Exhibit 4.5
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Made
and entered into on this 24th day of July, 2005, by and between: |
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(2) |
BANK
LEUMI LE-ISRAEL B.M. and BANK HAPOALIM B.M. (“the
Banks”) |
| WHEREAS: |
the Borrower, on the one hand, and the Banks, on the other hand, are parties to a Facility
Agreement dated January 18, 2001, as amended pursuant to a letter dated
January 29, 2001, a Second Amendment dated January 10, 2002, a letter dated
March 7, 2002, a letter dated April 29, 2002, a letter dated September 18,
2002, as amended on October 22, 2002, a letter dated June 10, 2003, a Seventh
Amendment dated November 11, 2003 and a letter dated January 30, 2005
(“the Eighth Amendment”) (the Facility Agreement, as amended as
aforesaid, hereinafter “the Facility Agreement”); and |
| WHEREAS: |
the
Borrower and the Banks have agreed to amend the Facility Agreement in the manner set
out below (“this Ninth Amendment”), |
NOW, THEREFORE, IT IS
HEREBY AGREED AS FOLLOWS:
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1.1. |
Terms
and expressions defined in the Facility Agreement shall have the same meanings
when used in this Ninth Amendment. |
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1.2. |
References
herein to clauses and paragraphs, are to clauses and paragraphs of the Facility
Agreement. |
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1.3. |
References
herein to sections, are to sections of this Ninth Amendment. |
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Subject
to the fulfilment of the conditions precedent referred to in section 3 below, the
Facility Agreement shall, with effect from the date upon which the Banks shall, pursuant
to section 3.2 below, have confirmed in writing fulfilment of all of the conditions
precedent set out in section 3 below (if fulfilled) (such date hereinafter being
referred to as “the Ninth Amendment Closing Date”), be amended in
the manner set out below: |
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2.1. |
Clause 1
(Interpretation) shall be amended as follows: |
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2.1.1. |
clause 1.1.4
(“Advance”) shall be amended by the insertion of the
following, after the words “the Safety Net Loans” within the
parentheses therein, “and Interest Payment Loans”; |
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2.1.2. |
the
following shall be inserted in clause 1.1.22 (“Commitment”)
after the figures “US $250,000,000” wherever they
appear: |
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"plus
50% (fifty percent) of the aggregate increase in the Facility due to the Interest
Payment Loans, as referred to in clause 2.1 below"; |
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2.1.3. |
clause 1.1.34
(“Credit”) shall be amended by deleting the words “and
the Safety Net Loans” in the parentheses thereof and substituting therefor
the words “, the Safety Net Loans and the Interest Payment Loans”; |
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2.1.4. |
in
clause 1.1.51 (“Event of Default”), the words “17.2-17.20B
(inclusive)” shall be replaced with “17.2–17.20C (inclusive)"; |
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2.1.5. |
clause 1.1.96
(“Loan”) shall be amended by adding the words “or the
Interest Payment Loans” after the words “or the Reborrowed Loans”; |
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2.1.6. |
clause
1.1.97 (“Loan Maturity Date”) shall be amended as follows: |
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2.1.6.1. |
by
adding the words “or an Interest Payment Loan” after the words “Safety
Net Loans” in paragraph (c) thereof; and |
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2.1.6.2. |
by
adding thereto the following new paragraph (e) to read as follows: |
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“(e) |
each Interest Payment Loan, the first anniversary of the date on which the
Advances constituting such Interest Payment Loan are consolidated into such
Interest Payment Loan in accordance with clause 5.2.4 below;" |
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2.1.7. |
clause 1.1.118
(“Permitted Subordinated Debt”), shall be amended as follows: |
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2.1.7.1. |
the
following two sentences shall be added prior to the last sentence of paragraph (e)
thereof to read as follows: |
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“Notwithstanding
the aforegoing, with respect to Additional Subordinated Debt, the Borrower shall procure
that: (i) upon the issuance of such Additional Subordinated Debt, an amount equal to
the aggregate amount of Interest payable in cash by the Borrower thereunder from the date
of such issuance until the date immediately prior to the fourth anniversary of the
issuance of such Additional Subordinated Debt shall be deposited in the Reserve Account
and duly pledged in favour of the Banks as aforesaid; and (ii) none of such amounts
are released from the Reserve Account during such 4 (four) year period, except to pay such
Interest on such Additional Subordinated Debt as are required to be paid in cash during
such period.” |
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2.1.7.2. |
paragraph (f)
thereof shall be amended by adding the following thereto: |
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“,
provided that no Interest (other than periodic Interest at a rate not to exceed 1.5% (one
point five percent) per annum) or other amount shall be paid on any Additional
Subordinated Debt prior to the sixth anniversary of the issuance of such Additional
Subordinated Debt;" |
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2.1.7.3. |
paragraph (g)
thereof shall be amended by adding the following thereto: |
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“,
provided further that no principal or other amount (other than periodic Interest at a rate
not to exceed 1.5% (one point five percent) per annum) with respect to Additional
Subordinated Debt shall be repayable or repaid earlier than the sixth anniversary of the
issuance of such Additional Subordinated Debt;" |
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2.1.7.4. |
paragraph (j)
thereof shall be amended by adding the following sentence thereto: |
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“All
references to ‘Equity Convertible Debentures’ in this paragraph (j) above
shall also be deemed to refer to ‘Additional Subordinated Debt’;" |
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2.1.8. |
clause 1.1.133
(“Security Documents”) shall be amended by adding thereto a
new paragraph (h) to read as follows: |
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"(h) |
the
Additional Investment Undertakings;" |
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2.1.9. |
the
following new definitions shall be added: |
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2.1.9.1. |
as
new clause 1.1.3A: |
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“‘Additional
Investment
Obligors’ |
– |
means the person or entity which provides the Additional Investment
Undertaking;” |
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2.1.9.2. |
as
new clause 1.1.3B: |
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“‘Additional
Investment
Undertakings’ |
– |
means the undertakings
by any of the Lead Investors or any other
person acceptable to the
Banks, in their sole discretion, to invest
in Paid-in Equity of the
Borrower or, in respect of Additional
Subordinated Debt, in an
amount equal to an aggregate of not less
than US $23,500,000
(twenty-three million five hundred thousand
United States Dollars)),
each in the forms of Schedule 1.1.3B(1) and
Schedule 1.1.3B(2)
hereto, to be executed by such Lead Investor or
other person and delivered
to the Banks, all in accordance with the
terms and conditions set
forth in clause 16.36 below and each, ‘an
Additional Investment
Undertaking’;” |
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2.1.9.3. |
as
new clause 1.1.3C: |
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“‘Additional
Ninth
Amendment
Investment’ |
– |
means an amount of
Paid-in Equity and/or an amount of Additional
Subordinated Debt, net
of discounts, but not net of commissions,
fees and other issuance
costs, in either case, actually received by
the Borrower after May
25, 2005 and prior to the Interest Payment
Date occurring in March
2006, the aggregate amount of which shall
equal US $30,000,000
(thirty million United States Dollars). For
the removal of doubt, to
the extent that the aggregate amounts of
Paid-in Equity and/or
Additional Subordinated Debt (net of
discounts, but not net
of commissions, fees and other issuance
costs) received after May
25, 2005 and prior to the Interest Payment
Date occurring in March
2006 shall exceed US $30,000,000 (thirty
million United States
Dollars), such excess (`the Excess') shall not
constitute an Additional
Ninth Amendment Investment and shall be
taken into account towards
the Borrower's obligations to raise funds
pursuant to clause 16.27.2
below;” |
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2.1.9.4. |
as
new clause 1.1.3D: |
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“‘Additional
Subordinated
Debt’ |
– |
means Permitted
Subordinated Debt issued after May 25, 2005 and
prior to the Interest
Payment Date occurring in March 2006, provided
that no principal or other
amount (other than periodic Interest at a
rate not to exceed 1.5%
(one point five percent) per annum) shall be
repayable or repaid
earlier than the sixth anniversary of the
issuance of such Permitted
Subordinated Debt;” |
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2.1.9.5. |
as
new clause 1.1.83A: |
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“‘Interest
Payment
Loan
Availability
Period’ |
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means the period
commencing on the Ninth Amendment Closing Date and
ending on the Interest
Payment Date occurring in March 2006;” |
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2.1.9.6. |
as
new clause 1.1.83B: |
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“‘Interest
Payment
Loans’ |
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means Loans actually
made by the Banks to the Borrower pursuant to
the increase in the
Facility available to the Borrower described in
the last paragraph of
clause 2.1 below, all as set out in, and
subject to, the terms and
conditions of, clause 16.36 below;” |
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2.1.9.7. |
as
new clause 1.1.107A: |
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“‘Ninth Amendment'’ |
– |
shall bear the meaning assigned to such term in the Ninth Amendment
to this Agreement;” |
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2.1.9.8. |
as
new clause 1.1.107B: |
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“‘Ninth
Amendment
Closing
Date’ |
– |
shall bear the meaning
assigned to such term in the Ninth Amendment;“ |
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2.1.9.9. |
as
new clause 1.1.107C: |
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“‘Ninth
Amendment
Side Letter’ |
– |
means the side letter or
letters, dated the date hereof, between the
Borrower and the Banks;” |
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2.2. |
Clause 2.1
(Grant of Facility) shall be amended by adding the following as a third
paragraph thereof: |
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“In
addition, subject to, and otherwise in accordance with, the terms and conditions of
clause 16.36 below, the Banks agree to increase the Facility by an aggregate amount
equal to up to the lesser of: (a) Interest actually paid by the Borrower to the Banks
during Fiscal Year 2005; and (b) US $30,000,000 (thirty million United States
Dollars), such increased amount of the Facility to be made available by way of Interest
Payment Loans, all as set out in, and subject to the terms and conditions of,
clause 16.36 below.” |
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2.3. |
Clause 5
(Availability of Credits) shall be amended as follows: |
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2.3.1. |
clause 5.1.1(ii)
shall be amended by adding the following at the end thereof: |
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“Notwithstanding
anything to the contrary in this clause 5.1.1(ii) above, neither any Interest Payment
Loan, nor any Additional Ninth Amendment Investment, shall be taken into account for the
purposes of this clause 5.1.1(ii). For the removal of doubt, any Excess (as defined
in clause 1.1.3C above) shall be taken into account for the purposes of this
clause 5.1.1(ii).” |
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2.3.2. |
the
opening paragraph of clause 5.1.4 shall be amended to read as follows: |
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“Credits
shall be made during the Availability Period only (except that Safety Net Loans, if any,
may be provided after the Availability Period pursuant to clause 16.34 below and
Interest Payment Loans may be provided after the Availability Period during the Interest
Payment Loan Availability Period pursuant to clause 16.36 below) and then only if all
the following conditions for each specific type of Credit specified hereunder in this
clause 5 and, with respect to Safety Net Loans, also in addition to those conditions
specified in clause 16.34 below and, with respect to Interest Payment Loans, also in
addition to those conditions specified in clause 16.36 below) are fulfilled; provided
that only clauses 5.1.4.2, 5.2.3, 5.2.4, 5.2.5, 5.2.6 and 5.2.7 below and the
delivery of a Drawdown Request in respect thereof shall constitute conditions for the
making of Safety Net Loans and, provided further, that only clauses 5.1.4.2, 5.1.4.3,
5.1.4.4, 5.1.4.5 (but only with respect to the first sentence of clause 15.2, the
first two sentences of clause 15.3, clause 15.4 (except that solely for purposes
of the repetition of the representations and warranties in such clause 15.4 as a
condition to the making of the Interest Payment Loan, the words “or any of the
Material Contracts” shall be deemed to be deleted therefrom), paragraph (ii) of
clause 15.18.1 (except that solely for purposes of the repetition of the
representations and warranties in such paragraph (ii) of clause 15.18.1 as a
condition to the making of the Interest Payment Loan, the words “or under the
Material Contracts” shall be deemed to be deleted therefrom) and clause 15.28),
5.2.1, 5.2.3, 5.2.4, 5.2.5 and 5.2.7 below shall constitute conditions for the making of
Interest Payment Loans.” |
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2.3.3. |
clause 5.1.4.2
shall be amended by adding the following thereto: |
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“and
an Interest Payment Loan may be made after the Termination Date during the Interest
Payment Loan
Availability Period;" |
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2.3.4. |
clause 5.2.2
shall be amended by adding the words “or Interest Payment Loans” after
the words “Safety Net Loans”. |
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2.4. |
Clause 6.1
(Repayment of Loans) shall be amended as follows: |
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2.4.1. |
the
words “or Interest Payment Loans” shall be added after the words
“Safety Net Loans” in the first parenthetical phrase in
clause 6.1.2; and |
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2.4.2. |
a
new clause 6.1.4 shall be added to read as follows: |
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“6.1.4. |
With respect to Interest Payment Loans, the Borrower shall repay to each
Bank its Proportion of each such Interest Payment Loan on the Loan
Maturity Date for such Interest Payment Loan.” |
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2.5. |
Clause 7
(Voluntary Prepayment) shall be amended by adding the words “or
Interest Payment Loans” after the words “Safety Net Loans” in
clause 7.5. |
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2.6. |
Clause 9.1
(Interest Rate) shall be amended by adding the words “and
Interest Payment Loans” after the words “Safety Net Loans” in
clause 9.1.1 and by adding a new clause 9.1.3 thereto to read as follows: |
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“9.1.3. |
with respect to Interest Payment Loans, the sum of: (a) the rate per
annum determined by the Banks to be LIBOR on the Interest Determination
Date for such Interest Period; and (b) the percentage per annum set
out in the Ninth Amendment Side Letter;.” |
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2.7. |
Clause
11 (Commissions, Fees and Expenses) shall be amended as follows: |
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2.7.1. |
clause 11.1
shall be amended to read as follows: |
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“11.1. |
Ninth Amendment Fees |
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The
Borrower shall pay to each of the Banks, in accordance with, and on the dates set forth
in, the Ninth Amendment Side Letter, the fees set out in the Ninth Amendment Side
Letter.” |
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2.7.2. |
clause 11.2
(Commitment Commission) shall be amended as follows: |
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2.7.2.1. |
the
first sentence of clause 11.2 shall read as follows: |
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“The
Borrower shall, from and after the date of signature of the Ninth Amendment to this
Agreement through the end of the Interest Payment Loan Availability Period, pay to each
of the Banks a Commitment commission at the rate per annum as specified in the Ninth
Amendment Side Letter on such Bank’s Available Commitment with respect to Interest
Payment Loans from time to time as from the date set out in the Ninth Amendment Side
Letter until the last day of the Interest Payment Loan Availability Period.” |
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2.7.2.2. |
the
third and fourth sentences shall be deleted. |
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2.8. |
Clause
16.27 (“Investments in the Borrower”) shall be amended as
follows: |
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2.8.1. |
the
date “December 31, 2005” in clause 16.27.2 shall be
replaced with the date “June 30, 2006"; and |
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2.8.2. |
a
new clause 16.27.4 shall be inserted to read as follows: |
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“16.27.4. |
Notwithstanding anything to the contrary in this Agreement (including in
this clause 16.27 above), any amounts of Paid-in Equity or Additional
Subordinated Debt received by the Borrower after May 25, 2005 as part
of the Additional Ninth Amendment Investment shall not be taken into
account for the purposes of clause 16.27.2 above. For the removal of
doubt, any Excess (as defined in clause 1.1.3C above) shall be taken
into account for the purposes of clause 16.27.2 above.” |
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2.9. |
Clause 16.29
(Financial Undertakings) shall be amended as follows: |
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2.9.1. |
by
adding the words “and Interest Payment Loans” after the words
“disregarding, for this purpose only, Safety Net Loans” within
the parenthetical phrase in the last paragraph thereof; and |
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2.9.2. |
by
adding the following new paragraph at the end thereof: |
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“With
respect only to each of the third and fourth Quarters of Fiscal Year 2005, Fiscal Year
2005, and to each of the first, second and third Quarters of Fiscal Year 2006,
Schedules 1.1.106 and 16.29 hereto shall be replaced and be in the respective forms
to be delivered in accordance with the Ninth Amendment. For the removal of doubt, with
respect to the first and second Quarters of Fiscal Year 2005, Schedule 16.29 shall
continue to be in the form of Appendix A to the Eighth Amendment and, with respect to
any period after the third Quarter of Fiscal Year 2006, Schedule 16.29 shall continue
to be in the form delivered on the Seventh Amendment Closing Date.” |
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2.10. |
A
new clause 16.34.6 shall be inserted to read as follows: |
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“16.34.6. |
Notwithstanding clause 16.27.4 above, for the purposes of this
clause 16.34 only, any amount on account of the Additional Ninth
Amendment Investment actually received by the Borrower shall be deemed to
be an amount raised under clause 16.27.2 above. For the removal of
doubt, without derogating from the previous sentence, clause 16.34
and the Safety Net Undertaking shall be of no more force should TIC invest
at least US $14,000,000 (fourteen million United States Dollars) in
connection with the Additional Ninth Amendment Investment. “ |
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2.11. |
A
new clause 16.36 shall be added to read as follows: |
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“16.36. |
Interest Payment Loans; Additional Investment Undertakings |
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16.36.1. |
The
Borrower shall procure that it shall receive the Additional Ninth Amendment
Investment in full by the following times: |
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16.36.1.1. |
an
amount of at least US $23,500,000 (twenty-three million five hundred
thousand United States Dollars), by not later than October 31, 2005;
and |
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16.36.1.2. |
the
remainder of the Additional Ninth Amendment Investment, by no later than the
Interest Payment Date occurring in March 2006. |
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Without
derogating from the Borrower’s obligations as aforesaid, the parties record that the
Additional Investment Obligors have provided Additional Investment Undertakings in favour
of the Banks (such undertakings, for the removal of doubt, being only to the Banks and not
to the Borrower, its shareholders or any third party) to invest an aggregate of
US $23,500,000 (twenty-three million five hundred thousand United States Dollars)) in
respect of Paid-in Equity of the Borrower, or in respect of Additional Subordinated Debt,
by way of a rights offering to be completed by the Borrower which the Borrower hereby
undertakes to complete. The Borrower acknowledges, for the removal of doubt, that:
(a) such Additional Investment Undertakings are in addition to, and do not in any way
derogate from, the obligations and undertakings of the Borrower, the Safety Net Obligor
and the Lead Investors, as applicable, as described in clauses 16.27, 16.34 and 16.35
above, provided that should TIC invest at least US $14,000,000 (fourteen million US
Dollars) in connection with an Additional Ninth Amendment Investment the Safety Net
Undertaking shall be of no more force and effect as provided for in clause 16.34.6
above; and (b) in the event of any Default by the Borrower, the Banks shall have
available to them, subject to clause 16.34, if applicable, all remedies under the Finance
Documents (including pursuant to clauses 17.21, 17.22, 17.23, 17.24 and 17.25 below)
and nothing in this clause 16.36 nor the fact of the giving of the Additional
Investment Undertakings to the Banks shall derogate from the Banks’ rights and
remedies as aforesaid. |
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The
Borrower shall, within 10 (ten) days after each investment in Paid-in Equity and/or
Additional Subordinated Debt, submit to the Banks a certificate from the Auditors (such
certificate to be in a form satisfactory to the Banks), confirming the amount of such
Additional Ninth Amendment Investment actually received by the Borrower. |
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16.36.2. |
Subject
to compliance by the Borrower with all of the provisions of this Agreement
relating to the making available of Interest Payment Loans (including the
remainder of this clause 16.36 with respect to Interest Payment Loans),
the Banks shall make available the Interest Payment Loans in no more than
3 (three) separate Advances during the Interest Payment Loan Availability
Period as follows: |
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16.36.2.1. |
1
(one) Advance of Interest Payment Loans from and after the Ninth Amendment
Closing Date through and including the Business Day immediately prior to
the Interest Payment Date occurring in September 2005, in an amount not to
exceed the amount of Interest actually paid by the Borrower to the Banks
in March and June 2005; |
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16.36.2.2. |
1
(one) Advance of Interest Payment Loans made from and after the Interest
Payment Date in September 2005 through and including the Business Day
immediately prior to the Interest Payment Date occurring in December 2005,
in an amount not to exceed the sum of: (a) the amount of Interest
paid by the Borrower to the Banks in September 2005 (if such Advance is
made after such Interest Payment Date) or payable by the Borrower to the
Banks in September 2005 (if such Advance is made on such Interest Payment
Date); plus (b) any amount that the Borrower was entitled to borrow
under clause 16.36.2.1 above but did not so borrow; and |
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16.36.2.3. |
(one)
Advance of Interest Payment Loans made from and after the Interest Payment
Date in December 2005 through the end of the Interest Payment Loan
Availability Period in an amount not to exceed the sum of: (a) the
amount of Interest paid by the Borrower to the Banks in December 2005 (if
such Advance is made after such Interest Payment Date) or payable by the
Borrower to the Banks in December 2005 (if such Advance is made on such
Interest Payment Date); plus (b) any amount that the Borrower was
entitled to borrow under clause 16.36.2.1 or clause 16.36.2.2
above but did not so borrow. |
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16.36.3. |
For
the avoidance of doubt, and notwithstanding anything to the contrary in this
Agreement and without derogating from all the other remedies available to
the Banks under the Finance Documents, as aforesaid, the Banks shall have
no obligation to make any Interest Payment Loans after October 31,
2005, unless the Banks shall have received a certificate or certificates
from the Auditors as aforesaid, confirming the actual receipt by the
Borrower of an amount of Additional Ninth Amendment Investment equal to at
least US $23,500,000 (twenty-three million five hundred thousand
United States Dollars) or, if the aggregate Interest Payment Loans which
have been made and are requested exceed such amount, then equal to the
full amount of US $30,000,000 (thirty million United States Dollars).” |
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2.12. |
Clause
17 (Default) shall be amended as follows: |
| |
2.12.1. |
in
clause 17.1 (Events of Default), the words “clause 17.20B” shall
be deleted and replaced with the words “clause 17.20C”;
and |
| |
2.12.2. |
a
new clause 17.20C shall be inserted to read as follows: |
| |
“17.20C. |
Additional Investment Undertakings |
| |
For
so long as the obligations of the Additional Investment Obligors to make investments in
accordance with Additional Investment Undertakings shall not have been completely
fulfilled in accordance with the terms of such Additional Investment Undertakings: |
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17.20C.1. |
Any
of the representations and warranties by any Additional Investment Obligor
in any Additional Investment Undertaking to which it is a party are
incorrect or misleading in any material respect. |
| |
17.20C.2. |
If
the amount to be invested pursuant to any Additional Investment Undertaking
shall not have been invested in the Borrower in accordance with the terms
of such Additional Investment Undertaking. |
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17.20C.3. |
Other
than with respect to a default described in clause 17.20C.2 above,
any Additional Investment Obligor fails to comply with any undertaking or
obligation contained in any Additional Investment Undertaking to which it
is a party and, if such default is capable of remedy within such period,
within 7 (seven) days after the earlier of the Additional Investment
Obligor becoming aware of such default and receipt by the Additional
Investment Obligor of written notice from the Banks requiring the failure
to be remedied, that Additional Investment Obligor shall have failed to
cure such default. |
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17.20C.4. |
Any
Additional Investment Undertaking shall cease to be in full force and effect
in any material respect or shall cease to constitute the legal, valid,
binding and enforceable obligation of any Additional Investment Obligor
party to it or it shall be unlawful for any Additional Investment Obligor
to perform any of its material obligations under any of the Outside
Investment Undertakings. |
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17.20C.5. |
Any
Additional Investment Obligor repudiates the Additional Investment
Undertaking to which it is a party. |
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17.20C.6. |
There
occurs with respect to any Additional Investment Obligor any of the events
or circumstances referred to in clauses 17.7–17.9 above, such
clauses to be read as if references to ‘the Borrower’ therein
were instead references to ‘any Additional Investment Obligor’. |
| |
Notwithstanding
the provisions of this clause 17.20C, for the removal of doubt, no Additional
Investment Undertaking shall create any rights or obligations in favour of the Borrower or
any of its shareholders.” |
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2.13. |
Clause 18.2 (Default Interest) shall be amended by deleting the
words “or 9.1.2” in paragraph (b) thereof and substituting
therefor the words “, 9.1.2 or 9.1.3” and deleting the words
“(namely, 2.5% (two point five percent))". |
| |
2.14. |
New Schedules 1.1.3B(1) and 1.1.3B(2) (Forms of Additional Investment
Undertaking) in the forms respectively attached as Appendices A
and B hereto shall be added to and form part of the Facility Agreement. |
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2.15. |
Each of the following Schedules shall be replaced by the Ninth Amendment Closing
Date by updated Schedules as referred to in section 3.1.8 below (the
updated Schedules, for the removal of doubt, to be in form and substance
acceptable to the Banks and to bear the same heading (Schedule number) as those
replaced): Schedule 1.1.42 (Form of Drawdown Request);
Schedule 1.1.105 (List of Named Directors and Officers);
Schedule 1.1.106 (Net Cash Flow) and Schedule 16.29
(Financial Undertakings), but only with respect to the third and
fourth Quarters of Fiscal Year 2005, Fiscal Year 2005 and the first and second
Quarters of Fiscal Year 2006. |
| |
3.1. |
This Ninth Amendment is subject to the conditions precedent that the Banks shall
have received, by not later than September 30, 2005 (or such earlier date
expressly set out with respect thereto below), the following documents,
information, matters and things in form and substance satisfactory to the Banks: |
| |
3.1.1. |
the
Additional Investment Undertakings duly executed by each Additional
Investment Obligor; |
| |
3.1.2. |
the
written consent, acknowledgment and waiver by TIC, pursuant to its
Undertaking to the Banks, dated November 11, 2003 (“the
Safety Net Undertaking”): |
| |
3.1.2.1. |
consenting
to all of the amendments to the Facility Agreement made by this Ninth
Amendment; |
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| |
3.1.2.2. |
amending
clauses 2.3 and 5.2 of the Safety Net Undertaking to delete the date
“June 30, 2006” wherever it appears therein and
substituting, in each case, the date “December 31, 2006",
therefor; and |
| |
3.1.2.3. |
without
derogating from clause 16.34.6, waiving any right of TIC to terminate
the Safety Net Undertaking on account of, or in relation to, any of the
amendments to the Facility Agreement made by this Ninth Amendment; |
| |
3.1.3. |
the
Ninth Amendment Side Letter executed as at the date hereof by the Borrower; |
| |
3.1.4. |
copies
of resolutions of the Board of Directors of the Borrower, evidencing
approval of this Ninth Amendment (including, specifically, of the
Additional Investment Undertakings) and authorising designated officers of
the Borrower to execute, deliver and perform this Ninth Amendment and to
give all notices and take all other action required to be given or taken
by the Borrower under this Ninth Amendment; |
| |
3.1.5. |
payment
on the date of signature of this Ninth Amendment of the fees and costs
referred to in section 5 below, that are payable on or before such
date; |
| |
3.1.6. |
an
opinion of ▇▇▇▇▇ ▇▇▇▇▇ & Co., Advocates, the Borrower’s external
legal counsel, addressed to the Banks; |
| |
3.1.7. |
an
updated certificate by the Auditors confirming investments made in accordance
with clauses 16.27.2 and 16.36 through and as of the Ninth Amendment
Closing Date; |
| |
3.1.8. |
each
updated Schedule referred to in section 2.15 above; |
| |
3.1.9. |
evidence
that this Ninth Amendment and all documentation pursuant thereto,
including, the Additional Investment Undertakings, required, if required,
to be stamped for stamp duty purposes, has been stamped and the relevant
duty payable has been paid; and |
| |
3.1.10. |
all
of the Borrower’s representations and warranties given pursuant to this
Ninth Amendment shall be accurate in all material respects as of the Ninth
Amendment Closing Date, as if made on the Ninth Amendment Closing Date. |
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| |
3.2. |
In the event that the aforegoing conditions precedent are not all fulfilled by
September 30, 2005, then, save for section 5 below, this Ninth
Amendment shall no longer be of any force or effect and the Facility Agreement
shall remain unaltered and in full force and effect and, save as aforesaid, no
party shall have any claim arising out of or in connection with this Ninth
Amendment. The Banks undertake that promptly following the fulfilment to the
satisfaction of the Banks of all the conditions precedent referred to in
section 3.1 above, the Banks shall confirm to the Borrower in writing that
the conditions precedent have been fulfilled and this Ninth Amendment has become
effective. |
| 4. |
REPRESENTATIONS
AND WARRANTIES |
| |
The
Borrower acknowledges that the Banks have agreed to this Ninth Amendment in full reliance
on the representations and warranties set forth in the first sentence of clause 15.2,
the first two sentences of clause 15.3, clause 15.4 (except that solely for
purposes of the repetition of the representations and warranties in such clause 15.4
as a condition to this Ninth Amendment, the words “or any of the Material
Contracts” shall be deemed to be deleted therefrom), paragraph (ii) of
clause 15.18.1 (except that solely for purposes of the repetition of the
representations and warranties in such paragraph (ii) of clause 15.18.1 as a
condition to this Ninth Amendment, the words “or under the Material Contracts”
shall be deemed to be deleted therefrom) and clause 15.28, which are deemed to be
repeated on the date of signature of this Ninth Amendment, on the Ninth Amendment Closing
Date and on each date of drawdown of Interest Payment Loans. |
| |
For
the removal of doubt, the term “Finance Documents” when referred to in the
representations and warranties set out in clause 15, includes also this Ninth
Amendment. |
| |
Without
derogating from the obligations of the Borrower to pay the Banks commissions, fees and
expenses pursuant to the Facility Agreement and the Ninth Amendment Side Letter and in
addition thereto, and for the removal of doubt, the Borrower shall pay to the Banks on the
date of signature of this Ninth Amendment and thereafter on demand legal fees for external
counsel (and out-of-pocket expenses incurred by such counsel) incurred by the Banks in
connection with the negotiation, preparation and execution of this Ninth Amendment. |
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| 6. |
AMENDMENT
TO THE FACILITY AGREEMENT |
| |
Subject
to the fulfilment of the conditions precedent set out in section 3.1 above and with
effect from the Ninth Amendment Closing Date, the Facility Agreement is hereby amended as
expressly set out in this Ninth Amendment above. This Ninth Amendment shall be read
together with the Facility Agreement as one agreement and, save as expressly amended by
this Ninth Amendment, the Facility Agreement shall remain unaltered and in full force and
effect. |
| |
Following
the Ninth Amendment Closing Date, the Banks and the Borrower shall discuss (but without
any obligation on the part of the Banks to agree) the rescheduling of the repayment dates
of the Interest Payment Loans. |
IN WITNESS WHEREOF, the parties
have signed this Ninth Amendment on the date first mentioned above.
for: TOWER SEMICONDUCTOR LTD.
By: ________________________
Title: ________________________
|
|
| for: BANK LEUMI LE-ISRAEL B.M |
for: BANK HAPOALIM B.M. |
By: ________________________ |
By: ______________________ |
Title: ________________________ |
Title: ______________________ |
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