Loan Facility Agreement - Titan Africa Inc., Office Des Postes et Telecommunications, Banque Belgolaise, Eco Bank Benin, Banque Ouest Africain Pour Le Developpement, Banque Internationale Du Benin, Continental Bank Benin and Bank of Africa Benin
TRANSLATION
TITAN AFRICA, INC.
LOAN FACILITY AGREEMENT
THE FCFA EQUIVALENT
OF FRF 300,000,000
ARRANGER
AFRICA MERCHANT BANK
DECEMBER 10, 1999
JEAN-FRANCOIS ADELLE
BIGNON & LEBRAY
14, RUE PERGOLESE
75116 PARIS
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BY AND BETWEEN THE UNDERSIGNED:
1) TITAN AFRICA, INC., a corporation organized under the laws of Delaware
(United States of America) having its principal office at 3033 Science
Park Road, San Diego, California 92121 (United States of America),
incorporated on December 16, 1998, represented by Mr. Ray H. Guillaume as
Assistant Treasurer, duly authorized for the purpose hereof,
hereinafter referred to as the "Borrower",
PARTY OF THE FIRST PART
AND:
2) OFFICE DES POSTES ET TELECOMMUNICATIONS of the State of Benin, a
state-owned company with stated capital of FCFA 7,065,000,000, the
exclusive provider of telecommunications services in the territory of
Benin, having its principal office at 01 BP 5959 Cotonou, Republic of
Benin, created by decree No. 89-156 of April 25, 1989, represented by Mr.
Barthelemy Agnan, duly authorized for the purpose hereof,
hereinafter referred to as "O.P.T.B." or the "Guarantor".
PARTY OF THE SECOND PART
3) BANQUE BELGOLAISE, a corporation (SOCIETE ANONYME) organized under Belgian
law, with stated capital of BEF 1,000,000,000, having its principal office
at Cantersteen I, 1000 Brussels, Belgium.
Represented by its Paris branch, registered in the Paris Register of
Commerce and Companies under No. B 411.858.731 and domiciled at 6, avenue
Velasquez, 75008 Paris, represented by Messrs. Idelphonse Affogbolo and
Mr. Joel Krief, duly authorized for the purpose of this Agreement, acting
in its own name and as agent of a syndicate of Banks,
and as Arranger through its Africa Merchant Bank investment bank division,
hereinafter referred to in its capacity as
agent as the "International Agent",
and in its capacity as arranger as the "Arranger",
PARTY OF THE THIRD PART
4) ECO BANK BENIN, a corporation (SOCIETE ANONYME) with stated capital of
FCFA 1,500,000,000 having its principal office at rue du Gouverneur Bayol,
BP 1280 Cotonou, Republic of Benin, registered in the Cotonou Commercial
Register under No. 15,054-B represented for the purpose hereof by Mr.
Fogan Sossah, Managing Director Vice President (DIRECTEUR GENERAL), duly
authorized by virtue of the power of attorney attached hereto in APPENDIX
1A,
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Acting in its own name and in its capacity as a member of the banking
syndicate participating in cash and risk,
PARTY OF THE FOURTH PART
5) BANQUE OUEST AFRICAIN POUR LE DEVELOPPEMENT, an international
non-governmental organization having its principal office at 68 avenue de
la Liberation, BP 1172, Lome (Togo) represented by Mr. _____________,
Chairman of the Board, duly authorized for the purpose hereof by virtue of
the power of attorney attached hereto in APPENDIX 1.A,
Acting in its own name and as a member of the banking syndicate
participating in cash and risk,
hereinafter referred to as "B.O.A.D."
PARTY OF THE FIFTH PART
6) BANQUE INTERNATIONALE DU BENIN, a corporation (SOCIETE ANONYME) with
stated capital of FCFA 3,000,000,000 having its principal office at
Carrefour des Trois Banques, Avenue Giran, 03 BP 2098 Jericho Cotonou,
Republic of Benin, registered in the Cotonou Commercial Register under No.
15,125-B, represented for the purpose hereof by Mr. Dave Lafiaji,
Executive Manager (DIRECTEUR EXECUTIF), duly authorized by virtue of the
power of attorney attached hereto in APPENDIX 1.A,
Acting in its own name and as a member of the banking syndicate
participating in cash and risk,
PARTY OF THE SIXTH PART
7) CONTINENTAL BANK BENIN, a corporation (SOCIETE ANONYME) with stated
capital of FCFA 3,600,000,000 having its principal office at Carrefour des
Trois Banques, Avenue Jean-Paul II, BP 2020 Cotonou, Republic of Benin
registered in the Cotonou Commercial Register under No. 16,584-B,
represented for the purpose hereof by Mr. Michel D'Almeida, General
Manager (DIRECTEUR GENERAL), duly authorized by virtue of the power of
attorney attached hereto in APPENDIX 1.A,
Acting in its own name and as a member of the banking syndicate
participating in cash and risk;
PARTY OF THE SEVENTH PART
8) BANK OF AFRICA BENIN, a corporation (SOCIETE ANONYME) with stated capital
of FCFA 3,600,000,000 having its principal office at 08 BP 0879 Tri
Postal, Avenue Jean-Paul II, Cotonou, Republic of Benin, registered in the
Cotonou Commercial Register under No. 15,053-B represented for the purpose
hereof by Mr. Rene Formey de Saint
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Louvent, duly authorized by virtue of the power of attorney attached
hereto in APPENDIX 1.A,
Acting in its own name and as Local Agent (hereinafter referred to in its
capacity as Local Agent as the "Local Agent") and as a member of the
banking syndicate participating in cash and risk;
PARTY OF THE EIGHTH PART
the banks which are the parties of the fourth, fifth, sixth, seventh and
eighth (aside from its mission as Local Agent) parts are collectively
referred to herein as the "Banks",
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CONTENTS
<CAPTION>
PAGES
ARTICLE 1 - DEFINITIONS....................................................................................7
ARTICLE 2 - THE FACILITY..................................................................................11
ARTICLE 3 - TERM OF THE FACILITY..........................................................................12
ARTICLE 4 - DRAWDOWNS - ADVANCES..........................................................................12
ARTICLE 5 - ACCOUNTING AND REPRESENTATION OF THE FACILITY.................................................13
ARTICLE 6 - ASSIGNMENT OR TRANSFER........................................................................14
ARTICLE 7 - INTEREST......................................................................................15
ARTICLE 8 - LATE-PAYMENT INTEREST.........................................................................15
ARTICLE 9 - FEES..........................................................................................16
ARTICLE 10 - REPAYMENTS - PAYMENTS - NO RECOURSE..........................................................16
ARTICLE 11 - GUARANTIES...................................................................................20
ARTICLE 12 - BORROWER'S REPRESENTATIONS AND WARRANTIES....................................................24
ARTICLE 13 - BORROWER'S COVENANTS.........................................................................24
ARTICLE 14 - CONDITIONS PRECEDENT TO THE RIGHT TO
FIRST DRAWDOWN..............................................................................26
ARTICLE 15 - NEW CIRCUMSTANCES............................................................................27
ARTICLE 16 - ACCELERATION.................................................................................28
ARTICLE 17 - INTERNATIONAL AGENT.........................................................................28
ARTICLE 18 - LOCAL AGENT..................................................................................30
ARTICLE 19 - MISCELLANEOUS................................................................................31
ARTICLE 20 - GOVERNING LAW AND CHOICE OF FORUM............................................................34
ARTICLE 21 - APPENDICES...................................................................................35
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RECITALS:
(A) The Borrower is an indirect wholly-owned subsidiary of The Titan
Corporation, a Delaware (United States of America) corporation having its
principal office at 3033 Science Park Road, San Diego, California 92121 (United
States of America) which is listed on the New York Stock Exchange. Among its
businesses, the Titan group develops satellite telecommunications and rural
telephony systems and supplies related telecommunications services.
(B) For the purpose of a vast investment program designed to increase the
capacity of its telephone network and the accessibility of telecommunications
services for the Benin population, the O.P.T.B., which has a monopoly on the
supply of all telecommunications services in the territory of Benin, has awarded
The Titan Corporation a BUILD, CO-OPERATE AND TRANSFER contract dated August 17,
1999, which has been assigned to the Borrower (hereinafter referred to as the
"BCT Contract"), for the supply to O.P.T.B. of turnkey telecommunications
equipment designed to extend and modernize fixed-line, traditional and cellular
telephone networks and to provide technical assistance with the installation and
operation of said equipment (said program hereinafter referred to as the
"Project").
(C) The BCT Contract has a term of nine years from the date on which the Project
financing is arranged. The Project covered by the BCT Contract is divided into
five phases (hereinafter the "Phases"):
1. installation of a VSAT satellite telecommunications system;
2. installation of a GSM network for 20,000 subscribers;
3. installation of a switch with a capacity of 20,000 subscribers in
Parakou;
4. installation of a fiber optic cable linking Cotonou to Parakou;
5. implementation of several rural wireless local loops ("WLL") for
15,000 subscribers.
Phase 2 represents the GSM portion of the Project and the remaining Phases
represent the non-GSM portions of the Project.
(D) The BCT Contract stipulates that the Borrower will remain the owner of the
Equipment relating to all Phases of the Project until complete repayment of the
financing for all Phases.
(E) However, prior to any transfer of title in the said Equipment, the right to
operate the Equipment shall be licensed by the Borrower to O.P.T.B., the
Borrower retains the right to inspect the operation of the Equipment via a joint
monitoring committee, composed of three representatives of Titan, one
representative of O.P.T.B., and one representative of the Local Agent without a
vote (hereinafter the "Joint Monitoring Committee").
(F) The BCT Contract provides that the financing of the Equipment will be
procured by the Borrower. The BCT Contract stipulates that the revenue generated
by the Equipment supplied under the Project will be divided between O.P.T.B. and
the Borrower until complete repayment under the Facility and for three or five
years, as the case may be, following the date of said repayment. In order to
identify and segregate Project revenues, the GSM portion of the Project and the
non-GSM portions of the Project that generate revenue must each be equipped
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with an independent invoicing and management system linked directly to the
supervision centers of O.P.T.B. and the Borrower.
(G) Lastly, the BCT Contract stipulates that the Borrower's obligations in
connection with the execution of the Project may be transferred to a company
organized under Benin law that is wholly owned by the Borrower.
(H) In order to perform its obligations in connection with Phases 2 to 5 of the
BCT Contract, the Borrower has signed a Master Supply and Service Agreement
(hereinafter referred to as the "Master Agreement") with Alcatel Contracting SA
(hereinafter referred to as "ALCO"), a 95%-held Alcatel subsidiary, to supply
the required equipment and to provide O.P.T.B. with technical assistance during
the first few months of operation. The entry into force of the Master Agreement
is subject to the execution of a credit facility agreement to finance Phases 2
to 5 of the Project.
(I) Under these circumstances, the Arranger has organized a banking syndicate
comprised of the Banks in order to grant the Borrower a medium-term facility for
the equivalent of FRF 300,000,000 (three hundred million French francs), that
is, as of this date, FCFA 30,000,000,000 (thirty billion Francs CFA), to be
granted in Francs CFA by Benin and WAEMU banks, on the terms and in
consideration of the security interests and guaranties provided for herein,
including a first demand guaranty granted by O.P.T.B., O.P.T.B.'s assignment of
all net revenues generated by the Equipment supplied under the Project to a
Pledged Project Account, and a lien on all of the Alcatel equipment. It is
agreed that this Facility will be repaid out of net revenues. This Facility is
non-recourse with respect to the Borrower and its Affiliates, and in the event
that the amounts credited to the Pledged Project Account are insufficient to
insure repayment of the Facility the difference will be paid by the security
interests and guaranties granted to the Banks, to the Arranger, to the
International Agent, and to the Local Agent under this Agreement.
(J) The proceeds put at the Borrower's disposal shall be used exclusively to
finance Phases 2 to 5 of the Project, on the understanding that Phase 2, which
is already underway, has entailed the implementation of a bridge loan in the
principal amount of FRF 50,000,000, (fifty million French Francs) which will be
entirely repaid out of the first Drawdown under the present facility.
(K) The Borrower undertakes to use and repay the loan on the following terms and
conditions.
NOW THEREFORE IT HAS BEEN AGREED AS FOLLOWS:
ARTICLE 1 - DEFINITIONS
ADVANCE: amount made available to the Borrower in FCFA under the Facility as a
Drawdown.
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AFFILIATES: any person(s) who, directly or indirectly, through one or more
intermediaries, control(s), is/are controlled by and/or are ultimately under the
common control of the Borrower or The Titan Corporation. For the purposes of
this definition, "control" shall mean the power to directly or indirectly
influence or direct the management or policy of the person in question, whether
through ownership of voting stock, an equity interest, by contract or otherwise.
As an exception to the foregoing, O.P.T.B. will not be considered to be an
Affiliate hereunder.
AGREEMENT: this loan facility agreement, including its appendices, and any
subsequent amendments or supplementary agreements hereto.
ALCATEL EQUIPMENT: all equipment and machinery to be built by ALCO and supplied
to the Borrower pursuant to the Master Agreement for implementation and
completion of Phases 2 to 5 of the Project and which will be subject to a lien
in favor of the Banks, the Arranger, the International Agent and the Local
Agent, in accordance with Article 11.3 hereof. A list of the equipment expected
to be supplied to the Borrower is attached hereto in APPENDIX 1.C.
ALCO: Alcatel Contracting S.A., as defined in recital (H) above.
ARRANGER: Africa Merchant Bank, as defined in section 3) of the list of parties.
BANKS: each of the Benin and WAEMU banks set forth in 4), 5), 6), 7) 8) of the
list of parties above, (i) participating in cash and risk connected with the
Facility in the amounts and percentages indicated in APPENDIX 1.B. (other than
those who cease to be a party hereto in accordance with Article 6 hereof) it
being specified that B.O.A.D. will only participate in the syndicate beginning
on the date it executes this Agreement, after having been duly authorized to do
so by its board of directors, provided however that said date shall not be later
than April 30, 2000, failing which the provisions of Clause 4.2 hereof shall
apply, and (ii) any financial institution that has become a party hereto in
accordance with Article 6 herebelow.
BCT CONTRACT: a Build, Co-operate and Transfer agreement as defined in recital
(B) above.
BORROWER: Titan Africa, Inc. as defined in 1) of the list of parties.
BRIDGE LOAN: loan in the principal amount of FRF 50,000,000 between O.P.T.B. and
Banque Belgolaise pursuant to a loan agreement dated August 19, 1999 for the
implementation of Phase 2.
BUSINESS DAY: any full day (except Saturday and Sunday) on which banks are open
in mainland France and which is not a non-working day or a holiday in Benin.
COMMITMENTS: in relation to a Bank, at any time and except as otherwise provided
in this Agreement, the amount which said Bank undertakes to put at the disposal
of the Borrower in accordance with this Agreement.
DAY: calendar day.
DISTRIBUTABLE REVENUES: the amounts defined in Clause 10.1.2.3. hereof.
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DOMICILED ACCOUNT: an account opened in O.P.T.B.'s name on the books of Bank of
Africa Benin to which O.P.T.B. irrevocably undertakes to deposit all Project
Revenues until complete repayment of the Facility and the financing for the
Titan Equipment.
DRAWDOWN: the Borrower's use of the Facility by means of one or more Advances.
EQUIPMENT: the Alcatel Equipment and the Titan Equipment.
EURO: The single currency that will be legal tender in the member states of the
European Monetary Union ("EMU") when such currency is introduced and recognized
as such by applicable regulations in the European Union and/or the French
Republic.
EXECUTION DATE: the last day on which the Agreement is executed by all of the
Parties with the exception of B.O.A.D. with regard to which the Agreement will
enter into force on the date it signs the Agreement after having been duly
authorized to do so by its board of directors, and in any event no later than
April 30, 2000.
FACILITY: the total principal amount of the loan in FCFA, i.e. the equivalent of
FRF 300,000,000 that the Banks agree to lend to the Borrower under the
Agreement.
FINAL REPAYMENT DATE: December 31, 2003, at the latest.
FRANC CFA OR FCFA: the currency of the African Financial Community or any
currency that may take its place and is legal tender in Benin.
FRENCH FRANCS OR FRF: the currency that is legal tender in the French Republic.
Any reference to FRF in this Agreement must be understood as a reference to the
Euro for the purpose of this Agreement after the French franc ceases to be legal
tender in France.
GUARANTOR: O.P.T.B., as defined in section 2) of the list of parties above.
INTEREST PERIOD: each period of six calendar months commencing on January 1 or
July 1 of each year during the term of the Facility, beginning with the first
Drawdown. If the proceeds from a Drawdown are credited to the Titan Africa
Facility Account before January 1, 2000, the first Interest Period shall end on
June 30, 2000.
JOINT MONITORING COMMITTEE: committee as defined in recital (E).
LOCAL AGENT: a Bank established in Benin, appointed by the International Agent
or any other bank in Benin or the WAEMU designated in accordance with Clause
18.9 hereof, in order to monitor the Facility and to carry out certain tasks in
Benin for which the International Agent is responsible under this Agreement.
MAJORITY BANKS: one or more Banks whose aggregate Commitments at any given time
account for more than 66 2/3 % of the amount of the Overall Commitment.
MASTER AGREEMENT: the supply agreement defined in recital (H) above.
NET REVENUES: Project Revenues less Project Expenses.
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O.P.T.B.: Office des Postes et Telecommunications du Benin, as defined in
section 2) of the list of parties.
OVERALL COMMITMENT: the aggregate sum of all Commitments.
PARTIES: the parties to this Agreement, i.e. the Arranger, the Banks, the
Borrower, the Guarantor, the International Agent and the Local Agent, and/or
their assignees and/or successors.
PAYMENT DATE: any date as defined in Clause 10.1.2.1.
PAYMENT SCHEDULE: schedule for repayment of the Facility, as defined in Appendix
10.1.1.
PHASE: one of the five Phases of the Project as defined in Recital (C) above.
PLEDGED O.P.T.B. ACCOUNT: the account defined in Clause 10.1.2.3. hereof.
PLEDGED PROJECT ACCOUNT: an account opened in the Borrower's name on the books
of the Local Agent and pledged in favor of the Banks, the Arranger, the
International Agent and the Local Agent, to which O.P.T.B. irrevocably
undertakes to deposit all Net Revenues, until repayment in full of all amounts
owed by the Borrower under the Agreement and the financing for the Titan
Equipment.
PROJECT: the turnkey telecommunications equipment project defined in recital
(B).
PROJECT EXPENSES: all of the Borrower's costs, expenses and other amounts
expended or incurred by the Borrower in connection with or relating to the
Project. The assumptions used as a basis for the corresponding "Project Costs &
Expenses" line item on page 9 of a document titled "Financial Model", which page
is attached in APPENDIX 1.E, serve as illustrations of Project Expenses but are
non-binding.
PROJECT REVENUES: with respect to each Reference Period, (i) all revenues billed
and actually received by O.P.T.B. during such period that are generated by the
operation of the Equipment or, for those which do not give rise to billing, the
revenues actually received, plus (ii) all amounts paid during such period by
O.P.T.B. to the Domiciled Account pursuant to Clause 11.1.2. in the event of
non-payment of revenues billed pursuant to (i).
REFERENCE PERIOD: Any period of time running between the due date of each batch
of bills issued by O.P.T.B. and the due date of the following batch.
SUBSIDIARY: any company in which the Borrower directly or indirectly holds more
than 50% of the voting rights of the issued capital.
TITAN: The Titan Corporation and/or any company directly or indirectly
controlled by The Titan Corporation.
TITAN AFRICA FACILITY ACCOUNT: facility account in FCFA opened in the Borrower's
name on the books of the Local Agent and pledged in favor of the Banks.
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TITAN EQUIPMENT: all equipment and machinery to be manufactured by Titan in
connection with Phase 1 of the Project, listed in APPENDIX 1.D.
USE AND AMORTIZATION TABLE: use and amortization table for the financing of the
Titan Equipment as defined in Clause 10.1.2.1.
WAEMU: the West African Economic and Monetary Union.
ARTICLE 2 - THE FACILITY
The Facility granted by the Banks to the Borrower on the terms and subject to
the conditions contained herein, is a loan in an aggregate amount of the FCFA
equivalent at the time of the Drawdown(s) of FRF 300,000,000 (three hundred
million French francs), intended to finance the Borrower's requirements in
connection with the purchase and installation in Benin of the Alcatel Equipment,
i.e., payment of the Alcatel Equipment and technical assistance for its start-up
and operation, as supplied by ALCO, and repayment of the Bridge Loan.
It is specified that the amount of the Facility is limited to the FCFA
equivalent of FRF 250,000,000 until the Agreement comes into force with respect
to B.O.A.D. in accordance with the provisions of the paragraph in Article 1
hereof entitled "Banks", for the FCFA equivalent of FRF 50,000,000. Until the
Agreement comes into force with respect to B.O.A.D., the Banks will finance the
entirety of the Drawdowns up to the FCFA equivalent of FRF 250,000,000.
The execution of this Agreement by B.O.A.D. with respect to the parties will
bring the amount of the Facility to the CFA franc equivalent of FRF 300,000,000,
it being understood that (i) B.O.A.D. will rank PARI PASSU with the sureties and
guaranties defined in Clause 10.1.2.3 and Article 11 under the Agreement and
(ii) B.O.A.D. will participate in all of the Advances made beginning with its
participation in the syndicate until it has reached one-sixth of the amount of
the Advances made prior to its joining but up to a limit of the amount of its
participation, i.e. the FCFA equivalent of FRF 50,000,000.
Failing execution of the Agreement by B.O.A.D. on or before April 30, 2000, the
International Agent will use its best efforts to obtain as soon as possible from
the Banks and/or any credit establishments one or more participations in the
Facility in an aggregate amount of the FCFA equivalent of FRF 50,000,000. Until
the date when this/these engagement(s) are formalized and take effect, the
amount of the Facility will remain at the FCFA equivalent of FRF 250,000,000.
The aggregate amount of the outstanding Drawdowns shall at no time exceed the
amount of the Facility.
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ARTICLE 3 - TERM OF THE FACILITY
The Facility is granted for a term commencing on the Execution Date and ending
on the Final Repayment Date.
ARTICLE 4 -DRAWDOWNS - ADVANCES
4.1 FORMS AND CONDITIONS OF THE DRAWDOWN NOTICES
Subject to the conditions precedent stipulated in Article 14, and provided that
no event of acceleration has occurred, the Borrower shall be entitled to make
Drawdowns on any Business Day during the term of the Facility, on the
understanding that the Local Agent must be previously notified thereof by tested
telex or by fax received by the Local Agent five (5) Business Days before the
contemplated Drawdown date; a copy of this tested telex or fax must also be
faxed to the International Agent and immediately confirmed to the Local Agent by
mail.
The first Drawdown notice, in the form of APPENDIX 4.1A, shall specify the
amount and the date of the contemplated Advance with reference to the Agreement.
All subsequent Drawdown notices, which must be in the form of APPENDIX 4.1B,
shall specify the amount and the date of the contemplated Advance(s), with
reference to the Agreement.
Simultaneously with each Drawdown notice, except in the case of the first
Drawdown as concerns repayment of the Bridge Loan, the Borrower must provide the
Local Agent with documents reasonably evidencing the order(s) placed by the
Borrower which are to be paid out of the proceeds of the requested Advance(s).
The Drawdown notice shall be irrevocably binding on the Borrower in all of its
terms. The "Titan Africa Facility Account" will be credited with the amount of
the Advance specified in the Drawdown notice, subject to compliance with the
terms of the Agreement with respect to the right to make a Drawdown and provided
that at the date of the Drawdown by the Borrower, no acceleration event has
occurred and not been remedied.
No Drawdown may exceed the total amount of the Facility. The aggregate amount of
the Advances may not exceed the amount of the Facility at any time during the
term and performance of the Facility.
The Borrower shall no longer have the right to make Drawdowns after June 30,
2001.
4.2 NOTICE OF FUNDING REQUESTS TO THE BANKS
Upon receipt of the Drawdown notice and no later than four (4) Business Days
before each Drawdown, the Local Agent shall inform the Banks of the amount of
the Advance to be paid
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by each of them in accordance with their respective participations in the
Facility. Each of the Banks so informed shall make the transfer corresponding to
its participation onto the Local Agent's books no later than one (1) Business
Day before the Drawdown date specified in the Drawdown notice and, upon receipt
of such funds, the Local Agent shall credit to the Titan Africa Facility Account
on the Drawdown date the amounts requested in the Drawdown notice.
On the Drawdown date, the Local Agent undertakes to have the amounts specified
in the Drawdown notice, subject to the Borrower's having satisfied all
conditions precedent to the disbursement of said amounts.
In the event of default by one or more of the Banks, said default shall not in
any case release the other Banks from their obligations. The other Banks shall,
no later than the Drawdown date, assume and transfer to the Local Agent the
entirety of the amount of the participation of the defaulting Bank(s) up to the
amount of said default. The share(s) of the defaulting Banks shall be allocated
between/among the remaining Banks pro rata in accordance with their respective
participations.
The Local Agent shall inform the International Agent as soon as the amount of
the Advance has been deposited by the Banks in the "Titan Africa Facility
Account".
4.3 IDENTITY OF THE AUTHORIZED SIGNATORY
The Borrower warrants and represents that it will assume any and all
consequences of erroneous or unauthorized use of the identity of the persons
authorized by it to issue instructions by fax, subject to formal verification by
the Local Agent of the apparent conformity of the signature compared with the
officially authorized signature on file.
The Borrower undertakes not to dispute the acceptance and execution of an
operation directly requested by the Borrower or, on the contrary, refusal to
execute such an operation by the Local Agent. The Borrower shall assume all
consequences of the acceptance and execution of an operation or refusal by the
Local Agent to execute an operation and undertakes to indemnify the Local Agent
for any action or liability, including costs and expenses that may be incurred
by the Local Agent as a result of a breach of the Borrower's obligations under
this Agreement. However, in the event of negligence or a wrongful act (FAUTE) by
the International Agent or the Local Agent, the Borrower shall be entitled to
challenge the acceptance and execution of an operation or the refusal to execute
an operation.
ARTICLE 5 - ACCOUNTING AND REPRESENTATION OF THE FACILITY
5.1 The Local Agent shall open on its books in the name of the Borrower an
account bearing number ____________ entitled "Titan Africa Facility Account",
which shall be used exclusively for Facility operations.
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5.2 The Titan African Facility Account will be credited by the Local Agent with
the amount of each Advance granted by the Banks pursuant to the Drawdowns
requested by the Borrower.
5.3 Funds made available in connection with the Facility may only be credited to
the Titan Africa Facility Account.
5.4 Any amounts owed by the Borrower under the Agreement, including principal,
interest, late-payment interest, costs, and incidental expenses, shall be
debited by the Local Agent from the Titan African Facility Account upon
instructions from the Borrower to the Local Agent. If instructions have not been
received 2 (two) Business Days prior to the scheduled payment date of the
amounts due, the Local Agent shall be authorized to directly debit such funds
from the Titan Africa Facility Account on the scheduled payment date.
5.5 Notwithstanding the foregoing or any other provision to the contrary
contained in this Agreement, neither the Arranger, the Banks, the International
Agent nor the Local Agent shall have the right to set off any amounts due under
the Agreement with the proceeds of any Advance.
ARTICLE 6 - ASSIGNMENT OR TRANSFER
6.1 BORROWER
The Borrower shall in no event be entitled to assign or transfer its rights and
obligations under the Agreement without the prior written approval of the
Majority Banks.
6.2 BANKS
Each Bank shall be entitled to assign or transfer all or part of its rights and
obligations under the Agreement (but in the case of a partial assignment or
transfer, in an amount no less than the FCFA equivalent of FRF 10,000,000) to
any home office, parent company, branch or subsidiary or to any credit
institution that accepts the assignment or transfer (and in the case of an
assignment or transfer to a credit institution, provided the Borrower has given
its prior written approval, which approval shall be deemed to have been given if
the Borrower does not reply within fifteen (15) Business Days from the notice
sent to it).
Notwithstanding the foregoing, no Bank may assign or transfer any of its rights
or obligations under this Agreement without the prior written consent of the
Borrower where such assignment or transfer would be reasonably likely to result
in any increased cost or other liability to the Borrower pursuant to Article 15
or Clause 19.4 hereof.
The assigning or transferring Bank shall send the International Agent, with a
copy to the Borrower, a notice of the proposed assignment or transfer in the
form of APPENDIX 6.2, on the understanding that for each assignment or transfer
the assigning or transferring Bank shall pay the International Agent the lump
sum of FRF 100,000, excluding taxes, intended to cover the administrative costs
incurred by the International Agent in connection with such assignment or
transfer.
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- 15 - TRANSLATION
Upon notifying the Borrower of completion of the assignment or transfer, the
assigning or transferring Bank shall be released from its obligations toward the
Borrower in the amount of the assigned or transferred Commitment and the
Borrower shall be released from its obligations toward the assigning or
transferring Bank.
ARTICLE 7 - INTEREST
7.1 INTEREST RATE
Each Advance shall bear interest from the date on which the Advance is made
available at a fixed rate of 9.5% per annum which includes any taxes that may be
applicable to the interest payments.
7.2 CALCULATION OF INTEREST
Interest shall be based on the real number of Days that have passed during the
relevant Interest Period and a year of three hundred sixty (360) Days.
7.3 PAYMENT OF INTEREST
The Borrower shall pay interest on the last Day of each Interest Period.
The last Day of an Interest Period shall in no event fall after the Final
Repayment Date.
7.4 COMPOUNDING OF INTEREST
Interest shall be compounded at the rate set forth above if it has not been paid
one year after the day it falls due.
ARTICLE 8 - LATE-PAYMENT INTEREST
8.1 LATE-PAYMENT INTEREST RATE
Any amount due, including principal, interest, fees, costs and incidental
expenses, not paid or not repaid by the Borrower within two (2) Business Days
after its due date, and forming the debit balance of the Titan Africa Facility
Account, shall automatically accrue interest without notice from its due date
until the Day of actual payment or repayment, at a rate of 9.5% per annum plus
4% per annum which includes any taxes that may be applicable.
<PAGE>
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8.2 CALCULATION OF LATE-PAYMENT INTEREST
[Late-payment] interest shall be calculated based on the number of Days that
have passed between the due date for any amount owed by the Borrower and (but
excluding) the date on which it was actually repaid, based on a
three-hundred-sixty-(360) Day year.
Application of late-payment interest shall not be construed as granting
additional time for payment, nor as waiving any right arising under this
Agreement and, in particular, the acceleration clauses set forth in Article 16
shall remain in effect.
The Local Agent and Banks waive late-payment interest in the event that the
Local Agent. acting on behalf of the Banks, the Arranger, the International
Agent, and the Local Agent, does not enforce one or more of the guaranties in
Clauses 11.2 through 11.4 within 30 Days following the observation of a default
in payment of all amounts due and payable by the Borrower.
8.3 COMPOUNDING OF LATE-PAYMENT INTEREST
Late payment interest shall be compounded at the rate set forth above if it has
not been paid one year after the day it falls due.
ARTICLE 9 - FEES
The Borrower shall owe the Arranger, International Agent and Local Agent
Arranger's fees, International Agent fees, and Local Agent fees the amounts and
methods of payment of which will be the subject of separate agreements between
each of them and the Borrower.
ARTICLE 10 - REPAYMENTS - PAYMENTS - NO-RECOURSE
10.1 REPAYMENT
10.1.1 SCHEDULE
All amounts due under this Agreement, including principal, interest,
late-payment interest, fees and incidental expenses, shall be repaid in full by
the Final Repayment Date at the latest.
Any payment of principal and interest due under the Facility will be repaid or
paid in seven (7) semi-annual installments, on the due date for each Interest
Period, the first being December 31, 2000 and the last December 31, 2003, in
accordance with the Payment Schedule in APPENDIX 10.1.1 hereto, with the
exception however of the first interest due date, which will be payable on June
30, 2000. If the entire Facility has not been made available to the Borrower by
NOVEMBER 30, 2000 at the latest, the parties agree to meet as soon as possible
<PAGE>
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at the request of either of them to determine jointly and in good faith possible
changes to be made to the Payment Schedule, as well as to the Use and
Amortization Table in APPENDIX 10.1.2.1. The new Payment Schedule will provide
for equal semi-annual installments for the remaining six-month periods.
The parties nevertheless agree to meet between April 30, 2000 and May 31, 2000
in order to discuss the conditions of the use of the Facility and to determine,
as necessary, the adjustments to be made to the Payment Schedule.
The Borrower undertakes to pay the Local Agent for the benefit of the Banks and
the Local Agent the amounts due in connection with the Facility, including
principal, interest, late-payment interest, costs, fees of the Local Agent and
incidental expenses, and to the International Agent the amounts due as Arranger
and International Agent fees on the Day they fall due, respectively, without any
withholding or deduction of any present or future tax, duty, levy or other
costs.
Repayments on the Facility as provided for under the Agreement shall be sent to
the Local Agent, which shall immediately advise the International Agent thereof,
with the value date as of the repayment date, under the reference: "PROJET
BCT/TITAN AFRICA, INC. - CONVENTION DE FACILITE EN DATE DU 10 DECEMBRE 1999 (BCT
Project/Titan Africa, Inc. - Loan Facility Agreement dated December 10, 1999)".
10.1.2 REPAYMENT MECHANISM
10.1.2.1 TRANSFER OF NET REVENUES TO THE PLEDGED PROJECT ACCOUNT
The Parties agree that the amounts of Net Revenues credited to the Pledged
Project Account shall be applied to repay or pay all amounts due by the Borrower
in connection with the Agreement and all amounts due to Titan from O.P.T.B. in
connection with the financing of the Titan Equipment. In accordance with Article
5 hereof, the Local Agent shall debit from the Pledged Project Account on their
Payment Date, (i) any amounts owed by the Borrower with respect to this
Agreement, which amount is to be credited to the Titan Africa Facility Account,
and (ii) an amount equal to the amounts owed to Titan by O.P.T.B. in connection
with the financing of the Titan Equipment, such amount to be paid by the Local
Agent on behalf of O.P.T.B. as Titan may direct.
Each Payment Date shall fall on the last Day of an Interest Period. If however a
Payment Date falls on a Saturday, Sunday, holiday or non-working day in Benin,
repayment shall be postponed until the first Business Day following the initial
repayment date, unless such postponement causes the repayment to fall in the
next calendar month, in which case the repayment date shall be the Business Day
immediately preceding the initial repayment date.
For the purposes of this Agreement, "Payment Date" shall mean (i) with respect
to the Facility, the date on which a payment of principal and interest or
interest alone with respect to the first Interest Period, is due and payable in
accordance with Article 10 hereof; and (ii) with respect to the financing for
the Titan Equipment, the date on which an installment payment is
<PAGE>
- 18 - TRANSLATION
due and payable in accordance with the Use and Amortization Table prepared by
the International Agent on behalf of the Borrower for the BCT Contract.
The Use and Amortization Table shall be prepared by the International Agent on
behalf of the Borrower such that (i) the Payment Dates for the Titan Equipment
financing match the Payment Dates for the Facility, and (ii) the last payment
owed by O.P.T.B. to Titan for the Titan Equipment financing shall be payable on
the Final Repayment Date.
10.1.2.2 PLEDGED PROJECT ACCOUNT SHORTFALL
In the event that the Net Revenues are insufficient to repay in full all amounts
due and payable in accordance with the Use and Amortization Table and the
Payment Schedule, the Net Revenues shall be first applied to repayment of all
amounts due by the Borrower under the Agreement and thereafter to amounts due
for Titan Equipment financing. No shortfall in Net Revenues (i) with respect to
amounts due and payable by the Borrower under the Agreement, shall grant the
Banks, the Arranger, the International Agent or the Local Agent any right of
recourse against the Borrower but shall instead entitle the Banks, the
International Agent, the Arranger, and the Local Agent to exercise their rights
under the guaranties and security interests referred to in Clauses 11.2 through
11.4 hereof, and (ii) with respect to amounts due and payable for Titan
Equipment financing, shall promptly be paid by O.P.T.B. to the Borrower by
deposit to the Pledged Project Account in immediately available funds.
For the application of (ii) above, the Local Agent undertakes promptly to notify
O.P.T.B. of any shortfall in funds permitting repayment in full of amounts due
under the Titan Equipment financing; in addition, any amount received from
O.P.T.B. for this purpose shall be used only for the repayment of the Titan
Equipment financing.
10.1.2.3 DISTRIBUTABLE REVENUES
On any Payment Date, any credit balance remaining on the Pledged Project Account
after the amounts due and payable by the Borrower under the Agreement and the
amounts due and payable for Titan Equipment financing have been debited (the
"Distributable Revenues") shall be divided between the Borrower and O.P.T.B. as
provided for in the allocation basis in the BCT Contract and attached hereto in
APPENDIX 10.1.2.3.A.
The fraction of the Distributable Revenues due to the Borrower will be
immediately transferred to an interest-bearing account opened in the Borrower's
name on the books of the Local Agent. The Borrower shall not transfer this
fraction until after the first Payment Date following the date on which this
fraction was credited to said account. The International Agent, the Arranger,
the Local Agent, the Banks and O.P.T.B. shall not exercise any recourse nor
shall they have any right to set off the amounts in said Account against any
amount that may be owed by the Borrower under the Agreement.
The fraction of the Distributable Revenues due to O.P.T.B. will be immediately
transferred to an interest-bearing account opened in O.P.T.B.'s name on the
books of the Local Agent and pledged in favor of the Banks, the Arranger, the
International Agent and the Local Agent (the "O.P.T.B. Pledged Account") in
accordance with the form of O.P.T.B. Account Pledge
<PAGE>
- 19 - TRANSLATION
Agreement in APPENDIX 10.1.2.3.B attached hereto. O.P.T.B. shall not transfer
this fraction until after the first Payment Date following the date on which
this fraction was credited to said account.
If. on the Payment Date specified in the preceding paragraph, the Local Agent
considers that the amount in the Pledged Project Account is insufficient to
ensure repayment of the amounts due and payable by the Borrower under the
Agreement, it may oppose the transfer request made by O.P.T.B. and, if
necessary, debit from the Pledged O.P.T.B. Account any amount required to ensure
repayment of any amount due and payable by the Borrower to the Banks, the
Arranger, the International Agent and the Local Agent under the Agreement.
O.P.T.B. shall have no recourse against the Borrower with regard to any amount
that the Local Agent may debit from the Pledged O.P.T.B. Account in favor of the
Banks, the Arranger, the International Agent and the Local Agent.
10.2 NO RECOURSE
Notwithstanding any other provision of this Agreement, and except in the event
of fraud, in all of the documents or agreements to which the Borrower is a party
in which a security interest or guaranty is created, or any other documents or
agreements to which the Borrower is a party which relate to the document or
agreement in question, the Parties expressly agree that:
10.2.1 The Borrower's maximum aggregate liability as defined herein,
in contract or tort (intentional torts and negligence), or any
obligation arising from any documents or agreements creating
any security interest to which the Borrower is a party and any
other documents or agreements to which the Borrower is a party
in connection with this Agreement, shall be limited to the
amount of the Net Revenues. In the event that the Net Revenues
are insufficient, the Banks shall have no further recourse
against the Borrower, without prejudice to their rights under
the guaranties and security interests stipulated in Clauses
11.2 through 11.4 hereof.
10.2.2 O.P.T.B. shall not have any recourse whatsoever against the
Borrower with respect to any amount paid by it or any harm
suffered by it by reason of the performance of its obligations
under this Agreement.
10.2.3 In addition, neither the Banks, the Arranger, the
International Agent nor the Local Agent shall have any right
of recourse against the Borrower if any late-payment interest
or other amounts are owed by the Borrower hereunder due to a
delay in the payment of amounts guaranteed by O.P.T.B. in the
event of a Pledged Project Account shortfall or under Clause
11.1.2 hereof.
However, subject to the provisions of Clause 8.2, the Banks
shall retain their rights to late-payment interest or in the
event of enforcement of the guaranties referred to in Clauses
11.2 through 11.4 hereof.
10.2.4 All references to the Borrower in this Clause 10.2 shall mean
the Borrower and its Affiliates.
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10.3 NO SET-OFFS
The Borrower expressly undertakes not to set off any amount owed by it under the
Agreement with any claim it may hold on the Banks or any of them.
10.4 ALLOCATION OF PAYMENTS
All payments received by the Local Agent, the Arranger or the International
Agent shall be applied first to due and payable late-payment interest, next to
interest, then to all other amounts due, and, lastly, to principal, beginning
with amounts with the oldest due date.
10.5 DATE OF PAYMENTS
Without prejudice to Clause 10.1.2.3, each payment shall be made on a Business
Day.
In the event that, in accordance with the provisions of this Agreement, any
amount falls due on a date which is not a Business Day, payment shall be made on
the next Business Day (unless said postponement causes the payment to fall in
the following month, in which case payment shall be made on the previous
Business Day). The Local Agent shall accordingly modify the calculation of the
relevant interest or fee of the Local Agent and the International Agent shall
modify the calculation of the fee of the International Agent, as the case may
be.
10.6 PREPAYMENT
The Borrower shall be entitled to prepay all or part of the outstanding
principal at any time during the term of the Facility, provided notice is given
eight (8) Days in advance.
In the event of a prepayment, the Borrower shall pay a penalty calculated by
applying the interest rate specified in Clause 7.1 hereof to the prepaid
principal over the number of Days between the prepayment date and the scheduled
repayment date, not to exceed three (3) calendar months.
ARTICLE 11 - GUARANTIES
For all amounts owed by the Borrower under the Agreement, the Borrower and
O.P.T.B. shall take or cause to be taken the actions described below, each in
fulfillment of its own responsibilities.
It is expressly agreed among the Parties that the guaranties contained in
Clauses 11.2 through 11.4 herebelow, may only be called after the Local Agent
determines that the amounts available in the Pledged Project Account do not
suffice to pay all amounts due and payable by the Borrower under the Agreement.
<PAGE>
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11.1 DOMICILIATION OF PROJECT REVENUES ON THE DOMICILIATION ACCOUNT AND
PLEDGE OF NET REVENUES IN THE PLEDGED PROJECT ACCOUNT - INDEPENDENT
INVOICING SYSTEMS
11.1.1. During the term hereof and until all amounts owed by the
Borrower to the Banks, the Arranger, the International Agent
and the Local Agent under the Agreement and to Titan for the
financing of the Titan Equipment have been entirely repaid,
O.P.T.B. irrevocably undertakes to domicile all Project
Revenues on the Domiciled Account from which O.P.T.B. will
transfer to the Borrower, as instructed by same, the amount of
the Project Expenses.
O.P.T.B. further undertakes to transfer all of the Net
Revenues from the Domiciliation Account to the Pledged Project
Account at least once every two (2) months and at least five
(5) Days before the due date for each Interest Period.
11.1.2 O.P.T.B. irrevocably undertakes to assume the commercial risk
of partial payment or non-payment of invoices issued in
connection with the operation of the Equipment by crediting
the Domiciled Account with any payment shortfall sixty (60)
Days after issuance of the corresponding invoice(s). Moreover,
O.P.T.B. undertakes not to seek recourse against Borrower for
repayment of any amount paid under this Clause.
11.1.3 The Borrower warrants and represents that the Titan Equipment
and the equipment included in Phases 2, 3 and 5 of the Alcatel
Equipment include independent invoicing systems that make it
possible to segregate Project Revenues, both for existing
subscribers and for new subscribers, from other O.P.T.B.
revenues, and that will enable the Borrower to monitor
invoices issued and revenues generated.
The Borrower undertakes to monitor the operation of these
systems within the context of the Joint Monitoring Committee
and the BCT Contract until all amounts due by it under the
Agreement have been repaid in full.
The Borrower shall send the International Agent every two (2)
months, within thirty (30) days of the Reference Period, a
statement of amounts invoiced in connection with the operation
of the Equipment.
11.1.4 The Pledged Project Account shall be pledged by the Borrower
in favor of the Banks, the Arranger, the International Agent
and the Local Agent to secure payment of all amounts due by
the Borrower under the Agreement, in accordance with form of
Pledged Project Account Agreement in APPENDIX 11.1.4 attached
hereto.
The pledge shall not apply to any amounts, other than Net
Revenues, paid by O.P.T.B. into the Pledged Project Account in
repayment of the Titan Equipment financing.
11.1.5 The Local Agent irrevocably undertakes to administer the
Pledged Project Account as specified in Clause 10.1.2 hereof.
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11.2 FIRST DEMAND GUARANTY OF O.P.T.B.
O.P.T.B. shall issue to the Banks, the Arranger, the International Agent and the
Local Agent an independent and autonomous first demand guaranty for payment of
all amounts due under this Agreement, including but not limited to all
principal, interest, late-payment interest, fees, costs and incidental expenses,
in the form of the document in APPENDIX 11.2.
11.3 ALCATEL EQUIPMENT LIEN
11.3.1 CREATION OF LIEN
The Borrower undertakes to grant a lien on all financed Alcatel
Equipment in favor of the Banks, the Arranger, the International Agent
and the Local Agent as soon as title to the financed Alcatel Equipment
has been transferred to the Borrower by ALCO.
Accordingly, the Borrower and the Local Agent, acting in the name and
on behalf of the Banks, the Arranger, the International Agent and the
Local Agent, shall execute (i) a lien agreement in the form of the
Alcatel Equipment Lien Agreement attached hereto in APPENDIX 11.3.1A
and (ii) an additional lien agreement in the form of the Additional
Alcatel Equipment Lien Agreement attached hereto in APPENDIX 11.3.1B.
11.3.2 INSPECTION OF LIENED ALCATEL EQUIPMENT
The Borrower authorizes the Local Agent to inspect or to have
inspected, by SGS-Cotonou or by BUREAU VERITAS, as the Local Agent may
elect, after prior notice to the Borrower, the liened Alcatel
Equipment, on two occasions during the term of the Facility, and, in
addition, in the event a material adverse circumstance arises which may
substantially affect the liened Alcatel Equipment.
The Borrower undertakes to bear the reasonable costs of the foregoing
inspections carried out by SGS-Cotonou, or by BUREAU VERITAS.
11.3.3 TRANSFER OF THE LIENED ALCATEL EQUIPMENT TO A SUBSIDIARY
It is expressly agreed that the lien shall not bar any transfer of
Alcatel Equipment to a wholly-owned subsidiary of Titan organized under
Benin law and the OHADA subject to compliance with the required
formalities in this regard under Benin law.
11.3.4 RELEASE OF LIEN
The Local Agent shall release the Alcatel Equipment liens upon complete
repayment of all amounts owed by the Borrower to the Banks, the
Arranger, the International Agent, and the Local Agent under the
Agreement.
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11.3.5 INSURANCE POLICIES
The Borrower undertakes to insure the liened Alcatel Equipment against
fire, flood, theft, natural disasters and similar casualties in favor
of the Local Agent, on behalf of the Banks, the Arranger, the
International Agent and the Local Agent during the entire term of the
Facility with the Local Agent named as first loss payee on behalf of
the Banks, the Arranger, the International Agent and the Local Agent.
In the event of a partial or total loss of any Alcatel Equipment, as a
result of which the Agent receives the proceeds of any such insurance
policy, the Local Agent, on behalf of the Banks, the Arranger, the
International Agent and the Local Agent, undertakes, at the request of
the Borrower, first to apply those insurance proceeds to repair,
restore or replace the relevant Alcatel Equipment.
Accordingly, the Borrower undertakes to submit to the Local Agent the
original insurance certificate for the liened Alcatel Equipment and the
transportation of the Alcatel Equipment upon the Borrower's assuming
the risk thereof under the Master Agreement.
11.4 PLEDGE OF THE FACILITY ACCOUNT
The Borrower's claims on the Banks with respect to the Titan Africa Facility
Account shall be pledged in favor of the Banks, in accordance with the Titan
Africa Facility Account Pledge Agreement in APPENDIX 11.4.
11.5 COMFORT LETTER FROM THE REPUBLIC OF BENIN
The Borrower and O.P.T.B. undertake to obtain from the Finance Minister of the
Republic of Benin, with a copy thereof to the International Agent, a comfort
letter from the Republic of Benin [regarding] O.P.T.B.'s continuing obligations
under the Agreement and the BCT Contract in light of the contemplated
modification of the laws and regulations governing the Benin telecommunications
sector and O.P.T.B.'s spin-off. To this end, the Borrower and O.P.T.B. shall
send the Minister of Finance a letter in the form of APPENDIX 11.5, with a copy
to the International Agent.
11.6 CONTINUATION OF TRANSFER AUTHORIZATIONS
The Borrower and O.P.T.B. undertake to obtain from the Ministry of Finance of
the Republic of Benin, with a copy to the International Agent, a letter assuring
the Borrower that all necessary authorizations will be granted to permit the
transfer outside Benin of funds used to pay ALCO under the Master Agreement. To
this end, the Borrower and O.P.T.B. shall send the Minister of Finance, a letter
in the form of APPENDIX 11.6, with a copy to the International Agent.
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ARTICLE 12 - BORROWER'S REPRESENTATIONS AND WARRANTIES
On the understanding that the accuracy of the Borrower's representations and
warranties is deemed to be a determinative and essential condition of the
Banks', the Arranger's, the International Agent's and the Local Agent's
undertakings, the Borrower represents and warrants that:
12.1 the Borrower is organized as a corporation under the laws of the State
of Delaware (United States of America);
12.2 the signatory to the Agreement is invested with the necessary authority
for the Borrower to be bound by the terms of the Agreement;
12.3 the Borrower's obligations under the Agreement rank in all respects
senior or equal (PARI PASSU) to all other debts, commitments and
obligations assumed or made toward all other creditors;
12.4 the execution and performance of the Agreement are not in contravention
of any law or regulation applicable to the Borrower;
12.5 the Borrower is not in breach of its material obligations under a
significant agreement related to the Project to which it is a party;
12.6 no dispute or legal action for more than FRF 10,000,000 or its
equivalent in another currency and likely to have a material adverse
impact on the Borrower's activities, financial situation or assets, is
pending;
12.7 the Borrower's undertakings are made pursuant to a commercial
instrument and it is not entitled to sovereign immunity for itself or
its assets; and
12.8 the Borrower has been informed of the rates applied to standard banking
operations by the Local Agent.
In the event that one or more of these representations and warranties is no
longer true or accurate during the term of the Facility, the Borrower shall
immediately notify the Local Agent thereof.
ARTICLE 13 - BORROWER'S COVENANTS
On the understanding that the following covenants are deemed to be an essential
and determinative condition of the Banks', the Arranger's, the International
Agent's and the Local Agent's undertakings, the Borrower irrevocably undertakes
during the term of the Facility:
13.1 To comply with the laws and regulations currently in force in the State
of the Borrower's incorporation and any that may take effect after the
Agreement is
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executed, in order to ensure at all times that the Agreement is valid
and can be performed.
13.2 To inform the Local Agent immediately of all facts or circumstances
that may constitute or become one or more of the events mentioned in
Article 16 "ACCELERATION".
13.3 To provide the Local Agent with an annual report prepared by Arthur
Andersen or another auditing firm acceptable to the Local Agent,
reviewing and reporting on the Project Expenses.
13.4 To inform the Local Agent immediately of all facts or circumstances
that may affect the authority of the persons represented on the date
hereof as having the capacity to duly bind the Borrower for the
performance of this Agreement or affecting the accuracy or changing any
portion of the representations and warranties in Article 12 "BORROWER'S
REPRESENTATION AND WARRANTIES" and the covenants in Article 13
"BORROWER'S COVENANTS".
13.5 To pay the fees mentioned in Article 9 of the Agreement when due.
13.6 To inform the Local Agent every calendar quarter of the progress of the
Project and to inform it of any event that materially affects or may
affect the Project timetable as soon as [the Borrower] learns of [such
event].
13.7 Not to use the restructuring of Benin debt or the O.P.T.B.'s
privatization as an excuse not to repay any amount due under the
Agreement.
13.8 Until repayment of all amounts due by the Borrower under the Agreement,
not to grant security interests in the Alcatel Equipment, the Net
Revenues or the shares of a Subsidiary incorporated in Benin to another
creditor or creditors for the purpose of performing all or some of the
Borrower's obligations under the BCT Contract, or as a general matter
grant any guaranty, security interest or undertaking having the effect
of according priority to a creditor, without the International Agent's
prior approval.
13.9 To take out and maintain during the term of the Facility, insurance
policies on the Alcatel Equipment and their transportation, in
accordance with Clause 11.3.5 hereof.
13.10 To immediately forward to the Local Agent copies of all correspondence
between the Borrower and the International Agent, and to the
International Agent copies of all correspondence between the Borrower
and the Local Agent, to the extent that such correspondence relates to
this Facility, with the exception of correspondence related to the
commissions mentioned in Article 9 hereof.
13.11 To keep the independent invoicing centers in Calavi (Phases 2 and 3)
and Parakou (Phase 5) in good working order and to record the revenues
generated by the corresponding Equipment precisely and independently of
O.P.T.B., and to inform the Local Agent every month of the amount of
said revenues.
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13.12 To supervise the implementation and completion of the Project through
the Joint Monitoring Committee and, to the extent of the Borrower's
obligations, to create said Committee, and to immediately inform the
Local Agent of any material difficulty in connection with the Project.
13.13 To use the Facility for the purpose set forth in the recitals hereof
and notably, to allocate the proceeds of the first Drawdown to
repayment of the entirety of the Bridge Loan.
ARTICLE 14 - CONDITIONS PRECEDENT TO THE RIGHT TO FIRST DRAWDOWN
The Borrower's right to the first Drawdown shall be subordinate to the
Borrower's providing the International Agent, in a satisfactory form and with a
satisfactory content, the documents listed below, and the International Agent's
approval of the form and content of the said documents, said approval not to be
unreasonably withheld or delayed:
14.1 A duly certified copy of the resolution of the Borrower's Board of
Directors authorizing it to sign the Agreement, to grant the related
security interests and guaranties and appointing its duly authorized
representatives for those purposes.
14.2 A duly certified copy of the Borrower's incorporation certificate,
articles of incorporation and by-laws (STATUTS).
14.3 A duly executed Pledged Project Account Agreement substantially in the
form of APPENDIX 11.1.4.
14.4 A duly executed First Demand Guaranty issued by O.P.T.B. substantially
in the form of APPENDIX 11.2.
14.5 A duly executed Alcatel Equipment Lien Agreement and Additional Alcatel
Equipment Lien Agreement substantially in the form of APPENDIX 11.3.1A
and APPENDIX 11.3.1B.
14.6 The insurance policy certificate stipulated in Clause 11.3.5.
14.7 The duly executed Facility Account Pledge Agreement substantially in
the form of APPENDIX 11.4.
14.8 A legal opinion by the Borrower's Benin lawyer substantially in the
form of APPENDIX 14.8.A and a legal opinion from O.P.T.B.'s Benin
lawyer substantially in the form of APPENDIX 14.8.B.
14.9 A comfort letter from the Republic of Benin with respect to the
continuity of O.P.T.B.'s commitments in reply to the letter sent
jointly by O.P.T.B. and the Borrower in the form of APPENDIX 11.5.
<PAGE>
- 27 - TRANSLATION
14.10 A letter from the Republic of Benin with respect to the right to
transfer the funds in FCFA needed to pay all amounts owed to Alcatel
under the Master Agreement, in reply to the letter sent jointly by
O.P.T.B. and the Borrower in the form of APPENDIX 11.6.
14.11 A duly executed O.P.T.B. Account Pledge Agreement substantially in the
form of APPENDIX 10.1.2.3.B hereto.
ARTICLE 15 - NEW CIRCUMSTANCES
This Agreement is based on the legal, tax and monetary regulatory standards in
force as of the Execution Date in France and Benin.
In case of a legally binding change to a legal or regulatory decision of any
banking supervisory or other authority, which change applies generally to banks
located in France or Benin, subjecting the Banks, the International Agent,
and/or the Local Agent to:
a) Any tax, duty, levy or withholding tax of any kind (except
corporate income tax) on any amount owed by the Borrower by
virtue of this Agreement.
b) New charges or additional costs in connection with the
Facility.
The following provisions shall apply:
1) The International Agent shall promptly inform the Borrower of this new
circumstance in reasonable detail.
2) The Borrower and the International Agent shall meet promptly in order to
resolve the difficulties presented, in the spirit of co-operation in which this
Agreement was executed.
3) If no solution can be found within sixty (60) Days of the date on which the
Borrower receives said notice, the Borrower shall either:
- ask the International Agent to maintain the Facility while
undertaking to bear the entire additional cost that the
International Agent, the Local Agent or the Banks would or will
have to bear from the date on which the new circumstance occurred.
Notification by the International Agent specifying these costs
shall be final and binding unless the Borrower can prove a patent
error; or
- terminate the Banks', the International Agent's and the Local
Agent's undertakings by repaying in full all amounts owed by the
Borrower under the Agreement, including principal, interest,
late-payment interest, costs, fees and incidental expenses.
<PAGE>
- 28 - TRANSLATION
ARTICLE 16 - ACCELERATION
Upon the request of the Majority Banks, and after notifying the Borrower, the
Local Agent shall be entitled to refuse any new Drawdown under the Agreement
and/or to demand immediate (re)payment of all outstanding principal, interest,
late-payment interest, costs, fees and incidental expenses and all other amounts
due under this Agreement, without making demand, formal notice or any judicial
or extra-judicial formality, upon the occurrence of any following events, unless
such event no longer exists on the date the Local Agent notifies the Borrower of
the acceleration event and/or refuses a new Drawdown:
1) In the event that the Borrower fails to pay any amount due under the
Agreement on its due date, if the Borrower does not remedy such default within
15 Days of being given notice to do so;
2) In the event that one or more of the representations and warranties made by
the Borrower in connection with this Agreement ceases to be accurate or in
force;
3) In the event that one or more of the obligations of or covenants undertaken
by the Borrower or the Guarantor in connection with this Agreement ceases to be
substantially valid or in force;
4) In the event that any Benin import license for any material portion of the
Equipment ceases to be substantially valid or in force;
5) In the event that any event occurs which materially affects the Project and
jeopardizes repayment of the Facility;
6) In the event that the Borrower does not perform one or more of its other
obligations under this Agreement within fifteen (15) days after notice requiring
it to remedy such non-performance;
7) In the event of a change in the Borrower's ownership structure or a merger,
spin-off or dissolution of the Borrower;
8) In the event of discontinuation of the Borrower's business; or a material
change in the Borrower's core business; or the Borrower's court-ordered
liquidation; or
9) In the event that any of the guaranties listed in Clauses 11.1 to 11.4 ceases
to be valid and enforceable under the terms of the Agreement in whole or in part
and for any reason whatsoever, except in the event that the Local Agent does not
comply with the formalities set forth in APPENDIX 11.3.1A or APPENDIX 11.3.1B.
ARTICLE 17 - INTERNATIONAL AGENT
17.1 Each Bank irrevocably appoints the International Agent to act as agent and
authorizes the International Agent to take measures on behalf of the Banks'
syndicate and to exercise the
<PAGE>
- 29 - TRANSLATION
powers expressly set forth or delegated to the International Agent in this
Agreement, as well as any that are reasonably the consequence thereof.
[17.2] The International Agent shall not be liable to the Banks, the Borrower,
or the Local Agent, as the case may be, for breach by one or more of the Banks,
the Local Agent or the Borrower of its/their obligations.
17.3 The International Agent shall be entitled to bring or to have the Local
Agent bring any action against third parties, and/or, upon the occurrence of any
event defined in Article 16, against the Borrower, and/or to apply for or cause
to be applied for any interlocutory relief in the interests of the Banks. The
International Agent shall promptly inform the other Banks of such actions.
17.4 The International Agent shall have no obligation to make inquiries or
verifications in order to determine whether the Borrower is in compliance with
and performing its obligations and covenants, or to determine its financial or
legal condition.
The International Agent's disclosure obligations shall be limited to the Local
Agent.
Moreover, the obligation to inform the Local Agent of any facts and conditions
in connection with the Agreement shall be limited to forwarding information
received directly in the performance of its assignment.
17.5 Notwithstanding anything in this Agreement to the contrary, the
International Agent shall not incur any liability towards the Local Agent or the
Banks absent gross negligence or serious misconduct (FAUTE LOURDE). The
International Agent shall be entitled to rely on any document it considers
reasonably and in good faith to be authentic or signed by authorized person(s)
and any communication by the Banks or the Local Agent it reasonably believes to
originate with the said authorized persons.
The International Agent shall be charged with forwarding to the Local Agent all
information provided to it by O.P.T.B. and the Borrower.
17.6 The Borrower shall reimburse the International Agent, for its own account
or on behalf of the Banks, upon presentation of detailed supporting documents,
all costs, expenses, court costs and penalties reasonably incurred by it in
connection with legal proceedings to enforce the Borrower's obligations in the
event of a default by the Borrower.
17.7 If the Borrower does not repay the International Agent as International
Agent or as agent of the Banks hereunder, the Banks undertake reciprocally to
bear the risk of final loss due to use of the Facility, in proportion to the
percentage of their respective participations in the Facility.
17.8 The International Agent shall continue to act as International Agent until
its replacement has been appointed in accordance with the following procedure:
the International Agent shall first submit to the Borrower a list of three (3)
candidates for International Agent. Each of the candidates shall be approved or
rejected by the Borrower. In the event the Borrower has not notified the
International Agent of its approval and/or rejection of each of the candidates,
or in case of refusal to approve the three candidates proposed, within a
<PAGE>
- 30 - TRANSLATION
maximum of 30 (thirty) Days of the date of Borrower's receipt of the list of the
International Agent's proposed candidates, the Majority Banks shall be obligated
to promptly appoint a replacement International Agent.
ARTICLE 18 - LOCAL AGENT
18.1 The International Agent authorizes the Local Agent, on its behalf, to take
such measures and exercise such powers as are expressly provided for or
delegated to the Local Agent in this Agreement as well as those which are
reasonably the consequence thereof.
18.2 The Local Agent is responsible for the prompt transfer to the Borrower of
all amounts received from the Banks in connection with the Facility.
It is further responsible for transferring to the Banks concerned all amounts
received from the Borrower or from the Guarantor on their behalf for repayment
of the principal and payment of the interest, late-payment interest, costs and
incidental expenses under the Facility. Lastly, it is responsible for
transferring the Distributable Revenues to Titan and O.P.T.B. The Local Agent
shall promptly inform the Borrower, O.P.T.B., and the International Agent of
each such transaction.
18.3 The Local Agent shall see to it that the transactions involved in the grant
and release of the Alcatel Equipment liens are duly carried out. It shall
further arrange for regular inspections to be carried out in accordance with
Clause 11.3.2 hereof, with copies of the inspection reports to be sent to the
International Agent and the Borrower.
18.4 Unless expressly stipulated in this Agreement, the Local Agent shall not be
obligated to take any initiative under its own authority; its actions or
decisions not to act shall be valid provided that it acts or refrains from
acting in accordance with the instructions received from the International
Agent.
18.5 Absent a formal request from the International Agent, the Local Agent shall
not be obligated to make inquiries or verifications as regards compliance with
and performance of the Borrower's obligations and covenants or its financial or
legal condition.
The Local Agent shall be responsible for forwarding information received from
the International Agent to the Banks.
Moreover, the obligation to inform the International Agent of any facts or
conditions in connection with the Agreement shall be limited to forwarding
information received directly in the performance of its assignment as a Local
Agent.
18.6 The Local Agent shall not incur any liability toward the Banks absent
serious misconduct or gross negligence (FAUTE LOURDE). The Local Agent shall be
entitled to rely on any document it considers authentic or signed by the
authorized person(s) and on any notice from the International Agent or the Banks
it believes to originate with authorized persons.
<PAGE>
- 31 - TRANSLATION
18.7 Upon presentation of reasonably detailed supporting documents, the Borrower
shall reimburse the Local Agent, on behalf of the Banks, all costs, expenses,
court costs and penalties incurred in connection with legal proceedings to
enforce the Borrower's obligations, in the event of default by the Borrower.
18.8 In its capacity as a Bank, the Local Agent shall have the same rights and
obligations under the Agreement as any other Bank and shall be entitled to
exercise them as though it were not the Local Agent, without being accountable
to the Banks or incurring any specific liability in this respect toward the
Banks.
The fact that a Bank is or becomes the Local Agent shall not in any way impair
its rights as a Bank.
18.9 The Local Agent shall continue to act as Local Agent until its replacement
has been appointed in accordance with the following procedure: the International
Agent shall first submit to the Borrower a list of three candidates for Local
Agent. Each of these candidates shall be approved or rejected by the Borrower,
provided, however, that approval may not be unreasonably withheld.
In the event that the Borrower fails to notify the International Agent of its
approval and/or rejection of each of the candidates, or in the event of refusal
to approve the three candidates proposed, within 30 (thirty) Days of the date of
Borrower's receipt of the list of the International Agent's proposed candidates,
the Majority Banks shall be required to promptly appoint a replacement Local
Agent.
ARTICLE 19 - MISCELLANEOUS
19.1 NO JOINT AND SEVERAL LIABILITY
Subject to the provisions of Clause 4.2, the obligations of the Banks shall be
several and not joint and several. Accordingly, no Bank shall be liable for the
obligations of another Bank.
19.2 WAIVER OF RIGHTS
Failure by the Banks fail to exercise one or more of their rights under the
Agreement or postponement by the International Agent and/or the Local Agent of
the exercise of said rights on behalf of the Banks shall not be construed as an
abandonment or waiver of said rights. Similarly, the partial exercise of a right
or exercise of only one of the remedies available to the Banks shall not prevent
them from exercising their entire rights or from exhausting all remedies
available to them.
Notwithstanding the foregoing, the Borrower shall be entitled to request the
Local Agent, at its discretion, to waive performance of all or part of its
obligations under this Agreement, with the exception of those enumerated in
Article 9 hereof. Said waivers shall be deemed to be effective if the Majority
Banks so agree in writing.
<PAGE>
- 32 - TRANSLATION
19.3 TAXES AND DUTIES
Subject to Clauses 7.1 and 8.1 hereof, any and all present or future taxes,
duties, levies or costs, excluding corporate income tax, or any other tax levied
in lieu of or as an advance on corporate income tax, owed on the income of any
Bank, and due within or without Benin in connection with the Agreement or its
performance shall be borne by the Borrower, including all withholding taxes, if
any, on the interest collected by the Banks in connection with the Facility,
such that the amounts due to the Banks pursuant to this Agreement are in no way
affected.
19.4 NOTICES
Any notice, agreement or communication in connection with this Agreement shall
be sent in French, with a copy in English if the Borrower is the addressee, by
certified letter or international courier, or by tested telex or fax followed by
mailed confirmation, to the following addresses:
BORROWER: Titan Africa, Inc.
Address: 3033 Science Park Road
San Diego, California 92121 (United States of America)
Telephone: 00 1 858 552 97 86
Fax: 00 1 858 552 98 02
Attention: Mr. Ray H. Guillaume
INTERNATIONAL AGENT: AMB - Banque Belgolaise
Address: 6, Avenue Velasquez - 75008 Paris
Telex: 641-088
Fax: 00 33 1 53 93 76 39
Attention: Mr. Idelphonse Affogbolo
LOCAL AGENT: Bank of Africa Benin
Address: 08 BP 0879 Tri Postal Avenue Jean-Paul II
Cotonou, Republic of Benin
Telex: 5079
Fax: 00 229 31 31 17
Attention: Mr. Rene Formey de Saint-Louvent
GUARANTOR: Office des Postes et Telecommunications du Benin
Address: 01 BP 5959
Cotonou, Republic of Benin
Telex: 5206
Fax: 00 229 31 49 42
Attention: Mr. Barthelemy Agnan
Any notice given under this Agreement shall be deemed to be received by the
addressee as follows: if sent by tested telex or fax, on the Business Day
immediately following the Day it is sent; if by international courier, three
Business Days from the day it is mailed, and if by certified letter, ten Days
from the date of mailing.
<PAGE>
- 33 - TRANSLATION
It is agreed that for the purposes of this Clause the term "Business Day"
excludes any Day on which banks are closed for business in New York, NY.
19.5 SURVIVAL
Notwithstanding any provision to the contrary in this Agreement, the expiration
or termination of this Agreement shall not relieve the Borrower and O.P.T.B. of
their respective obligations to pay all amounts due hereunder and Clause 10.2
shall continue to apply.
19.6 ARRANGER
The Arranger shall not be subject to any liability or obligation in that
capacity in connection with the proper performance, validity or contents of the
Agreement or any other document delivered by virtue of the Agreement.
19.7 AMENDMENT
No modification or amendment to this Agreement shall be valid or be binding on
the Parties unless it is made in a writing duly executed by the
representative(s) of each of the Parties.
Notwithstanding the foregoing, the Borrower shall be entitled to request at its
discretion amendments to this Agreement, which amendments shall be binding on
all of the Parties if executed solely by the Borrower and the Majority Banks,
provided, however, that no amendment concerning the amount of the Facility or
the Final Payment Date may be modified unless executed by all of the Parties,
and that any modification to the rights and obligations of the International
Agent and/or the Local Agent requires its/their approval, as the case may be.
19.8 SEVERABILITY
In the event that one of the provisions in the Agreement becomes or is held to
be void, prohibited or invalid, the validity of the other provisions of the
Agreement shall not be affected thereby.
19.9 LANGUAGE
This Agreement is in French, which is the controlling language as between the
Parties. An English translation hereof which satisfactorily reflects the content
of this agreement has nonetheless been prepared for the performance of the
Agreement by Titan.
It is expressly agreed among the Parties that said English translation shall not
be controlling or take precedence over this Agreement.
<PAGE>
- 34 - TRANSLATION
19.10 INTERPRETATION
In the event of any inconsistency between the BCT Contract and this Agreement
with respect to the terms and conditions of repayment of the financing for the
Alcatel Equipment and the Titan Equipment, it is expressly agreed among the
Parties that the terms of this Agreement shall prevail as among the Parties.
ARTICLE 20 - GOVERNING LAW AND CHOICE OF FORUM
20.1 GOVERNING LAW
This Agreement, including its Appendices, is governed by French law, except for
the Alcatel Equipment Lien Agreement, the Titan Africa Facility Account Pledge
Agreement, the Pledged Project Account Agreement, the O.P.T.B. Account Pledge
Agreement, and the First Demand Guaranty which are governed by the laws of the
Republic of Benin.
20.2 DISPUTES
In the event a dispute should arise, the Parties agree to consult one another
with the aim of reaching an amicable settlement. Failing an amicable settlement,
any dispute that may arise in connection with the validity, interpretation or
performance of this Agreement shall be subject to the exclusive jurisdiction of
the Paris courts. However, the Borrower acknowledges that the International
Agent and the Local Agent have the right to sue in any Benin court with
[subject-matter] jurisdiction.
The Parties expressly waive, each on its own behalf and to the extent necessary,
the privilege of sovereign immunity from jurisdiction and enforcement recognized
by any court in which a complaint is filed in accordance with the above
paragraph, or by any court in which an action is brought to enforce a judgment
by such court.
In the event that the payment of an award of damages in a foreign currency after
the required conversion into FCFA falls short of the amount due, the Borrower
shall continue to owe the Banks the difference.
20.3 DOMICILE
For this Agreement and as necessary, the Borrower irrevocably appoints:
Maitre Nicholas J. Costanza
3033 Science Park Road
San Diego, CA 92121
United States of America
Telephone: 00 1 858 552 94 91
Fax: 00 1 858 552 97 59
<PAGE>
- 35 - TRANSLATION
as its agent to receive on its behalf all summons and complaints and all other
judicial instruments that may be served in judicial proceedings.
The International Agent elects domicile at its branch office at 6, Avenue
Velasquez, 75008 Paris, France.
The Local Agent elects domicile at its principal office.
ARTICLE 21: APPENDICES
The following appendices, annexed hereto, are an integral part of the Agreement:
- APPENDIX 1.A: Powers of Attorney of the Banks' Representatives;
- APPENDIX 1.B: Amount and Percentage of the Banks' Participations;
- APPENDIX 1.C: Alcatel Equipment List;
- APPENDIX 1.D: Titan Equipment List;
- APPENDIX 1.E: Excerpt from Financial Model
- APPENDIX 4.1A: Form of First Drawdown Notice;
- APPENDIX 4.1B: Form of Drawdown Notice;
- APPENDIX 6.2: Form of Notice of Assignment or Transfer;
- APPENDIX 10.1.1: Payment Schedule;
- APPENDIX 10.1.2.1: Use and Amortization Table;
- APPENDIX 10.1.2.3A: Division of Project Revenues;
- APPENDIX 10.1.2.3B: O.P.T.B. Account Pledge Agreement;
- APPENDIX 11.1.4: Pledged Project Account Agreement;
- APPENDIX 11.2: Form of Guarantor's First Demand Guaranty;
- APPENDIX 11.3.1A: Alcatel Equipment Lien Agreement;
- APPENDIX 11.3.1B: Additional Alcatel Equipment Lien Agreement;
- APPENDIX 11.4: Titan Africa Facility Account Pledge Agreement;
<PAGE>
- 36 - TRANSLATION
- APPENDIX 11.5: Form of Letter from O.P.T.B. and the Borrower to the
Finance Minister of Benin with respect to the
Continuity of O.P.T.B.'s Commitments;
- APPENDIX 11.6: Form of Letter from O.P.T.B. and the Borrower to the
Finance Minister of Benin with respect to the
Transferability of Amounts in FCFA;
- APPENDIX 14.8.A: Form of Legal Opinion to be Provided by the Borrower;
- APPENDIX 14.8.B: Form of Legal Opinion to be Provided by O.P.T.B..
This Agreement is executed in as many originals as there are parties.
Executed in Cotonou, in eight counterparts,
December 10, 1999
--------------------------------------- --------------------------------
Titan Africa, Inc. AMB-Banque Belgolaise
Represented by Mr. Ray H. Guillaume Represented by Messrs. Idelphonse
Affogbolo and Joel Krief
--------------------------------------- -----------------------------
Office des Postes et Telecommunications ECO Bank Benin
du Benin Represented by Mr. Fogan Sossah
Represented by Mr. Barthelemy Agnan
--------------------------------------- ---------------------------------
Continental Bank Benin Bank of Africa Benin
Represented by Mr. Michel D'Almeida Represented by Mr. Rene Formey de Saint
Louvent
--------------------------------------
Banque Internationale du Benin
Represented by Mr. Dave Lafiaji
<PAGE>
- 36 - TRANSLATION
Done in _____________
On _________________
---------------------------------------
Banque Ouest-Africaine pour le Developpement
Represented by Mr. ___________________
<PAGE>
TRANSLATION
APPENDIX 1.A
POWERS OF ATTORNEY OF THE BANKS' REPRESENTATIVES
<PAGE>
TRANSLATION
APPENDIX 1.B
AMOUNT AND PERCENTAGE OF THE BANKS' PARTICIPATIONS
<PAGE>
TRANSLATION
APPENDIX 1.C
ALCATEL EQUIPMENT LIST
<PAGE>
TRANSLATION
APPENDIX 1.D
TITAN EQUIPMENT LIST
<PAGE>
TRANSLATION
APPENDIX 1.E
EXCERPT FROM THE FINANCIAL MODEL
<PAGE>
TRANSLATION
APPENDIX 4-1A
FORM OF FIRST DRAWDOWN NOTICE
From: Titan Africa, Inc.
To: [Local Agent]
Date:
Ref: Facility Agreement dated December 10, 1999 (the "Agreement")
We have sent the International Agent the documents referenced in Article 14 of
the Agreement.
We herewith request the following drawdown to be provided on _______________
[value date]:
FCFA _______________ repayable in accordance with Clause 10.1.1 of the
Agreement.
We instruct you to pay this advance by:
Crediting our "Titan Africa" Facility Account No. _______________ with FCFA
_______________ corresponding in particular (i) to the amounts owed pursuant to
the repayment of the Bridge Loan, in accordance with Article 4 of the Agreement
and (ii) to the amount of commissions due and payable under the Agreement.
We further instruct you:
By debiting the "Titan Africa" Facility Account, to convert into [FRF] [Euros]
FCFA _______________ and to transfer or have transferred such amount in favor of
[our] account No. _______________ [opened in the name _______________] on the
books of [Bank] under reference _______________.
Please confirm by return the value date of the advance to be disbursed and
execution of the transfer in our favor.
--------------------------------------------
[first name, last name, title and signature]
<PAGE>
TRANSLATION
APPENDIX 4-1B
FORM OF DRAWDOWN NOTICE
From: Titan Africa, Inc.
To: [Local Agent]
Date:
Ref: Facility Agreement dated December 10, 1999 (the "Agreement")
We are sending you the documents stipulated in Clause 4.1 of the Agreement, the
delivery of which to the Local Agent is a condition precedent to each drawdown
other than the first drawdown.
We herewith request the following drawdown(s) to be provided for _______________
[value date]:
FCFA _______________ repayable in accordance with Clause 10.1.1 of the
Agreement.
We instruct you to pay this/these advance(s) by:
Crediting our "Titan Africa" Facility Account No. _______________ with FCFA
_______________.
We further instruct you:
By debiting the "Titan Africa" Facility Account, to convert into [Euros] [FRF]
FCFA _______________ and to transfer or have transferred such amount in favor of
[our] account No. _______________ [opened in the name of _______________] on the
books of [Bank] under reference: _______________.
Please confirm by return the value date of the advances to be disbursed and
execution of the transfer in our favor.
--------------------------------------------
[first name, last name, title and signature]
<PAGE>
TRANSLATION
APPENDIX 6.2
FORM OF NOTICE OF ASSIGNMENT OR TRANSFER
To: Banque Belgolaise
6, avenue Velasquez
75008 Paris
France
Attention: Mr. Idelphonse Affogbolo
cc: Titan Africa, Inc.
3033 Science Park Road
San Diego
California 92121
U.S.A.
Attention: Mr. Ray H. Guillaume
NOTICE OF ASSIGNMENT OR TRANSFER RELATING TO THE LOAN FACILITY AGREEMENT DATED
DECEMBER 10, 1999 (THE "AGREEMENT") WHEREBY A MEDIUM-TERM LOAN FACILITY IN THE
AMOUNT OF THE FCFA EQUIVALENT OF FRF 300,000,000 IS MADE AVAILABLE TO TITAN
AFRICA, INC. (THE "BORROWER") BY A SYNDICATE OF BANKS ON WHOSE BEHALF BANQUE
BELGOLAISE (THE "INTERNATIONAL AGENT") ACTS AS INTERNATIONAL AGENT.
TERMS DEFINED IN THE AGREEMENT AND NOT DEFINED HEREIN SHALL, UNLESS THE CONTEXT
INDICATES OTHERWISE, HAVE THE MEANING DEFINED IN THE AGREEMENT.
1. ______________, the assigning/transferring Bank (the "Bank"), (a)
confirms that the details in the Schedule attached hereto accurately
summarize its Commitment and/or the amount of all Advances owed to it
(b) requests ______________ (the "Transferee") to accept and realize
the assignment or transfer to the Transferee of that part of said
Commitment and/or, as the case may be, such Advances by countersigning
and delivering this Notice of Assignment or Transfer to the
International Agent, with a copy to the Borrower, at their respective
addresses for the delivery of notices specified in the Agreement,
subject to the approval of the Borrower.
<PAGE>
2 TRANSLATION
2. The Bank represents and warrants that:
/ / The Transferee is a home office, parent company, branch or subsidiary
of the Bank,
or
/ / The Transferee is a credit institution, in which case the assignment or
transfer requires the prior written approval of the Borrower,
and, as applicable,
/ / This assignment or transfer would be reasonably likely to result in
increased costs or other liability to the Borrower pursuant to Article
15 ("NEW CIRCUMSTANCES") or Clause 19.3 ("TAXES") of the Agreement, in
which case such assignment or transfer requires the prior written
approval of the Borrower.
3. The Transferee requests the International Agent to accept this Notice
of Assignment or Transfer as being delivered to the International
Agent, with a copy to the Borrower, pursuant to and for the purposes of
Clause 6.2 of the Agreement so as to take effect in accordance with the
terms of the Agreement, and notably upon the prior written approval of
the Borrower, as applicable.
4. The Transferee confirms that it has received a copy of the Agreement
together with such other related documents and information as it has
required and that it has not relied and will not hereafter rely on the
Bank to check or enquire on its behalf into the legality, validity,
effectiveness, accuracy, adequacy or completeness of any such documents
or information. The Transferee further acknowledges that it has not
relied and will not rely on the Bank to assess or keep under review on
its behalf the financial condition, creditworthiness, status or nature
of the Borrower or of any other party to the Agreement.
5. The Transferee hereby undertakes for the benefit of the Bank and each
of the other parties to the Agreement that it will perform its
obligations in accordance with the terms of the Agreement; the
Transferee will perform these obligations after delivery of this Notice
of Assignment or Transfer to the International Agent and to the
Borrower and satisfaction of the conditions (if any) having the effect
of putting into effect such assignment or transfer, including but not
limited to the related prior written approval of the Borrower.
6. The Bank makes no representation or warranty and assumes no
responsibility with respect to the legality, validity, effectiveness,
adequacy or applicability of the Agreement or any document relating
thereto. In addition, the Bank assumes no responsibility for the
financial condition of the Borrower or of any other party to the
Agreement or for the performance by the Borrower of any of its
obligations under the Agreement or any document relating thereto. Any
conditions and warranties, whether express or implied by law or
otherwise, are hereby excluded.
<PAGE>
3 TRANSLATION
7. The Bank remits to the International Agent the lump sum of FRF 100,000,
excluding taxes, to reimburse administrative costs incurred by the
International Agent by reason of the contemplated assignment or
transfer.
8. This Notice of Assignment or Transfer and the rights and obligations of
the parties hereunder shall be interpreted according to, and governed
by, the laws of the French Republic.
The Bank The Transferee
By: By:
Title: Title:
Date: Date:
**********************************
SCHEDULE
A. Bank's Commitment
Total Portion Transferred (which in accordance with Clause
6.2 of the Agreement shall be the equivalent in FCFA
of at least FRF 10,000,000)
B. Bank's Advance(s)
Amount Portion Transferred
<PAGE>
TRANSLATION
APPENDIX 10.1.1
PAYMENT SCHEDULE
<PAGE>
TRANSLATION
APPENDIX 10.1.2.1
USE AND AMORTIZATION TABLE
<PAGE>
TRANSLATION
APPENDIX 10.1.2.3.A
DIVISION OF PROJECT REVENUES
<CAPTION>
Until December 31, 2003 During 36 months During 60 months after the
(or repayment in full of after the repayment in repayment in full of the
the financing of the full of the financing of financing of the Equipment
Equipment) the Equipment in in question
question (as provided in (as provided in the
the BCT Contract) BCT Contract)
Phase 2 O.P.T.B.: 50% - O.P.T.B.: 50%
(GSM Revenues) Titan: 50% Titan: 50%
Phases 1, 3, and 5 O.P.T.B.: 40% O.P.T.B.: 50%
(Non-GSM Revenues) Titan: 60% Titan: 50%
Phase 4 N/A N/A N/A
<PAGE>
TRANSLATION
APPENDIX 10.1.2.3 B
--------------------------------------------------------------------------------
O.P.T.B. ACCOUNT
PLEDGE AGREEMENT
--------------------------------------------------------------------------------
BY AND BETWEEN THE UNDERSIGNED:
1) OFFICE DES POSTES ET TELECOMMUNICATIONS OF BENIN, a state-owned
enterprise with a registered capital of FCFA 7,065,000,000, charged with
the exclusive supply of all telecommunications services in the territory
of Benin, having its registered office at 01 BP 5959 Cotonou, Republic of
Benin, created by decree No. 89-156 dated April 25, 1989, represented by
Mr. Barthelemy Agnan, duly authorized for the purpose hereof by decision
of the Board of Directors dated ______________,
hereinafter referred to as "O.P.T.B.",
PARTY OF THE FIRST PART,
AND:
2) BANK OF AFRICA BENIN, a Benin stock corporation (SOCIETE ANONYME) with a
stated capital of FCFA 3,600,000,000, having its registered office at 08
BP 0879 Tri Postal Avenue Jean-Paul II, Cotonou, Republic of Benin,
registered with the Registry of Commerce of Cotonou under number 15,053 B
represented by Mr. Rene Formey de Saint Louvent, General Manager
(DIRECTEUR GENERAL), duly authorized for the purpose hereof,
acting on its own behalf and on behalf of the Banks, the Arranger, the
International Agent and the Local Agent, a list of which is contained in
ATTACHMENT 1 hereto,
hereinafter referred to as the "Local Agent",
PARTY OF THE SECOND PART.
RECITALS:
1. Within the framework of a telecommunications development project in
Benin covered by a BUILD CO-OPERATE TRANSFER agreement dated August 17,
1999, with O.P.T.B., and in order to finance the purchase of equipment
to be manufactured by Alcatel Contracting S.A. and assistance in
connection with said equipment, Titan Africa, Inc.
<PAGE>
2 TRANSLATION
(hereinafter the "Borrower") has obtained from a syndicate of Benin and
WAEMU (UEMOA) banks, which participate in both cash management and risk
(hereinafter the "Banks"), a facility in CFA Francs in an amount whose
equivalent value is FRF 300,000,000 (three hundred million French
francs) (hereinafter referred to as "Facility") based on the terms and
conditions set forth in the loan facility agreement dated December 10,
1999 (hereinafter referred to as the "Agreement").
2. The Agreement provides for repayment of the amounts due under the
Facility from Net Revenues after the domiciliation by O.P.T.B. of the
Project Revenues on a Domiciliation Account, and then the transfer of
said Net Revenues to a Pledged Project Account opened in the name of
the Borrower on the books of the Local Agent. This account has been
opened under number ______________.
3. The Agreement also provides that O.P.T.B.'s share of Distributable
Revenues under the BCT Contract will be transferred to an account
opened in O.P.T.B.'s name on the books of the Local Agent (hereinafter
the "O.P.T.B.
Account")
4. As one of the conditions precedent to the Agreement's taking effect, it
has been provided that the O.P.T.B. Account be pledged in favor of the
Banks, the Arranger, the International Agent and the Local Agent.
5. Terms starting with a capital letter and not defined herein have the
same meaning as defined in the Agreement.
NOW THEREFORE IT HAS BEEN AGREED AS FOLLOWS:
ARTICLE 1 - PLEDGE
In accordance with Clause 10.1.2.3 of the Agreement, O.P.T.B. hereby assigns the
balance of the Pledged O.P.T.B. Account to the Banks, Arranger, International
Agent and Local Agent in order to guarantee all amounts owed by the Borrower to
the Banks, Arranger, International Agent and Local Agent under the Agreement, in
principal, interest, late-payment interest, costs, fees and incidental expenses,
and in the order of priority set forth in Clause 10.4 of the Agreement.
ARTICLE 2 - OPERATION OF PLEDGED O.P.T.B. ACCOUNT
2.1. O.P.T.B. irrevocably undertakes during the term hereof and until all
amounts owed by the Borrower to the Banks, Arranger, International Agent
and Local Agent under the Agreement have been entirely repaid, or paid,
to transfer to the Pledged O.P.T.B. Account the entirety of its share of
the Distributable Revenues under the BCT Contract and the Agreement.
2.2. O.P.T.B. shall not transfer its share of the Distributable Revenues
credited to the Pledged O.P.T.B. Account until after the first Payment
Date following the date on which said share was credited to the Pledged
O.P.T.B. Account; after said Payment
<PAGE>
3 TRANSLATION
Date, the share in question can be debited from said Account. If, on that
Payment Date, the Local Agent considers that the amounts in the Pledged
Project Account are insufficient to ensure the repayment of amounts due
and payable by the Borrower under the Agreement, it shall be entitled to
refuse the transfer request presented by O.P.T.B. and, if necessary,
transfer from the Pledged O.P.T.B. Account any amount necessary to ensure
the payment of amounts due and payable to the Banks, Arranger,
International Agent and Local Agent by the Borrower under the Agreement.
O.P.T.B. shall not have any recourse against the Borrower for any amount
that the Local Agent may debit from the Pledged O.P.T.B. Account.
2.3 The parties agree that the claims of the Banks, Arranger, International
Agent and Local Agent against O.P.T.B. under the Agreement and O.P.T.B.'s
claims against the Local Agent in connection with the balance of the
Pledged O.P.T.B. Account are interdependent [and are intended to benefit
from an automatic right of set-off].
2.4. The Pledged O.P.T.B. Account shall in no event be overdrawn, and O.P.T.B.
and the Local Agent undertake not to take actions which could cause said
account to be overdrawn.
ARTICLE 3 - INTEREST
All funds credited to the Pledged O.P.T.B. Account with the Local Agent shall
bear interest at rates defined by separate agreement between the O.P.T.B. and
the Local Agent.
ARTICLE 4 - INFORMATION
The Local Agent shall provide the O.P.T.B., with a copy to the International
Agent:
- a monthly statement of accumulated interest within a week following
the end of the month in question
- a monthly account statement within a week following the end of the
month in question
- at O.P.T.B.'s request, information on the balance of the Pledged
O.P.T.B. Account during the term of the loan covered by the
Agreement.
ARTICLE 5 - NOTICES AND DOMICILE
All notices, agreements and communications relating hereto shall be drafted in
French and sent by facsimile, international air courier service or tested telex
to:
<PAGE>
4 TRANSLATION
O.P.T.B.
Address : 01 BP 5959 Cotonou, Republic of Benin
Telex : 5206
Fax : 00.229.31.49.42
Attn. : Mr. Barthelemy Agnan
Local Agent : Bank of Africa Benin
Address : 08 BP 0879 Tri Postal Avenue Jean-Paul II, Cotonou, Republic of Benin
Telex : 5079
Attn. : Mr. Rene Formey de Saint Louvent, Directeur General
International Agent: AMB - Banque Belgolaise
Address : 6 avenue Velasquez - 75008 Paris
Telex : 641-088
Attn. : Mr. Idelphonse Affogbolo
The Local Agent elects domicile at its registered office.
The Local Agent's election of domicile shall not bar application of the
provisions in the first paragraph of this Article.
ARTICLE 6 - REGISTRATION AND SERVICE
This deed may be registered and served on the Local Agent.
Any bearer hereof shall be invested with all powers necessary to record and
serve notice of this pledge.
The costs of serving this pledge shall be borne by O.P.T.B.
ARTICLE 7 - GOVERNING LAW AND JURISDICTION
7.1. This agreement is governed by the law of Benin.
7.2. Any dispute regarding in particular the validity, interpretation or
performance of this Agreement shall be referred to the courts of
Cotonou. The O.P.T.B. herewith acknowledges that the Local Agent,
acting on its own behalf and on behalf of the Banks, Arranger,
International Agent and Local Agent, is entitled to file a claim
before any other Benin court that may have [subject-matter]
jurisdiction.
<PAGE>
5 TRANSLATION
7.3. O.P.T.B. waives any claim to jurisdictional or enforcement
immunity to which it may be entitled in respect of itself or its
assets.
Executed in Cotonou on December 10, 1999
in five originals
-------------------- --------------------
O.P.T.B. Bank of Africa Benin
Mr. Barthelemy Agnan Mr. Rene Formey de Saint Louvent
<PAGE>
6 TRANSLATION
ATTACHMENT 1: LIST OF THE BANKS, THE ARRANGER,
THE INTERNATIONAL AGENT AND THE LOCAL AGENT
AMB
(Arranger)
Banque Belgolaise
(International Agent)
Bank of Africa Benin
(Local Agent)
Banque Ouest Africaine pour le Developpement
Banque Internationale du Benin
Continental Bank Benin
ECO Bank Benin
Bank of Africa Benin
<PAGE>
TRANSLATION
APPENDIX 11.1.4
--------------------------------------------------------------------------------
PROJECT ACCOUNT PLEDGE AGREEMENT
--------------------------------------------------------------------------------
BY AND AMONG THE UNDERSIGNED:
1) TITAN AFRICA, INC., a company organized under the laws of the State of
Delaware (United States of America) having its principal offices at 3033
Science Park Road, San Diego, California 92121 (United States of
America), incorporated on December 16, 1998, represented by Mr. Ray H.
Guillaume, in his capacity as Assistant Treasurer, duly authorized for
the purposes hereof,
hereinafter referred to as the "Borrower",
PARTY OF THE FIRST PART,
2) OFFICE DES POSTES ET TELECOMMUNICATIONS OF BENIN, a state-owned enterprise
with a registered capital of FCFA 7,065,000,000, charged with the
exclusive supply of all telecommunications services in the territory of
Benin, having its registered office at 01 BP 5959 Cotonou, Republic of
Benin, created by decree No. 89-156 dated April 25, 1989, represented by
Mr. Barthelemy Agnan, duly authorized for the purpose hereof by a decision
of the Board of Directors dated __________________________,
hereinafter referred to as "O.P.T.B.",
PARTY OF THE SECOND PART,
3) BANK OF AFRICA BENIN, a company organized under the laws of Benin with a
capital of 3,600,000,000 having its registered office at 08 BP 0879 Tri
Postal Avenue Jean-Paul II, Cotonou, Republic of Benin registered with the
Registry of Commerce of Cotonou under number 15,053 B, represented by Mr.
Rene Formey de Saint Louvent, General Manager (DIRECTEUR GENERAL), duly
authorized for the purpose hereof,
acting in its own name and on behalf of the Banks, the Arranger, the
International Agent and the Local Agent of which a list is attached hereto
as ATTACHMENT 1.
hereinafter referred to as "Local Agent",
PARTY OF THE THIRD PART,
RECITALS:
1. Within the framework of a telecommunications development project in
Benin covered by a Build Co-Operate Transfer agreement dated August
17, 1999 with the O.P.T.B., and in order to finance the purchase of
equipment to be manufactured by Alcatel Contracting S.A. and
assistance in connection with said equipment, the Borrower has
obtained from a syndicate of Benin and WAEMU (UEMOA) banks,
<PAGE>
2 TRANSLATION
which participate in both cash management and risk (hereinafter
the "Banks"), a facility in CFA Francs in an amount whose
equivalent value is FRF 300,000,000 (three hundred million French
francs) (hereinafter the "Facility") based on the conditions set
forth in the loan facility agreement dated December 10, 1999
(hereinafter referred to as the "Agreement").
2. The Agreement provides for repayment of the amounts due by virtue of
the Agreement from Net Revenues. Therefore, O.P.T.B. irrevocably
undertakes to domicile all of the Project Revenues on the
Domiciliation Account and to transfer the Net Revenues to the Project
Account opened in the name of the Borrower on the books of the Local
Agent. This account has been opened under number ____________.
3. As one of the conditions precedent to the Agreement's taking effect,
it has been provided that the Project Account be pledged in favor of
the Banks, Arranger, International Agent and Local Agent.
4. Terms starting with a capital letter and not defined herein have
the same meanings as defined in the Agreement.
NOW THEREFORE IT HAS BEEN AGREED AS FOLLOWS:
ARTICLE 1 - PLEDGE
Subject to Clause 11.1.4, paragraph 2, of the Agreement, the Borrower herewith
pledges to the Banks, Arranger, International Agent and Local Agent the credit
balance of the Pledged Project Account, in order to guarantee all amounts owed
to the Banks, Arranger, International Agent and Local Agent by the Borrower
under the Agreement, in principal, interest, late-payment interest, costs, fees
and incidental expenses and in the order set forth in Clause 10.4 of the
Agreement.
ARTICLE 2 - OPERATION OF PLEDGED ACCOUNT
2.1. O.P.T.B. irrevocably undertakes until all amounts owed by the Borrower to
the Banks, Arranger, International Agent and Local Agent under the
Agreement as well as all amounts owed by O.P.T.B. to Titan for the Titan
Equipment financing have been entirely repaid, or paid, to transfer the
entirety of the Net Revenues to the Pledged Project Account.
2.2. Subject to Clause 10.1.2 of the Agreement, the Local Agent shall at the
date of each Payment Date, debit the balance of the Pledged Project
Account (i) in the amount of all payments due and payable by the Borrower
under the Agreement and transfer the amount to the Titan Africa Facility
Account, and (ii) in an amount equal to the amounts due and payable to
Titan by O.P.T.B. for the Titan Equipment financing, and transfer this
amount, on O.P.T.B.'s behalf, in accordance with Titan's instructions.
<PAGE>
3 TRANSLATION
Upon the occurrence of an event of acceleration as provided for
in Article 16 of the Agreement, the Local Agent shall be entitled
to debit the balance of the Pledged Project Account in the amount
due and payable under the Agreement, in accordance with said
Article 16 of the Agreement.
Any balance remaining in the Pledged Project Account will be
transferred to the Borrower and, as applicable, to O.P.T.B., in
accordance with Clause 10.1.2.3 of the Agreement.
2.3. The Pledged Project Account shall in no event be overdrawn and
O.P.T.B. and the Local Agent undertake not to take any actions
that would cause such account to be overdrawn.
2.4 The pledge created hereby shall be automatically cancelled upon
repayment or payment of all amounts owed by the Borrower under the
Agreement, and the balance of the Pledged Project Account will be
immediately paid to the Borrower and, as the case may be, to
O.P.T.B., free of any claim, guaranty or encumbrance whatsoever in
favor of the Banks, Arranger, International Agent and Local Agent.
The parties agree that the terms of Clause 10.2 of the Agreement
are expressly incorporated herein. In the case of any
inconsistency between the Agreement and this agreement, it is
expressly agreed among the parties that the terms of the Agreement
shall prevail among the parties.
ARTICLE 3 - INTEREST
All funds credited to the Pledged Project Account with the Local Agent shall
bear interest at rates defined by separate agreement between the Borrower and
the Local Agent.
ARTICLE 4 - INFORMATION
The Local Agent shall provide the Borrower, with a copy for O.P.T.B. and the
International Agent:
- a monthly statement of accumulated interest, within a week after the
end of the month in question,
- a monthly account statement, within a week after the end of the month
in question,
- at the Borrower's request, information on the balance in the Pledged
Project Account during the term of the loan granted pursuant to the
Agreement.
ARTICLE 5 - NOTICES AND DOMICILE
All notices, agreements and communications relating hereto shall be sent in
French, with a copy in English if the Borrower is the addressee, and sent by
facsimile, air mail, international air courier or tested telex to:
<PAGE>
4 TRANSLATION
O.P.T.B. : O.P.T.B.
Address : 01 BP 5959 Cotonou, Republic of Benin
Telex : 5206
Fax : 00 229 31 49 42
Attn. : Mr. Barthelemy Agnan
Local Agent: Bank of Africa Benin
Address : 08 BP 0879 Tri Postal Avenue Jean-Paul II, Cotonou,
Republic of Benin
Telex : 5079
Attn. : Mr. Rene Formey de Saint Louvent
Borrower : Titan Africa, Inc.
Address : 3033 Science Park Road, San Diego, California 92121
Telex : 00 1 858 552 9802
Attn. : Mr. Ray H. Guillaume
International Agent: AMB - Banque Belgolaise
Address : 6, avenue Velasquez - 75008 Paris
Telex : 641-088
Attn. : Mr. Idelphonse Affogbolo
The Local Agent elects domicile at its registered office.
For the purpose of this Agreement, the Borrower irrevocably appoints:
Agnes Campbell, Esq.
Cabinet Campbell, Maga
BP 111 RP Cotonou
Republic of Benin
as its agent to receive, on its behalf, all summons and other legal instruments
which may be served during any legal proceedings, with copy for informational
purposes only to Fabrice Rue, Esq., Cariddi, Mee, Rue, Avocats Associes, 12 rue
de la Paix, 75002 Paris, telephone (0)1 42 61 57 71, fax (0)1 42 61 79 21.
The Borrower's election of domicile shall not bar application of the provisions
in the first paragraph of this Article.
ARTICLE 6 - RECORDATION AND SERVICE OF PROCESS
This deed may be recorded and served on the Local Agent.
<PAGE>
5 TRANSLATION
A bearer hereof shall be vested with all powers necessary to record and serve
notice of this pledge.
The cost of serving this pledge shall be borne by the Borrower.
ARTICLE 7 - GOVERNING LAW AND JURISDICTION
7.1. This agreement is governed by the law of Benin.
7.2. Any dispute regarding, in particular, the validity, interpretation or
performance of this Agreement shall be referred to the courts of
Cotonou, the Borrower and O.P.T.B. herewith acknowledging that the
Local Agent is entitled to file suit in any other court in Benin that
may have [subject-matter] jurisdiction.
7.3. The Borrower and O.P.T.B., each on its own behalf, waive any claim to
jurisdictional or enforcement immunity to which it may be entitled in
respect of itself or its assets.
Executed in Cotonou, December 10, 1999
in five originals
------------------------------- --------------------
O.P.T.B. Bank of Africa Benin
Mr. Barthelemy Agnan Mr. Rene Formey de Saint Louvent
----------------
Titan Africa, Inc.
Mr. Ray H. Guillaume
<PAGE>
6 TRANSLATION
ATTACHMENT 1: LIST OF THE BANKS, THE ARRANGER,
THE INTERNATIONAL AGENT AND THE LOCAL AGENT
AMB
(Arranger)
Banque Belgolaise
(International Agent)
Bank of Africa Benin
(Local Agent)
Banque Ouest Africaine pour le Developpement
Banque Internationale du Benin
Continental Bank Benin
ECO Bank Benin
Bank of Africa Benin
<PAGE>
TRANSLATION
APPENDIX 11-2
--------------------------------------------------------------------------------
FIRST DEMAND GUARANTY
--------------------------------------------------------------------------------
BY AND BETWEEN:
OFFICE DES POSTES ET TELECOMMUNICATIONS DU BENIN, a state-owned enterprise with
autonomous legal status organized under the laws of Benin, having its registered
office at 01 BP 5959 Cotonou, Republic of Benin, created by decree No. 89-156
dated April 25, 1989, represented by Mr. Barthelemy Agnan, duly authorized for
the purpose hereof, by a decision of its Board of Directors dated
________________,
(hereinafter referred to as the "Guarantor" or "O.P.T.B.")
PARTY OF THE FIRST PART,
AND:
BANK OF AFRICA BENIN, a Benin stock corporation (SOCIETE ANONYME) with a stated
capital of FCFA 3,600,000,000 having its registered office at 08 BP 0879 Tri
Postal Avenue Jean-Paul II, Cotonou, Republic of Benin, registered with the
Registry of Commerce of Cotonou under number 15,053-B represented by Mr. Rene
Formey de Saint Louvent, General Manager (DIRECTEUR GENERAL), duly authorized
for the purpose hereof,
acting in its own name and on behalf of the Banks, Arranger, International Agent
and Local Agent, of which the list is attached hereto as ATTACHMENT 1.
(hereinafter referred to as the "Beneficiary")
PARTY OF THE SECOND PART.
<PAGE>
2 TRANSLATION
RECITALS:
For the purpose of a vast investment program designed to increase the capacity
of its telephony network and the accessibility of telecommunications services
for the Benin population, O.P.T.B., which has a monopoly on the supply of all
telecommunications services in Benin territory, has awarded The Titan
Corporation, a company organized under the laws of the State of Delaware, a
BUILD, CO-OPERATE AND TRANSFER contract dated August 17, 1999 (hereinafter
referred to as the "BCT Contract"), that was transferred to Titan Africa, Inc.,
incorporated on December 16, 1998 in the State of Delaware (United States of
America), (hereinafter the "Borrower"), the supply to O.P.T.B. of turnkey
telecommunications equipment designed to extend and modernize fixed, traditional
and cellular telephony networks and to provide technical assistance with the
installation and operation of said equipment.
In order to perform its undertakings in connection with Phases 2 to 5 of the BCT
Contract, the Borrower has signed a Master Agreement for supplies and services
with Alcatel Contracting S.A. (hereinafter "ALCO"), a 95%-held Alcatel
subsidiary, to supply the required equipment and to provide O.P.T.B. with
technical assistance during the first months of operation. The coming into force
of the Master Agreement is subject to the execution of a credit agreement to
finance Phases 2 to 5 of the Project.
In order to finance Phases 2 to 5 of the BCT Contract, the Borrower has, under
an agreement dated December 10, 1999 (hereinafter the "Agreement") concluded a
loan in an amount with the equivalent value of FRF 300,000,000 with a syndicate
of Banks, for which the Beneficiary is the Local Agent, of which the final
payment date is set for December 31, 2003.
By way of condition precedent to the drawdowns, the Agreement provides that
Guarantor shall grant to the Beneficiary on behalf of the Banks, Arranger,
International Agent and Local Agent an unconditional and irrevocable first
demand guaranty on the part of the Guarantor covering the performance of all the
Borrower's undertakings in favor of the Banks, Arranger, International Agent and
Local Agent under the Agreement according to the terms hereafter.
NOW THEREFORE IT HAS BEEN AGREED AS FOLLOWS:
ARTICLE 1 - PURPOSE OF THE GUARANTY
The Banks have granted the Borrower a Facility on the terms and conditions of
the Agreement, of which the Guarantor represents and warrants it has full
knowledge, by virtue of which the Guarantor agrees to grant a guaranty to the
Banks, Arranger, International Agent and Local Agent.
The Guarantor undertakes autonomously, unconditionally and irrevocably, to pay
the Beneficiary immediately on first demand any amount of which the Beneficiary
demands payment during the term of validity of this guaranty, up to the amount
in principal, increased by interest, late-payment interest, costs, fees and
incidental expenses, owed by the Borrower to the Banks, Arranger, International
Agent and local Agent based on the Agreement up to a total amount in CFA Francs
equivalent to FRF 360,000,000.
<PAGE>
3 TRANSLATION
ARTICLE 2 - TERMS OF EXERCISE OF GUARANTY
The Beneficiary shall be entitled to call this guaranty at any time from the
Effective Date as defined in Article 6 below.
Any demand by the Beneficiary shall:
(i) be addressed in French to the Guarantor by any means, confirmed by
tested telex or registered letter with return receipt requested, at the
following address:
O.P.T.B.
01 BP 5959
Cotonou
Republic of Benin
(ii) mention that the amounts available in the Pledged Project Account being
insufficient to pay in their entirety all amounts due under the
Agreement during or upon expiration of any interest period, the
Borrower has not fulfilled its payment obligation towards the
Beneficiary, on behalf of the Banks, Arranger, International Agent and
Local Agent on the due dates stipulated in the Agreement;
(iii) specify the amount payment of which is demanded.
ARTICLE 3 -GUARANTOR'S SPECIFIC OBLIGATIONS
The Guarantor undertakes to inform the Beneficiary of any event which might
alter its situation in respect of this first demand guaranty undertaking.
ARTICLE 4 - SCOPE OF GUARANTY
The Guarantor acknowledges that this first demand guaranty undertaking is a
direct, irrevocable and unconditional commitment on its part, which is
autonomous and independent from the Agreement as well as from the Borrower's
obligations under the Agreement.
The Guarantor expressly undertakes to perform its obligations under this
guaranty, even in the event that the Borrower is prevented from performing its
obligations due to a moratorium, any laws or regulations, or proceedings seeking
to enforce either an undertaking or a court judgment.
The Guarantor shall refrain from raising against the Beneficiary any exception
which the Borrower could raise against the Banks, Arranger, International Agent
and Local Agent in connection with the Agreement or any exception based on the
validity of the Borrower's incorporation or existence or capacity to carry on
its activities or perform its obligations, the
<PAGE>
4 TRANSLATION
lack of authorizations that are or become necessary and, more generally, any
fact or legal or regulatory provision.
The Guarantor undertakes not to claim novation in the event of a change in the
Borrower's legal status.
ARTICLE 5 -GUARANTOR'S WARRANTIES AND REPRESENTATIONS
The Guarantor warrants and represents that:
- it has the capacity to grant this first demand guaranty and to perform
the resulting obligations;
- the signatory was duly authorized to grant hereby a first demand
guaranty in the name of the Guarantor;
- the execution of this first demand guaranty and its resulting
performance hereof do not violate its Articles of Incorporation, nor
any laws, decrees or other regulatory or administrative provisions
applicable to it and do not violate a contract or any instrument to
which it is a party or by which it is bound;
- all authorizations necessary for the issuance of this first demand
guaranty, and in particular that of its Board of Directors, have been
obtained.
ARTICLE 6 - TERM OF GUARANTY
The deadline for making a demand under this first demand guaranty shall be on
January 31, 2004, inclusive.
This guaranty shall be valid from the date on which this agreement is executed
(hereinafter the Effective Date) and until payment in full to the Beneficiary of
all amounts due under said guaranty.
ARTICLE 7 - GOVERNING LAW AND JURISDICTION
This guaranty is governed by Benin law.
Failing amicable settlement, any dispute regarding, in particular, the validity
or performance of this guaranty shall be referred exclusively to the courts of
Cotonou.
<PAGE>
5 TRANSLATION
Notwithstanding the foregoing, the Guarantor herewith grants the Beneficiary the
right to file a claim before any other court in Benin that may have
[subject-matter] jurisdiction.
The Guarantor expressly waives, to the extent necessary, any privilege of
jurisdictional or enforcement immunity which it may be granted by the court
petitioned in accordance with the preceding paragraph, or by any court
petitioned to enforce an order issued by such a court.
In the event that payment of a sentence in a foreign currency, after necessary
conversion to FCFA, does not reach the amount owed, the Guarantor shall still
owe the Beneficiary the remainder on behalf of the Banks, Arranger,
International Agent and Local Agent.
ARTICLE 8 - DOMICILE
For the purpose of performance hereof, the parties elect domicile at the
addresses first mentioned above herein.
Any notice or other communication to be made in connection with this guaranty
shall be sent by registered letter with return receipt requested or tested telex
to the above addresses.
In the event that either of the parties changes its address, it shall inform the
other party thereof by registered letter with return receipt requested or tested
telex. Failing such notice, the other party shall be deemed to have validly sent
all notices or communications related to this guaranty to the last known address
for which it has received due notice.
ARTICLE 9 - COSTS
All legal and extra-judicial costs generated by performance of obligations
resulting from this guaranty shall be borne by the Guarantor.
Executed in Cotonou,
On December 10, 1999,
In two originals
--------------------- --------------------------------
For O.P.T.B. For the Beneficiary
represented by Mr. Barthelemy Agnan represented by Mr. Rene Formey
de Saint Louvent
<PAGE>
6 TRANSLATION
--------------------------------------------------------------------------------
ATTACHMENT 1
--------------------------------------------------------------------------------
LIST OF THE BANKS, THE ARRANGER,
THE INTERNATIONAL AGENT AND THE LOCAL AGENT
AMB
(Arranger)
Banque Belgolaise
(International Agent)
Bank of Africa Benin
(Local Agent)
Banque Ouest Africaine pour le Developpement
Banque Internationale du Benin
Continental Bank Benin
ECO Bank Benin
Bank of Africa Benin
<PAGE>
TRANSLATION
APPENDIX 11.3.1A
--------------------------------------------------------------------------------
ALCATEL EQUIPMENT LIEN AGREEMENT
--------------------------------------------------------------------------------
BY AND BETWEEN:
TITAN AFRICA, INC., a company organized under the laws of the State of Delaware
(United States of America) having its principal office at 3033 Science Park
Road, San Diego, California 92121 (United States), incorporated on December 16,
1998, represented by Mr. Ray H. Guillaume in his capacity as Assistant
Treasurer, duly authorized for the purpose hereof,
hereinafter referred to as the "Lienor"
PARTY OF THE FIRST PART,
AND:
BANK OF AFRICA BENIN, a company organized under the laws of Benin, with a
registered capital of FCFA 3,600,000,000, having its principal office at 08 BP
0879 Tri Postal, Avenue Jean-Paul II, Cotonou, Republic of Benin, registered
with the Registry of Commerce of Cotonou under n(degree) 15,053 B, represented
by Mr. Rene Formey de Saint Louvent, duly authorized for the purpose hereof.
Acting on behalf of the Banks, Arranger, International Agent and Local Agent,
the list of which is annexed hereto as ATTACHMENT 1.
hereinafter referred to as the "Beneficiary"
PARTY OF THE SECOND PART.
RECITALS:
The Lienor has requested the Banks to grant a facility in FCFA with an
equivalent value of FRF 300,000,000 (hereinafter the "Facility") under an
agreement (the "Agreement"), signed on December 10, 1999, among the Lienor,
Banks, Arranger, International Agent, Local Agent and O.P.T.B. to help cover its
borrowing requirements in connection with the purchase of equipment to be
manufactured by Alcatel Contracting S.A. (hereinafter the "Alcatel Equipment")
in connection with a telecommunications equipment project covered by a BUILD
CO-OPERATE AND TRANSFER (BCT) contract between the Lienor and O.P.T.B. dated
August 17, 1999.
Said Agreement sets forth the Lienor's irrevocable undertaking to grant a lien
on the equipment financed by means of the Facility in order to guarantee payment
to the Banks,
<PAGE>
2 TRANSLATION
Arranger, International Agent and Local Agent of all amounts due by the Borrower
under the Agreement.
Terms starting with a capital letter and not defined herein have the same
meaning as defined in the Agreement.
NOW THEREFORE IT HAS BEEN AGREED AS FOLLOWS:
ARTICLE 1 - PURPOSE
In order to secure and guarantee payment and repayment, in principal, interest,
late-payment interest, costs, fees and incidental expenses, of all amounts owed
by the Lienor, now or in the future to the Banks, Arranger, International Agent
and Local Agent under the Agreement, up to an amount with the equivalent value
in FCFA of two hundred fifty million French francs (FRF 250,000,000) in
principal, interest, late-payment interest, costs, fees and incidental expenses,
the Lienor grants as a commercial lien in favor of the Banks, Arranger,
International Agent and Local Agent, the Alcatel Equipment as and upon the
transfer of their title to the Lienor. A list of the Alcatel Equipment is in
ATTACHMENT 2 hereto.
The conditions for repayment of amounts in principal, interest, late-payment
interest, costs, fees and incidental expenses owed by the Borrower to the Banks,
Arranger, International Agent and Local Agent under the Agreement, and in
particular by application of Articles 10 and 16 of the Agreement, are in
ATTACHMENT 3 hereto.
ARTICLE 2 - OWNERSHIP OF ALCATEL EQUIPMENT
The Alcatel Equipment covered by this Agreement is or shall be the Lienor's
property at the date on which the lien is created and the Lienor acknowledges
same and warrants and represents that other than the lien created in favor of
the Banks, Arranger, International Agent and Local Agent, they are unencumbered
and will remain unencumbered from any other restriction and in particular,
without limitation, liens, sureties, or guaranties.
The Lienor, which is the current or future owner of said Alcatel Equipment,
undertakes to inform the Local Agent of any potential changes which may effect
ownership of the Alcatel Equipment covered hereby.
ARTICLE 3 - INSURANCE OF ALCATEL EQUIPMENT
In application of Article 94 of the Uniform Act on the Organization of Sureties
adopted on April 17, 1997 by the States party to the OHADA Treaty, the Alcatel
Equipment, being the Lienor's property, shall be insured and shall remain
insured in conformity with Clause 11.3.5 of the Agreement with Factory Mutual
Insurance Company under policy number UA-725.
The insurance policy taken out by the Lienor to cover this Alcatel Equipment
shall designate the Local Agent as the first beneficiary, in the name of and on
behalf of the Banks, Arranger, International Agent and Local Agent.
The Lienor agrees to provide the Local Agent with an insurance certificate as
provided in Clauses 11.3.5 and 14.6 of the Agreement relating to the liened
Alcatel Equipment as well as
<PAGE>
3 TRANSLATION
transportation of the Alcatel Equipment as from the transfer of the risk to the
Lienor in accordance with the Master Agreement.
The Lienor states that it shall be personally responsible for the value of the
Alcatel Equipment to be declared for insurance purposes.
ARTICLE 4 - WAREHOUSES
The Alcatel Equipment will be received at O.P.T.B.'s warehouses in Calavi or
directly at O.P.T.B.'s installation sites in Benin.
ARTICLE 5 - LIENOR'S OBLIGATIONS
The Lienor undertakes to:
- Adopt all commercially reasonable measures to have O.P.T.B. ensure the
surveillance of the Alcatel Equipment in these warehouses from the moment when
it enters until the moment when it leaves said warehouses or on O.P.T.B.'s
installation sites.
- Maintain effective access to the aforementioned warehouses or sites, the
subject hereof, for the purposes of the inspections provided for in Clause
11.3.2 of the Agreement.
- Inform the Local Agent of the measures reasonably necessary to safeguard said
Alcatel Equipment.
- Not to dispose of any of the Alcatel Equipment unless with the Local Agent's
express written permission, unless pursuant to Article 6 hereof, to the transfer
of the Alcatel Equipment to O.P.T.B. or to the delivery of said Alcatel
Equipment pursuant to enforcement of a court or administrative decision; such
delivery automatically entailing total and definitive release from all
commitments undertaken in connection with said Alcatel Equipment.
- To the extent that it is reasonably practicable, have affixed to the Alcatel
Equipment a plate indicating the clerk of the commercial court where recordation
took place, and the recordation date and number. The plate must be mounted as a
fixture and clearly visible as soon as the suppliers have delivered the Alcatel
Equipment to the Lienor. The plate may not be voluntarily destroyed, removed or
recovered by the Lienor before the lien is lifted or recordation has been
expunged.
The parties agree further that the Lienor, who shall remain the owner of said
Alcatel Equipment, shall bear all costs inherent in its storage and protection
in connection with this agreement.
ARTICLE 6 - TRANSFER
The Lienor will be authorized, subject to applicable formalities provided under
Benin law and by the uniform acts of OHADA, to transfer the pledged Alcatel
Equipment to a wholly-owned subsidiary of Titan, incorporated in conformity with
Benin law.
The prior authorization of the lien beneficiary required by Article 97 of the
Uniform Act for the Organization of Sureties mentioned above is considered to be
granted hereby.
<PAGE>
4 TRANSLATION
This subsidiary of the Lienor will substitute itself for the Lienor in the
performance of the obligations resulting herefrom.
ARTICLE 7 -FORECLOSURE OF LIEN
In the event of a default in payment of the amounts due under the Agreement and
fifteen (15) days after notice served by the Local Agent on the Lienor by a
process server, remaining uncured, and subject to the terms of Article 16 of the
Agreement, the Local Agent, on behalf of the Banks, Arranger, International
Agent and Local Agent, may proceed with the forced public sale of the Equipment,
in order to obtain the foreclosure of its lien on the Alcatel Equipment in
accordance with the provisions of article 56.1 of the Uniform Act on the
Organization of Sureties.
ARTICLE 8 - TERM
The Lienor grants this lien to the Local Agent, on behalf of the Banks,
Arranger, International Agent and Local Agent until repayment in full of all
amounts due to the Banks, Arranger, International Agent and Local Agent by the
Borrower under the Agreement, in principal, interest, late-payment interest,
costs, fees and incidental expenses, and it will automatically become null and
void upon once said repayment is made in full.
Further, the Local Agent undertakes to take any measures or actions necessary in
order to obtain the release of the lien on the Alcatel Equipment as soon as said
repayment is made in full.
ARTICLE 9 - DOMICILE
For the performance of this agreement which, by express agreement, is governed
by the laws of Benin, the parties elect domicile in the jurisdiction of the
court of first instance of Cotonou, at the following addresses:
The Lienor:
Agnes Campbell, Esq.
Cabinet Campbell, Maga,
B.P. 111
RP Cotonou
Republic of Benin
with copy for information only to Fabrice Rue, Esq., Cabinet Cariddi Mee Rue,
Avocats Associes, 12 rue de la Paix, 75002 Paris, telephone:
00.33.1.42.61.57.71, fax: 00.33.1.42.61.79.21.
The Local Agent elects domicile at its registered office as first above written.
<PAGE>
5 TRANSLATION
ARTICLE 10 - RECORDATION - FORMALITIES
Within fifteen (15) Days from the execution hereof, the Local Agent, on behalf
of the Banks, Arranger, International Agent and Local Agent, shall, at the
Lienor's expense, register this deed with the Tax Authority and, at the Lienor's
expense, make recordation at the registry of commerce and credit at the clerk of
the court of first instance of Cotonou. It is expressly agreed as between the
parties that any default by the Local Agent in fulfilling the formalities
provided for by this agreement shall not constitute an event of acceleration
under Clause 16(9) of the Agreement.
All duties, taxes, levies, fines, penalties and other incidental expenses or
costs that may arise from this lien and its performance shall be borne by the
Lienor.
ARTICLE 11 - GOVERNING LAW AND JURISDICTION
This agreement is governed by the laws of Benin. The parties agree that any
litigation concerning the validity, performance or interpretation of this
agreement will be submitted to the courts of Cotonou, the Local Agent retaining
the option to file its action before any other Benin court that may have
[subject-matter] jurisdiction.
For the performance of this agreement which, by express agreement, is governed
by the laws of Benin, the parties elect domicile at their respective addresses
as set forth in the premises of this agreement, and submit to the jurisdiction
of the courts of Cotonou. The Local Agent reserves the right to file a claim
before any Benin Court having [subject-matter] jurisdiction at its discretion.
Executed in Cotonou, on December 10, 1999
in six copies (including two for recordation and one for the registry of
commerce and credit).
TITAN AFRICA, INC.(1) BANK OF AFRICA BENIN
-------------------- ------------------
Mr. Ray H. Guillaume Mr. Rene Formey de Saint
Its Assistant Treasurer Louvent
Its General Manager
(DIRECTEUR GENERAL)
(l) Precede signature with the hand-written words "for lien" and affix the
company stamp.
<PAGE>
6 TRANSLATION
ATTACHMENT 1: LIST OF BANKS, THE ARRANGER,
THE INTERNATIONAL AGENT, AND THE LOCAL AGENT
Africa Merchant Bank 6, Avenue Velasquez - 75008 Paris, France
(Arranger)
Banque Belgolaise Cantersteen I - 1000 Bruxelles, Belgique
(International Agent)
Bank of Africa Benin (Local Agent) 08 BP
0879 Tri Postal Avenue Jean-Paul II
BP 2020 Cotonou - Republique du
Benin
Banque Ouest Africaine pour le 68, Avenue de la Liberation
Developpement BP 1172 - Lome (Togo)
Banque Internationale du Benin Carrefour des 3 Banques, Avenue Giran
03 BP - 2098 Jericho Cotonou
Republique du Benin
Continental Bank Benin Carrefour des 3 Banques Avenue Jean-Paul II
BP 2020 Cotonou
Republique du Benin
Eco Bank Benin Rue du Gouverneur Bayol
BP 1280 Cotonou
Republique du Benin
Bank of Africa Benin 08 BP 0879 Tri
Postal Avenue Jean-Paul II BP 2020
Cotonou - Republique du Benin
<PAGE>
7 TRANSLATION
ATTACHMENT 2: LIST OF ALCATEL EQUIPMENT
<PAGE>
8 TRANSLATION
ATTACHMENT 3: PAYMENT SCHEDULE
AND EVENTS OF ACCELERATION
Upon the request of a Majority of the Banks, and after notifying the Borrower,
the Local Agent shall be entitled to refuse any new Drawdown under the Agreement
and/or to demand immediate (re)payment of all outstanding principal, interest,
late-payment interest, costs, fees and incidental expenses and all other amounts
due under this Agreement, without summons, reminder or any judicial or
extra-judicial formality, upon the occurrence of any following events, unless
such event no longer exists on the date the Local Agent notifies the Borrower of
the acceleration event and/or refuses a new Drawdown:
1) In the event that the Borrower fails to pay any amount due under the
Agreement on its due date, if the Borrower does not remedy such
non-performance within 15 Days after notice is given to it to remedy
such non-performance;
2) In the event that one or more of the representations and warranties
made by the Borrower in connection with this Agreement ceases to be
accurate or in force;
3) In the event that one or more of the obligations of or covenants
undertaken by the Borrower or the Guarantor in connection with this
Agreement ceases to be valid or in force;
4) In the event that any license to import into Benin with respect to any
material portion of the Equipment ceases to be substantially valid or
in force;
5) In the event that any event occurs which substantially affects the
Project and jeopardizes repayment of the Facility;
6) In the event that the Borrower does not perform one or more of the
other obligations under this Agreement within fifteen (15) days after
notice requiring it to remedy such non-performance;
7) In the event of a change in the Borrower's ownership structure or a
merger, spin-off or dissolution of the Borrower;
8) In the event of discontinuation of the Borrower's business; or a
significant change in the Borrower's core business; or the Borrower's
court-ordered liquidation; or
9) In the event that any of the guarantees listed in Clauses 11.1 to 11.4
ceases to be valid and enforceable under the terms of the Agreement in
whole or in part and for any reason whatsoever, except in the event
that the Local Agent does not fulfill the formalities set forth in
APPENDIX 11.3.1A and in APPENDIX 11.3.1B.
<PAGE>
TRANSLATION
APPENDIX 11.3.1B
--------------------------------------------------------------------------------
ADDITIONAL ALCATEL EQUIPMENT LIEN AGREEMENT
--------------------------------------------------------------------------------
BY AND BETWEEN:
TITAN AFRICA, INC., a company organized under the laws of the State of Delaware
(United States of America) having its principal office at 3033 Science Park
Road, San Diego, California 92121 (United States), incorporated on December 16,
1998, represented by Mr. Ray H. Guillaume, in his capacity as Assistant
Treasurer, duly authorized for the purpose hereof,
hereinafter referred to as the "Lienor"
PARTY OF THE FIRST PART,
AND:
BANK OF AFRICA BENIN, a company organized under the laws of Benin, with a
registered capital of FCFA 3,600,000,000, having its principal office at 08 BP
0879 Tri Postal, Avenue Jean-Paul II, Cotonou, Republic of Benin, registered
with the Registry of Commerce of Cotonou under number 15,053 B, represented by
Mr. Rene Formey de Saint Louvent duly authorized for the purpose hereof,
acting in the name of and on behalf of the Banks, Arranger, International Agent
and Local Agent, the list of which is attached hereto as ATTACHMENT 1.
hereinafter referred to as the "Beneficiary"
PARTY OF THE SECOND PART.
RECITALS:
The Lienor has requested the Banks to grant a facility in FCFA with an
equivalent value of FRF 300,000,000 (hereinafter the "Facility") under an
agreement (the "Agreement"), signed on December 10, 1999, between the Lienor,
Banks, Arranger, International Agent, Local Agent and O.P.T.B. to help cover its
borrowing requirements in connection with the purchase of equipment to be
manufactured by Alcatel Contracting S.A. (hereinafter the "Alcatel Equipment")
as part of a telecommunications equipment project covered by a BUILD CO-OPERATE
AND TRANSFER (BCT) contract between the Lienor and O.P.T.B. dated August 17,
1999.
Said Agreement sets forth the Lienor's irrevocable undertaking to grant a lien
on the equipment financed by means of the Facility in order to guarantee payment
to the Banks,
<PAGE>
2 TRANSLATION
Arranger, International Agent and Local Agent of all amounts due by the Borrower
under the Agreement.
Terms starting with a capital letter and not defined herein have the same
meaning as defined in the Agreement.
NOW THEREFORE IT HAS BEEN AGREED AS FOLLOWS:
ARTICLE 1 - PURPOSE
In order to secure and guarantee payment and repayment in principal, interest,
late-payment interest, costs, fees and incidental expenses, of all amounts owed
by the Lienor, now or in the future, to the Banks, Arranger, International Agent
and Local Agent under the Agreement, up to an addition amount with the
equivalent value in FCFA of fifty million French francs (FRF 50,000,000) in
principal, interest, late-payment interest, costs, fees and incidental expenses,
the Lienor grants as a commercial lien in favor of the Banks, Arranger,
International Agent, and Local Agent, the Alcatel Equipment as and upon the
transfer of their title to the Lienor. A list of the Alcatel Equipment is in
ATTACHMENT 2 hereto.
The conditions for repayment of amounts in principal, interest, late-payment
interest, costs, fees and incidental expenses owed by the Borrower to the Banks,
Arranger, International Agent and Local Agent under the Agreement, and in
particular by application of Articles 10 and 16 of the Agreement, are in
ATTACHMENT 3 hereto.
ARTICLE 2 - OWNERSHIP OF ALCATEL EQUIPMENT
The Alcatel Equipment covered by this Agreement is or shall be the Lienor's
property at the date on which the lien is created and the Lienor acknowledges
same and warrants and represents that other than the lien created in favor of
the Banks, Arranger, International Agent and Local Agent, it is unencumbered and
will remain unencumbered from any other restriction and in particular, without
limitation, liens, sureties, or guaranties.
The Lienor, which is the current or future owner of said Alcatel Equipment,
undertakes to inform the Local Agent of any potential changes which may effect
ownership of the Alcatel Equipment covered hereby.
ARTICLE 3 - INSURANCE OF ALCATEL EQUIPMENT
In application of Article 94 of the Uniform Act on the Organization of Sureties
adopted on April 17, 1997 by the States party to the OHADA Treaty, the Alcatel
Equipment, being the Lienor's property, shall be insured and shall remain
insured in conformity with Clause 11.3.5 of the Agreement with Factory Mutual
Insurance Company under policy number UA-725.
The insurance policy taken out by the Lienor to cover said Alcatel Equipment
shall designate the Local Agent as the first beneficiary, in the name of and on
behalf of the Banks, Arranger, International Agent and Local Agent.
The Lienor agrees to provide the Local Agent with an insurance certificate as
provided in Clauses 11.3.5 and 14.6 of the Agreement relating to the liened
Alcatel Equipment as well as
<PAGE>
3 TRANSLATION
transportation of the Alcatel Equipment as from the transfer of the risk to the
Constituant in accordance with the Master Agreement.
The Lienor warrants and represents that it shall be personally responsible for
the value of the Alcatel Equipment to be declared for insurance purposes.
ARTICLE 4 - WAREHOUSES
The Alcatel Equipment will be received at O.P.T.B.'s warehouses in Calavi or
directly at O.P.T.B.'s installation sites in Benin.
ARTICLE 5 - LIENOR'S OBLIGATIONS
The Lienor undertakes to:
- Adopt all commercially reasonable measures to have O.P.T.B. ensure the
surveillance of the Alcatel Equipment in said warehouses from the moment when it
enters until the moment when it leaves said warehouses or at the O.P.T.B.'s
installation sites.
- Maintain effective access to the aforementioned warehouses or sites, the
subject hereof, for the purposes of the inspections provided for in Clause
11.3.2 of the Agreement.
- Inform the Local Agent of the measures reasonably necessary to safeguard said
Alcatel Equipment.
- Not to dispose of any of the Alcatel Equipment unless with the Local Agent's
express written permission, unless pursuant to Article 6 hereof, to the transfer
of the Alcatel Equipment to O.P.T.B. or to the delivery of said Alcatel
Equipment by virtue of a court or administrative decision, such delivery
automatically entailing total and definitive release from all commitments
undertaken in connection with said Alcatel Equipment.
- To the extent that it is reasonably practicable, have affixed to the Alcatel
Equipment a plate indicating the clerk of the commercial court where recordation
took place, and the recordation date and number. The plate must be mounted as a
fixture and clearly visible as soon as the suppliers have delivered the Alcatel
Equipment to the Lienor. The plate may not be voluntarily destroyed, removed or
recovered by the Lienor before the lien is lifted or recordation has been
expunged.
The parties agree further that the Lienor, who shall remain the owner of said
Alcatel Equipment, shall bear all costs inherent in its storage and protection
in connection with this agreement.
ARTICLE 6 - TRANSFER
The Lienor will be authorized, subject to applicable formalities provided under
Benin law and by the uniform acts of the OHADA, to transfer the pledged Alcatel
Equipment to a wholly-owned subsidiary of Titan, incorporated in conformity with
Benin law.
The prior authorization of the lien beneficiary required by Article 97 of the
Uniform Act for the Organization of Sureties mentioned above is considered to be
granted by this agreement.
<PAGE>
4 TRANSLATION
This subsidiary of the Lienor will substitute itself for the Lienor in the
performance of the obligations resulting herefrom.
ARTICLE 7 -FORECLOSURE OF LIEN
In the event of a default in payment of the amounts due by the Borrower under
the Agreement and fifteen (15) Days after notice served by the Local Agent on
the Lienor by a process server, remaining uncured, and subject to the terms of
Article 16 of the Agreement, the Local Agent, on behalf of the Banks, Arranger,
International Agent and Local Agent, may proceed with the forced public sale of
the Alcatel Equipment, in order to obtain the foreclosure of its lien on the
Alcatel Equipment in accordance with the provisions of Article 56.1 of the
Uniform Act on the Organization of Sureties.
ARTICLE 8 - TERM
The Lienor grants this lien to the Local Agent, on behalf of the Banks,
Arranger, International Agent and Local Agent until repayment in full of all
amounts due to the Banks, Arranger, International Agent and Local Agent by the
Borrower under the Agreement in principal, interest, late-payment interest,
costs, fees and incidental expenses, and it will automatically become null and
void once said repayment is made in full.
Further, the Local Agent undertakes to take any measure or action necessary in
order to obtain the release of the lien on the Alcatel Equipment as soon as said
repayment is made in full.
ARTICLE 9 - EFFECTIVE DATE
This agreement will take effect only after the Board of Directors of the
B.O.A.D. has authorized the B.O.A.D.'s participation in the Facility for the
FCFA equivalent of FRF 50,000,000 (fifty million French francs).
ARTICLE 10 - DOMICILE
For the performance of this agreement which, by express agreement, is governed
by the laws of Benin, the parties elect domicile in the jurisdiction of the
court of first instance of Cotonou, at the following addresses:
The Lienor:
Agnes Campbell, Esq.
Cabinet Campbell, Maga,
B.P. 111
RP Cotonou
Republic of Benin
<PAGE>
5 TRANSLATION
with copy for information only to Fabrice Rue, Esq., Cabinet Cariddi Mee Rue,
Avocats Associes, 12 rue de la Paix, 75002 Paris, telephone:
00.33.1.42.61.57.71, fax: 00.33.1.42.61.79.21.
The Local Agent elects domicile at its registered office as first above written.
ARTICLE 11 - RECORDATION - FORMALITIES
Within fifteen (15) Days from the execution of this agreement, the Local Agent,
on behalf of the Banks, Arranger, International Agent and Local Agent, shall, at
the Lienor's expense, register this deed with the Tax Authority and, also at the
Lienor's costs, make recordation at the registry of commerce and credit at the
court of first instance of Cotonou. It is expressly agreed as between the
parties that any default by the Local Agent in fulfilling the formalities
provided for by this agreement shall not constitute an event of acceleration
under Clause 16(9) of the Agreement.
All duties, taxes, levies, fines, penalties and other incidental expenses or
costs that may arise from this lien and its performance, shall be borne by the
Lienor.
ARTICLE 12 - GOVERNING LAW AND JURISDICTION
This agreement is governed by the laws of Benin. The parties agree that any
litigation concerning the validity, performance or interpretation of this
agreement will be submitted to the courts of Cotonou, the Local Agent retaining
the option to file its action before any other Benin court that may have
[subject-matter] jurisdiction.
For the performance of this agreement which, by express agreement, is governed
by the laws of Benin, the parties elect domicile at their respective addresses
as set forth in the premises of this agreement, and submit to the jurisdiction
of the courts of Cotonou. The Local Agent reserves the right to file a claim
before any Benin Court having [subject-matter] jurisdiction at its discretion.
Executed in Cotonou, on December 10, 1999
in six copies (including two for registration, and one for the registry of
commerce and credit.
TITAN AFRICA, INC.(1) BANK OF AFRICA BENIN
-------------------- ------------------------
Mr. Ray H. Guillaume Mr. Rene Formey de Saint
Its Assistant Treasurer Louvent
Its General Manager
(DIRECTEUR GENERAL)
(l) Precede signature with the hand-written words "for lien" and affix the
company stamp.
<PAGE>
6 TRANSLATION
ATTACHMENT 1: LIST OF BANKS, THE ARRANGER,
THE INTERNATIONAL AGENT, AND THE LOCAL AGENT
Africa Merchant Bank 6, Avenue Velasquez - 75008 Paris, France
(Arranger)
Banque Belgolaise Cantersteen I - 1000 Bruxelles, Belgique
(International Agent)
Bank of Africa Benin 08 BP 0879 Tri Postal Avenue Jean-Paul II
(Local Agent) BP 2020 Cotonou - Republique du Benin
Banque Ouest Africaine pour le 68, Avenue de la Liberation
Developpement BP 1172 - Lome (Togo)
Banque Internationale du Benin Carrefour des 3 Banques, Avenue Giran
03 BP - 2098 Jericho Cotonou
Republique du Benin
Continental Bank Benin Carrefour des 3 Banques Avenue Jean-Paul II
BP 2020 Cotonou
Republique du Benin
Eco Bank Benin Rue du Gouverneur Bayol
BP 1280 Cotonou
Republique du Benin
Bank of Africa Benin 08 BP 0879 Tri Postal Avenue Jean-Paul II
BP 2020 Cotonou - Republique du Benin
<PAGE>
7 TRANSLATION
ATTACHMENT 2: LIST OF ALCATEL EQUIPMENT
<PAGE>
8 TRANSLATION
ATTACHMENT 3: PAYMENT SCHEDULE
AND EVENTS OF ACCELERATION
Upon the request of a Majority of the Banks, and after notifying the Borrower,
the Local Agent shall be entitled to refuse any new Drawdown under the Agreement
and/or to demand immediate (re)payment of all outstanding principal, interest,
late-payment interest, costs, fees and incidental expenses and all other amounts
due under this Agreement, without summons, reminder or any judicial or
extra-judicial formality, upon the occurrence of any following events, unless
such event no longer exists on the date the Local Agent notifies the Borrower of
the acceleration event and/or refuses a new Drawdown:
1) In the event that the Borrower fails to pay any amount due under the
Agreement on its due date, if the Borrower does not remedy such
non-performance within 15 Days after notice is given to it to remedy
such non-performance;
2) In the event that one or more of the representations and warranties
made by the Borrower in connection with this Agreement ceases to be
accurate or in force;
3) In the event that one or more of the obligations of or covenants
undertaken by the Borrower or the Guarantor in connection with this
Agreement ceases to be valid or in force;
4) In the event that any license to import into Benin with respect to any
material portion of the Equipment ceases to be substantially valid or
in force;
5) In the event that any event occurs which substantially affects the
Project and jeopardizes repayment of the Facility;
6) In the event that the Borrower does not perform one or more of the
other obligations under this Agreement within fifteen (15) days after
notice requiring it to remedy such non-performance;
7) In the event of a change in the Borrower's ownership structure or a
merger, spin-off or dissolution of the Borrower;
8) In the event of discontinuation of the Borrower's business; or a
significant change in the Borrower's core business; or the Borrower's
court-ordered liquidation; or
9) In the event that any of the guarantees listed in Clauses 11.1 to 11.4
ceases to be valid and enforceable under the terms of the Agreement in
whole or in part and for any reason whatsoever, except in the event
that the Local Agent does not fulfill the formalities set forth in
APPENDIX 11.3.1A and in APPENDIX 11.3.1B.
<PAGE>
TRANSLATION
APPENDIX 11.4
--------------------------------------------------------------------------------
TITAN AFRICA FACILITY ACCOUNT
PLEDGE AGREEMENT
--------------------------------------------------------------------------------
BY AND BETWEEN THE UNDERSIGNED:
1) TITAN AFRICA, INC., a company organized under the laws of the State of
Delaware (United States of America) having its principal offices at 3033
Science Park Road, San Diego, California 92121 (United States of
America), incorporated on December 16, 1998, represented by Mr. Ray H.
Guillaume, in his capacity as Assistant Treasurer, duly authorized for
the purpose hereof,
hereinafter referred to as the "Borrower",
PARTY OF THE FIRST PART,
2) BANK OF AFRICA BENIN, a company organized under the laws of Benin with a
capital of FCFA 3,600,000,000 having its registered office at 08 BP 0879
Tri Postal Avenue Jean-Paul II, Cotonou, Republic of Benin, registered
with the Registry of Commerce of Cotonou under number 15,053 B,
represented by Mr. Rene Formey de Saint Louvent, General Manager
(DIRECTEUR GENERAL), duly authorized for the purpose hereof,
acting in its own name and on behalf of the Banks, a list of which is
attached hereto as ATTACHMENT 1.
hereinafter referred to as the "Local Agent",
PARTY OF THE SECOND PART.
RECITALS:
1. The Borrower wishes to have access to a facility (hereinafter the
"Facility") to finance the realization of a telecommunications
development project in Benin under a BUILD CO-OPERATE TRANSFER
contract with the Office des Postes et Telecommunications du Benin
(hereinafter referred to as "O.P.T.B.") dated August 17, 1999, and to
execute to this end an agreement dated December 10, 1999 with the
Banks, Arranger, International Agent, Local Agent and O.P.T.B.
(hereinafter the "Agreement").
<PAGE>
2 TRANSLATION
2. It has been agreed to open an account pledged in favor of the Banks
intended to receive the funds in FCFA made available to the Borrower
by the Local Agent in FCFA and the repayments made by the Borrower.
Known as the Titan Africa Facility Account, this account is opened in
the Borrower's name on the Local Agent's books under number
_______________.
3. One of the conditions precedent to the coming into force of the
Agreement is that this account must be pledged.
4. Terms starting with a capital letter and not defined herein have the
same meaning as defined in the Agreement.
NOW THEREFORE IT HAS BEEN AGREED AS FOLLOWS:
ARTICLE 1 - PLEDGE
Subject to Clause 5.5 of the Agreement, the Borrower herewith pledges the
balance of the Titan Africa Facility Account to the Banks, in order to guarantee
all amounts owed by the Borrower to the Banks under the Agreement, in principal,
interest, late-payment interest, costs, fees and incidental expenses.
ARTICLE 2 - OPERATION OF PLEDGED ACCOUNT
2.1. At the time of a Drawdown of the loan under the Agreement, the Titan
Africa Facility Account shall be credited with the amounts lent by
the Banks. This account shall subsequently be debited pursuant to the
terms of the Agreement. However, the Local Agent reserves the right
not to make such debits should one or more of the acceleration events
provided for in Article 16 of the Agreement occur.
2.2. The Titan Africa Facility Account shall in no event be overdrawn and
the Borrower and the Local Agent undertake not to take actions which
could cause said account to be overdrawn.
2.3 The pledge created hereby shall be automatically cancelled upon
repayment or payment of all amounts owed by the Borrower under the
Agreement, and the balance of the Titan Africa Project Account will
be immediately paid to the Borrower free of any claim, surety or
encumbrance whatsoever in favor of the Banks, Arranger, International
Agent and Local Agent.
The parties agree that the terms of Clause 10.2 of the Agreement are
expressly incorporated herein. In the case of any inconsistency
between the Agreement and
<PAGE>
3 TRANSLATION
this agreement, it is expressly agreed between the parties
that the terms of the Agreement shall prevail between the
parties.
ARTICLE 3 - INTEREST
All funds credited to the Titan Africa Facility Account with the Local Agent
shall bear interest at rates defined by separate agreement between the Borrower
and the Local Agent.
ARTICLE 4 - INFORMATION
The Local Agent shall provide the Borrower with:
- a monthly statement of accumulated interest, within a week
after the end of the month in question,
- a monthly account statement, within a week after the end of
the month in question,
- at the Borrower's request, information on the balance of the
Titan Africa Facility Account during the term of the loan
under the Agreement.
ARTICLE 5 - NOTICES AND DOMICILE
All notices, agreements and communications relating hereto shall be sent in
French, with a copy in English if the addressee is the Borrower, and sent by
facsimile, air mail, international express courier or tested telex to:
The Borrower : Titan Africa, Inc.
Address : 3033 Science Park Road, San Diego, California
92121, U.S.A.
Telephone : 001 (858) 552 9786
Fax : 001 (858) 552 9802
Attn. : Mr. Ray H. Guillaume
Local Agent : Bank of Africa Benin
Address : 08 BP 0879 Tri Postal Avenue Jean-Paul II,
Cotonou, Republic of Benin
Telex : 5079
Attn. : Mr. Rene Formey de Saint Louvent
For the purpose of this Agreement, the Borrower irrevocably appoints:
Agnes Campbell, Esq.
Cabinet Campbell, Maga
BP 111, RP Cotonou
Republic of Benin
<PAGE>
4 TRANSLATION
as its agent to receive, on its behalf, all summons and other legal instruments
that may be served during any legal proceedings, with a copy for information
only to Fabrice Rue, Esq., Cariddi, Mee, Rue, Avocats Associes, 12 rue de la
Paix, 75002 Paris, telephone 00 (33)1 42 61 57 71, fax 00 (33)1 42 61 79 21.
The Borrower's election of domicile shall not bar application of the provisions
in the first paragraph of this Article.
The Local Agent elects domicile at its registered office.
ARTICLE 6 - REGISTRATION AND SERVICE
This deed may be registered and served on the Local Agent.
A bearer hereof shall be invested with all powers necessary to register and
serve notice of this pledge.
The costs of serving this pledge shall be borne by the Borrower.
ARTICLE 7 - GOVERNING LAW AND JURISDICTION
7.1. This agreement is governed by Benin law.
7.2. Any dispute regarding, in particular, the validity, interpretation or
performance of this Agreement shall be referred to the courts of
Cotonou, the Borrower acknowledging that the Local Agent is entitled
to file a claim before any other Benin court that may have
[subject-matter] jurisdiction.
7.3. The Borrower waives any claim to jurisdictional or enforcement
immunity to which it may be entitled in respect of itself or its
assets.
Executed in Cotonou, December 10, 1999
in two originals
-------------------- --------------------
Bank of Africa Benin Titan Africa, Inc.
Mr. Rene Formey de Saint Louvent Mr. Ray H. Guillaume
<PAGE>
5 TRANSLATION
ATTACHMENT 1: LIST OF BANKS
Banque Ouest
Africaine pour le
Developpement
Banque Internationale
du Benin
Continental Bank Benin
Eco Bank Benin
Bank of Africa
Benin
<PAGE>
TRANSLATION
APPENDIX 11.5
[letterhead paper]
Cotonou, __________
His Excellency the Finance Minister
Cotonou
Excellency,
Within the framework of an investment program designed to increase the capacity
of the telephony network and to improve access to telecommunications services
for the Benin population, O.P.T.B. has entrusted Titan Africa, Inc. (hereinafter
"Titan"), under a BUILD CO-OPERATE AND TRANSFER agreement dated August 17, 1999,
with the task of supplying O.P.T.B. turnkey telecommunications equipment
designed to extend and modernize fixed, traditional and cellular telephony
networks and to provide technical assistance for the installation and operation
of this equipment.
Part of the equipment covered by the contract must be manufactured by Alcatel
Contracting SA. and, to finance its manufacture, Titan has obtained from a
syndicate of Benin and WAEMU (UEMOA) banks, for which Banque Belgolaise is the
International Agent, a loan facility in CFA Francs with the equivalent value of
FRF 300,000,000, which is to be repaid from revenues generated by the operation
of said equipment, which will be domiciled on an account opened on the books of
a local bank.
Within this framework, O.P.T.B. was also led to issue an independent and
autonomous first demand guaranty to guarantee the facility repayment obligations
incumbent on Titan.
The foreseeable term of the facility's operation makes it necessary for
O.P.T.B.'s obligations resulting therefrom to remain binding in the event of a
change in the legal or regulatory framework of the telecommunications sector and
O.P.T.B.'s spin-off for privatization purposes.
To this end, we request your undertaking, in favor of Banque Belgolaise, to
include in the obligations of the buyer of O.P.T.B. shares and/or assets within
the framework of the privatization operations, the continuation of the
obligations undertaken by O.P.T.B. in connection with the BCT Contract or in
application thereof, in particular those undertaken with Bank Belgolaise.
<PAGE>
2 TRANSLATION
We would be grateful if you would send your reply directly to Banque Belgolaise,
6 avenue Velasquez, Paris, to the attention of Mr. Idelphonse Affogbolo, with
copies to us.
In looking forward to a favorable reply to our request,
We remain, most respectfully yours,
------------------------------- ------------------------------
O.P.T.B. Titan Africa, Inc.
Represented by Mr. Barthelemy Agnan Represented by Mr. Ray H. Guillaume
cc: Mr. Idelphonse Affogbolo (Banque Belgolaise)
<PAGE>
TRANSLATION
APPENDIX 11.6
[letterhead paper]
Cotonou, __________
His Excellency the Finance Minister
Cotonou
Excellency,
Within the framework of an investment program designed to increase the capacity
of the telephony network and to improve access to telecommunications services
for the Benin population, O.P.T.B. has entrusted Titan Africa, Inc. (hereinafter
"Titan"), under a BUILD CO-OPERATE AND TRANSFER agreement dated August 17, 1999,
with the task of supplying turnkey telecommunications equipment designed to
extend and modernize fixed, traditional and cellular telephony networks and to
provide technical assistance with the installation and operation of this
equipment.
Part of the equipment covered by the contract must be manufactured by Alcatel
Contracting S.A. and, to finance its manufacture, Titan has obtained from a
syndicate of Benin and WAEMU (UEMOA) banks, for which Banque Belgolaise is the
International Agent, a loan facility in CFA Francs with the equivalent value of
FRF 300,000,000, which is to be repaid from operating revenues generated by the
operation of said equipment, which revenues will be domiciled on an account
opened on the books of a local bank.
Within this framework, the amounts in FCFA used to pay Alcatel Contracting SA
and for payment of the fees owed to the International Agent will need to be
converted into French francs or Euros and transferred outside of Benin.
Accordingly, we are respectfully requesting that you grant prior authorization
in favor of Titan to carry out said conversion and transfer operations whenever
necessary during the entire term of the Facility in order to realize such
operations as required until repayment in full.
We are entirely at your disposal and at the disposal of your staff as you
proceed with examining our request, in particular to provide additional
information.
<PAGE>
2 TRANSLATION
We would be grateful if you would send your reply directly to Banque Belgolaise,
6 avenue Velasquez, Paris, to the attention of Mr. Idelphonse Affogbolo, with
copies to us.
In looking forward to a favorable reply to our request,
We remain, most respectfully yours,
------------------------------- -----------------------------------
O.P.T.B. Titan Africa, Inc.
Represented by Mr. Barthelemy Agnan Represented by Mr. Ray H. Guillaume
cc : Mr. Idelphonse Affogbolo (Banque Belgolaise)
<PAGE>
TRANSLATION
APPENDIX 14-8A
FORM OF LEGAL OPINION TO BE PROVIDED BY THE BORROWER
[letterhead]
Cotonou, December 10, 1999
AMB - Banque Belgolaise
6, avenue Velasquez
75008 Paris
ATTN. MESSRS. IDELPHONSE AFFOGBOLO AND
JOEL KRIEF
LEGAL OPINION
Dear Sirs,
This opinion is provided to you in order to certify the compliance with the law
of Benin of the Loan Facility Agreement and its appendices dated December 10,
1999 (hereinafter the "Agreement"), which Banque Belgolaise, a stock corporation
(SOCIETE ANONYME) with a registered capital of BEF 1,000,000,000, having its
registered office at Cantersteen I, 1000 Brussels, Belgium, acting through its
Paris branch, registered in the Paris Registry of Commerce and Companies under
number B 411.858.731 and domiciled at 6, avenue Velasquez, 75008 Paris, and its
investment banking division "Africa Merchant Bank", has concluded with Titan
Africa, Inc., a stock corporation organized under the laws of the State of
Delaware (United States of America), having its registered office at 3033
Science Park Road, San Diego, California 92121 (United States of America),
incorporated on December 16, 1998.
The terms defined in the Agreement used in this legal opinion have the same
meanings as they have in the Agreement.
<PAGE>
2 TRANSLATION
Accordingly, I have examined:
1) An executed version of the Agreement, of which the 21
appendices are as follows:
- APPENDIX 1.A: Powers of Attorney of the Banks' Representatives;
- APPENDIX 1.B: Amount and Percentage of the Banks' Participations;
- APPENDIX 1.C: Alcatel Equipment List;
- APPENDIX 1.D: Titan Equipment List;
- APPENDIX 1.E: Excerpt from the Financial Model;
- APPENDIX 4.1A: Form of First Drawdown Notice;
- APPENDIX 4.1B: Form of Drawdown Notice;
- APPENDIX 6.2: Form of Notice of Assignment or Transfer;
- APPENDIX 10.1.1: Payment Schedule;
- APPENDIX 10.1.2.1: Use and Amortization Table;
- APPENDIX 10.1.2.3A: Division of Project Revenues;
- APPENDIX 10.1.2.3B: O.P.T.B. Account Pledge Agreement;
- APPENDIX 11.1.4: Project Account Pledge Agreement;
- APPENDIX 11.2: Form of First Demand Guaranty of Guarantor;
- APPENDIX 11.3.1A: Alcatel Equipment Lien Agreement;
- APPENDIX 11.3.1B: Additional Alcatel Equipment Lien Agreement;
- APPENDIX 11.4: Titan Africa Facility Account Pledge Agreement;
- APPENDIX 11.5: Form of letter from the Borrower and O.P.T.B. to the
Finance Minister of Benin with respect to the
continuity of O.P.T.B.'s commitments;
- APPENDIX 11.6: Form of letter from the Borrower and O.P.T.B. to the
Finance Minister of Benin with respect to the
transferability of amounts in FCFA;
- APPENDIX 14.8A: Form of legal opinion to be provided by the Borrower.
<PAGE>
3 TRANSLATION
- APPENDIX 14.8B: Form of legal opinion to be provided by OPTB.
2) The Constitution of the Republic of Benin;
3) All treaties, laws, rules, government orders, decrees, regulations, judgments
and other documents the consultation of which I considered necessary for the
opinion expressed below.
I am authorized to practice law in Benin and do not express an opinion
concerning any other law than Benin law.
In the light of the foregoing and based on Benin law concepts that I consider
important:
I - I certify, first, that:
a) The Borrower has the power and authority, under the laws of Benin, to
execute and perform the Agreement and in particular to borrow by virtue
thereof and, in general, to comply with the provisions of the Agreement
to be performed or complied with by said Borrower,
b) No authorization from a government entity in Benin is necessary to
execute or perform the Agreement or to ensure its validity, legality or
admissibility as evidence, or to establish lender's rights,
c) The Borrower's execution and performance of the Agreement do not violate
the Constitution, laws, government orders, regulations and decrees of
Benin, the international treaties to which Benin is a party, notably the
OHADA Treaty, uniform acts under OHADA or Benin public policy,
d) The Agreement, duly executed by the Borrower, will constitute a valid
legal obligation, that is binding on the Borrower and may be enforced
against said Borrower on its terms,
e) The Borrower is not entitled, by virtue of the Constitution, or the laws,
government orders and decrees of Benin or the international treaties to
which Benin is a party, to any jurisdictional or enforcement immunity for
any legal proceedings (whether summons, writ, order, prejudgment seizure
or attachment, enforcement seizure, enforcement of a judgment or any
other proceeding). Recognition of the absence of jurisdictional or
enforcement immunity and acceptance of the jurisdiction of the French
courts in the district of the Paris Court of Appeals are irrevocably
binding on the Borrower and a judgment pronounced by such a court in
connection with the Agreement may be enforced by the courts of Benin (a
judicial co-operation agreement existing between France and Benin),
f) No tax, levy, duty, rebate, charge or withholding is imposed on the
Borrower by Benin or any political subdivision or tax authority thereof
(i) because of the execution or delivery of the Agreement or any other
document to be supplied by virtue of said Agreement with the exception of
what is stated in paragraph II herebelow, or (ii) on any payment to be
made by the Borrower in accordance with the Agreement,
g) To make sure that the Agreement can be applied or admitted in Benin as
evidence, it is not necessary to file or register the Agreement or any
other document with a court or
<PAGE>
4 TRANSLATION
any other authority in Benin or pay a stamp duty or similar tax in
connection with the Agreement,
h) The Agreement is in legally valid form under the law of Benin for the
purpose of enforcing it against the Borrower under Benin law,
i) The choice of French law as the principal governing law of the
Agreement is valid under the laws of Benin.
II - Secondly, Clause 11.3.1. of the Agreement stipulated that the Borrower
will grant the Banker, Arranger, International Agent and Local Agent, on
the terms of the Alcatel Equipment Lien Agreement and Additional Alcatel
Equipment Lien Agreement, liens on the Equipment corresponding to Phases
2 to 5 of the project covered by the BCT Contract, subject to the
formalities set forth in paragraph d) herebelow.
a) The Borrower has the power and authority, under the laws of Benin, to
execute and perform lien agreements as set forth in Appendices 11.3.1A
and 11.3.1B,
b) The lien provisions stipulated in Appendices 11.3.1A and 11.3.1B, duly
signed by the Borrower, will constitute a valid legal obligation that
will be binding on the Borrower on their terms,
c) The Borrower is not entitled, by virtue of the Constitution or the laws,
government orders, regulations and decrees of Benin or the international
treaties to which Benin is a party, to any jurisdictional or enforcement
immunity for any judicial proceedings (whether summons, writ, order,
prejudgment seizure or attachment, enforcement seizure, enforcement of a
judgment or any other proceeding).
d) To ensure that a lien agreement under the terms set forth in Appendices
11.3.1A and 11.3.1B can be applied or admitted in Benin as evidence, said
agreement must be evidenced by notarized or private deed duly recorded
with the [office of the clerk of court] subject to recordation and stamp
taxes. The lien agreement must then be registered with the registry of
commerce and credit at the court of first instance of Cotonou.
This legal opinion is established exclusively for Banque Belgolaise and its
advisors.
Yours sincerely,
Signature
<PAGE>
TRANSLATION
APPENDIX 14-8B
FORM OF LEGAL OPINION TO BE PROVIDED BY O.P.T.B.
[letterhead]
Cotonou, December 10, 1999
AMB - Banque Belgolaise
6, avenue Velasquez
75008 Paris
ATTN. MESSRS. IDELPHONSE AFFOGBOLO AND
JOEL KRIEF
LEGAL OPINION
Dear Sirs,
This opinion is provided to you in order to certify the compliance with the law
of Benin of the Loan Facility Agreement and its appendices dated December 10,
1999 (hereinafter the "Agreement"), which Banque Belgolaise, a stock corporation
(SOCIETE ANONYME) with a registered capital of BEF 1,000,000,000, having its
registered office at Cantersteen I, 1000 Brussels, Belgium, acting through its
Paris branch, registered in the Paris Registry of Commerce and Companies under
number B 411.858.731 and domiciled at 6, avenue Velasquez, 75008 Paris, and its
investment banking division "Africa Merchant Bank", has concluded with Titan
Africa, Inc., a stock corporation organized under the laws of the State of
Delaware (United States of America), having its registered office at 3033
Science Park Road, San Diego, California 92121 (United States of America),
incorporated on December 16, 1998.
The terms defined in the Agreement used in this legal opinion have the same
meanings as they have in the Agreement.
<PAGE>
2 TRANSLATION
Accordingly, I have examined:
1) An executed version of the Agreement, of which the 21 appendices are as
follows:
- APPENDIX 1.A: Powers of Attorney of the Banks' Representatives;
- APPENDIX 1.B: Amount and Percentage of the Banks' Participations;
- APPENDIX 1.C: Alcatel Equipment List;
- APPENDIX 1.D: Titan Equipment List;
- APPENDIX 1.E: Excerpt from the Financial Model;
- APPENDIX 4.1A: Form of First Drawdown Notice;
- APPENDIX 4.1B: Form of Drawdown Notice;
- APPENDIX 6.2: Form of Notice of Assignment or Transfer;
- APPENDIX 10.1.1: Payment Schedule;
- APPENDIX 10.1.2.1: Use and Amortization Table;
- APPENDIX 10.1.2.3A: Division of Project Revenues;
- APPENDIX 10.1.2.3B: O.P.T.B. Account Pledge Agreement;
- APPENDIX 11.1.4: Project Account Pledge Agreement;
- APPENDIX 11.2: Form of First Demand Guaranty of Guarantor;
- APPENDIX 11.3.1A: Alcatel Equipment Lien Agreement;
- APPENDIX 11.3.1B: Additional Alcatel Equipment Lien Agreement;
- APPENDIX 11.4: Titan Africa Facility Account Pledge Agreement;
- APPENDIX 11.5: Form of letter from the Borrower and O.P.T.B. to the
Finance Minister of Benin with respect to the
continuity of O.P.T.B.'s commitments;
- APPENDIX 11.6: Form of letter from the Borrower and O.P.T.B. to the
Finance Minister of Benin with respect to the
transferability of amounts in FCFA;
- APPENDIX 14.8A: Form of legal opinion to be provided by the Borrower.
- APPENDIX 14.8B: Form of legal opinion to be provided by O.P.T.B.
<PAGE>
3 TRANSLATION
2) The Constitution of the Republic of Benin;
3) All treaties, laws, rules, government orders, decrees, regulations, judgments
and other documents the consultation of which I considered necessary for the
opinion expressed below.
I am authorized to practice law in Benin and do not express an opinion
concerning any other law than Benin law.
In the light of the foregoing and based on Benin law concepts that I consider
important:
I - I certify, first, that:
a) O.P.T.B. has the power and authority, under the laws of Benin, to
execute and perform the Agreement, in particular, to comply with the
provisions of the Agreement to be performed or complied with by
O.P.T.B.,
b) No authorization from a government entity in Benin is necessary to execute
or perform the Agreement or to ensure its validity, legality or
admissibility as evidence, or to establish lender's rights,
c) The O.P.T.B.'s execution and performance of the Agreement do not violate
the Constitution, laws, government orders, regulations and decrees of
Benin, the international treaties to which Benin is a party, notably the
OHADA Treaty, uniform acts under OHADA or Benin public policy,
d) The Agreement, duly executed by O.P.T.B., will constitute a valid legal
obligation that is binding on O.P.T.B. and may be enforced against it in
accordance with its terms,
e) O.P.T.B. is not entitled, by virtue of the Constitution, or the laws,
government orders and decrees of Benin or the international treaties to
which Benin is a party, to any jurisdictional or enforcement immunity for
any legal proceedings (whether summons, writ, order, prejudgment seizure
or attachment, enforcement seizure, enforcement of a judgment or any other
proceeding). Recognition of the absence of jurisdictional or enforcement
immunity and acceptance of the jurisdiction of the French courts in the
district of the Paris Court of Appeals are irrevocably binding on O.P.T.B.
and a judgment pronounced by such a court in connection with the Agreement
may be enforced by the courts of Benin (a judicial co-operation agreement
existing between France and Benin),
f) No tax, levy, duty, rebate, charge or withholding is imposed on O.P.T.B.
by Benin or any political subdivision or tax authority thereof (i)
because of the execution or delivery of the Agreement or any other
document to be supplied by virtue of said Agreement with the exception of
what is stated in paragraph II herebelow, or (ii) on any payment to be
made by O.P.T.B. in accordance with the Agreement,
g) To make sure that the Agreement can be applied or admitted in Benin as
evidence, it is not necessary to file or register the Agreement or any
other document with a court or any other authority in Benin or pay a
stamp duty or similar tax in connection with the Agreement,
<PAGE>
4 TRANSLATION
h) The Agreement is in legally valid form under the law of Benin for the
purpose of enforcing it against O.P.T.B. under Benin law,
i) The choice of French law as the principal governing law of the
Agreement is valid under the laws of Benin.
II - Secondly, Clause 11.2 of the Agreement providing [SIC] that O.P.T.B.
will give the Banks, Arranger, International Agent and Local Agent, in the
terms of the Form of First Demand Guaranty attached to the Agreement, an
independent and autonomous first demand guaranty for the payment of all
amounts owed by the Borrower under the Agreement, including and without
limitation, in principal, interest, late-payment interest, costs, fees and
accessories.
a) O.P.T.B. has the power and authority, under the laws of Benin, to
execute and perform a first demand guaranty in the terms of Appendix
11.2,
However, under the terms of O.P.T.B.'s bylaws, only the board of directors
can grant such guaranty. It may be executed by a power of attorney granted
by the General Manager (DIRECTEUR GENERAL) of O.P.T.B. which is the
executive representative of O.P.T.B.,
b) The first demand guaranty in the form of Appendix 11.2, duly executed by
O.P.T.B. will constitute a legal obligation, valid and binding on the
same, in accordance with the terms thereof,
c) O.P.T.B. is not entitled, under the Constitution or the laws, government
orders and decrees of Benin, or the international agreements to which
Benin is a party, from any jurisdictional or enforcement immunity for any
legal proceeding (whether it be for a summons, an order, a pre-judgment
seizure or attachment, an enforcement seizure, enforcement of a judgment
or any other proceeding).
d) To ensure that a first demand guaranty in the terms set forth in Appendix
11.2 can be applied or admitted in Benin as evidence, it is not necessary
to file or register the document in which it is recorded or any other
document with a court or any other authority in Benin or pay stamp duty or
similar tax in connection with said agreement. However, the guaranty can
be filed with a notary public.
III - Thirdly, I certify that Clause 10.1.2.3 providing [SIC] that O.P.T.B.
shall grant in favor of the Banks, Arranger, International Agent and Local
Agent a pledge of the O.P.T.B. Account opened on the books of the Local
Agent and on which shall be immediately paid the O.P.T.B.'s share of the
Distributable Revenues, in accordance with the Form of the O.P.T.B.
Account Pledge Agreement in Appendix 10.1.2.3B of the Agreement,
a) The O.P.T.B. has the power and authority, under the laws of Benin, to
execute and perform an account pledge agreement in the terms of Appendix
10.1.2.3B, subject to O.P.T.B.'s board of directors' consent to such
pledge and grant of signature power to its General Manager (DIRECTEUR
GENERAL).
b) The pledge on the account in the terms of Appendix 10.1.2.3B, duly
executed by O.P.T.B. will constitute a legal obligation, valid and
binding on O.P.T.B. in accordance with its terms.
<PAGE>
5 TRANSLATION
c) O.P.T.B. is not entitled, under the Constitution or the laws, government
orders and decrees of Benin, or the international Agreements to which
Benin is a party, to any jurisdictional or enforcement immunity for any
legal proceeding (whether it be for a summons, an order, a pre-judgment
seizure or attachment, an enforcement seizure, enforcement of a
judgment or any other proceeding).
d) To ensure that a pledge agreement in the terms set forth in Appendix
10.1.2.3B can be applied or admitted in Benin as evidence, it is not
necessary to file or register the document in which it will be recorded or
any other document with a court or any other authority in Benin or pay
stamp duty or similar tax in connection with said agreement.
However, the pledge can be recorded at the [clerk of the court] in
Cotonou upon payment of tax.
This legal opinion is established exclusively for Banque Belgolaise and its
advisors.
Yours sincerely,
Signature