restated through
December 31, 2002, the
parties thereto as of the
date hereof being (1)
Partner as the Borrower; (2)
Bank Leumi Le-Israel B.M.;
Israel Discount Bank Ltd.,
Bank Hapoalim B.M., The
First International
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Bank of Israel Ltd., United
Mizrahi Bank Ltd, Mercantile
Discount Bank Ltd. and
Citibank N.A., as
Participating Banks; (3) the
Trustee, as Arranger,
Facility Agent and Security
Trustee; and (4) Bank
Hapoalim B.M., as
Coordinating Agent;
1.1.7. "Obligor" - means Partner and Guarantors
(as such terms are defined
in the Facility Agreement);
1.1.8. "Optional Israeli Banks" - means Bank Hapoalim B.M.,
Israel Discount Bank Ltd.,
The First International Bank
of Israel Ltd. and United
Mizrahi Bank Ltd.;
1.1.9. "Partner" - means Partner Communications
Company Ltd., a company
incorporated in Israel
(registered number
52-004431-4);
1.1.10. "Pledged Assets" - means the Shares, Related
Rights in respect thereof
and the Realisation Account;
1.1.11. "Realisation Account" - means each account
maintained from time to time
by Advent for the purposes
of clause 7 at the main
branch of the Account Bank
or such other branch of the
Account Bank as the Trustee
may from time to time
approve;
1.1.12. "Receiver" - means a receiver, receiver
and administrator, an
administrator or similar
such officer (whether
appointed provisionally,
temporarily, or otherwise
and whether appointed
pursuant to this Pledge,
pursuant to any law, by a
court or otherwise);
1.1.13. "Related Rights" - means in relation to the
Shares, all dividends or
other moneys paid or payable
in relation
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thereto and all shares,
warrants, securities,
rights, moneys or property
accruing or offered at any
time in relation to the
Shares by way of redemption,
substitution, exchange,
bonus, pursuant to option
rights or otherwise;
excluding all dividends or
other moneys received by
Advent by way of Permitted
Distributions;
1.1.14. "Reservations" - means the reservations
listed in Annexure B hereto;
1.1.15. "Secured Creditors" - means the Trustee, the
Facility Agent, the
Arranger, the Coordinating
Agent, the Participating
Banks, the Secured Interest
Rate Hedge Providers, Israel
Discount Bank Ltd., in its
capacity as issuer of the
IDB Performance Bond and any
other persons who shall have
acceded to the Security
Trust Deed (other than a
party which has ceased to be
a party thereto);
1.1.16. "Secured Obligations" - means all present and future
obligations and liabilities
(whether actual or
contingent, whether owed
jointly or severally, or in
any other capacity
whatsoever), of Partner and
any other Obligor to the
Secured Creditors (or any of
them) under each of the
Facility Documents as well
as all amounts owed by
Advent under this Pledge,
together with all costs,
charges and expenses
(including legal fees)
incurred by any Secured
Creditor in connection with
the protection, preservation
or enforcement of its
respective rights under the
Facility Documents;
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1.1.17. "Security Period" - means the period beginning
on September 10, 1998 and
ending on the date upon
which the Trustee is
reasonably satisfied that:
(a) none of the Secured
Creditors is under any
commitment, obligation or
liability (whether actual or
contingent) to make advances
or provide other financial
accommodation to Partner or
any other Borrower under the
Facility Documents; and (b)
all the Secured Obligations
which have arisen have been
unconditionally and
irrevocably paid and
discharged in full or the
security hereby created has
been unconditionally and
irrevocably released and
discharged by the Trustee;
1.1.18. "Shareholders'
Agreement" - means the relationship
agreement between the
shareholders of Partner
dated October 10, 1999, or
any other agreement between
the shareholders of Partner
replacing such agreement and
falling within the
definition of "Shareholders'
Agreement" within the
meaning of such term in the
Facility Agreement;
1.1.19. "Shares" - means 9,871,066 ordinary
shares, nominal value NIS
0.01 each in the share
capital of Partner, numbered
80,290,350-90,161,415
(inclusive), all registered
in the name of Advent.
1.2.1. Unless otherwise defined in this Pledge, terms defined and
references construed in the Facility Agreement shall have the
same meaning and construction in this Pledge. References herein
to clauses of the Facility Agreement are references to clauses
in the Amended and Restated Facility Agreement (as may be
amended, varied or supplemented from time to time)
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attached as Exhibit 1 to the Amending Agreement to the Facility
Agreement dated December 31, 2002.
1.2.2. Any payment made under any Facility Document which is capable of
being avoided or otherwise set aside on liquidation of Partner
or otherwise, shall, for as long as such payment is capable of
being avoided or set aside, not be considered to have been
irrevocably paid for the purposes of this Pledge.
1.2.3. Unless otherwise stated, all references in this Pledge to this
Pledge or to any other agreement or document shall be construed
as a reference to this Pledge or such agreement or document as
amended, varied, assigned, novated or supplemented from time to
time and any reference to this Pledge or such other agreement or
document shall, unless otherwise stated, include any agreement
or document affecting such amendment, variation, assignment,
novation or supplementation. References to this Pledge shall
include any agreement or document entered into pursuant to or in
accordance with the provisions hereof.
1.2.4. The Trustee shall be entitled to direct that any bank or
financial institution, other than itself, be the Account Bank;
provided that, such bank or financial institution is: (i) one of
the Optional Israeli Banks, or (ii) another Israeli bank or
financial institution approved by Advent, which approval may not
be unreasonably withheld, and further provided that there shall
not be more than one Account Bank at any time. In the event of a
direction by the Trustee as aforesaid, the amount (if any)
standing to the credit of the Realisation Account maintained
with the Trustee or, if applicable, a previous Realisation
Account shall be transferred to the corresponding Realisation
Account maintained with the new Account Bank forthwith upon such
direction taking effect. Advent hereby irrevocably gives all
authorisations and instructions necessary for any such transfer
to be made and shall do all such things as the Trustee may
reasonably request in order to facilitate any change of Account
Bank as may be directed by the Trustee, from time to time, or
any transfer of credit balances (including the execution of such
bank's or financial institution's standard terms of operation of
account forms, bank mandate forms and other standard forms
necessary to open an account) and the Trustee is hereby
irrevocably constituted Advent's attorney to do any such things
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should Advent fail to do so within 10 Business Days of being
requested to do so by the Trustee.
1.2.5. The recitals and Annexures hereto form an integral part hereof.
1.2.6. Except as expressly provided, references to clauses, paragraphs
and Annexures shall be construed as references to clauses and
paragraphs of, and Annexures to, this Pledge.
1.2.7. References to any statutory provision or regulation shall
be deemed to include references to such statutory provision
and/or regulation as re-enacted, amended, supplemented,
extended or replaced from time to time (whether before or
after the date of this Pledge) and are to include any
order, regulation or other subordinate legislation made
under or deriving validity from such statutory provision
and/or regulation.
1.2.8. Headings are inserted for convenience only and shall be ignored
in construing this Pledge.
1.2.9. References to "including" and "in particular" shall not be
construed restrictively but shall mean, "including, without
prejudice to the generality of the foregoing", "including,
without limitation" and "in particular, but without prejudice to
the generality of the foregoing", respectively.
1.2.10. References to "writing" include facsimile transmission legibly
received, except in relation to any certificate, notice,
resolution or other document which is expressly required by this
Pledge to be signed in the original, and "written" has
corresponding meaning.
1.2.11. Any consent, agreement or approval required from the Trustee
under this Pledge must be obtained in writing and shall be of no
effect if it is not in writing.
1.2.12. References to "this Pledge" shall, unless the context otherwise
requires, include also all other pledges and charges in favour
of the Trustee made pursuant to this Pledge.
2. PLEDGE
2.1. Advent hereby grants to and settles upon the Trustee, to hold same on
trust for the benefit of the Secured Creditors (including the
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Trustee), the terms of such trust being as specified in the Security
Trust Deed (an agreement binding the Trustee and the Secured Creditors
only), the security interests and rights, including the pledges,
assignments by way of charge, other charges or other security interests
or rights created or to be created pursuant to, and in accordance with,
the provisions of this Pledge.
2.2. Advent, as a continuing security for the full and punctual payment,
discharge and performance of all the Secured Obligations in accordance
with the Facility Documents and in accordance with Section 12 of the
Pledges Law, 1967, hereby pledges by way of a first-ranking fixed pledge
(to the extent applicable to the Shares) and pledges and assigns, by way
of charge as a first-ranking fixed pledge and charge (to the extent
applicable to all Related Rights other than the Shares), in favour of
the Trustee (as trustee for the Secured Creditors) the Shares and all
Related Rights in respect thereof and all right, title and interest of
Advent in connection therewith. For the removal of doubt, the Pledged
Assets include also all rights of Advent (as a shareholder of Partner),
whether under law and/or under the Memorandum and Articles of
Association of Partner, which derive from the Shares or any Related
Rights in respect thereof.
For the avoidance of any doubt:
(A) subject to (B) below, the Trustee and the Secured Creditors
shall not be entitled to claim or receive payment from Advent in
respect of the Secured Obligations, or to have recourse to any
of its assets pursuant to this Pledge, except, solely and
exclusively, by way of realisation of the Pledged Assets
pursuant to the Pledges Law, 1967 and to the extent only of the
amounts, if any, received from such realisation; provided that
the Trustee and the Secured Creditors shall be entitled to bring
an application for realisation or other relief under Section 21
of the Pledges Law, 1967, only if such claim is not based on:
(i) an alleged reduction or loss in the value of the Shares or
other Pledged Assets; or (ii) an allegation of the existence of
circumstances which constitute an Enforcement Event (without
reference to any cure period or notice period); and
(B) nothing in this Pledge (including in (A) above) shall derogate
from the rights of the Trustee and the Secured Creditors under
any other Share Pledge which has been or may be executed by
Advent from time to time (including under the Share Pledge
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executed by Advent dated September 10, 1998 and under the Share
Pledge executed by Advent dated October 24, 1999).
2.3. In order to secure the rights of the Trustee in respect of the Pledged
Assets, Advent hereby undertakes as follows:
2.3.1. to deposit with the Trustee, upon the date of signature of this
Pledge:
(i) original share certificates in the name of Advent in
respect of the Shares;
(ii) share transfer forms in respect of all the Shares, in
the form required under the Articles of Association of
Partner, duly executed by Advent as transferor, and with
the transferee, the date and the consideration left
blank;
2.3.2. to sign and deliver to the Trustee on the date of signature
hereof all documents as are necessary in the reasonable opinion
of the Trustee, for the purposes of registering the pledges
hereby created with the Registrar of Pledges and/or the
Registrar of Companies and/or the Singapore Registrar of
Companies, as applicable;
2.3.3. to procure that Partner sign on the date of signature hereof the
acknowledgment of the pledge and pledge and assignment by way of
charge (as the case may be) of the Pledged Assets pursuant to
this Pledge, appearing on the signature page of this Pledge;
2.3.4. promptly following the first request of the Trustee, to take all
steps as the Trustee may reasonably require so that the pledge
or pledges created hereunder or pursuant hereto shall be valid
and binding against other creditors of Advent and to execute
and/or deliver to the Trustee any additional and/or new pledge
or amendment of this Pledge and any other documents as the
Trustee shall reasonably require for this purpose, including, to
the extent reasonably required by the Trustee, pledges with
respect to any shares constituting Related Rights in respect of
the Shares, share certificates in respect of such shares or
other securities and share transfer forms, mutatis mutandis, as
referred to in clauses 2.3.1(i) and (ii) in respect of such
shares or other securities and notices of pledge and other
documents required to be deposited with the Registrar of Pledges
in order
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to register any such other pledges and to be lodged with the
Registry of Companies in Singapore in order to register the
charges created hereunder or thereunder.
2.4. Advent shall not be entitled, and hereby waives any right pursuant to
Section 13(b) of the Pledge Law, 1967 to redeem any pledge given
hereunder, provided that Advent shall be entitled to redeem its pledges
hereunder only: (i) in the event that all the Secured Obligations are
paid and discharged in full in accordance with all the terms and
conditions of the Facility Agreement which would be applicable were the
Obligors to voluntarily prepay all the Secured Obligations in accordance
with the applicable provisions of the Facility Agreement and otherwise
in accordance with all the relevant Facility Documents, and (ii) if at
such time none of the Participating Banks is under any commitment,
obligation or liability (whether actual or contingent) under any of the
Facility Documents to make advances or provide other financial
accommodation to Partner or any other Obligor.
3. REPRESENTATIONS AND WARRANTIES
Advent, as at the date of the entering into of this Pledge makes the
representations and warranties set out in clauses 3.1 to 3.12 below and
acknowledges that the Secured Creditors have entered into the Facility
Documents in reliance on those representations and warranties (in addition
to any other warranties and representations as set out in the Facility
Documents):
3.1. Advent is a company limited by shares, duly incorporated under the laws
of Singapore with power to enter into this Pledge and to exercise its
rights and perform its obligations hereunder and all corporate and other
action required to authorise its execution of this Pledge and the
performance by it of its obligations hereunder have duly been taken.
3.2. The obligations expressed to be assumed by Advent in this Pledge are
legal and valid obligations binding on Advent and enforceable in
accordance with the terms hereof, subject to the Reservations.
3.3. All the Shares are validly issued and fully paid-up.
3.4. No Receiver, liquidator or similar officer has been appointed with
respect to Advent or any material part of its assets nor is it aware of
any petition or proceedings for such appointment pending.
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3.5. The entering into of this Pledge (after its execution by all the parties
hereto) by Advent and the exercise of Advent's rights and performance of
Advent's obligations hereunder do not and will not: (a) (in
circumstances or to an extent which will have a material adverse effect
on its ability to comply with its obligations under this Pledge)
conflict with any agreement, charge or other instrument or document to
which it is a party or which is binding upon it or any of its assets,
(b) conflict with its documents of incorporation or constitutive
documents, or (c) conflict with any applicable law, regulation or
official judicial order.
3.6. This Pledge creates those first-ranking pledges and charges as set forth
herein.
3.7. Advent is the legal and beneficial owner of the Shares and any Related
Rights in respect thereof, free and clear of any Encumbrance (save for
the pledges created pursuant to this Pledge) or other rights of third
parties of whatsoever nature (save for rights of Shareholders pursuant
to the Shareholders' Agreement or the Articles of Association of
Partner).
3.8. Under the laws of its jurisdiction of incorporation, it is not necessary
for creation and perfection of this Pledge that this Pledge be filed,
recorded or enrolled with any court or other authority, or that any
stamp, registration or similar tax be paid on or in relation to this
pledge, save as set out in Annexure C hereto.
3.9. No person has any right or option to purchase the Shares or any of them
or any Related Rights in respect thereof, except and to the extent set
forth in the Shareholders' Agreement.
3.10. There is no restriction or limit (whether under the Shareholders'
Agreement, Memorandum and Articles of Association of Partner or
otherwise) on the transfer or pledge of the Shares pursuant to this
Pledge or upon realisation of the pledges and charges hereunder, except
as may be applicable under the Licence or under applicable law.
3.11. No consent, approval, authorisation or other action by any party is
required to be obtained by or with respect to Advent which has not been
obtained either: (i) for the pledges created pursuant to this Pledge or
for the execution, delivery or performance of this Pledge by Advent, or
(ii) for the realisation by the Trustee of the rights or
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remedies provided in this Pledge, save for consents which may be
required under the Licence, save for the provisions of the Pledges Law,
1967 prescribing methods of realisation of pledges and save for payment
of stamp duty and registration requirements.
3.12. The copies of the Memorandum and Articles of Association of Partner and
of the Shareholders' Agreement delivered to the Facility Agent pursuant
to clause 3.1 of the Amending Agreement to the Facility Agreement dated
December 31, 2002 (in the case of the Memorandum and Articles of
Association of Partner) or pursuant to paragraph 18 of Schedule 7 of the
Amending and Rescheduling Agreement (in the case of the Shareholders'
Agreement) are, complete, accurate and updated in all respects.
3.13. The representations and warranties set out in this clause 3 above are
made only on the date hereof.
4. CONTINUING SECURITY
4.1. The security over the Pledged Assets constituted by, and the obligations
of Advent contained in, this Pledge shall constitute and be continuing
security and obligations notwithstanding any settlement of account or
other matter or thing whatsoever and shall not be considered satisfied
by any intermediate payment of all or any of the obligations of Partner
or any other Obligor under the Facility Documents (or any of them) and
shall continue in full force and effect until the end of the Security
Period.
4.2. Where any discharge (whether in respect of the obligations of Partner or
any other Obligor or of any security for any of the aforegoing
obligations or otherwise) is made in whole or in part or any arrangement
is made on the faith of any payment, security or other disposition which
is avoided, reduced or must be restored on insolvency, liquidation or
otherwise, the liability of Advent under this Pledge shall continue as
if the discharge or arrangement had not occurred.
4.3.1. No concession or compromise of any claim that any payment,
security or other disposition is liable to avoidance or
restoration shall in any way affect the security granted
hereunder or Advent's obligations hereunder.
4.3.2. Neither the liability of Advent under this Pledge nor the
rights, powers and remedies conferred on the Trustee in respect
of
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Advent under this Pledge will be affected or waived by any of
the acts, omissions, circumstances, matters or things listed
below, whether or not known to Advent or the Secured Creditors
or the Trustee (or any of them), which, but for this provision,
would release or prejudice any of such liability, rights, powers
and remedies or prejudice or diminish such liability, rights,
powers and remedies in whole or in part:
(i) any time, waiver or other indulgence granted to, or
composition with, Partner, any Obligor or any other
person;
(ii) any failure to exercise any right or remedy under any
Facility Document;
(iii) the single or partial exercise of any right under any
Facility Documents or of any other right or remedy;
(iv) the taking, variation, compromise, exchange, renewal or
release of, refusal or neglect to perfect, take up or
enforce, any rights against, or security over, assets of
Partner or any other person or any failure to realise
the full value of any other security;
(v) any incapacity or lack of powers, authority or legal
personality of or dissolution or change in the members
or status of, Partner or any other person;
(vi) any variation (however fundamental) or replacement of a
Facility Document or any other relevant document or
security or any variation, waiver or release of any
Secured Obligation;
(vii) any unenforceability, illegality or invalidity of any
obligation of Partner or any other person under any
Facility Document or any other relevant document or
security, to the intent that Advent's obligations under
this Pledge shall remain in full force, and this Pledge
shall be construed accordingly, as if there were no
unenforceability, illegality or invalidity;
(viii) the winding-up, dissolution, administration or
reorganisation of Partner, any other Obligor or any
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other person or any change in its status, function,
control or ownership.
4.4. Advent waives any right it may have of first requiring any Secured
Creditor and/or the Trustee to proceed against or enforce any other
rights or security or claim payment from Partner or any other person
before the enforcement by the Trustee of the security constituted
hereby.
4.5. Advent shall not, and hereby waives any right to, by virtue of any
payment made, security realised or moneys received hereunder for or on
account of the liability of any other person:
4.5.1. be subrogated to or otherwise take the benefit of (whether in
whole or in part) any rights, security or moneys held, received
or receivable by the Trustee pursuant to this Pledge or be
entitled to any right of contribution or indemnity;
4.5.2. claim, rank, prove or vote as a creditor of any other person or
its estate; or
4.5.3. receive, claim or have the benefit of any payment, distribution
or security from or on account of any other person or exercise
any right of set-off as against any other person.
Advent will hold in trust for and forthwith pay or transfer to the
Trustee any payment or distribution or benefit of security received by
it contrary to the above. If Advent exercises any right of set-off
contrary to the above, it will forthwith pay an amount equal to the
amount set-off to the Trustee.
The foregoing in this clause 4.5 shall not prevent Advent from: (i)
bringing a claim against Partner or any other Obligor, provided that:
(a) such a claim may be brought only after all the Secured Obligations
have been unconditionally and irrevocably paid and discharged in full,
and (b) there has been no realisation of all or any part of the Pledged
Assets or of all or any of the pledged assets under any other Share
Pledges; or (ii) bringing a claim against any Shareholder.
4.6. This Pledge is in addition to, independent of, and is not in any way
prejudiced by, any other guarantee or security now or hereafter held by
the Trustee or any of the Secured Creditors in respect of any of the
Secured Obligations.
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4.7. The rights and remedies provided by this Pledge are cumulative and are
not exclusive of any rights or remedies provided by law.
4.8. The obligations, warranties, representations, undertakings, agreements
and covenants of Advent under this Pledge are in addition to, and shall
not be prejudiced or restricted by, nor shall they prejudice or
restrict, any obligations, warranties, representations, undertakings,
agreements or covenants in any other Facility Document. Notwithstanding
the foregoing, to the extent any provision of any Facility Document
(other than this Pledge) conflicts with the terms hereof, the provisions
of this Pledge shall prevail.
5. UNDERTAKINGS BY ADVENT
Advent hereby undertakes to the Trustee:
5.1. not to sell, assign or otherwise transfer all or any of the Pledged
Assets unless: (i) such Pledged Assets are sold, assigned or transferred
subject to the first-ranking pledge created pursuant to this Pledge and
in accordance with the provisions hereof; (ii) such pledges over the
aforesaid sold, assigned or transferred Pledged Assets are duly
registered and valid and have the same priority as they would have had,
had such transferee been the original signatory of this Pledge and owner
of the Pledged Assets, in place of Advent; (iii) all registrations or
amendments to registrations and all filings (including, of amended deeds
of pledge) have been made which are in the reasonable opinion of the
Trustee required for the purposes of (i) and (ii) above; (iv) the
transferee of such Pledged Assets is duly and validly bound by this
Pledge or by another pledge, mutatis mutandis, in the same form as this
Pledge in respect of such Pledged Assets as if the original signatory
thereof in the place of Advent and such transferee is not an individual
guarantor ("Arev Yachid") within the meaning of the Guarantee Law, 1967;
(v) any such sale, assignment or transfer is permitted pursuant to the
Licence, or permission as required under the Licence has been granted in
relation thereto, and (vi) such sale, assignment or transfer is
permitted under the Facility Documents and all provisions of the
Facility Documents applicable in the case of such sale, assignment or
transfer of such Pledged Assets have been complied with. At the request
of Advent, the Trustee undertakes promptly to carry out all actions
reasonably required to be carried out by it as the holder of the pledges
and charges created under this Pledge in order to
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facilitate a sale, assignment or transfer permitted by, and made in
accordance with this clause 5.1 above;
5.2. not to pledge, charge or grant any other Encumbrances (of whatsoever
nature and howsoever ranking) in respect of or any other right or
interest in favour of any third party in relation to any of the Pledged
Assets (save for any transfer permitted by, and made in accordance with,
the provisions of this Pledge);
5.3. at any time and from time to time upon the written request of the
Trustee, promptly to execute and deliver to the Trustee any and all such
further notices, instruments and documents as the Trustee may deem
reasonably necessary for it to obtain valid and enforceable
first-ranking pledges as contemplated under this Pledge and to obtain
the full benefit of the rights and powers herein granted;
5.4. to notify the Trustee promptly in any case where attachment is levied,
or execution proceedings are instituted against, or a Receiver is
appointed over, or any similar act occurs or any similar proceedings are
instituted in respect of, the Pledged Assets or any part thereof and to
notify the third party who initiated or requested the same or any
Receiver appointed of the existence of the pledges herein contained in
favour of the Trustee, and to take, within 10 days of such attachment,
execution proceedings, appointment of Receiver or similar act or
proceedings as aforesaid, all necessary measures at the expense of
Advent for the discharge or cancellation of the same as soon as
practicable;
5.5. to pledge in favour of the Trustee all Related Rights of whatsoever
nature and whenever acquired by it, all in accordance with the
provisions of clause 2 above;
5.6. not, after the date hereof, to acquire any Related Rights, unless Advent
is the legal and beneficial owner of such Related Rights free and clear
of any Encumbrance (save for the pledges created pursuant to this
Pledge);
5.7. to oppose any change in the Memorandum and/or Articles of Association of
Partner which will amend or derogate from the provisions of Article
10.13 of the Articles of Association in force as at the date of this
Pledge or in any way lead to any restrictions whatsoever on the ability
of the Trustee to realise its rights under this Pledge.
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6. DEFAULT AND REALISATION
6.1. Upon, and only upon, the occurrence of an Enforcement Event which is
continuing and a declaration in accordance with clause 17.25(c) or (d)
of the Facility Agreement that all the Advances are payable on demand or
immediately due and payable, the Trustee shall, provided that the
Trustee shall have given Advent the Required Prior Notice (as defined
below), be entitled to realise its rights under this Pledge, including
the realisation and sale of the Pledged Assets, in whole or in part,
whether by the appointment of a Receiver and/or by the Israeli Execution
office and/or by order of court and/or whether by any other method
permitted under the Pledges Law, 1967, as the Trustee shall see fit and
to apply the proceeds thereof on account of the Secured Obligations, all
without the Trustee first being required to realise any other guarantee
or collateral or other securities, if such be held by the Trustee. For
the purposes of this clause 6.1, "the Required Prior Notice" shall mean:
(i) 20 Business Days prior notice, in the event that all the Advances
have been declared payable on demand pursuant to clause 17.25(c) of the
Facility Agreement, or (ii) 10 Business Days prior notice, in the event
that the Advances have been declared immediately due and payable,
whether, for the removal of doubt, pursuant to clause 17.25(c) or (d) of
the Facility Agreement; provided that (for the removal of doubt), if,
prior to the expiry of 20 Business Days following the date of a notice
as referred to in (i) above (an "On Demand Notice"), a notice is given
as referred to in (ii) above (an "Immediately Due Notice"), then: (a) in
the event that more than 10 Business Days has elapsed between the date
of the On Demand Notice and the date of the Immediately Due Notice, the
Required Prior Notice shall be 20 Business Days from the date of the On
Demand Notice, and (b) in the event that less than 10 Business Days has
elapsed between the date of the On Demand Notice and the date of the
Immediately Due Notice, the Required Prior Notice shall be 10 Business
Days from the date of the Immediately Due Notice. In realising its
rights as aforesaid, the Trustee shall be required to observe all the
requirements of the Licence in relation to such realisation, including
the requirements of clause 22 of the Licence that if any such
realisation shall cause a variation in the ownership of 10% or more of
any means of control (as defined in the Licence) of Partner, such
realisation may not be effected unless the prior written consent of the
Minister of Communications has been obtained.
- 18 -
6.2. Any and all sums to be received from the realisation of the Pledged
Assets or any part thereof, shall be applied in the following order of
priority:
6.2.1. firstly, to the discharge of all the costs, fees and expenses
incurred and which may be incurred in connection with the
collection of the Secured Obligations, including the costs, fees
and expenses referred to in clause 7.2 below and the costs and
remuneration of a Receiver, if applicable, in such amount as
shall be reasonably prescribed by the Trustee or approved by the
court or the Israeli Execution Office or any other competent
authority;
6.2.2. secondly, in or towards payment of the Secured Obligations, or
such part of them as is then due and payable, all in accordance
with clause 23 of the Facility Agreement;
6.2.3. thirdly, subject to clause 7, in payment of the surplus (if any)
to Advent,
or in such other order as the Trustee shall determine among the
paragraphs of clause 6.2.
6.3. The Trustee shall be exempt from taking any action whatsoever in
connection with any Pledged Assets. The Trustee shall not be liable for
any loss or damage which may be caused as a result of the exercise or
purported exercise of the powers, authorities, rights or discretions
vested in the Trustee in accordance with this Pledge or otherwise caused
in connection herewith (other than, and to the extent of, any such loss
or damage which resulted from the gross negligence or wilful misconduct
(including wilful omission) of the Trustee) and Advent undertakes to
indemnify the Trustee in any event that the Trustee is sued for any such
loss or damage by others or in respect of any other matter or thing done
or omitted to be done by the Trustee (in each such case, other than, and
to the extent of, any such loss or damage which resulted from the gross
negligence or wilful misconduct (including wilful omission) of the
Trustee).
7. CONTINGENCIES
7.1. If the Trustee realises the security constituted by this Pledge (whether
by the appointment of a Receiver or otherwise) at a time when the
Secured Obligations (or any part thereof) shall not have fallen due
under the Facility Documents (but at a time when amounts
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may become so due or are contingently due), the Trustee shall pay the
proceeds of any recoveries if, to the extent applicable, not otherwise
applied under clauses 6.2.1 and 6.2.2, into a Realisation Account or
Realisation Accounts with the Account Bank in the name of Advent, which
Realisation Accounts shall be charged by way of a first-ranking fixed
charge in favour of the Trustee (for the benefit of the Secured
Creditors) as security for the full discharge of the Secured
Obligations. Advent hereby undertakes to execute all such documents as
the Trustee shall reasonably require in order to create and perfect such
charges over the Realisation Accounts as aforesaid.
7.2. The Trustee may withdraw amounts standing to the credit of the
Realisation Accounts to:
7.2.1. meet all costs, fees, charges and expenses incurred and payments
made by the Trustee (or any Receiver) in the course of the
enforcement of this Pledge;
7.2.2. pay remuneration to any Receiver in respect of the realisation
of this Pledge as and when the same becomes due and payable; and
7.2.3. meet amounts due and payable by Partner or any other Obligor
under the Facility Documents as and when the same become due and
payable,
in each case, together with interest thereon at the Default Rate from
the date the same become due and payable until the date the same are
unconditionally and irrevocably paid and discharged in full.
7.3. Amounts standing to the credit of each Realisation Account shall bear
interest at the Account Bank's rate of interest for similar (if any)
deposits in the relevant currency from time to time.
7.4. Advent will not be entitled to withdraw any moneys (including interest)
standing to the credit of any Realisation Account until the expiry of
the Security Period.
8. BOOKS OF ACCOUNTS
8.1. Advent confirms that the respective books, accounts and entries of the
Trustee and of the Facility Agent shall be deemed to be correct
- 20 -
and shall, in the absence of manifest or proven error, be prima facie
evidence for or against Advent in all their particulars.
8.2. A certificate by the Trustee or the Facility Agent setting out the
amount of any Secured Obligation shall, in the absence of manifest or
proven error, be prima facie evidence of such amount for or against
Advent.
9. COSTS, EXPENSES AND INTEREST
9.1. Advent shall cooperate with the other shareholders of Partner to
procure, in its capacity as a Shareholder, that Partner shall, from time
to time, on the demand of the Trustee, reimburse the Trustee for all
reasonable costs and expenses submitted to Partner supported by
appropriate evidence thereof (including legal fees but excluding any
charges for management time) together with any VAT thereon incurred by
the Trustee in connection with the negotiation, preparation and
execution of this Pledge (and any amendments thereto) and the completion
of the transactions herein contemplated, including the registration of
each pledge herein created or contemplated hereby, subject to any limits
agreed from time to time between Partner and the Trustee, as well as all
costs of stamping and registering this Pledge and/or any other document
ancillary hereto and/or to be entered into hereunder.
9.2. Advent shall (in its capacity as a shareholder) cooperate with the other
shareholders of Partner to procure that Partner shall, from time to time
on demand of the Trustee, reimburse the Trustee for all costs and
expenses (including legal fees) together with any VAT thereon incurred
in or in connection with the preservation and/or enforcement of any of
the rights of the Trustee under this Pledge or otherwise in connection
with any claims or proceedings in relation to this Pledge.
9.3. The Trustee and every Receiver and any attorney, agent or other person
appointed by the Trustee, any such Receiver or the court in connection
with this Pledge shall be entitled to be indemnified out of the Pledged
Assets in respect of all liabilities and expenses properly incurred by
them in the execution of any of the powers, authorities or discretions
vested in them pursuant hereto and/or by law and against all actions,
proceedings, costs, claims and demands in respect of any matter or thing
done or omitted pursuant to this Pledge in any way relating to the
Pledged Assets (except that resulting from gross negligence or wilful
misconduct (including wilful omission) by the Trustee, Receiver or any
such other person) and the Trustee may
- 21 -
retain and pay all sums in respect of the same out of any moneys
received under the powers hereby conferred.
9.4. In the event that the Trustee issues proceedings against Advent for the
payment of any amount due or to become due to the Trustee pursuant to
this Pledge, the Trustee shall be entitled to claim in respect of the
period from the issue of the proceedings until full payment thereof,
interest at the Default Rate.
10. FURTHER ASSURANCES
Advent shall at its own expense execute and do all such acts and things as
the Trustee may from time to time reasonably require in order to perfect or
protect the security intended to be created hereby over the Pledged Assets
or any part thereof or facilitate the realisation of the Pledged Assets or
any part thereof or exercise of all powers, authorities and discretions
vested in the Trustee or any Receiver of the Pledged Assets or any part
thereof, all in accordance with this Pledge and applicable law. To that
intent, Advent shall in particular execute all pledges, share transfer
forms, other transfers and assignments of the Shares, Related Rights or
other rights as may, in each such case, be reasonably required by the
Trustee and give all notices (including notices of all assignments made by
Advent hereunder), orders and directions and make all registrations which
may be reasonably required by the Trustee.
11. DELEGATION BY TRUSTEE
The Trustee may at any time and from time to time delegate by power of
attorney or in any other manner to any person or persons all or any of the
powers, authorities and discretions exercisable by the Trustee under this
Pledge. Any such delegation may be made upon such terms and subject to such
regulations as the Trustee may think fit, provided that nothing in this
clause 11 shall confer upon the Trustee the power to allow any delegate to
sub-delegate any such rights, powers, authorities and discretions. The
Trustee shall not be in any way liable or responsible to Advent, any Secured
Creditor or any other person for any loss or damage arising from any
default, omission, misconduct or negligent act on the part of any such
delegate, save where such loss or damage arises due to the wilful misconduct
(including wilful omission) or wilful default or gross negligence of such
delegate and the Trustee is considered by a final decision of a court to
have been grossly negligent in its delegation to the delegate concerned.
- 22 -
12. POWER OF ATTORNEY
Solely for the purposes of securing the due performance of Advent's
obligations under or pursuant to this Pledge, Advent hereby irrevocably
appoints the Trustee and every delegate, as referred to in clause 11, to be
its attorney acting severally, and on its behalf and in its name or
otherwise to execute and do all such acts and things which Advent expressly
ought to do under the covenants and provisions contained in this Pledge
(including to execute, deliver and register any pledges, charges,
assignments or other security) and, generally, in its name and on its behalf
to exercise all or any of the powers, authorities and discretions expressly
conferred by or pursuant to this Pledge or by law on the Trustee or any such
delegate and (without prejudice to the generality of the foregoing) to
perfect any security granted hereunder or pursuant hereto. The Trustee or
any delegate as aforesaid shall only exercise such power of attorney if
Advent fails to perform all or any of the acts or obligations which are
expressly required to be performed by it under this Pledge within 3 Business
Days of being required to so perform any such act or obligation, or earlier
in the event that in the reasonable opinion of the Trustee the rights of the
Trustee under this Pledge may be prejudiced by the delay.
13. WAIVER BY ADVENT
Subject to and without derogating from any other provisions of this Pledge
which exclude the application of, or constitute a waiver by Advent of,
certain defences or rights under the Guarantee Law, 1967 (which defences or
rights would, but for such provisions, have been available to Advent):
13.1. Advent hereby waives all rights and defences under Sections 2, 4-6
inclusive, 8-11 inclusive and 13-17 inclusive of the Guarantee Law, 1967
and confirms that such provisions of the Guarantee Law, 1967 shall not
apply to this Pledge;
13.2. Advent shall be entitled to rely on Section 7 of the Guarantee Law,
1967, to the extent applicable; and
13.3. Advent shall be entitled to rely on Section 12 of the Guarantee Law,
1967, to the extent applicable, but only in the event that: (i) all the
Secured Obligations have been unconditionally and irrevocably paid and
discharged in full; (ii) there has been no realisation of all or any
part of the Pledged Assets or of all or any of the pledged assets under
any other Share Pledge; (iii) the Trustee shall have received written
instructions and undertakings executed by all the Shareholders who have
paid amounts on account of the Secured
- 23 -
Obligations and are entitled to rely on Section 12, detailing the names
of the Shareholders to whom the relevant security interests should be
transferred and undertaking to indemnify the Trustee and the Secured
Creditors against any claims, losses, damages, expenses, costs, charges,
liability or proceedings which may be brought, made or preferred
against, or suffered, incurred or sustained by, the Trustee or any
Secured Creditor in relation to, in connection with, or arising out of,
the transfer of security interests as aforesaid; and (iv) all consents,
approvals, authorisations and permits necessary under the Licence, under
law or under contract in order to perform such transfer have been
obtained and there is no impediment under the Licence, law or contract
to such transfer.
14. REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of the
Trustee or Advent of any right or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any right of remedy
prevent any further or other exercise thereof or the exercise of any other
right or remedy.
15. PARTIAL INVALIDITY
If, at any time, any provision hereof is or becomes illegal, invalid or
unenforceable in any respect or any of the security intended to be created
by or pursuant to this Pledge is ineffective, neither the legality, validity
or enforceability of the remaining provisions hereof or the effectiveness of
any of the remaining such security, shall in any way be affected or impaired
thereby.
16. COUNTERPARTS
This Pledge 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.
17. NOTICES
17.1. Each communication to be made hereunder shall be made in writing and,
unless otherwise stated, shall be made by facsimile, telex or letter.
17.2. Any communication or document to be made or delivered by one person to
another pursuant to this Pledge shall (unless that other person has by
15 Business Days' written notice to the other specified
- 24 -
another address) be made or delivered to that other person at the
address identified with its signature below and shall be deemed to have
been made or delivered when despatched and confirmation of receipt by
the intended recipient has been received (in the case of any
communication made by telex or fax) or (in the case of any communication
made by letter) when left at that address or (as the case may be) 5
Business Days after being deposited in the postage prepaid in an
envelope addressed to it at that address provided that any communication
or document to be made or delivered to the Trustee shall be effective
only when received by the Trustee and then only if the same is expressly
marked for the attention of the department or officer identified with
the Trustee's signature below (or such other department or officer as
the Trustee shall from time to time specify for this purpose):
17.2.1. to Advent: c/x Xxxxxxxxx Telecommunications Ltd.
18/F Two Harbourfront
00 Xxx Xxxx Xxxxxx
Xxxxxxx, Xxxxxxx
Xxxx Xxxx
Facsimile: x000 0000 0000
Attention: Xx. Xxxxx Xxxxx, Group Director, Finance
with a copy to: Xxxxxxxxx Whampoa Limited
00xx Xxxxx, Xxxxxxxxx Xxxxx
00 Xxxxxxxx Xxxx
Xxxxxxx
Xxxx Xxxx
Facsimile: x000 0000 0000
Attention: Xx. Xxxxx X. Xxxx, Group Finance Director
17.2.2. to the Trustee: 0xx Xxxxx
00 Xxxxxx Xxxxxx Xxxxxx
Xxx-Xxxx
Xxxxxx
Facsimile: x000 0 000 0000
Attention: Xxxxx Xxxxx, Corporate Division,
Communications Sector
with a copy to: Stuart Gnessen, Adv.
00 Xxxx Xx'xx Xxxxxx
Xxx-Xxxx
Xxxxxx
Facsimile: x000 0 000 0000
- 25 -
18. ASSIGNMENT
Advent hereby irrevocably and unconditionally consents to the Trustee being
able, at any time, without any further consent being required from Advent,
to assign this Pledge and its rights and/or obligations arising thereunder
in whole to any Optional Israeli Bank or other Israeli bank approved by
Partner (which approval shall not be unreasonably withheld) which is
appointed in accordance with the provisions of the Security Trust Deed, to
act, in place of the Trustee, as trustee for the benefit of the Secured
Creditors and any such assignee may also reassign the said rights as
aforesaid to an Optional Israeli Bank or any other Israeli bank approved as
aforesaid without any further consent being required from Advent. Such
assignment may be effected by endorsement on this Pledge or in any other way
the Trustee or any subsequent assignor deems fit.
19. GOVERNING LAW
This Pledge shall be governed by, and construed in accordance with, the laws
of the State of Israel.
20. JURISDICTION
20.1. Advent hereby irrevocably agrees, for the benefit of the Trustee, as
Trustee for the Secured Creditors, that the courts of Tel-Aviv shall
have jurisdiction to hear and determine any suit, action or proceedings
and to settle any disputes, which may arise out of or in connection with
this Pledge (respectively, "Proceedings" and "Disputes") and, for such
purposes, irrevocably submits to the jurisdiction of such courts.
20.2. Advent hereby irrevocably waives any objection which it might now or
hereafter have to the courts referred to in clause 20.1 being nominated
as the forum to hear and determine any Proceedings and to settle any
Disputes and agrees not to claim that any such court is not a convenient
or appropriate forum.
20.3. Advent agrees that the process by which any Proceedings are begun may be
served on it by being delivered in connection with any Proceedings in
Israel to Gross, Kleinhendler, Hodak, Halevi, Xxxxxxxxx & Co. of One
Azrieli Xxxxxx (Xxxxx Xxxxxxxx) Xxx-Xxxx 00000, Xxxxxx. If the
appointment of the persons mentioned in this clause 20.3 ceases to be
effective, Advent shall immediately appoint a further person in Israel
to accept service of process on its behalf in Israel and, failing such
appointment within 15 days, the Trustee shall be entitled to appoint
such person by notice to Advent.
- 26 -
Nothing contained herein shall affect the right to serve process in any
other manner permitted by law.
20.4. The submissions to the jurisdiction of the courts referred to in clause
20.1 shall not (and shall not be construed so as to) limit the right of
the Trustee to take Proceedings against Advent 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) if and to the extent
permitted by applicable law.
21. TERMINATION
For the removal of doubt, this Pledge shall terminate upon the expiry of the
Security Period.
22. NO AMENDMENT
This Pledge shall not be amended, modified or altered unless the written
consent of all parties hereto to such amendment, modification or alteration
has been obtained.
IN WITNESS WHEREOF the parties have signed this Pledge on the date written at
the beginning of this document.
for: ADVENT INVESTMENTS for: BANK LEUMI LE-ISRAEL B.M.
PTE LTD.
By: /s/ Xxxx Xxxx By: /s/ Dafna Dothan
------------------------ ----------------------------
Title: Director By: /s/ Anat Moyr
----------------------------
We, the undersigned, Partner Communications Company Ltd., acknowledge the
pledges created pursuant to the above pledge of the Pledged Assets (as such term
is defined in the above Pledge).
for: PARTNER COMMUNICATIONS
COMPANY LTD.
By: /s/ Xxxxxx Xxxxx
----------------------------
Title: Chief Executive Officer
By: /s/ Xxxx Xxxxxx
----------------------------
Title: Chief Financial Officer
