Mars Group Kenya by alicejenny


                             STRICTLY PRIVATE & CONFIDENTIAL

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                                   DEFERRED PAThIENT AGREEMENT                                                                                            s
                                                                                                                                         i                f
        __                                  __ __
---_.        .   __ ._._-_._----   .
                                       ..      .    ..._-_._-------------.--_._---_.-   .-...---- _."   '--"--   ..-

                                                                                                                                         I .:                  ;

                                                                                                                                          I                    I


     DATED THE \\'-                    DAY OF   3W:J   2002


 MJNISTRY OF FWANCE located at NAIROBI - P.O. Box 30007 hereinafter
 called "The Government"


 Whose address for the purposes of this contract is 1, Pbee des F orentins- 55 me
 du Rhone, 1204 Geneva Switzerland hereinafter called "The Company"

 of the other part

             ______       OM            •                                           ••   __   --   -   ••


1)     A commercial contract hereinafter called "The Contract" has been entered
into between the Government of The Republic of Kenya acting through The

Spacenet of 1750 Old Meadow Road McLean Virginia 22102 USA hereinafter
called "Spacenet" for the ,provision of VSAT, communication, computer, servers
and other equipment and services to be supplied by Spacenet in three phases ("the

2)      The Total Contract Price is USD$11,787,000
                      "    '                            .•.. ~

3)     The Company has at the Government's request provided Spacenet with a
guarantee and indemnity for the deferred payments (pursuant to clause 7.2 of the
Contract) upon terms and conditions more specifically set forth in this Agreement
to the intent that the Company will be liable to meet the Government's.
obligations pursuant to the Contract up to the Total Contract Price.


1.      Definitions

In this Agreement the following words and phrases shall have the corresponding
                                                         ,   ,.

 "Liability" means the principal amount outstanding from time to time under this
 Deferred Payment Agreement.
                                                                  .     .
 "Banking Day" is any day on which banks are open for business in London and
 for inter-bank Dollar deposits in London.

 "This Agreement" means this Deferred Payment Agreement.
 "The Government"       means The Government      of Kenya    acting through The
 Ministry of Finance.

 "S and USD" means the lawful currency of the United States of America
                                                                                                          ;f.',                     'j'
"Instalment" means each of the instalments referred to in the First Schedule
hereto.                                                                                                                      it
 "The Company" means First Mercantile Securities Corporation.                                                                       I
2. Deferred Payment Facility                                                                                                1$
The sum of USD$11,787,OOO to be made available pursuant to the terms of this                                                "

Agreement,                                                                                                                  ""

2.1 Availability                                                                                                        ;:
                                                                                                                    -   :,
The Deferrea-PaymenrFacilitjIs       [Q De avaitai51e ftomTst-JITly~OOL-or 'if"1aIer~--"h-                              .:
upon the Contract becoming effective and any amount not utilised by the fourth                                          "

anniversary of the date of this Agreement will then cease to be available.                                              I:

2.2 Purpose
The Deferred Payment Facility shall only be utilised in meeting the deferred                              'f '          i
payment liabilities of the Employer pursuant to the Contract.

2.3 Authority for Payments
The Government hereby irrevocably authorises and directs The Company by
execution of this Agreement to pay Spacenet the amounts due to them for the                                -:.;'
                                                                                                            •. "


purpose of fulfilling its payment obligations contained in the Contract.
3 Deeming Provisions
As at the date of this Agreement The Government will be deemed to have                                                  ,
                                                                                                            -           !
complied with the following:-                                                       "        ..           ..~:     .'
                                                                                                                    .   :

3.1 Receipt by The Government of a Legal Opinion issued by the Attorney
General of the Republic of Kenya to the effect that The Government has the
power to enter into this Agreement and has taken all necessary actions which are'
required for the execution, delivery and performance of this Agreement.

3.2 This Agreement constitutes a legal valid and binding obligation of The
Government enforceable in accordance with its terms under the laws of the
Republic of Kenya. .

  3.3 The Government shall have obtained all necessary authorisations,
 registrations, approvals, consents and exemptions required by and in respect of
 any governmental authority or agency of, or within, the Republic of Kenya, and'
 has duly effected any other declarations filing or registrations with any
 governmental authority or agency which are required or appropriate in
 connection with the execution delivery and performance of this Agreement within
 the Republic of Kenya.

 3.4 The Government will have obtained confirmation that the payments under
 this Agreement are not subject to any exchange control. .

 3.5 All payments by The Government under this Agreement are exempt from any
 current or future taxes including any under the Income Tax Act of Kenya in the
 _ e, U lie f Kenya.

 4. Method of Calculation

 Any interest payable under the terms of this Agreement-shall-accrue interest on
 any sums outstanding on a daily basis and on the basis of a 360 day year.

 5.Repaymentof The Liability

The Liability shall be repai_clto the Companv by means of the deferred R.ID'.ment;  __.   m        ~   u   •   _

on the dates and in the amounts referred to in the First Schedule hereto in respect
of which time shall be of the essence.

Subject to The Government having received and delivered to The Company all
necessary consents and approvals for such prepayment and subject to The
Government having given to The Company not less than 30 clear days
irrevocable notice The Government may prepay the whole of the Liability on any
of the payment dates referred to in the First Schedule hereto. Any such notice
given shall specify the date for prepayment

7. Default Interest

7.1 On any overdue deferred payment or payments            or any payment      due
hereunder and remaining unpaid and on any other amount payable by The
Government pursuant to this Agreement which shall not be paid in full on the
due date, The Government will on demand made by The Company from time to
time pay interest from the due date to the date of actual payment, as well after as
before judgement, at a rate per annum (calculated on the basis of a year of 360
days) for each day during such period equal to 8.75 per cent.

8. Payments

     8.1 All payments to be made by The Government shall be made in United States
     Dollars no later than 11.00 a.m. London time on the due date for payment in
    immediately available funds. Each payment to The Company pursuant hereto
    shall be made without set off or counterclaim in the currency referred to above to
    the credit of such account or place as The Company may from time to time
    notify The Government in writing. The Government agrees to instruct its Bank:
    to provide The Company, by facsimile, with a copy of its payment instructions
    showing how the funds are being transferred.

    8.2 If any payment to be made pursuant to the terms of this Agreement would
    otherwise fall due on a day which is not a Banking Day then the due date for
   payment thereof shall be amended to the preceding Banking Day.                 The
    Governments obligation to make payments in USD shall be of the essence and
   shall not be discharged or satisfied by any tender or recovery pursuant to any
  judgement expressed in or converted into any other currency except to the extent
   to which such tender or recovery-shall result in' the effective receipt by The
   Company of the full amount of USD payable hereunder. 'Accordingly, The
   Government's obligation to make payment in USD shall be enforceable as an
  alternative or additional 'Cause 'ofaction for the purpose -'ot            in such  recovery
  currency of the amount (if any) by which such effective receipt shall fall short of
  the full amount of USD payable hereunder and shall not be affected by judgement
  being obtained for any other sums due under the terms of this Agreement.

  8.3 All payments made by The Government under the terms of this Agreement
  shall be applied in the following order of priority: first in reimbursement of all fees
 .1J.-:J. expenses incurred by the Company       ~ tile coilecuon 0 'any mount d e
 under or otherwise incurred in connection with the terms of this letter; secondly,
 in payment of any default interest and thirdly in payment of an Instalment due                               it
 hereunder then outstanding

 9 Representations        and Undertakings

 The Government executing this Agreement represents and' undertakes to The '.
 Company as follows:-.

9.1 that The Government has power to enter into this Agreement to borrow and
to perform all its obligations hereunder and that all necessary action has been
taken to authorise the borrowing herein referred to upon the terms and conditions
set out in this Agreement and to authorise the acceptance of such terms by The

Government in the manner in which they are so accepted;

9.2 that when accepted by The Government in the marmer referred to below the
terms and conditions set out in this Agreement will constitute obligations legally
binding on The Govefnment and enforceable in accordance with their terms;
                                                                   _. ~.
9.3 that the performance by The Government of its obligations contained in "this
                 •                    '   ';'.I;.~...   •   '...       {   ••_   •.

Agreement will not 'cnntr:;:lvpnp ~tnv 1:rw .('If 1<pn,,~ ~nT'Ppn-\p,.,t n-\,...rl",_"'_rTO •..•1-."' ,...0
                                                               -.                                             7

       or other .arrangernent to which The Government is a party or which is or may be
       bindma on The Government or any of its assets;

       9.4 that The Government is not in default under any agreement relating to
       borrowed money to which The Government is a party or by which The
       Government may be bound and that no litigation, arbitration or administrative
       proceedings are presently current or pending or to The Government's knowledge
       threatened which are material;

       9.5 that The Government will not during the continuance of the Agreement
       without The Company's express consent in writing conclude any facility in
       respect of the purpose referred to in paragraph 2.2 hereof other than from The

       9.6 that The Government irrevocably waives all immunity to which it may be or                                  II
      become entitled in relation to this Agreement, including immunity from                                          if
      jurisdiction, enforcement, prejudgment proceedings, injunctions and all other.                                       f
      legal proceedings and relief, both in respect of itself and its assets, and consents to                         II
      such proceedings and relief; and" - .--.--.-  ---.--.-- ..-- .- ----.:.....----.-.-:.-------        .           If
      9.7 that The Government is subject to civil and commercial law with respect to its                             :j:
      obligations under this Agreement and that the execution, delivery and                                           t:
      performance of any or all of the terms of this Agreement by The Government                                      !.
----eomtitut@- .. nvat€Hl.Ild-comm€rcial-act...c:....r-ather-t.han-go.v.ernmentaLor-publie-ac.1:S.-_._ .... .; ...
                  p                                                                                                  y
      and that The Government and its property do not enjoy any right of immunity                                    :1,;
      from the suit, set-off or attachment or execution on judgement in respect of any or                            ;,';
      all of its obligations under this Agreement and that the waiver contained in this                              :d
      Agreement by The Government of any such" right of immunity is irrevocably                                      il;;
      .___ .-1.:;, \... _
         ;""rl--,rr .-..:.   f"T""f~c     ~(,","prrrre,.,t                                                           II.:
                                   \.. " _... _ __ . ~ ..•.

      10. Events of Default
                                                              -.                 .•..   .•. ~
     For the purposes of this Agreement the expression "Event of Default" shall mean
     anyone     of the following (and "Events of Default" shall be construed

     10.1 The Government's   failure to pay any                     sum payable hereunder on the date
     on which the same is due;

     10.2 The Government committing any breach of or omitting to observe any of the
     obligations or undertakings referred to in this Agreement;

     10.3 any undertaking,    representation or warranty given, made or deemed to be
     given or made by The Government in or pursuant to this Agreement being
     incorrect in any respect which The 'Company deems to be material; ..                       v

                              ".:;   -::~:.
                    . .. ..;.:~ :;:::: ::'~~~!.'1:-'.Z}~
                                                     -! ..,~.,~- ~'~'.:'~: ':::.-:'. -j;=j'':.:- ;~•. "
           lOA any obLigatinnof The Government in respect of monies borrowed from The
           Company o: any other lender or under any guarantee or indemnity in respect of
          borrowed monies becoming enforceable or capable of being declared enforceable
          prior to its stated maturity or any liability of The Government in respect of
          borrowed money or any guarantee or indemnity relating thereto not having been
         paid or discharged when due;                          .    ,
         if at any time it becomes unlawruj for The Government to perform any or all of
         its obligations referred to in this Agre¢ment;

         10.5 if any circumstances arise which in The Company's opinion give ground for
         belief that the purpose expressed in. paragraph 2.2 may not be (or may be
        incapable of being) fully performed or otherwise that The Government may not
        (or may be unable to) perform its obligatio'ns under          this Agreement or the

        10.6 if a distress or execution is levied or enforced or sued out upon or against
       any part of The Government's property, and is not dis (arged or stayed within
       seven days of having been so levied, enforced or sued out or an encumbrance
       takes possession or a receiver is- appointed _of the .whole .or -any part of The .
       Governznenrs undertakiiigpropertY or assets;       .

       10.7 if the State of the.Republic of Kenya becomes unable to' meet, or ceases or.
       threatens to cease payment of, or declares or threatens that it will not meet, or ' :
      declares a moratorium in respect of its obligations to meet, its foreign.-currency_' .__ .
__    li~aQilitieL~d-when-theY-fafr-drre;-:or adopts any other legislative measures :.
      which have the effect of expropriating its creditors;

      10.8 if the State of the Republic of Kenya becomes, or in The Company's opinion
      is likely to become, dissolved, partitioned or unified with another State, or if a
      change in the Governmental re£ime of the State of Republic of Kenya takes place,
     or in The Company's opinion is likely to take place, by non-democratic means,
     inclUdingwithout prejudice to the ge:leaIit:/J.f "re t:;J egcL:.g 1.Jj' cpG0ii16 u.. tTI
     -t...-i:: vio en- 5 iz ir of power; or

     10.9 any. event occurs which in The Company's opinion is have a
     materially adverse effect on The Government's ability to comply with its
     obligations under this Agreement.

    10.10 Upon the occurrence of any Event of Default or EVents of Default The
    Company shall have the right exercisable in its unfettered and absolute discretion
   to serve written notice (hereinafter called "Notice of Default") upon The
   Government specifYingthe Event of Default or Events of Default. Upon the
   service by The Company of a Notice of Default the whole of the Liability shall
. become immediately repayable to The Company together .with all -and
  whatsoever sums as may be due to The Company by The Government under the
  terms of this Agreement and.interest at the rate aforementioned in paragraph 7.1
 herein above ("Default Interest") to date of actual payment. The service of a
 Notice of Default shall also constitute demand by The Company of all monies as
 shall then become payable PROVIDED AL WAYS that no failure or delay on
 The Company's part to serve or in .the serving of any Notice of Default will
            operate as a waiver of The Company's right to serve such Notice of Default nor
           will any failure' on The Company's part to exercise and no delay on The
           Company's part in exercising any other right or remedy available under the terms
           of this Agreement will operate as a waiver thereof nor will any single or partial
           exercise of any right or remedy preclude any other or further exercise thereof or
           the exercise of any other right or remedy.

          11. Taxes and Charges

          All payments to be made by The Government under the terms of this Agreement
          shall be made without set-off or counterclaim and free and clear of and without
          deduction for or on account of any taxes or otherwise, If (a) The Government is
          required by law to make any deduction or withholding from any sum due from
          The Goverrunent to any person hereunder or (b) The Company or its ccessors
          in title or assign'Sare required by law to make any payment on or in relation to
              any amount received or receivable by such person from The Government
             hereunder on account of taxes (other thari' taxes on the overall net income of such
             person) then the sum due from. The Govemment to such person in respect ·of-·
             which such deduction, withholding or payment has been required to be made
             shall be increased to the extent necessary to ensure that, after the making of such
             deduction, withholding or payment, such person receives and is beneficially
             entitled, free from any such charge as is mentioned above, to a net sum equal to
             the sum which it would have· received and been so entitled to h.:l,.cLn~s~.cl1 ... __  ',   ..••••.••
                                                                                                                     J. •
---'- _··---aeductlOn or withholding or payment been required to be made.                                             I

         12. Costs and Guarantee Premium

           The Gov imen shan rrorn time w time rei burse Tl e Company for a 1 costs
          and expenses (including legal fees and travel expenses) reasonably incurred by
         The Company in connection with the negotiation of this Agreement, and any
         other arrangements or further agreements connected with this Agreement and the
         preparation and execution thereof, and of any amendment, modification, waiver,
         assignment or other document relating thereto, or in connection with the
         pr~ervation,· enforcement or attempted enforcement of any of The Company's
         rights under the terms of this Agreement ~cind any amendment, modification,
         waiver or otherdocument in respect there or provided that such amount shall not
         exceed USD$50,OOOin respect of such costs and expenses tb the date hereof. The
         Government shall further pay to the Company a GuaranteePremium       in the sum
         ofUSD$929,250 which shall bepayable on or before the date hereof,

         13. Increased Costs

        An Increased Costs Events occurs in relation to the Deferred Payment Facility if:

        13.1 The Company reasonably determines after due 'consultation with The
        Government that it is directly or indirectly affected by any law, regulation, treaty
        or official directive (whether or not having the force of law) or any change therein
              •                                ••••      I.               •

            or in the interpretation or application thereof by any governmental authority or
            other authority charged with the administration thereof or by any court now or
            from time to time while the Deferred Payment Facility remains in force which:

            (i) subjects The Company to any tax with respect of payments of any other
           amount payable hereunder in respect of the Deferred Payment Facility (other
           than tax on our overall net income); or

          (ii)    changes the basis of taxation of payments to The Company of principal of
          or interest on any amount payable hereunder in respect of the Deferred Payment
          Facility (other than a change in the statutory rate of tax on our overall net
          income); or

         (iii)   imposes on The Company any other condition with respect of the'.                                                              "
         Deferred Payment Facility ,or . - --'
         (iv) imposes modifies or deems applicable any capital adequacy, reserve and/or
         special deposit requirement against assets held by or deposi!_in .QJ forthe account
         of or loans by or ·liabilities· ..·of (whetlier--direct-'or contingent) any of The
         Company's offices (to the extent related or applicable to the Deferred Payment
        The Company complies with any request, law, regulation or directive from any
        applicable fiscal or monetary authority (whether or not having the force of law) in
_. .'Jity;                            .

        and as a result of any of the foregoing:

        r to:
        ,....            cf •...•..•..•..
                ~hO .•.•..•.••.. ..•.
                '-'l_~__ ;:1~'''''''''''''
                                __»: "'-'''~'
                                  J w....L.:...1. - J.",,,~rj;.,.,.~ r: 1. --,' .:;i-; '0:.:0 b" ~_l'~F' L.'-'O' _ 71Y .••..•. r.c~'pe"-
                                             ·1 .•.•  t_ .....-..• '1· •••
                                                            I' :.._!..
                                                                •.•••.   U   C:~.... t..l.\...
                                                                              J.  .ol.               ••.
                                                                                                       _         cpa.- ""... !r'l ••.... '""
        of the Deferred Payment Facility or its effective return under this Agreement in
        respect of the Deferred Payment Facility is reduced; or

       (B )the Company makes the payment or foregoes any interest or other return on
       or calculated by reference to the gross amount of any sum received or receivable
       by The Company from The Government ill respect of the Deferred Payment.
       Felli' ty.
        a                                              .                                .

       14. Effect of Increased Costs Event

       14.1 If an Increased Costs Event occurs The Company may promptly notify The
       Government in writing of such Increased Costs Event;

        14.2 The Government shall after due consultation pay to The Company forthwith
       upon demand such amount as shall compensate The Company for such iricreased
       costs, reduction, payment or foregone interest or other return, The Company's
       certificate setting out the amount and basis for such amount shall be conclusive in
       the absence of manifest error. It shall not be a defence to any such demand that
       the cost, reduction, payment, foregone interest or other return could have been
       avoided or reduced by The.•...• Company .
         .• -
                .                 '.
                        ~   ...     ~_
                                                                                               : }

          15. illegality

          Notwithstanding anything to the contrary contained in this Agreement, if any
          change in law or regulation or official directive (whether or not having the force
          of law) or in the interpretation or application thereof by any governmental
         authorin or other authority or by any court shaII make it unlawful for The
         Company to make or fund or maintain the Deferred Payment Facility or to give
         effect to The Company's obligations under this Agreement with respect to the
         Deferred Payment Facility, The Company may by written notice to The
         Government, declare that the Deferred Payment Facility shall be terminated,
         whereupon the same shall be immediately terminated and The Government shaII
         with ten (10) days repay the Liability or such part thereof specified by The
         Company together with accrued interest and all other amounts payable to The
        Company under this Agreement inrelation to the Deferred Payment Facility,
        including any expense, loss, damage or liability incurred as a result of such

        16. Assignments

          This Agreement shall bind and endure for the benefit of each of Company and
          The Government and their respective successors and assigns provided however
          that The Government shall not assign the benefit of this Agreement or any of its
          rights hereunder.
-- - ---------_._-_._--_ .._--~-_._,---_._--------------- -~---_.---_ .. -- _.     --

       17. Confidentiality

       The parties hereto shall not disclose the terms of thi docurnen           r IT
       corresp ndence or      C'    itauon anciuary ere 0 0 any truro party without the
       consent in writing of the other party.

       18. Notices

        18.1 All notices, requests, demands or other communications to be given or made
       pursuant to the terms of this Agreement shall be given or made in writing to the .
       party to which such notice, request, demand or other communications is to be
     , given at its address referred to herein, or at such other address as the addressee
       shall have notified in writing from time to time by a notice given in accordance
       with the terms of this paragraph. All such notices, requests, demands and other
       communications shall be effective upon receipt and if delivered by hand shall be
       deemed to have been received at the actual time of delivery.

     18.2 Where any provision is made in this Agreement for notice. of a specified
     number of days or Banking Days duration no account shall be taken in
     computing the period of notice given of the day on which such notice is given or
        -19. Governing Law

         This Agreement referred to in this letter shall be governed and construed in all
         respects in accordance with the laws of England. By The Government executing
        this Agreement The Government confirms that the jurisdiction of the courts of
        England is non-exclusive and agrees that any legal action or proceedings with
        respect to this agreement may be brought in the courts of any other territory.

        20. General

        The parties to this Agreement agree and declare that the payments due hereunder
        do not comprise any form of credit or finance and in entering into this Agreement
        further agree that the Company shall not be required by law or otherwise to re-
       schedule any payment or payments due to it nor shall till      gree .I. eat be subject
       to any provision of the London Club nor any body institution or organisation
       governmental inter-governmental or otherwise which may from time to time
       undertake the same or similar functions, -

------~-       -._._._---- ----------------------------------_.
       .~---_._.                                                                           __ .- --.._-~-- ... -

                                                                                                                   ..   i

                                                                                                             £" .
                                             THE FIRST SCHEDULE

                    Due date                                      Instalment

         On signing of Contract                                         $929,250

                  15-Feb-03                                             . $982,250
                  15-May-03                                               $982,250
                  15-Aug-03                                               $982,250
                  15-Nov-03                                               $982,250
                  1 -Feb-04                                               $982,250
                  15-May.:-04                                             $982,250
                  15-Aug-Q4                                            ...$982,250
                  15-Nov-Q4                                               $982,250 .
                  15-Feb-Q5                                             . $982,250 -    .
                  1S-May-QS                                               $982,250
                  1S-Aug-QS                                               $982,250
                  1S-Nov-QS                                               $982,250

.---.-.--- ..... - ...--..-----
                                  _. __ ...--_ ..-_.- - -----to       12,716,2501----··--·-·   _-_.-   .
Signed for and on the behalf of the Ministry of Finance

                                         •         \ r> \"     .
                         ....................          ~           .

In presence of:

.......... ~             ..~..-_        _ ......:~..............              .
                                . -'

Nam~:        P:.. . ~~.9~
                9        .~                                            .
        ----------------------_._                                                             .._.   __ ._. -----   -- .. -   .

Signed for and on the behalf of The Company

                                 ----   -- ----~ -

                                                                   .   ',.'


Name:          !:..:.. C?J.~J.$}:1.~~.A~.H                                    .

In the presence of:

                                                           :                  .

                                                  ..                                  .   I

Name:          k::..~~. .q;? I.~q.M
                      N                                                           .

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