| AGREEMENT
Between FINANCIAL COMPANY 1 (‘Lender’) and X Telecommunications [ ] (‘Borrower’) _______________________________ regarding a loan facility of up to $ [ ] in connection with supply and installation of a GSM telephony network in Bangladesh ________________________________ [April], 2006
|
Table of Contents
1 Definitions and Interpretation. 3
2 Facility 9
3 Loan Application and Supply Agreement 9
4 Conditions Precedent and Subsequent 10
5 Utilization 10
6 Interest ………………………………………………………………………………………………… 11
7 Interest Periods. 12
8 Repayment 13
9 Prepayment 13
10 Representations and Warranties. 15
11 Information Undertakings. 18
12 General Undertakings. 19
13 Negative Covenants. 21
14 Taxes. 22
15 Increased Costs – Change of Law.. 23
16 Indemnity 23
17 Expenses. 24
18 Security Documentation. 24
19 Events of Default 24
20 Payment Acceleration. 27
21 Payments to Lender. 28
22 Confidentiality and Disclosure. 28
23 Assignment 29
24 Notices 29
25 Partial invalidity. 31
26 Amendments and waivers. 31
27 Remedies Cumulative. 31
28 Set-off 31
29 Accounts and Certifications. 31
30 Counterparts. 32
31 Law and Jurisdiction. 32
Appendices
Appendix 1 Part 1 – Conditions Precedent 35
Appendix 2 Utilization Requests. 38
Appendix 3 Part 1 – The Shareholders of the Borrower. 39
Appendix 3 Part 2 – Shareholder Loans to the Borrower. 40
Appendix 4 – Form of Guarantee
Appendix 5 – Forms of Bangladeshi Law, UAE Law and English Law Legal Opinions
This Agreement is made on _____________ 2006
Between
(Each hereinafter a ‘Party‘ and together ‘Parties‘)
Background
Whereas the Supplier and the Borrower have entered into the Supply Agreement, for the supply of telecommunications equipment and services to the Borrower as specified therein.
Whereas upon the terms and conditions set forth herein the Lender has agreed to make available a credit to the Borrower to be used to finance in part the amounts payable by the Borrower under the Supply Agreement.
Whereby it is agreed between the Parties as follows:
In this Agreement except where the context requires otherwise, the following expressions, bearing capitalized initial letters have the following meanings:
| ‘Agreement‘ | means this agreement inclusive of all appendices hereto and amendments made in accordance with its provisions; |
| ‘Authorization‘ | means an authorization, consent, approval, resolution licence, permission, permit, exemption, filing, notarization or registration or other grant of similar effect (whether private or public); |
| ‘Available Facility‘ | means the amount of the Facility less the aggregate amount of all Utilizations and, in relation to a Utilization Request, the amount of any Utilizations that are due to be made on or before the proposed Utilization Date; |
| ‘Availability Period‘ | means the period starting on the Closing Date and expiring on the fifteenth day following the date of Final Acceptance under and in accordance with the terms and conditions of the Supply Agreement but not later than on October 31, 2006, extendable on application of the Borrower and written consent of the Lender, or up to the date the Permanent Financing has become effective, whichever is earlier; |
| ‘Break Costs‘ | The amount (if any) by which:exceeds: |
| ‘Business‘ | means the business conducted by the Borrower relating to the provision and operation of telecommunications services and all business ancillary thereto; |
| ‘Business Day‘ | means a day (not being a Saturday or Sunday) on which banks are open for general business in Stockholm, New York City and [ ] ; or in respect of any day on which a LIBOR rate shall be determined a day (not being a Saturday or Sunday) on which banks are open for general business in London; |
| ‘Business Plan‘ | means the financial and business model for the Business approved by the Borrower’s board of directors and delivered to the Lender as amended from time to time; |
| ‘Closing Date‘ | means the date upon which the Lender gives notice to the Borrower of satisfaction of the conditions precedent under Clause 4.1; |
| ‘Contract Price‘ | means [ Dollars ($)] or as otherwise stipulated in the Supply Agreement; |
| ‘Default‘ | means an Event of Default or any event or circumstance specified in Clause 19 which would (with the expiry of any grace period, the giving of any notice, the making of any determination under this Agreement or any combination) be an Event of Default; |
| ‘Equipment‘ | means all the hardware, software and all other equipment supplied or to be supplied under the Supply Agreement; |
| ‘Event of Default‘ | means any event or circumstance specified as such in Clause 19; |
| ‘Facility‘ | means a term loan facility of up to [ ($)] or eighty per cent. (80%) of the Contract Price, whichever is lower, made available under this Agreement as described in Clause 2 to the extent not cancelled or reduced under this Agreement; |
| ‘Final Acceptance‘ | has the meaning ascribed thereto in the Supply Agreement; |
| ‘Final Payment Date‘ | means 30 April 2007 or such later date as may be agreed in writing between the Lender and the Borrower; |
| ‘IFRS‘ | means the International Financial Reporting Standards as adopted from time to time by the International Accounting Standards Board; |
| ‘Instalment Date‘ | means each date on which an instalment of the Term Loan shall be paid by the Borrower pursuant to Clause 8. |
| ‘Interest Period‘ | means the period specified in accordance with Clause 7. |
| ‘LIBOR‘ | means the London interbank offered rate per annum that is determined according to Clause 6.4; |
| ‘Loan Documentation‘ | means this Agreement, the Security Documentation and any other documentation agreed between the Borrower and the Lender as such; |
| ‘Margin‘ | means the appropriate percentage rate per annum that is specified by Clause 6.3; |
| ‘Market Disruption Event‘ | means at or about noon on the Quotation Date for the relevant Interest Period the screen rate is not available and none or only three of the Reference Banks supplies a rate to the Lender to determine LIBOR for the relevant Interest Period; |
| ‘Material Adverse Effect‘ | means an adverse effect on |
| ‘Network‘ | means the GSM mobile telephony network of the Borrower; |
| ‘Permanent Financing’ | means a buyer’s credit facility with export credit agency cover provided by the Swedish Export Credit Guarantee Board to be extended to the Borrower by one or more banks and/or financial institutions; |
| ‘Prudent Industry Practice’ | means good and prudent industry practice as followed by an international GSM mobile telephony network operator; |
| ‘Quotation Date‘ | means in relation to each Interest Period for which an interest rate is to be determined, two Business Days before the first day of that Interest Period; |
| ‘Repeating Representations‘ | means each of the representations and warranties set out in Clauses 10.1.1 to 10.1.5 (both inclusive), 10.1.8, 10.1.10, 10.1.11, 10.1.12, 10.1.14 and 10.1.16; |
| ‘Reference Banks‘ | means four (4) leading international banks selected by the Lender; |
| ‘Security Documentation‘ | means one, joint and several, payment guarantee in the form attached hereto as Appendix 4 from each of the following sponsors of the Borrower, that is to say H.E. Sheikh Suroor Bin Mohammed Al Nahayan, H.E. Sheikh Mohammed Bin Butti Hamid Al Hamid and H.H. Nahayan Mubarak Al Nahayan; |
| ‘Security Provider(s)‘ | means each of the sponsors, or all of them (as appropriate), having entered into the Security Documentation; |
| ‘Shareholders‘ | means the shareholders of the Borrower at the date of this Agreement as listed in Appendix 3; |
| ‘Subordinated Shareholder Debt‘ | means indebtedness of the Borrower to the Shareholders and subordinated to the Term Loan on terms and in form and substance satisfactory to the Lender; |
| ‘Supplier‘ | means Ericsson AB or any other company in the Ericsson Group of Companies; |
| ‘Supply Agreement‘ | means the supply agreement mentioned in Clause 3.1 as it may be amended from time to time; |
| ‘Tax‘ | means any tax, levy, impost, duty or other charge or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same); |
| ‘Term Loan‘ | means the aggregate amount of all Utilizations made under the Facility; |
| ‘Unpaid Sum‘ | means any sum due and payable but unpaid by the Borrower under the Loan Documentation; |
| ‘Utilization‘ | means a utilization of the Facility; |
| ‘Utilization Date‘ | means the date on which a Utilization is to be made or has been made as the case may be; |
| ‘Utilization Request‘ | means a notice substantially in the form set forth in Appendix 2; |
(1) The ‘Lender‘ or the ‘Borrower‘ shall be construed so as to include its successors in title, permitted assigns and permitted transferees;
(2) ‘indebtedness‘ includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent;
(3) a ‘person‘ includes any individual, firm, body corporate, unincorporated association, trust or partnership, (whether or not having separate legal personality), government, state or agency of a state;
(4) ‘regulation‘ includes any regulation, rule, official directive, request, guideline (whether or not having the force of law) of any governmental, intergovernmental or supranational body or agency or department thereof or any regulatory, self-regulatory or other authority or organization;
(5) a ‘provision of law‘ includes that provision as amended or re-enacted;
(6) the ‘singular‘ includes the plural and vice versa;
(7) ‘time periods‘ shall be construed according to the Gregorian Calendar;
(8) a ‘Clause‘ or ‘Appendix‘ means, unless the context otherwise requires, a clause or appendix of this Agreement;
(9) any form of the expression ‘include‘ shall be construed without limitation.
3.2 The Borrower expressly acknowledges that this Agreement and its rights and obligations under this Agreement are independent and completely separate from the Supply Agreement and its rights and obligations under the Supply Agreement and that the liability of the Borrower to repay the Term Loan and to pay any other amount under this Agreement on the due dates therefore, shall not be conditional upon, without limitation, (i) the performance by the Supplier or any other party of the terms of the Supply Agreement or any related contract, and shall not be affected by any claim which the Borrower may have against the Supplier; or (ii) the legality, validity or enforceability of the Supply Agreement (including, but not limited to, the absence of any consents or authorisations required in connection with the Supply Agreement).
(1) any laws or regulations applicable to the Borrower which conflict might, if adversely determined, have a Material Adverse Effect,
(2) the constitutional documents of the Borrower which conflict might, if adversely determined, have a Material Adverse Effect, or
(3) any agreement or instrument binding upon the Borrower or any of its assets which conflict might, if adversely determined, have a Material Adverse Effect.
(1) to enable the Borrower lawfully to enter into, exercise its rights, and comply with and perform its obligations under, the Loan Documentation to which it is a party and the Supply Agreement,
(2) to make the Loan Documentation and the Supply Agreement admissible in evidence in Bangladesh,
have been obtained or effected and are in full force and effect.
(1) irrevocable submission to the jurisdiction of the courts of England and Wales,
(2) agreement that the Loan Documentation is governed by English law, and
(3) agreement not to claim any immunity to which it or its assets may be entitled,
are legal, valid and binding under the laws of Bangladesh.
The Undertakings given in this Clause 11 shall remain in force from the date of this Agreement for so long as any amount is outstanding or a commitment remains in force under the Loan Documentation.
Each of the financial statements delivered by the Borrower shall be certified and signed by its chief executive officer and chief financial officer as truly and fairly representing the financial condition of the Borrower as at the end of the relevant financial year or financial half year and shall be prepared using generally accepted accounting principles in accordance with IFRS as applicable in Bangladesh and consistently applied.
The undertakings given in this Clause 12 and in Clause 13 shall remain in force from the date of this Agreement for so long as any amount is outstanding or any commitment remains in force under the Loan Documentation.
any Authorization required under any law or regulation to enable it to perform its obligations under the Loan Documentation and necessary for the conduct of the Business and operation of the Network and to ensure the legality, validity, enforceability or admissibility in evidence in Bangladesh of any Loan Documentation.
(1) in the ordinary course of the business, and
(2) of accounts receivable on non-recourse terms and inventories,
provided in each case that the assets so disposed of (a) are not essential to the operation of the Network and are not billing or other administrative equipment, and (b) are sold, transferred or disposed of at full market value in cash.
(i) made in the ordinary course of the Borrower’s trading; or
(ii) of assets in exchange for assets comparable or superior as to type, value and quality.
(b) Notwithstanding anything contained in sub-clauses (i) or (ii) above in this Clause 13.6 (a) the Borrower may sell, lease, transfer or otherwise dispose of assets up to one (1%) per cent of the total assets of the Borrower (as shown in its latest audited accounts) in any financial year.
17.1 The Borrower shall, on demand, reimburse the Lender (i) for all reasonable costs and expenses in relation to the preparation and negotiation of the Loan Documentation and the granting of the Facility hereunder, (ii) for all costs and expenses in relation to the registration and perfection of all security interests created by the Security Documentation, (iii) for all reasonable costs and expenses in relation to any amendment or waiver of the Loan Documentation, and (iv) for all costs and expenses in relation to the enforcement or preservation of any rights of the Lender under the Loan Documentation. Fees for legal counsel retained by the Lender for item (i) shall be subject to a cap of USD 60,000. Costs and expenses will be charged to the Borrower at actual cost.
Each of the events or circumstances set out in this Clause 19 is an Event of Default:
any of which in the reasonable opinion of the Lender may have a Material Adverse Effect;
Such order of application shall override any appropriation made by the Borrower.
The terms and conditions of this Agreement and other Loan Documentation are confidential and shall not be disclosed in whole or in part to any person without the prior written consent of both Parties provided that this provision shall not apply to disclosures:
_________________
_________________
Bangladesh
For the attention of: __________________
Telefax: __________________
(b) in the case of the Lender:
FINANCIAL COMPANY 1
Torshamnsgatan 23, Kista
183 64 Stockholm, Sweden
For the attention of : Credit Administration
Telefax: +46 8 719 05 00
or any substitute address, fax number or department or officer as either Party may notify to the other Party under the provisions of this Clause by not less than five (5) Business Days’ notice.
All other documents provided under or in connection with this Agreement must be:
Without prejudice to the provisions of Clause 9.2, if at any time, any provision of this Agreement or other Loan Documentation is or becomes illegal, invalid or unenforceable in any respect neither the legality, validity nor enforceability of the remaining provisions will in any way be affected or impaired.
Any term of this Agreement may be amended or waived only with the written consent of both the Lender and the Borrower.
No failure to exercise, nor delay in exercising, on the part of the Lender, of any right or remedy under the Loan Documentation shall operate as a waiver, nor shall any single or partial exercise of any right or remedy prevent any further or other exercise or the exercise of any other right or remedy.
All remedies for which the Loan Documentation provides are cumulative and not exclusive of any rights or remedies provided by law.
The Lender may set off any matured obligation of the Borrower under the Loan Documentation against any matured obligation owed by the Lender to the Borrower.
The accounts maintained by the Lender in relation to any matters concerning the Loan Documentation and the transactions effected pursuant to the Loan Documentation are prima facie evidence of the matters to which they relate and, in the absence of manifest error, any certification by the Lender of a rate or amount under the Loan Documentation is conclusive evidence of the matter to which it relates.
This Agreement may be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on a single copy of this Agreement.
(b) The arbitral tribunal shall consist of one arbitrator who shall be a Queen’s Counsel of at least five years’ standing. The seat of arbitration shall be London, England and the language of the arbitration shall be English.
(c) Save as provided in paragraph (d) of this Clause 31.2, the parties exclude the jurisdiction of the courts under Sections 45 and 69 of the Arbitration Act 1996.
(d) Before an arbitrator has been appointed to determine a Dispute, the Lender may by notice in writing to the Buyer require that all Disputes or a specific Dispute be heard by a court of law in accordance with Clause 31.3. If the Lender gives such notice, the Dispute to which that notice refers shall be determined in accordance with Clause 31.3.
(a) It is irrevocably agreed that the courts of England shall have exclusive jurisdiction to settle any disputes which may arise out of or in connection with this Agreement and that accordingly any suit, action or proceeding arising out of or in connection with this Agreement may be brought in those courts. The Lender and the Borrower each agrees that the courts of England are the most appropriate and convenient courts to settle disputes and accordingly no party will argue to the contrary.
(b) This Clause 31.3 is for the benefit of the Lender only. Accordingly the Lender shall not be prevented from bringing any suit, action or proceeding arising out of or in connection with this Agreement in any other courts with jurisdiction. To the extent allowed by law, the Lender may take concurrent proceedings in any number of jurisdictions.
The Borrower irrevocably and unconditionally:
In witness whereof this Agreement has been entered into the day, month and year first above written
FINANCIAL COMPANY 1 X Telecommunications [ ]
Signature: _______________________ Signature:______________________
Name: _______________________ Name: _______________________
Title: _______________________ Title: _______________________
duly authorised for and on behalf of duly authorised for and on behalf of
FINANCIAL COMPANY 1 . X Telecommunications [ ]
In the presence of: In the presence of:
Signature: _________________________ Signature: _____________________
Name: Name:
Title: Title:
Address: Address:
Appendix 1
Part 1
Conditions Precedent
Appendix 2
Utilization Requests
From: X Telecommunications (Pvt) Limited.
To: [FINANCIAL COMPANY 1 ]
Dated:
Dear Sirs
Facility Agreement
dated [ ] (the ‘Agreement’)
Proposed Utilisation Date: [ ] (or, if that is not a Business Day, the next Business Day)
Amount: [ ] or, if less, the Available Facility.
Yours faithfully
……………………………………….
authorised signatory for
X Telecommunications (Pvt) Limited
Appendix 3
Part 1 – The Shareholders of the Borrower
Appendix 3
Part 2 – Shareholder Loans to the Borrower
Appendix 4
Guarantee
Appendix 5
Legal Opinions
Drafted by:
For: “The Lawyers & Jurists”
M.L.Hotel Tower Ltd,208,Shahid Syed Nazrul Islam Sarani,
Bijoy Nagar, Dhaka-1000.
www.lawyersnjurists.com