UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 1)*
Netscape Communications Corporation
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(Name of Issuer)
Common Stock
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(Title of Class of Securities)
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(CUSIP Number)
Alphonso A. Christian, II, Esq.
Hogan & Hartson L.L.P.
555 Thirteenth Street, N.W.
Washington, D.C. 20004
(202) 637-5696
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(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
November 29, 1997
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box |_|.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
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This Amendment No. 1 amends the Schedule 13D filed on December 4, 1997 by
His Royal Highness Prince Alwaleed Bin Talal Bin Abdulaziz Al Saud ("HRH")
relating to the Common Stock of Netscape Communications Corporation (the
"Issuer"). Capitalized terms used herein without definition have the meaning set
forth in HRH's prior Schedule 13D report.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to
Securities of the Issuer
Item 6 is hereby amended as follows:
Except as described herein, there are no contracts, arrangements,
understandings, or relationships (legal or otherwise) between HRH and any person
with respect to any securities of the Issuer.
Each of Kingdom 62 and Kingdom 63 have entered into a loan facility with
Citibank, N.A., Jersey, Channel Islands branch (the "Lender"), which facility is
secured by all securities, cash and other collateral held by such companies in
an account at Citibank (Luxembourg) S.A. The Common Stock of the Issuer reported
herein is included among the securities held in such account.
Each loan facility provides that all sums owing thereunder are payable on
demand; however, the Lender does not presently intend to make such a demand
unless an Event of Default (as defined in each loan facility) has occurred. All
sums owing under each loan facility are due on November 24, 1998 or such later
date as agreed by the Lender and Kingdom 62 or Kingdom 63, as applicable.
Item 7. Materials to be Filed as Exhibits
Item 7 is hereby amended to file the following exhibits:
1. Facility Letter between the Lender and Kingdom 62.
2. Pledge Agreement for Third Party Collateral between Citibank (Luxembourg)
S.A. and Kingdom 62.
3. Facility Letter between the Lender and Kingdom 63.
4. Pledge Agreement for Third Party Collateral between Citibank (Luxembourg)
S.A. and Kingdom 63.
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Signature
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After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this Amendment No. 1 to Schedule 13D
is true, complete and correct.
March 27, 1998 /s/ HRH Prince Alwaleed Bin Talal Bin Abdulaziz Al Saud
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Date H.R.H. Prince Alwaleed Bin Talal
Bin Abdulaziz Al Saud
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EXHIBIT 1
Citibank, N.A.
P.O. Box 728
38 Esplanade
St. Helier
Jersey JE4 8ZT
Channel Islands THE CITIBANK PRIVATE BANK
Fax: 44 1534 608190
Telex: 4192436
Thomas M. Rilko Direct Line No. 44 1534 608142
Our ref: PBG/TMR/HP
21st November 1997
Kingdom 5KR-62
Your Highness:
We are pleased to offer you the Facility (the "Facility") specified below on the
terms and conditions contained herein and in the Appendix hereto. Terms used
herein shall have the meanings given to them in the Appendix unless the context
otherwise requires.
1. FACILITY
The Facility is an uncommitted loan facility subject to the following limits:
a) At no time may the amount outstanding under the Facility (whether by way of
principal, interest or otherwise) exceed the loanable value of the
securities, cash and other collateral held for your account by our
Luxembourg Branch on account no. 158322 (the "Collateral"). In this letter
"loanable value" means the value which we (in our absolute discretion)
attached to the Collateral; and
b) At no time may the aggregate amount outstanding by way of principal under
the uncommitted loan facilities made available by us today to you, Kingdom
5 KR-63, Kingdom 5 KR-13 and Kingdom 5 KR-15 exceed US$390,000,000 (Three
Hundred and Ninety Million United States Dollars).
We will decline to permit any drawing under the Facility if we believe that
either of the above limits will or may be exceeded.
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2. SECURITY
The Facility will be secured by:
a) a TPC (Third Party Collateral) for an amount acceptable to the Bank, to be
provided by Citibank N.A. Luxembourg; and
b) such other documentation as Citibank (Luxembourg) S.A. or we may require.
3. PURPOSE
The purpose of the Facility is to provide you with funds for investments in
public or private securities. The Facility shall be used for this purpose and no
other purpose whatsoever.
4. DRAWDOWN OF FACILITY
Provided that the conditions precedent specified in Paragraph 2 of the Appendix
are satisfied on or before 30th November 1997, the Facility shall become
available for drawdown. We shall require not less than 2 business days notice
from Citibank (Luxembourg) S.A. or any other specified party of any proposed
drawing containing such information and particulars as we may from time to time
stipulate.
Any unutilised portion of the Facility may be cancelled by us at any time on 2
days notice.
5. INTEREST
a) Interest shall be charged on a daily basis on the amount of the Facility
utilised from time to time at 0.375% per annum above 1, 2, 3 or 6 months
LIBOR applicable to the currency and term of borrowing from time to time on
the portion of the Facility which is secured by New York Stock Exchange
listed companies; and/or
b) Interest shall be charged on a daily basis on the amount of the Facility
utilised from time to time at 0.5% per annum above 1, 2, 3 or 6 months
LIBOR applicable to the currency and term of borrowing from time to time on
the portion of the Facility which is secured by ADR companies (American
Depository Receipt); and/or
c) Interest shall be charged on a daily basis on the amount of the Facility
utilised from time to time at 0.75% per annum above 1, 2, 3 or 6 months
LIBOR applicable to the currency and term of borrowing from time to time on
the portion of the Facility which is secured by NASDAQ listed companies.
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6. PREPAYMENT
You may prepay all or part of such drawings, subject to a minimum repayment of
US$1,000,000 (One Million United States Dollars) provided however that if you
prepay during an interest period, you shall concurrently pay any breakage costs
if applicable stipulated by us on the amount prepaid, calculated by reference to
the remaining term of the current interest period at the rate prevailing at that
time on such drawings.
7. REPAYMENT
Notwithstanding anything elsewhere in this letter, all sums owing shall be
forthwith repayable on demand made by us at any time on you. However we do not
presently intend to make such a demand unless an Event of Default (as set out at
clause 13 of the Appendix) has occurred.
Without prejudice to the above paragraph, if no demand has been made all sums
owing hereunder shall be repaid on 24th November 1998 or such later date as we
may agree.
Please sign and return the attached copy of this letter to confirm that you have
read this letter and the Appendix and that you accept the offer of the Facility
upon and subject to the terms and conditions set out in this letter and the
Appendix.
Yours faithfully
For an on behalf of
Citibank N.A.
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/s/ Thomas M. Rilko
Thomas M. Rilko
Vice President
PRIVATE BANKING GROUP
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cc: Ted Desmarais, Hogan & Hartson
cc: Mike Jensen, Citibank, Geneva
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Kingdom 5KR-62
Facility Letter dated 21st November 1997
ACCEPTANCE
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I have read the Facility Letter, of which the above is a true copy and the
Appendix attached thereto and I accept the Facility upon and subject to the
Terms and Conditions set out in the Facility Letter and the Appendix.
/s/ HRH Prince Alwaleed Bin Talal Bin Abdulaziz Al Saud
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On behalf of Kingdom 5KR-62
Dated: November 29, 1997
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APPENDIX
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1. Interpretation
(a) In the Facility Letter, the following words and expressions shall have the
following meanings:
"we," "our", "ours" means Citibank N.A.
and "us"
"you", "your" and means the person or persons who have signed
"yours" the Facility Letter or on whose behalf the
Facility Letter has been signed.
"Account" means any account opened by you with us at any
time.
"Base Currency" means the currency in which the Facility is
denominated, or in the case of multicurrency
option Facilities and FX Lines means United
States Dollars.
"Business Day" means a day on which banks in Jersey are open
for business, which for the avoidance of doubt
shall not include Saturdays, Sundays or bank
and public holidays.
"Close-Out Date" means any Business Day on which FXCs are
closed-out pursuant to paragraph 14 below.
"Facility" means the facility or facilities granted to
you pursuant to the Facility Letter.
"Facility Letter" means the facility letter to which this
Appendix is attached.
"FX Line" means the foreign exchange line (if any) made
available pursuant to the Facility Letter.
"FXC or FXCs" means a Foreign Exchange Contract or Foreign
Exchange Contracts entered into as a result of
the utilisation of the FX Line and shall
include put and call options between any of
the currencies stipulated in the Facility
Letter and purchased or written for your
account.
"Guarantee" means the guarantee to be given by the
Guarantor (if any) in a form acceptable to us.
"Guarantor" means the guarantor or guarantors (if any)
required to give a Guarantee.
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"Margin" means the margin by which the net realisable
value of the security for the Facility shall
exceed the amount of your liabilities under
the Facility from time to time.
"Major Currencies" means United States Dollars, Deutschmarks,
Swiss Francs, Japanese Yen, French Francs and
Pounds Sterling.
"Matched FXCs" means two or more FXCs between the same
currencies and for the same delivery date
where one or more of the FXCs is for a sale
and one or more of them is for a purchase of
such same currencies; and call options written
and call options purchased between the same
currencies, with the same final exercise date
and at the same exercise price; and put
options written and put options purchased
between the same currencies, with the same
final exercise date and at the same exercise
price. There shall also be treated as matched
FXCs call options written and put options
purchased where the underlying currency to be
delivered is the subject of an FXC (other than
an option) under which you will be obliged to
take delivery of that underlying currency
before the earliest date on which delivery
would be required under the option.
"Other Currencies" means Australian Dollars, Canadian Dollars,
ECUs, Dutch Florins, Spanish Pesetas or any
other currency which we may agree in writing.
"Property" means any immovable property charged to us
pursuant to the Security Documents.
"Security" means the security specified in the Facility
Letter.
"Security Documents" means such security documentation as we
consider necessary in order to provide us with
security for the Facility.
"Settlement Date" means in the case of FXCs other than options,
that date on which under an FXC we are to
deliver to you a pre-determined amount of a
specific cleared currency and on which you are
to deliver to us a pre-determined amount of
another specific cleared currency both such
deliveries relating to the same FXC. In the
case of FXCs which are options the "Settlement
Date" shall mean that date on which the
underlying option currencies are to be
delivered.
"Trust Instrument" means the Instrument of trust (if any)
declaring the trusts for the purposes of which
we are offering to make available
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the Facility to you in your capacity as
trustee.
(b) Expressions referring to the singular shall include the plural and
expressions referring to the masculine shall include the feminine and
neuter, and vice versa in each case.
(c) Words importing persons shall include bodies of persons whether corporate
or unincorporate.
(d) All headings should be ignored in construing this Facility Letter.
2. Conditions Precedent
The Facility shall become available for utilisation by you after we shall
have received in form and substance satisfactory to us, no later than the
date specified in the Facility Letter:
(a) the enclosed copy of the Facility Letter duly accepted by you;
(b) such relevant information as we may reasonably request including a Net
Worth/Sources/Uses of Funds Statement;
(c) each of the Security Documents duly executed;
(d) where you are a corporate body, a certified copy of your Memorandum
and Articles of Association and Certificate of Incorporation (or the
equivalent documents);
(e) where you are a corporate body, a certified copy of the Resolutions of
your Directors authorising the acceptance of the Facility and the
execution of the Security Documents;
(f) where the Facility is being made available to you in your capacity as
trustee a certified copy of the instrument(s) constituting the trust
and evidencing your appointment as such trustee and a certified copy
of trustee resolutions authorising the acceptance of the Facility and
the execution of the Security Documents;
(g) where the Facility is an FX Line, a notice given at least two Business
Days in advance specifying the proposed date for each foreign exchange
or option transaction, it being clearly understood that we shall not
be obliged to enter into any particular FXC at any time if we, in our
sole discretion, determine not to do so and shall not be obliged to
give any reason therefor;
(h) Where the Facility permits drawings in currencies other than Pounds
Sterling or exchanges between currencies (whether or not including
Pounds Sterling), a notice given at least two Business Days in advance
specifying the proposed date for each transaction;
(i) such legal opinions as we shall consider are necessary to satisfy
ourselves that you have capacity to accept the Facility and that the
Security Documents are legally
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valid and binding obligations of you duly enforceable in accordance
with these terms;
(j) such other documentation as we shall reasonably consider necessary
including Account Opening Documentation;
(k) Payment of any facility fees as specified in the Facility Letter.
3. Undertakings
You undertake to us that until the termination date or until all monies
which may become due by you to us pursuant to the Facility are paid:
(a) your liabilities pursuant to this facility will rank at least equally
and rateably (pari passu) in point of priority and security with all
your other liabilities (both actual and contingent) except:
(i) liabilities which are subject to liens or rights of set off
arising in the normal course of your business and the amount of
which will not in our opinion, prejudice your ability to perform
you obligations hereunder; and,
(ii) liabilities which are preferred solely by Jersey Law and not by
reason of any security interest;
and you will not create or permit to exist over any of your assets any
security interest other than is permitted under (i) above unless the
benefit of the security interest is, upon its creation or arising,
extended equally and rateably to our satisfaction to your liabilities
under the Facility Letter and so that, in default of such extension,
the person entitled to the security interest shall (if he had notice
of this undertaking) hold the security interest pro tanto upon trust
for us;
(b) where you are a corporate body, you will carry on and conduct your
business and affairs in a proper and efficient manner;
(c) you shall not effect any of the following without our prior consent in
writing:
(i) sell or otherwise dispose of any material part of your assets
or, where you are a corporate body, any material part of your
business;
(ii) enter into any partnership or joint venture agreement;
(iii) where you are a corporate body, enter into any contract
outside your normal course of business;
(iv) where you are a corporate body, enter into any transaction,
arrangement or agreement with or for the benefit of any of
your directors;
(v) create or issue any debenture, mortgage, charge or any other
security.
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(d) where applicable, you will notify us forthwith if you become aware of
the occurrence of an Event of Default or any event which with the
giving of a notice and/or the lapse of time and/or the relevant
determination would constitute such an Event of Default.
(e) where security is being taken by the charging of immovable property:
(i) you shall maintain insurance on the Property in accordance with
good commercial practice, against such risks and for such amounts
and with such insurance company as may be acceptable to us and,
without prejudice to the generality of the foregoing and unless
otherwise agreed in writing, such insurance shall include cover
for damage arising from fire, explosion, storm, tempest,
earthquake, impact, subsidence, aircraft and articles dropped
therefrom, malicious damage, bursting and overflowing of pipes
and tanks, riot and civil commotion, flooding, lightning and oil
leakage, and you shall ensure that our interest in the Property
is noted thereon; and
(ii) you shall not without our prior written consent (which may in our
absolute discretion be refused) alter the structure of the
Property or enter into any contract for the refurbishment or
renovation of the Property or in any way deal with the Property
including, but without prejudice to the generality of the
foregoing, the granting of leases or tenancies of the Property.
4. Further Representations and Warranties
By acceptance of the Facility you represent and warrant to us that:
(a) you have the capacity to enter into, exercise your rights and perform
and comply with the obligations under the Facility Letter and the
Security Documents;
(b) the obligations expressed as being assumed by you under the Facility
Letter and the Security Documents constitute your valid, legal and
binding obligations enforceable against you in accordance with their
respective terms;
(c) neither the execution and delivery of the form of acceptance endorsed
on the Facility Letter or the Security Documents by you nor the
performance or observance of any of your obligations under this Letter
or the Security Documents will conflict with, or result in any breach
of, any law, statute, regulation, indenture, mortgage, trust deed,
agreement or other instrument, arrangement, obligation or duty by
which you are bound or cause any limitation on any of your powers,
howsoever imposed, or on your right or ability to exercise such
powers, to be exceeded;
(d) no Event of Default has occurred and remains unremedied;
(e) in the event that you are acting as a trustee, all necessary action
has been taken to appoint you as trustee of the trusts declared by the
Trust Deed and you have the power and authority as such trustee to
accept the Facility and to give the security contemplated by the
Security Documents;
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(f) you are not in default under any law, statute, regulation, indenture,
mortgage, trust deed, agreement or other instrument, arrangement,
obligation or duty by which you are bound;
(g) there exists no mortgage, charge, pledge, lien, encumbrance or other
security interest whatsoever over the whole or any part of your
assets, present or future; and
(h) no litigation, administrative or arbitration proceeding before or of
any court, government authority or arbitrator is presently taking
place, pending or threatened against you or against any of your
assets.
These representations and warranties shall be deemed to be repeated on
the date of the first and (where applicable) any subsequent
draw-downs. For the avoidance of doubt, each utilisation of an FX Line
shall be deemed to be a separate draw-down.
5. Valuation of Property and Surveyor's Reports
Where security is being taken by the charging of immovable property:
(a) At any time during the continuance of the Facility we shall have the
right at your expense to appoint an independent valuer to value the
Property the valuation being made on such basis as we in our absolute
discretion shall determine.
(b) If at any time in our opinion the net realisable value of the Security
would not exceed the amount required to discharge all amounts owed
under the Facility by the applicable Margin, we may, without prejudice
to any rights to demand repayment of the whole of the Facility,
require you, on such terms as we shall determine, to:
(i) reduce the amounts owing under the Facility by such amount as we
shall specify; or
(ii) provide such further security acceptable to us, as shall in
either case restore the Margin.
(c) In addition we shall have the right at your expense to appoint at any
time during the continuance of the Facility an independent firm of
chartered surveyors to report to us on the structural condition of the
Property or on such other matter as we in our absolute discretion see
fit.
6. Margin
We shall from time to time determine the Margin required by us and in the event
that the net realisable value of the Security does not in our opinion provide us
with the required Margin upon our request you shall, without prejudice to any of
our rights to demand repayment restore the Margin either by reducing the amounts
of your liability to us or providing us with further security acceptable to us.
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7. Authorisation
In the event of any sum becoming due by you to us pursuant to the Facility
you hereby authorise us to debit any of your accounts with the amount due
or, in our absolute discretion, to sell all or any securities held in any
capacity by us for you in order to realise the amount due and you hereby
agree that we shall be under no obligation to give any prior notice of any
action taken pursuant to the authority hereby conferred and you hereby
indemnify us against all actions, proceedings, losses, costs, damages and
other demands which you may suffer or incur by reason of or arising as a
result of our taking any action hereby authorised.
8. Costs and Expenses
You will forthwith pay to us on demand all reasonable expenses, including
legal fees, incurred by us in connection with your application for the
Facility, the granting of the Facility, the preparation and/or the approval
of the Security Documents and any approvals thereunder or variations
thereof and their preservation or enforcement or attempted preservation or
enforcement.
9. Interest
In the case of Pounds Sterling liabilities, interest will accrue on a 365
day year basis. In any other case, interest will accrue on a 360 day year
basis.
10. Taxes
All payments to be made by you hereunder shall be made free and clear of
any deduction or withholding; if you are required by law to make any
deduction or withholding on account of tax or otherwise from any such
payment, the sum due from you in respect of such payment shall be increased
to the extent necessary to ensure that, after the making of such deduction
or withholding, we receive a net sum equal to the sum which we would have
received had no deduction or withholding been made.
11. Increased Costs
If by reason of:
(a) any change in law or in its interpretation of administration; and/or
(b) compliance with any request from or requirement of any central bank or
other fiscal, monetary or other authority;
the cost to us or funding or maintaining the Facility is increased or we
become liable to make any payment (not being a payment of tax on our
overall net income) or any increased payment on or calculated by reference
to the amount of the Facility, you shall from time to time on our demand
promptly pay to us amounts sufficient to indemnify us against, as the case
may be, such increased cost or such liability. If we intend to make a claim
pursuant to this paragraph for indemnification against an increased cost,
we shall notify you of the event by reason of which we are entitled to do
so. Any determination by us of the amount of any such increased cost shall
be conclusive and binding on you for all purposes.
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12. Rights Cumulative, Waiver
Our rights under the Facility Letter are cumulative, may be exercised as
often as we consider appropriate and are in addition to our rights under
the general law. Our rights (whether arising under the Facility Letter or
under the general law) shall not be capable of being waived or varied
otherwise than by an express waiver or variation in writing and in
particular any failure to exercise or any delay in exercising any of such
rights shall not operate as a waiver or variation of that or any other such
right; any defective of partial exercise of any such right shall not
preclude any other or further exercise of that or any other such rights;
and no act or course of conduct or negotiation on our part shall in any way
preclude us from exercising any such right or constitute a suspension or
any variation of such right.
13. Events of Default
If any of the following events occur:
(a) you fail to pay any amount due under the Facility Letter on the due
date or on demand, if so payable;
(b) you fail to observe or perform any obligations under the Facility
Letter or under the Security Documents as the case may be or under any
undertaking or arrangement entered into in connection therewith;
(c) any representation, warranty or statement which is made (or
acknowledged to have been made) by you in connection with the Facility
proves to be incorrect in any material respect;
(d) any indebtedness of you or the Guarantor for borrowed money becomes
due and payable prior to its specified maturity, you or the Guarantor
are in breach or default under any agreement or document evidencing or
regulating such indebtedness, you or the Guarantor fail to pay any sum
due to be paid by you under the Facility or the Guarantor under the
Guarantee, you or the Guarantor are unable or fail to admit your or
the Guarantor's inability to pay your or the Guarantor's debts as they
fall due, or commit any act or omission which is indicative of
insolvency or make a general assignment for the benefit of, or a
composition with, your or the Guarantor's creditors;
(e) an encumbrancer takes possession or a trustee, receiver or similar
officer is appointed of any of your or the Guarantor's assets or a
distress or any form of execution is levied or forced upon any of your
or the Guarantor's assets;
(f) it becomes unlawful for you or the Guarantor or us to perform the
obligations under the Facility Letter or any of the Security
Documents;
(g) any circumstances arise which give reasonable grounds in our opinion
for the belief that you may not (or may be unable to) perform your
obligations under the Facility Letter;
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(h) you or the Guarantor become or are declared bankrupt as defined in the
Interpretation (Jersey) Law 1954 or commit any act indicative of
bankruptcy;
(i) any Security Documents shall cease to be enforceable by us;
(j) in the case of FX Lines only, at any time we determine that the net
cumulative book losses attributable to open FXCs, including Matched
FXCs, exceeds 40% of the lendable value of the Security; or
(k) in the case of FX Lines only, at any time within two Business Days of
the date of maturity of any open FXC which is unmatched, we are of the
opinion that you have insufficient funds in accounts on which we are
entitled to draw for the purpose of meeting liabilities under that
FXC;
then we may at any time thereafter by notice to you declare that the
Facility, together with accrued interest and all amounts payable hereunder
are immediately due and payable and the Facility shall thereupon terminate
(or, in the case of an FX Line, we may close out or match, in accordance
with the Close-Out Formula, sufficient FXCs to restore the margin).
14. Close-Out Formula
Closing out of FXCs other than option shall be conducted in the following
manner (the "Close-Out Formula"):
14.1 (a) each balance of currency (other than the Base Currency) with a
Settlement Date on or after the Close-Out Date shall be notionally
converted into the Base Currency at the appropriate market rate (as
conclusively determined by us) at which on the Close-Out Date, we
could enter into a contract in the foreign exchange market to buy that
other currency in exchange for the Base Currency for delivery on the
appropriate Settlement Date;
(b) in respect of each Settlement Date, the balance of the Base Currency
account for such Settlement Date shall be consolidated with the Base
Currency sum calculated in accordance with paragraph (a) above to
determine the net amount to be paid or received on such Settlement
Date;
(c) each Base Currency amount calculated in accordance with paragraph (b)
above will be notionally discounted so as to calculate the Base
Currency sum which, when aggregated with the amount of interest which
could be earned on that sum if it were placed on a deposit for the
period from the Close-Out Date to the Settlement Date at the
appropriate Eurodollar rate (to be conclusively determined by us),
assuming (in the case of Pounds Sterling) a year with 365 days or (in
the case of any other currency) a year with 360 days, would equal the
relevant Base Currency amount;
(d) on the basis that an amount outstanding to your credit is an amount
owed by us to you and an amount outstanding to your debit is an amount
owing from you to us,
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the aggregate amount of all the Base Currency amounts calculated in
accordance with paragraph (a), (b) and (c) above as owed by you to us,
will be deducted from the aggregate amount of all Base Currency
amounts so calculated as owing to you; and
(e) the amounts determined shall be payable by us if that deduction
produces a positive figure and by you if that deduction produces a
negative figure.
14.2 In the case of FXCs consisting of options, closing-out shall be conducted
by purchasing or writing from or with you FXCs on such terms as we in our
absolute discretion think fit (the "Option Close-Out Formula"), but with a
view to there arising Matched FXCs, in which case you shall be bound
accordingly.
14.3 We shall not be liable to you for any loss or other damage which you may
suffer as a result of our exercise of any of our rights under this
agreement in respect to Closing-Out or entering into any other transactions
with a view to protecting our position in accordance with this clause.
14.4 Following close out, all obligations of us to you, or of you to us in
respect of FXCs shall be automatically and immediately satisfied,
discharged and replaced by an obligation upon you or us, as the case may
be, to pay an amount determined in accordance with the Close-Out Formula or
the Option Close-Out Formula.
15. Maturing FXCs
On the maturity of FXCs, all entries will be passed over the Account unless
otherwise agreed by us.
16. Netting Off
16.1 Immediately upon any FXC other than a put or call option written or
purchased by you or for your account being entered into resulting in there
being Matched FXCs:
(a) the amount of each currency bought under a Matched FXC will be netted
against the aggregate amount of that currency sold under all FXCs with
which it is matched and vice versa, and
(b) all obligations under each such FXC will be automatically satisfied
and discharged and replaced by an obligation to pay the net aggregate
amount resulting from such netting of each currency on the Settlement
Date to you or us as the case may be.
16.2 Immediately upon any put or call option being written or purchased
resulting in there being Matched FXCs, the amount of each currency the
subject of the purchased call option which is a Matched FXC shall be netted
against the aggregate amount of that currency to be delivered under call
options written, or put options purchased with which it is matched, and
vice versa, and the amount of each currency the subject of a put option
written which is a Matched FXC will be netted against the aggregate amount
of that currency the subject of all call options purchased and vice-versa.
10
<PAGE>
16.3 In the case of put options or call options which are Matched FXCs, the
liability under such Matched FXCs shall be mutually extinguished and
neither of us shall thereafter be entitled to call on the other for the
exercise of such options.
16.4 FXCs shall be capable of being matched in part, in which case the FXC
covering the larger amount of underlying currency shall be deemed to be
divided into two parts: the part that is matched and the part that is
unmatched. Upon the one part becoming matched, the balance shall be treated
as a new FXC.
17. Set off
At all times, whether before or after the right to close-out FXCs (if any)
has arisen in addition to any other of our rights we shall be entitled to
apply any sum due from us to you on any account whatsoever and in whatever
currency in or towards satisfaction of any sum due to us from you.
18. Withdrawals
Any withdrawal made pursuant to the Facility shall be made on a Business
Day and shall be deemed to constitute a repeat of the warranties set out in
this Appendix.
19. Notices
Any notices or communications under the Facility Letter shall be in writing
and shall be delivered personally or sent by post, telex or cable to the
address given in the Facility Letter or at such other addresses which may
be notified in writing. Proof of posting or despatch of any notice or
communications to you shall be deemed to be proof of receipt:
(a) in the case of a letter three Business Days after having been posted;
(b) in the case of a telex, facsimile or cable, on the Business Day
immediately following the date of despatch.
20. Invalidity
If any of the provisions in the Facility Letter become invalid, illegal or
unenforceable in any respect under any law, the validity and legality or
enforceabliity of the remaining provisions shall not in any way be affected
or impaired.
21. Benefit of Facility Letter
(a) We may assign any of our rights under the Facility Letter but you may
not assign any of your rights.
(b) We may disclose to a potential assignee of all or any part of our
rights under the Facility Letter such information about you as we think
fit.
22. Joint and Several Liability
Where you comprise more than one person, all representations, warranties
and undertakings given by you pursuant to the Facility shall be deemed to
be given by each of you jointly and severally and all liabilities of you to
us pursuant to the Facility shall be deemed to be the joint and several
liabilities of each of you.
11
<PAGE>
23. Entire Agreement
The Facility Letter and this Appendix shall constitute the entire agreement
between you and us in respect of the Facility and shall replace all
existing oral and written agreements between you and us in respect hereof.
In the event of any inconsistency between the terms and conditions set out
in this letter and our standard terms applying generally to FXCs or the
terms of any specific FXC, the Facility Letter shall prevail.
24. Governing Law
The Facility Letter is governed by and shall be construed in accordance
with the Laws of Jersey and by accepting the Facility you are deemed to
submit to the non-exclusive jurisdiction of the Royal Court of Jersey.
12
EXHIBIT 2
PLEDGE AGREEMENT FOR THIRD PARTY COLLATERAL Account base number 158322
THE "ACCOUNT"
for Credit Facilities issued by units other than Citibank (Luxembourg) S.A.
- --------------------------------------------------------------------------------
BETWEEN Client name KINGDOM 5KR 62 LTD
THE UNDERSIGNED: Permanent address C/O MAPLES & CALDER
---------------------------------------------------------------
P.O. BOX 309 GRAND CAYMAN, CAYMAN ISLANDS, BWI
---------------------------------------------------------------
hereinafter referred to as the "PLEDGOR";
AND
Name Citibank N.A., Jersey
---------------------------------------------------------------
Permanent address 38, Esplanade St Helier, Jersey JE4 8ZT, C.I.
---------------------------------------------------------------
---------------------------------------------------------------
hereinafter referred to as the "PLEDGEE";
THE FACILITY (A) WHEREAS the pledgee grants to the pledgor a facility
(hereinafter the "FACILITY", which terms shall include
principal, interest, costs, commissions, fees and currency
exchange risk) of a total principal amount of:
all credit facilities granted by the pledgee to the pledgor
---------------------------------------------------------------
All references herein to "pledgor/borrower" shall be read as
references to the PLEDGOR.
OR (B) WHEREAS the pledgee grants to (where different to the pledgor)
Name/First Name
---------------------------------------------------------------
Permanent address
---------------------------------------------------------------
---------------------------------------------------------------
Account base number
---------------------------------------------------------------
hereinafter referred to as the "BORROWER"
a facility (hereinafter the "FACILITY"), which terms shall
include principal, interest, costs, commissions, fees and
currency exchange risk of a total principal amount of: (in
----
numbers) all credit facilities (in letters) granted by the
---------------------------------------------------------------
pledgee to the borrower
---------------------------------------------------------------
the terms and conditions of which the pledgor declares being
fully aware of.
All references herein to "pledgor/borrower" shall be read as
references to the BORROWER.
THE PLEDGE WHEREAS the pledgor grants in favour of the pledgee a pledge
(hereinafter the "pledge on deposit") under the form of a
deposit of a countervalue of: (in numbers)
---------------------------------------------------------------
(in letters)
---------------------------------------------------------------
(hereinafter the "deposit", which term shall include interest
accruing to the deposit).
WHEREAS the pledgor has placed the deposit with CITIBANK
(LUXEMBOURG) S.A., (hereinafter the "DEPOSITARY") in the
account opened by the pledgor with the depository, the balance
of which, if different from the deposit, is also placed in
favour of the pledgee (this balance shall be considered as
being comprised in the term "deposit" as used hereinafter), to
secure any and all payments due by the pledgor/borrower to the
pledgee under the facility.
WHEREAS, furthermore, the pledgor is willing to grant in favour
of the pledgee a pledge (hereinafter the "pledge on
securities") on all securities, debentures, notes, bonds,
certificates of deposit, as well as all stock, share capital
and any other negotiable rights of property, whether in
nominative or in bearer form, whether transferable or not,
which the pledgor holds now, or may hold in the future, with
the depository (hereinafter the "securities", which term shall
include all rights and dividends accruing to such securities)
to secure the pledgor's/borrower's payment obligations under
the facility as well as all other present or future
indebtedness of any pledgor/borrower vis-a-vis the pledgee.
Except if expressly otherwise provided for, all securities
shall be considered as being fungible.
WHEREAS the facility shall at all times be secured by the
aggregate of the pledge on deposit and the pledge on
securities.
WHEREAS the facility may never exceed the loanable value of the
assets pledged by the pledgor to the pledgee.
WHEREAS the loanable value of the securities and the deposit
shall be calculated and monitored on a permanent basis by the
depositary as agent of the pledgee in accordance with the
margin table set out in appendix hereto. The depositary
reserves the right to make any necessary changes to the margin
table based on the quality, liquidity, marketability and
concentration of the pledged assets. The margin table of the
depositary (as applicable from time to time) is at the
permanent disposal of the pledgor/borrower by the depositary.
WHEREAS the depositary shall be the agent of and represent the
pledgee in any acts and deeds to be undertaken or signed in
order to give effect to this pledge agreement. The depositary
shall for instance be empowered to accept this pledge agreement
on behalf of the pledgee, to monitor the loanable value, and to
request and accept an additional pledge of securities and/or a
pledge of deposit, pursuant to clause 3.2. of this agreement.
<PAGE>
WHEREAS for all acts and deeds under this pledge agreement, the
depositary (even if acting in his own name) shall be deemed to
act as an agent for the pledgee.
NOW AND THEREFORE THE PARTIES HAVE AGREED AS FOLLOWS:
1. PLEDGE ON DEPOSIT
1.1 The pledgor hereby pledges the deposit in favour of the pledgee.
1.2 The depositary is empowered, upon instruction of the pledgee, to convert at
any time all or part of the deposit into certificates of deposit, held by the
depositary in safe custody for the pledgor and pledged in favour of the pledgee
pursuant to clause 2.1 hereafter.
1.3 The pledge shall remain in full force and effect until the pledgor/borrower
has fulfilled all its obligations under the facility, in principal, interest,
commissions, fees and other charges including the repayment of all judicial and
extra judicial costs incurred for the recovery of any amounts due under the
facility.
1.4 The pledgor hereby agrees that this pledge agreement be notified to the
depositary at the pledgor's exclusive costs and expenses in the appropriate way
under Luxembourg law.
1.5 If the pledgor/borrower does not fulfill, on due date, any commitment or
obligation towards the pledgee under the facility, or shall not have fully
complied within eight days from the date of a summons containing a formal
request to satisfy the claims of the pledgee under the facility, the pledgee
shall be authorized to demand payment, transfer and delivery of the deposit in
view to satisfy its secured claims, in accordance with applicable legal
provisions.
2. PLEDGE ON SECURITIES
2.1 The pledgor hereby pledges all securities to the pledgee, who accepts.
2.2 The depositary holds the securities in surety in a special pledge account
and guarantee for the due and punctual payment of all amounts of principal,
interest, commissions, fees and other charges including the repayment of all
judicial and extra judicial costs incurred for the recovery of any amounts due
under the facility or of any debt which is now due and payable or may become in
the future due and payable to the pledgee by the pledgor/borrower, as and when
the same shall become due and payable.
2.3 The pledgor hereby represents and warrants:
2.3.1 that the securities are free and clear of any claims, mortgages, pledges,
liens or other encumbrances of any nature whatsoever, and that the pledgor will
not sell and will keep the securities fee and clear of any claims, mortgages,
pledges, liens or other encumbrances of any nature whatsoever;
2.3.2 that the present agreement is not contrary to any legal or contractual
obligation imposed upon the pledgor, and that it creates valid and binding
obligations upon him.
2.4 If and when a formal notice of repayment to the borrower and the pledgor by
the pledgee or the depository, by way of a registered letter, has remained
unsatisfied for eight days, the pledgee may instruct the depositary to sell the
securities, in accordance with applicable legal provisions, and assign the
proceeds by privilege to the reimbursement of the said debt due by the
pledgor/borrower to the pledgee upon transfer of the sales proceeds by the
depository to the pledgee.
3. GENERAL
3.1 If the outstanding amount of the facility exceeds or threatens to exceed at
any time, the loanable value of the deposit and the securities pledged in favour
of the pledgee, the pledgor undertakes, within five days of first demand, to
pledge, mortgage, transfer and assign to the pledgee, and deliver to the
depository, further securities and/or a further deposit into the account, to the
extent necessary for the facility no longer to exceed or to threaten to exceed
the loanable value of the deposit and the securities.
3.2 In the event of failure to comply with the obligation undertaken pursuant to
clause 3.1 above, the pledgor herewith unconditionally and irrevocably empowers
the pledgee to take all appropriate measures, and in particular to effect all
transactions in order to reduce the outstanding liabilities to the loanable
value of the deposit and the securities, or to render due and payable any sums
due to the pledgee by the pledgor, and to enforce this pledge agreement pursuant
to clause 1.5 and 2.4 above.
3.3 The pledgee shall not be limited in its discretion to enforce the pledge on
deposit or the pledge on securities, whether simultaneously or alternatively,
whether in full or in part. The enforcement, in full or in part, of the mere
pledge on deposit, or of the pledge on securities, as the case may be, does to
constitute a waiver by the pledgee to any of his rights under the pledge on
securities and/or under the pledge on deposit, as the case may be.
3.4 For the duration of this pledge agreement, the pledgor irrevocably empowers
the depositary to give the pledgee from time to time full disclosure concerning
the details of the securities and the deposit. All communications by the pledgee
to either the borrower or the pledgor shall be deemed to be provided to both.
3.5 The obligations of the pledgor hereunder shall not be affected or discharged
in case of the occurrence of any of the following events:
- any time, indulgence, waiver or consent at any time given to the
pledgor/borrower or any other person;
- any amendment to any of the facility documents or to any other
security or any guarantee or indemnity for the facility;
- the enforcement or absence of enforcement of claims for or the release
of the facility or any other security, guarantee or indemnity for the
facility;
- the dissolution, amalgamation, bankruptcy, reconstruction or
re-organization of the pledgor/borrower or any other person.
3.6 The pledgee is explicitly authorized to communicate openly and assign its
rights hereunder to all other Citicorp/Citibank entities which are granting
credit to the pledgor/borrower or which may be in possession of assets securing
such credit or which are a party with or on behalf of the pledgor/borrower in
foreign exchange or securities transactions.
3.7 Generally, the pledgor shall bear all costs, expenses, taxes, duties and
similar charges which shall be incurred to the pledgee by virtue of this pledge
agreement now or in the future, including any costs of notification, even to
foreign counties, and including all court and legal expenses arising out of the
<PAGE>
enforcement of the pledgee's rights, and the pledgor hereby irrevocably
authorizes the pledgee and empowers the depository to debit such amount from the
account.
3.8 This pledge agreement shall in all respects be governed by and construed in
accordance with the laws of the Grand Dutchy of Luxembourg.
3.9 This pledge agreement is subject the depository's general terms and
conditions, which the pledgor declares having read and accepted, and which form
an integral part of this pledge agreement inasfar as applicable and consistent
with this pledge agreement.
3.10 The parties to this pledge agreement agree that any legal action or
proceedings arising out of or in connection with this pledge agreement is
submitted to the jurisdiction of the Courts of Luxembourg, Grand Duchy of
Luxembourg. Notwithstanding this, the pledgee reserves the right to commence
legal proceedings before any other competent jurisdiction. For the purpose of
this agreement the pledgor elects domicile at the registered office of the
despositary.
So done in duplicate
Place Date
---------------------------------------------------------------
KINGDOM 5KR 62 LTD
---------------------------------------------------------------
The pledgor The depositary (Citibank (Luxembourg)
S.A.) in its own name for acceptance and
as agent for the pledgee.
EXHIBIT 3
Citibank, N.A.
P.O. Box 728
38 Esplanade
St. Helier
Jersey JE4 8ZT
Channel Islands THE CITIBANK PRIVATE BANK
Fax: 44 1534 608190
Telex: 4192436
Thomas M. Rilko Direct Line No. 44 1534 608142
Our ref: PBG/TMR/HP
21st November 1997
Kingdom 5KR-63
Your Highness:
We are pleased to offer you the Facility (the "Facility") specified below on the
terms and conditions contained herein and in the Appendix hereto. Terms used
herein shall have the meanings given to them in the Appendix unless the context
otherwise requires.
1. FACILITY
The Facility is an uncommitted loan facility subject to the following limits:
a) At no time may the amount outstanding under the Facility (whether by way of
principal, interest or otherwise) exceed the loanable value of the
securities, cash and other collateral held for your account by our
Luxembourg Branch on account no. 158323 (the "Collateral"). In this letter
"loanable value" means the value which we (in our absolute discretion)
attached to the Collateral; and
b) At no time may the aggregate amount outstanding by way of principal under
the uncommitted loan facilities made available by us today to you, Kingdom
5 KR-62, Kingdom 5 KR-13 and Kingdom 5 KR-15 exceed US$390,000,000 (Three
Hundred and Ninety Million United States Dollars).
We will decline to permit any drawing under the Facility if we believe that
either of the above limits will or may be exceeded.
<PAGE>
2. SECURITY
The Facility will be secured by:
a) a TPC (Third Party Collateral) for an amount acceptable to the Bank, to be
provided by Citibank N.A. Luxembourg; and
b) such other documentation as Citibank (Luxembourg) S.A. or we may require.
3. PURPOSE
The purpose of the Facility is to provide you with funds for investments in
public or private securities. The Facility shall be used for this purpose and no
other purpose whatsoever.
4. DRAWDOWN OF FACILITY
Provided that the conditions precedent specified in Paragraph 2 of the Appendix
are satisfied on or before 30th November 1997, the Facility shall become
available for drawdown. We shall require not less than 2 business days notice
from Citibank (Luxembourg) S.A. or any other specified party of any proposed
drawing containing such information and particulars as we may from time to time
stipulate.
Any unutilised portion of the Facility may be cancelled by us at any time on 2
days notice.
5. INTEREST
a) Interest shall be charged on a daily basis on the amount of the Facility
utilised from time to time at 0.375% per annum above 1, 2, 3 or 6 months
LIBOR applicable to the currency and term of borrowing from time to time on
the portion of the Facility which is secured by New York Stock Exchange
listed companies; and/or
b) Interest shall be charged on a daily basis on the amount of the Facility
utilised from time to time at 0.5% per annum above 1, 2, 3 or 6 months
LIBOR applicable to the currency and term of borrowing from time to time on
the portion of the Facility which is secured by ADR companies (American
Depository Receipt); and/or
c) Interest shall be charged on a daily basis on the amount of the Facility
utilised from time to time at 0.75% per annum above 1, 2, 3 or 6 months
2
<PAGE>
LIBOR applicable to the currency and term of borrowing from time to time on
the portion of the Facility which is secured by NASDAQ listed companies.
6. PREPAYMENT
You may prepay all or part of such drawings, subject to a minimum repayment of
US$1,000,000 (One Million United States Dollars) provided however that if you
prepay during an interest period, you shall concurrently pay any breakage costs
if applicable stipulated by us on the amount prepaid, calculated by reference to
the remaining term of the current interest period at the rate prevailing at that
time on such drawings.
7. REPAYMENT
Notwithstanding anything elsewhere in this letter, all sums owing shall be
forthwith repayable on demand made by us at any time on you. However we do not
presently intend to make such a demand unless an Event of Default (as set out at
clause 13 of the Appendix) has occurred.
Without prejudice to the above paragraph, if no demand has been made all sums
owing hereunder shall be repaid on 24th November 1998 or such later date as we
may agree.
Please sign and return the attached copy of this letter to confirm that you have
read this letter and the Appendix and that you accept the offer of the Facility
upon and subject to the terms and conditions set out in this letter and the
Appendix.
Yours faithfully
For an on behalf of
Citibank N.A.
/s/ Thomas M. Rilko
Thomas M. Rilko
Vice President
PRIVATE BANKING GROUP
cc: Ted Desmarais, Hogan & Hartson
cc: Mike Jensen, Citibank, Geneva
3
<PAGE>
Kingdom 5KR-63
Facility Letter dated 21st November 1997
ACCEPTANCE
I have read the Facility Letter, of which the above is a true copy and the
Appendix attached thereto and I accept the Facility upon and subject to the
Terms and Conditions set out in the Facility Letter and the Appendix.
/s/ HRH Prince Alwaleed Bin Talal Bin Abdulaziz Al Saud
- ---------------------------------------------------=---
On behalf of Kingdom 5KR-63
Dated: November 29, 1997
<PAGE>
APPENDIX
1. Interpretation
(a) In the Facility Letter, the following words and expressions shall have the
following meanings:
"we," "our", "ours" means Citibank N.A.
and "us"
"you", "your" and means the person or persons who have signed
"yours" the Facility Letter or on whose behalf the
Facility Letter has been signed.
"Account" means any account opened by you with us at any
time.
"Base Currency" means the currency in which the Facility is
denominated, or in the case of multicurrency
option Facilities and FX Lines means United
States Dollars.
"Business Day" means a day on which banks in Jersey are open
for business, which for the avoidance of doubt
shall not include Saturdays, Sundays or bank
and public holidays.
"Close-Out Date" means any Business Day on which FXCs are
closed-out pursuant to paragraph 14 below.
"Facility" means the facility or facilities granted to
you pursuant to the Facility Letter.
"Facility Letter" means the facility letter to which this
Appendix is attached.
"FX Line" means the foreign exchange line (if any) made
available pursuant to the Facility Letter.
"FXC or FXCs" means a Foreign Exchange Contract or Foreign
Exchange Contracts entered into as a result of
the utilisation of the FX Line and shall
include put and call options between any of
the currencies stipulated in the Facility
Letter and purchased or written for your
account.
"Guarantee" means the guarantee to be given by the
Guarantor (if any) in a form acceptable to us.
"Guarantor" means the guarantor or guarantors (if any)
required to give a Guarantee.
1
<PAGE>
"Margin" means the margin by which the net realisable
value of the security for the Facility shall
exceed the amount of your liabilities under
the Facility from time to time.
"Major Currencies" means United States Dollars, Deutschmarks,
Swiss Francs, Japanese Yen, French Francs and
Pounds Sterling.
"Matched FXCs" means two or more FXCs between the same
currencies and for the same delivery date
where one or more of the FXCs is for a sale
and one or more of them is for a purchase of
such same currencies; and call options written
and call options purchased between the same
currencies, with the same final exercise date
and at the same exercise price; and put
options written and put options purchased
between the same currencies, with the same
final exercise date and at the same exercise
price. There shall also be treated as matched
FXCs call options written and put options
purchased where the underlying currency to be
delivered is the subject of an FXC (other than
an option) under which you will be obliged to
take delivery of that underlying currency
before the earliest date on which delivery
would be required under the option.
"Other Currencies" means Australian Dollars, Canadian Dollars,
ECUs, Dutch Florins, Spanish Pesetas or any
other currency which we may agree in writing.
"Property" means any immovable property charged to us
pursuant to the Security Documents.
"Security" means the security specified in the Facility
Letter.
"Security Documents" means such security documentation as we
consider necessary in order to provide us with
security for the Facility.
"Settlement Date" means in the case of FXCs other than options,
that date on which under an FXC we are to
deliver to you a pre-determined amount of a
specific cleared currency and on which you are
to deliver to us a pre-determined amount of
another specific cleared currency both such
deliveries relating to the same FXC. In the
case of FXCs which are options the "Settlement
Date" shall mean that date on which the
underlying option currencies are to be
delivered.
"Trust Instrument" means the Instrument of trust (if any)
declaring the trusts for the purposes of which
we are offering to make available
2
<PAGE>
the Facility to you in your capacity as
trustee.
(b) Expressions referring to the singular shall include the plural and
expressions referring to the masculine shall include the feminine and
neuter, and vice versa in each case.
(c) Words importing persons shall include bodies of persons whether corporate
or unincorporate.
(d) All headings should be ignored in construing this Facility Letter.
2. Conditions Precedent
The Facility shall become available for utilisation by you after we shall
have received in form and substance satisfactory to us, no later than the
date specified in the Facility Letter:
(a) the enclosed copy of the Facility Letter duly accepted by you;
(b) such relevant information as we may reasonably request including a Net
Worth/Sources/Uses of Funds Statement;
(c) each of the Security Documents duly executed;
(d) where you are a corporate body, a certified copy of your Memorandum
and Articles of Association and Certificate of Incorporation (or the
equivalent documents);
(e) where you are a corporate body, a certified copy of the Resolutions of
your Directors authorising the acceptance of the Facility and the
execution of the Security Documents;
(f) where the Facility is being made available to you in your capacity as
trustee a certified copy of the instrument(s) constituting the trust
and evidencing your appointment as such trustee and a certified copy
of trustee resolutions authorising the acceptance of the Facility and
the execution of the Security Documents;
(g) where the Facility is an FX Line, a notice given at least two Business
Days in advance specifying the proposed date for each foreign exchange
or option transaction, it being clearly understood that we shall not
be obliged to enter into any particular FXC at any time if we, in our
sole discretion, determine not to do so and shall not be obliged to
give any reason therefor;
(h) Where the Facility permits drawings in currencies other than Pounds
Sterling or exchanges between currencies (whether or not including
Pounds Sterling), a notice given at least two Business Days in advance
specifying the proposed date for each transaction;
(i) such legal opinions as we shall consider are necessary to satisfy
ourselves that you have capacity to accept the Facility and that the
Security Documents are legally
3
<PAGE>
valid and binding obligations of you duly enforceable in accordance
with these terms;
(j) such other documentation as we shall reasonably consider necessary
including Account Opening Documentation;
(k) Payment of any facility fees as specified in the Facility Letter.
3. Undertakings
You undertake to us that until the termination date or until all monies
which may become due by you to us pursuant to the Facility are paid:
(a) your liabilities pursuant to this facility will rank at least equally
and rateably (pari passu) in point of priority and security with all
your other liabilities (both actual and contingent) except:
(i) liabilities which are subject to liens or rights of set off
arising in the normal course of your business and the amount of
which will not in our opinion, prejudice your ability to perform
you obligations hereunder; and,
(ii) liabilities which are preferred solely by Jersey Law and not by
reason of any security interest;
and you will not create or permit to exist over any of your assets any
security interest other than is permitted under (i) above unless the
benefit of the security interest is, upon its creation or arising,
extended equally and rateably to our satisfaction to your liabilities
under the Facility Letter and so that, in default of such extension,
the person entitled to the security interest shall (if he had notice
of this undertaking) hold the security interest pro tanto upon trust
for us;
(b) where you are a corporate body, you will carry on and conduct your
business and affairs in a proper and efficient manner;
(c) you shall not effect any of the following without our prior consent in
writing:
(i) sell or otherwise dispose of any material part of your assets or,
where you are a corporate body, any material part of your
business;
(ii) enter into any partnership or joint venture agreement;
(iii)where you are a corporate body, enter into any contract outside
your normal course of business;
(iv) where you are a corporate body, enter into any transaction,
arrangement or agreement with or for the benefit of any of your
directors;
(v) create or issue any debenture, mortgage, charge or any other
security.
4
<PAGE>
(d) where applicable, you will notify us forthwith if you become aware of
the occurrence of an Event of Default or any event which with the
giving of a notice and/or the lapse of time and/or the relevant
determination would constitute such an Event of Default.
(e) where security is being taken by the charging of immovable property:
(i) you shall maintain insurance on the Property in accordance with
good commercial practice, against such risks and for such amounts
and with such insurance company as may be acceptable to us and,
without prejudice to the generality of the foregoing and unless
otherwise agreed in writing, such insurance shall include cover
for damage arising from fire, explosion, storm, tempest,
earthquake, impact, subsidence, aircraft and articles dropped
therefrom, malicious damage, bursting and overflowing of pipes
and tanks, riot and civil commotion, flooding, lightning and oil
leakage, and you shall ensure that our interest in the Property
is noted thereon; and
(ii) you shall not without our prior written consent (which may in our
absolute discretion be refused) alter the structure of the
Property or enter into any contract for the refurbishment or
renovation of the Property or in any way deal with the Property
including, but without prejudice to the generality of the
foregoing, the granting of leases or tenancies of the Property.
4. Further Representations and Warranties
By acceptance of the Facility you represent and warrant to us that:
(a) you have the capacity to enter into, exercise your rights and perform
and comply with the obligations under the Facility Letter and the
Security Documents;
(b) the obligations expressed as being assumed by you under the Facility
Letter and the Security Documents constitute your valid, legal and
binding obligations enforceable against you in accordance with their
respective terms;
(c) neither the execution and delivery of the form of acceptance endorsed
on the Facility Letter or the Security Documents by you nor the
performance or observance of any of your obligations under this Letter
or the Security Documents will conflict with, or result in any breach
of, any law, statute, regulation, indenture, mortgage, trust deed,
agreement or other instrument, arrangement, obligation or duty by
which you are bound or cause any limitation on any of your powers,
howsoever imposed, or on your right or ability to exercise such
powers, to be exceeded;
(d) no Event of Default has occurred and remains unremedied;
(e) in the event that you are acting as a trustee, all necessary action
has been taken to appoint you as trustee of the trusts declared by the
Trust Deed and you have the power and authority as such trustee to
accept the Facility and to give the security contemplated by the
Security Documents;
5
<PAGE>
(f) you are not in default under any law, statute, regulation, indenture,
mortgage, trust deed, agreement or other instrument, arrangement,
obligation or duty by which you are bound;
(g) there exists no mortgage, charge, pledge, lien, encumbrance or other
security interest whatsoever over the whole or any part of your
assets, present or future; and
(h) no litigation, administrative or arbitration proceeding before or of
any court, government authority or arbitrator is presently taking
place, pending or threatened against you or against any of your
assets.
These representations and warranties shall be deemed to be repeated on the
date of the first and (where applicable) any subsequent draw-downs. For the
avoidance of doubt, each utilisation of an FX Line shall be deemed to be a
separate draw-down.
5. Valuation of Property and Surveyor's Reports
Where security is being taken by the charging of immovable property:
(a) At any time during the continuance of the Facility we shall have the
right at your expense to appoint an independent valuer to value the
Property the valuation being made on such basis as we in our absolute
discretion shall determine.
(b) If at any time in our opinion the net realisable value of the Security
would not exceed the amount required to discharge all amounts owed
under the Facility by the applicable Margin, we may, without prejudice
to any rights to demand repayment of the whole of the Facility,
require you, on such terms as we shall determine, to:
(i) reduce the amounts owing under the Facility by such amount as we
shall specify; or
(ii) provide such further security acceptable to us, as shall in
either case restore the Margin.
(c) In addition we shall have the right at your expense to appoint at any
time during the continuance of the Facility an independent firm of
chartered surveyors to report to us on the structural condition of the
Property or on such other matter as we in our absolute discretion see
fit.
6. Margin
We shall from time to time determine the Margin required by us and in the
event that the net realisable value of the Security does not in our opinion
provide us with the required Margin upon our request you shall, without
prejudice to any of our rights to demand repayment restore the Margin
either by reducing the amounts of your liability to us or providing us with
further security acceptable to us.
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<PAGE>
7. Authorisation
In the event of any sum becoming due by you to us pursuant to the Facility
you hereby authorise us to debit any of your accounts with the amount due
or, in our absolute discretion, to sell all or any securities held in any
capacity by us for you in order to realise the amount due and you hereby
agree that we shall be under no obligation to give any prior notice of any
action taken pursuant to the authority hereby conferred and you hereby
indemnify us against all actions, proceedings, losses, costs, damages and
other demands which you may suffer or incur by reason of or arising as a
result of our taking any action hereby authorised.
8. Costs and Expenses
You will forthwith pay to us on demand all reasonable expenses, including
legal fees, incurred by us in connection with your application for the
Facility, the granting of the Facility, the preparation and/or the approval
of the Security Documents and any approvals thereunder or variations
thereof and their preservation or enforcement or attempted preservation or
enforcement.
9. Interest
In the case of Pounds Sterling liabilities, interest will accrue on a 365
day year basis. In any other case, interest will accrue on a 360 day year
basis.
10. Taxes
All payments to be made by you hereunder shall be made free and clear of
any deduction or withholding; if you are required by law to make any
deduction or withholding on account of tax or otherwise from any such
payment, the sum due from you in respect of such payment shall be increased
to the extent necessary to ensure that, after the making of such deduction
or withholding, we receive a net sum equal to the sum which we would have
received had no deduction or withholding been made.
11. Increased Costs
If by reason of:
(a) any change in law or in its interpretation of administration; and/or
(b) compliance with any request from or requirement of any central bank or
other fiscal, monetary or other authority;
the cost to us or funding or maintaining the Facility is increased or we
become liable to make any payment (not being a payment of tax on our
overall net income) or any increased payment on or calculated by reference
to the amount of the Facility, you shall from time to time on our demand
promptly pay to us amounts sufficient to indemnify us against, as the case
may be, such increased cost or such liability. If we intend to make a claim
pursuant to this paragraph for indemnification against an increased cost,
we shall notify you of the event by reason of which we are entitled to do
so. Any determination by us of the amount of any such increased cost shall
be conclusive and binding on you for all purposes.
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<PAGE>
12. Rights Cumulative, Waiver
Our rights under the Facility Letter are cumulative, may be exercised as
often as we consider appropriate and are in addition to our rights under
the general law. Our rights (whether arising under the Facility Letter or
under the general law) shall not be capable of being waived or varied
otherwise than by an express waiver or variation in writing and in
particular any failure to exercise or any delay in exercising any of such
rights shall not operate as a waiver or variation of that or any other such
right; any defective of partial exercise of any such right shall not
preclude any other or further exercise of that or any other such rights;
and no act or course of conduct or negotiation on our part shall in any way
preclude us from exercising any such right or constitute a suspension or
any variation of such right.
13. Events of Default
If any of the following events occur:
(a) you fail to pay any amount due under the Facility Letter on the due
date or on demand, if so payable;
(b) you fail to observe or perform any obligations under the Facility
Letter or under the Security Documents as the case may be or under any
undertaking or arrangement entered into in connection therewith;
(c) any representation, warranty or statement which is made (or
acknowledged to have been made) by you in connection with the Facility
proves to be incorrect in any material respect;
(d) any indebtedness of you or the Guarantor for borrowed money becomes
due and payable prior to its specified maturity, you or the Guarantor
are in breach or default under any agreement or document evidencing or
regulating such indebtedness, you or the Guarantor fail to pay any sum
due to be paid by you under the Facility or the Guarantor under the
Guarantee, you or the Guarantor are unable or fail to admit your or
the Guarantor's inability to pay your or the Guarantor's debts as they
fall due, or commit any act or omission which is indicative of
insolvency or make a general assignment for the benefit of, or a
composition with, your or the Guarantor's creditors;
(e) an encumbrancer takes possession or a trustee, receiver or similar
officer is appointed of any of your or the Guarantor's assets or a
distress or any form of execution is levied or forced upon any of your
or the Guarantor's assets;
(f) it becomes unlawful for you or the Guarantor or us to perform the
obligations under the Facility Letter or any of the Security
Documents;
(g) any circumstances arise which give reasonable grounds in our opinion
for the belief that you may not (or may be unable to) perform your
obligations under the Facility Letter;
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<PAGE>
(h) you or the Guarantor become or are declared bankrupt as defined in the
Interpretation (Jersey) Law 1954 or commit any act indicative of
bankruptcy;
(i) any Security Documents shall cease to be enforceable by us;
(j) in the case of FX Lines only, at any time we determine that the net
cumulative book losses attributable to open FXCs, including Matched
FXCs, exceeds 40% of the lendable value of the Security; or
(k) in the case of FX Lines only, at any time within two Business Days of
the date of maturity of any open FXC which is unmatched, we are of the
opinion that you have insufficient funds in accounts on which we are
entitled to draw for the purpose of meeting liabilities under that
FXC;
then we may at any time thereafter by notice to you declare that the
Facility, together with accrued interest and all amounts payable hereunder
are immediately due and payable and the Facility shall thereupon terminate
(or, in the case of an FX Line, we may close out or match, in accordance
with the Close-Out Formula, sufficient FXCs to restore the margin).
14. Close-Out Formula
Closing out of FXCs other than option shall be conducted in the following
manner (the "Close-Out Formula"):
14.1 (a) each balance of currency (other than the Base Currency) with a
Settlement Date on or after the Close-Out Date shall be notionally
converted into the Base Currency at the appropriate market rate (as
conclusively determined by us) at which on the Close-Out Date, we
could enter into a contract in the foreign exchange market to buy that
other currency in exchange for the Base Currency for delivery on the
appropriate Settlement Date;
(b) in respect of each Settlement Date, the balance of the Base Currency
account for such Settlement Date shall be consolidated with the Base
Currency sum calculated in accordance with paragraph (a) above to
determine the net amount to be paid or received on such Settlement
Date;
(c) each Base Currency amount calculated in accordance with paragraph (b)
above will be notionally discounted so as to calculate the Base
Currency sum which, when aggregated with the amount of interest which
could be earned on that sum if it were placed on a deposit for the
period from the Close-Out Date to the Settlement Date at the
appropriate Eurodollar rate (to be conclusively determined by us),
assuming (in the case of Pounds Sterling) a year with 365 days or (in
the case of any other currency) a year with 360 days, would equal the
relevant Base Currency amount;
(d) on the basis that an amount outstanding to your credit is an amount
owed by us to you and an amount outstanding to your debit is an amount
owing from you to us,
9
<PAGE>
the aggregate amount of all the Base Currency amounts calculated in
accordance with paragraph (a), (b) and (c) above as owed by you to us,
will be deducted from the aggregate amount of all Base Currency
amounts so calculated as owing to you; and
(e) the amounts determined shall be payable by us if that deduction
produces a positive figure and by you if that deduction produces a
negative figure.
14.2 In the case of FXCs consisting of options, closing-out shall be conducted
by purchasing or writing from or with you FXCs on such terms as we in our
absolute discretion think fit (the "Option Close-Out Formula"), but with a
view to there arising Matched FXCs, in which case you shall be bound
accordingly.
14.3 We shall not be liable to you for any loss or other damage which you may
suffer as a result of our exercise of any of our rights under this
agreement in respect to Closing-Out or entering into any other transactions
with a view to protecting our position in accordance with this clause.
14.4 Following close out, all obligations of us to you, or of you to us in
respect of FXCs shall be automatically and immediately satisfied,
discharged and replaced by an obligation upon you or us, as the case may
be, to pay an amount determined in accordance with the Close-Out Formula or
the Option Close-Out Formula.
15. Maturing FXCs
On the maturity of FXCs, all entries will be passed over the Account unless
otherwise agreed by us.
16. Netting Off
16.1 Immediately upon any FXC other than a put or call option written or
purchased by you or for your account being entered into resulting in there
being Matched FXCs:
(a) the amount of each currency bought under a Matched FXC will be netted
against the aggregate amount of that currency sold under all FXCs with
which it is matched and vice versa, and
(b) all obligations under each such FXC will be automatically satisfied
and discharged and replaced by an obligation to pay the net aggregate
amount resulting from such netting of each currency on the Settlement
Date to you or us as the case may be.
16.2 Immediately upon any put or call option being written or purchased
resulting in there being Matched FXCs, the amount of each currency the
subject of the purchased call option which is a Matched FXC shall be netted
against the aggregate amount of that currency to be delivered under call
options written, or put options purchased with which it is matched, and
vice versa, and the amount of each currency the subject of a put option
written which is a Matched FXC will be netted against the aggregate amount
of that currency the subject of all call options purchased and vice-versa.
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16.3 In the case of put options or call options which are Matched FXCs, the
liability under such Matched FXCs shall be mutually extinguished and
neither of us shall thereafter be entitled to call on the other for the
exercise of such options.
16.4 FXCs shall be capable of being matched in part, in which case the FXC
covering the larger amount of underlying currency shall be deemed to be
divided into two parts: the part that is matched and the part that is
unmatched. Upon the one part becoming matched, the balance shall be treated
as a new FXC.
17. Set off
At all times, whether before or after the right to close-out FXCs (if any)
has arisen in addition to any other of our rights we shall be entitled to
apply any sum due from us to you on any account whatsoever and in whatever
currency in or towards satisfaction of any sum due to us from you.
18. Withdrawals
Any withdrawal made pursuant to the Facility shall be made on a Business
Day and shall be deemed to constitute a repeat of the warranties set out in
this Appendix.
19. Notices
Any notices or communications under the Facility Letter shall be in writing
and shall be delivered personally or sent by post, telex or cable to the
address given in the Facility Letter or at such other addresses which may
be notified in writing. Proof of posting or despatch of any notice or
communications to you shall be deemed to be proof of receipt:
(a) in the case of a letter three Business Days after having been posted;
(b) in the case of a telex, facsimile or cable, on the Business Day
immediately following the date of despatch.
20. Invalidity
If any of the provisions in the Facility Letter become invalid, illegal or
unenforceable in any respect under any law, the validity and legality or
enforceabliity of the remaining provisions shall not in any way be affected
or impaired.
21. Benefit of Facility Letter
(a) We may assign any of our rights under the Facility Letter but you may
not assign any of your rights.
(b) We may disclose to a potential assignee of all or any part of our
rights under the Facility Letter such information about you as we think
fit.
22. Joint and Several Liability
Where you comprise more than one person, all representations, warranties
and undertakings given by you pursuant to the Facility shall be deemed to
be given by each of you jointly and severally and all liabilities of you to
us pursuant to the Facility shall be deemed to be the joint and several
liabilities of each of you.
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23. Entire Agreement
The Facility Letter and this Appendix shall constitute the entire agreement
between you and us in respect of the Facility and shall replace all
existing oral and written agreements between you and us in respect hereof.
In the event of any inconsistency between the terms and conditions set out
in this letter and our standard terms applying generally to FXCs or the
terms of any specific FXC, the Facility Letter shall prevail.
24. Governing Law
The Facility Letter is governed by and shall be construed in accordance
with the Laws of Jersey and by accepting the Facility you are deemed to
submit to the non-exclusive jurisdiction of the Royal Court of Jersey.
12
EXHIBIT 4
PLEDGE AGREEMENT FOR THIRD PARTY COLLATERAL Account base number 158323
THE "ACCOUNT"
for Credit Facilities issued by units other than Citibank (Luxembourg) S.A.
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BETWEEN Client name KINGDOM 5KR 63 LTD
THE UNDERSIGNED: Permanent address C/O MAPLES & CALDER
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P.O. BOX 309 GRAND CAYMAN, CAYMAN ISLANDS, BWI
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hereinafter referred to as the "PLEDGOR";
AND
Name Citibank N.A., Jersey
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Permanent address 38, Esplanade St Helier, Jersey JE4 8ZT, C.I.
---------------------------------------------------------------
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hereinafter referred to as the "PLEDGEE";
THE FACILITY (A) WHEREAS the pledgee grants to the pledgor a facility
(hereinafter the "FACILITY", which terms shall include
principal, interest, costs, commissions, fees and currency
exchange risk) of a total principal amount of:
all credit facilities granted by the pledgee to the pledgor
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All references herein to "pledgor/borrower" shall be read as
references to the PLEDGOR.
OR (B) WHEREAS the pledgee grants to (where different to the pledgor)
Name/First Name
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Permanent address
---------------------------------------------------------------
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Account base number
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hereinafter referred to as the "BORROWER"
a facility (hereinafter the "FACILITY"), which terms shall
include principal, interest, costs, commissions, fees and
currency exchange risk of a total principal amount of: (in
----
numbers) all credit facilities (in letters) granted by the
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pledgee to the borrower the terms and conditions of which the
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pledgor declares being fully aware of.
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All references herein to "pledgor/borrower" shall be read as
references to the BORROWER.
THE PLEDGE WHEREAS the pledgor grants in favour of the pledgee a pledge
(hereinafter the "pledge on deposit") under the form of a
deposit of a countervalue of: (in numbers)
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(in letters)
(hereinafter the "deposit", which term shall include interest
accruing to the deposit).
WHEREAS the pledgor has placed the deposit with CITIBANK
(LUXEMBOURG) S.A., (hereinafter the "DEPOSITARY") in the
account opened by the pledgor with the depository, the balance
of which, if different from the deposit, is also placed in
favour of the pledgee (this balance shall be considered as
being comprised in the term "deposit" as used hereinafter), to
secure any and all payments due by the pledgor/borrower to the
pledgee under the facility.
WHEREAS, furthermore, the pledgor is willing to grant in favour
of the pledgee a pledge (hereinafter the "pledge on
securities") on all securities, debentures, notes, bonds,
certificates of deposit, as well as all stock, share capital
and any other negotiable rights of property, whether in
nominative or in bearer form, whether transferable or not,
which the pledgor holds now, or may hold in the future, with
the depository (hereinafter the "securities", which term shall
include all rights and dividends accruing to such securities)
to secure the pledgor's/borrower's payment obligations under
the facility as well as all other present or future
indebtedness of any pledgor/borrower vis-a-vis the pledgee.
Except if expressly otherwise provided for, all securities
shall be considered as being fungible.
WHEREAS the facility shall at all times be secured by the
aggregate of the pledge on deposit and the pledge on
securities.
WHEREAS the facility may never exceed the loanable value of the
assets pledged by the pledgor to the pledgee.
WHEREAS the loanable value of the securities and the deposit
shall be calculated and monitored on a permanent basis by the
depositary as agent of the pledgee in accordance with the
margin table set out in appendix hereto. The depositary
reserves the right to make any necessary changes to the margin
table based on the quality, liquidity, marketability and
concentration of the pledged assets. The margin table of the
depositary (as applicable from time to time) is at the
permanent disposal of the pledgor/borrower by the depositary.
WHEREAS the depositary shall be the agent of and represent the
pledgee in any acts and deeds to be undertaken or signed in
order to give effect to this pledge agreement. The depositary
shall for instance be empowered to accept this pledge agreement
on behalf of the pledgee, to monitor the loanable value, and to
request and accept an additional pledge of securities and/or a
pledge of deposit, pursuant to clause 3.2. of this agreement.
<PAGE>
WHEREAS for all acts and deeds under this pledge agreement, the
depositary (even if acting in his own name) shall be deemed to
act as an agent for the pledgee.
NOW AND THEREFORE THE PARTIES HAVE AGREED AS FOLLOWS:
1. PLEDGE ON DEPOSIT
1.1 The pledgor hereby pledges the deposit in favour of the pledgee.
1.2 The depositary is empowered, upon instruction of the pledgee, to convert at
any time all or part of the deposit into certificates of deposit, held by the
depositary in safe custody for the pledgor and pledged in favour of the pledgee
pursuant to clause 2.1 hereafter.
1.3 The pledge shall remain in full force and effect until the pledgor/borrower
has fulfilled all its obligations under the facility, in principal, interest,
commissions, fees and other charges including the repayment of all judicial and
extra judicial costs incurred for the recovery of any amounts due under the
facility.
1.4 The pledgor hereby agrees that this pledge agreement be notified to the
depositary at the pledgor's exclusive costs and expenses in the appropriate way
under Luxembourg law.
1.5 If the pledgor/borrower does not fulfill, on due date, any commitment or
obligation towards the pledgee under the facility, or shall not have fully
complied within eight days from the date of a summons containing a formal
request to satisfy the claims of the pledgee under the facility, the pledgee
shall be authorized to demand payment, transfer and delivery of the deposit in
view to satisfy its secured claims, in accordance with applicable legal
provisions.
2. PLEDGE ON SECURITIES
2.1 The pledgor hereby pledges all securities to the pledgee, who accepts.
2.2 The depositary holds the securities in surety in a special pledge account
and guarantee for the due and punctual payment of all amounts of principal,
interest, commissions, fees and other charges including the repayment of all
judicial and extra judicial costs incurred for the recovery of any amounts due
under the facility or of any debt which is now due and payable or may become in
the future due and payable to the pledgee by the pledgor/borrower, as and when
the same shall become due and payable.
2.3 The pledgor hereby represents and warrants:
2.3.1 that the securities are free and clear of any claims, mortgages, pledges,
liens or other encumbrances of any nature whatsoever, and that the pledgor will
not sell and will keep the securities fee and clear of any claims, mortgages,
pledges, liens or other encumbrances of any nature whatsoever;
2.3.2 that the present agreement is not contrary to any legal or contractual
obligation imposed upon the pledgor, and that it creates valid and binding
obligations upon him.
2.4 If and when a formal notice of repayment to the borrower and the pledgor by
the pledgee or the depository, by way of a registered letter, has remained
unsatisfied for eight days, the pledgee may instruct the depositary to sell the
securities, in accordance with applicable legal provisions, and assign the
proceeds by privilege to the reimbursement of the said debt due by the
pledgor/borrower to the pledgee upon transfer of the sales proceeds by the
depository to the pledgee.
3. GENERAL
3.1 If the outstanding amount of the facility exceeds or threatens to exceed at
any time, the loanable value of the deposit and the securities pledged in favour
of the pledgee, the pledgor undertakes, within five days of first demand, to
pledge, mortgage, transfer and assign to the pledgee, and deliver to the
depository, further securities and/or a further deposit into the account, to the
extent necessary for the facility no longer to exceed or to threaten to exceed
the loanable value of the deposit and the securities.
3.2 In the event of failure to comply with the obligation undertaken pursuant to
clause 3.1 above, the pledgor herewith unconditionally and irrevocably empowers
the pledgee to take all appropriate measures, and in particular to effect all
transactions in order to reduce the outstanding liabilities to the loanable
value of the deposit and the securities, or to render due and payable any sums
due to the pledgee by the pledgor, and to enforce this pledge agreement pursuant
to clause 1.5 and 2.4 above.
3.3 The pledgee shall not be limited in its discretion to enforce the pledge on
deposit or the pledge on securities, whether simultaneously or alternatively,
whether in full or in part. The enforcement, in full or in part, of the mere
pledge on deposit, or of the pledge on securities, as the case may be, does to
constitute a waiver by the pledgee to any of his rights under the pledge on
securities and/or under the pledge on deposit, as the case may be.
3.4 For the duration of this pledge agreement, the pledgor irrevocably empowers
the depositary to give the pledgee from time to time full disclosure concerning
the details of the securities and the deposit. All communications by the pledgee
to either the borrower or the pledgor shall be deemed to be provided to both.
3.5 The obligations of the pledgor hereunder shall not be affected or discharged
in case of the occurrence of any of the following events:
- any time, indulgence, waiver or consent at any time given to the
pledgor/borrower or any other person;
- any amendment to any of the facility documents or to any other
security or any guarantee or indemnity for the facility;
- the enforcement or absence of enforcement of claims for or the release
of the facility or any other security, guarantee or indemnity for the
facility;
- the dissolution, amalgamation, bankruptcy, reconstruction or
re-organization of the pledgor/borrower or any other person.
3.6 The pledgee is explicitly authorized to communicate openly and assign its
rights hereunder to all other Citicorp/Citibank entities which are granting
credit to the pledgor/borrower or which may be in possession of assets securing
such credit or which are a party with or on behalf of the pledgor/borrower in
foreign exchange or securities transactions.
3.7 Generally, the pledgor shall bear all costs, expenses, taxes, duties and
similar charges which shall be incurred to the pledgee by virtue of this pledge
agreement now or in the future, including any costs of notification, even to
foreign counties, and including all court and legal expenses arising out of the
<PAGE>
enforcement of the pledgee's rights, and the pledgor hereby irrevocably
authorizes the pledgee and empowers the depository to debit such amount from the
account.
3.8 This pledge agreement shall in all respects be governed by and construed in
accordance with the laws of the Grand Dutchy of Luxembourg.
3.9 This pledge agreement is subject the depository's general terms and
conditions, which the pledgor declares having read and accepted, and which form
an integral part of this pledge agreement inasfar as applicable and consistent
with this pledge agreement.
3.10 The parties to this pledge agreement agree that any legal action or
proceedings arising out of or in connection with this pledge agreement is
submitted to the jurisdiction of the Courts of Luxembourg, Grand Duchy of
Luxembourg. Notwithstanding this, the pledgee reserves the right to commence
legal proceedings before any other competent jurisdiction. For the purpose of
this agreement the pledgor elects domicile at the registered office of the
despositary.
So done in duplicate
Place Date
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KINGDOM 5KR 63 LTD
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The pledgor The depositary (Citibank (Luxembourg) S.A.) in
its own name for acceptance and as agent for
the pledgee.
