EXHIBIT 4.(a)(xxiv)
DATED 21 DECEMBER 2001
▇▇▇▇▇.WEB LIMITED (in liquidation)
and
THE LIQUIDATORS
and
▇▇▇▇▇ NETWORKS NV
and
▇▇▇▇▇ NETWORKS LIMITED
and
▇▇▇▇▇ GROUP SERVICES LIMITED
and
▇▇▇▇▇.WEB INTERNATIONAL (CI) LIMITED
------------------------------------
SUPPLEMENTAL AGREEMENT AND
DEED OF INDEMNITY
------------------------------------
▇▇▇▇▇ & OVERY
LONDON
BK:920855.1
This SUPPLEMENTAL AGREEMENT AND DEED OF INDEMNITY is made on the 21st day of
December, 2001 BETWEEN:
(1) ▇▇▇▇▇.WEB LIMITED (in liquidation) (registered number 3846790) whose
registered office is at ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇
(the "COMPANY") acting by Neville ▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
licensed insolvency practitioners of PricewaterhouseCoopers, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (the "LIQUIDATORS"); and
(2) THE LIQUIDATORS in their capacity as liquidators of the Company; and
(3) ▇▇▇▇▇ NETWORKS NV ("NV") a company registered in the Netherlands
registered number 34124140 whose registered office is at Transpolis
Schiphol Airport, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇, the Netherlands;
and
(4) ▇▇▇▇▇ NETWORKS LIMITED ("NETWORKS") (registered number 2011579) whose
registered office is at Wexham Springs, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇
▇▇▇ (together with NV, the "FUNDERS"); and
(5) ▇▇▇▇▇ GROUP SERVICES LIMITED (registered number 3953966) ("GROUP
SERVICES") whose registered office is at Wexham Springs, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇; and
(6) ▇▇▇▇▇.WEB INTERNATIONAL (CI) LIMITED (registered number FC021680) whose
registered office is at ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ (together with Networks and Group Services, the "GROUP COMPANY
CREDITORS").
WHEREAS
(A) The Company went into administration on 27th April, 2001 and Neville ▇▇▇▇▇
▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, both of PricewaterhouseCoopers, were
appointed joint administrators of the Company (the "ADMINISTRATORS"). The
administration order was discharged on 17th August, 2001 and the Company
went into creditors' voluntary liquidation on the same date.
(B) The Liquidators were appointed joint liquidators of the Company at a
meeting of the Company's creditors held on 17th August 2001.
(C) On 27th April, 2001 NV and the Administrators entered into an agreement
(the "AGREEMENT") pursuant to which NV agreed to make available to the
Administrators certain funding, inter alia to enable the Company's
operations to be continued in administration and to fund the costs and
expenses of the administration (the "FUNDING").
(D) Under the terms of the Agreement, the Funding is classed as a liability
incurred by the Administrators under section 19(5) of the Insolvency Act
1986 (the "ACT") repayable to NV in accordance with the provisions
contained in the Act as varied by the Agreement.
(E) NV agreed to defer the repayment of the Funding until such time as the
realisations were sufficient to fund a distribution in the amount of $2
million to the Company's non-preferential unsecured creditors (the
"MINIMUM UNSECURED DISTRIBUTION"). However, the Agreement reserves to the
Administrators the absolute right in their sole discretion to agree to
repay the Funding earlier than is otherwise provided in the Agreement
after making such reserves as they in their sole discretion deem
appropriate.
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(F) The Liquidators have agreed to make an immediate repayment of $1.5 million
of the Funding to the Funders (the "EARLY REPAYMENT") subject to the
terms, conditions, warranties and indemnities contained in this
supplemental agreement and deed of indemnity (this "DEED").
NOW IT IS HEREBY AGREED as follows:-
1. INTERPRETATION
1.1 DEFINITIONS
In this Deed:
"BUSINESS DAY" means a day (other than a Saturday or a Sunday) on which
banks are open for general business in London.
1.2 CONSTRUCTION
(a) In this Agreement, unless the contrary intention appears, a reference to:
(i) a person includes an individual, company, unincorporated association
or body of persons (including a partnership, joint venture or
consortium), government, state, agency, international organization
or other entity;
(ii) a provision of law is a reference to that provision as amended or
re-enacted;
(iii) a Clause is a reference to a clause of this Deed;
(iv) this Deed or another document is a reference to this Deed or other
document as amended;
(v) the singular shall include the plural and vice versa;
(vi) a person is a reference to or includes its successors, transferees
and assigns; and
(vii) a time of day is a reference to London time
(viii) any indemnity, liability, warranty or obligation whatsoever of the
Funders or of the Group Company Creditors contained in this Deed
shall be joint and several.
(b) The headings in this Deed are for convenience only and are to be ignored
in construing this Deed.
2. REPAYMENT AND INDEMNITY
2.1 The Company and/ or the Liquidators shall pay the Early Repayment by
depositing the amount of $1.5 million into the bank account of Networks
held at National Westminster Bank plc., High Street, ▇▇▇▇▇▇▇, sort code
XXX account number XXX Swift code XXX and the Funders acknowledge that
such payment shall constitute good discharge of the entitlement of both of
the Funders to receive the Early Repayment from the Company and/ or the
Liquidators.
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2.2 The Funders further acknowledge that any entitlement to receive repayment
of the remainder of the Funding from the Company and/or the Liquidators
shall belong solely to Networks and that both legal and beneficial title
to such claim vest absolutely in Networks.
2.3 In consideration of the Company and/or the Liquidators making the Early
Repayment, the Funders hereby undertake and agree with the Company and the
Liquidators and each of them that the Funders will at all times hereafter:
(a) forthwith make a payment to the Company and/or the Liquidators upon
receipt by either of them of every written notification by the
Liquidators that they in their sole discretion consider that the
Company will have insufficient funds to be able to make the Minimum
Unsecured Distribution, the amount of each such payment being
limited to the amount necessary (in the opinion of the Liquidators,
in their sole discretion) to enable the Company to be able to make
the Minimum Unsecured Distribution plus interest on any amounts
outstanding under this Clause for more than 7 days after such
payment was requested by the Liquidators, such interest to be
payable on a non-compound basis at a rate of 8% p.a. (the
"INTEREST"), save that the total amount of all such payments made
pursuant to this Clause shall not exceed the amount of the Early
Repayment plus the Interest.
(b) indemnify and keep indemnified the Company and the Liquidators and
each of them from and against all actions, proceedings, claims,
costs, expenses, damages, taxes, penalties and liabilities
whatsoever brought against or incurred by the Company or the
Liquidators in relation to their making of the Early Repayment
including any costs and expenses (including, without limitation,
legal costs and expenses) incurred by the Company and/or the
Liquidators in considering or defending any claim in respect of any
of the liabilities referred to above provided that the Liquidators
shall give the Funders prompt notice of any such claims made against
them and, on request by the Funders, shall provide the Funders with
reasonable opportunity to consult with them in relation to the
conduct of the defence to any such claims.
(c) indemnify and keep indemnified the Company and the Liquidators and
each of them from and in respect of any misrepresentations by the
Funders or breaches by the Funders of the terms, conditions and
warranties contained in this Deed.
3. FURTHER REDUCTION
3.1 In consideration for the Company and the Liquidators making the Early
Repayment, the Funders agree to further reduce the amount of their claims
against the Company and/or the Liquidator in relation to the repayment of
the Funding by the amounts listed at Schedule 1 to this Deed (being the
approximate inter company balances owed to the Company by various other
companies within the same group, such amounts being agreed between the
parties to this Deed for the purposes of the calculation in this clause)
(the "INTER COMPANY ASSETS").
3.2 The parties to this Deed agree that, should any amounts be recovered by
the Company in respect of the Inter Company Assets then the amount of any
such realisations actually received by the Company shall be deducted from
the Inter Company Asset value as shown on Schedule 1 to this Deed and the
new value of the Inter Company Assets shall be used in the calculation
referred to in clause 3.1 above. For the avoidance of doubt, whilst
neither the Company nor the Liquidators shall be under any duty to claim
or pursue a claim for payment
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of any of the Inter Company Assets, this Deed shall not constitute any
waiver of the rights (if any) of the Company and/ or the Liquidators to
pursue any such claims.
4. WARRANTIES
4.1 The Funders warrant that they are the sole parties legally and
beneficially entitled to the monies that were used towards the Funding.
4.2 The Funders further warrant that they are the sole parties legally and
beneficially entitled to receive any repayment of the Funding including
the Early Repayment.
4.3 The Funders and the Group Company Creditors warrant that they are not
unable to pay their debts (as defined in section 123 of the Act) at the
time of entering into this Deed, nor will they become unable to pay their
debts (as defined in section 123 of the Act) as a consequence of executing
this Deed.
5. DIVIDEND PAYMENTS
5.1 The Funders and the Group Company Creditors agree that, in consideration
for the Company and/ or the Liquidators making the Early Repayment, in the
event that the Company and/ or the Liquidators have insufficient funds to
pay the full Minimum Unsecured Distribution or whilst any amount payable
or potentially payable by the Funders under the indemnity given by the
Funders in Clause 2 above remains outstanding, the following provisions
shall apply:
(a) The distributions payable to the Group Company Creditors
("(POUND)X") and the distributions payable to other unsecured
creditors of the Company (the "OTHER UNSECUREDS") ("(POUND)Y") shall
be calculated on the basis that the full amount of the Minimum
Unsecured Distribution is available for distribution.
(b) The Group Company Creditors shall subordinate their claims to
(pound)x to the OTHer Unsecureds' claims to (pound)y and the Company
and the Liquidators shall be under no duTY to make a distribution to
the Group Company Creditors until (pound)y has been paid to the
OTHer Unsecureds.
(c) The Group Company Creditors shall waive their entitlement to receive
the distribution of (pound)x if insufficient funds are available to
make this distribution and neither the CoMPAny or the Liquidators
shall be liable to account to the Group Company Creditors for any
distribution which, in the absence of the provisions of this Deed,
they would otherwise have been entitled to receive.
6. MISCELLANEOUS
6.1. It is hereby agreed and declared between the parties that:
(a) this Deed shall continue for the benefit of the successors assigns
and personal representatives of the Company and the Liquidators and
be binding upon the successors in office and assigns of the
Liquidators;
(b) this indemnity is a continuing indemnity and will remain in force
until the earlier of the date upon which the Funders receive a
written notification of discharge from the
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Liquidators, or the date of the payment by the Liquidators of the
final dividend to the creditors of the Company.
(c) nothing in this Deed shall affect any right of indemnity to which
the Company or the Liquidators may be entitled by law from the
Funders or its assets or from any third party.
6.2 This Deed may be executed in any number of counterparts, and this has the
same effect as if the signatures on the counterparts were on a single copy
of this Deed.
6.3 No party shall disclose the details of the terms of this Deed to any third
party not being an employee, agent or adviser of a party unless mutually
agreed in writing, such agreement not to be unreasonably withheld or
unless a party has a legal obligation to disclose the terms of this Deed.
6.4 No person who is not a party to this Deed has any rights under the
Contract (Rights of Third Parties) ▇▇▇ ▇▇▇▇ to rely on or enforce any term
of this Deed. This Subclause 6.4 does not affect any right or remedy of a
third party that exists or is available apart from that Act.
6.5 The Liquidators shall not incur any personal liability of any kind under,
or by virtue of, this Deed, nor in relation to any related matter or
claim, whether in contract, tort or restitution or by reference to any
other remedy or right in any other jusridiction or forum.
7. NOTICES
7.1. Any notices to be served under this Deed must be in writing and may be
delivered or sent by post or telex or facsimile process to the party to be
served at its address appearing in this Deed as follows:
(a) to the Company and to the Liquidators at:
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Tel. ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
marked for the attention
of Neville ▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
(b) to NV at:
▇/▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Tel. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Fax. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
marked for the attention
of ▇▇▇▇▇▇ ▇▇▇▇▇▇, CEO
cc. Legal Dept.
(c) To Networks at:
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c/o Wexham Springs,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Tel. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Fax. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
marked for the attention
of ▇▇▇▇▇▇ ▇▇▇▇▇▇, CEO
cc. Legal Dept.
or at such other address telex or facsimile number as that party may have
notified to the other parties in accordance with this Clause. Any notice
or other document sent by post shall be sent by prepaid first class post
(if within the United Kingdom) or by prepaid airmail (if elsewhere).
7.2 Any notice or document shall be deemed to have been served:
(a) if delivered, at the time of delivery; or
(b) if posted, at 10.00 a.m. on the second Business Day after it was put
into the post if sent within the United Kingdom, or at 10.00 a.m.
(local time at the place of destination) on the fifth Business Day
after it was put into the post if sent by airmail; or
(c) if sent by facsimile process, at the expiration of 2 hours after the
time of despatch, if despatched before 3.00 p.m. (local time at the
place of destination) on any Business Day, and in any other case at
10.00 a.m. (local time at the place of destination) on the Business
Day following the date of despatch.
7.3 In proving service of a notice or document it shall be sufficient to prove
that delivery was made or that the envelope containing the notice or
document was properly addressed and posted (either by prepaid first class
post or by prepaid airmail, as the case may be) or that the telex or
facsimile message was properly addressed and despatched, as the case may
be.
8. GOVERNING LAW
8.1. This Deed is governed by, and shall be construed in accordance with,
English law and the parties submit to the jurisdiction of the English
courts in all matters relating to this Deed.
IN WITNESS whereof the Liquidators, the Funders and the Group Company Creditors
have executed, and the Liquidators have caused the common seal of the Company to
be affixed to, this Deed the day and year first above written.
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SCHEDULE 1
Intercompany debt
Executed as a Deed and Delivered by )
▇▇▇▇▇.WEB LIMITED )
acting by the Liquidators without )
personal liability pursuant to the )
powers conferred on them under the )
Insolvency ▇▇▇ ▇▇▇▇ in the presence of: ) /s/ N KHAN
In the presence of:
Witness's signature V COSTA
Name ....................................
Address..................................
..........................................
..........................................
Signed as a Deed by )
NEVILLE ▇▇▇▇▇ ▇▇▇▇ )
for and on behalf of the LIQUIDATORS )
in the presence of: ) /s/ N KHAN
In the presence of:
Witness's signature V COSTA
Name.....................................
Address..................................
..........................................
..........................................
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Signed as a Deed by )
▇▇▇▇▇ NETWORKS NV )
Acting by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ )
(Managing Director) acting )
under the authority of that company )
/s/ M MALINA
/s/ ▇ ▇ ▇▇▇▇▇▇ (Director)
In the presence of:
Witness's signature /s/ K HALLGATE
Name.....................................
Address..................................
..........................................
..........................................
Signed as a Deed by )
▇▇▇▇▇ NETWORKS LIMITED )
Acting by )
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ )
and Kirstie Hallgate )
/s/ C SEPMPRINI /s/ K HALLGATE
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Kirstie Hallgate
Director Secretary
Signed as a Deed by )
▇▇▇▇▇ GROUP SERVICES )
LIMITED )
Acting by )
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ )
and Kirstie Hallgate )
/s/ C SEMPRINI /s/ K HALLGATE
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Kirstie Hallgate
Director Secretary
Signed as a Deed by )
▇▇▇▇▇.WEB INTERNATIONAL )
(CI) LIMITED )
Acting by ▇▇▇▇▇ ▇▇▇▇▇▇ )
(Director) acting )
under the authority of that company )
/s/ H ▇▇▇▇▇▇
▇ ▇▇▇▇▇▇ (Director)
In the presence of:
Witness's signature...WITNESSED
Name.....................................
Address..................................
..........................................
..........................................
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