EXHIBIT 10.13F
CONFORMED COPY
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FACILITY AGREEMENT
in respect of
US$60,000,000 Facility
between
P.T. MOBILE SELULAR INDONESIA
as the Borrower
and
NISSHO IWAI INTERNATIONAL (SINGAPORE) PTE., LTD
as the Lender
COUDERT BROTHERS
TABLE OF CONTENTS
CLAUSE PAGE
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1. Interpretation..................................................... 1
2. The Facility....................................................... 8
3. Availability Of The Facility....................................... 12
4. Making Of Advances................................................. 13
5. Interest Periods................................................... 14
6. Interest........................................................... 14
7. Default Interest................................................... 14
8. Repayment.......................................................... 15
9. Cancellation And Prepayment........................................ 16
10. Illegality......................................................... 16
11. Market Disruption.................................................. 17
12. Representations And Warranties..................................... 17
13. Financial Information.............................................. 23
14. General Covenants And Undertakings................................. 27
15. Events Of Default.................................................. 39
16. Broken Funding Costs............................................... 43
17. Indemnity.......................................................... 43
18. Currency Of Account................................................ 44
19. Payments........................................................... 44
20. Taxes.............................................................. 45
21. Increased Costs.................................................... 47
22. Set-Off............................................................ 48
23. Fees, Costs And Expenses........................................... 48
24. Benefit Of Agreement............................................... 49
25. Miscellaneous...................................................... 50
26. Remedies And Waivers............................................... 51
27. Partial Invalidity................................................. 51
28. Notices............................................................ 51
29. Law And Jurisdiction............................................... 52
30. Construction Of Certain Provisions................................. 53
Schedule One: Form Of Advance Request......................... 58
Schedule Two: The Project Contracts........................... 59
Schedule Three: Form Of Master Assignment Of Sub-Accounts..... 60
THIS AGREEMENT is made on the 12th day of March, 1996
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BETWEEN:
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(1) P.T. MOBILE SELULAR INDONESIA (the "BORROWER"); and
(2) NISSHO IWAI INTERNATIONAL (SINGAPORE) PTE., LTD. (the "LENDER").
WHEREAS the Borrower has requested, and the Lender has agreed to make available,
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a credit facility upon the terms and subject to the conditions set out in this
Agreement.
IT IS AGREED THAT:
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1. INTERPRETATION
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1.1 In this Agreement, each of the following expressions has, except where
the context otherwise requires, the meaning given to it below:
"ACCOUNTS" means the RP Escrow Account, the US Escrow Account and the
Reserve Account and "ACCOUNT" means any of them as the context may permit;
"ADVANCE" means, save as otherwise provided herein, the principal
amount of any drawing made hereunder (as from time to time reduced by
repayment);
"ADVANCE REQUEST" means a request made hereunder by the Borrower for
an Advance in the form set out in Schedule One hereto;
"ASSIGNMENT OF CONSTRUCTION CONTRACTS" means the assignment of
construction contracts entered or to be entered into between the Borrower and
the Security Agent in form and substance satisfactory to the Lender;
"ASSIGNMENT OF INSURANCES" means the assignment of insurances entered
or to be entered into between the Borrower and the Security Agent in form and
substance satisfactory to the Lender;
"ASSIGNMENT OF PERFORMANCE BONDS" means the assignment of performance
bonds entered or to be entered into between the Borrower and the Security Agent
in form and substance satisfactory to the Lender;
"ASSIGNMENT OF RECEIVABLES" means the assignment of all the
receivables from time to time of the Borrower entered or to be entered
into between the Borrower and the Security Agent in form and substance
satisfactory to the Lender;
"ASSIGNMENT OF RESERVE ACCOUNT" means the assignment of account
proceeds in respect of the Reserve Account entered or to be entered into between
the Borrower and the Lender in form and substance satisfactory to the Lender;
"ASSIGNMENT OF RP ESCROW ACCOUNT" means the assignment of account
proceeds in respect of the RP Escrow Account entered or to be entered into
between the Borrower and the Lender in form and substance satisfactory to the
Lender;
"ASSIGNMENT OF US ESCROW ACCOUNT" means the assignment of account
proceeds in respect of the US Escrow Account entered or to be entered into
between the Borrower and the Lender in form and substance satisfactory to the
Lender;
"AUTHORISED SIGNATORY" means, in relation to any communication to be
made or any document to be certified or executed by or on behalf of the Borrower
under or in connection with this Agreement, at any time, any person:
(i) who is at such time duly authorised, by or pursuant to the
resolution of the Borrower referred to in Clause 2.3 or in such other manner as
may be acceptable to the Lender, to make such communication or to execute or
certify such document on behalf of the Borrower; and
(ii) in respect of whom the Lender has received a certificate of a
director or another of its Authorised Signatories, setting out the name and,
where such person is authorised to execute or certify documents, signature of
such person confirming such person's authority to act as aforesaid;
"AVAILABLE AMOUNT" means, at any given time, the Commitment of the
Lender at such time less the aggregate amount of the Advances then outstanding;
"AVAILABILITY TERMINATION DATE" means the earlier of the day which is
twelve (12) months after the date hereof and the first business day on which the
Available Amount is zero;
"COLLATERAL" means the security interests over all the property and
assets of the Borrower which are the subject of the Security Documents (or any
of them);
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"COMMITMENT" means, in relation to the Lender, at any given time and
except as the same may be reduced as provided herein, US$60,000,000 (as limited
by the terms of this Agreement);
"DRAWDOWN DATE" means, in relation to any Advance, the date for the
making thereof, as specified (subject to the provisions of this Agreement) in
the Advance Request relating thereto;
"EVENT OF DEFAULT" means any of the events specified in Clause 15;
"FACILITY" means the term loan facility of up to a maximum aggregate
amount of US$60,000,000 granted to the Borrower by the Lender pursuant to this
Agreement;
"FEES LETTER" means the letter of even date herewith exchanged between
the Lender and the Borrower setting out certain fees payable by the Borrower in
connection with the Facility;
"FIDUCIARY TRANSFER" means the fiduciary transfer of proprietary
rights entered or to be entered into between the Borrower and the Security Agent
in relation to all plant, machinery, equipment and other tangible property from
time to time of the Borrower as security (amongst other things) for all sums
from time to time due from the Borrower to the Lender hereunder;
"GUARANTEE" means the corporate guarantee issued or to be issued by
the Guarantor in favour of the Lender in respect of the obligations of the
Borrower under the Transaction Documents in form and substance satisfactory to
the Lender;
"GUARANTOR " means P. T. Rajasa Hazanah Perkasa;
"HYPOTHEC" means the deeds of hypothec entered or to be entered into
between the Borrower and the Security Agent in respect of all the right, title
and interest from time to time of the Borrower in the Real Property in form and
substance satisfactory to the Lender;
"INDONESIA" means the Republic of Indonesia;
"INFORMATION MEMORANDUM" means the document or documents in relation
to the Borrower and the Project which, at the Borrower's request and on its
behalf was or were prepared in relation to the transactions contemplated herein
and distributed to the Lender during September, October, November and December,
1995;
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"INTEREST PAYMENT DATE" means each of the days which are six (6),
twelve (12), eighteen (18) and twenty-four (24) months after thedate of the
making of the first Advance and, thereafter, each of the Repayment Dates
Provided Always that if any Interest Payment Date occurs on a day which is not a
Banking Day, such Interest Payment Date shall be the immediately succeeding
Banking Day;
"INTEREST PERIOD" means, without prejudice to the provisions of Clause
5:
(i) with respect to the first Interest Period in relation to any
Advance, the period commencing on and including the Drawdown Date of each
Advance and ending on and including the immediately succeeding Interest Payment
Date; and
(ii) with respect to any subsequent Interest Period in relation to any
Advance, the period having a duration of six (6) months and each succeeding six
(6) months and commencing on and including the last day of the immediately
preceding Interest Period and ending on and including the immediately succeeding
Interest Payment Date;
"LENDING OFFICE" means, in relation to the Lender, the office
identified as such in the signature pages hereof or such other office as it may
from time to time select;
"LETTER OF COMFORT" means the Letter of Comfort issued or to be issued
by the Shareholders in favour of the Lender in respect of the obligations of the
Borrower under the Transaction Documents in form and substance satisfactory to
the Lender;
"LIBOR" means, in relation to any Advance or unpaid amount, the rate
per annum determined by the Lender to be the rate at which the Reference Bank
was offering to prime banks in the London Interbank Market deposits in dollars
for the relevant funding period at or about 11.00 a.m. on the second London
Banking Day before the commencement of such period, to the extent that this
definition relates to any unpaid amount and such unpaid amount is due to be paid
in a currency other than dollars then the reference to dollars shall be
construed as a reference to such other currency, and, for the purposes of this
definition, "RELEVANT FUNDING PERIOD" means the relevant Interest Period
relating to such Advance or, in the case of an unpaid amount, the period in
respect of which LIBOR is required to be determined hereunder in relation to
such unpaid amount;
"LICENCE" means the licence granted to the Borrower by the Government
of Indonesia in respect of the operation of the NMT-450 Network on the terms and
conditions contained therein;
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"LOAN" means the aggregate principal amount from time to time
outstanding hereunder;
"MARGIN" means two point five per cent. (2.5%) per annum;
"NMT-450 NETWORK" means the Nordic Mobile Telephone system, the terms
and conditions of the operation of which are contained in the Licence;
"NEGATIVE PLEDGE LETTER" means the negative pledge letter issued or to
be issued by the Shareholders in favour of the Lender and in form and substance
satisfactory to the Lender;
"NETWORK ASSETS" means all assets which from time to time form part of
the NMT-450 Network (including each phase thereof) including, without
limitation, all land, buildings, licences, rights of way and easements;
"OBLIGORS" means the Borrower, the Shareholders and the Guarantor and
"OBLIGOR" means either of them as the context may permit;
"POTENTIAL EVENT OF DEFAULT" means any event or circumstance
(including, without limitation, any of those events specified in Clause 15)
which may or would become (with the passage of time, the giving of notice or the
making of any determination hereunder or any combination thereof) an Event of
Default;
"POWER OF ATTORNEY TO ESTABLISH HYPOTHECS" means the power or powers
of attorney in notarial form executed or to be executed by the Borrower in
favour of the Security Agent pursuant to which the Security Agent is empowered
to establish hypothecs over the Real Property (or any part thereof);
"POWER OF ATTORNEY TO SELL" means the power or powers of attorney in
notarial form executed or to be executed by the Borrower in favour of the
Security Agent pursuant to which the Security Agent is empowered to sell the
Real Property (or any part thereof);
"PROJECT" means the first stage of the construction and implementation
of the NMT-450 Network in Bandar Lampung in Sumatra, Java, Bali and Lombok;
"PROJECT CONTRACTS" means the contracts more specifically referred to
in Schedule Two hereof and any other contract from time to time entered into by
the Borrower in respect of the Project;
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"PROJECT COMPLETION DATE" means the earlier of the date falling
thirteen (13) months after the date hereof and the date upon which the Borrower
produces evidence satisfactory to the Lender that the equipment necessary in
respect of the NMT-450 Network has been installed, tested and accepted and the
Project has commenced operation;
"REAL PROPERTY" means all land, buildings and fixtures related to the
NMT-450 Network and/or the Network Assets from time to time owned by the
Borrower;
"REFERENCE BANK" means the principal London office of The Bank of
Tokyo, Limited (or any successor thereof whether by merger, amalgamation or
otherwise) or such substitute reference bank or banks as may from time to time
be specified by the Lender;
"REPAYMENT DATE" means each of the days which are thirty (30), thirty-
six (36), forty-two (42), forty-eight (48), fifty-four (54) and sixty (60)
months after the date of the making of the first Advance;
"RESERVE ACCOUNT" means the US$ denominated account maintained by the
Borrower with such offshore bank or financial institution which is acceptable to
the Lender and into which will be paid certain amounts agreed between the
Borrower and the Lender from the RP Escrow Account as more particularly referred
to in Clause 14.3 of this Agreement;
"RP ESCROW ACCOUNT" means the Rupiah denominated account maintained by
the Borrower with such bank or financial institution in Indonesia which is
acceptable to the Lender and into which all the receivables of and other amounts
due to the Borrower are to be paid;
"SECURITY AGENT" means Nissho Iwai International (Singapore) Pte.,
Ltd. Or, as the case may be, any successor or replacement security agent
appointed under certain of the Security Documents and the Security Sharing
Agreement;
"SECURITY DOCUMENTS" means the Deed of Assignment of Receivables, the
Deed of Hypothec, the Power of Attorney to Establish Hypothecs, the Power of
Attorney to Sell, the Share Pledge Agreement, the Assignment of Construction
Contracts, the Assignment of Insurances, the Assignment of Performance Bonds,
the Assignment of RP Escrow Account, the Assignment of US Escrow Account, the
Assignment of Reserve Account, Fiduciary Transfer and, with effect from the date
of delivery hereof in accordance with the provisions of this Agreement, the
Master Assignment of Sub-Accounts;
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"SECURITY SHARING AGREEMENT" means the agreement entered or to be
entered into between the Borrower, the Security Agent, the Lender and certain
other persons which may become parties thereto from time to time which shall be
in form and substance satisfactory to the Lender;
"SHAREHOLDERS" means P.T. Telekomunikasi Indonesia and Yayasan ▇▇▇▇
Pensiun Pegawai P.T. Telkom;
"SHARE PLEDGE AGREEMENT" means the share pledge agreement entered or
to be entered into between the Guarantor and the Security Agent in form and
substance satisfactory to the Lender;
"SVENSKA LOAN" means the credit facility or credit facilities extended
to the Guarantor by Svenska Handelsbanken (or any affiliate thereof) in a
maximum aggregate amount of US$3,500,000 (or its equivalent);
"TELKOM LETTER" means the letter issued by P.T. Telekomunikasi
Indonesia to the Borrower delivered or to be delivered by the Borrower to the
Lender in accordance with the provisions of Clause 14.1(xix) acknowledging that
P.T. Telekomunikasi Indonesia shall forthwith remit all monies paid into its
account by the subscribers of the Borrower into the RP Escrow Account until such
time as the Borrower establishes its own billing system and its collection of
subscribers' charges system;
"TOCL" means the Team for the Co-ordination of the Management of
Offshore Commercial Loans;
"TRANSACTION DOCUMENTS" means this Agreement, the Security Sharing
Agreement, the Letter of Comfort, the Negative Pledge Letter, the Guarantee, the
Project Contracts, the Fees Letter, the Licence, the Telkom Letter and the
Security Documents;
"US ESCROW ACCOUNT" means the US$ denominated account maintained by
the Borrower with such offshore bank or financial institution which is
acceptable to the Lender and into which will be paid certain amounts agreed
between the Borrower and the Lender from the RP Escrow Account as more
particularly referred to in Clause 14.3 of this Agreement;
"VALUATION REPORT" means the valuation report dated 16th March, 1995
prepared by the Valuers in respect of the Network Assets or, if any such report
has been delivered, the most recent valuation report delivered to the Lender;
and
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"VALUERS" means Drs Soejatna Soenoesoebrata & Associates.
2. THE FACILITY
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2.1 The Lender grants to the Borrower, upon the terms and subject to the
conditions hereof, a committed term loan facility in an aggregate amount of up
to US$60,000,000 the availability of which shall cease on the Availability
Termination Date.
2.2 The Facility is intended to be used in respect of (i) the
construction and implementation of the Project including, without limitation, to
fund all construction, commissioning, insurance, legal and other costs of and
relating to the Project and (ii) subject to the receipt by the Lender of the
information (in form and substance satisfactory to the Lender) referred to in
Clause 14.1(xx), the discharge of the Svenska Loan and the Borrower hereby
agrees and undertakes to apply all amounts raised hereunder in or towards such
purpose. In this respect, the Lender acknowledges that the Guarantor has from
time to time provided funds by way of interest free loans (the "INTEREST FREE
LOANS") to the Borrower to enable the Borrower to commence operations and that
the Borrower may, out of proceeds of the first Advance, repay such of the
Interest Free Loans as have been used by the Borrower to acquire tangible assets
so long as such tangible assets are adequately identified in the attachment to
the Advance Request given by the Borrower to the Lender in respect of the first
Advance. With respect to any other assets acquired or expenses payable which
relate directly to the Interest Free Loans (hereinafter referred to as "SOFT
ASSETS"), the Borrower agrees that it shall, by no later than the last day of
the calendar month in which the first Advance is made, provide to the Lender a
certificate (in form and substance satisfactory to the Lender) of the Borrower's
auditors setting out the details of the Soft Assets and, in the event that such
auditor's certificate is satisfactory to the Lender, the Lender agrees that the
Borrower shall be entitled to apply the proceeds of all or part of future
Advances made hereunder in repayment of such part of the Interest Free Loans as
relate to the Soft Assets. Notwithstanding the foregoing, the Lender shall not
be obliged to concern itself with, or be responsible for, the application of
amounts advanced or raised hereunder.
2.3 The Borrower may not issue and the Lender shall not be obliged to
accept any Advance Request unless the Lender has received all of the documents
and matters listed below in form and substance satisfactory to the Lender:
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(i) CONSTITUTIVE DOCUMENTS
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A copy, certified by an Authorised Signatory of each of the
Borrower and the Guarantor (each a "RELEVANT OBLIGOR") to be a true, complete
and up to date copy, of (a) the Articles of Association of such Relevant Obligor
(or such other constitutive document as may be appropriate) and any amendments
thereto, all as published in the Annex of the State Gazette of Indonesia and (b)
the minutes of meeting(s) of the shareholders of such Relevant Obligor at which
such amendments (if any) to the Articles of Association of such Relevant Obligor
(which have not yet been so published) were adopted.
(ii) APPOINTMENTS
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A copy, certified by an Authorised Signatory of each Relevant
Obligor to be a true, complete and up to date copy, of the minutes of meeting(s)
of the shareholders of each Relevant Obligor at which the appointment of the
incumbent members of the Board of Commissioners and Board of Directors of such
Relevant Obligor were adopted.
(iii) APPROVALS AND AUTHORISATIONS
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A copy, certified by an Authorised Signatory or Authorised
Signatories of each Obligor to be a true, complete and up to date copy, of each
of the following documents:
(a) the approval of the requisite members of the Board of
Commissioners or other appropriate corporate authority of each Relevant Obligor
approving the execution of each Transaction Document to which such Relevant
Obligor is to be a party and the delivery of the same by such Relevant Obligor;
and
(b) a certificate issued by the Board of Directors of each
Relevant Obligor authorising a named person or persons to sign and deliver each
Transaction Document to which such Relevant Obligor is to be a party and all
documents, statements and certificates to be given thereunder and to give all
notices which may be or may be required to be given by or on behalf of such
Relevant Obligor thereunder.
(iv) SPECIMEN SIGNATURES
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A certificate of an Authorised Signatory of each Relevant
Obligor setting out the names and specimen signatures of the relevant members of
the Board of Commissioners and the Board of Directors of each Relevant Obligor
together with the person or persons
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referred to in paragraph (iii) above or, alternatively, a copy of the identity
card of each such person.
(v) CONSENTS
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A copy, certified by an Authorised Signatory of each Obligor to
be a true copy, of each such law, decree, consent, licence, approval,
registration or declaration as is, in the opinion of Indonesian counsel to the
Lender, necessary to render each Transaction Document to which such Obligor is a
party legal, valid, binding and enforceable, to make each Transaction Document
admissible in evidence in Indonesia and to enable each of the Obligors to
perform their respective obligations thereunder.
(vi) STAMP DUTY
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Evidence satisfactory to the Lender that each Transaction
Document has been stamped with applicable stamp duty in Indonesia.
(vii) REPORTING
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Evidence satisfactory to the Lender that the execution of this
Agreement has been duly reported to Bank Indonesia, the Ministry of Finance of
Indonesia and TOCL.
(viii) TRANSACTION DOCUMENTS
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Each of the Transaction Documents (other than the Hypothec,
the Power of Attorney to Establish Hypothecs, the Power of Attorney to Sell and
the Telkom Letter) duly signed by the parties thereto together with evidence
satisfactory to the Lender that all notices and other documents required to be
made or delivered have been made or delivered (including, without limitation,
evidence satisfactory to the Lender that all original stock certificates
relating to the shares which are the subject of the Share Pledge Agreement have
been delivered to the Security Agent and that the security interests created
pursuant to the Share Pledge Agreement have been noted in the share register of
the Borrower).
(ix) HYPOTHECS
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An agreed English translation of each of the Hypothec, the
Power of Attorney to Establish Hypothecs and the Power of Attorney to Sell,
initialled by the Borrower and the Lender.
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(x) INSURANCES
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Evidence satisfactory to the Lender that the Security Agent
has been named as loss payee under each contract or policy of insurance effected
by the Borrower in relation to the Collateral.
(xi) VALUATION REPORT
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A copy, certified by an Authorised Signatory of the Borrower
to be a true, complete and up to date copy, of the Valuation Report which shall
be in form and substance satisfactory to the Lender.
(xii) FEES LETTER
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The Fees Letter duly signed by the parties thereto.
(xiii) LEGAL OPINIONS
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A legal opinion from Kusnandar & Associates, Indonesian legal counsel
to the Lender, in a form acceptable to the Lender and a legal opinion from
Coudert Brothers, English legal counsel to the Lender, in a form acceptable to
the Lender.
(xiv) PROCESS AGENTS
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Evidence that the persons referred to in Clause 29.5 have
agreed to act as the agents of the Borrower for the service of process
hereunder.
(xv) TRANSFER OF NETWORK ASSETS
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Evidence satisfactory to the Lender that the title to the
Network Assets (and each of them) has been fully and effectively transferred to
the Borrower, such evidence to be in the form of minutes of the meetings of the
shareholders of the Borrower (in form and substance satisfactory to the Lender)
providing for the transfer to the Borrower of such assets.
(xvi) APPROVAL BY THE MINISTRY OF JUSTICE
-----------------------------------
Evidence satisfactory to the Lender that the Articles of
Association of the Borrower have been approved by the Ministry of Justice of
Indonesia.
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(xvii) PROJECT CONTRACTS
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Evidence satisfactory to the Lender that each of the Project
Contracts has been duly executed and is in full force and effect and, where any
Project Contract is to be assigned to the Borrower by any person, that each such
assignment has been fully and effectively completed.
(xviii) THE ACCOUNTS
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Evidence satisfactory to the Lender that each of the Accounts
has been fully and effectively established in accordance with the laws of the
relevant jurisdiction in which such Account is located.
(xix) MANAGEMENT FEE
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Payment by the Borrower to the Lender of the first
installment of the management fee more particularly referred to in the Fees
Letter.
(xx) MAINTENANCE OF CAPITAL
----------------------
Evidence satisfactory to the Lender that the paid up share
capital of the Borrower is at least Rp 41,589,000,000.
(xxi) GENERAL
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Such other documents or matters as the Lender may reasonably
require in relation to the Transaction Documents or any of them.
3. AVAILABILITY OF THE FACILITY
----------------------------
3.1 Save as otherwise provided herein, the Borrower may from time to time
request an Advance under the Facility by the delivery to the Lender, not later
than 11.00 a.m. on the third business day before the proposed Drawdown Date for
such Advance, of a duly completed Advance Request in relation to such Advance.
3.2 Each Advance Request delivered to the Lender hereunder shall be
irrevocable and shall specify:
(i) the proposed Drawdown Date of such Advance which shall be a
Banking Day which is or precedes the Availability Termination Date;
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(ii) the proposed amount of such Advance which shall be (a) a minimum
amount of US$5,000,000 and an integral multiple of US$500,000 which is less than
the Available Amount (and, in the event that the aggregate amount referred to in
the attachment to such Advance Request referred to in sub-Clause (iv) below is
not an integral multiple of US$500,000, the amount of such Advance shall be
rounded up to the nearest US$500,000) or (b) equal to the Available Amount;
(iii) the Interest Period for which the Borrower wishes such Advance to
be made but subject to the provisions of Clause 5; and
(iv) by way of an attachment thereto which shall be in form and
substance satisfactory to the Lender, the specific purpose or purposes for which
the proceeds of such Advance is or are to be used.
3.3 The Borrower may not request under this Clause 3 more than one (1)
Advance to be made on any one (1) day and may not deliver any other Advance
Request hereunder during the period between the delivery of an Advance Request
and the Drawdown Date relating thereto.
3.4 At close of business on the Availability Termination Date, any undrawn
portion of the Facility shall automatically be cancelled and the Available
Amount reduced to zero.
4. MAKING OF ADVANCES
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4.1 If the Borrower requests an Advance hereunder in accordance with
Clause 3 and:
(i) none of the events referred to in Clause 11 shall have occurred
in relation to such Advance;
(ii) the Lender is satisfied that the use or uses to which the
proceeds of such Advance is or are to be put is or are consistent with the
provisions of Clause 2.2 of this Agreement;
(iii) either:
(a) no Event of Default or Potential Event of Default has
occurred; and
(b) the representations and warranties set out in Clause 12 are
true on and as of the proposed date for the making of such Advance,
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or the Lender agrees to the making of such Advance, having
waived the conditions referred to in paragraphs (a) and/or (b) above,
then, on the Drawdown Date relating to such Advance, the Lender shall make such
Advance available to the Borrower in accordance with the provisions of this
Agreement.
4.2 Notwithstanding any other provision of this Agreement, if the Lender's
Commitment is reduced in accordance with the provisions of either of Clause 10
or Clause 15 of this Agreement after the Lender has received the Advance Request
for an Advance, then the amount of that Advance shall be reduced so as to
reflect such reduction in the Lender's Commitment.
5. INTEREST PERIODS
----------------
If two (2) or more Interest Periods end at the same time, then, on the last
day of those Interest Periods, the Advances to which they relate shall be
consolidated into (and thereafter, save as otherwise provided herein, be treated
in all respects as) a single Advance hereunder.
6. INTEREST
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6.1 In respect of each Advance, the Borrower agrees to pay the Lender
interest on the amount outstanding from time to time on each Interest Payment
Date for the Interest Period then ending at the rate per annum determined by the
Lender to be the sum of the Margin and LIBOR for such Interest Period, which
determination shall be conclusive and binding upon the Borrower.
6.2 Interest shall accrue from and including the first day of an Interest
Period to but excluding the last day of such Interest Period.
6.3 Promptly after the determination of LIBOR in respect of an Interest
Period, the Lender shall notify the Borrower of such LIBOR and of the amount of
interest due on the Interest Payment Date for the relevant Interest Period. Such
notice shall be conclusive and binding on the Borrower, absent manifest error.
Failure to so notify the Borrower shall not in any way relieve the Borrower of
its obligations hereunder.
7. DEFAULT INTEREST
----------------
7.1 If the Borrower fails to pay any amount (referred to herein as an
"UNPAID AMOUNT") in accordance with the provisions of this
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Agreement and without prejudice to the other rights and remedies conferred upon
the Lender pursuant to this Agreement, the Borrower shall pay interest in
dollars on such unpaid amount from the time of default up to the time of actual
payment (as well after as before judgment) at the rate per annum which is two
point five per cent. (2.5%) over and above the Margin and LIBOR relating thereto
Provided that:
(i) if, in respect of any such period, LIBOR cannot be determined,
then the rate of interest applicable to such unpaid amount shall be two point
five per cent. (2.5 %) over and above the Margin and the rate notified by the
Lender to the Borrower before the last day of such period to be that which
expresses as a percentage rate per annum the cost to the Lender of funding
determined from whatever source or sources the Lender may select such unpaid
amount for such period; and
(ii) if such unpaid amount is all or part of an Advance which became
due and payable on a day other than an Interest Payment Date relating thereto,
then the first such period applicable thereto shall be equal to the unexpired
portion of such Interest Period and the rate of interest applicable thereto
shall be that which exceeds by two point five per cent. (2.5%) the rate
applicable to it immediately before it fell due.
7.2 Any interest which shall have accrued on any unpaid amount shall be
due and payable and shall be paid by the Borrower at the end of the period by
reference to which it is calculated or on such other date as the Lender may
specify by notice to the Borrower. Interest payable under this Clause shall
accrue daily (on the basis of a year of three hundred and sixty (360 days) from
and including the first day to the last day of each period for which a rate of
interest is to be determined as aforesaid.
7.3 Any unpaid amount shall (for the purposes of this Clause 7 and Clause
21) be treated as an advance and accordingly in this Clause 7 and in Clause 21,
the expressions "ADVANCE" and "ADVANCE" include any unpaid amount.
7.4 If any payment to be made by the Borrower under this Clause would
otherwise be due on a day which is not a Banking Day, it shall be due on the
next succeeding Banking Day.
8. REPAYMENT
---------
Subject to the provisions of this Agreement which may require earlier
repayment thereof, the amount of the Loan (as at the Availability Termination
Date) shall be repaid by the Borrower by six
- 15 -
(6) equal installments, with one (1) installment being paid on each of the
Repayment Dates.
9. CANCELLATION AND PREPAYMENT
---------------------------
9.1 The Borrower shall not be entitled to cancel the whole or any part of
any undrawn amount of the Facility.
9.2 The Borrower may, if it has given to the Lender not less than thirty
(30) days' prior notice thereof, prepay the Loan in whole or in part (being an
amount or integral multiple of US$5,000,000) on any Interest Payment Date which
ends after the Availability Termination Date. Subject as provided below, a
prepayment fee in the amount of one per cent. (1%) flat on the amount so prepaid
shall be payable by the Borrower on the date of such prepayment. The Lender
agrees however that no such prepayment fee shall be payable by the Borrower in
the event and to the extent that such prepayment is made on any Interest Payment
Date, the amount prepaid is such that the full amount of the Loan will be repaid
and/or prepaid on such date and such prepayment is made out of the monies
standing to the credit of the Reserve Account at such time. Any prepayment so
made shall satisfy, to the extent of such prepayment, the Borrower's obligations
under Clause 8 in inverse chronological order.
9.3 Any notice given by the Borrower under Clause 9.2 shall be
irrevocable, shall specify the date upon which such prepayment is to be made and
the amount of such prepayment and shall oblige the Borrower to make such
prepayment on the relevant Interest Payment Date.
9.4 The Borrower shall not be entitled to prepay all or any part of the
Loan otherwise than as specifically provided for in this Agreement and shall not
be entitled to reborrow any amount prepaid.
10. ILLEGALITY
----------
In the event that by reason of the introduction, imposition or variation of
any law or directive or any change in the interpretation or application of any
law or directive or otherwise, it is or will be unlawful or contrary to any
directive of any agency of any state for the Lender to allow all or any part of
its Commitment to remain outstanding or to fund all or any part of any Advance
or to carry out all or any of its other obligations hereunder or otherwise to
participate in the extension of credit to the Borrower under or in accordance
with the provisions of this Agreement, then the Lender shall, promptly after its
Lending Office shall become aware of the same, deliver to the Borrower a
certificate to that effect and:
- 16 -
(i) the Lender shall not thereafter be obliged to make Advances or
otherwise participate in the extension of credit to the Borrower hereunder and
the amount of its Commitment shall be immediately reduced to zero; and
(ii) if the Lender so requires, the Borrower shall on such date as
the Lender shall have specified, repay all outstanding Advances together with
accrued interest thereon and all other amounts owing to the Lender hereunder.
11. MARKET DISRUPTION
-----------------
If, in relation to any Advance to be made hereunder or, as the case may be,
any outstanding Advance, LIBOR cannot be determined:
(i) the Lender shall promptly notify the Borrower of such event;
(ii) in the case of any Advance requested hereunder but not yet
made, such Advance shall, unless the Lender otherwise agrees, not be made; and
(iii) in the case of any outstanding Advance, the Interest Period
relating thereto shall be one (1) month and if the Lender or the Borrower so
requires, the Lender and the Borrower shall enter into negotiations with a view
to agreeing a substitute basis for determining the rate of interest to be
applicable to Advances in the future and, if such substitute basis is agreed, it
shall take effect in accordance with its terms and be binding on the Borrower
and the Lender Provided that if, within one (1) month of the giving of the
notice referred to above, a substitute basis as is referred to above has not
been agreed, the Lender may declare (any such declaration to be binding upon the
Borrower) that each Advance shall become due and payable on the Interest Payment
Date in respect of its then current Interest Period together with interest
thereon at the rate per annum which is the sum of the Margin and the rate
notified by the Lender to the Borrower before the last day of such period to be
that which expresses as a percentage rate per annum the cost to the Lender of
funding such Advance from whatever source or sources it may select for such
period.
12. REPRESENTATIONS AND WARRANTIES
------------------------------
12.1 MATTERS OF LAW
--------------
The Borrower acknowledges that the Lender enters into this Agreement
and grants the Facility to the Borrower in full reliance
- 17 -
upon the representations made by it below and, accordingly, the Borrower
represents and warrants to and for the benefit of the Lender that:
(i) it is a corporation duly organised and validly existing under
the laws of Indonesia and has the power and authority to own its assets and to
engage in the business in which it engages and/or proposes to engage in;
(ii) it has full power and authority to enter into each Transaction
Document to which it is a party and to exercise its rights, perform the
obligations expressed to be assumed by it and make the representations and
warranties made by it thereunder;
(iii) the documents pursuant to which the Borrower has been
established (as amended) include provisions which give power and authority to
the Borrower to enter into, exercise its rights under and perform the
obligations expressed to be assumed by it under each Transaction Document to
which it is a party and all corporate and other action required to authorise its
execution of each Transaction Document to which it is a party, its exercise of
its rights and its performance of the obligations expressed to be assumed by it
thereunder has been duly taken;
(iv) under the laws of Indonesia in force at the date hereof, its
indebtedness under this Agreement ranks and will rank at least pari passu with
----------
all its other unsecured and unsubordinated indebtedness with the exception of
that which is preferred by the operation of bankruptcy, insolvency and other
similar laws of general application;
(v) each of the execution and delivery by it of each of the
Transaction Documents to which it is a party and the exercise by it of its
rights thereunder and the performance by it of the obligations expressed to be
assumed by it thereunder does not or will not contravene or, as the case may be,
constitute a breach or default under, or cause to be exceeded any limitation on
it or the powers of its Board of Directors or Board of Commissioners imposed by
or contained in (a) any law by which it or any of its assets is bound or
affected, (b) any document or agreement which provides for the establishment or
otherwise regulates the constitution and affairs of the Borrower or (c) any
agreement to which it is a party or by which any of its assets are bound;
(vi) in any proceedings taken in Indonesia in relation to any
Transaction Document, it will not be entitled to claim for itself or any of its
assets immunity from suit, execution, attachment or other legal process;
- 18 -
(vii) in any proceedings taken in Indonesia in relation to this
Agreement, the choice of English law as the governing law of this Agreement
should be recognised and enforced however, it being understood that the
Indonesian courts are often unpredictable in rendering decisions on this issue;
(viii) all action, conditions and things required to be taken,
fulfilled and performed (including, without limitation, the obtaining of any
necessary consents, licences, appeals or exemptions) in order (a) to enable it
lawfully to enter into, exercise its rights under and perform and comply with
the obligations expressed to be assumed by it in each Transaction Document to
which it is a party, (b) to ensure that the obligations expressed to be assumed
by it in each Transaction Document to which it is a party are legal, valid,
binding and enforceable and (c) to make each Transaction Document to which it is
a party admissible in evidence in Indonesia have been done, fulfilled and
performed;
(ix) except for (a) the reporting of the execution of this Agreement
to Bank Indonesia, the Ministry of Finance of Indonesia and TOCL (which the
Borrower acknowledges it is obliged to do prior to utilisation of the Facility),
(b) the payment of stamp duty in the amount of Rp2,000 in respect of each
Transaction Document, and (c) the registration of the Hypothec with the
appropriate land office or land offices in Indonesia, under the laws of
Indonesia in force at the date hereof, it is not necessary that any Transaction
Document be filed, recorded or enrolled with any court or other authority in
Indonesia or that any stamp, registration or similar tax be paid on or in
relation to any Transaction Document;
(x) the obligations expressed to be assumed by it in each of the
Transaction Documents to which it is a party are legal and valid obligations
binding on it and enforceable against it and all of its assets in accordance
with the terms thereof; and
(xi) under the laws of Indonesia in force at the date hereof, it
will be required to make a deduction or withholding on account of tax from any
payment in the nature of interest and fees it may make hereunder but it will not
otherwise be required to make any deduction or withholding from any payment it
may make hereunder.
12.2 MATTERS OF FACT
---------------
The Borrower further acknowledges that the Lender enters into this
Agreement and grants the Facility to the Borrower in full reliance upon the
representations made by the Borrower below and, accordingly, the Borrower
further represents and warrants to and for the benefit of the Lender that:
- 19 -
(i) no litigation, arbitration or administrative proceeding is
current or pending or (to the best of its knowledge and belief) threatened (a)
to restrain the entry into, exercise of its rights under and/or performance of
the obligations expressed to be assumed by it under any of the Transaction
Documents to which it is a party and/or (b) which would have a material adverse
effect upon the financial condition or business of the Borrower or any of its
subsidiaries or upon the ability of the Borrower to perform or comply with any
of the obligations expressed to be assumed by it under any of the Transaction
Documents to which it is a party;
(ii) no distress, execution or other process is being levied or
enforced upon or sued or (to the best of its knowledge and belief) threatened
against the whole or any part of the business, undertaking or assets of the
Borrower or any of its subsidiaries;
(iii) neither the Borrower nor any of its subsidiaries has taken any
corporate action nor have any other steps been taken or legal proceedings been
started or (to the best of its knowledge and belief) threatened against the
Borrower or any of its subsidiaries for its bankruptcy, winding-up, dissolution,
administration, judicial management or re-organisation or for the appointment of
a receiver, administrator, administrative receiver, judicial manager, trustee or
similar officer of the Borrower or any of its subsidiaries or of any or all of
its assets or revenues;
(iv) no Event of Default has occurred or will occur as a result of
the entry into by the Borrower of any of the Transaction Documents to which it
is a party or the exercise by the Borrower of any of its rights thereunder and
the Borrower is not aware of any event or circumstance which might give rise to
the occurrence of such an Event of Default;
(v) neither the Borrower nor any of its subsidiaries is in breach
of or in default under any agreement including, without limitation, any Project
Contract to which it is a party or which is binding on it or any of its assets
to an extent or in a manner which might have a material adverse effect on the
business or financial condition of the Borrower any of its subsidiaries;
(vi) no action or administrative proceeding of or before any court
or agency which might have a material adverse effect on the business or
financial condition of the Borrower or any of its subsidiaries has been started
or (to the best of its knowledge and belief) threatened;
(vii) the Guarantor's Financial Statements and, once relevant, its
Financial Statements were prepared in accordance with
- 20 -
accounting principles generally accepted in Indonesia and consistently applied
and give (in conjunction with the notes thereto) a true and fair view of the
financial condition of the Guarantor and its subsidiaries and, once relevant,
the Borrower and its subsidiaries at the date as of which they were prepared and
the results of the operations of the Guarantor and its subsidiaries and, once
relevant, the Borrower and its subsidiaries during the financial year then
ended;
(viii) since publication of the Guarantor's Financial Statements and,
once relevant, the Financial Statements, there has been no material adverse
change in the business or financial condition of the Guarantor or any of its
subsidiaries and, once relevant, the Borrower or any of its subsidiaries;
(ix) as at the date as of which the Guarantor's Financial Statements
and, once relevant, the Financial Statements were prepared, neither the
Guarantor nor any of its subsidiaries nor, once relevant, the Borrower nor any
of its subsidiaries had any liabilities (contingent or otherwise) which were not
disclosed thereby (or by the notes thereto) or reserved against therein nor any
unrealised or anticipated losses arising from commitments entered into by it
which were not so disclosed or reserved against;
(x) the information contained in the Information Memorandum and all
of the other written information supplied by the Borrower to the Lender in
connection with the Transaction Documents was on the date upon which it was
given to the Lender, to the best of the Borrower's knowledge, true, complete and
accurate in all material respects and it is not aware of any material facts or
circumstances that have not been disclosed to the Lender and which might, if
disclosed, materially adversely affect the decision of a person considering
whether or not to provide finance to the Borrower;
(xi) all necessary returns have been delivered by or on behalf of
the Guarantor and its subsidiaries and, once relevant, the Borrower and its
subsidiaries to the relevant taxation authorities and neither the Guarantor nor
any of its subsidiaries nor, once relevant, the Borrower nor any of its
subsidiaries is in default of any taxes and no claim is being made with respect
to taxes which is not disclosed in the Guarantor's Financial Statements or, once
relevant, the Financial Statements;
(xii) save as permitted by Clause 14.2 (ii), no security interest
exists over all or any of the present or future revenues or assets of the
Borrower or any of its subsidiaries;
- 21 -
(xiii) except as provided for under the Security Documents, the
execution of each Transaction Document to which it is a party and its exercise
of its rights and performance of its obligations thereunder will not result in
the existence of nor oblige the Borrower or any of its subsidiaries to create
any security interest over all or any of its present or future revenues or
assets;
(xiv) the execution of each Transaction Document to which it is a
party constitutes, and its exercise of its rights and performance of its
obligations thereunder will constitute, private and commercial acts done and
performed for private and commercial purposes;
(xv) the Borrower is, and shall during the entire term of the
Facility continue to be, the sole owner of all the Collateral and other Network
Assets and shall not during the term of the Facility be subject to any security
interest other than pursuant to security interests created or to be created
pursuant to the Security Documents and/or as provided in the Security Sharing
Agreement;
(xvi) the security interests conferred or to be conferred upon the
Security Agent, as security agent for and on behalf of the Lender (amongst
others) and directly upon the Lender pursuant to the Security Documents
constitute first priority security interests in favour of the Security Agent or,
as the case may be, the Lender over the Collateral and every part thereof;
(xvii) the Borrower has obtained all authorisations and approvals,
has made all appropriate filings and registrations with governmental bodies and
regulatory authorities, is in compliance with all notices relevant to and has
taken all other action to obtain and maintain its ownership of such part of the
Collateral and the Network Assets as is owned by it;
(xviii) save as otherwise notified to the Lender in writing, the
Borrower has fulfilled all the terms and conditions contained in the Licence;
(xix) all information supplied or to be supplied by the Borrower to
the Valuers for the purpose of the Valuation Report delivered as a condition
precedent hereunder was true, complete and accurate in all respects and the
Borrower is not aware of any additional facts or circumstances which could or
should have been or be disclosed in relation thereto; and
(xx) the valuation attributed to the Network Assets and every part
thereof in the Valuation Report delivered as a condition precedent hereunder is
an accurate and realistic valuation thereof.
- 22 -
12.3 The representations and warranties set out in Clauses 12.1 and 12.2
shall survive the execution of this Agreement and the utilisation of the
Facility hereunder and shall be deemed to be repeated on each Interest Payment
Date by reference to the facts and circumstances then subsisting except that
each reference to the Guarantor's Financial Statements and the Financial
Statements contained in Clauses 12.2(vii), (ix) and (xi) above shall be
construed as a reference to the most recent audited financial statements
delivered to the Lender pursuant to Clause 13.
13. FINANCIAL INFORMATION
---------------------
13.1 The Borrower shall and shall procure that the Guarantor shall:
(i) as soon as the same become available, but in any event within
one hundred and twenty (120) days after the end of each of its financial years,
deliver to the Lender the audited financial statements of the Borrower or, as
the case may be, the Guarantor for such financial year, such financial
statements to be audited by the Borrower's or, as the case may be, the
Guarantor's present auditors or, if otherwise, by auditors which are acceptable
to the Lender;
(ii) as soon as the same become available, but in any event within
sixty (60) days after the end of each half of each of its financial years,
deliver to the Lender the unaudited financial statements of the Borrower or, as
the case may be, the Guarantor for such period;
(iii) as soon as the same become available, but in any event within
sixty (60) days after the end of each half of each of its financial years,
deliver to the Lender forecasts of the cashflow, debt service and profit and
loss accounts up to the final maturity of all debt in respect of the Project;
(iv) supply to the Lender (as and when the same are distributed to
its shareholders) all circulars and annual reports from time to time distributed
by it to its shareholders, any press release or written public announcement or
any other information made available by it to the public; and
(v) from time to time on the request of the Lender, furnish the
Lender with such information about the business and financial condition of the
Borrower or, as the case may be, the Guarantor as the Lender may require.
13.2 The Borrower shall and shall procure that the Guarantor shall ensure
that:
- 23 -
(i) each set of financial statements and forecasts delivered by it
pursuant to Clause 13.1 is prepared on the same basis as was used in the
preparation of the Guarantor's Financial Statements and the Borrower's Financial
Statements and in accordance with accounting principles generally accepted in
Indonesia and consistently applied; and
(ii) each set of financial statements delivered by it pursuant to
Clause 13.1(i) and (ii) contains a balance sheet and a profit and loss account
and all financial information delivered by the Borrower or, as the case may be,
the Guarantor pursuant to Clause 13.1 is certified by the Chief Financial
Officer (or the person holding a similar position within the Borrower or, as the
case may be, the Guarantor at such time) of the Borrower or, as the case may be,
as being true and accurate and, in the case of the financial statements
delivered pursuant to Clause 13.1(i) and (ii), giving a true and fair view of
the financial condition of the Borrower or, as the case may be, the Guarantor as
at the end of the period to which those financial statements relate and of the
results of its operations during such period.
13.3 The Borrower shall ensure that the financial condition of the
Borrower, as evidenced by each of the Borrower's then most recent audited annual
financial statements and the most recent financial statements and projections of
the Borrower delivered to the Lender under the provisions of Clause 13.1 of this
Agreement (adjusted, as the Lender may consider appropriate, to take account of
any changes in circumstances which occur after the date as of which such
financial statements were prepared), shall be such that at all times after the
later of (i) the date falling six (6) months after the Project Completion Date
and (ii) twelve (12) months after the date upon which the final Advance is made
(the "CALCULATION COMMENCEMENT DATE") the Debt Service Coverage Ratio is not
less than 1.4:1.
13.4 In this Clause 13:
"DEBT SERVICE COVERAGE RATIO" means at any time and with respect to
any Calculation Period the ratio of (i) the aggregate of (a) the Net Cash Flow
in respect of such Calculation Period plus (b) the Equity at the time of
calculation minus (c) the Capital Expenditure in respect of such Calculation
Period plus (d) any amount received and retained by the Borrower during such
Calculation Period in respect of any Asset Sale to (ii) the amount at such time
calculated to be all amounts of principal projected to fall due and payable
under the Transaction Documents in respect of such Calculation Period;
- 24 -
"ASSET SALE" means any sale, lease, transfer or other disposal
(howsoever described) and whether entered into by way of one (1) or more
transactions;
"CALCULATION DATE" means each 30 June and 31 December in each calendar
year falling after the Calculation Commencement Date;
"CALCULATION PERIOD" means:
in relation to the first such period, the period beginning on the date
falling six (6) months before the first Calculation Date falling after the
Calculation Commencement Date and ending on such Calculation Date; and
thereafter, each period beginning on one Calculation Date and ending
on the next Calculation Date falling thereafter;
"NET CASH FLOW" means at any time and with respect to any period an
amount equal to:
(i) the Revenues for such period; less
(ii) the Expenditure for such period and the Taxes which are paid or in
respect of which the Borrower shall make provision for during or in respect of
such period;
"REVENUES" means with respect to any period the aggregate of:
(i) all amounts in cash received by the Borrower in the ordinary course of
its business;
(ii) all interest income received by the Borrower in respect of cash held
by it at any bank or financial institution; and
(iii) the proceeds of all loans or other financial accommodation actually
received by the Borrower;
"EXPENDITURE" means with respect to any period the aggregate of:
all operating and maintenance costs payable by the Borrower during
such period;
all insurance premiums payable by the Borrower during such period;
(iii) all professional and other fees, costs and expenses payable by
the Borrower under or pursuant to any of the Project Contracts;
(iv) all costs and expenses of a management, operating or maintenance
(but not a capital) nature incurred or to be incurred by the Borrower,
including, without limitation, administrative and management costs, employee
costs and establishment and overhead costs;
(v) damages payable by the Borrower during such period pursuant to
any of the Project Contracts; and
(vi) any other costs and expenses payable by the Borrower with
respect to the Project during such period pursuant to any of the Project
Contracts,
Provided Always that such Expenditure shall exclude any depreciation and/or
other non-cash items;
"CAPITAL EXPENDITURE" means costs and expenses which, in accordance
with generally accepted accounting principles in Indonesia consistently applied,
would be regarded to be of a capital (but not an operating) nature incurred or
to be incurred by the Borrower;
"EQUITY" means, in relation to the Borrower, the aggregate of (i) all
its paid up share capital and (ii) any advance made available by any of the
Shareholders which is subordinated, in form and substance to the Lender, to the
claims of all other creditors of the Borrower; and
"TAXES" shall be construed so as to include, without limitation, any
present or future tax, levy, impost, duty, charge, fee, deduction or withholding
of any nature whatsoever and howsoever termed (including, without limitation,
any penalty or interest payable in connection with any failure to pay or any
delay in paying any of the same) by whomsoever, and whomsoever and whenever
imposed, levied, collected, withheld or assessed.
13.5 All expressions used in the definitions of this Clause 13 which are
not otherwise defined herein shall be construed in accordance with generally
accepted accounting principles in Indonesia (as used in the Borrower's most
recent audited annual financial statements).
13.6 The Borrower agrees that, promptly upon the transfer of title to it of
any part of the Real Property, it shall execute or procure the execution and
delivery of each of a Hypothec, Power of Attorney to Establish Hypothecs and
Power of Attorney to Sell over
- 26 -
that part of the Real Property in favour of the Security Agent as security agent
for and on behalf of the Lender (amongst others), each such Hypothec, Power of
Attorney to Establish Hypothecs and Power of Attorney to Sell to be in form and
substance satisfactory to the Lender.
13.7 The Lender and the Borrower hereby acknowledge that the Security
Sharing Agreement contemplates the sharing with other banks or financial
institutions ("NOMINATED BANKS") of certain of the security interests granted in
accordance with the provisions of this Agreement. The Lender agrees, subject to
the provisions of the Security Sharing Agreement (i) to share all of the
security interests set forth in the Security Sharing Agreement with the
Nominated Banks for the purpose of securing any further loans made or to be made
by the Nominated Banks to the Borrower in an amount up to but not exceeding
US$60,000,000 and (ii) that, in the event that any Nominated Bank shall request
that those security interests which have been granted to the Lender in
accordance with the provisions hereof but which are not the subject of the
Security Sharing Agreement be shared with such Nominated Bank, then the Lender
shall, subject to the completion of satisfactory documentation relating thereto
and the payment by the Borrower of all costs and expenses (including legal fees)
relating thereto, consent to and participate in the sharing of such security
interests.
14. GENERAL COVENANTS AND UNDERTAKINGS
----------------------------------
14.1 POSITIVE UNDERTAKINGS
---------------------
The Borrower undertakes and agrees with the Lender that so long as any
amount remains to be advanced and/or remains payable and/or any person is under
any actual or contingent liability hereunder, it shall:
(i) obtain, comply with each of the terms and conditions of, renew
and do all that is necessary to maintain in full force and effect all
authorisations, approvals, licences, consents, exemptions, registrations,
recordings, filings or notarisations (and, where possible, promptly deliver
certified true copies thereof to the Lender) to enable it lawfully to enter
into, exercise its rights and perform the obligations expressed to be assumed by
it under each Transaction Document to which it is a party and to ensure the
legality, validity, enforceability and admissibility in evidence in Indonesia of
each Transaction Document to which it is a party and to ensure the validity or
priority of the liabilities and obligations of the Borrower and the rights of
the Lender thereunder. Furthermore, the Borrower undertakes and agrees with the
Lender forthwith to take all such action as the Lender may from time to time
notify to the
- 27 -
Borrower to ensure the legality, validity, enforceability or admissibility in
evidence in England and Singapore of each Transaction Document to which it is a
party or to ensure the enforceability and priority thereof under the laws of
England and/or Singapore;
(ii) comply in all respects with all laws, regulations and
directives relating to or regulating the ownership by it and each of its
subsidiaries of their assets (including, without limitation, the Real Property,
the Network Assets and all property or assets comprising the Collateral), the
carrying on by it of the business it engages in or proposes to engage in and the
entry into and performance by it of the obligations expressed to be assumed by
it in each Transaction Document to which it is a party;
(iii) maintain insurances on and in relation to its business and
assets with reputable underwriters or insurance companies against fire and such
other risks and to such extent as is usual for companies carrying on a business
such as that carried on by the Borrower and as is usual in respect of the nature
of the Project and it will punctually pay all premiums payable in respect of the
said policies of insurance and submit to the Lender receipts for such payment.
Such policies shall be in such amounts and shall contain such reasonable terms
and provisions as shall be approved by the Lender including without limitation a
provision that the insurer shall not terminate or cancel the insurance without
giving the Lender at least thirty (30) days notice of termination or
cancellation and such terms and provisions shall not be varied without the prior
consent in writing of the Lender. In this respect, the Borrower agrees forthwith
to deliver to the Lender the original of all policies or contracts of insurance
entered into by it and will ensure that the Lender is named as loss payee (in a
manner and on such terms as are satisfactory to the Lender) on each such policy
or contract of insurance. In the event the Borrower fails to maintain insurance
as provided hereunder, the Lender will have the right to have such insurance
effected at the cost of the Borrower and all moneys paid by the Lender in
respect of such insurances shall on demand be repaid to the Lender and until
repayment shall be considered unpaid amounts due hereunder and bear interest
accordingly;
(iv) promptly inform the Lender of the occurrence of any Event of
Default and, upon receipt of a written request to that effect from the Lender,
confirm to the Lender (by way of a certificate issued by an Authorised Signatory
of the Borrower) that, save as previously notified to the Lender or as notified
in such confirmation, no Event of Default has occurred or, if any Event of
Default has occurred, a full description of the nature and extent thereof and
the action or steps taken (or proposed to be taken) by the Borrower to remedy
the same;
- 28 -
(v) ensure that at all times its indebtedness under this Agreement
ranks at least pari passu with its other unsecured and unsubordinated
----------
indebtedness with the exception of that which is preferred by the operation of
bankruptcy, insolvency and other similar laws of general application;
(vi) permit the Lender and/or any person authorised by the Lender
(including, but without limitation, an auditor or accountant appointed by it for
such purpose) from time to time to have access to and inspect (a) all
agreements, documents, financial information, technical specifications and all
other matters relating to the Project and (b) the books of account of the
Borrower and any of its subsidiaries, respond forthwith to any reasonable
queries or requests for information sought by such representative and discuss in
good faith with such person any aspect of the Project and/or the books of
account of the Borrower or its subsidiaries;
(vii) maintain and procure that each of its subsidiaries shall
maintain a system of books and records and a system of accounting established
and administered in accordance with accounting principles generally accepted in
Indonesia applied on a consistent basis, and set aside on its books all proper
reserves as shall be required by such accounting principles;
(viii) cause all of its properties utilised in the Project or
otherwise in the conduct of its business to be maintained and kept in good
condition, repair and working order, all as necessary to carry on the Borrower's
business, and the Borrower shall maintain the conduct of its business consistent
with that conducted upon its entering into this Agreement;
(ix) without prejudice to sub-clause (iv) above, deliver to the
Lender details of any litigation, arbitration or administrative proceedings
relating to the Project or, as the case may be, which might have a material
adverse effect upon the business and/or financial condition of the Borrower or
any of its subsidiaries and/or the ability of the Borrower to perform or comply
with any of its obligations under any Transaction Document to which it is a
party and or the ability of the Borrower to diligently and timeously complete
the Project;
(x) promptly inform the Lender of the occurrence of any event which
has or may have a material adverse effect upon the valuation of the Network
Assets as set forth in any Valuation Report, the Collateral and/or the Real
Property and, upon receipt of a written request to that effect from the Lender,
confirm to the Lender that, save as previously notified to the Lender or as
notified in such confirmation, no such event has occurred;
- 29 -
(xi) ensure that the issued and paid-up capital of the Borrower is,
prior to the initial drawdown of the Facility, increased to Rp41,589,000,000;
(xii) ensure that all governmental licences and/or consents
necessary in respect of the construction and operation of the NMT-450 Network by
the Borrower are from time to time promptly obtained;
(xiii) promptly after the date hereof, report the execution of this
Agreement to Bank Indonesia, the Ministry of Finance of the Republic of
Indonesia and TOCL and file such reports regarding this Agreement (with a copy
thereof promptly being sent to the Agent) as are required by Bank Indonesia, the
Ministry of Finance of the Republic of Indonesia and TOCL;
(xiv) ensure that at all times and from time to time all the
conditions contained in the Licence are fulfilled;
(xv) save as provided below, procure that the Guarantor and the
Shareholders will continue directly to own in aggregate (legally and
beneficially) one hundred per cent. (100%) of the shares of the Borrower and to
control the Borrower. The Lender agrees with the Borrower that up to twenty-five
per cent. (25%) of the shares of the Borrower may be transferred to a first
class internationally recognised operator of telecommunication networks without
any consent from the Lender but on condition that the Borrower shall forthwith
notify the Lender of any advanced proposal therefor or actual decision in
relation thereto. Furthermore, the Lender agrees with the Borrower that the
Borrower shall be entitled from time to time to request the Lender to consent to
further dilution of the shareholding interest of the Guarantor and the
Shareholders in the Borrower;
(xvi) ensure that the appointment of process agents made in Clause
29.5 is at all times effective failing which the Lender shall at the cost and
expense of the Borrower be entitled and is hereby authorised by the Borrower
from time to time to appoint a replacement process agent by notice to the
Borrower;
(xvii) provide from time to time and forthwith upon request therefor
by the Lender reports in form and substance satisfactory to the Lender in
respect of the construction of the NMT-450 Network and the progress of the
Project generally;
(xviii) forthwith upon the establishment of the billing system and
collection of subscribers' charges system of the Borrower (and the Borrower
hereby expressly undertakes to procure that such systems are established by no
later than 31 August, 1996), enter into the master assignment of sub-accounts in
the form set out in Schedule
- 30 -
Three ("MASTER ASSIGNMENT OF SUBACCOUNTS") and take all steps as are necessary
or desirable in the reasonable opinion of the Lender to the perfect the Master
Assignment of SubAccounts;
(xix) as soon as possible after the date hereof and, in any event, by
no later than the date falling six (6) weeks after the date hereof, deliver to
the Lender a copy of the Telkom Letter duly executed in form and substance
satisfactory to the Lender; and
(xx) at any time prior to the use of any part of the Facility to
discharge the Svenska Loan provide details satisfactory to the Lender of the
Svenska Loan.
14.2 NEGATIVE COVENANTS
------------------
The Borrower shall not, without the prior written consent of the Lender.
which consent shall not unreasonably be withheld:
(i) pay, make or declare any dividend or other distribution in
respect of any financial year unless the Borrower is in compliance with all the
obligations expressed to be assumed by it in this Agreement; or
(ii) create or permit to subsist any security interest over all or
any of its present or future revenues or assets other than (a) any security
interest which has been disclosed in writing to and acknowledged in writing by
the Lender prior to the execution hereof and secures only indebtedness
outstanding at the date hereof, (b) any security interest created or
contemplated under the Security Documents or as provided in the Security Sharing
Agreement or under this Agreement and (c) certain other security interests as
may, from time to time, be agreed between the Lender and the Borrower; or
(iii) make any loans or grant any credit (save in the ordinary course
of business) or, except for loans provided to the Borrower by the shareholders
from time to time of the Borrower and such loans are fully and effectively
subordinated (in form and substance satisfactory to the Lender) to the claims of
the Lender under the Transaction Documents, incur further borrowings (except to
the extent that such further borrowings are incurred in respect of the second
and/or third phases of the Project and which do not exceed an aggregate of
US$60,000,000) of any nature or give any guarantee or lease any assets to or for
the benefit of any person; or
(iv) alter any rights attaching to its issued shares in existence at
the date hereof; or
- 31 -
(v) save for the sale, lease, transfer or other disposal of
revenues or assets having an aggregate value of not more than US$20,000 or its
equivalent in any financial year of the Borrower, sell, lease, transfer or
otherwise dispose of, by one (1) or more transactions or series of transactions
(whether related or not), the whole or any part of its revenues or its assets
otherwise than on an arm's length basis for full consideration in the ordinary
course of its business; or
(vi) enter into any investment or business activity other than the
construction and operation of the NMT-450 Network and any business which is
directly related thereto; or
(vii) cancel or terminate (or consent to any cancellation or
termination of) any of the Project Contracts or other agreements or documents
with respect to the Project or, save as provided below, amend or otherwise
modify or give any consent, waiver or approval to any variation of or deviation
from the terms of any Project Contract or other agreement or document with
respect to the Project Provided that such amendment, modification, consent,
waiver or approval may be made or, as the case may be, given so long as it will
not adversely affect the business and/or financial condition of the Borrower
and/or materially change the nature, extent or progress of the Project; or
(viii) enter into any business transactions on a non-arm's length
basis with any affiliates of the Borrower unless such business transaction is
favourable to the Borrower; or
(ix) change its corporate structure either by merger, amalgamation,
consolidation, reorganization, reconstruction or otherwise Provided that, and
subject to the consent of the Lender (which consent shall not unreasonably be
withheld), any such merger, amalgamation, consolidation, reorganisation or
reconstruction may be permitted if the solvency and the operations of the
Borrower are not, in the sole opinion of the Lender, materially detrimentally
affected.
14.3 THE ACCOUNTS
------------
The Borrower hereby irrevocably and unconditionally agrees with the
Lender that monies shall be credited and debited to each of the RP Escrow
Account. the US Escrow Account and the Reserve Account in the manner
contemplated below. The Borrower further irrevocably and unconditionally agrees
with the Lender that it shall comply in all respects with the arrangements set
forth below in relation to each of the Accounts and the Borrower will not do or
carry out any action which is inconsistent with the arrangements set out below
relating to each of the Accounts.
- 32 -
(a) PURPOSE OF EACH ACCOUNT
-----------------------
The Borrower agrees with the Lender that the purpose of each of
the Accounts shall be as reflected below, namely that:
(i) THE RP ESCROW ACCOUNT
---------------------
the purpose of the RP Escrow Account shall be (a) to
receive or otherwise have credited to it all receivables and other amounts of
whatsoever nature due from time to time to the Borrower on any account
whatsoever from its customers and other debtors and the Borrower hereby agrees
with the Lender from time to time to instruct (in a manner satisfactory to the
Lender) all its customers and other debtors to make payment of all such sums due
or to become due to the Borrower to the RP Escrow Account and (b) to serve as a
fund from which the Borrower shall discharge all expenses associated with its
business as budgetted and approved by the Lender and, in addition, the
obligations under Clause 6 of this Agreement to pay interest on the Loan. In the
event that, for any reason whatsoever, any amount payable to the Borrower is not
immediately paid and credited to the RP Escrow Account by the relevant customer
or debtor, the Borrower hereby undertakes with the Lender to procure that such
amount is forthwith credited to the RP Escrow Account;
(ii) THE RESERVE ACCOUNT
-------------------
the purpose of the Reserve Account shall be to receive and
have credited to it amounts from the RP Escrow Account, having been converted
into dollars, in the manner and in the amounts contemplated in paragraph (b)(ii)
below; the monies from time to time standing to the credit of the Reserve
Account shall serve as a fund which the Borrower may, at its election, use to
prepay the whole (but not part) of the Loan which is outstanding on any
Repayment Date and the Borrower hereby agrees with the Lender to use the funds
standing to the credit of the Reserve Account for such purpose. For the
avoidance of doubt, the Borrower agrees with the Lender that the monies standing
to the credit of the Reserve Account shall only be used in or towards the
repayment (including a prepayment) of the Loan in full and, in particular, that
such monies may not be used in or towards any partial repayment (including a
prepayment) of the Loan; and
(iii) THE US ESCROW ACCOUNT
---------------------
the purpose of the US Escrow Account shall be to receive
and have credited to it amounts from the RP Escrow Account, having been
converted into dollars, in the manner and in the amounts contemplated in
paragraph (b)(iii) below; the monies from time to time
- 33 -
standing to the credit of the US Escrow Account shall serve as a fund which
shall be used to enable the Borrower to repay the relevant part of the Loan on
each of the Repayment Dates in the manner provided for in Clause 8 of this
Agreement (save, for the avoidance of doubt, in relation to any Repayment Date
if (and only if) the Borrower elects to prepay, on such Repayment Date, the
entire amount of the Loan which is outstanding). The Borrower hereby agrees with
the Lender to use the funds standing to the credit of the US Escrow Account for
such purposes.
(b) PAYMENTS TO THE ACCOUNTS
------------------------
The Borrower agrees with the Lender that the following monies
shall be paid and credited to each Account and the Borrower further agrees with
the Lender to procure that all such monies as are referred to below shall be
paid and credited to each Account strictly in accordance with the provisions of
this sub-Clause (b):
(i) THE RP ESCROW ACCOUNT
---------------------
(a) all receivables and other amounts due from time to
time to the Borrower on any account whatsoever from its customers and other
debtors shall immediately be paid and credited to the RP Escrow Account;
(b) amounts from time to time standing to the credit of
the RP Escrow Account shall be used to (a) purchase dollars to be credited to
the Reserve Account and the US Escrow Account in the manner contemplated in
paragraphs (b)(ii) and b(iii) below, (b) finance the expenses relating to the
business and operations of the Borrower as reflected in the budget which shall
be approved by the Lender or otherwise as from time to time approved by the
Lender and (c) purchase dollars to enable the Borrower to make payment of
interest on the Loan under Clause 6 of this Agreement.
(ii) THE RESERVE ACCOUNT
-------------------
subject to the provisions of paragraph (c) below, amounts
standing to the credit of the RP Escrow Account shall be used to purchase
dollars to be immediately credited to the Reserve Account in the following
amounts and at the following times:
(a) on the last business day of each of the 7th, 8th, 9th,
10th, 11th and 12th month after the making of the first Advance, the Borrower
Will ensure that there is credited to the Reserve Account an amount in dollars
which is equal to one-sixth of the interest payment which, taking the then
prevailing LIBOR which has been determined for the purposes of this Agreement
and applying it to
- 34 -
a deemed calculation of the interest payment which, by the application of the
then prevailing LIBOR determined hereunder, would be due from the Borrower under
Clause 6 of this Agreement on the first Repayment Date; and
(b) on the last business day of each of the 19th, ▇▇▇▇,
▇▇▇▇, ▇▇▇▇, ▇▇▇▇ and 24th month after the making of the first Advance, the
Borrower will ensure that there is credited to the Reserve Account an amount in
dollars which is equal to one-sixth of the amount of the Loan which falls due
for repayment on the first Repayment Date.
In the event that the Borrower elects to prepay the Loan on
any Repayment Date and such prepayment shall result in the entire amount of the
Loan ceasing to exist thereafter (a "PREPAYMENT DATE"), the Borrower agrees that
the aggregate amount standing to the credit of the Reserve Account on the
Prepayment Date shall be applied in or towards repayment of the Loan without
penalty on the Prepayment Date. In the event that the Borrower does not elect to
prepay the Loan on any Prepayment Date, then the Borrower agrees with the Lender
that, on the final Repayment Date, the aggregate amount standing to the credit
of the Reserve Account shall be applied in repayment of such part of the Loan as
is required by the Borrower on the final Repayment Date under the provisions of
Clause 8 of this Agreement.
(iii) THE US ESCROW ACCOUNT
---------------------
subject to the provisions of paragraph (c) below, amounts
standing to the credit of the RP Escrow Account shall be used to purchase
dollars to be immediately credited to the US Escrow Account in the following
amounts and at the following times:
(a) on the last business day of each of the 25th, 26th,
27th, 28th, 29th and 30th month after the making of the first Advance, the
Borrower will ensure that there is credited to the US Escrow Account an amount
in dollars which is equal to one-sixth of the amount of the Loan which falls due
for repayment on the first Repayment Date. The Borrower agrees with the Lender
that the aggregate amount standing to the credit of the US Escrow Account on the
first Repayment Date shall be applied in repayment of such part of the Loan as
is required to be repaid by the Borrower on the first Repayment Date under the
provisions of Clause 8 of this Agreement ;
(b) on the last business day of each of the 31st, 32nd,
33rd, 34th, 35th and 36th month after the making of the first Advance, the
Borrower will ensure that there is credited to the US Escrow Account an amount
in dollars which is equal to one sixth of the amount of the Loan which plus due
for repayment on the second
- 35 -
Repayment Date. The Borrower agrees with the Lender that the aggregate amount
standing to the credit of the US Escrow Account on the second Repayment Date
shall be applied in repayment of such part of the Loan as is required to be
repaid by the Borrower on the second Repayment Date under the provisions of
Clause 8 of this Agreement;
(c) on the last business day of each of the 37th, 38th,
39th, 40th, 41st and 42nd month after making of the first Advance, the Borrower
will ensure that there is credited to the US Escrow Account an amount in dollars
which is equal to one-sixth of the amount of the Loan which falls due for
repayment on the third Repayment Date. The Borrower agrees with the Lender that
the aggregate amount standing to the credit of the US Escrow Account on the
third Repayment Date shall be applied in repayment of such part of the Loan as
is required to be repaid by the Borrower on the third Repayment Date under the
provisions of Clause 8 of this Agreement;
(d) on the last business day of each of the 43rd, 44th,
45th, 46th, 47th and 48th month after making of the first Advance, the Borrower
will ensure that there is credited to the US Escrow Account an amount in dollars
which is equal to one-sixth of the amount of the Loan which falls due for
repayment on the fourth Repayment Date. The Borrower agrees with the Lender that
the aggregate amount standing to the credit of the US Escrow Account on the
fourth Repayment Date shall be applied in repayment of such part of the Loan as
is required to be repaid by the Borrower on the fourth Repayment Date under the
provisions of Clause 8 of this Agreement; and
(e) on the last business day of each of the 49th, ▇▇▇▇,
▇▇▇▇, ▇▇▇▇, ▇▇▇▇ and 54th month after making of the first Advance, the Borrower
will ensure that there is credited to the US Escrow Account an amount in dollars
which is equal to one-sixth of the amount of the Loan which falls due for
repayment on the fifth Repayment Date. The Borrower agrees with the Lender that
the aggregate amount standing to the credit of the US Escrow Account on the
fifth Repayment Date shall be applied in repayment of such part of the Loan as
is required to be repaid by the Borrower on the fifth Repayment Date under the
provisions of Clause 8 of this Agreement;
(c) DEFAULT
-------
Notwithstanding the provisions of paragraph (b) above, the Lender
hereby agrees with the Borrower that the failure by the Borrower to ensure, on
any date referred to in paragraph (b) above, that the precise amount referred to
therein be credited to the Reserve Account and/or the US Escrow Account shall
not constitute an Event of Default Provided that on the last day of each six
-------------
month period referred to in paragraphs (b)(ii)(b), (b)(iii)(a), (b)(iii)(b),
- 36 -
(b)(iii)(c), (b)(iii)(d) and (b)(iii)(e) and, in the case of the six month
period referred to in Clause (b)(ii)(a), the date falling 18 months after the
making of the first Advance, the aggregate amount standing to the credit of the
Reserve Account or, as the case may be, the US Escrow Account, is at least equal
to:
(i) in the case of paragraph (b)(ii)(a), the total amount of
interest payable by the Borrower under Clause 6 of this Agreement on the first
Repayment Date or, if less, on any subsequent Repayment Date;
(ii) in the case of paragraph (b)(ii)(b), the amount of the
Loan which falls due for repayment on the first Repayment Date under the
provisions of Clause 8 of this Agreement;
(iii) in the case of paragraph (b)(iii)(a), the amount of the
Loan which falls due for repayment on the first Repayment Date under the
provisions of Clause 8 of this Agreement;
(iv) in the case of paragraph (b)(iii)(b), the amount of the
Loan which falls due for repayment on the second Repayment Date under the
provisions of Clause 8 of this Agreement;
(v) in the case of paragraph (b)(iii)(c), the amount of the
Loan which falls due for repayment on the third Repayment Date under the
provisions of Clause 8 of this Agreement;
(vi) paragraph (b)(iii)(d), the amount of the Loan which falls
due for repayment on the fourth Repayment Date under the provisions of Clause 8
of this Agreement;
(vii) paragraph (b)(iii)(e), the amount of the Loan which falls
due for repayment on the fifth Repayment Date under the provisions of Clause 8
of this Agreement;
Notwithstanding the foregoing, the Borrower agrees with the
Lender that it shall use its best efforts to ensure that the precise amount
required by the provisions of paragraph (b) above to be credited to the Reserve
Account and/or the US Escrow Account shall be so credited and it shall use its
best efforts, in the month or months immediately succeeding the existence of any
shortfall, to ensure that such further amounts are credited to the Reserve
Account and/or the US Escrow Account so that the Borrower shall comply with the
obligations expressed to be assumed by it under paragraph (b) above as if the
grace or cure periods referred to in this paragraph (c) were not applicable.
- 37 -
(d) PRIORITY OF PAYMENTS FROM THE RP ESCROW ACCOUNT
-----------------------------------------------
The Borrower agrees with the Lender that monies shall, with the
prior written consent of the Lender, be debited from the RP Escrow Account in
the following order of priority:
first, in or towards satisfaction of the Borrower's obligation to
pay interest under Clause 6 of this Agreement on each of the Interest Payment
Dates;
second, in or towards payment of the approved budgetted expenses
relating to the business and operations of the Borrower as approved by the
Lender or otherwise as agreed from time to time by the Lender Provided that the
consent of the Lender to the payment of the following monies from the RP Escrow
Account shall not be necessary for so long as the Borrower is in compliance with
the obligations expressed to be assumed by it under this Agreement (and, for
this purpose, the provisions of Clause 14.3(c) shall be ignored so that it shall
be a requirement that the Borrower be in strict compliance with its obligations
under Clause 14.3(b) of this Agreement);
(a) any interest earned in connection with monies standing
to the credit of any of the Accounts, it being agreed by the Lender that
interest earned in connection with the Reserve Account and the US Escrow Account
shall be credited to the RP Escrow Account; and
(b) any and all monies standing to the credit of the RP
Escrow Account which are not then required to enable the Borrower to comply with
its obligations under this Agreement including without limitation the
obligations of the Borrower under Clause 14.3(b) and this Clause 14.3(d) and
which are generated from the issue or sale of shares in the Borrower;
third, in or towards payment of the amounts referred to in
paragraph (b)(ii)(a) above;
fourth, in or towards payment of the amounts referred to in
paragraph (b)(ii)(b) above;
fifth, in or towards payment of the amounts referred to in
paragraph (b)(iii) above;
sixth, in or towards repayment of principal on each of the
Repayment Dates; and
- 38 -
seventh, but without prejudice to any of the foregoing
provisions, at any time after the date falling thirty (30) months after the
making of the first Advance, any and all monies standing to the credit of the RP
Escrow Account which are not (whether by the making of any prepayment of the
Loan or otherwise) then required to enable the Borrower to comply with its
obligations due at such time under this Agreement including, without limitation,
the obligations of the Borrower under Clause 14.3(b) and this Clause 14.3(d)
and, for the avoidance of doubt. after the date falling thirty (30) months after
the making of the first Advance, the Lender agrees to the release of such
surplus monies referred to herein without need for its prior written consent in
accordance with the provisions hereof.
(e) NETTING OF PAYMENTS
-------------------
The Borrower and the Lender agree that if, by the operation of
the provisions of this Agreement and in respect of payments to be made on any
particular day (the "RELEVANT DAY"), the Borrower would be required to make a
payment to the Lender on the Relevant Day and the Lender would be required to
agree to the remittance of funds from the RP Escrow Account to the Borrower on
the Relevant Day then, on the Relevant Day, those payments shall be netted so
that the Lender, or as the case may be, the Borrower shall receive a net amount
which is equal to the difference between the amounts payable on the Relevant
Date.
(f) TRANSFER OF FUNDS
-----------------
Any amount contained in the Reserve Account which is not required
to enable the Borrower to perform its obligations as set out under this
Agreement shall be transferred to the US Escrow Account, and the Lender hereby
consents to such transfer.
15. EVENTS OF DEFAULT
-----------------
15.1 If:
(i) the Borrower and/or the Guarantor fails to pay any sum due from
it under this Agreement (in the case of the Borrower) or the Guarantee (in the
case of the Guarantor) at the time, in the currency and in the manner specified
therein and such failure is not rectified within seven (7) business days of the
occurrence thereof: or
(ii) any representation, warranty or statement made or deemed to be
made by any Obligor under or pursuant to any Transaction Document to which it is
a party or in any notice or other document, certificate or statement delivered
by it pursuant thereto or in
- 39 -
connection therewith is or proves to be incorrect or misleading and, if capable
of being remedied, is not remedied within a period of six (6) months from the
occurrence of such breach; or
(iii) the Borrower fails duly to perform or comply with any of the
obligations expressed to be assumed by it in Clauses 13 or 14 including, without
limitation and for the avoidance of doubt, the failure by the Borrower to ensure
that amounts are credited to the Accounts in the manner provided for in Clause
14.3; or
(iv) any Obligor fails duly to perform or comply with any other
material covenant or other material obligation expressed to be assumed by it in
any Transaction Document to which it is a party and, if in the opinion of the
Lender such failure is capable of being remedied, such failure is not remedied
within thirty (30) days after the occurrence thereof Provided Always that such
grace period will not apply in respect of a breach by the Borrower relating to
the grant of any security interest other than those security interests
specifically contemplated hereunder or under the Security Documents; or
(v) any other indebtedness in excess of US$00,000 (or its
equivalent) in the aggregate of any Obligor or any of their respective
subsidiaries (a) is not paid when due or within any applicable grace period in
any agreement or instrument relating to such indebtedness, or (b) becomes due
and payable, or capable of being declared due and payable, before its normal or
agreed maturity by reason of a default (howsoever described) except that this
subClause shall not apply to any indebtedness which any Obligor is contesting in
good faith and by appropriate proceedings; or
(vi) any Obligor or any of its respective subsidiaries is unable to
pay or admits its inability to pay its debts as they fall due, commences
negotiations with a view to, or takes any proceedings under any law for a
readjustment, rescheduling or deferment of all or any of its indebtedness or
proposes, makes or enters into a general assignment or arrangement for the
benefit of or a composition with any one (1) or more of its creditors; or
(vii) any corporate action or other steps are taken (by any person)
for the bankruptcy, liquidation, winding-up, or dissolution of the Borrower or
any of its respective subsidiaries or for the appointment of a receiver,
administrator, custodian, judicial manager, trustee or similar officer of the
Borrower or any of its respective subsidiaries or any of its assets or revenues;
or
(viii) any execution, attachment. distress or other legal process is
levied enforced or sued out on or against, or any person having a security
interest thereover takes possession of or forecloses
- 40 -
against the whole or any part of, the property, undertaking or assets of the
Borrower or any of its respective subsidiaries; or
(ix) any provision of any Transaction Document is or becomes, for
any reason, invalid or unenforceable or any Transaction Document shall at any
time for any reason cease to be in full force and effect whether by any reason
or matter affecting any Obligor or by any event which renders it illegal for any
Obligor to perform or comply with any or all of its obligations under any
Transaction Document to which it is a party; or
(x) any agency of any state seizes, compulsorily acquires,
expropriates or nationalises the Borrower or any of its respective subsidiaries
and/or all or more than five per cent. (5%) of its assets or shares in any
manner whatsoever (whether direct or indirect); or
(xi) the Borrower suspends or threatens to suspend all or a
substantial part of the construction and/or development of the Project without
reasonable cause and/or the Borrower or any of its subsidiaries suspends or
threatens to suspend all or any part of their respective operations without
reasonable cause or ceases, or threatens to cease to carry on their respective
main business as carried on at the date hereof or enters into any business which
is unrelated to their respective existing business or operations and/or at any
time for whatever reason the Borrower abandons the construction, development
and/or operation of the Project; or
(xii) any Obligor repudiates any Transaction Document to which it is
a party or does or causes to be done any act or thing evidencing an intention to
repudiate any Transaction Document to which it is a party and/or the Borrower
repudiates any agreement or document relating to the Project or does or causes
to be done any act or thing evidencing an intention to repudiate any agreement
relating to the Project; or
(xiii) at any time any act, condition or thing required to be done,
fulfilled or performed in order (a) to enable any Obligor lawfully to enter
into, exercise its rights under and perform the obligations expressed to be
assumed by it in any Transaction Document to which it is a party, (b) to ensure
that the obligations expressed to be assumed by such Obligor in any Transaction
Document to which it is a party are legal, valid, binding and enforceable or (c)
to make each Transaction Document admissible in evidence in Indonesia, Singapore
and England is not done, fulfilled or performed; or
(xiv) except in the case of the Assignment of Receivables and the
various Hypothecs, any security interest expressed to be conferred upon the
Security Agent and/or the Lender and/or the under
- 41 -
any Transaction Document ceases to be a security interest over the property and
assets the subject thereof in accordance with its terms; or
(xv) any material event occurs or material circumstances arise
which give grounds in the opinion of the Lender for belief that any Obligor may
not (or may be unable to) perform or comply with any one (1) or more of its
obligations under any Transaction Document to which it is a party (and, for this
purpose, the repayment of principal and the payment of interest shall be deemed
to be material obligations); or
(xvi) the Project Completion Date does not occur on or prior to the
date falling thirteen (13) months after the date hereof; or
(xvii) the Guarantor and the Shareholders cease at any time and for
whatever reason directly to own in aggregate (legally and beneficially) one
hundred per cent. (100%) of the shares of the Borrower otherwise than in
accordance with the provisions of Clause 14.1(xv) hereof and/or the Guarantor
and the Shareholders cease at any time and for whatever reason to control the
Borrower; or
(xviii) any change in any necessary governmental approvals occurs or
any amendment to any of the Project Contracts is made which, in the sole opinion
of the Lender, may adversely affect the Borrower's ability to meet its
obligations contained herein,
then, and in any such case and at any time thereafter, the Lender may:
(a) cancel its Commitment whereupon the same shall be so
cancelled and reduced to zero; and/or
(b) declare all the outstanding Advances together with
accrued interest thereon and any and all sums of whatsoever nature due from the
Borrower hereunder to be immediately due and payable (without demand, protest or
notice upon the Borrower) or to be due and payable on demand of the Lender upon
such terms and subject to such conditions as the Lender may from time to time
specify and, in the event that the Borrower shall fail to comply with its
obligations hereunder in respect thereof, the Lender shall be entitled to
enforce its rights under the Security Documents.
16 BROKEN FUNDING COSTS
--------------------
Notwithstanding any other provision of this Agreement, if the Lender
receives or recovers all or any part of the Loan otherwise than on a Repayment
Date relating thereto, the Borrower shall pay to the Lender on demand an amount
equal to the amount (if any) by which
- 42 -
(i) the additional interest which would have been payable on the amount so
received or recovered had it been received or recovered on such Repayment Date
exceeds (ii) the amount of interest received or recovered by the Lender by
placing a dollar deposit (equal to the amount received or recovered) with a
prime bank in Singapore for a period starting on the third Banking Day following
the date of such receipt and ending on such Repayment Date.
17. INDEMNITY
---------
17.1 The Borrower undertakes to indemnify the Lender against:
(i) any cost, claim, loss, expense (including legal fees on a full
indemnity basis) or liability together with any service tax thereon, which it
may sustain or incur as a consequence of the occurrence of any Event of Default
or any other breach or default by the Borrower in the performance of any of the
obligations or covenants expressed to be assumed by it in this Agreement; and
(ii) any loss it may sustain or incur as a result of its funding an
Advance requested by the Borrower hereunder but not made by reason of the
operation of any one (1) or more of the provisions hereof.
17.2 Any amount received or recovered from the Borrower by the Lender under
or in connection with this Agreement in a currency (such currency being referred
to herein as the "OTHER CURRENCY") other than the currency in which such sum is
expressed to be due under this Agreement (such currency being referred to herein
as the "CURRENCY OF ACCOUNT") whether as a result of, or the enforcement of, a
judgment or order of a court or tribunal in any jurisdiction, in the winding-up
or dissolution of the Borrower or otherwise, shall only constitute a discharge
of the Borrower's payment obligations hereunder to the extent of the amount in
the Currency of Account which the Lender is able, in accordance with its usual
practice, to purchase with the amount of the Other Currency so received or
recovered. The Borrower undertakes to indemnify the Lender against any cost,
claim, loss, expense (including legal fees on a full indemnity basis) or
liability together with any service tax thereon which the Lender may incur or
sustain in the event that the amount so received by it in the Currency of
Account (following the conversion into the Currency of Account of any amount
received in the Other Currency) is less than the amount of the Currency of
Account due to the Lender under or in connection with this Agreement.
17.3 Each indemnity contained in this Clause constitutes a separate and
independent obligation of the Borrower from the other obligations of the
Borrower contained in this Agreement, shall give
- 43 -
rise to a separate and independent cause of action against the Borrower and
shall apply irrespective of any time or other indulgence granted to the
Borrower. The Borrower agrees that each such indemnity shall continue in full
force and effect notwithstanding the existence of any judgment, order, claim or
proof for a liquidated amount in respect of any sum due under or in connection
with this Agreement or any judgment or order relating thereto.
18. CURRENCY OF ACCOUNT
-------------------
The dollar is the currency of account and is the currency of payment for
each and every sum at any time due from the Borrower hereunder Provided that:
(i) each payment in respect of costs and expenses shall be made in the
currency in which the same were incurred; and
(ii) each payment pursuant to Clause 21.1 shall be made in the currency
specified by the party claiming thereunder.
19. PAYMENTS
--------
19.1 On each date on which this Agreement requires an amount to be paid by
the Borrower or the Lender hereunder, the Borrower or, as the case may be, the
Lender shall make the same available to the other by payment in such funds as is
for the time being customary for the settlement of international banking
transactions in the currency so payable to such account or bank as the Borrower
or, as the case may be, the Lender may from time to time specify for this
purpose.
19.2 On each date on which this Agreement requires an amount to be paid by
the Lender to the Borrower, the Lender shall make the same available by
application:
(i) first, in or towards payment (on the date of receipt) of any
amount then due and payable from the Borrower hereunder to the Lender; and
(ii) secondly, in or towards payment (on the date of receipt) to such
account of the Borrower such bank in Indonesia as the Borrower shall have
previously notified to the Lender for this purpose.
19.3 All payments required to be made by the Borrower hereunder shall be
calculated without reference to any set-off or counterclaim and shall be made
free and clear of and without any deduction for or on account of any set-off or
counterclaim.
- 44 -
19.4 The Lender shall maintain in accordance with its usual practice an
account or accounts, which shall as between the Borrower and the Lender be prima
-----
facie evidence of the amounts from time to time lent by, owing to and paid to
-----
the Lender hereunder.
19.5 Payments received by the Lender hereunder shall be applied: first, to
payment of fees due and payable to the Lender (if any); second, to payment of
accrued interest on the overdue Loan; third, to payment of accrued interest on
the Loan; fourth, to repayment of the overdue portion of the Loan; fifth, to
repayment of the Loan and sixth, to prepayment of the Loan.
20. TAXES
-----
20.1 All payments by the Borrower under this Agreement, whether in respect
of principal, interest, fees, costs, expenses or any other matter, shall be made
in full without any deduction or withholding for or on account of tax unless the
deduction or withholding is required by law, in which case the Borrower shall:
(i) ensure that the deduction or withholding does not exceed the
minimum amount legally required;
(ii) forthwith pay to the Lender such additional amount or amounts
so as to ensure that the net amount received by the Lender will be equal to the
full amount which it would have received had no such deduction or withholding
been made or required to be made;
(iii) pay to the relevant taxation or other authorities within the
period for payment permitted by applicable law the full amount of the deduction
or withholding (including, but without prejudice to the generality of the
foregoing, the full amount of any deduction or withholding from any additional
amount paid under this sub-Clause); and
(iv) furnish to the Lender, within thirty (30) days after it has
made payment to the relevant tax or other authority:
(a) an official receipt of the relevant authority in respect
of all amounts so deducted or withheld; or
(b) if such receipts are not issued by the relevant
authorities on payment to them of amounts so deducted or withheld, a
certification of deduction or withholding or equivalent evidence (which shall be
satisfactory to the Lender) of the relevant deduction or withholding.
- 45 -
20.2 Without prejudice to the provisions of Clause 20.1, if the Lender is
required to make any payment on account of tax (other than tax on its overall
net income) on or in relation to any sum received or receivable hereunder by the
Lender (including, without limitation, any sum received or receivable under this
Clause 20) or any liability in respect of any such payment is asserted, imposed,
levied or assessed against the Lender, the Borrower shall, upon demand of the
Lender, promptly indemnify the Lender against such payment or liability,
together with any interest, penalties and expenses payable or incurred in
connection therewith.
20.3 If the Borrower makes a payment under this Clause 20 for the account
of the Lender and the Lender, in its sole opinion, determines that it has
received or been granted a credit against or relief or remission for, or
repayment, of, any tax paid or payable by it in respect of or calculated with
reference to the deduction or withholding giving rise to such payment, the
Lender shall, to the extent that it can do so without prejudice to the retention
of the amount of such credit, relief, remission or repayment, pay to the
Borrower, such amount as the Lender shall, in its sole opinion, have determined
to the attributable to such deduction or withholding. Any payment made by the
Lender under this Clause shall be conclusive evidence of the amount due to the
Borrower hereunder and shall be accepted by the Borrower in full and final
settlement of its rights of reimbursement hereunder in respect of the relevant
deduction or withholding. Nothing herein contained shall interfere with the
right of the Lender to arrange its tax affairs in whatever manner it thinks fit
and, in particular, the Lender shall not be under any obligation to claim
credit, relief, remission, or repayment from or against its corporate profits or
similar tax liability in respect of the amount of such deduction or withholding
in priority to any other claims, reliefs, credit or deductions available to it,
nor oblige the Lender to disclose any information relating to its tax affairs or
any computations in respect thereof.
20.4 In order to assist the Borrower in qualifying for reduction pursuant
to any applicable income tax treaty in the rate of any deduction or withholding
applicable under Indonesian law to payments of interest to the Lender, the
Lender shall furnish to the Borrower, no later than the earliest date on which
any interest payment is to be made under Clause 6 of this Agreement, a
certificate of domicile (or such other certificate or document, howsoever
entitled, which would constitute evidence of the Lender's tax residence in the
applicable treaty country) and all such other documents as are reasonably
necessary to enable the Borrower to qualify for reductions pursuant to Dir. Jen
Tax Rule SE-08/93.
- 46 -
20.5 If, at any time, the Borrower is required by law to make any deduction
or withholding from any sum payable by it hereunder (or if the Borrower becomes
aware of any such proposed requirement or there is any change in the rates at
which or the manner in which such deductions or withholdings are calculated),
the Borrower shall promptly notify the Lender thereof.
21. INCREASED COSTS
---------------
21.1 In the event that the Lender determines that, by reason of the
introduction of or any change in the interpretation or administration of any law
and/or compliance with any directive from any central bank or other fiscal,
monetary or other authority or agency (including, without limitation, a
directive which affects the manner in which the Lender is required to or does
maintain capital resources having regard to its obligations hereunder and to
amounts owing to it hereunder):
(i) the Lender incurs a cost as a result of its making of one (1) or
more Advances hereunder or as a result of its having entered into and/or
assuming or maintaining its Commitment hereunder; or
(ii) there is any increase in the cost to the Lender of maintaining
and/or funding all or any part of its Commitment and/or of maintaining all or
any part of its obligations under or in connection with this Agreement; or
(iii) the Lender suffers a reduction in the rate of return on its
overall capital (not being a reduction by reason of the imposition of, or
increase in the rates of, tax payable on its overall net income) as a result of
a change in the manner in which the Lender is required to allocate resources to
its obligations hereunder; or
(iv) the Lender becomes liable to make any payment on account of tax
or otherwise (other than tax on its overall net income) on or calculated by
reference to the amount of any Advance made or to be made by it hereunder and/or
any sum received or receivable by it hereunder,
the Borrower shall, from time to time on demand of the Lender, promptly pay to
the Lender amounts sufficient to indemnify the Lender against, as the case may
be, (a) such cost, (b) such increased cost (or such proportion of such increased
cost as is, in the opinion of the Lender, attributable to its funding or
maintaining Advances hereunder) (c) such proportion of such reduction as is, in
the opinion of the Lender, attributable to its obligations hereunder or (d) such
liability.
- 47 -
21.2 In the event that any such cost, increased cost, reduction in rate of
return, liability or loss as is referred to in paragraphs (i) to (iv) of Clause
21.1 is not (by reason of the manner in which any applicable law or directive
from any central bank or other fiscal, monetary or other authority or agency is
applied, enforced or given effect) directly charged to the Lender but instead to
any person which is a holding company, a subsidiary of or otherwise affiliated
with the Lender, then, for all the purposes of this Clause 21, such cost,
increased cost, reduction in rate of return liability or loss shall be deemed to
have been incurred by the Lender.
22. SET-OFF
-------
The Borrower authorises the Lender to apply any credit balance to which the
Borrower is entitled on any account of the Borrower with the Lender in
satisfaction of any sum due and payable from the Borrower to the Lender
hereunder but unpaid; for this purpose, the Lender is authorised to purchase
with the moneys standing to the credit of any such account such other currencies
as may be necessary to effect such application. The Lender shall not be obliged
to exercise any right given to it by this Clause.
23. FEES, COSTS AND EXPENSES
------------------------
23.1 The Borrower shall pay to the Lender the fees specified in the Fees
Letter at the times, and in the amounts, specified in the Fees Letter. The
Borrower shall also pay to the Lender a commitment fee calculated in the manner
and payable at the times specified in the Fees Letter.
23.2 The Borrower shall, from time to time on demand of the Lender,
reimburse the Lender for all costs and expenses (including legal fees) together
with any service tax thereon incurred by it in or in connection with the
negotiation, preparation, execution and completion of this Agreement, the
Security Documents, the Letter of Comfort, the Negative Pledge Letter, the
Guarantee, the Fees Letter and all other ancillary documents necessary for the
preparation, execution and completion of the aforesaid documents and the
completion of the transactions herein contemplated subject to a maximum limit of
US$70,000 in respect of the professional fees of legal counsel to the Lender.
23.3 The Borrower shall, from time to time on demand of the Lender,
reimburse the Lender for all reasonable costs and expenses (including, without
limitation, legal fees and all out of pocket expenses on a full indemnity basis)
together with any service tax thereon incurred in or in connection with (i) the
preservation and/or enforcement of any of the rights of the Lender under this
Agreement
- 48 -
and (ii) any variation, consent, approval, waiver or amendment relating to this
Agreement.
23.4 The Borrower shall pay all stamp, documentary and other taxes to which
this Agreement or any judgment given in connection herewith is or at any time
may be subject and shall indemnify the Lender against any liabilities, costs,
claims and expenses resulting from any failure to pay or any delay in paying any
such tax.
24. BENEFIT OF AGREEMENT
--------------------
24.1 This Agreement shall be binding upon, and inure to the benefit of each
party hereto and their respective successors and assigns.
24.2 The Borrower shall not be entitled to assign, transfer or otherwise
deal in any way with all or any of its rights, benefits and obligations under
this Agreement.
24.3 The Lender may, at any time, assign all or any of its rights and
benefits hereunder Provided that the Lender shall at all times have an interest
in not less than fifty per cent. (50%) of the amount of the Loan unless the
Borrower otherwise consents thereto (such consent not to be unreasonably
withheld).
24.4 Save as provided below, the Lender may disclose to a potential
assignee or to any other person with whom it may wish to enter into contractual
relations in connection with any Transaction Document such information about the
Borrower and its financial condition as shall have been made available to the
Lender thereunder together with such other information as the Lender shall
consider appropriate. The Borrower hereby consents to the disclosure of any and
all such information. Notwithstanding the foregoing, the Lender shall not be
entitled to disclose:
(a) the customer lists provided by the Borrower to the Lender under
the Assignment of Receivables; or
(b) any such information as is referred to above to any person
actively participating in the telecommunications industry in Indonesia, in this
case without the consent of the Borrower (such consent not to be unreasonably
withheld).
25. MISCELLANEOUS
-------------
25.1 Interest and fees shall accrue from day to day and shall be calculated
on the basis of a year of three hundred and sixty (360)
- 49 -
days (or, if market practice differs, in accordance with market practice) and
the actual number of days elapsed.
25.2 A certificate of the Lender as to (i) the amount by which a sum
payable to it hereunder is to be increased under Clause 20, (ii) the amount for
the time being required to indemnify it against any such cost, payment or
liability as is mentioned in Clause 20.2 or 21.1 or (iii) the amount of any sum
due from the Borrower hereunder shall, in the absence of manifest error, be
conclusive for the purposes of this Agreement.
25.3 This Agreement and the documents contemplated hereby shall supersede
any prior expression of intent or understanding with respect to this
transaction.
25.4 Each party hereto shall maintain in confidence and not disclose in any
manner or to any person without the prior written consent of the other party
hereto any information or data which may be furnished by such other party
(hereinafter referred to as the "FURNISHING PARTY") pursuant hereto or to any
other Transaction Document and which is notified to such other party by the
Furnishing Party to be confidential in nature (hereinafter referred to as
"CONFIDENTIAL INFORMATION") Subject Always to the obligation of the party
receiving such Confidential Information (hereinafter referred to as THE
"RECEIVING PARTY") to disclose such Confidential Information to any person (i)
pursuant to a request by any governmental or regulatory agency or funding source
of the Lender, (ii) pursuant to a request or order of any person in accordance
with any applicable law or regulation or (iii) which is referred to in any
Transaction Document (including, without limitation, any legal counsel,
independent auditor, valuer or representative or attorney of any party hereto)
and which shall specifically be notified of the confidentiality of such
Confidential Information. Without prejudice to the foregoing, the provisions
contained in the previous sentence shall not apply to (a) any information that
was known to the Receiving Party prior to the time it received such information
from the Furnishing Party pursuant to this Agreement or any other Transaction
Document, (b) any such Confidential Information that becomes part of the public
domain other than through the fault of the Receiving Party or is received by the
Receiving Party without restriction as to its disclosure, (c) any specific terms
and conditions hereof and of any other Transaction Document that are disclosed
by the Lender to any of its funding sources and (d) any specific terms and
conditions hereof and of any other Transaction Document and any other
Confidential Information that is disclosed by the Lender to any other person to
which the Lender intends to transfer or otherwise assign its interest hereunder
in accordance with the provisions of Clause 24.3 hereof.
- 50 -
26. REMEDIES AND WAIVERS
--------------------
No failure to exercise, nor any delay in exercising, on the part of the
Lender, any right or remedy hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any right or remedy prevent any further
or other exercise thereof or the exercise of any other right or remedy. The
rights and remedies herein provided are cumulative and not exclusive of any
rights or remedies provided by law.
27. PARTIAL INVALIDITY
------------------
If, at any time, any provision hereof is or becomes illegal, invalid or
unenforceable in any respect under the law of any jurisdiction, neither the
legality, validity or enforceability of the remaining provisions hereof nor the
legality, validity or enforceability of such provision under the law of any
other jurisdiction shall in any way be affected or impaired thereby.
28. NOTICES
-------
28.1 Any notice or other communication required to be given to the Lender
under this Agreement shall be sent to it at the address, telex number or
facsimile number specified in the signature pages hereof marked for the
attention of the person(s) or department specified thereon or such other
address, telex number or facsimile number and/or such other attention as may be
notified to the Borrower in accordance with this Clause. Any notice or other
communication required to be given to the Borrower hereunder shall be sent to it
at the address, telex number or facsimile number specified in the signature
pages hereof or such other address, telex number or facsimile number as may be
notified by the Borrower to the Lender in accordance with this Clause.
28.2 Any communication from one party to another shall be deemed to be
received by the Borrower (if sent by telex or facsimile) on the day of despatch
(provided, in the case of any telex transmission, the correct answerback is
received and, in the case of any facsimile transmission, a transmission report
confirming full and proper transmission thereof is received) or (in any other
case) when left at the address referred to in Clause 28.1 or fourteen (14) days
after being deposited in the post, postage prepaid in an envelope addressed to
such party at that address. Any change in the address, telex number or facsimile
number of the Borrower or, as the case may be, the Lender shall be notified to
the other party by not less than fourteen (14) days' prior notice.
- 51 -
28.3 Each communication and document made or delivered by one party to
another pursuant to this Agreement shall be in the English language or
accompanied by a translation thereof into English certified (by an officer of
the person making or delivering the same) as being a true and accurate
translation thereof.
29. LAW AND JURISDICTION
--------------------
29.1 This Agreement shall be governed by, and shall be construed in
accordance with, English law.
29.2 It is irrevocably agreed for the exclusive benefit of the Lender that
the courts of England are to have jurisdiction to hear and determine any suit,
action or proceeding, and to settle any disputes, which may arise out of or in
connection with this Agreement and that accordingly, any suit, action or
proceeding arising out of or in connection with this Agreement may be brought in
such courts.
29.3 The Borrower irrevocably agrees that the courts of Singapore shall
have jurisdiction to hear and determine any suit, action or proceeding, and to
settle any disputes, which may arise out of or in connection with this Agreement
and, for such purposes, irrevocably submits to the jurisdiction of such courts.
29.4 The Borrower irrevocably waives any objection which it might now or
hereafter have to the courts referred to in Clause 29.2 and Clause 29.3 being
nominated as the forum to hear and determine any suit, action or proceeding, and
to settle any disputes, which may arise out of or in connection with this
Agreement and agrees not to claim that any such court is not a convenient or
appropriate forum.
29.5 The Borrower agrees that the process by which any suit, action or
proceeding is begun may be served on it by being delivered (i) in connection
with any suit, action or proceeding in England, to The Law Debenture Trust
Corporation p.l.c. at ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ or its
other principal place of business for the time being and (ii) in connection with
any suit, action or proceeding in Singapore to BSL Associates Pte. Ltd. at ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ #▇▇-▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ 0923 or its other principal
place of business in Singapore for the time being.
29.6 The Borrower hereby consents generally in respect of any legal action
or proceeding arising out of or in connection with this Agreement to the giving
of any relief or the issue of any process in connection with such action or
proceeding including, without limitation, the making, enforcement or execution
against any property whatsoever (irrespective of its use or intended use) of any
order or judgment which may be made or given in such action or proceeding.
- 52 -
30. CONSTRUCTION OF CERTAIN PROVISIONS
----------------------------------
30.1 In this Agreement, each reference to the following expressions shall,
where the context so permits, be construed as set forth below:
an "AGENCY" of a state shall be construed so as to include, without
limitation, any agency, authority, central bank, department, government,
legislature, minister, ministry, official or public or statutory person or
state-owned organisation (whether autonomous or not) of, or the government of,
that state or any political sub-division in or of that state and any person who
in any capacity whatsoever then owns, holds, administers or controls any of the
reserves of that state;
an "AGREEMENT" shall be construed so as to include, without limitation, a
concession, contract, deed, franchise, licence or undertaking (in each case,
whether oral or written);
the "ASSETS" of any person shall be construed, without limitation, as a
reference to the whole or any part of its business, undertaking, property,
assets or revenues (including any right to receive revenues);
a "BANKING DAY" shall be construed as a reference to a day (other than a
Saturday or Sunday) on which banks generally are open for business in London,
Singapore and New York City;
a "BUSINESS DAY" shall be construed as a reference to a day (other than a
Saturday or Sunday) on which banks generally are open for business in London,
Singapore, New York City and Jakarta;
a "CLAUSE" shall, unless otherwise specified herein, be construed as a
reference to a clause hereof;
a "CONSENT" shall be construed so as to include, without limitation, an
approval, authorisation, exemption, filing, licence, order, permission, permit,
recording or registration (and references to obtaining consents shall be
construed accordingly);
a "DIRECTIVE" shall be construed so as to include, without limitation, any
present or future directive, law, policy, regulation, request, requirement or
voluntary credit restraint programme (in each case, whether or not having the
force of law but, if not having the force of law, the compliance with which is
in accordance with the general practice of persons to whom the directive is
addressed);
- 53 -
the "FINANCIAL STATEMENTS" shall be construed as a reference to the first
audited financial statements of the Borrower;
a "GUARANTEE" shall be construed so as to include, without limitation, any
obligation (howsoever termed) of any person to pay, purchase, provide funds
(whether by way of the advance of money, the purchase of or subscription for
shares or other securities, the purchase of assets or services or otherwise) for
the payment of, indemnify against the consequences of default in the payment of,
or otherwise be responsible for, any indebtedness, obligation or other duty of
any other person;
the "GUARANTOR'S FINANCIAL STATEMENTS" shall be construed as a reference to
the audited financial statements of the Guarantor for its financial year ended
31 December, 1994 and dated 2 June, 1995;
"INDEBTEDNESS" shall be construed so as to include, without limitation, any
obligation, liability or forbearance (whether present or future, actual,
conditional or contingent, direct or indirect, secured or unsecured or incurred
as principal, guarantor or surety or otherwise) for the payment or repayment of
money;
a "LAW" shall be construed so as to include, without limitation, common or
customary law and any constitution, decree, judgment, legislation, order,
ordinance, regulation, statute, treaty or other legislative measure in any
jurisdiction or any present or future directive, regulation, request or
requirement (in each case, whether or not having the force of law but, if not
having the force of law, the compliance with which is in accordance with the
general practice of persons to whom the directive, regulation, request or
requirement is addressed) and "LAWFUL" and "UNLAWFUL" shall be construed
accordingly;
the "LENDER" shall be construed so as to include, without limitation, its
and any subsequent successors and assigns in accordance with their respective
interests;
a "LONDON BANKING DAY" shall be construed as a reference to a day (other
than a Saturday or Sunday) on which banks generally are open for business in
London;
a "MONTH" is a reference to a period starting on one day in a calendar
month and ending on the numerically corresponding day in the next succeeding
calendar month except that, where any such period would otherwise end on a day
which is not a Banking Day, it shall end on the next succeeding Banking Day,
unless that day falls in the calendar month succeeding that in which it would
otherwise have ended, in which case it shall end on the immediately preceding
Banking Day
- 54 -
Provided that, if a period starts on the last Banking Day in a calendar month or
if there is no numerically corresponding day in the month in which that period
ends, that period shall end on the last Banking Day in that later month and
references to "MONTHS" shall be construed accordingly;
a "PERSON" shall be construed, without limitation, as a reference to any
natural person, firm, company, corporation, government (or any political sub-
division thereof), state or agency of a state or any association, business,
joint venture or partnership (whether or not having separate legal personality);
a "SCHEDULE" shall, unless otherwise specified herein, be construed,
without limitation, as a reference to a schedule hereto;
a "SECURITY INTEREST" shall be construed so as to include, without
limitation, any conditional sale, encumbrance, mortgage, charge, pledge, lien,
hypothecation, title retention arrangement or any other form of preferential
arrangement having a similar effect, in each case howsoever created or arising;
"SERVICE TAX" shall be construed, without limitation, as a reference to any
goods and/or services tax including any other or similar tax which may be
imposed from time to time;
a "SUBSIDIARY" of a company or corporation shall be construed, without
limitation, as a reference to any company or corporation:
(i) which is controlled, directly or indirectly, by the first-
mentioned company or corporation;
(ii) more than half the issued share capital of which is beneficially
owned, directly or indirectly, by the first-mentioned company or corporation; or
(iii) which is a subsidiary of another subsidiary of the first-
mentioned company or corporation,
and, for these purposes, a company or corporation shall be treated as being
controlled by another if that other company or corporation is able to direct its
affairs and/or to control the composition of its board of directors or
equivalent body;
"TAX" shall be construed so as to include, without limitation, any present
or future tax, levy, impost, duty, charge, fee, deduction or withholding of any
nature whatsoever and howsoever termed (including, without limitation, any
penalty or interest payable in
- 55 -
connection with any failure to pay or any delay in paying any of the same) by
whomsoever, on whomsoever and wherever imposed, levied, collected, withheld or
assessed;
"UNPAID AMOUNT" shall be construed so as to include, without limitation,
any amount of whatsoever nature due and payable by the Borrower hereunder but
unpaid; and
the "WINDING-UP", "BANKRUPTCY", "DISSOLUTION", INSOLVENCY", "JUDICIAL
MANAGEMENT" or "ADMINISTRATION" of a company or corporation shall be construed
so as to include, without limitation, any equivalent or analogous proceedings
under the law of the jurisdiction in which such company or corporation is
incorporated or any jurisdiction in which such company or corporation carries on
business including the seeking of liquidation, winding-up, reorganisation,
dissolution, judicial management, administration, arrangement, adjustment,
protection or relief of debtors and whether voluntary or involuntary.
30.2 "US$" and "DOLLARS" denote lawful currency of the United States of
America; "RP" and "RUPIAH" denote lawful currency of Indonesia.
30.3 If the context so requires or permits, any reference in this
Agreement to this Agreement or any other agreement or document shall be
construed, without limitation, as a reference to this Agreement or, as the case
may be, such other agreement or document as the same may have been, or may from
time to time be, amended, varied, novated or supplemented and any reference to
any statutory provision shall include such provision and any regulations made
thereunder and any statutory re-enactment, modification or replacement thereof.
30.4 Clause and Schedule headings are for ease of reference only.
30.5 Except where the context otherwise requires, words importing the
singular number include the plural number and vice versa.
30.6 If, in relation to any period for which an interest rate is to be
determined hereunder and by reason of any change in market practice to that
existing at the date hereof, quotations would ordinarily be given by the Lender
to prime banks in the London Interbank Market for deposits in dollars for
delivery on the first day of that period on a day other than the second Banking
Day before the commencement of such period then, in such case, all references
herein to the second Banking Day before the commencement of the relevant period
shall be read and construed as references to the day on which such quotations
would, in accordance with market practice, ordinarily be given in the London
Interbank Market for deposits in dollars for
- 56 -
delivery on the first day of such period and the relevant provisions of this
Agreement shall, in such case, be read and construed accordingly.
30.7 Save where the contrary is indicated, any reference in this Agreement
to a time of day shall be construed as a reference to London time.
IN WITNESS whereof the duly authorised representatives of the parties have
----------
signed this Agreement the day and year first before written.
- 57 -
SCHEDULE ONE
FORM OF ADVANCE REQUEST
-----------------------
From: P.T. Mobile Selular Indonesia
To : Nissho Iwai International (Singapore) Pte., Ltd.
Date:
Dear Sirs
31. We refer to the credit facility agreement (the "FACILITY AGREEMENT") dated
12th March, 1996 and made between ourselves as the Borrower (1) and yourselves
as the Lender (2).
32. We hereby give you notice that we wish an Advance to be made to us under
the Facility Agreement as follows:
(i) Amount
(ii) Drawdown Date :
*(iii) Initial Interest Period:
(iv) Account Details and Bank :
33. As required by the provisions of the Facility Agreement, we attach a
description of the use or uses to which the proceeds of the Advance will be put.
34. We confirm that, at the date hereof, the representations and warranties set
out in Clause 12 of the Facility Agreement are true as of the date hereof and no
Event of Default or Potential Event of Default has occurred.
35. Terms defined in the Facility Agreement shall have the same meanings in
this Advance Request.
Yours faithfully
-----------------------------
for and on behalf of
P.T. MOBILE SELULAR INDONESIA
-------------------
*Insert only if there are no outstanding Advances
- 58 -
SCHEDULE TWO
------------
THE PROJECT CONTRACT'
---------------------
Purchase Contract 0741/DIR-RHP/IX-95 dated 29 September, 1995 between P.T.
Rajasa Perkasa as Buyer and Ericsson Radio Systems AB as Contractor.
Purchase Contract 028/TNK-RHP/I-96 dated 12 January, 1996 between P.T.
Rajasa Hazanah Perkasa as Buyer and Damm Cellular International A/S as
Contractor.
Service Contract dated 19 January, 1996 between P.T. Rajasa Hazanah Perkasa
as Purchaser and Nokia Telecommunications (Singapore) Pte Ltd as Purchaser.
Supply Contract dated 7 February 1996 between P.T. Rajasa Hazanah Perkasa
as Buyer and Tecnomen Oy as Contractor.
Supply Contract dated 19 January 1996 between P.T. Rajasa, Hazanah Perkasa
as the Buyer and Nokia Telecommunications OY as the Supplier.
- 59 -
SCHEDULE THREE
--------------
FORM OF MASTER ASSIGNMENT OF SUB-ACCOUNTS
-----------------------------------------
MASTER ASSIGNMENT OF SUB-ACCOUNTS
between
P.T. MOBILE SELULAR INDONESIA
as the Borrower
and
NISSHO IWAI INTERNATIONAL (SINGAPORE) PTE., LTD.
as the Lender
- 60 -
TABLE OF CONTENTS
-----------------
CLAUSE NO PAGE NO
--------- -------
PART 1
INTERPRETATION
1. Interpretation........................................................
PART 2
ASSIGNMENT
2. Assignment............................................................
3. Perfection of Security and Further Assurance..........................
4. Deposits..............................................................
PART 3
ASSIGNED ACCOUNT
5. Statements............................................................
PART 4
CURRENCY
6. Currency..............................................................
PART 5
WARRANTIES AND UNDERTAKINGS
7. Warranties and Undertakings...........................................
PART 6
EFFECTIVENESS OF SECURITY, REMEDIES AND WAIVERS
8. Effectiveness of Security.............................................
9. Remedies and Waivers..................................................
PART 7
MISCELLANEOUS
10. Provisions Severable..................................................
11. Notices...............................................................
12. Assignment of Rights..................................................
13. Fees, Costs and Expenses..............................................
14. Discharge.............................................................
15. Governing Law.........................................................
16. Jurisdiction..........................................................
Schedule One....................................................
Schedule Two....................................................
- 61 -
THIS DEED is made on the [ ] day of March, 1996
---------
BETWEEN:
-------
(1) P.T. MOBILE SELULAR INDONESIA, a company with limited liability duly
organised and existing under the laws of the Republic of Indonesia,
carrying on business in Indonesia (the "BORROWER"); and
(2) NISSHO IWAI INTERNATIONAL (SINGAPORE) PTE., LTD., a company with limited
liability duly organised and existing under the laws of the Republic of
Singapore, carrying on business in Singapore (the "LENDER").
WHEREAS:
--------
(A) Pursuant to a term loan facility agreement (as the same may from time to
time be amended, varied or supplemented, the ("FACILITY AGREEMENT") dated
12 March, 1996 made between the Borrower and the Lender, the Lender has
agreed to make available to the Borrower a term loan facility in the
maximum aggregate amount of up to United States Dollars Sixty Million
(US$60,000,000) on the terms and subject to the conditions set out therein.
(B) As security for the Borrower's obligations under the Facility Agreement and
each other Transaction Document (as defined below), the Borrower has agreed
to enter into this master assignment of sub-accounts.
THE PARTIES NOW AGREE AS FOLLOWS:
---------------------------------
PART 1
INTERPRETATION
--------------
36. INTERPRETATION
--------------
36.1 Terms and expressions defined in the Facility Agreement which are
used herein shall, unless otherwise defined herein or the context otherwise
requires, have the same meaning in this Deed.
36.2 In this Deed, the following expressions shall have, except where the
context otherwise requires, the following meanings:
"ACCOUNT BANKS" means the each of the Banks identified as such in Schedule
One and "ASSIGNED BANK" means any of them, as the context may permit;
- 62 -
"ASSIGNED ACCOUNTS" means each of the Indonesian Rupiah accounts of the
Borrower with each of the Account Banks identified as such in Schedule One or
such other account as the Lender and the Borrower may agree in writing and
"ASSIGNED ACCOUNT" means any of them, as the context may permit;
"ASSIGNED PROPERTY" means all the rights, title and interest of the
Borrower in and to each of the Assigned Accounts and all monies from time to
time representing the Deposits;
"DEPOSITS" means all monies now or at any time hereafter standing to the
credit of each of the Assigned Accounts and all entitlements to interest and
other rights and benefits accruing to or arising in connection with such monies
and "DEPOSIT" shall be construed accordingly;
"SECURED OBLIGATIONS" means all present and future, actual or contingent
obligations of the Borrower under or pursuant to the Facility Agreement or any
other Transaction Document;
"SUBSCRIBER" means any person with whom the Borrower has contracted in
respect of the use of or subscription to the NMT-450 Network (as defined in the
Facility Agreement) by such subscriber; and
"TRANSACTION DOCUMENTS" means the Facility Agreement and any other
agreement or document entered into by the Borrower or any other person as
contemplated under the Facility Agreement and "TRANSACTION DOCUMENT" shall be
construed accordingly.
36.3 "US$" and "DOLLARS" denote lawful currency of the United States of
America and "RP" and "RUPIAH" denote the lawful currency of Indonesia.
36.4 Save where the contrary is indicated, any reference in this Deed to:
(i) this Deed or any other agreement or document shall be construed
as a reference to this Deed or, as the case may be, such other agreement or
document as the same may have been or may from time to time be amended, varied,
novated or supplemented and shall include any document which is supplemental to,
is expressed to be collateral with or is entered into pursuant to or in
accordance with the terms of this Deed or, as the case may be, such other
agreement or document;
(ii) a statute shall be construed as a reference to such statute as
the same may have been, or may from time to time be, amended or re-enacted;
- 63 -
(iii) a time of the day shall, unless otherwise specified, be
construed as a reference to Jakarta time;
(iv) a "CLAUSE", "PART" or a "SCHEDULE" is a reference to a clause
hereof, part hereof or schedule hereof; and
(v) the singular shall include the plural and vice versa and to
one gender shall include all genders.
36.5 Clause, Part and Schedule headings are for ease of reference only.
36.6 Any reference in this Deed to the Borrower or the Lender shall be
construed so as to include their respective successors, transferees and assigns
in accordance with their respective interests.
PART 2
ASSIGNMENT
----------
37. ASSIGNMENT
----------
37.1 The Borrower as beneficial owner hereby assigns in favour of the
Lender as security for the payment and discharge of the Secured Obligations all
of its right, title and interest in and to the Assigned Property.
37.2 The Borrower shall, upon the execution hereof or as soon as
practicable following the opening of each of the Assigned Accounts, execute and
deliver to each of the relevant Account Banks a notice of assignment in the form
set out in Part I of Schedule Two, and shall procure that each such Account Bank
acknowledges such notice in the form set out in Part II of Schedule Two.
38. PERFECTION OF SECURITY AND FURTHER ASSURANCE
--------------------------------------------
The Borrower shall at any time at the request of the Lender and at the cost
of the Borrower promptly sign, seal, execute, deliver and do all deeds,
instruments, notices, documents, acts and things (including, without limitation,
further or other legal assignments, transfers, mortgages, legal or other charges
or securities) as in each such case may be necessary for the purpose of
maintaining, perfecting or protecting the security constituted by or pursuant to
this Deed (or purported to be constituted by or pursuant to this Deed) or for
facilitating the realisation thereof and the exercise of all powers, authorities
and discretions vested in the Lender. Without prejudice to the generality of the
foregoing, such assignments, transfers,
- 64 -
mortgages, legal or other charges, or securities shall be in such form as the
Lender shall require and may contain provisions such as are herein contained or
provisions to the like effect and/or such other provisions of whatsoever kind as
the Lender shall consider necessary for the maintenance or perfection of the
security constituted by or pursuant to this Deed.
39. DEPOSITS
--------
39.1 Save as herein provided, the Deposits, shall be deemed to be made by
the Borrower on the terms that (except with the Lender's prior written consent)
they shall finally mature on the date (the "MATURITY DATE") on which the Secured
Obligations are fully and finally discharged Provided that following an Event of
Default, the Lender shall at all times be entitled (but not obliged) and is
hereby authorised to apply all or any part of the Deposits in or towards
discharge of the Secured Obligations due and payable in accordance with the
terms of the Facility Agreement.
39.2 Until the Maturity Date of the Deposits the Borrower shall not be
entitled to withdraw, transfer or otherwise deal with all or any monies from
time to time comprising the Deposits without the Lender's prior written consent
and neither the Lender nor any of the Account Banks shall have any duty to
account to the Borrower in respect of the Deposits Provided Always that the
Borrower shall be entitled to withdraw or transfer monies in accordance with the
provisions of Clause 4.3.
39.3 The Borrower hereby agrees with the Lender to procure that all
amounts standing to the credit of each of the Assigned Accounts are, forthwith
upon the crediting thereof to the relevant Assigned Account, transferred and
remitted to the RP Escrow Account.
39.4 In respect of any Deposit, the existence of any time deposit shall
not prejudice the Lender's rights under or pursuant to the terms of this Clause
4 and/or the other terms of this Deed, and, without prejudice to the generality
of the foregoing, neither the Lender nor any of the Account Banks shall be
precluded or in any way obliged to delay the exercise of its rights as aforesaid
until the expiry of any such time deposit and as a consequence of the exercise
of its rights as aforesaid it may unilaterally terminate such time deposit or
direct such time deposit to be terminated at any time and adjust interest
payable by it (if any) accordingly.
39.5 If, at any time prior to the Lender releasing the Deposits from the
security hereby constituted, any monies forming part of the Deposits shall be
subject to terms which constitute (or would, but for this Clause 4.5,
constitute) a time deposit or are successively
- 65 -
redeposited on terms which constitute a time deposit, all monies so redeposited
shall continue to be subject to the provisions hereof and form a Deposit or part
thereof notwithstanding any expiry of such time deposit until the Maturity Date.
39.6 The provisions of this Clause 4 shall be without prejudice to the
provisions of Clause 2.1.
PART 3
ASSIGNED ACCOUNTS
-----------------
40. STATEMENTS
----------
The Borrower shall procure that a copy of monthly statements in respect of
each of the Assigned Accounts is forthwith after the end of each calendar month
given to the Lender.
PART 4
CURRENCY
--------
41. CURRENCY
--------
41.1 If any sum due from the Borrower under this Deed or any order or
judgment given or made in relation hereto has to be converted from the currency
(the "FIRST CURRENCY") in which the same is payable hereunder or under such
order or judgment into another currency (the "SECOND CURRENCY") for the purpose
of (i) making or filing a claim or proof against the Borrower, (ii) obtaining an
order or judgment in any court or other tribunal, (iii) enforcing any order of
judgment given or made in relation hereto, or (iv) applying the same in
satisfaction of the Secured Obligations, the Borrower shall indemnify and hold
harmless each of the persons to whom such sum is due from and against any loss
suffered as a result of any discrepancy between (a) the rate of exchange used
for such purpose to convert the sum in question from the first currency into the
second currency and (b) the rate or rates of exchange at which such person may
in the ordinary course of business purchase the first currency with the second
currency upon receipt of a sum paid to it in satisfaction, in whole or in part,
of any such order, judgment, claim or proof or for application in satisfaction
of the Secured Obligations.
41.2 For the purpose of or pending the satisfaction of the Secured
Obligations or for the purpose of crediting any monies to any account or making
any application therefrom, the Lender may convert any monies received, recovered
or realised or subject to application by the Lender under this Deed or any
monies to be credited to any such account (including the proceeds of any
previous conversion under this Clause 6.2) from their existing currency of
denomination into such
- 66 -
other currency of denomination as the Lender may think fit and any such
conversion shall be effected at the rate or rates of exchange at which the
Lender may in the ordinary course of business purchase such other currency of
denomination with such existing currency of denomination and any cost, expenses
or commissions incurred in effecting any such conversion shall be deducted from
the proceeds of any such conversion.
41.3 References herein to any currency extend to any funds of that
currency and for the avoidance of doubt funds of one currency may be converted
into different funds of the same currency.
PART 5
WARRANTIES AND UNDERTAKINGS
---------------------------
42. The Borrower hereby warrants and undertakes, to the best of its knowledge
having made all reasonable enquiries, to the Lender that:
(i) each of the Assigned Accounts has been opened and will at all
times be maintained with each of the Account Banks;
(ii) the Assigned Property is capable of being assigned by the
Borrower to the Lender under the terms of this Deed and all documents, papers,
writings and collateral thereunto appertaining, as well as the signatures
thereon, are genuine and in all respects what they purport to be;
(iii) it has no knowledge of any fact or circumstance which might
inhibit the making of any payment or the performance of any obligation by each
of the Account Banks under each of the relevant Assigned Accounts or impair the
validity of this Deed;
(iv) it has full title and legal authority to transfer and convey the
Assigned Property in accordance with the terms of this Deed;
(v) it has not made or suffered to exist any prior, and will not
make or suffer to exist any further, assignment, sale, transfer or security
interest of the whole or any part of the Assigned Property;
(vi) it has not subjected and will not subject the Assigned Property
or any part thereof to any defence, set-off or counterclaim;
(vii) it shall not, without the prior written consent of the Lender,
terminate, permit to be terminated, compromise or settle for cash, credit or
otherwise any of its claims under each of the Assigned
- 67 -
Accounts or discharge or release each of the relevant Account Banks for the
making of any payment or the performance of any obligation under each of the
relevant Assigned Accounts;
(viii) it shall promptly upon receipt of all present and future
receivables arising out of or in connection with any contract (whether oral or
in writing) entered into between the Borrower and any Subscriber, deposit such
receivables into each of the Assigned Accounts and shall procure that, upon
receipt by the relevant Assigned Bank of any such receivables, such receivables
are forthwith transferred into the RP Escrow Account (as defined in the Facility
Agreement);
(ix) it shall promptly pay or provide for the payment and discharge
of all taxes, assessments, levies or other governmental charges which may be
levied, assessed or imposed on or in relation to each of the Assigned Accounts
and will promptly pay or provide for the payment and discharge of all statutory
and other liens or adverse claims which may arise in relation to each such
Assigned Account;
(x) it shall promptly notify the Lender of any levy, assessment or
imposition of any levy or charge, or the filing of any lien in respect of each
of the Assigned Accounts and will take all steps necessary or which the Lender
may direct to prevent each such Assigned Account from being subjected to the
possibility of loss, forfeiture or sale;
(xi) it shall do or permit to be done such further acts and shall
execute such additional documents, agreements or notices which the Lender may
from time to time request to be done or executed for the purpose of preserving
and/or enforcing the rights of the Lender hereunder and under the Facility
Agreement and/or any Transaction Document; and
(xii) it will pay when due all amounts payable under or in relation
to each of the Assigned Accounts and comply with the terms and conditions of
each such Assigned Account and, in the event that any amounts payable under or
in connection with each such Assigned Account are paid by the Lender, it shall
immediately reimburse and indemnify the Lender in respect thereof.
PART 6
EFFECTIVENESS OF SECURITY, REMEDIES AND WAIVERS
-----------------------------------------------
43. EFFECTIVENESS OF SECURITY
-------------------------
43.1 The security constituted by or pursuant to this Deed shall be without
prejudice and in addition to and shall be independent of
- 68 -
every guarantee, indemnity or other security which the Lender may at any time
hold for the Secured Obligations and it is hereby declared that no prior
security held by the Lender over the whole or any part of the Assigned Property
shall merge in the security hereby constituted.
43.2 This Deed shall remain in full force and effect as a continuing
security until discharged by the Lender in accordance with Clause 14.
44. REMEDIES AND WAIVERS
--------------------
44.1 Any receipt, release or discharge of the security provided by, or of
any liability arising under, this Deed may be given by the Lender alone and
shall not release or discharge the Borrower from any liability for the same or
any other monies which may exist independently of this Deed. Where such receipt,
release or discharge is related only to part of the Assigned Property such
receipt, release or discharge shall not prejudice or affect the security hereby
created in relation to the remainder of the Assigned Property.
44.2 The Lender may in its discretion grant time or other indulgence to,
or make any other arrangement, variation or release with, the Borrower or any
other person (whether or not party hereto and whether or not jointly liable with
the Borrower) in respect of the Secured Obligations or of any other security
therefor or guarantee in respect thereof without prejudice either to the
security constituted by or pursuant to this Deed or to the liability of the
Borrower for the Secured Obligations.
44.3 The rights, powers and remedies provided in this Deed are cumulative
and are not, nor are they to be construed as, exclusive of any rights, powers or
remedies provided by law.
44.4 No failure on the part of the Lender to exercise, or delay on its
part in exercising, any of the rights, powers and remedies provided for by this
Deed or by law shall operate as a waiver thereof, nor shall any single or
partial waiver of any such rights preclude any further or other exercise of such
rights or the exercise of any other rights.
PART 7
------
MISCELLANEOUS
-------------
45. PROVISIONS SEVERABLE
--------------------
Every provision contained in this Deed shall be severable and distinct from
every other such provision and if at any time any one or more of such provisions
is or becomes invalid, illegal or
- 69 -
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected thereby.
46. NOTICES
-------
46.1 Except if effected orally by a bailiff jurusita, any notice to be
given to any party hereto required or permitted to be given hereunder shall be
in writing and shall be either (i) personally delivered against proper receipt,
(ii) transmitted by postage prepaid registered mail (airmail if international),
(iii) transmitted by telex, (iv) transmitted by telefax or (v) transmitted by
courier, as elected by the party giving such notice, to the addressee at the
address or telex number or telefax number indicated below or at such other
address or telex number or telefax number as such addressee shall have conveyed
by notice (effective upon receipt) to the other party.
to the Borrower: P.T. MOBILE SELULAR INDONESIA
Mashill Tower, 23rd Floor
▇▇. ▇▇▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇. ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
Phone No: (▇▇ ▇▇) ▇▇▇ ▇▇▇▇
Telefax No: (▇▇ ▇▇) ▇▇▇ ▇▇▇▇
Attention: Mr. Suprapto Pegeng /
Ms. ▇▇▇▇▇ Tanumiharja
to the Lender: NISSHO IWAI INTERNATIONAL (SINGAPORE) PTE., LTD.
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ #▇▇-▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Phone No: (▇▇) ▇▇▇ ▇▇▇▇
Telefax No: (▇▇) ▇▇▇ ▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Finance and Accounting Department
46.2 Unless otherwise provided herein, the date of notice hereunder shall
be deemed to be (i) the date of receipt if delivered personally, (ii) the date
fourteen (14) days after posting if transmitted by mail, (iii) the date of
transmission with confirmed answerback if transmitted by telex, (iv) the date of
transmission, if transmitted by telefax and such transmission is confirmed by an
activity report stating the correct number of pages sent and that such
- 70 -
transmission is correctly transmitted or (v) the date two (2) days after
delivery to the courier service if transmitted by courier.
46.3 Except if effected orally by a bailiff (jurusita) each communication
and document made or delivered by one party to another pursuant to this Deed of
Assignment shall be in the English language.
47. ASSIGNMENT OF RIGHTS
--------------------
47.1 The Lender shall have a full and unfettered right to assign the whole
or any part of the benefit of this Deed to a third party without consent and any
assignee shall be entitled to enforce and proceed upon this Deed in the same
manner as if named herein. The Borrower hereby authorises the Lender to modify
the conditions hereof and to renew this Deed to incorporate the security
interest of the assignee(s) herein as the Lender may deem proper without loss of
priority.
47.2 The Lender shall be entitled to disclose to a potential assignee or
to any person who may otherwise enter into contractual relations with the Lender
in relation to this Deed such information concerning the Borrower as the Lender
shall consider appropriate Provided Always that the Lender shall not be entitled
to disclose any information with respect to the customer lists of the Borrower
and shall further not be entitled to disclose any information contemplated
hereby to any person in the telecommunications industry in Indonesia without, in
both cases, the prior written consent of the Borrower, which consent shall not
unreasonably be withheld.
47.3 The Borrower shall have no right to assign or transfer or otherwise
deal with its rights or obligations hereunder.
48. FEES, COSTS AND EXPENSES
------------------------
The Borrower shall indemnify the Lender on demand against all reasonable
costs and expenses in connection with the exercise and enforcement of any rights
and collection of all or any part of the Assigned Property under this Deed. Any
and all such costs and expenses shall be secured by this Deed.
49. DISCHARGE
---------
If at any time the Lender shall have received full payment of all sums due
to it under the Facility Agreement and the Transaction Documents and the
Borrower is under no further actual or contingent liability to the Lender under
the Facility Agreement or any Transaction Document, the Lender will, subject
always to the prior
- 71 -
exercise by it of any of its rights hereunder, at the expense and cost of the
Borrower re-assign to the Borrower all the Assigned Property and return to the
Borrower all instruments (whether made payable to order or to bearer) and all
other commercial paper of any kind received in connection with each of the
Assigned Accounts. The Borrower hereby agrees to and shall bear the risk that
any and all of the Assigned Property or any part thereof may cease to exist.
50. GOVERNING LAW
-------------
This Deed shall be governed by and construed in accordance with the laws of
the Republic of Indonesia.
51. JURISDICTION
------------
The Borrower agrees that any legal action or proceeding arising out of this
Deed may be brought before the jakarta Pusat Court of First Instance and
irrevocably submits itself to the non-exclusive jurisdiction of such Court and
selects the Clerk's office of such Court as its general and permanent domicile.
The submission by the Borrower to such jurisdiction shall not (and shall not be
construed so as to) limit the right of the Lender to commence any proceedings
arising out of this Deed in whatsoever jurisdiction it shall deem fit nor shall
the commencement of any such legal action or proceeding in one jurisdiction
preclude the Lender from beginning any further or other such legal action or
proceeding in the same or any other jurisdiction.
IN WITNESS WHEREOF the parties hereto have caused this Deed to be duly
executed on the day and year first above written.
- 72 -
SCHEDULE ONE
LIST OF ACCOUNT BANKS AND ASSIGNED ACCOUNTS
-------------------------------------------
Name of Account Bank Details of Assigned Account
----------------------- ---------------------------
[ ] [ ]
[ ] [ ]
[ ] [ ]
- 73 -
SCHEDULE TWO
------------
PART 1
------
NOTICE OF ASSIGNMENT
--------------------
Date: [ ], 1996
To: [Insert name of relevant Account Bank]
From: P.T. Mobile Selular Indonesia
Dear Sirs
We, account holder of account number [ ] with your bank (the
"ACCOUNT") hereby give you notice that by a deed of assignment of account dated
[ ], 1996, we have assigned to Nissho Iwai International (Singapore) Pte.,
Ltd. (the "LENDER") for and on behalf of itself all our right, title and
interest under, in and to all monies now or hereafter standing to the credit of
the Account and all entitlement to interests and other rights and benefits
accruing to or arising in connection with such monies.
Accordingly, we hereby irrevocably authorise and instruct you to treat the
Lender as being entitled to exercise all our rights under the Account. The
Lender is authorised and empowered by us to withdraw, transfer or otherwise deal
with any and all of the deposits in the Account. No further moneys should be
paid to us and we are no longer authorised and empowered to deal with any or all
of the deposits in the Account.
You are hereby irrevocably and unconditionally authorised and instructed to
transfer and remit from the Account to [insert details of the RP Escrow
Account], immediately upon the crediting thereof to the Account, all sums from
time to time received in or standing to the credit of the Account.
Please note that these instructions may be revoked, supplemented or varied
in any way and at any time by the Lender, and that these instructions are not
otherwise to be revoked or varied in any way or by any person without the
consent in writing of the Lender.
Will you please acknowledge receipt of and signify your agreement to this
letter by signing and returning an acknowledgment in the enclosed form.
Yours faithfully
P.T. MOBILE SELULAR INDONESIA
By:
-------------------------------
Name:
Title:
- 74 -
PART 2
------
ACKNOWLEDGEMENT OF ASSIGNMENT
-----------------------------
To: P.T. MOBILE SELULAR INDONESIA
And to: NISSHO IWAI INTERNATIONAL (SINGAPORE) PTE., LTD.
We refer to the notice of assignment (the "Notice of Assignment") dated
[ ], 1996 from P.T. Mobile Selular Indonesia (the "BORROWER") in respect of
account number[ ] with our bank (the "ACCOUNT") and we write to
acknowledge receipt thereof and, to the extent necessary to give effect to the
deed of assignment referred to therein, to consent to the execution, delivery
and performance by the Borrower of such deed of assignment.
We agree immediately upon the crediting thereof to the Account, to remit
all amounts standing to the credit of the Account to [insert details of the RP
Escrow Account] and not to set-off to the prejudice of Nissho Iwai International
(Singapore) Pte., Ltd., the moneys in the Account against any claim which we may
have against the Borrower.
We further agree that we shall not permit any material variation,
modification or amendment of the terms and conditions of the Account without the
prior written consent of Nissho Iwai International (Singapore) Pte., Ltd., that
we shall not terminate or cancel the Account.
We confirm that we have received no other notice of assignment from the
Borrower and that we will comply with the directions to us contained in the
Notice of Assignment and with the terms of the deed of assignment referred to
therein.
Yours faithfully
[NAME OF ACCOUNT BANK]
By:
-----------------------------------
Name:
Title:
Date:
- 75 -
SIGNATURE PAGE
--------------
THE BORROWER
------------
P.T. MOBILE SELULAR INDONESIA
------------------------------------------
By:
THE LENDER
----------
NISSHO IWAI INTERNATIONAL (SINGAPORE) PTE., LTD.
------------------------------------------
By:
- 76 -
SIGNATURE PAGES
---------------
THE BORROWER
------------
P.T. MOBILE SELULAR INDONESIA
By: /s/ Mr. Suprapto Pegeng
Address: Mashill Tower, 23rd Floor
▇▇. ▇▇▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇. ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
Facsimile No: (▇▇ ▇▇) ▇▇▇ ▇▇▇▇
Attention: Mr. Suprapto Pegeng /
Ms. ▇▇▇▇▇ Tanumiharja
THE LENDER
----------
NISSHO IWAI INTERNATIONAL (SINGAPORE) PTE., LTD
By: /s/ Mr. Hiromi Imakoga
Lending Office Address: ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ #▇▇-▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile No: (▇▇) ▇▇▇ ▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Finance and Accounting Department
- 77 -
ACKNOWLEDGEMENT
---------------
The Guarantor hereby acknowledges that it has read and understands the
provisions of this Facility Agreement.
P.T. RAJASA HAZANAH PERKASA
By: Mr. Suprapto Pegeng
- 78 -
SHARE PLEDGE AGREEMENT
between
P.T. RAJASA HAZANAH PERKASA
as the Shareholder
and
NISSHO IWAI INTERNATIONAL (SINGAPORE) PTE., LTD
as the Security Agent
for and on behalf of
THE BENEFICIARIES
(as defined herein)
THIS SHARE PLEDGE AGREEMENT is made as of the 12th day of March, 1996.
---------------------------
BY:
--
P.T. RAJASA HAZANAH PERKASA (the "Shareholder")
IN FAVOR OF:
-----------
NISSHO IWAI INTERNATIONAL (SINGAPORE) PTE., LTD. a limited liability
company duly organized and existing under the laws of the Republic of Singapore
and having its legal domicile at Singapore, as the security agent (in its
capacity as such, the "SECURITY AGENT") for and on behalf of (i) itself, (ii)
Nissho Iwai International (Singapore) Pte., Ltd. as the lender under the
Existing Facility Agreement referred to below (in its capacity as such, the
"LENDER") and (iii) the financial institutions from time to time party to the
Nominated Banks Facility Agreement referred to below (in their capacity as such,
the "NOMINATED BANKS" and individually a "NOMINATED BANK").
WHEREAS:
-------
(A) Pursuant to a term loan facility agreement (as the same may from time to
time be amended, varied or supplemented, the "EXISTING FACILITY AGREEMENT")
dated 12 March, 1996 made between P.T. Mobile Selular Indonesia (the
"BORROWER") and the Lender, the Lender has agreed to make available to the
Borrower a term loan facility in the maximum aggregate amount of up to
United States Dollars Sixty Million (US$60,000,000) on the terms and
subject to the conditions set out therein.
(B) It is intended that, under a credit agreement or credit agreements
(hereinafter referred to as the "NOMINATED BANKS FACILITY AGREEMENT") to be
entered into in the future between the Borrower and other banks or
financial institutions (hereinafter referred to collectively as the
"NOMINATED BANKS" and individually as a "NOMINATED BANK") to be nominated
by the Borrower in accordance with the provisions of the Security Sharing
Agreement (as defined below), the Nominated Banks will grant to the
Borrower, upon the terms and subject to the conditions to be set out
therein, a credit facility or credit facilities in the aggregate amount of
up to Sixty Million United States dollars (US $60,000,000).
(C) Pursuant to a security sharing agreement dated 12 March, 1996 (as the same
may from time to time be amended, varied or supplemented
1
hereinafter referred to as the "SECURITY SHARING AGREEMENT") made between,
inter alia, the Borrower and the Security Agent and, as the case may be, to
be acceded to by the Nominated Banks pursuant to the provisions thereof,
each of the parties thereto other than the Borrower and the Security Agent,
amongst other things, have appointed or will appoint the Security Agent to
act on their behalf thereunder to administer and collect the proceeds of
any enforcement hereunder.
(D) As security for the Borrower's obligations under the Existing Facility
Agreement and, with effect from the delivery of the relevant Accession
Notices in accordance with the provisions hereof and of the Security
Sharing Agreement, the Nominated Bank Facility Agreement (furthermore the
Existing Facility Agreement and, subject as provided above, the Nominated
Bank Facility Agreement are collectively referred to herein as the
"FACILITY AGREEMENTS") and any other Transaction Document (as defined
below) the Shareholder has agreed to enter into this Share Pledge
Agreement.
The parties now AGREE AS FOLLOWS:
----------------
1. INTERPRETATION AND ACCESSION OF THE NOMINATED BANKS.
---------------------------------------------------
(a) Terms and expressions defined in the Security Sharing Agreement
which are used herein shall, unless otherwise defined herein or the context
otherwise requires, have the same meaning in this Share Pledge Agreement.
(b) In this Share Pledge Agreement, the following terms shall have
the meaning given to them below:
"ACCESSION NOTICE" means a notice in or substantially in the form set
out in Schedule Three signed by the Borrower and each other person contemplated
thereby:
"BANKS" shall mean the Lender and, with effect from the delivery of
the relevant Accession Notice in accordance with the provisions hereof and of
the Security Sharing Agreement, each Nominated Bank referred to therein;
"BENEFICIARIES" shall mean the Security Agent and the Banks;
"PLEDGED COLLATERAL" shall mean the Stock and all cash, securities,
declared but unpaid dividends following the occurrence of a Default, rights,
warrants and other property at any time and from time to time received,
receivable or otherwise
2
distributed (except for any declared and paid dividends) in respect of or in
exchange for any or all of the Stock;
"STOCK" shall mean (i) the shares of the capital stock of the Borrower
now owned by the Shareholder as identified in Schedule One and (ii) all shares
of the capital stock of the Borrower or other securities at any time and from
time to time received, receivable or otherwise distributed to the Shareholder in
addition to or in substitution or replacement for any shares referred to in sub-
clause (i) above; and
"TRANSACTION DOCUMENTS" shall mean the Facility Agreements, the
Security Sharing Agreement and any other agreement or document entered into by
the Borrower or any other person as contemplated under the Facility Agreements
and the Security Sharing Agreement.
(c) Each of the parties hereto agrees that upon the execution of an
Accession Notice and the delivery thereof to the Security Agent in accordance
with the provisions hereof and of the Security Sharing Agreement, each Nominated
Bank referred to therein shall become a party hereto and shall have all the
rights, benefits and obligations conferred or, as the case may be, imposed upon
it by the provisions hereof as if such Nominated Bank had been a signatory
hereto.
(d) Upon the execution and delivery of an Accession Notice in the
manner contemplated by Clause 1(C), the Security Agent shall hold this Share
Pledge Agreement and all Enforcement Proceeds arising hereunder for and on
behalf of the Beneficiaries (including each such Nominated Bank) in the manner
provided for in this Agreement.
(e) The procedures for and the conditions applicable to the accession
of Nominated Banks which are set out in the Security Sharing Agreement shall be
deemed to be incorporated herein mutatis mutandis as if the same had been set
out herein in full.
2. PLEDGE OF STOCK
---------------
2.1 In order to secure and warrant the prompt payment when due (whether at
stated maturity, by acceleration or otherwise) of all amounts now or hereafter
payable by the Borrower to the Beneficiaries under the Facility Agreements and
the other Transaction Document, the Shareholder hereby pledges, hypothecates,
assigns, transfers, sets over and delivers to the Security Agent for and on
behalf of the
3
Beneficiaries and the Security Agent hereby accepts the Stock and other Pledged
Collateral as a continuing security.
2.2 The Shareholder shall (i) immediately deliver to the Security Agent
for and on behalf of the Beneficiaries and duly endorsed for transfer all
shares, stock certificates, liquidation dividends, subscription rights or other
evidence of ownership or entitlement now held by them relating to the Stock,
including without limitation all rights or bonus issues, and (ii) immediately
upon the acquisition or receipt thereof, deliver to the Security Agent for and
on behalf of the Beneficiaries and duly endorsed for transfer all shares, stock
certificates, liquidation dividends, subscription rights or other evidence of
ownership or entitlement hereafter held by them relating to the other Pledged
Collateral, including without limitation any rights or bonus issues.
2.3 The Shareholder shall immediately give notice of this Share Pledge
Agreement in the form of the notice of pledge set out in Schedule Two to the
directors of the Borrower with a copy to the Security Agent, and shall, in
accordance with the Borrower's deed of establishment or articles of association
(or comparable documents), obtain the registration in the Borrower's shareholder
register of this Share Pledge Agreement and any other requisite authorization
from the directors, commissioners and/or shareholders of the Borrower, as
relevant, with respect to the share pledge provided herein.
2.4 In addition to its obligations under Clause 2.3, the Shareholder shall
immediately obtain the acknowledgment and consent hereto of the Borrower by
procuring its signature hereto in the spaces provided at the end of this Share
Pledge Agreement. By such signature hereto, the Borrower agrees with the
Security Agent, for and on behalf of the Beneficiaries, to immediately cause the
registration in its shareholder register of this Share Pledge Agreement.
2.5 The Shareholder further covenants and agrees to deliver to the
Security Agent for and on behalf of the Beneficiaries such further agreements,
documents and instruments, and to obtain such further registrations, as the
Security Agent may request in furtherance of the transactions herein
contemplated.
2.6 The Shareholder further covenants and agrees to pay any and all stamp
duties or other transfer tax payable upon transfer of the Pledged Collateral to
the Beneficiaries.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS
-----------------------------------------
3.1 The Shareholder represents, warrants, and covenants to the
Beneficiaries as follows:
4
(i) the Shareholder has (and, with respect to any Pledged
Collateral acquired by it after the date of this Share Pledge Agreement, will
have) good and marketable title to the Pledged Collateral free and clear of any
liens, charges, encumbrances, or security interests of any kind whatsoever
(except for the security interests granted to the Beneficiaries pursuant to this
Share Pledge Agreement) ;
(ii) the Shareholder has taken all appropriate and necessary
corporate action to authorize the execution, delivery and performance of this
Share Pledge Agreement and the representative of the Shareholder executing this
Share Pledge Agreement is fully authorized to do so;
(iii) this Share Pledge Agreement is the legal, valid, binding and
enforceable obligation of the Shareholder under Indonesian law;
(iv) save for obtaining the approval of the shareholders of the
Borrower (which has been done) no provision of the deed of establishment or
articles of association (or comparable documents) or resolutions of the
Shareholder, the Borrower, or any agreement or instrument by which the
Shareholder or the Borrower is bound, prohibits or in any way restricts the
ability of the Shareholder to pledge, hypothecate, assign, set over and deliver
the Pledged Collateral as provided hereunder;
(v) the Stock and every part thereof is validly issued;
(vi) the Pledged Collateral is not subject to any restriction on
alienation or transfer except as provided by law and rights of first refusal
under the articles of association of the Borrower and under Article 13 of the
Cooperative Agreement dated 30 November 1995 among all of the shareholders of
the Borrower;
(vii) there are no outstanding rights, options, warrants, conversion
rights, or other commitments or agreements for the purchase or acquisition of
the Pledged Collateral; and
(viii) the Shareholder shall defend the right, title and special
property of each of the Beneficiaries in and to the Pledged Collateral against
the claims and demands of all persons whatsoever.
3.2 The Shareholder covenants (i) not to sell, assign, transfer, or
otherwise dispose of, or grant any option with respect to, or pledge or
otherwise encumber (except pursuant to this Share Pledge Agreement), any of the
Pledged Collateral or any interest therein and
5
(ii) not to deal with the Pledged Collateral in any way contrary to the interest
of any Beneficiary.
4. VOTING WHILE NO DEFAULT EXISTS
------------------------------
Unless a Default has occurred and is continuing, the Shareholder shall
be entitled to vote the Stock and give consents, waivers and ratifications in
respect thereof; provided, however, that without the prior written consent of
-------- -------
the Security Agent no vote shall be cast or consent, waiver or ratification
given or action taken which would be inconsistent with any provision of this
Share Pledge Agreement, the Facility Agreements or any other Transaction
Document. All such rights of the Shareholder to vote and give consents, waivers
and ratifications shall, to the fullest extent permitted by law, cease upon the
occurrence of a Default and the Security Agent shall have the sole and exclusive
right and authority to exercise on behalf of the Beneficiaries all such rights
and powers to the fullest extent permitted by law.
5. REMEDIES IN CERTAIN CASES
-------------------------
5.1 If a Default shall have occurred and is continuing, the Security Agent
acting for and on behalf of the Beneficiaries may, without demand of payment or
notice of intention and without obtaining any decree, order or authorization of
any court, all of which the Shareholder hereby irrevocably waives, immediately
or at any other time as the Security Agent shall in its sole discretion
determine sell all or any part of the Pledged Collateral at a public sale or (to
the fullest extent permitted by law) privately, at such price and upon such
other terms and conditions as the Security Agent shall in its sole discretion
determine. The Shareholder irrevocably authorizes and empowers the Security
Agent to appear wherever necessary, to draw up and to sign deeds of sale and
purchase covering the Pledged Collateral and transfer deeds, to receive the
proceeds of any sale, to give legal receipt therefor, to apply such proceeds
against any and all costs and expenses, including notarial and legal fees,
incurred by the Beneficiaries in connection with such sale or otherwise in
carrying out the terms of this Share Pledge Agreement, then against the sums due
from the Borrower to the Beneficiaries pro-rata under the Facility Agreements
and the other Transaction Document in accordance with the Security Sharing
Agreement, to turn over to the Shareholder subject to the rights of any third
parties any balance of such proceeds remaining after the discharge of all of the
aforesaid sums due and payable to the Beneficiaries hereunder or under the other
Transaction Document (but without any obligation on the part of the
Beneficiaries to pay interest thereon), and in general to do everything
necessary or beneficial to pass good title to the Pledged Collateral to the
purchaser or purchasers thereof, including any such actions as may be
6
required to acquire from competent authorities consent for the transfer of any
Pledged Collateral, to sign and submit applications in connection therewith and
to register or cause to be registered the Stock and any other part of the
Pledged Collateral being shares of capital stock or other securities, in the
name of the purchaser or purchasers thereof on the records of the relevant
issuer. The purchaser of any of the Pledged Collateral shall hold the same
absolutely free from any claim or right of any kind of the Shareholder including
repossession, all of which rights the Shareholder hereby irrevocably waives and
releases.
5.2 If it becomes necessary for the Security Agent or its representatives
to act in the name of the Shareholder in the course of enforcing any rights
under this Share Pledge Agreement, the Shareholder irrevocably and
unconditionally authorizes and gives full power of attorney (with the right of
substitution and the right to revoke any substitution granted) to the Security
Agent and its representatives to accomplish such purpose and to do and perform
any and all acts deemed by the Security Agent or such person necessary or
incidental to the execution of those rights. This power of attorney and all
other powers conferred on the Security Agent by the Shareholder under this Share
Pledge Agreement form an integral and inseparable part of this Share Pledge
Agreement without which the Beneficiaries would not have entered into the
Facility Agreements. The authority thus given is therefore irrevocable and will
not terminate by reason of any of the occurrences mentioned in Articles 1813,
1814 and 1816 of the Indonesian Civil Code, or by reason of any operation of law
which is capable of being waived. Upon request of the Security Agent, the
Shareholder further agrees to execute such additional authorizations and powers
of attorney as may reasonably be needed for carrying out the provisions of this
paragraph. The Security Agent is authorized to delegate to its agents or
employees as it may choose the exercise of any or all of the powers conferred on
it hereunder.
6. CASH DIVIDENDS
--------------
As long as the Pledged Collateral is pledged hereunder and upon the
occurrence of a Default, all declared but unpaid dividends, and in the event the
Borrower is wound up, all liquidating dividends in respect of the Stock or such
other part of the Pledged Collateral, shall be paid to the Security Agent as
additional security for payments of amounts payable to the Beneficiaries under
the Facility Agreements and the other Transaction Document.
7. ASSIGNMENT
----------
Each Beneficiary may assign or transfer all or any of its rights and
obligations under this Share Pledge Agreement to a third
7
party or parties without the necessity of the consent of or notice to the
Shareholder. In addition to but not in limitation of any Beneficiary's right to
assign or transfer its rights and obligations under this Share Pledge Agreement,
the Shareholder hereby irrevocably and unconditionally authorizes the Security
Agent to terminate this Share Pledge Agreement and in the name of and on behalf
of the Shareholder to enter into a new share pledge agreement with parties
designated by the Security Agent as Beneficiaries with respect to the Pledged
Collateral on comparable terms and conditions. The Shareholder may not assign,
transfer or delegate any of its rights or obligations under this Share Pledge
Agreement without the prior written consent of the Security Agent, and any such
attempted assignment, transfer or delegation without such consent shall be void.
8. THE SHAREHOLDER'S OBLIGATIONS NOT AFFECTED
------------------------------------------
The security interests granted to the Beneficiaries and the
obligations and undertakings of the Shareholder under this Share Pledge
Agreement shall remain in full force and effect without regard to, and shall not
be impaired or affected by any or all of the following, with or without the
consent of or notice to the Borrower:
(i) any extension or change in the time of payment and/or manner,
place or terms of payment of all or any of the obligations secured by this Share
Pledge Agreement or any amendment to the Facility Agreements or any other
Transaction Document for the purpose of adding any provisions or changing in any
manner the rights or obligations of any Beneficiary, the Shareholder, the
Borrower or any other party thereunder, including without limitation any
increase in the amount or extension of the term of the credit facility provided
to the Borrower under the Facility Agreements; or
(ii) any exchange, release, surrender or realization upon or other
dealing with any security which is now or may hereafter be held by any
Beneficiary in connection with all or any of the obligations secured by this
Share Pledge Agreement; or
(iii) any settlement or compromise with the Borrower (unless such
settlement or compromise with the Borrower expressly provides otherwise), and/or
any other person liable thereon, of any and all of the obligations secured by
this Share Pledge Agreement and/or any subordination of the payment of the same
or any part thereof to the payment of any other debts or claims which at any
time or from time to time may be due and owing to any Beneficiary and/or any
other persons; or
8
(iv) any bankruptcy, insolvency or similar proceeding regarding the
Borrower or any other party providing security for any of the obligations
secured by this Share Pledge Agreement;
(v) any assignment or transfer by the Shareholder of its interest in
the Pledged Collateral (without prejudice to any restriction hereunder), unless
the Security Agent has expressly agreed to discharge the Shareholder from its
obligations and undertakings under this Share Pledge Agreement; or
(vi) any lack of validity or enforceability of the Facility
Agreements or any other Financing Document.
9. TERM
----
This Share Pledge Agreement shall be effective on the date hereof.
Upon the later of the termination of each Commitment (as defined in the Facility
Agreements) and the full payment of all the obligations secured hereby, the
Security Agent shall, upon the written request of the Shareholder and at the
Shareholder's expense, promptly release the Pledged Collateral to the
Shareholder together with any necessary endorsements on the stock certificates
to restore the Stock and any other Pledged Collateral being shares of capital
stock or other securities to the Shareholder unencumbered by the pledge granted
hereunder.
10. CERTAIN WAIVERS
---------------
10.1 No failure or delay on the part of any Beneficiary in exercising any
power of sale, lien or other right or remedy hereunder or otherwise and no
single or partial exercise thereof, and no notice or demand which may be given
to or made upon the Shareholder with respect to any power of sale, lien or other
right or remedy hereunder or otherwise, shall constitute a waiver thereof, or
limit or impair the right of such Beneficiary to take any action or to exercise
any power of sale, lien or other right or remedy hereunder or otherwise, or
prejudice the rights of such Beneficiary against the Shareholder in any respect.
10.2 The Beneficiaries shall have no duty or obligation to satisfy the
indebtedness secured hereby out of any other property, or pursuant to any other
pledge, undertaking or other security relating to such indebtedness and may
realize on the Pledged Collateral and/or any other security available to it in
such order or concurrently as they may see fit and the Beneficiaries will not be
required to take any recourse against any other person or persons before
realizing on the Pledged Collateral.
9
10.3 For so long as any amount remains payable or any other obligation
remains outstanding to any Beneficiary under the Facility Agreements or any
other Transaction Document, the Shareholder shall not, and hereby irrevocably
and unconditionally waives all rights it may have to, exercise in respect of any
Pledged Collateral enforced by any Beneficiary hereunder any right of
subrogation or any other right or remedy which the Shareholder may have against
the Borrower as a result of the enforcement of such Pledged Collateral.
10.4 The Shareholder hereby waives all of its rights and privileges under
the Indonesian Commercial and Civil Codes (to the extent applicable) as
necessary to give full effect to this Share Pledge Agreement, including but not
limited to Articles 1401, 1402, 1430, 1821, 1831, 1833, 1837, 1843, 1847, 1848,
1849 and 1850 of the Civil Code.
11. NOTICES
-------
11.1 Except if effected orally by a bailiff (jurusita), any notice to be
given to any party hereto required or permitted to be given hereunder shall be
in writing and shall be either (i) personally delivered against proper receipt,
(ii) transmitted by postage prepaid registered mail (airmail if international),
(iii) transmitted by telex, (iv) transmitted by telefax or (v) transmitted by
courier, as elected by the party giving such notice, to the addressee at the
address or telex number or telefax number indicated below or at such other
address or telex number or telefax number as such addressee shall have conveyed
by notice (effective upon receipt) to the other party.
to the Shareholder: P.T. RAJASA HAZANAH PERKASA
Wisma Pejatem
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇. ▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
Phone No.: (▇▇ ▇▇) ▇▇▇▇ ▇▇▇
Telefax No.: (▇▇ ▇▇) ▇▇▇▇ ▇▇▇
Attention: Mr. Suprapto Pegeng/
Ms. ▇▇▇▇▇ Tanumiharja
to the Security Agent: NISSHO IWAI INTERNATIONAL
(SINGAPORE) PTE., LTD.
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ #▇▇-▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
10
Phone No.: (▇▇) ▇▇▇▇▇▇▇
Telefax No.: (▇▇) ▇▇▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Finance and Accounting
Department
11.2 Unless otherwise provided herein, the date of notice hereunder shall
be deemed to be (i) the date of receipt if delivered personally, (ii) the date
fourteen (14) days after posting if transmitted by mail, (iii) the date of
transmission with confirmed answerback if transmitted by telex, (iv) the date of
transmission, if transmitted by telefax and such transmission is confirmed by an
activity report stating the correct number of pages sent and that such
transmission is correctly transmitted or (v) the date two (2) days after
delivery to the courier service if transmitted by courier.
11.3 Except if effected orally by a bailiff (jurusita), each communication
and document made or delivered by one party to another pursuant to this Share
Pledge Agreement shall be in the English language.
12. EXPENSES; INDEMNIFICATION
-------------------------
The Shareholder shall reimburse each Beneficiary for all costs and
expenses, including the reasonable fees and expenses of counsel, incurred in
connection with the administration and enforcement of this Share Pledge
Agreement. The Shareholder further promises and agrees to indemnify and hold
each Beneficiary harmless from all reasonable losses, claims, damages,
liabilities, penalties, judgments, suits, costs and expenses of any kind or
nature whatsoever incurred or suffered by, or asserted against it, in respect of
the execution, performance, administration or enforcement of this Share Pledge
Agreement, except that such indemnity shall not, as to any Beneficiary, be
available to the extent that such losses, claims, damages, liabilities,
penalties, judgments, suits, costs or expenses resulted from the gross
negligence or willful misconduct of such Beneficiary.
13. GOVERNING LAW
-------------
13.1 This Share Pledge Agreement shall be governed by and construed in
accordance with by the laws of the Republic of Indonesia.
14. JURISDICTION
------------
11
14.1 The Shareholder irrevocably agrees that the Jakarta Pusat Court of
First Instance shall have non-exclusive jurisdiction to hear and determine any
suit, action or proceeding and to settle any disputes which may arise out of or
in connection with this Share Pledge Agreement and, for such purposes,
irrevocably submits to the jurisdiction of such Court and selects the Clerk's
office of such Court as its general and permanent domicile. The submission by
the Shareholder to such jurisdiction shall not (and shall not be construed so as
to) limit the right of the Beneficiaries or any of them to commence any
proceedings arising out of this Share Pledge Agreement in whatever jurisdiction
it shall deem fit nor shall the commencement of any such legal action or
proceeding in one jurisdiction preclude the Beneficiaries from beginning any
further or other such legal action or proceeding in the same or any other
jurisdiction.
14.2 To the extent that the Shareholder may in any jurisdiction claim for
itself or its assets immunity from suit, execution, attachment (whether in aid
of execution, before judgment or otherwise) or other legal process and to the
extent that in any such jurisdiction there may be attributed to itself or its
assets such immunity (whether or not claimed), the Shareholder hereby
irrevocably agrees not to claim and hereby irrevocably waives such immunity to
the fullest extent permitted by the laws of such jurisdiction.
15. MISCELLANEOUS
-------------
15.1 This Share Pledge Agreement may not be amended except by an
instrument in writing signed by the Shareholder and the Security Agent. The
Shareholder undertakes to pay all present and future taxes, charges, stamp
duties and expenses in connection with the execution, delivery and performance
of this Share Pledge Agreement and related documents. The headings of this Share
Pledge Agreement are for convenience of reference only and shall not define or
limit the provisions hereof.
15.2 Any provision of this Share Pledge Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
only to the extent of such prohibition or unenforceability without invalidating
the remaining provisions hereof and without affecting the validity or
enforceability of such provisions in any other jurisdiction.
IN WITNESS whereof, the Shareholder and the Security Agent have
----------
executed and delivered this Share Pledge Agreement as of the day and year first
above written.
12
SCHEDULE ONE
------------
DESCRIPTION OF STOCK
--------------------
REPRESENTED BY
SHAREHOLDER NUMBER OF SHARES SHARE CERTIFICATE NUMBERS
------------------------------ ---------------- -------------------------
P.T. Rajasa Hazanah Perkasa 14,556,405 1 to 14,556,405
13
SCHEDULE TWO
Notice of Pledge
----------------
[ ], 1995
P.T. MOBILE SELULAR INDONESIA
Mashill Tower, 23rd Floor
▇▇. ▇▇▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇. ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇ Thanumiharja
Vice President Finance
Pledge of Shares
----------------
Dear Sirs:
We hereby notify you that, pursuant to a Share Pledge Agreement dated as of
[ ], 1996, all of the issued and outstanding shares of capital stock of
P.T. Mobile Selular Indonesia (the "BORROWER") now owned by us (as represented
by certificates numbers [ ] through [ ] have been pledged to Nissho
Iwai International (Singapore) Pte., Ltd as security agent (the "SECURITY
AGENT") for and on behalf of the Beneficiaries referred to in such Share Pledge
Agreement.
We further notify you that, pursuant to the Share Pledge Agreement, (i) any
additional shares in the Borrower from time to time owned by us are pledged
thereunder, (ii) if the Security Agent notifies you that a Default (as such term
is defined pursuant or by reference to the Share Pledge Agreement) has occurred
and is continuing, we will not be entitled to vote our shares in the Borrower
and the Security Agent shall be entitled to vote our shares and (iii) the
Security Agent is entitled to receive directly any liquidation dividends and any
declared but unpaid (but not any other) dividends payable in respect of our
shares in the Borrower pledged thereunder.
We hereby agree and authorize you upon notice from the Security Agent that
a Default (as such term is defined pursuant or by reference to the Share Pledge
Agreement) has occurred and is continuing, (i) to accept and act on any written
notice from the Security Agent in
14
respect of the exercise of the voting rights attached to our shares and (ii)
from the date hereof, to pay any liquidation dividends and any declared but
unpaid (but not any other) dividends in respect of our shares in accordance with
the written instructions, or with the prior written consent, of the Security
Agent. This authorization may not be revoked without the prior written consent
of the Security Agent.
We hereby request you to immediately cause the registration of this pledge
of shares in your shareholder register, and by your acknowledgment hereof you
confirm that you have so registered this pledge.
P.T. RAJASA HAZANAH PERKASA
By:
---------------------------
Name:
Title:
Acknowledged and Consented to:
P.T. MOBILE SELULAR INDONESIA
By:
---------------------------
Name:
Title:
15
SCHEDULE THREE
Form of Accession Notice
THIS ACCESSION NOTICE is entered into on the [ ] day of [
---------------------
], 199[ ].
BETWEEN:
-------
(1) P.T. MOBILE SELULAR INDONESIA (the "BORROWER");
(2) P.T. RAJASA HAZANAH PERKASA (the "SHAREHOLDER");
(3) [NAME OF SECURITY AGENT] (in its capacity as such, the "SECURITY AGENT");
and
(4) * [ ] (the "NOMINATED BANK")/[ ]
(the "NOMINATED BANKS REPRESENTATIVE").]
and IS SUPPLEMENTAL TO the Shared Security Documents and Security Sharing
Agreement referred to below.
(a) SECURITY SHARING AGREEMENT
--------------------------
By a security sharing agreement (the "SECURITY SHARING AGREEMENT") dated 12
March, 1996 made between P.T. Mobile Selular Indonesia (the "BORROWER") as
the Borrower, P.T. Rajasa Hazanah Perkasa (the "SHAREHOLDER") as the
Shareholder, Nissho Iwai International (Singapore) Pte., Ltd as the Lender
and as the original Security Agent, it was agreed that the Borrower and the
Shareholder would have the right to nominate banks or financial
institutions to become parties to the Shared Security Documents (as defined
therein) and the Security Sharing Agreement by signing and delivering this
Accession Notice subject to and in accordance with the provisions of the
Shared Security Documents and the Security Sharing Agreement. Terms
defined in or by reference to the Security Sharing Agreement shall, unless
otherwise defined herein, bear the same meaning when used herein.
** [The Borrower and the Shareholder have nominated [ ]
to be a Nominated Bank/have nominated [ ] the "NOMINATED BANKS
REPRESENTATIVE")
-------------------------
* Delete as appropriate
** Delete as appropriate
16
to represent [insert names of all nominated banks] as Nominated Banks for
the purposes of the Shared Security Documents and the Security Sharing
Agreement.] The details of the Facility Agreement to which this nomination
relates are set out in Schedule hereto.
(b) ACCESSION OF NOMINATED BANK
---------------------------
* [The Nominated Bank/the Nominated Banks Representative acting on behalf
of the Nominated Banks referred to above] confirms that it wishes to become
a party to the Shared Security Documents and the Security Sharing Agreement
and undertakes to comply with all the obligations expressed to be assumed
by [the Nominated Bank/Nominated Banks] under each of the Shared Security
Documents and the Security Sharing Agreement and otherwise to be bound by
the provisions thereof as if [it/they] had been an original party thereto.
The Borrower, the Shareholder, the Lender and the Security Agent (acting on
behalf of all the Beneficiaries) confirm that, upon the execution of this
Accession Notice by all the parties hereto and the delivery of an original
thereof to the Security Agent, the [Nominated Bank/Nominated Banks] shall
become a party to the Shared Security Documents and the Security Sharing
Agreements and each of the Shared Security Documents and the Security
Sharing Agreement shall be amended and construed accordingly.
(c) LAW
---
This Accession Notice shall, to the extent that it relates to the Shared
Security Documents be governed by the laws of Indonesia.
This Accession Notice shall, to the extent that it relates to the Security
Sharing Agreement, be governed by the laws of England.
IN WITNESS whereof the duly authorized representatives of the parties
----------
hereto have signed this Accession Notice the day and year first before written.
SCHEDULE
--------
[INSERT DETAILS OF FACILITY AGREEMENT TO WHICH THE NOMINATION RELATES]
---------------------
* Delete as appropriate
17
THE BORROWER
------------
P.T. MOBILE SELULAR INDONESIA
By:
------------------------------
THE SHAREHOLDER
---------------
P.T. RAJASA HAZANAH PERKASA
By:
------------------------------
THE LENDER
----------
NISSHO IWAI INTERNATIONAL (SINGAPORE) PTE., LTD
By:
------------------------------
THE SECURITY AGENT
------------------
[ ]
By:
------------------------------
[THE NOMINATED BANK/THE NOMINATED BANKS REPRESENTATIVE]
-----------------------------------------------------
[ ]
By:
------------------------------
18
SIGNATURE PAGE
--------------
THE SHAREHOLDER
---------------
P.T. RAJASA HAZANAH PERKASA
By: /s/
------------------------------
Name:
Title:
By:/s/
------------------------------
Name:
Title:
THE SECURITY AGENT
------------------
NISSHO IWAI INTERNATIONAL (SINGAPORE) PTE., LTD.
By:/s/
19