Exhibit 10.105S
[GRAPHIC]
US$32,000,000
FINANCING AND SECURITY AGREEMENT
BETWEEN
PAKISTAN MOBILE COMMUNICATIONS (PRIVATE) LIMITED
AND
MOTOROLA CREDIT CORPORATION
DATED MARCH 5, 1998
FINANCING AND SECURITY AGREEMENT
This Financing and Security Agreement is dated as of 5 March, 1998 (the
"Financing Agreement"), and is entered into by and between PAKISTAN MOBILE
COMMUNICATIONS (PVT.) LTD., a company organized under the laws of Pakistan,
whose principal offices are located at 12th Floor, UBL Binding, Jinnah
Avenue, Blue Area, Islamabad, Pakistan (the "Company"), and MOTOROLA CREDIT
CORPORATION, a Delaware corporation, whose principal offices are located at
One Continental Tower, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇ ("MCC").
PRELIMINARY STATEMENT
WHEREAS, the Company has obtained a license (the "License," as hereinafter
defined) to operate a cellular mobile telephone system in Pakistan;
WHEREAS, Company desires to build and operate the cellular mobile telephone
system equipment necessary to provide the service contemplated by the License;
WHEREAS, MCC's affiliate, Motorola, Inc., a Delaware corporation
("Manufacturer"), has designed hardware and software products for use in
cellular mobile telephone systems;
WHEREAS, pursuant to the GSM Cellular System Equipment Purchase Agreement
dated August 17, 1993, as amended from time to time by amendment or by
purchase order issued pursuant thereto (the "Purchase Agreement"), between
Manufacturer and Company, Company has agreed to purchase certain cellular
infrastructure equipment from Manufacturer;
WHEREAS, in order to enable Company to make such purchases, MCC has agreed to
provide financing to Company, in accordance with the terms and conditions of
this Financing Agreement;
WHEREAS, as a condition precedent to MCC providing such financing, the
Company must enter into this Financing Agreement to set forth certain
representations, warranties and covenants of the Company to MCC;
NOW, THEREFORE, in order to induce MCC to provide the financing described
above and in consideration thereof, the Company hereby agrees and covenants
as follows:
1. DEFINITIONS AND ACCOUNTING TERMS.
(a) Defined Terms.
For the purposes of this Financing Agreement, the following terms shall
have the following meanings:
"$" means United States Dollars or such other lawful currency of the
United States of America as may be substituted as the legal tender of the
United States of America.
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"ADDITIONAL PRINCIPAL PAYMENT" has the meaning set forth in Section
2.4.3 hereof.
"AFFILIATE" of the Company means any Person controlling, controlled by,
or under common control with the Company or any subsidiary (including any
cooperation of which more than 50% of the outstanding capital stock is
directly or indirectly owned or controlled by the Company), any Person
related by Affinity, and/or any Person related by Consanguinity. For
purposes of this definition, a Person shall be deemed to control another
Person if such first Person possesses, directly or indirectly, the power to
direct, or to cause the direction of, the management and policies of such
other Person, whether through ownership of voting securities, by contract or
otherwise. Notwithstanding the foregoing, under no circumstances shall MCC
be deemed an Affiliate of the Company or any subsidiary of the Company for
purposes of this Financing Agreement.
"AFFINITY" means any relationship by marriage or adoption.
"ANNUAL AUDITED FINANCIAL STATEMENT" means, for each fiscal year, an
audited financial statement prepared in accordance with International
Accounting Standards, as applied in Pakistan in accordance with the Companies
Ordinance 1984 ("IAS").
"APPROVED LOANS" means interest-bearing loans and/or ▇▇▇▇-up loans made
in favor of the Company, including Bank Debt, but not loans by stockholders
in favor of the Company.
"BANK DEBT" means the Company's present and future indebtedness to
Citibank International PLC, Citibank N.A. and Saudi Pak Industrial and
Agricultural Investment Company (Pvt.) Limited, or any other debt, each of
which has been or will be guaranteed by Manufacturer.
"BUSINESS DAY" means a day when the Federal Reserve Bank is open for
business in New York, New York, for payments in $__________, and/or when the
SBP and banks are generally open for business in Pakistan, as the locus of
the initiation of the relevant transaction requires.
"BUSINESS PLAN" means the authorized business plan of the Company,
approved by the Board of Directors of PMCL and prepared by the Company in
accordance with Section 4(d) hereof, dated 23 October 1997 and previously
delivered to MCC.
"CELLULAR SERVICE" means mobile telephone services utilizing the
Equipment and/or Services.
"CONSANGUINITY" means any relationship by blood.
"CONTRACT AMOUNT" means the price of the Equipment and the price of
Services purchased or engaged by the Company under the Purchase Agreement as
determined in accordance therewith, plus the costs of shipping the Equipment
to the Company, which includes the costs of design and installation of the
Equipment.
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"DEBT" means Company's indebtedness requiring repayment, other than
loans by stockholders in favor of Company and accounts payable incurred in
the ordinary course of business.
"DEBT SERVICE" means when determined at the end of the preceding twelve
(12) calendar months, the sum of (i) all accrued interest expense incurred by
the Company in such twelve (12) calendar months, plus (ii) all payments of
principal that were scheduled to become due from the Company for the
preceding (12) calendar months, plus (iii) any other financial charges of
whatever nomenclature.
"DEBT SERVICE COVERAGE RATIO" means when determined at the end of any
fiscal quarter, the result of (i)(a) the Company's Free Cash Flow plus (i)(b)
the Debt Service, divided by (ii) the Debt Service.
"DEVELOPMENTS LETTER" means the letter dated 3 March 1998 delivered by
Company to MCC.
"EQUIPMENT" refers to the equipment provided as set forth in the
Purchase Agreement.
"EQUITY" means paid-in capital plus stockholder loans.
"ESCROW ACCOUNT" means the account established and designated to receive
Gross Receipts, denominated in Pakistani Rupees, maintained at ABN AMRO Bank
in Pakistan and administered pursuant to the Escrow Agreement.
"ESCROW AGENT" means ABN AMRO Bank in Islamabad, Pakistan, or such other
agent as may be appointed pursuant to the terms of the Escrow Agreement, from
time to time.
"ESCROW AGREEMENT" means the escrow agreement entered into among MCC,
Company, and ABN AMRO, as escrow agent, as amended from time to time in
accordance with its terms, for the administration of the Escrow Account, the
terms and conditions of which are hereby incorporated by reference, and in
the event applicable law requires a modified format for the Escrow Agreement
to be legally enforceable and effective, the term "Escrow Agreement" shall
refer herein to such modified agreements collectively.
"EVENT OF DEFAULT" has the meaning set forth in Section 8 hereof.
"FREE CASH FLOW" means, when determined at the end of any fiscal
quarter, the amount obtained by adding (i) the Company's net income for such
preceding 12 calendar month period, plus (ii) the Company's depreciation and
amortization expense for such preceding 12 calendar month period, less (iii)
capital expenditures of the Company for such preceding 12 calendar month
period, not financed either by or through MCC or another lending institution,
less (iv) the Debt Service.
"GROSS RECEIPTS" means all moneys earned and collected by Company or its
assignees or designees in connection with the Cellular Service, excluding
central excise duties and payments to PTCL and withholding / advance taxes
with respect to subscribers to the Cellular Service.
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"INITIAL DRAWDOWN DATE" means thirty (30) days following the date of the
invoice raised following the initial shipment under the Purchase Agreement
after execution of this Financing Agreement.
"INTEREST PERIOD" means, for any calendar year, a period equal to six
(6) calendar months commencing on any Payment Date and ending on the next
succeeding Payment Date, throughout which period a particular LIBOR Rate
shall be applicable, as more fully set forth below in the definition of
"LIBOR Rate," except with respect to the initial Interest Period commencing
on the Initial Drawdown Date, with respect to which the applicable Interest
Period shall commence on such Initial Drawdown Date and conclude on the next
succeeding Payment Date that is at least sixty (60) calendar days following
such Initial Drawdown Date.
"INVESTMENT" as applied to any Person means (i) any direct or indirect
purchase or other acquisition by such Person of any notes, obligations,
instruments, stock, securities or ownership interest (including partnership
interests and joint venture interests) of any other Person and (ii) any
capital contribution by such Person to any other Person, other than
investments made in the ordinary course of business which shall not exceed
thirty (30) days in duration and shall be in either government or bank issued
first class securities.
"IWCPL" means International Wireless Communications Pakistan Limited.
"LIBOR RATE" means the London Inter-Bank Offering Rate reported by
Telerate, page 3750, or, if such report is unavailable on the day upon which
such reference is required, by Reuters page "LIBO," at approximately 11:00
a.m., London time, two Business Days prior to the Initial Drawdown Date
(defined above), and thereafter, two Business Days prior to the first
Business Day of each successive Interest Period, which LIBOR Rate shall be
applicable until the day prior to the commencement of the next succeeding
Interest Period.
"LICENSE" means the license granted to the Company to construct and
operate a cellular telephone system in Pakistan, number 7(30)/89-PTC, issued
on 6 July 1992 by the government of Pakistan Ministry of Communications (and
revalidated by Pakistan Telecommunications Authority under a letter dated 9
August 1997).
"LIEN" means any lien, pledge, mortgage, security interest, deed of
trust, charge or other encumbrance on or with respect to, or any arrangement
which has the practical effect of constituting a preferential right of a
creditor to receive payment of any obligation with or from the proceeds of
any asset or revenues of any kind.
"MARKET VALUE" has the meaning set forth in Section 6(b) hereof.
"MATERIAL ASSETS" shall include, without limitation, all assets that are
used, directly or indirectly, to materially impact the provision of Cellular
Service.
"MATERIAL CONTRACTS" means contracts for which the amount in the
aggregate per annum per contract exceeds $100,000.00.
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"MAXIMUM ALLOWABLE DOWN PAYMENT" means, with respect to each purchase
order issued by the Company to Manufacture after execution of this Financing
Agreement, ten percent (10%) of the amount shown on each purchase order.
"MEMORANDUM AND ARTICLES OF ASSOCIATION" means an entity's corporate
charter and by-laws, as amended as of the date hereof, as certified and
registered and attached hereto as Exhibit A, as amended from time to time
with MCC's consent.
"OFFICER'S CERTIFICATE" means a certificate executed by Chief Executive
or other authorized officer of the Person by which such certificate is
required to be provided hereunder.
"OPERATING INCOME" for any period, means income before interest, other
financial charges, depreciation, amortization, taxes or extraordinary items
for such period.
"PAID SUBSCRIBER" means a customer on the Cellular Service which is
current in its payments to the Company and which is charged at current market
rates and terms for such service.
"PAYMENT DATE" means each May 15 and November 15 of each calendar year,
upon which date a payment of interest and/or principal under the Promissory
Note is due.
"PERSON" means an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, an
unincorporated organization and a governmental entity or any department,
agency or political subdivision thereof.
"PRINCIPAL GRACE PERIOD" means twelve (12) months following the Initial
Drawdown Date.
"PRINCIPAL REPAYMENT DATE" means the first Payment Date that occurs at
least 120 days following the conclusion of the Principal Grace Period.
"PROMISSORY NOTE" has the meaning set forth in Paragraph 2.1.2 within.
"PTCL" means Pakistan Telecommunications Company Limited.
"PURCHASE AGREEMENT" has the meaning as set forth in the Preliminary
Statement hereto.
"SAIF" means Saif Telecom (Pvt.) Limited.
"SBP" means the State Bank of Pakistan.
"SEMI-ANNUAL REVIEW" means, on June 1 and December 1 of each calendar
year, the joint review and concurrence of the Company's operating expense
budget by MCC and Company with respect to the allocation of funds to the
Escrow Account for the subsequent semi-annual period.
"SERVICES" refers to the services provided as set forth in the Purchase
Agreement.
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"TARGET FIGURES" has the meaning set forth in Section 4(d) hereof.
"UNMATURED EVENT OF DEFAULT" shall mean any event which with the giving
of notice, passage of time or both would constitute an Event of Default
hereunder.
2. THE CREDIT FACILITY.
2.1 Facility; Promissory Note.
2.1.1 MCC agrees, subject to the conditions set forth herein, to make
available for lending to Company from time to time, on a non-revolving basis
(the "Line of Credit"), up to a maximum aggregate of $32,000,000.00, which
sum shall be available for financing of (i) new purchases of Equipment and
Services, less required down payments, and (ii) up to $7,500,000.00 of
purchases of Equipment and Services made prior to the date of this Financing
Agreement. Funds shall remain available for drawdowns under the Line of
Credit until the last Business Day of the 18th month following the date of
this Financing Agreement, unless earlier terminated pursuant to Section 8.
MCC reserves the right to terminate this Line of Credit in the event the
Purchase Agreement is terminated for any reason. In addition, if at any time
the making or continuance of financing hereunder has been made unlawful under
applicable law, MCC shall have the option to accelerate the loan, demand any
payment or convert such financing into an alternative loan, at MCC's
discretion reasonably exercised, and subject to government approvals, if
required.
2.1.2 Drawdowns under the Line of Credit will be evidenced by a
promissory note (the "Promissory Note"), and other documents as may be
reasonably requested by MCC. The Company hereby irrevocably authorizes MCC
at any time to endorse on a grid appended to the Promissory Note or record on
MCC's books and records the amount of any drawdowns disbursed by MCC to or on
behalf of the Company, the outstanding balance of all advances at any time,
the calculation of any interest amount thereon, and the repayment of any
principal or interest amount thereof, in accordance with the terms hereof.
Absent manifest error, such endorsement or record shall be prima facie
evidence of the principal and interest amount owing on the Promissory Note in
any proceeding to enforce the payment thereof. Immediately upon any entry or
amendment to the Promissory Note, a facsimile of such grid will be forwarded
to Company for its records, as certified true and correct.
2.2 Payment Terms. For any purchases of Equipment or Services under
the Purchase Agreement, Company may finance with proceeds of the Line of
Credit up to 90% of the Contract Amount, provided that Company has made the
Maximum Allowable Downpayment. To the extent the Company has not paid any
amounts to Manufacturer when due pursuant to the terms of the Purchase
Agreement, MCC may make a disbursement hereunder, evidenced by the Promissory
Note, and shall notify the Company thereof. Any such disbursement will be
treated in all respects as a drawdown of such amount on the date of such
disbursement.
2.3 Drawdowns. Company may request a drawdown under the Line of Credit
by giving MCC a draw down request certification substantially in the form of
Exhibit B attached hereto, referencing the Equipment or Services purchase
order for which funds are being requested. The drawdown must be in
accordance with the Business Plan and is subject to all other conditions set
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forth under this Financing Agreement, including without limitation the
conditions precedent set forth in Section 7.
2.4 Interest and Repayment of Principal. Company shall pay interest and
repay principal on the Promissory Note, as follows:
2.4.1 Interest on the amounts outstanding from time to time under the
Promissory Note shall accrue commencing on the Initial Drawdown Date, until
all amounts outstanding under the Promissory Note have been repaid in full.
2.4.2 Interest shall be calculated on the outstanding principal balance
of the Promissory Note at a floating rate equal to the six-month LIBOR Rate
in effect from time to time plus one and one-half percent (1.5%) per annum.
Interest shall be calculated on a 360-day year basis for actual days elapsed
and shall be payable in arrears on each succeeding Payment Date. The
interest rate shall be determined two (2) Business Days prior to the Initial
Drawdown Date and two (2) Business Days prior to the first Business Day of
each successive Interest Period thereafter.
2.4.3 Subject to the provisions of Section 2.6.2, and unless and until an
Event of Default has occurred causing acceleration of payment, the principal
balance of the Promissory Note outstanding from time to time shall be due and
payable in eight (8) consecutive and substantially equal semi-annual
installments, each installment being due and payable on successive Payment
Dates with the first such installment being due and payable on the Principal
Repayment Date. The initial principal repayment shall, when paid, reduce the
outstanding principal amount under the Promissory Note by an equivalent
amount, and be made together with (i) a cash payment equal to the greater of
one-half (1/2) of the Maximum Allowable Down Payment and five percent (5%) of
the amount shown on each purchase order issued by the Company to Manufacturer
after execution of this Financing Agreement (the "Additional Principal
Payment"), which when paid shall reduce the outstanding principal under this
Promissory Note by an equivalent amount, plus (ii) accrued and unpaid
interest, and thereafter, accrued and unpaid interest shall be payable
together with each repayment of principal hereunder. If not paid earlier,
all principal and interest shall be due and payable on the first Business Day
following the conclusion of the 48th month after the Principal Grace Period.
Thirty (30) days prior to any Payment Date, MCC shall give notice in writing
to Company, with a copy to Escrow Agent, of such amounts due and payable on
such Payment Date.
2.4.4 If any payment on the Promissory Note is not received by MCC on or
before the due date thereof, the Company shall pay a delinquency charge
calculated on such unpaid amount at the lesser of one percent (1%) per
calendar month, or partial calendar month, or the maximum rate permitted by
applicable law, for the term of the delinquency from the date on which such
amount was due until paid in full.
2.4.5 Each payment of principal, interest and/or delinquency charges
required or permitted to be made hereunder or under the Promissory Note shall
be free from and net of all taxes, charges, fees, costs, expenses or duties
imposed by any governmental authority in Pakistan, and if any such
governmental authority requires the withholding of any of the foregoing by
Payor, Payor shall pay to Payee an additional amount with respect to each
payment hereunder such that the
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amount actually received by Payee shall be the amount which Payee would have
received in the absence of such withholding obligation.
2.5 Escrow Agreement. All Gross Receipts shall be paid into the Escrow
Account in accordance with the Escrow Agreement.
2.5.1 INTENTIONALLY DELETED
2.5.2 INTENTIONALLY DELETED
2.5.3 INTENTIONALLY DELETED
2.5.4 INTENTIONALLY DELETED
2.5.5 INTENTIONALLY DELETED
2.6 Prepayments.
2.6.1 Optional Prepayment. Company may, at its option, on any Business
Day, prepay any amount under the Promissory Note, in whole or in part, upon
at least five (5) Business Days' written notice to MCC specifying the amount
of prepayment. Such notice shall be irrevocable and the payment amount
specified in such notice shall be due and payable together with accrued
interest to such date on the amount prepaid. The principal amount prepaid
shall be a minimum of $1,000,000 or an integral multiple thereof.
2.6.2 Mandatory Prepayments. The Company shall make mandatory
prepayments to MCC upon the following occurrences and in amounts and upon
terms as set forth below. All prepayments of principal shall be accompanied
by payment of interest accrued thereon.
2.6.2.1 Provided that Company has received approval from SBP, which Company
shall seek in good faith, on or before the fifth (5th) Business Day following
the date Annual Audited Financial Statements are required to be delivered for
each fiscal year pursuant to this Financing Agreement, Company shall make
mandatory annual prepayments to MCC of amounts financed hereunder in an
amount equal to fifty percent (50%) of Company's Free Cash Flow for such
immediately preceding fiscal year, as set forth in the Annual Audited
Financial Statements.
[2.6.2.2 THROUGH 2.6.2.4 - INTENTIONALLY OMITTED.]
2.6.3 Effect of Prepayment. Any prepayment shall be applied (i) if such
prepayment is made pursuant to Section 2.6.2.1, to the next payments due
hereunder, or (ii) for any other prepayments, to the installments of
principal in inverse order of maturity thereof. Any prepayments described
under cause (ii) of the preceding sentence shall not relieve Company from the
obligation of paying the current or any succeeding installment or
installments of principal under the Promissory Note until the total
obligation under such Promissory Note is paid.
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3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
3.1 As a material inducement to MCC to enter into this Financing
Agreement and to fund the drawdowns referred to in Section 2.3, the Company
represents and warrants to MCC as follows as of the date hereof:
(a) Organization and Corporate Power. The Company is duly organized
and validly existing under the laws of the government of Pakistan and is duly
licensed to render Cellular Service. The Company has all requisite power and
authority and all material licenses, permits and authorizations necessary to
own and operate its properties, to carry on its businesses as now conducted
and presently proposed to be conducted and to carry out the transactions
contemplated by this Financing Agreement. The copies of the Memorandum and
Articles of Association of the Company delivered by the Company to MCC
reflect all amendments made thereto at any time prior to the date of this
Financing Agreement and are correct and complete.
(b) Authorization. The execution, delivery and performance by the
Company of this Financing Agreement are within its powers, have been duly
authorized by all necessary action, and do not contravene (i) the Memorandum
and Articles of Association, (ii) any contractual restriction binding on or
affecting the Company, including without limitation, any restriction under
the terms of any indenture, agreement or other instrument to which the
Company is a party or by which it is bound, or (iii) any regulation, law
(including, but not limited to, securities, banking, lending and other
commercial laws and regulations), order or similar item biding on or
affecting the Company or an order of any court or other agency of government.
(c) Governmental Approvals. Other than the registration of this
Financing Agreement with SBP, and exemption from taxes to be obtained from
the Ministry of Finance, Government of Pakistan, no authorization or approval
or other action by, and no notice to or filing with, any governmental
authority or regulatory body is required for the due execution, delivery and
performance by the Company of this Financing Agreement.
(d) Legal, Valid and Binding Obligation. This Financing Agreement
constitutes the legal, valid and binding obligation of the Company
enforceable against it in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency or other
law affecting creditors' rights generally and by general equitable principles.
(e) Litigation. Other than as set forth in the Developments Letter,
there is no pending or, to the best knowledge of the Company, threatened
action or proceeding or arbitration, which could materially adversely affect
the financial condition or operations of the Company or that could materially
affect the License.
(f) Ethics. To the best knowledge of the Company, neither the Company
nor any of the current or previous stockholders of the Company has engaged in
any improper, illegal or unethical act, practice or omission in connection
with the formation, capitalization or operation of the Company, the obtaining
of the License, or in connection with any other activities of the Company,
including, without limitation, the making of any payments, loans or gifts or
promises or offers of payments, loans or gifts of any money or anything of
value, directly or indirectly,
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(i) to or for the use or benefit of any official employee of any government,
(ii) to any political party or official or candidate thereof, (iii) to any
other person if any part of such payment, loan or gift has been or will be
directly or indirectly given or paid to any such governmental official or
political party or a candidate or official thereof, or (iv) to any other
Person, which action would result in any rescission, revocation, or
non-renewal of the License or has violated or would violate the laws or
policies of Pakistan.
(g) Defaults. The Company is not in default with regard to any
material indebtedness or agreement to which it is a party or by which it or
its properties may be bound.
(h) Subsidiaries. The Company has no Subsidiaries, and does not own or
hold any rights to acquire any shares of stock or other security or interest
in any other Person.
(i) Financial Statements. All financial statements or related
financial information previously delivered to MCC by the Company in
connection with this Financing Agreement are accurate in all material
respects, and are consistent with the books and records of the Company.
(j) Absence of Undisclosed Liabilities. The Company has no material
obligation or liability (whether accrued, absolute, contingent, unliquidated
or otherwise, whether or not known to the Company, whether due or to become
due and regardless of when asserted) arising out of transactions entered into
on or prior to the date hereof, or any action or inaction on or prior to the
date hereof, or any state of facts existing on or prior to the date hereof
other than: (i) any liabilities shown in the Developments Letter, and (ii)
liabilities and obligations which have arisen in the ordinary course of
business (none of which is a liability resulting from breach of contract,
breach of warranty, tort, infringement, claim or lawsuit).
(k) Absence of Certain Developments. Except as expressly contemplated
by this Financing Agreement, the Purchase Agreement, or as set forth in the
Developments Letter, since its organization, the Company has not:
(i) Issued any notes, bonds or other debt securities or (b) any
equity securities, or any securities convertible, exchangeable or exercisable
into any equity securities, out of the ordinary course of business;
(ii) Borrowed any amount or incurred or become subject to any
material liabilities, except current liabilities incurred in the ordinary
course of business and liabilities under contracts entered into in the
ordinary course of business;
(iii) Discharged or satisfied any material Lien or encumbrance or
paid any material obligation or liability, other than current liabilities
paid in the ordinary course of business;
(iv) Declared or made any payment or distribution of cash or other
property to its stockholders with respect to its stock or purchased or
redeemed any shares of its stock or any warrants, options or other rights to
acquire its stock;
(v) Mortgaged or pledged any of its properties or assets or
subjected them to any material Lien, except Liens for current property taxes
not yet due and payable;
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(vi) Sold, assigned or transferred any of its tangible assets,
except in the ordinary course of business, or canceled any material debts or
claims;
(vii) Sold, assigned or transferred, any patents or patent
applications, trademarks, service marks, trade names, corporate names,
copyrights or copyright registrations, trade secrets or other intangible
assets, or disclosed any material proprietary confidential information to any
Person;
(viii) INTENTIONALLY OMITTED.
(ix) Entered into any other transaction not otherwise listed on the
schedules hereto or in the Developments Letter other than in the ordinary
course of business or entered into any other material transaction not
otherwise listed on the schedules hereto or in the Developments Letter,
whether or not in the ordinary course of business;
(x) Made any loans or advances to, guarantees for the benefit of,
or any Investments in, any Persons, other than advances to employees for
business expenses, housing, automobiles, and emergency expenses in the
aggregate of $750,000.00 per calendar year, and no more than $75,000.00 per
employee per calendar year made in the ordinary course of business;
(xi) Made any charitable contributions or pledges exceeding in the
aggregate the sum of $30,000.00 per calendar year; or
(xii) Suffered any damage, destruction or casualty loss exceeding in
the aggregate $100,000, whether or not covered by insurance.
(l) Assets. The Company has good and marketable title to, or a valid
leasehold interest in, the properties and assets used by it, located on its
premises or shown on its most current balance sheet or acquired thereafter,
free and clear of all Liens, security interests, charges and encumbrances,
except for properties and assets disposed of in the ordinary course of
business and except for liens for current property taxes not yet due and
payable. The Company's buildings, equipment and other Tangible Assets are in
good operating condition in all material respects, ordinary wear and tear
excepted, and are fit for use in the ordinary course of business. The
Company owns, or has a valid leasehold interest in, all assets necessary for
the conduct of its business as conducted and as proposed to be conducted.
(m) Tax Matters. Other than with respect to validly and diligently
disputed matters, the Company has filed all tax returns which it is required
to file; all such returns are true and correct in all material respects; the
Company has in all material respects paid all taxes owed by it and withheld
and paid over all taxes which it is obligated to withhold from amounts owing
to any employee, creditor or third party; the Company has not waived any
statute of limitations with respect to taxes or agreed to any extension of
time with respect to a tax assessment or deficiency; and, the assessment of
any additional taxes for periods for which returns have been filed is not
expected to exceed the recorded liability therefor on its most current
balance sheet.
(n) Contracts and Commitments.
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(i) Except as expressly contemplated by this Financing Agreement or the
Purchase Agreement, or as shown in the Development Letter, as of the date
hereof the Company is not a party to any written or oral;
(A) Pension, profit sharing, stock option, employee stock purchase or
other plan or arrangement providing for deferred or other compensation to
employees or any other employee benefit plan or arrangement or any severance
agreements;
(B) Contract for the employment of any officer, individual employee or
other Person on a full-time, part-time, consulting or other basis, other than
in the ordinary course of business, or contract relating to loans to
officers, directors, employees or Affiliates;
(C) Contract under which the Company has advanced or loaned funds to
any Person, other than as provided under Paragraph 3.1(1)(x);
(D) Agreement or indenture relating to the borrowing of money or the
mortgaging, pledging or otherwise placing a Lien on any asset of the Company,
other than in the ordinary course of business and not exceeding in the
aggregate the sum of $250,000.00;
(E) Guarantee of any obligation;
(F) Lease or agreement under which the Company is lessee of or holds or
operates any property, real or personal, owned by any other party, except for
any lease of real or personal property under which the aggregate annual
rental payments do not exceed $1,000,000;
(G) Lease or agreement under which the Company is lessor of or permits
any third party to hold or operate any property, real or personal, owned or
controlled by the Company;
(H) Without the prior written approval of MCC, and except for equipment
purchased or contracted to be purchased in connection with the provision of
Cellular Service, contract or group of related contracts with the same party
or group of affiliated parties the performance of which involves a
consideration in excess of $100,000;
(I) Assignment, license, indemnification or agreement with respect to
any intangible property (including, without limitation, any license, patent,
trademark, trade name, copyright, know-how, trade secret or confidential
information);
(J) INTENTIONALLY DELETED.
(K) INTENTIONALLY DELETED.
(ii) The Company has no Material Contracts for which consideration
exceeds $100,000.00 per contract per annum, other than the Purchase Agreement
and the contracts set forth on the Developments Letter, and has performed all
material obligations required to be performed by it under all contracts,
agreements and instruments applicable to it and is not in default under or in
breach of nor in receipt of any claim of default or breach under any
contract, agreement or instrument to which the Company is subject; no event
has occurred which with the
13
passage of time or the giving of notice or both would result in a default,
breach or event of noncompliance under any contract, agreement or instrument
to which the Company is subject; the Company does not have any present
expectation or intention of not fully performing all such obligations; the
Company has no knowledge of any breach or anticipated breach by the other
parties to any material contract or commitment to which it is a party; and
the Company is not a party to any materially adverse contract or commitment.
(iii) MCC has been supplied with a true and correct copy of each of
the Material Contracts and an accurate description of the oral contracts that
are material contracts, together with all amendments, waivers or other
changes thereto.
(o) Compliance with Laws. The Company has not violated any law or any
governmental regulation or requirement which violation would reasonably be
expected to have a material adverse effect upon the financial condition,
operating results, assets, operations or business prospects of the Company
and the Company has not received notice of any such violation. The Company
is not subject to any clean up liability, and has no reason to believe it may
become subject to any clean up liability, under any federal, state or local
environmental law, rule or regulation.
(p) Affiliated Transactions. No Affiliate, officer, director or
stockholder of the Company or any individual related by blood, marriage,
adoption or otherwise to any such Affiliate, officer, director or stockholder
or any Person in which any such officer, director, stockholder or individual
related thereto owns any beneficial interest, is a party to any agreement,
contract, commitment or transaction with the Company, or an agreement that
was entered into on an arm's length basis upon reasonable commercial terms,
nor does any such party have any material interest (other than on an arm's
length basis upon reasonable commercial terms) in any material property used
by the Company.
(q) No Material Adverse Change. Since January 1, 1997, there has been
no material adverse change in the financial condition, operating results,
assets, operations, business prospects, employee relations or customer or
supplier relations of the Company.
3.2 The representations and warranties of the Company referred to in
Section 3.1 are deemed to be replaced by the Company on the date of each
drawdown referred to in Section 2.3.
4. AFFIRMATIVE COVENANTS.
(a) Compliance with Laws and the License. The Company shall fully
comply in all respects (except where the noncompliance could not result in
the License being terminated or being in default) with the terms of the
License and comply in all material respects with all applicable laws, rules,
regulations and orders, with such compliance to include, without limitations,
compliance with the Foreign Corrupt Practices Act of the United States of
America and the laws of the United States and Pakistan regarding business
ethics; pay when due all taxes, assessments and governmental charges imposed
upon it or upon its property, except to the extent not yet due or diligently
being contested in good faith and by proper legal proceedings, and
14
maintain in effect all authorizations and approvals necessary for the
performance of the Company's obligations hereunder.
(b) Corporate Existence. The Company shall maintain and preserve its
corporate existence, its rights to transact business and all other rights,
licenses, concessions and privileges necessary for the conduct of its
business and operations, including all permits, licenses, concessions and
authorizations, if any, required of Company under or in connection with the
License or otherwise to provide Cellular Service in Pakistan.
(c) Financial Statements and Other Information.
(I) The Company shall furnish to MCC:
(i) As soon as available, but in any event within 60 days after the
end of each quarterly accounting period in each fiscal year, un-audited
financial statements of the Company, including profit and loss statement,
balance sheet, and cash flow statement, for such quarterly period and for the
period from the beginning of the fiscal year to the end of such quarter
setting forth comparisons to the Business Plan and to the corresponding
period in the preceding fiscal year with specific reference to subscriber
data;
(ii) As soon as available, but in any event within 120 days after
the end of each fiscal year, the Company's Annual Audited Financial Statement;
(iii) Accompanying the financial statements referred to in
subparagraph (i) and (ii), an Officer's Certificate stating that no Event of
Default or Unmatured Event of Default exists and that, to the best of its
knowledge, the Company is not in default under any of its other Material
Contracts or, if any Event of Default or Unmatured Event of Default, or any
such default exists, specifying the nature and period of existence thereof
and what actions the Company has taken and proposes to take with respect
thereto;
(iv) Within twenty-one (21) days after the Company knows of the
occurrence of an Unmatured Event of Default, a statement from the Company
stating the nature of such event and the actions the Company proposes to take
with respect thereto;
(v) Within fourteen (14) days after any written notice is served
upon Company with respect to any action, legislation, occurrence, event or
proceeding which is likely (viewed from a reasonable person's view at the
time of receiving such notice) to have a material adverse effect on the
business, operations, or future prospects for the Company, the property
thereof, a certificate of an officer of the Company stating the nature of
such action, legislation, occurrence, event or proceeding and the actions
proposed to be taken by the Company with respect thereto; and
(vi) With reasonable promptness, such other information and
financial data concerning the Company as MCC may reasonably request.
15
Each of the financial statements or reports referred to above shall be
prepared substantially in accordance with IAS, consistently applied, and
shall be true and correct in all material respects as of the dates and for
the periods stated therein.
(II) The Company also covenants to engage in the Semi-Annual Review reasonably
and promptly.
(d) The Business Plan.
(i) The Initial Business Plan. The initial Business Plan, including
the operating expenditures, has been approved by MCC. Such Business Plan
sets forth annual projections and quarterly projections for calendar year
1998 for revenues, operating expenses, capital expenditures, subscriber
projections, and balance sheets.
(ii) Performance Review. The officers of the Company shall make
themselves reasonably available by telephone during each 15 day period
following MCC's receipt of the financial information required to be delivered
by the Company pursuant to Section 4(c)(i) or (ii) hereof, in order to
discuss and review the Company's results shown on such financial statements
with representatives of MCC.
(e) Insurance. The Company shall obtain and maintain adequate
insurance in connection with the Equipment, covering such risks and in such
amounts as are consistent with sound management practices considering the
nature of the business being conducted by the Company, naming MCC as an
additional named insured and loss payee thereunder, as well as an assignee.
The Company shall deliver proof of the foregoing within 15 days after the
date hereof and no less often than annually thereafter.
(f) Access. At the request of MCC, the Company shall permit any
representative designated in writing by MCC to inspect the properties and/or
accounting records of the Company during working days and hours, with
reasonable notice.
(g) Records. The Company shall maintain books of account and other
records adequate to accurately reflect the financial position and the results
of the Company.
(h) Discharge Obligations. The Company shall pay, discharge or
otherwise satisfy when due in the ordinary course of business all debts,
where the failure to so pay, discharge or otherwise satisfy such items could
have a material adverse effect on the Company.
(i) Maintenance of Properties. The Company shall maintain in good
order and appropriate working condition all the properties and assets of the
Company, except for normal wear and tear.
(j) Minutes and Agendas from Board Meetings. The Company shall provide
MCC with the agenda of each meeting of its board of directors at the same
time that it delivers such agendas to its directors. In addition, the
Company shall deliver to MCC, at the same time that they are delivered to the
directors, any of the following which relate to or affect the Business Plan,
the Financing Agreement or the Purchase Agreement: the draft minutes of any
such
16
meeting together with any written materials and other information distributed
to the directors in connection with such meeting and within 30 days of the
availability thereof, a copy of such minutes as certified by the secretary of
the Company.
(k) The Company shall maintain a minimum debt to Equity ratio of 1:1 at
all times, where Equity is fully paid, and in accordance with the Business
Plan.
(l) IWCPL shall, by September 30, 1998, reduce Manufacturer's guaranty
of the Bank Debt in accordance with the Amended and Restated Shareholders
Agreement dates as of August 13, 1997 (the "Shareholders Agreement"),
provided, however, that there shall have occurred no breach of this covenant
if IWCPL fulfills all obligations, rights and remedies to MIDC under the
Shareholders Agreement.
(m) The stockholders of the Company (other than Manufacturer) shall
covenant not to divest themselves in any material respect of their present
stockholdings of the Company, except for the sale or transfer of shares
between current stockholders of the Company, without the prior written
consent of MCC, which shall not be unreasonably withheld.
(n) The Company shall ensure that the financing provided hereunder
ranks senior to all other debt at any time, other the Bank Debt.
5. NEGATIVE COVENANTS.
(i) Change of Status. Without the prior written consent of MCC,
which consent shall not be unreasonably withheld, the Company shall not enter
into any merger or consolidation or amalgamation, reorganization,
re-capitalization, liquidation, winding up or dissolution (or suffer any
liquidation or dissolution), or convey, sell, lease, assign, transfer or
otherwise dispose of any of its Material Assets valued in the aggregate
greater than $500,000.
(ii) Liens. Without the prior written approval of MCC, which
approval shall not be unreasonably withheld, the Company shall not create or
suffer or permit to exist any Lien on any of the properties, assets, income
or profits of the Company, whether now or hereafter acquired, other the those
expressly contemplated by this Financing Agreement, in excess of $100,000 in
the aggregate, except that the Company may, at the time of the purchase of
personal property, grant a purchase money security interest on such personal
property to the extent that all such purchase money security interests, in
the aggregate, secure debt of not more than $100,000.
(iii) INTENTIONALLY DELETED
(iv) Violation of Other Agreements. The Company shall not violate or
permit the violation of any Material Contract by the Company or the
stockholders with or involving MCC (except to the extent any offset is
appropriately done) or any other material agreement to which any of them is a
party, which violation is not cured within 30 days of its occurrence.
(v) Charter and License. The Company shall not amend or waive in
any respect any term in the Memorandum and Articles of Association, or fail
to comply in all material respects
17
with all terms of such documents or attempt to modify or amend any provision
of the License, which materially adversely impacts the rights of Company
hereunder.
(vi) Contracts not Terminable within 90 Days. The Company shall not
enter into any management, employment or consulting contract or agreement
which cannot be canceled by the Company, without penalty, upon 90 days'
notice to the other party or parties thereto in the event MCC exercises its
rights to take over control of the Company following a default hereunder.
(vii) Dividends. The Company shall not incur, make, or permit any
action by any director or stockholder involving, any payment of any dividend
or distribution or the distribution of earnings or capital, either directly
or indirectly, whether in cash, property or obligations or the repurchase,
reduction or redemption of any capital stock, except that a declaration by
the bond of directors of the Company of payment of a dividend shall be
permissible if and only if (a) there has been no Event of Default hereunder,
(b) a Debt Service Coverage Ratio of 1.5:1 is achieved, based on the Annual
Audited Financing Statement, (c) thirty-six (36) months has transpired since
the date of this Financing Agreement, and (d) such declared dividend is not
in excess of fifty percent (50%) of the Free Cash Flow.
(viii) Loans. Without the prior written approval of MCC, which shall
not be unreasonably withheld, the Company shall not enter into any loan
transactions, except for loans that are subordinate in all respects to the
Company's obligations to MCC, including without limitation the Bank Debt.
6. COLLATERAL/SECURITY INTEREST
MCC shall receive the following (the "Collateral"), as security for the
repayment of any and all amounts from time to time outstanding hereunder and
under the Promissory Note:
(a) A valid first priority lien (including warranties and assurances)
and, to the extent possible, perfected security interest in all Equipment and
Services and proceeds of the sale or transfer thereof in the form of Exhibit
G hereto;
(b) A valid and perfected pledge of capital stock of the Company held
by all of its stockholders, other than SAIF, on a pro rata basis, with a
Market Value satisfactory to MCC, as set forth in the Stock Pledge Agreement.
("Market Value" means, with respect to the stock pledge described herein,
the per share value determined by dividing a certain aggregate value by the
number of issued and outstanding shares of the Company.)
(c) A valid first priority collateral assignment of certain accounts in
favor of MCC or its assignee, as set forth in the Escrow Agreement;
(d) INTENTIONALLY DELETED
(e) A valid first priority collateral assignment of Company's political
risk insurance, satisfactory in form and substance to MCC; and
(f) INTENTIONALLY DELETED.
18
7. CONDITIONS PRECEDENT
Notwithstanding any over provision hereof, MCC is not obligated to
disburse any drawdowns until each of the following conditions has been
satisfied:
(a) MCC has received:
(i) Written evidence of all necessary government approvals, permits,
licenses, and certificates required in connection with the transactions
contemplated hereunder;
(ii) Executed originals of the Promissory Note, and executed
counterparts of all documents and agreements referred to in Section 6 hereof;
(iii) Original copies of the resolutions duly adopted by the Company's
board of directors, certified by the President or Secretary of the Company,
authorizing the execution, delivery and performance of this Financing
Agreement, the Promissory Note, the Escrow Agreement in the form of Exhibit E
attached hereto, and each of the other documents and agreements contemplated
hereby or thereby by the Company, and the consummation of all other
transactions contemplated by this Financing Agreement, an incumbency
certificate showing offices and signatures of all signatures to this
Financing Agreement and all documents and agreements contemplated hereby;
(iv) A notarized copy of the Memorandum and Articles of Association
of the Company a notarized copy of the License as each is in effect on the
date hereof and registered, if necessary, under the laws of Pakistan;
(v) Certification by an authorized officer of the Company that the
License remains in effect, that the Company is in full compliance with all
terms of the License, and that all approvals required therefor have been
obtained;
(vi) Legal opinions of counsel to Company, satisfactory to MCC;
(vii) The original stock of the Company pledged to MCC pursuant to the
Stock Pledge Agreement attached hereto as Exhibit F, together with
certification by independent accountants acceptable to MCC that (a) all stock
is fully paid, and (b) there is a minimum paid-in capital as required by the
covenants set forth in Section 4 hereof;
(viii) A copy of a valid and effective interconnect agreement or
evidence of a temporary interconnect agreement entered into by Company, which
latter shows progress toward a permanent interconnect agreement;
(x) Confirmation that MCC is named as a loss payee with respect to
the insurance policies established by Company in relation to the Equipment;
(xi) Satisfactory evidence that CT Corporation System, New York NY
has agreed to act as the agent of the Company for service of process in
connection with Financing Agreement and the Escrow Agreement; and
19
(xii) Any other documents, instruments, or agreements reasonably
deemed necessary by MCC in connection with the financing provided hereunder.
(b) Manufacturer has heretofore received from the Company in cash the
Maximum Allowable Down Payment for the Equipment and Services referenced in
the Drawdown Certificate.
8. EVENTS OF DEFAULT AND CONSEQUENCES.
(a) Each of the following events or occurrences shall constitute an
"Event of Default" hereunder:
(i) Any representation or warranty made or deemed made by the
Company under or in connection with this Financing Agreement, the Purchase
Agreement or any certification or document delivered hereunder or thereunder,
shall prove to have been incorrect in any material respect when made;
(ii) The Company (i) fails to make any payment when due hereunder,
which failure continues for thirty (30) days after notice thereof, or (ii)
fails to perform or observe any other material term, covenant or agreement
contained in the Purchase Agreement or this Financing Agreement, which
failure, in the case of (ii), continues for ten (10) days after notice, or
(iii) fails to pay under any loans (other than under this Financing
Agreement) in an amount in excess of $500,000 in the aggregate, such amount
remaining unpaid for a continuous period of thirty (30) days from the
respective due date thereof;
(iii) The Company admits in writing its inability to pay its debts as
they become due or makes a general assignment for the benefit of creditors;
or any proceeding is instituted by or against the Company seeking to
adjudicate it as bankrupt or insolvent or seeking reorganization,
arrangement, adjustment, or composition of it or its debt under any law
relating to bankruptcy, insolvency or reorganization or relief of debtors, or
seeking appointment of a receiver, trustee or other similar official for it
or for any substantial part of its property, other than an action instituted
by a party other than the Company which is dismissed within 60 days of it
inception, or, based upon an opinion provided by Pakistani counsel,
acceptable to MCC, is shown in good faith to be a frivolous action, unlikely
to succeed, or the Company takes any corporate action to authorize any of the
actions set forth above in this subsection (iii);
(iv) Any governmental authority or any Person acting or proposing to
act under governmental authority takes any action to condemn, seize or
appropriate, or to assume custody or control of all or any substantial part
of the properties of the Company, takes any action against the Company or
otherwise to suspend, seize or assume control of the License, or takes any
action to displace the management of the Company or to curtail its authority
in the conduct of its business;
(v) The License is for any reason, (i) revoked or suspended for a
period of more than thirty (30) days or (ii) terminated;
20
(vi) Upon notification, oral or written, from Pakistan
Telecommunication Authority to the Company or an officer or director thereof
of a violation, or significant dissatisfaction with the Company's
performance, of any condition of the License, (a) which violation is not
cured within the time specified in such notice, as evidenced by a writing
from a competent official of Pakistan Telecommunication Authority, or (b)
unless such violation cannot reasonably be rectified within the time
specified in such notice, and the Company shall have immediately and
diligently, upon receipt of such notice, commenced remediation of such
violation, as evidenced by a writing from a competent official of Pakistan
Telecommunication Authority;
(vii) The incurring of any debt, whether senior or subordinated to
the financing provided hereunder, without the prior written consent of MCC,
except such financing as is expressly permitted hereunder;
(viii) If Company shall, at any time, terminate any purchase order for
Equipment valued excess of $2,000,000.00 under the Purchase Agreement other
than due to Manufacturer's failure to substantially perform the terms thereof;
(ix) If, at any time, the Company shall have removed from its
Cellular Service (other than on a temporary basis) 25% or more of the
equipment purchased from Manufacturer (measured according the Contract Amount
of such equipment at the time of purchase by the Company) unless replaced
with other Manufacturer equipment; and
(x) If the Company at any time enters into any financing or
refinancing agreement involving the assets purchased with the proceeds hereof.
(b) Upon the occurrence of any Event of Default, (i) MCC may, upon
written notice to the Company, take any and all permitted actions hereunder
or in connection with this Financing Agreement, and documents and agreements
delivered in connection herewith, including without limitation, declaring all
amounts outstanding hereunder and under the Promissory Note due and payable,
and/or (ii) MCC may refuse to make further advances hereunder, and/or (iii)
MCC may direct Manufacturer to halt further shipments of Equipment to the
Company.
(c) At any time after an Event of Default has occurred, the Company
shall give MCC written notice of each meeting of its board of directors and
each committee thereof at least five business days in advance of such meeting
and the Company shall permit a representative of MCC to attend as an observer
all meetings of its board of directors and all committees thereof; provided
that in the case of telephonic meetings conducted in accordance with the
Company's Articles of Association and applicable law, MCC need receive only
actual notice thereof at least 48 hours prior to any such meeting, and such
representative shall be given the opportunity to listen to each such
telephonic meeting.
9. NOTICES REGARDING THE LICENSE.
The Company and the officers and directors thereof shall promptly, and
in any event within five days of the Company's knowledge or preparation
thereof, provide MCC with notice
21
and an accurate summary of any of the following which is likely to have a
material adverse effect upon the Company, its operations or the License: (a)
any significant written communications to or from the Pakistan
Telecommunication Authority pertaining to the License, (b) copies of any plan
to correct problems in connection with the License in a reasonable period, or
of any report related thereto from any other governmental agency in Pakistan
or elsewhere, or (c) any developments which may directly and adversely affect
the License. In addition to the foregoing, in the event Company shall have
received any notice, written, from Pakistan Telecommunication Authority of a
material violation of any condition of the License, shall immediately and
diligently, upon receipt of such notice, commence remediation of such
violation, as evidenced by a writing from a competent official of Pakistan
Telecommunication Authority.
10. COOPERATION.
The Company shall fully cooperate with MCC and Manufacturer at all times
in connection with all contacts and communications related to the License
with any governmental agency (including, without limitation, Pakistan
Telecommunication Authority). MCC and Manufacturer shall act in good faith
in requesting the Company's cooperation hereunder and shall act reasonably in
response to any counsel or advice from the officers of the Company with
respect to the communications which MCC and Manufacturer intends to undertake
with the Pakistan Telecommunication Authority. The Company shall not be
required to provide such cooperation unless MCC and Manufacturer's request is
reasonable, based on then existing circumstances.
11. NOTICE.
All notices, replies, requests, reports, financial statements, demands
or other communications required or permitted under this Financing Agreement
shall be in writing, effective upon receipt, or upon confirmation of the
recipient's refusal of delivery, and shall be transmitted by (a) reputable
overnight courier, (b) telecopy, with telephone confirmation of receipt, or
(c) registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to MCC, at: 1 Continental Tower
▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Director, Global Finance,
Cellular Infrastructure Group
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Company, at: ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
Attention: Executive Director Finance
Telephone No.: (▇▇▇)-▇▇-▇▇▇▇▇▇
Telecopy No.: (▇▇▇)-▇▇-▇▇▇▇▇▇
22
If to Escrow Agent, at: ABN AMRO Bank
15, ▇▇▇▇▇▇ ▇/▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇
Attention: The Manager
Telephone No.: (▇▇▇)-▇▇-▇▇▇▇▇▇
Telecopy No.: (▇▇▇)-▇▇-▇▇▇▇▇▇
12. MISCELLANEOUS.
(a) Governing Law and Jurisdiction. This Financing Agreement and all
collateral documents, including without limitation, the Promissory Note,
shall be governed by and interpreted in accordance with the internal laws
(without regard to the laws of conflicts) of the State of Illinois, USA. ANY
SUIT, ACTION OR PROCEEDING AGAINST ANY PARTY WITH RESPECT TO THIS FINANCING
AGREEMENT, ANY OTHER DOCUMENT BETWEEN THE PARTIES HERETO THAT COMPRISES PART
OF THIS FINANCING AGREEMENT OR ANY OTHER OBLIGATION OR ANY JUDGMENT ENTERED
BY ANY COURT IN RESPECT OF ANY THEREOF MAY BE BROUGHT IN THE APPROPRIATE
COURT OF THE STATE OF ILLINOIS, USA OR IN THE APPROPRIATE U.S. DISTRICT COURT
IN THE STATE OF ILLINOIS, USA AND EACH PARTY HERETO HEREBY IRREVOCABLY
SUBMITS GENERALLY AND UNCONDITIONALLY TO THE NON-EXCLUSIVE JURISDICTION OF
EACH SUCH COURT FOR THE PURPOSE OF ANY SUCH SUIT, ACTION OR PROCEEDING. EACH
PARTY HERETO AGREES THAT SERVICE OF ALL WRITS, PROCESS AND SUMMONS IN ANY
SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN THE STATE OF ILLINOIS, USA MAY BE
MADE UPON EACH PARTY AT ITS RESPECTIVE ABOVE ADDRESS. EACH PARTY HERETO
HEREBY IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS IN ANY ACTION OR
PROCEEDING BROUGHT IN THE STATE OF ILLINOIS, USA MAY BE MADE UPON EACH PARTY
AT ITS RESPECTIVE ABOVE ADDRESS OR BY SERVICE UPON CT CORPORATION, AS PROCESS
AGENT FOR SUCH PARTY. EACH PARTY HERETO HEREBY IRREVOCABLY CONSENTS TO THE
SERVICE OF PROCESS IN ANY ACTION OR PROCEEDING IN SAID COURTS BY THE MAILING
THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO IT AT SUCH
ADDRESS. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT
MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS FINANCING AGREEMENT, OR ANY
OTHER DOCUMENT BETWEEN THE PARTIES HERETO TO THAT COMPRISES PART OF THIS
FINANCING AGREEMENT BROUGHT IN ANY SUCH
23
COURT AND HEREBY FURTHER IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH SUIT,
ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.
(b) Waivers and Amendments. No modification or waiver of any provision
of this Financing Agreement shall be effective unless the same shall be in a
writing signed by an officer of MCC and each other party or parties whose
rights or obligations are affected thereby. No other course of dealing
between MCC and the Company, nor failure or any delay on the part of MCC in
exercising any right, power or privilege hereunder shall operate as a waiver
hereof, nor shall a single or partial exercise of any other right, power or
privilege preclude any further exercise thereof.
(c) Severability. If any term or provision contained in this Financing
Agreement is or is hereafter found to be inconsistent with, contrary to or
invalid or unenforceable under any law or official rule, regulation or order,
this Financing Agreement shall be deemed to be modified accordingly and the
remaining terms and provisions of this Financing Agreement shall not be
affected thereby and shall continue in full force and effect.
(d) Successors and Assigns. Subject to the restrictions on assignment
contained herein, this Financing Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective heirs, successors and
permitted assigns. MCC shall have full right to assign its right and
obligations hereunder or any interest herein in full, or in part, together
with its rights under all documents executed in connection herewith in
accordance with the terms thereof, including without limitation, the
Promissory Note; provided, however, that any successor to MCC's rights and
obligations hereunder shall have no greater rights than MCC hereunder. No
other party to this Financing Agreement shall have the right to assign his or
its rights or obligations hereunder to any Person without the prior written
consent of an officer of MCC.
(e) Counterparts. This Financing Agreement may be executed in any
number of counterparts, each of which shall be an original, and such
counterparts together constitute one and the same instrument.
(f) Expenses. The Company agrees to pay within thirty (30) days
following the date invoiced to MCC up to a maximum of $20,000 in expenses
incurred by MCC in drafting, negotiating, executing and implementing the
financing described in this Financing Agreement. In addition, the Company
shall be liable to pay to MCC, on demand, all of MCC's reasonable costs and
expenses (including, but not limited to, counsel fees) incurred in enforce or
compromising its rights and obligations under this Financing Agreement, or
any of the other agreements contemplated hereby.
(g) Authorized Actions. If the Company fails or has failed to make any
payment hereunder, or the Company fails or has failed to perform any act
required under this Financing Agreement, MCC may, in its sole discretion,
make any such payment or perform any such act and execute any documents with
respect thereto, without affecting the status of any Event of Default
resulting from such failure. In such event, any amounts paid and any
expenses incurred by MCC shall be owed by the Company, and shall be payable
to MCC, within thirty (30) days,
24
together with interest on such amounts at 8% per annum. MCC shall not be
liable to the Company for taking any such action or making any such payment.
(h) Captions. Captions used in this Financing Agreement are for
convenience only, and shall not affect the construction of this Financing
Agreement.
(i) Entire Agreement. This Financing Agreement, the Promissory Note
and the Purchase Agreement, together with all Exhibits attached to such
agreements, constitute the entire understanding between the parties
concerning the subject matter of this Financing Agreement and supersede all
prior discussions, agreements and representations, whether oral or written
and whether or not executed by MCC and the Company.
(j) Press Releases. Any publicity, press release or advertising with
respect to this Financing Agreement and/or the transactions contemplated
hereby, shall be mutually agreed upon in writing by the parties prior to its
release.
(k) Confidentiality. The parties agree to keep the contents of this
Financing Agreement confidential from third parties and MCC undertakes to
keep confidential all information provided to it by Company, or in relation
to Company, pursuant to or in relation to this Financing Agreement, and to
restrict disclosure thereof to those within their respective companies who
have a "need to know," except that each of MCC and Company shall be
authorized to make required disclosures to its respective financial advisors
and legal counsel so long as such advisors and legal counsel are themselves
bound by confidentiality agreements not to disclose such information to third
parties, and except that MCC may make such limited disclosures as are
necessary to assign its right and obligations hereunder or any interest
herein in full, or in part, together with its rights under all documents
executed in connection herewith in accordance with the terms thereof,
including without limitation, the Promissory Note.
25
IN WITNESS WHEREOF, the parties hereto have caused this Financing
Agreement to be duly executed the day and year first written above.
MOTORAL PAKISTAN MOBILE
CREDIT CORPORATION COMMUNICATIONS (PVT.) LTD.
BY: BY:
ITS: Attorney-In-Fact ITS: President
BY:
ITS: Executive Director Finance
WITNESSED BY:
BY: BY:
NAME: FAISAL ▇▇▇▇ ▇▇▇▇ NAME: ▇▇▇▇▇▇▇ ▇. KHALIR
EXHIBITS:
EXHIBIT A: - MEMORANDUM AND ARTICLES OF ASSOCIATES OF THE COMPANY
EXHIBIT B: - FORM OF DRAWDOWN CERTIFICATE
EXHIBIT C: - INITIAL BUSINESS PLAN
EXHIBIT D: - FORM OF PROMISSORY NOTE
EXHIBIT E: - FORM OF ESCROW AGREEMENT
EXHIBIT F: - FORM OF STOCK PLEDGE AGREEMENT
EXHIBIT G: - FORM OF HYPOTHECATION AGREEMENT
26
EXHIBIT A
MEMORANDUM AND ARTICLES OF ASSOCIATION OF THE COMPANY
PREVIOUSLY DELIVERED
27
EXHIBIT B
DRAWDOWN REQUEST
Dated: __________, ____
MOTOROLA CREDIT CORPORATION
1 Continental Tower
▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Director, Global Finance,
Cellular Infrastructure Group
Re: Pakistan Mobile Communications (Pvt.) Ltd.
------------------------------------------
Gentlemen:
Reference is made to the Financing and Security Agreement dated as of
______, 1998 (the "Financing Agreement") between Pakistan Mobile
Communications (Pvt.) Ltd. (the "Company"), and Motorola Credit Corporation
("MCC"). Capitalized terms used herein (and not otherwise defined) are
defined in the Financing Agreement. The Company hereby requests a Drawdown
under the Financing Agreement in the amount of $_______________ on
______________, 19__.
In connection with the proposed Drawdown by the Company hereunder and
pursuant to the terms and conditions hereof, we hereby certify that as of the
date hereof:
1. Such funds are to be used for the payment of Equipment and Services in
accordance with the terms of the Purchase Agreement and the invoices attached
hereto;
2. No event of Default or Unmatured Event of Default has occurred;
3. The Company is in compliance with all terms of the Financing Agreement;
4. The representations and warranties contained in Section 3.1 of the
Financing Agreement are hereby repeated; and
5. The Company has made the Maximum Allowable Downpayment to the
Manufacturer.
Certified this __ day of _______, ____.
PAKISTAN MOBILE COMMUNICATIONS (PVT.) LTD.
By: By:
Its: Its:
28
EXHIBIT C
INITIAL BUSINESS PLAN
PREVIOUSLY DELIVERED
29
EXHIBIT D
PROMISSORY NOTE
PROMISSORY NOTE
THIS PROMISSORY NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND MAY NOT BE SOLD OR OTHERWISE DISPOSED OF IN
CONTRAVENTION OF THE PROVISIONS OF THAT ACT.
US$32,000,000.00 Dated: 5th March, 1998
PROMISSORY NOTE
FOR VALUE RECEIVED, the undersigned, Pakistan Mobile Communications (Pvt.)
Ltd., a company duly organized and existing under the laws of Pakistan (the
"Payor"), hereby unconditionally promises to pay to MOTOROLA CREDIT
CORPORATION, a Delaware corporation or its assigns (the "Payee"), at its
offices in Schaumburg, Illinois, in lawful money of the United States of
America, in immediately available funds, the principal sum of Thirty-Two
Million Dollars ($32,000,000.00), or such lesser amount as is outstanding
hereunder from time to time, in semi-annual installments payable, together
with interest, as set forth hereinbelow. Interest on the amounts outstanding
from time to time under this Promissory Note shall accrue commencing on the
Initial Drawdown Date (as defined below), until the Promissory Note has been
repaid in full. The "Initial Drawdown Date" means thirty (30) days following
the date of the invoice issued following the initial shipment under the
Purchase Agreement after the execution of the Financing Agreement (as each
term is defined below). Interest shall be calculated on the outstanding
balance of the Promissory Note at a floating rate equal to the six-month
LIBOR Rate (as defined below) in effect from time to time plus one and
one-half percent (1.5%) per annum. Interest shall be calculated on a 360-day
year basis for actual days elapsed. The interest rate shall be adjusted two
(2) Business Days (as defined below) prior to the first Business Day of each
successive Interest Period with respect to all amounts then outstanding under
this Promissory Note, and shall be payable in arrears on each successive
Principal Payment Date (as defined below). "Business Day" means a day when
the Federal Reserve Bank is open for business in New York, New York, for
payments in US$, and/or when the State Bank of Pakistan and banks are
generally open for business in Pakistan, as the loans of the initiation of
the relevant transaction requires.
Payee shall record on the Grid attached hereto or on its books or records,
the amount of any drawdowns disbursed by Payee. The record thereof, whether
shown on such books or records or on the Grid, shall be prima facie evidence
as to all such amounts; provided, however, that the failure of Payee to
record any of the foregoing shall not limit or otherwise affect the
obligation of the Payor to repay all sums outstanding under the Financing
Agreement, together with accrued interest thereon. Payee shall provide Payor
a copy of the Grid after each entry thereon; provided, however, failure by
Payee to so provide a copy to Payor shall not limit or otherwise affect the
2
obligation of the Payor to repay all advances under the Financing Agreement,
together with accrued interest thereon.
This Promissory Note is issued in connection with the Financing and Security
Agreement dated of even date herewith (the "Financing Agreement") between
Payor and Payee, and is subject to the terms of the Financing Agreement.
"Purchase Agreement" shall have the meaning ascribed thereto in the Financing
Agreement. Unless and until an event of default has occurred hereunder and /
or under the Financing Agreement causing acceleration of payment hereunder,
the principal balance of this Promissory Note outstanding from time to time
shall be due and payable commencing on the Principal Repayment Date (as
defined below), and each payment of principal shall reduce the balance of
this Promissory Note accordingly. "Principal Repayment Date" means the first
Payment Date that occurs at least 120 days following the conclusion of the
Principal Grace Period. "Payment Date" means each May 15 and November 15 of
each calendar year, upon which date a payment of interest and/or principal
under the Promissory Note is due. "Principal Grace Period" means twelve (12)
months following the Initial Drawdown Date. "LIBOR RATE" means the London
Inter-Bank Offering Rate reported by Telerate, page 3750, or, if such report
is unavailable on the day upon which such reference is required, by Reuters
page "LIBO," at approximately 11:00 a.m., London time, two Business Days
prior to the Initial Drawdown Date (defined above), and thereafter, two
Business Days prior to the first Business Day of each successive Interest
Period, which LIBOR Rate shall be applicable until the day prior to the
commencement of the next succeeding Interest Period.
Unless and until an Event of Default has occurred causing acceleration of
payment, the principal balance of the Promissory Note outstanding from time
to time shall be due and payable in eight (8) consecutive and substantially
equal semi-annual installments, each installment being due and payable on
successive Payment Dates with the first such installment being due and
payable on the Principal Repayment Date. The initial principal repayment
shall be made together with (i) a cash payment equal to the greater of
one-half (1/2) of the Maximum Allowable Down Payment (as such term is defined
in the Financing Agreement) and five percent (5%) of the amount shown on each
purchase order issued by Payor to Motorola, Inc., a Delaware Corporation,
after execution of the Financing Agreement (the "Additional Principal
Payment"), which when paid shall reduce the outstanding principal under this
Promissory Note by an equivalent amount, plus (ii) accrued and unpaid
interest, and thereafter, accrued and unpaid interest shall be payable
together with each repayment of principal hereunder. If not paid earlier,
all principal and interest shall be due and payable on the first Business Day
following the conclusion of the 48th month after the Principal Grace Period.
It shall constitute an event of default hereunder if Payor shall fail to make
payment of any installment hereunder when due (and such failure shall
continue for a period of thirty (30) business days after written notice from
Payee to Payor of such failure), or if any Event of Default shall occur (as
defined in the Financing Agreement). Upon the
3
occurrence of any such event of default, the Payee by notice in writing to
Payor may declare this Promissory Note to be and all remaining payments shall
thereupon forthwith become due and payable without presentment, demand,
protest or other notice of any kind to Payor. Payor shall pay all reasonable
lawyers' fees and expenses incurred by Payee in collecting any defaulted
payments hereunder. Notwithstanding the foregoing, the Payee may waive any
such or other event of default. No such waiver shall affect the Payee's
rights upon a subsequent event of default.
Each payment of principal, interest and/or delinquency charges required or
permitted to be made under this Promissory Note shall be free from and net of
all taxes, charges, fees, costs, expenses or duties imposed by any
governmental authority of the United States of Pakistan, and if any such
governmental authority requires the withholding of any of the foregoing by
Payor, Payor shall pay to Payee an additional amount with respect to each
payment hereunder such that the amount actually received by Payee shall be
the amount which Payee would have received in the absence of such withholding
obligation.
Time is of the essence hereof. If any payment is not received when due,
Payor agrees to pay to the holder a delinquency charge calculated on the
outstanding balance of this Promissory Note at the lesser of one percent (1%)
per calendar month, or partial calendar month, or the maximum rate permitted
by applicable law, for the term of the delinquency.
The acceptance by Payee of any payment which is less than payment in full of
all amounts due and owing at such time shall not constitute a waiver of
Payee's right to receive payment in full at such time or at any other time.
Payor is free to make advance payment or payments in any amount of the then
outstanding principal, plus interest thereon at any time during the term of
this Promissory Note without any penalty.
This Promissory Note is issued pursuant to the Financing Agreement, to which
reference is hereby made for a description of certain events of default and
the further rights of the holder to accelerate payment hereof, the conditions
upon which the maturity hereof may be accelerated by the Payee, and other
terms and conditions upon which this Promissory Note is issued.
This Promissory Note has not been registered under the Securities Act of
1933, as amended, or any similar securities law of any state ("Securities
Laws") and Payee and each subsequent holder, by acceptance of this Promissory
Note, agrees that no sale, pledge, assignment or other disposition of this
Promissory Note will be made or attempted until the Payor has been notified
of the manner and circumstances of the proposed transaction and the Payor
shall have received an opinion of counsel to Payee, or such subsequent
holder, in form and substance reasonably satisfactory to counsel for Payor,
to the effect that the proposed transaction may be consummated without having
to register this Promissory Note under any of the Securities Laws.
4
Upon compliance with the above requirements and upon surrender of this
Promissory Note at the offices of the Payor, together with an assignment duly
executed by the holder hereof, the Payor will execute and deliver in exchange
thereof a new note or notes payable to such payee or payees as may be
requested, in aggregate principal amount equal to the unpaid principal amount
of the surrendered note and of like tenor (but dated the last date to which
interest has been paid on the surrendered Promissory Note and excluding any
installments for the payment of principal that were paid prior to the
issuance of the new note or notes).
All agreements between Payor and the holder hereof, whether now existing or
hereafter arising and whether written or oral, are hereby limited so that in
no contingency, whether by reason of acceleration of the maturity hereof or
otherwise, shall the interest contracted for, charged, received, paid, or
agreed to be paid to the holder hereof, exceed the maximum amount permissible
under applicable law. If, from any circumstance whatsoever, interest would
otherwise be payable to the holder hereof in excess of the maximum lawful
amount, the interest payable to the holder hereof shall be reduced to the
maximum amount permitted under applicable law, and if from any circumstance
the holder hereof shall ever received anything of value deemed interest by
applicable law in excess of the maximum lawful amount, an amount equal to any
excessive interest shall be applied to the reduction of the principal hereof
and not to the payment of interest, or if such excessive interest exceeds the
unpaid balance of principal hereof, such excess shall be refunded to Payor.
All interest paid or agreed to be paid to the holder hereof shall, to the
extent permitted by applicable law, be amortized, prorated, allocated, and
spread throughout the full period until payment in full of the principal so
that the interest hereon for such full period shall not exceed the maximum
amount permitted by applicable law. This paragraph shall control all
agreements between Payor and the holder hereof.
Until receipt of notice of any assignment and compliance with the provisions
for assignment set forth above, Payor may treat Payee as the owner of this
Promissory Note for all purposes, including payment of principal, interest
and any other amounts payable hereon.
This Promissory Note shall be subject to, governed and construed according to
the domestic laws of the State of Illinois, without regard to its provisions
on the conflict of laws.
5
Payor hereby waives diligence, presentment, demand, protest and notice. The
non-exercise by Payee of any of its rights hereunder in any particular
instance shall not constitute a waiver thereof in that or any subsequent
instance.
PAKISTAN MOBILE COMMUNICATIONS (PVT.) LTD.
By: By:
Its: Its:
Witnessed By:
1.
2.
GRID
TO PROMISSORY NOTE
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EXHIBIT E
ESCROW AGREEMENT
ESCROW AGREEMENT
BETWEEN
PAKISTAN MOBILE COMMUNICATIONS (PRIVATE) LIMITED
AND
MOTOROLA CREDIT CORPORATION
AND
ABN AMRO BANK N.V., ISLAMABAD BRANCH
THIS ESCROW AGREEMENT ("this Agreement") made as of the 5th day of March,
1998, by and amongst:
PAKISTAN MOBILE COMMUNICATIONS (PVT) LTD., a company organized under the laws
of Pakistan and having its registered office at APTMA House, Tehkal ▇▇▇▇▇,
Jamrud Road, Peshawar, Pakistan ("the Company"); MOTOROLA CREDIT CORPORATION,
a Delaware Corporation Incorporated under the laws of the state of Delaware,
U.S.A. having its principal place of business at 1 Continental Tower, ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇.▇.▇. ("MCC"), and ABN AMRO BANK N.V.,
a banking company incorporated under the laws of Netherlands acting through
its branch office at Islamabad located at ▇▇ ▇▇▇▇▇▇, ▇-▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
("Escrow Agent").
RECITALS
A. Pursuant to that certain Financing and Security Agreement dated as of
March 5, 1998 (as the same may be amended from time to time, the "Financing
Agreement"), by and between the Company and MCC, MCC has agreed to finance
the purchase of certain cellular infrastructure equipment manufactured by
Motorola, Inc., a Delaware corporation, as more particularly described in the
Finance Agreement.
B. The Finance Agreement requires MCC and the Company to enter into an
escrow agreement as a condition to the closing of the transactions
contemplated by the Finance Agreement.
C. The Finance Agreement provides that certain payments due thereunder
shall be governed by an escrow agreement among the parties hereto.
D. Escrow Agent has agreed to serve as escrow agent pursuant to the terms
and conditions of this Agreement.
E. Capitalized terms used herein and not otherwise defined shall have the
meanings ascribed thereto in the Finance Agreement.
NOW, THEREFORE, in consideration of the foregoing and of the covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto do hereby
agree as follows:
1. DEFINITIONS
"Approved Loans" means the interest bearing loans and/or ▇▇▇▇-up based
financing made in favour of the Company including bank debt but excluding
loans by shareholders to the Company as per details provided in Schedule (1)
hereto, entitled to be serviced from the Service Account in addition to the
service of financing by MCC under the Finance Agreement.
"Escrow Account" means the account of the Company established and designated
to receive Gross Receipts, denominated in Pakistani Rupees maintained at
Escrow Agent's branch office at Islamabad, Pakistan, and administered
pursuant to this Escrow Agreement, with the following sub-accounts: (a)
Escrow Sub-account and the (b) Opex Account.
"Escrow Sub-Account" means the account established and designated to receive
funds from the Escrow Account and divided into various sub-accounts
("Sub-accounts"), as follows: Reserve Account and Service Account.
"Gross Receipts" means all moneys earned and collected by the Company or its
assignees or designees in connection with the Cellular Service and deposited
with Citibank N.A. Islamabad Branch or any other bank as designated by the
Company from time to time, excluding central exercise duties and payments to
Pakistan Telecommunications Company Limited ("PTCL") as well as
advance/withholding taxes with respect to subscribers, in terms of the
Finance Agreement.
"Open Account" means the operating expense account designated in Pakistani
Rupees established and maintained at Escrow Agent's branch office in
Islamabad funded from the Escrow Account on a quarterly basis, in the amount
determined by agreement of the Company and MCC following the Semi-Annual
Review for the applicable quarter-annual period for each year and as notified
in writing to the Escrow Agent at least 7 (seven) days prior to commencing of
each applicable quarter-annual period.
"Payment Date" means each May 15 and November 15 of each calendar year upon
which date a payment of interest and/or principal under the Promissory Note
is due.
"Promissory Note(s)" means certain promissory note(s) issued by the Company
in favour of MCC in connection with the Finance Agreement.
"Reserve Account" means the reserve Sub-Account comprising of two
sub-accounts, one denominated in US Dollars ("US$ Reserve Account") and one
denominated in Pakistani Rupees ("Rupee Reserve Account") established and
designated to receive funds remaining in the Escrow Sub-Account after the
Opex Account has been fully funded as required thereby, and to hold an amount
equal to six (6) months of interest payments due on outstanding amounts under
the Promissory Note (as determined by MCC in good faith, absent manifest
error and notified by MCC to the Escrow Agent in writing at least (7) (seven)
days prior to the commencement of each quarter-annual period).
"Service Account" means the debt service Sub-Account denominated in Pakistani
Rupees, established and designated to receive surplus funds remaining in the
Escrow Sub-Account after the Opex Account and the Reserve Account have been
fully funded as required thereby, up to a maximum amount equal to the next
immediately scheduled principal and interest payments due by the Company
under any Promissory Note to MCC as notified to the Escrow Agent in writing
from time to time by MCC (with a copy marked to the Company).
2
2. ESCROW ACCOUNT, ESCROW SUB ACCOUNTS & OPEX ACCOUNT.
The Company shall establish hereby and there shall from time to time
exist the following accounts (collectively referred to as the "Accounts")
established at Escrow Agent's Islamabad Pakistan offices: (a) the Escrow
Account, (b) the Escrow Sub-Account and the Sub Accounts (incorporating the
Reserve Account and Service Account), and (c) the Opex Account. The
Accounts, which shall include any interest or other income earned thereon and
on any other amounts in the Accounts from time to time, shall be held,
distributed, invested and disposed of by the Escrow Agent for the benefit of
the parties pursuant to the terms and conditions hereof. It is understood
and agreed that all instruction regarding the Accounts shall be administered
by Escrow Agent's Islamabad Branch office, however the Escrow Agent's Chicago
Illinois Branch will provide cooperation for facilitating ease of
communication of instructions to and from the Escrow Agent's Branch office at
Islamabad, Pakistan. The Accounts are being established to provide a source
of funds from which the Company may draw to make payments due to MCC in
connection with the Finance Agreement and the Promissory Note. The title to
the Accounts shall be held by the Company, provided, however that the Reserve
Account and Service Account shall be pledged and assigned to MCC as
collateral security for the Finance Agreement, as set forth in this Agreement.
(i) The Company shall ensure that all Gross Receipts shall be
credited into the Escrow Account on a weekly basis (on each
Friday of the week) and that the Gross Receipts so deposited in
the Escrow Account are clear funds belonging to the Company,
free from encumbrance or charge (except to the extent provided
in the Finance Agreement and this Agreement). The Escrow Agent
shall not have any direct or indirect responsibility to ensure
collection of deposit of the Gross Receipts into the Escrow
Account and the obligation of the Escrow Agent shall apply to
the amount/funds deposited in the Escrow Account;
(ii) Following deposit of Gross Receipts into the Escrow Account,
Escrow Account funds shall be deposited first into the Opex
Account on a quarterly basis, in the amount determined by
agreement of the Company and MCC following the Semi-Annual
Review for the applicable quarter-annual period for each year
and as notified in writing jointly by MCC and the Company to the
Escrow Agent, at least 7 (seven) days prior to commencing of
each applicable quarter-annual period. The amount to be
deposited in the Opex Account shall be the Pakistani Rupees
equivalent of the US Dollar amount notified to the Escrow Agent,
calculated at the rate of exchange applicable on the
commencement of the relevant quarter -- annual period.
(iii) Funds in the Opex Account shall be free from any
pledge/assignment/security interest of MCC; the Funds shall be
promptly available to the Company to meet its current operating
expenses; and the Company shall be solely entitled to issue
instructions in this behalf.
3
(iv) After the Opex Account has been fully funded as required above,
from the Escrow Account funds will be deposited to the Reserve
Account in an amount equal to six (6) months of interest
payments immediately due on outstanding amounts under any
Promissory Note, as determined by MCC in good faith, absent
manifest error and notified by MCC to the Escrow Agent in
writing at the time of execution of this Agreement and
thereafter, as per clause 2 (ii) above, from time to time with a
copy to the Company;
(v) After the Opex Account and the Reserve Account have been fully
funded as required above, all surplus funds remaining in the
Escrow Account shall be deposited in the Service Account up to a
maximum amount equal to the next immediately scheduled principal
and interest payments due by the Company under any Promissory
Note to MCC as notified in writing to the Escrow Agent by MCC as
per clause 2 (ii) above (with a copy marked to the Company).
The funds to be deposited in the Service Account will be
deposited in Pakistan Rupees. The Escrow Agent will on a weekly
basis, accrue sufficient Pakistan Rupees (if required) so that a
sufficient amount of US Dollars will be available (by purchase
form the State Bank of Pakistan at the then prevailing official
rate of exchange) against the Pakistani Rupee funds available in
the Service Account to effect the debt service payments to MCC
on the relevant Payment Date.
(vi) In the event that after the Opex Account, the Reserve Account
and the Service Account are all fully funded as required in
accordance with the terms of this Agreement, any surplus amount
available in the Escrow Account or any Escrow Sub-Account shall
be made available to the Company by credit to a corporate
account of the Company established and maintained with the
Escrow Agent, which account will be freely operated by the
Company and shall not be the subject of any escrow arrangement,
change or pledge of MCC.
(vii) The funds to be deposited in the Reserve Account will be first
deposited in the Rupee Reserve Account. The funds deposited in
the Rupee Reserve Account will, as soon as practical and in
coordination with the Company, and in any event no later than
seven business days from the date of deposit of the funds,
subject to availability and legal permissibility, be converted
into US Dollars at the prevailing market rate of exchange and
deposited into the U.S.$ Reserve Account. At the time of any
payments required to be made from the Reserve Account in terms
of the Agreement, the US Dollar funds will be converted back
into Pakistani Rupees at the then prevailing market rate of
exchange for purchase of Pakistani Rupees against US Dollars and
the Pakistani Rupee funds will be credited/deposited to the
Rupee Reserve Account prior to making payments as required. The
conversion of Rupee funds in the Rupee Reserve Account into US$
funds to be deposited in the US $ Reserve Account and the
re-conversion of the US$ funds into Pakistani Rupees
4
will be arranged through third party brokers by purchase from
the open market at the best rates of exchange offered to the
Escrow Agent and in coordination with the Company. The Escrow
Agent will be solely authorized and empowered to negotiate and
agree to the rate(s) of exchange for such purpose as the agent
of the Company and neither the Company nor MCC shall have any
objection or claim in respect of such rates at which the
conversion is implemented and the Escrow Agent shall have no
liability or obligation in respect of the rate of exchange or
the performance or otherwise of the third party brokers employed
for purposes of this clause.
(viii) The Escrow Agent shall not be obliged to and shall not take any
action to implement any deposits or payments in respect of the
Accounts; (a) unless and until it has received proper advice and
notice as and when required to be given to the Escrow Agent, in
terms of this Agreement; or (b) unless such action is otherwise
expressly required to be taken in terms of this Agreement; or
(c) unless such action is considered necessary or advisable in
the reasonably opinion of the Escrow Agent to protect the
interest of the Escrow Agent.
(ix) Each of the Accounts will be established, maintained and
operated in terms of this Agreement, subject to and be governed
by the laws and practice applicable in Pakistan to such accounts
maintained by branches of foreign incorporated banks operating
in Pakistan and the Rules and Regulations (to the extent such
Rules and Regulations are not inconsistent with the terms of
this Agreement) as applicable to accounts maintained by
customers of the Escrow Agent in Pakistan (as modified from time
to time and subject to such modifications being notified to MCC
and the Company), which have been read and understood by each of
the Company and MCC. The performance of the obligations of the
Escrow Agent in relation to the Accounts shall be so construed
and governed.
3. INTEREST/PROFIT
Interest or profit (if any agreed to be paid by the Escrow Agent) earned
on the funds held in the Accounts (excluding the Opex Account) shall be
credited to the Escrow Agent, and thereafter to Escrow Sub-Account, and
Sub-accounts in the same order and to the same extent as Gross Receipts.
4. PAYMENT PROCEDURES
(i) At least 30 (thirty) days prior to a Payment Date, MCC will
submit an invoice (substantially in the form of invoice provided
in Schedule (2) hereto) to the Escrow Agent and the Company,
prepared in accordance with the Financing Agreement and
reflecting the amounts due on the immediately next scheduled
Payment Date and the Escrow Agent shall pay
5
the invoice amount on the Payment Date, to MCC the required
payment by wire transfer to the address set forth on such
invoice, from the Service Account and in the event of shortfall,
to the extent required from the Reserve Account, subject to the
availability of such funds in the Reserve Account.
Notwithstanding the foregoing, the Company may, from time to
time, upon its request in writing to MCC at least ten (10) days
prior to a particular Payment Date, with MCC's prior written
consent, not be unreasonably withheld, elect to make payment of
amounts due under any Promissory Note, directly to MCC, and MCC,
in such event, agrees not to draw on the Accounts for such
payment. The Escrow Agent is authorized by the Company to
effect payment in accordance with the invoice of MCC, which
shall be deemed to be conclusive evidence of the amount payable
by the Company to MCC. The payments will be made to MCC by
conversion of the funds in the Service Account (and to the
extent of shortfall if any, from the Reserve Account) into US
Dollars, subject to SBP making US dollar funds available for
repatriation to MCC at the official rate of exchange. It will be
the sole responsibility of the Company to provide all the
necessary documents to the Escrow Agent, required for approvals
form the SBP, for the repatriation of said payments at least 28
calendar days before the Payment Date. The Company will also
copy a set of these documents to MCC simultaneously. The Escrow
Agent undertakes to ensure that the documents are submitted to
the SBP within a period of 10 calendar days of the receipt of
documents. In the event the Escrow Agent fails to do so, all
cost, losses or charges incurred by the Company or MCC as a
direct result of such failure shall be for the account of the
Escrow Agent.
(ii) At least 30 (thirty) days prior to any due date for payment of
interest/profit/▇▇▇▇-up or principal in respect of Approved
Loans, the Company shall notify the Escrow Agent and MCC in
writing, of amounts required to be paid along with details of
the Lender, break-up of principal and interest/profit/▇▇▇▇-up
and the due date for payment substantially in the form of
advance provided in Schedule (3) hereto ("the Approved Loan
Payment Advice"). Unless notice is received in writing from MCC
by the Escrow Agent, countermanding the Approved Loan Payment
Advice at least 10 (ten) days prior to the date of payment,
stating that as per determination of MCC, a breach under the
Finance Agreement will occur if such payment is made; the Escrow
Agent will make payment in accordance with the Approved Loan
Payment Advice from the Service Account. In case of any
shortfall in the Service Account, funds in the Reserve Account
will only be utilized if and to the extent that written waiver
is issued by MCC in favour of the Company for doing so and such
waiver is notified to the Escrow Agent prior to the due date of
payment in accordance with the Approved Loan Payment Advice.
The Escrow Agent is authorized to effect payment in accordance
with the Approved Loan
6
Payment Advice, which shall be deemed to be conclusive evidence
of amounts payable in respect of the Approved Loans.
5. TERMINATION OF ESCROW AGREEMENT.
When the following occurs, this Escrow Agreement shall terminate: MCC
shall have notified the Escrow Agent in writing that all of the Company's
obligations to MCC under the Finance Agreement have been fully satisfied,
whereupon MCC shall, release its pledge, lien and security interest on the
Reserve Account and Service Account and the Escrow Agent shall pay any
remaining moneys held in the Escrow Accounts as per the order of the Company.
6. INVESTMENT OF ACCOUNTS.
The funds in the Reserve Account and the Service Account shall be
invested, and shall thereafter be reinvested from time to time, by the Escrow
Agent, acting without further instructions, in profit sharing/interest
bearing accounts of the Escrow Agent; unless specific instructions in writing
are received from the Company from time to time; subject to such investments
not exceeding 7 (seven) days in tenor on each investment; and subject further
that the investments would be in relation to any one or more accounts/deposit
schemes of the Escrow Agent. All incomes earned on investment of the Reserve
Account and the Service Account, shall be added to and become part of the
Accounts; credited to the Escrow Account and thereafter distributed in the
same manner as Gross Receipts, in terms of this Agreement. The Escrow Agent
shall furnish reports concerning the Accounts (including interest and other
income earned thereon) to the Company and MCC on a monthly basis.
7. LIABILITY OF ESCROW AGENT.
(i) Subject to clause 4(i) above, the Escrow Agent shall not be
responsible or liable for any act or failure to act on its part
or on the part of its agents or employees except in the case of
its or their gross negligence or willful misconduct or bad
faith, in which case the maximum liability of the Escrow Agent
will not under any circumstances exceed the lessor of (a) the
amount of actual direct loss suffered by MCC and/or the Company
or (b) the amount of shortfall of funds in the Escrow Account;
resulting from the gross negligence, willful misconduct or bad
faith. The Escrow Agent shall not be bound in any way by any
agreement between the Company and MCC (whether or not the Escrow
Agent has knowledge thereof), including without limitation the
Finance Agreement, and Escrow Agent's only duties and
responsibilities shall be to hold distribute, invest and dispose
of the Accounts in accordance with the terms of this Agreement.
Escrow Agent hereby expressly waives any right or interest in or
to the Accounts;
7
(ii) The Escrow Agent shall not be responsible or liable for ensuring
the genuineness or accuracy of any instructions, notice or
communications received or delivered to the Escrow Agent,
including but not limited to instructions, notice or
communications received by telecopy/facsimile and shall be
entitled to assume such to be correct and genuine if purporting
to emanate from the Company and/or MCC, provided the Escrow
Agent has acted reasonably and in good faith;
(iii) The Escrow Agent shall not be responsible for failure to
implement any instructions which are ambiguous, vague or
incomplete in any respect and/or considered to be unauthorized
or non-genuine by the Escrow Agent and in such case the
responsibility of the Escrow Agent will be limited to notifying
the Company and MCC to this effect, within 5 (five) business
days of receiving such ambiguous, vague or incomplete
instructions.
(iv) The Escrow Agent shall not be responsible or liable for failure
or delay in implementing any terms of this Escrow Agreement or
any instructions pursuant hereto, on account of reasons beyond
the control of the Escrow Agent, including but not limited to a
strike, act of terrorism, natural calamity, war, break-down of
economic and financial machinery in Pakistan, change of law
relating to foreign exchange regulation; change of law relating
to foreign currency accounts; administrative or regulatory
action, breakdown in computer network systems and any other
force majeure event occurring or existing, provided the Escrow
Agent shall notify MCC and the Company of the reason for failure
or delay in implementing the terms of this Escrow Agreement as
soon as practical after occurrence of the relevant event;
(v) The Escrow Agent shall not be responsible or liable for any
losses resulting in relation to the Accounts, on account of
exchange rate fluctuations or the nonavailability of US Dollar
funds for implementing the terms of this Agreement.
8. GRANT OF SECURITY INTEREST; DEFAULT
The Company hereby grants to MCC a pledge, charge, lien of and security
interest in the Reserve Account and the Service Account. Upon receipt of a
written notice form MCC that an Event of Default (as such terms defined in
the Finance Agreement) has occurred, the Escrow Agent is hereby authorized,
empowered and directed, immediately to transmit by wire transfer, all funds
remaining in the Reserve Account or the Service Account to MCC as set forth
on such notice, stated to be the outstanding amount due and payable by the
Company to MCC in respect of any Promissory Note and/or under the Finance
Agreement and upon such payment the surplus funds remaining, if any, shall be
available to be utilized or withdrawn by the Company. The Company has
assured the Escrow Agent that all requisite permissions (if any) for granting
the security interest in favour of MCC will be obtained and will be
subsisting during the tenor of the Agreement.
8
9. RELIANCE BY THE ESCROW AGENT.
(i) In performing its duties hereunder, the Escrow Agent may relay
on written statements furnished to it by any authorized
executive officer of MCC or the Company. The Escrow Agent may
act or refrain from acting hereunder with respect to any matter
referred to herein in reliance upon and with the advice of
counsel selected by the Escrow Agent (without being obliged to
take such advice) and shall be fully protected in so acting or
in refraining from acting upon the advice of such counsel. The
Escrow Agent shall further be authorized to file and institute
any legal proceedings before any competent court for seeking any
directions or declarations, should such action/proceedings be
required or advisable in the reasonable opinion of counsel, the
Company hereby undertakes to indemnify the Escrow Agent against
and in respect of all such costs of legal advice and/or legal
proceedings, and each of MCC and the Company authorize the
Escrow Agent to recover such costs to the debit of any of the
Accounts (other than the Reserve Account).
(ii) In performing its duties hereunder, the Escrow Agent has relied
upon and each of MCC and the Company, in respect of itself, has
represented and warranted to the Escrow Agent that the
establishment and maintenance of the Accounts and the execution
and performance of the terms of this Agreement have been duly
authorized by appropriate corporate actions of each of MCC and
the Company respectively and will not violate any law,
regulation, charter or terms of any contract or judgment
applicable to the Company or MCC and further that any consent or
approval, if required for such purpose have been obtained and
are subsisting including but not limited to the approval of the
State Bank of Pakistan for remittance of amounts in US Dollars
for payment of amounts due to MCC in respect of the Promissory
Note(s) and the Finance Agreement.
10. CHARGES OF THE ESCROW AGENT:
The charges of the Escrow Agent in connection with this Escrow Agreement
are set forth in Schedule (4) hereto. Such charges have been agreed to be
borne and paid by the Company, and the Escrow Agent is authorized to recover
the charges by debit, after raising an invoice to the Company at least 5
business days in advance, to the Escrow Account or any other Account (except
for the Reserve Account) without seeking prior permission of either MCC or
the Company. All payments of charges to the Escrow Agent shall be subject to
deductions, if any required by any applicable law in Pakistan.
11. NOTICES.
All notices, replies, requests, reports, or other communications
required or permitted under this Escrow Agreement shall be in writing,
effective upon receipt, or upon confirmation of the recipient's refusal of
delivery, and shall be transmitted by
9
(a) reputable overnight courier, (b) telecopy with telephone confirmation of
receipt; or (c) registered or certified mail, return receipt requested,
postage prepaid, addressed as follows:
If to MCC, at: Motorola Credit Corporation
Attention:
1 Continental Tower
▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Director, Global Finance
Cellular Infrastructure Group
Telephone No: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Company, at: Pakistan Mobile Communications (Pvt) Ltd.
with copy to: ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
Attention: Executive Director (Finance)
Phone no. (9251) 273984
Fax No.: (9251) 273991
If to Escrow Agent, at: ABN AMRO Bank ▇.▇., ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇ ▇-▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇.
Attention: The Manager
Phone No.: (▇▇▇▇) ▇▇▇-▇▇-▇▇-▇▇/277051
Fax No.: (9251) 277050
12. SUCCESSION OF ESCROW AGENT.
(i) The authority of the Escrow Agent may be withdrawn and a
successor escrow agent appointed at any time by a notice of such
withdrawal and appointment, including notice of the effective
date thereof, signed by the Company and MCC.
(ii) The Escrow Agent may resign and be discharged from its duties
and obligations hereunder by giving notice of such resignation
to the Company and MCC, specifying the date upon which such
resignation shall take effect, provided that such date shall be
not less than 45 days from the date such notice is given or
received in accordance with Section 11 hereof. It is agreed
that prior to the resignation becoming effective, the Escrow
Agent shall procure consent in writing of a replacement escrow
agent, acceptable
10
to MCC and the Company to act as a successor of the Escrow
Agent. It is agreed that MCC and the Company shall not refuse
acceptance of the replacement escrow agent unreasonably and
without assigning any reason for such non-acceptability so long
as the replacement escrow agent is a scheduled foreign banking
company operating in Pakistan.
(iii) Upon the removal or resignation of the Escrow Agent, the Escrow
Agent shall transfer the funds in the Accounts and deliver any
and all records and files relating to the Accounts (to the
extent permissible to be delivered under law) and a copy of the
Escrow Agreement to the successor escrow agent designated by MCC
and the Company, which has accepted the terms of this Escrow
Agreement. Upon such transfer and delivery, the Escrow Agent
shall stand fully discharged, release and absolved from all
obligations under this Agreement or any matter arising therefrom
(except as to matters arising prior to the date of such transfer
and notified by MCC or the Company to the Escrow Agent not later
than 60 (sixty) days from the effective date of such transfer).
13. ASSIGNMENT.
This Escrow Agreement shall be binding upon and inure to the benefit of
the parties hereto and their perspective successors and assigns; provided,
however, that the Company may not assign its interest in this Escrow
Agreement, in whole or in part, without the written consent of MCC and the
Escrow Agent.
14. COMPLETENESS OF AGREEMENT.
This Escrow Agreement and other documents referred to herein represent
the entire agreement among the parties with respect to the subject matter
hereof and the same shall not be considered as modified or affected by any
offer, proposal, statement or representation, oral or written, made by or for
any party in connection with the negotiation of the terms hereof.
15. AMENDMENT.
This Escrow Agreement shall not be amended or modified except by an
instrument in writing signed by each of the parties hereto, and reciting that
the parties thereby intend so to amend or modify this Escrow Agent.
16. CAPTIONS.
The captions in this Escrow Agreement are for convenience only and shall
not affect the construction or interpretation of any term or provision hereof.
11
17. GOVERNING LAW.
This Escrow Agreement shall, subject to the provisions of clause 2(ix)
above, be governed by and construed in accordance with the laws of the State
of Illinois, U.S.A. and the courts in the State of Illinois, U.S.A. shall
have non-exclusive jurisdiction in respect of any matter or dispute
concerning or arising out of this Agreement. It is clarified that this
clause shall not prejudice the right of the Escrow Agent, MCC or the Company
to bring any proceedings in the Courts of Pakistan against the Company or
MCC. MCC hereby expressly submits to the jurisdiction of the courts at
Pakistan and appoints Motorola Emerging Markets, Cellular Infrastructure
Division, Pakistan Liaison Office, ▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ as its agent for service of process in Pakistan. The Company
appoints CT Corporation System of ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇.▇.▇.
as its agent for service of processes in Illinois, U.S.A. The Escrow Agent
appoints its branch office in Chicago Illinois, located at ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ acting through the Manager as its agent for
service of process in Illinois, U.S.A.
18. LITIGATION COSTS AND EXPENSES.
In any litigation between the Company and MCC arising out of or relating
to this Escrow Agreement or a breach hereof, each of MCC and the Company
shall bear its own costs and expenses incurred in connection with such
litigation, including actual attorney's fees and expenses. The parties agree
that the Escrow Agent shall not be a necessary party to such litigation, not
directly arising out of acts or omissions of the Escrow Agent. In case of
the Escrow Agent being made party to such litigation, or being required to
obtain legal advice for responding to any notice or claim by the Company or
MCC, the Escrow Agent shall be fully indemnified for any costs, charges or
consequences arising thereof and the Escrow Agent shall be authorized to
recover such amount and costs to the debit of any of the Accounts (except the
Reserve Account).
19. INDEMNITY FAVOURING ESCROW AGENT:
The Company agrees and undertakes to indemnify the Escrow Agent, its
employees, officers and agents against any loss, costs, penalties,
consequences or litigation arising out of any claim, objection or proceedings
related to the Accounts or this Escrow Agreement by any third party
(including any Government or quasi-Government body, department or authority)
which the Escrow Agent may suffer or incur as a consequence of entering in
this Agreement or by virtue of performing the terms of this Escrow Agreement.
The Company will indemnify the Escrow Agent against and in respect of any
expenses, costs, disbursements, or other out goings in respect of travelling,
faxes, telephone calls, courier services, expert advice, brokerage services,
and any other incidental costs pertaining to or arising out of the
performance of the obligations of the Escrow Agent under this Agreement or
relating to the Accounts. The Escrow Agent is authorized to debit the Escrow
Account or any other Account (except the Reserve Account) for recovery of
amounts in terms of this clause with only a prior notice of five working days
to the Company the documentary evidence of such deduction.
12
IN WITNESS WHEREOF, the parties have caused this Escrow Agreement to be
duly executed as of the day and year first above written.
PAKISTAN MOBILE
COMMUNICATIONS (PVT.) LTD.
By:
Its: President
By:
Its: Executive Director Finance
MOTOROLA CREDIT CORPORATION
By:
M.E. ▇▇▇▇▇▇
Attorney-in-Fact
Its:
ABN AMRO BANK N.V., ISLAMABAD
BRANCH
By:
▇▇▇▇▇ ▇. SIGGIQVI
Vice President & Corporate Bank
Head
ABN-AMRO BANK N.V.
Islamabad
WITNESSES
1.
2.
SCHEDULE (1)
DETAILS OF APPROVED LOANS
1. Agreement with Citibank International plc., London for a Long Term loan
of US $15,000,000.00
2. Agreement with Citibank N.A. Islamabad for Running Finance Facility of up
to Rs. 84,000,000.00
3. Financing Agreement with Saudi Pak Industrial and Agricultural Investment
Company (Pvt.) Limited, Islamabad for Short/Medium Term Loan of Rs.
881,000,000.00
4. Agreement with SAIF Telecom (Pvt.) Ltd. for a long term shareholder loan
of Rs. 44,182,716.00
5. Agreement with Motorola International Development Corporation for a long
term shareholder loan of US $3,658,623.00
6. Agreement with International Wireless Communications (Pakistan) Limited
for a long term shareholder loan of US $7,157,487.00
7. Agreement with Motorola International Development Corporation for a long
term shareholder loan of US $3,382,568.00
8. Agreement with International Wireless Communications (Pakistan) Limited
for a long term shareholder loan of US $6,617,432.00
SCHEDULE (2)
FORM OF PAYMENT ADVICE
FOR PAYMENTS TO MCC
UNDER CLAUSE 4(I)
Date: {__________}
To
(1) ABNAMRO Bank ▇.▇.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇ ▇-▇
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
(2) Pakistan Mobile Communications (Pvt.) Ltd.
Dear Sirs,
INVOICE FOR PAYMENT UNDER CLAUSE 4(i) OF ESCROW AGREEMENT DATED {___________}.
Please effect payment as per following details:
(a) Invoice Number: {________}
(b) Payment Amount: {________}
(c) Payment Value Date: {________}
(d) Remittance by wire transfer to: {________}
We confirm that this invoice has been drawn in accordance with and the amounts
stated above are due and payable to us in terms of the Finance Agreement dated
{_______} between Pakistan Mobile Communications (Pvt) Limited and ourselves.
For and on behalf of
Motorola Credit Corporation
By:
Authorized Signatory
SCHEDULE (3)
FORM OF APPROVED LOAN PAYMENT ADVICE
UNDER CLAUSE 4(ii)
Date: {__________}
To
ABN AMRO Bank ▇.▇.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇ ▇-▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇.
Copy to:
Motorola Credit Corporation
Dear Sirs,
APPROVED LOAN PAYMENT ADVICE FOR PAYMENT ON INTEREST/PROFIT/▇▇▇▇/PRINCIPAL IN
RESPECT OF APPROVED LOANS IN TERMS OF CLAUSE 4(ii) OF THE ESCROW AGREEMENT
DATED {___________}.
Please effect payment as per following details:
(a) Payment Notice Number: {_______}
(b) Payment Amount: {_______}
Principal amount: {_______}
▇▇▇▇-up/profit/interest: {_______}
(c) Name of Lender/Creditor: {_______}
(d) Payment value date: {_______}
We confirm that the above payment is due and payable in respect of an Approved
Loan as per details provided in Schedule (1) to the Escrow Agreement.
For and on behalf of
PAKISTAN MOBIL COMMUNICATIONS (PVT) LTD
By:
Authorized Signatory
SCHEDULE 4
FEES AND CHARGES OF THE ESCROW AGENT
The Escrow Agent shall be paid by the Company, a fixed annual fee in advance
in the sum of USD 12,000.00 (United States Dollars Twelve thousand only)
equivalent Pakistan Rupees ("Annual Fee") payable on the date of signing of
the Escrow Agreement and thereafter on each anniversary thereof.
In the event that the Escrow Agent has not received the Annual Fee within 5
(Five) business days of the due date for payment of such Annual Fee, the
Escrow Agent will be authorized to deduct any Escrow Account (except the
Reserve Account) with the amount of such Annual Fee.
In addition to the Annual Fee, the Company will reimburse the Escrow Agent
for all disbursements and out-of-pocket expenses incurred in relation to the
provision of the services of the Escrow Agent in terms of the Escrow
Agreement, including charges for fax, telephone, courier, travel, legal and
other incidental expenses ("Disbursements"). The Disbursements will be
billed to the Company for reimbursements on a quarterly basis, providing
particular/break-up of the constituents of the ▇▇▇▇. If payment is not made
to the Escrow Agent within 5 (Five) business days from the submission of the
▇▇▇▇, the Escrow Agent will have the authority to debit any Escrow Account
(except the Reserve Account) obligations of the Escrow Agent under this
Agreement or relating to the Accounts. The Escrow Agent is authorized to
debit the Escrow Account or any other Account (except the Reserve Account)
for recovery of amounts in terms of this clause with only a prior notice of
five working days to the Company the documentary evidence of such
EXHIBIT F
STOCK PLEDGE AGREEMENT
THIS STOCK PLEDGE AGREEMENT ("Agreement") is made and entered into this 5th
day of March, 1998, by and between International Wireless Communications, a
Mauritius Company ("Pledgor"), and Motorola Credit Corporation ("MCC"), a
Delaware corporation:
A. Pledgor is a stockholder of Pakistan Mobile Communications (Pvt.)
Ltd., a company organized under the laws of the government of Pakistan (the
"Company");
B. Pledgor acknowledges and agrees that Pledgor will benefit from the
financing provided by MCC to the Company pursuant to the Financing and
Security Agreement of even date herewith (the "Financing Agreement");
C. Pursuant to the terms of, and as a condition precedent to funding
under, the Financing Agreement, Pledgor has agreed to pledge certain of the
capital stock of the Company held by Pledgor to MCC to be held as collateral
security for Company's performance of its obligations under the Financing
Agreement;
D. MCC and Pledgor desire to set forth the terms of such pledge; and
E. All capitalized terms used herein and not otherwise defined herein
shall have the meanings ascribed to them in the Financing Agreement.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the sufficiency and the receipt of which is hereby
acknowledged the Pledgor hereby makes the following assignments,
representations, and warranties to MCC in order to induce MCC to enter into
the Financing Agreement and make loans thereunder, the parties agree as
follows:
1. Obligations Secured. This Agreement is made in order to secure (i) the
prompt and complete payment and performance of Company's obligations and
indebtedness arising under or in connection with the Financing Agreement, the
Promissory Note and/or other agreements delivered in connection with the
Financing Agreement, including without limitation, principal, interest,
premium, charges, delinquency charges, fees, assessments, costs and future
advances, whether direct or indirect, contingent or absolute, or matured or
unmatured, and all other amounts owed at any time to MCC by Company; provided
that the maximum amount of such obligations and indebtedness secured hereby
shall be the amount that is sixty-six percent (66%) of the outstanding
principal amount under the Financing Agreement at any time and from time to
time, not to exceed an amount agreed by the parties (the "Secured Amounts"),
plus (ii) any costs
and expenses, now or hereafter existing, that may be incurred by MCC in
connection with the enforcement of this Agreement, the protection of MCC's
rights hereunder or the realization on the security provided for by this
Agreement, all of the foregoing being referred to herein as the "Secured
Obligations."
2. Pledge of Collateral. In order to secure the due and punctual payment
of the Secured Obligations, Pledgor hereby pledges, assigns, transfers, sets
over and delivers to MCC and hereby grants to MCC a first priority security
interest in all of Pledgor's right, title and interest in and to the
following, whether now owned or hereafter acquired;
2.1 7,383,757 (seven million three hundred and eighty three thousand, seven
hundred and fifty seven) ordinary shares of Rs. 10 per share of the Company
owned by Pledgor, plus any additional shares of Company (if any) hereafter
pledged by Pledgor to MCC, which additional shares shall become subject
hereto upon execution of an amendment hereto by the parties referencing such
additional stock, having a Market Value (as defined below) of an amount
agreed by the parties in the aggregate or as proximate thereto as possible
(collectively, the "Shares"), ("Market Value" means, with respect to the
stock pledge described herein, the per share value determined by dividing an
amount agreed by the parties by the number of issued and outstanding shares
of the Company.);
2.2 all subscriptions, warrants and other rights or options issued to or
exercisable by Pledgor with respect to the Shares;
2.3 all other property which may be delivered and pledged to MCC pursuant to
the terms of this Pledge Agreement, including without limitation any
certificates or instruments representing or evidencing such property;
2.4 subject to the provisions of Section 5 hereof, all dividends, interest,
cash, instruments and other property from time to time received, receivable
or otherwise distributed in respect of or in exchange for any or all of the
Shares and other property referred to in Section 2.3;
2.5 subject to the provisions of Section 5, all rights and privileges of
Pledgor with respect to the Shares, and the other property referred to in
2.3, and all proceeds of any of the foregoing and any property of any
character whatsoever into which any of the foregoing may be converted or
which may be substituted for any of the foregoing; and
2.6 all proceeds of any of the foregoing, without prejudice to the Pledgor's
rights to retain dividends and other distributions in accordance with clause
5.1.2 below,
All items referred to in this Section 2 being hereinafter collectively called
the "Collateral" and all securities constituting a part of the Collateral,
including without limitation the Shares, being hereinafter collectively
called the "Pledged Securities." Notwithstanding anything to the contrary
set forth herein, MCC's rights against Pledgor hereunder shall be expressly
limited to the Collateral, and Pledgor shall not be required to pledge any
additional Collateral in excess of the Secured Obligations.
3. Delivery of Collateral: Certificates Representing Shares and Other
Common Stock. If any of the Pledged Securities at any time are evidenced by
certificates or instruments, all such
instruments and certificates shall be promptly delivered to MCC (effective as
of and from the execution of this Agreement), in suitable form for transfer
by delivery or accompanied by duly executed instruments of transfer or
assignments in blank, all in form and substance satisfactory to MCC. All
other property comprising part of the Collateral shall be accompanied by
proper instruments of assignment duly executed by Pledgor in blank and such
other instruments or documents as MCC may reasonably request.
4. Record Ownership of Pledged Securities. Pledgor shall remain the record
owner of the Pledged Securities, and Pledgor will promptly give MCC copies of
any notices or other communications received by Pledgor with respect to
Pledged Securities registered in the name of Pledgor.
5. Voting Rights: Dividends, Etc.
5.1 So long as the Pledged Securities have not been sold to satisfy the
Secured Obligations:
5.1.1 Pledgor shall be entitled to exercise voting and/or other consensual
rights, including waivers, ratifications, and powers accruing to the owner of
the Pledged Securities or any part thereof for any purpose which is
consistent in all material respects with the terms of this Agreement and the
Financing Agreement and would not materially adversely affect the Collateral;
provided, however, that Pledgor shall not be permitted to exercise or refrain
from exercising any such right or power if such action or failure to take
such action would result in an Event of Default; and
5.1.2 To the extent expressly permitted by, and subject to the terms of, the
Financing Agreement, Company shall be permitted to pay, and Pledgor shall be
entitled to receive and retain, cash profits, if any, earned in Company, and
dividends or other distributions paid on the Pledged Securities in the
ordinary course of its business. Any and all property, return of capital,
capital surplus or paid-in surplus made on or in respect of any Pledged
Securities, whether paid or payable in cash or otherwise, whether resulting
from a subdivision, or received in exchange for any Pledged Securities or any
part thereof, or in redemption thereof, or as a result of any merger,
consolidation, acquisition or other exchange of assets to which Company may
be a party, or otherwise, shall be and become part of the Collateral, and if
received by Pledgor, shall not be commingled by Pledgor with any of Pledgor's
other funds or property but shall be held separate and apart therefrom, shall
be held in trust for the benefit of MCC and shall forthwith be delivered to
MCC in the same form as so received, with any necessary endorsements, to be
held or disbursed subject to the terms of this Agreement.
5.2 Upon notice from MCC to Pledgor that an Event of Default has occurred,
all distributions on the Pledged Securities shall be and become part of the
Collateral pledged hereunder and, if received by Pledgor, shall not be
commingled by Pledgor with any of Pledgor's other funds or property but shall
be held separate and apart therefrom, shall be held in trust by Pledgor for
the benefit of MCC for the uses set forth herein and shall forthwith be
delivered to MCC in the same form as received, with any necessary
endorsements, to be held or disbursed subject to the terms of this Agreement.
5.3 Following notice from MCC to Pledgor that an Event of Default has
occurred, any and all money and other property paid over to or received by
MCC and retained by MCC pursuant to the provisions of this Section 5 shall be
additional Collateral hereunder and shall be applied in accordance with the
provisions hereof.
5.4 Following notice from MCC to Pledgor that an Event of Default has
occurred, Pledgor shall not receive or accept payments, distributions or
transfers of property from Company in respect of the Pledged Securities. Any
payments received by Pledgor in respect of the Pledged Securities shall not
be commingled by Pledgor with any of Pledgor's other funds or property but
shall be held separate and apart therefrom, shall be held in trust for the
benefit of MCC and shall forthwith be delivered to MCC in the same form as so
received, with any necessary endorsements, to be applied to the Secured
Obligations, in such order as MCC shall determine in its sole discretion,
reasonably exercised.
6. Representations, Warranties and Covenants. Pledgor represents, warrants
and covenants to MCC as follows:
6.1 Pledgor owns all the Pledged Securities free and clear of any liens,
encumbrances or security interests over them those in favor of MCC created
hereby and the restrictions created by the Amended and Restated Shareholders
Agreement dated as of August 13, 1997 (the "Shareholders Agreement"). The
security interest granted to MCC hereunder is a valid first lien upon and
security interest in the Collateral. Upon the delivery of the Pledged
Securities to MCC, MCC shall have a perfected, first-priority security
interest in all the Collateral, subject to no other liens, encumbrances, or
restrictions other than those contained in the Shareholders Agreement. No
security agreement, financing statement, equivalent security of lien instrument
or continuation statement covering all or any part of the Collateral is on
file or of record in any public office, except as may have been or will be
filed in favor of MCC pursuant to this Agreement, which financing statements
and the jurisdictions where the same have been filed are set forth on
Schedule I attached hereto.
6.2 Pledgor has all requisite power and authority to pledge and grant a
security interest in the Collateral in the manner and for the purposes
contemplated by this Agreement. With the written consent of the other
shareholders of the Company, which has heretofore been obtained by Pledgor,
the execution, delivery and performance of this Agreement by Pledgor will not
violate any contractual obligation of Pledgor. All Pledged Securities owned
by Pledgor have been duly authorized and validly issued, and are fully paid
and non-assessable, and are not now subject to, and shall not hereafter
become subject to, any options to purchase (except as otherwise required in
the Company's Articles of Association), voting trusts, stock restriction
agreements, or similar rights of the Company or any other Person, other than
those contained in the Shareholders Agreement. Pledgor is not and will not
become a party to or otherwise bound by any agreement which restricts in any
manner the transfer of the Pledged Securities or the rights of any present or
future holder of any of the Pledged Securities with respect thereto, other
than the Shareholders Agreement.
6.3 No contractual obligation of Pledgor at present materially adversely
affects, or, insofar as Pledgor may reasonably foresee may so affect, the
ability of Pledgor to perform Pledgor's
obligations under this Agreement. Pledgor is not in default under or with
respect to any contractual obligation that could be materially adverse to the
assets (taken in the aggregate) or financial condition of Pledgor, or which
could materially and adversely affect the ability of Pledgor to perform
Pledgor's obligations under this Agreement. No litigation, investigation or
proceeding of or before any court, arbitrator or Governmental Authority is
pending or, to the knowledge of Pledgor, is threatened, against Pledgor or in
any of Pledgor's properties (a) with respect to this Agreement, or (b) which,
if determined adversely to Pledgor, could have a material adverse effect on
the assets (taken in the aggregate) or financial condition of Pledgor or the
ability of Pledgor to perform Pledgor's obligations under this Agreement.
6.4 Pledgor covenants to notify MCC within 10 days after Pledgor changes
Pledgor's address from that set forth below. Pledgor shall within such 10-day
period file such documents, at Pledgor's sole expense, and take all other
steps necessary to ensure that MCC shall at all times have a perfected,
first-priority security interest in the Collateral, subject to no other
liens, encumbrances, or restrictions. Pledgor shall promptly deliver to MCC
proof that all such steps have been taken.
6.5 The representations and warranties contained in this Section 6 are
deemed to be repeated by the Pledgor at the time of each delivery of Pledged
Securities to MCC.
7. Remedies upon Default. If an Event of Default should occur and is
continuing, MCC may exercise all rights of a secured party under the State of
Illinois, United States of America, Uniform Commercial Code and any other
applicable law and, in addition, MCC may, without being required to give any
notice, except as may be required by mandatory provisions of law, sell the
noncash collateral, or any part thereof, at public or private sale or at any
brokers board or on any securities exchange, for cash, upon credit or for
future delivery, as MCC may deem commercially reasonable and apply the
proceeds thereof towards payment of the Secured Obligations. MCC shall not be
obligated to make any sale of Collateral to a third party if it determines
nor to do so, regardless of the fact that notice of sale may have been given.
In the event the proceeds from a sale of the Collateral exceed the amounts
outstanding in respect of the Secured Obligations, any such excess shall be
promptly transmitted by MCC to Pledgor following MCC's sale of the
Collateral, whether the Collateral is sold to MCC or a third party.
8. Pledgor's Sale of Collateral. Pledgor shall not pledge, encumber, sell,
transfer or otherwise convey any of the Collateral or any interest therein
without the prior written consent of MCC, which shall not be unreasonably
withheld or delayed. If MCC should give its prior written consent to any
sale, transfer or conveyance, then, prior to such sale, transfer or
conveyance, Pledgor shall satisfy any conditions placed by MCC upon such
sale, transfer and conveyance and shall obtain from the transferee and
deliver to MCC (i) a Stock Pledge Agreement executed by the transferee in
form and substance the same as this Agreement, pledging the Collateral and/or
other collateral obtained by the transferee as security for the performance
of Pledgor's obligations under the Finance Agreement, (ii) all of such
Collateral evidenced by certificates or instruments plus duly executed
instruments of transfer or assignments in blank, all in form and substance
satisfactory to MCC, (iii) acknowledgment copies of financing statements
filed in all offices necessary or desirable to perfect MCC's security
interest and/or interests in any of the Collateral not evidenced by a
security or an instrument; (iv) an opinion of counsel to the
transferee, in form and substance satisfactory to MCC regarding the validity,
enforceability and perfection of such Stock Pledge Agreement and the security
interests created thereby; and (v) such other documentation as MCC may deem
necessary or desirable in order to maintain its first priority perfected
security interest in the Collateral. Any sale, transfer or conveyance of any
of the Collateral or any interest therein made with or without MCC's consent
shall be subject to MCC's continuing perfected first-priority security
interest in such Collateral unless MCC has expressly released such security
interest in writing.
9. Appointment of Attorney-in-Fact. Pledgor hereby irrevocably appoints MCC
as Pledgor's attorney-in-fact with full authority in the place and stead of
Pledgor and in the name of Pledgor or otherwise, for the purpose of carrying
out the provisions of this Agreement to receive, endorse and collect all
checks and other orders for the payment of money made payable to Pledgor
representing any dividend, interest payment or other distribution payable in
respect of the Collateral. The powers conferred on MCC hereunder are solely
to protect its interest in the Collateral and shall not impose any duty upon
it to exercise any such powers.
10. Termination. This Agreement, and the assignments, pledges and security
interests created or granted hereby, shall terminate only when (a) all the
then outstanding Secured Obligations shall have been paid in full and (b)
the line of credit under the Financing Agreement has terminated. Upon
termination, MCC shall promptly reassign and deliver to Pledgor, at Pledgor's
expense, all Collateral and related documents then in MCC's custody or
possession.
11. Notices. All notices, replies, requests, reports, demands, or other
communications required or permitted under this Agreement shall be in writing
in the English language, effective upon receipt, or upon confirmation of the
recipient's refusal of delivery, and shall be transmitted by (a) reputable
overnight courier, (b) telecopy with telephone confirmation of receipt, or
(c) registered or certified mail, return receipt requested, postage prepaid.
12. Further Assurances. Pledgor agrees, at Pledgor's own cost and expense,
to do such further acts and things, and promptly to execute and deliver such
additional conveyances, assignments, agreements, documents and instruments as
MCC may at any time reasonably request in connection with the administration
and enforcement of this Agreement or in order to perfect the pledge of stock
hereafter acquired in the Company or with respect to the protection and
perfection of the Collateral and any part thereof in order better to assure
and confirm unto MCC its right and remedies hereunder.
13. Absolute Interest. Pledgor acknowledges and agrees that the security
interest and assignment herein provided for shall be absolute and
unconditional and shall not in any manner be affected or impaired by any acts
or omissions whatsoever, and, without limiting the generality of the
foregoing, shall not be impaired by any acceptance by MCC of any other
collateral for or guarantors upon any of the indebtedness secured hereby, or
any by failure or neglect or omission on the part of MCC to realize upon,
collect or protect any indebtedness secured hereby or any collateral security
therefor. The security interest and assignment herein provided for shall not
in any manner be affected or impaired by (and MCC, without notice to anyone
is hereby authorized to make from time to time without the consent of
Pledgor) any sale, pledge, surrender, compromise, settlement, release or
renewal, extension, indulgence, alteration, substitution,
exchange, change in, modification or disposition of any or of the
indebtedness secured hereby or of any of the collateral security therefor, or
of any guaranty thereof. In order to sell, dispose of or otherwise realize
upon the security interest and assignment herein granted and provided for,
and exercise the rights granted MCC hereunder and under applicable law, there
shall be no obligation on the part of MCC at any time to first resort for
payment to the Pledgor or to my guaranty of the indebtedness secured hereby
or any part thereof or to resort to any other collateral security, property,
liens or other rights or remedies whatsoever, and MCC shall have the right to
enforce the security interest and assignment herein granted and provided for
irrespective of whether or not other proceedings or steps are pending seeking
resort to or realization upon or from any of the foregoing.
14. FCC/PUC Approves. The exercise of any rights hereunder by MCC that may
require Federal Communications Commission ("FCC") shall be subject to
obtaining such approval. Pending obtaining any such FCC approval, Pledgor
shall not do anything contrary to the interests of MCC.
15. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Illinois, without regard to its
provisions on the conflicts of laws.
16. Severability. If any provision of this Agreement is found to be
unenforceable for any reason whatsoever, such provision shall be deemed null
and void to the extent of such unenforceability but shall be deemed separable
from and shall not invalidate any other provision of this Agreement.
17. Execution in Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall constitute an original, but when taken
together shall constitute but one Agreement, and any of the parties thereto
may execute this Agreement by signing any such counterpart.
18. Amendments. This Agreement may not be amended, modified or changed nor
shall any waiver of any provision hereof be effective, except by an
instrument in writing signed by the party against whom enforcement of any
waiver, amendment, change, modification or discharge is sought. This
Agreement shall constitute the entire obligations of the parties hereto with
respect to the subject matter hereof, and shall supersede any prior
expressions of intent or understandings with respect to the transactions
contemplated hereby.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
PLEDGOR:
By: /s/ ▇. ▇▇▇▇▇
Address:
Apt 35A Block 3
Pacific View
▇▇ ▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
MOTOROLA CREDIT CORPORATION
By: /s/
Title: Attorney-in-fact
Address:
EXHIBIT G
MOTOROLA CREDIT CORPORATION
1 CONTINENTAL TOWER,
▇▇▇▇ ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ 6008
Dear Sirs:
HYPOTHECATION AGREEMENT
1. In consideration of Motorola Credit Corporation of 1 Continental
Tower, 1701 Golf Road, Rolling Meadows, IL 6008 (hereinafter referred to as
"MCC") entering into the Agreement (the "Agreement") dated 5 March, 1998 with
us, pursuant to our request, we hereby agree to hypothecate to MCC all our
right, title and interest to and in that certain moveable properly more
particularly described in Schedule A attached hereto (such property, together
with any property which may hereafter be hypothecated to MCC by us being
hereafter referred to as the "Hypothecated Goods"), as security for the
payment of United States Dollars 32,000,000 (United States Dollars Thirty Two
Million Only) and any and all amounts which may now or hereafter may at any
time be due to MCC from us, including, but not limited to, a service charge
in an amount determined by MCC, all costs, charges, taxes, and other expenses
incurred by MCC in connection with or relating to the Hypothecated Goods, the
Agreement and this Hypothecation Agreement.
2. By this agreement we agree to creates a valid and perfected first
security interest in the Hypothecated Goods for payment of the amounts due to
MCC as noted above which shall rake effect when the first amount is advanced
to us under the Agreement by MCC.
3. So long as this agreement remains in effect or any amount is owed
to MCC by us under the Agreement, we shall not, except in the ordinary course
of business and with the prior approval of MCC, at any time, remove or cause
or permit to be removed any Hypothecated Goods or any part thereof, from the
location where such goods are stored or divert or otherwise deal with such
goods or do any other act which might adversely affect MCC's security
interest in the Hypothecated Goods.
4. MCC, its agents, and nominees shall be entitled at all times, with
reasonable prior notice, to enter upon any place where the Hypothecated Goods
may be stored and inspect the same or any part thereof. Without limiting the
generality of the foregoing, and without prejudice to the other rights of
MCC, it is specifically agreed between the parties hereto that MCC, its
agent, or nominees shall have such right in the event that we shall (i) fail
or neglect to pay MCC on demand amounts due under the Agreement; (ii) commit
breach of any of the terms contained herein or in the Agreement; (iii) commit
any act of insolvency or become or be adjudged bankrupt or insolvent; or (iv)
permit execution to be levied or enforced upon or against any of its property.
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5. We shall hold MCC, its nominees and agents harmless from, and
indemnify them against, all injury, damage, cost, loss, expense or
deterioration suffered by MCC or its nominees or agents with respect to or in
connection with the Hypothecated Goods from any cause whatever, including,
but not limited to, fire, ▇▇▇▇▇, ▇▇▇▇▇▇▇, earthquake, rains, floods, riots,
civil commotion, rebellion, insurrection, acts of God or the enemies of the
State, strikes, lockouts, political or labor disturbances, theft,
misappropriation or embezzlement.
6. We shall at all times regularly and particularly pay all rents,
rates, taxes, salaries and other impositions and expenses and shall duly
discharge and comply with all orders and requirements of appropriate
authorities that may from time to time respectively become due and payable or
be made in connection with the storage, transportation, maintenance, or care
of the Hypothecated Goods.
7. We shall at all times insure and keep insured all the Hypothecated
Goods to the full extent of their value against fire, theft and all other
risks, as MCC may require, and shall duly and punctually pay the premia
payable in respect thereof at least one week before the same shall become due
or payable and shall hand over the policy or policies of insurance and
receipts for premia paid in respect thereof to MCC. If default be made in
payment of such premia or in keeping the Hypothecated Goods so insured, then
and in such case it shall be lawful but not obligatory upon MCC to pay such
premia and to keep the same so insured and expense incurred by MCC for the
purpose together with an addition of 1% thereto as liquidated damages shall
be charged to and paid by us, as if the same were part of the amount due to
MCC under the said Agreement. We agree not to raise at any time any dispute
as to the amount of MCC's insurable interest in any Hypothecated Goods.
8. MCC shall be entitled to adjust, settle, compromise or refer to
arbitration any dispute between any Insurance Company and the insured arising
under or in connection with any such policy or policies as aforesaid and such
adjustment, settlement, compromise and any award made on such arbitration
shall be valid and binding on us and MCC shall also be entitled to receive
all moneys payable under any such policy or under any claim made thereunder
and to give a valid receipt therefor and the amount so received shall be
credited towards the outstandings under the said Agreement and we shall not
raise any objection whatsoever in this regard.
9. In the event of any default by us in payment of any amounts hereby
secured or in the performance of any obligation under the Agreement, MCC
shall be entitled to take possession and sell the Hypothecated Goods or any
part thereof either by public auction or private agreement or may acquire
such Hypothecated Goods itself.
10. We confirm we have good and marketable title to the Hypothecated
Goods free from any lien, charge, pledge, or other encumbrance and that all
future goods and merchandise hypothecated to MCC hereafter shall be likewise
free from any lien, charge, pledge, or other encumbrance. We shall not
except pursuant to this Hypothecation Agreement, pledge, hypothecate,
mortgage, or otherwise charge or encumber or do any other act which might
adversely affect MCC's security interest in or title to the Hypothecated
goods.
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11. Any notice by way of request, demand or otherwise may be given to
us by leaving the same at or sending the same by post to the Registered
Office or Principal place of business in Pakistan or may be left at the last
known place of business or residence in Pakistan and any notice sent by post
shall be deemed to have been given at the time when it would be delivered in
the course of post and in proving such notice when given by post, it shall be
sufficient to prove that the envelope containing the notice was posted and a
Certificate signed by the Bank's officer that the envelope was so posted,
shall be conclusive.
12. This hypothecation agreement shall be governed and construed in
accordance with the laws of Pakistan.
SCHEDULE A
(Attached to and forming part of the Hypothecation Agreement dated
______________ 1998 entered into by
Pakistan Mobile Communications (Pvt) Limited)
DESCRIPTION OF HYPOTHECATED GOODS
All present and future Equipment (as such term is defined in the Agreement)
IN WITNESS WHEREOF, the undersigned have executed this document on this
______ day of ________________, 1998.
▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
FOR AND ON BEHALF OF PAKISTAN MOBILE COMMUNICATIONS (PRIVATE) LIMITED
WITNESSED BY:
1.
2.
28
SIDE LETTER TO THE SHARE PLEDGE AGREEMENT
BETWEEN
MOTOROLA CREDIT CORPORATION (MCC)
AND
INTERNATIONAL WIRELESS COMMUNICATION PAKISTAN LIMITED (IWCPL)
DATED MARCH 5, 1998
For the purposes of clause 2.1 of the Stock Pledge Agreement of March 5, 1998
entered into between MCC and IWCPL the value of issued shares of Pakistan
Mobile Communications (pvt) Limited (PMCL) shall be agreed as being US$
250,000,000 (US Dollars two hundred and fifty million). At this date the
total number of shares issued by Pakistan Mobile Communications (pvt) Limited
and fully paid up is 87,176,146 (eighty seven million one hundred and seventy
six thousand one hundred and forty six) shares which is equivalent to US$
2.8677 per share.
The amount to be loaned under the Financing and Security Agreement dated
March 5, 1998 between MCC and PMCL is US$ 32,000,000 (US Dollars thirty two
million). International Wireless Communications Pakistan Limited (IWCPL) as a
share holder of PMCL is responsible for providing a collateral in the form of
pledge of shares to the value of 66.17% or US$ 21,174,400 (US Dollars twenty
one million one hundred and seventy four thousand four hundred) of the total
amount of the credit. The number of shares to be pledged therefore to
Motorola Credit Corporation is 7,383,747 (seven million three hundred and
eighty three thousand seven hundred and fifty seven shares).
In agreement therefore of the above the parties above mentioned have duly
executed this document on the day and year first above written.
Motorola Credit Corporation
By:
----------------------------------
Attorney in Fact
International Wireless Corporation Pakistan Limited
By:
----------------------------------
and: ---------------------------------
Witnesses:
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