EXHIBIT 10.41
Execution Copy
Dated 27 July 2004
ASIA NETCOM CORPORATION LIMITED
(as Subordinated Lender)
in favour of
INDUSTRIAL AND COMMERCIAL BANK OF CHINA (ASIA) LIMITED
(as Security Trustee)
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GROUP SUBORDINATION DEED
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XXXXXXXX XXXXXX
HONG KONG
[Group Subordination Deed]
TABLE OF CONTENTS
CLAUSE NO. CLAUSE HEADING PAGE NO.
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1. DEFINITIONS AND CONSTRUCTION....................................................................... 1
2. SUBORDINATION OF INDEBTEDNESS...................................................................... 3
3. ASSIGNMENT OF SUBORDINATED INDEBTEDNESS............................................................ 5
4. NOTICE OF SUBORDINATION AND ASSIGNMENT TO DEBTORS.................................................. 7
5. CONTINUING AND INDEPENDENT SECURITY................................................................ 8
6. REPRESENTATIONS AND WARRANTIES..................................................................... 9
7. TAXES AND OTHER DEDUCTIONS......................................................................... 12
8. COSTS, CHARGES AND EXPENSES........................................................................ 13
9. UNDERTAKINGS....................................................................................... 14
10. NO SECURITY BY SUBORDINATED LENDER................................................................. 15
11. INDEMNITY.......................................................................................... 15
12. SUSPENSE ACCOUNT................................................................................... 16
13. SET OFF............................................................................................ 16
14. POWER OF ATTORNEY.................................................................................. 16
15. FURTHER ASSURANCE.................................................................................. 17
16. NOTICES............................................................................................ 17
17. WAIVERS, AMENDMENTS AND CONSENTS, REMEDIES, SEVERABILITY, ASSIGNMENT AND COUNTERPARTS.............. 18
18. GOVERNING LAW AND JURISDICTION..................................................................... 19
SCHEDULE 1 - PARTICULARS OF SUBORDINATED INDEBTEDNESS....................................................... 21
SCHEDULE 2 - DEBTORS........................................................................................ 22
SCHEDULE 3 - FORM OF NOTICE OF ASSIGNMENT TO BE GIVEN TO THE DEBTORS........................................ 23
SIGNATURE PAGE.............................................................................................. 26
[Group Subordination Deed]
THIS GROUP SUBORDINATION DEED is made on 27 July 2004
BETWEEN:-
(1) ASIA NETCOM CORPORATION LIMITED, a company incorporated under the laws of
Bermuda, and whose registered office is situated at Xxxxxxxxx Xxxxx, 0
Xxxxxx Xxxxxx, Xxxxxxxx, XX00 Xxxxxxx (xxx "SUBORDINATED LENDER"); and
(2) INDUSTRIAL AND COMMERCIAL BANK OF CHINA (ASIA) LIMITED, a company
incorporated under the laws of Hong Kong acting through its head office
at ICBC Xxxx Xxxxxxxx, 000-000 Xxxxx'x Xxxx Xxxxxxx, Xxxx Xxxx acting on
its own behalf and as facility agent and trustee for and on behalf of the
Finance Parties (the "SECURITY TRUSTEE").
WHEREAS:-
(A) By a facility agreement signed on 2 December, 2003 (but held undated in
escrow) as released from escrow and amended and restated by the
Supplemental Amendment and Restatement Deed (the "FACILITY AGREEMENT")
entered into by (1) the Subordinated Lender, as borrower (2) the banks and
financial institutions named therein as lenders (the "LENDERS"); (3) the
Industrial and Commercial Bank of China (Asia) Limited as arranger; and
(4) the Security Trustee, the Lenders have agreed, upon and subject to
the terms of the Facility Agreement, to make available to the
Subordinated Lender a term loan facility of up to US$150,000,000 (the
"FACILITY") for the purposes more particularly specified therein.
(B) The Security Trustee is acting as facility agent for the Finance Parties
pursuant to the Facility Agreement and security agent and trustee for the
Finance Parties pursuant to this Deed and other Finance Documents.
(C) It is a condition precedent to the availability of the Facility under the
Facility Agreement that the Subordinated Lender shall have executed and
delivered this Deed to the Security Trustee.
NOW THIS DEED WITNESSES as follows:-
1. DEFINITIONS AND CONSTRUCTION
1.1 TERMS DEFINED
In this Deed, unless the context otherwise requires, terms used shall
have the meanings defined in the Facility Agreement and:-
"DEBTORS" means the companies named and particulars of which are set out
in Schedule 2 and "DEBTOR" means any of them, as the context may require.
"SECURED OBLIGATIONS" means any and all moneys, liabilities and
obligations or liability
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(whether actual or contingent, whether now existing or hereafter arising,
whether or not for the payment of money, and including, without
limitation, any obligation to pay damages) which are or may become payable
by the Subordinated Lender or any other Finance Party which is a member of
the CNC HK Group to the Finance Parties pursuant to the Finance Documents
and/or all other obligations hereby secured.
"SUBORDINATED INDEBTEDNESS" means the loans particulars of which are set
out in Schedule 1 in respect of which the Debtors are currently indebted
to the Subordinated Lender and all and any sums which are now or may
hereafter become due, owing or incurred by the the Debtors to the
Subordinated Lender, whether in respect of principal, interest or
otherwise, on account of any advance, loan or payment made to or for the
account of the Debtors.
"SUBORDINATED LOAN AGREEMENT" means any loan agreement, facility letter
or other document now or hereafter entered into between the Subordinated
Lender and any of the Debtors creating or evidencing the Subordinated
Indebtedness (or any part thereof).
1.2 TRUST
All rights, benefits, interests, powers and discretions granted to or
conferred on the Security Trustee pursuant to this Deed shall be held by
the Security Trustee on trust for the benefit of itself as Security
Trustee and each Finance Party from time to time. The Security Trustee
may do all acts within its powers to administer and manage the trust
constituted by this Clause including any full or partial release and/or
re-assignment by deed of the rights, benefits and interests conferred by
Clauses 2.1 and 3.2 or the release of all or any part of the Subordinated
Indebtedness from this Deed. The trust constituted by this Clause shall
come into existence on the date of this Deed and shall last for so long
as any of the Secured Obligations remain outstanding provided that for
the purposes of the rule against perpetuities, the perpetuity period
applicable to the trust and any dispositions made or to be made pursuant
to this Deed and this trust, is hereby specified as a period of eighty
(80) years less than (1) day from the date of this Deed.
1.3 CLAUSE HEADINGS
Clause headings and the table of contents are for ease of reference only
and shall be ignored in the interpretation of this Deed.
1.4 CONSTRUCTION
In this Deed, unless the context otherwise requires:-
(a) Clause 13 of the Facility Agreement shall be deemed incorporated in
this Deed mutatis mutandis as if set out separately in this Deed;
and
(b) references to the "SUBORDINATED LENDER", the "DEBTOR", the "SECURITY
TRUSTEE" or any "FINANCE PARTY" include, where the context permits,
their respective successors and transferees and permitted assigns in
accordance with their respective interests.
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[Group Subordination Deed]
2. SUBORDINATION OF INDEBTEDNESS
2.1 SUBORDINATION
In consideration of the Lenders agreeing to make the Facility available
to the Subordinated Lender upon the terms and conditions of the Facility
Agreement and as a continuing security for the due and punctual
performance and discharge of the Secured Obligations, the Subordinated
Lender agrees that throughout the continuance of this Deed and so long as
the Secured Obligations or any part thereof remains owing:-
(a) the Subordinated Indebtedness owing to it:-
(i) is, and shall remain, subordinated and the payment thereof
deferred to all and any rights, claims and actions which the
Security Trustee or any Finance Party may now or hereafter
have against any of the Debtors in respect of the Secured
Obligations;
(ii) shall not be repaid or repayable, in whole or in part, except
with the prior written consent of the Security Trustee or in
the event of the winding-up, liquidation or dissolution of any
of the Debtors (or any proceedings analogous thereto);
(iii) shall not, except with the prior written consent of the
Security Trustee, be subject to payment of interest (although
interest may accrue thereon);
(iv) is and shall remain unsecured by any Security Interest over
the whole or any part of the assets of any of the Debtors;
(v) is not, and shall not become capable of being, subject to any
right of set-off or counterclaim;
(b) the Subordinated Lender shall not claim, request, demand, xxx for,
take or receive (whether by set-off or in any other manner and
whether from any of the Debtors or any other person) any money or
other property in respect of the Subordinated Indebtedness or any
part thereof except with the prior written consent of the Security
Trustee;
(c) if any monies (including the proceeds of any set-off or
counterclaim) or other property are received in respect of the
Subordinated Indebtedness by or on behalf of the Subordinated
Lender, it shall forthwith pay or transfer the same to the Security
Trustee and the Security Trustee shall apply the same in or towards
satisfaction of the Secured Obligations; and
(d) if any Security Interest is created as security for the Subordinated
Indebtedness then, immediately on the creation thereof, the benefit
of such Security Interest shall be assigned or transferred in favour
of the Security Trustee as security for the Secured Obligations and
any instrument or agreement evidencing such
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Security Interest shall be deposited with the Security Trustee.
2.2 WINDING-UP OF DEBTOR
In any proceedings for the compulsory or voluntary winding-up,
liquidation or dissolution of any of the Debtors (or any proceedings
analogous thereto):-
(a) the Security Trustee and the Finance Parties shall be entitled to
receive payment in full of the Secured Obligations before the
Subordinated Lender shall be entitled to receive any payment on
account of the Subordinated Indebtedness or any part thereof;
(b) the Subordinated Lender agrees that it will prove for the full
amount of its claims in respect of the Subordinated Indebtedness and
that any amounts payable to the Subordinated Lender in respect of
the Subordinated Indebtedness shall be applied in payment or
satisfaction of the Secured Obligations until the whole of the
Secured Obligations shall have been certified by the Security
Trustee as having been discharged and the remaining balance (if any)
may be applied towards payment of the amounts owing to the
Subordinated Lender in respect of such Subordinated Indebtedness.
2.3 SUBORDINATED LOAN AGREEMENTS
The Subordinated Lender agrees that:-
(a) each and every Subordinated Loan Agreement now or hereafter entered
into shall be subject in every respect to the terms of this Deed;
(b) insofar as the terms of any Subordinated Loan Agreement or any
transaction in connection therewith are or may be inconsistent with
the terms of this Deed, the terms contained herein shall prevail;
(c) no amendment to the principal amount, interest rate or payment terms
shall be made to any Subordinated Loan Agreement except in writing
and with the Security Trustee's prior written approval, such
approval not to be unreasonably withheld, of the terms thereof; and
(d) immediately after the execution of any Subordinated Loan Agreement
or any agreement for the amendment of any Subordinated Loan
Agreement, copies thereof shall be delivered to the Security Trustee
as evidence thereof.
2.4 TRUST
If at any time throughout the continuance of this Deed and so long as the
Secured Obligations or any part remains owing, the Subordinated Lender
receives from any of the Debtors a payment (including by way of set-off)
or distribution in cash or in kind of, or an account of, the Subordinated
Indebtedness, that the Subordinated Lender shall:
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(a) forthwith notify the Security Trustee of such receipt;
(b) hold any payment so received on trust for the Security Trustee (for
the account of the Finance Parties) in a separate account; and
(c) pay and distribute any payment so received, or (in the case of a
set-off) pay an equivalent amount, on demand, to the Security
Trustee for application in or towards the Secured Obligations.
3. ASSIGNMENT OF SUBORDINATED INDEBTEDNESS
3.1 COVENANT TO PAY
The Subordinated Lender hereby covenants that it will on demand pay to
the Security Trustee and the Finance Parties the Secured Obligations when
the same become due for payment or discharge in accordance with the
Finance Documents.
3.2 ASSIGNMENT
In consideration as aforesaid, the Subordinated Lender hereby assigns to
the Security Trustee absolutely all the Subordinated Lender's right,
title, interest and benefit in and to the Subordinated Indebtedness owing
to it and all and any moneys (including the proceeds of any set-off or
counterclaim) or other property which it may receive on account of such
Subordinated Indebtedness or any part thereof and the full benefit of all
rights and remedies relating thereto including, but not limited to, all
claims and remedies for non-payment of the same and all claims under
charges, encumbrances, guarantees and other security and all proceeds and
forms of remittance in respect of the same and the full benefit of all
powers and provisions whatsoever contained in the relevant Subordinated
Loan Agreements (or any of them) as a continuing security for the due and
punctual performance and discharge of the Secured Obligations.
3.3 APPLICATION
All monies or other property hereby assigned to or otherwise received by
the Security Trustee in respect of the Subordinated Indebtedness may be
applied by the Security Trustee in or towards satisfaction of the Secured
Obligations in such manner as it may think fit.
3.4 PERFORMANCE AND INDEMNITY
Notwithstanding the foregoing, the Subordinated Lender shall remain
liable to perform all the obligations to be performed by it in respect of
the Subordinated Indebtedness and shall discharge fully its obligations
thereunder as they become due and neither the Security Trustee nor any of
the Finance Parties shall have any obligation of any kind whatsoever
thereunder or be under any liabilities whatsoever in the event of any
failure to perform their obligations thereunder and the Subordinated
Lender hereby indemnifies and agrees to keep indemnified the Security
Trustee, the Finance Parties and each of them from and against any such
liability.
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[Group Subordination Deed]
3.5 RELEASE AND TRANSFER
(a) The Security Trustee shall, upon the full performance and discharge
of the Secured Obligations to the satisfaction of the Security
Trustee and the Finance Parties, at the request and cost of the
Subordinated Lender and in such form as the Security Trustee shall
reasonably approve, release and transfer to the Subordinated Lender,
the Secured Indebtedness then the subject of the Security Interest
constituted by this Deed.
(b) Notwithstanding any discharge, release or settlement from time to
time between the Security Trustee and/or any Finance Party and the
Subordinated Lender or any of the Debtors, if any security,
disposition or payment granted or made to the Security Trustee
and/or any Finance Party in respect of the Secured Obligations by
the Subordinated Lender, any of the Debtors or any other person is
avoided or set aside or ordered to be surrendered, paid away,
refunded or reduced by virtue of any provision, law or enactment
relating to bankruptcy, insolvency, liquidation, winding-up,
composition or arrangement for the time being in force or for any
other reason, the Security Trustee shall be entitled thereafter to
enforce this Deed as if no such discharge, release or settlement had
occurred.
3.6 NO DISCHARGE
The liabilities and obligations of the Subordinated Lender under this
deed and the security constituted by this Deed shall remain in force
notwithstanding any act, omission, event or circumstance whatsoever until
the expiry of the Security Period and without limiting the foregoing,
neither the liabilities of the Subordinated Lender under this Deed nor
the validity or enforceability of this Deed shall be prejudiced, affected
or discharged by:-
(a) the granting of any time or indulgence to any of the Debtors, the
Subordinated Lender or any other person in respect of the Secured
Obligations;
(b) any variation or modification of the Facility Agreement, any of the
other Finance Documents or any other documents referred to therein
or related thereto;
(c) the invalidity or unenforceability of any obligation or liability of
any party under the Facility Agreement, any of the other Finance
Documents or any other documents referred to therein or related
thereto;
(d) any invalidity or irregularity in the execution of the Facility
Agreement, any of the other Finance Documents or any other documents
referred to therein or relating thereto;
(e) any lack of capacity or deficiency in the powers of any of the
Debtors, the Subordinated Lender or any other person to enter into
or perform any of its respective obligations under the Facility
Agreement or any of the other Finance Documents to which it is party
or any other documents referred to therein or related thereto or any
irregularity in the exercise thereof or any lack of authority
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by any person purporting to act on behalf of any Debtor, the
Subordinated Lender or such other person;
(f) the insolvency, bankruptcy or liquidation or any incapacity,
disability or limitation or any change in the constitution or status
of any Debtor, the Subordinated Lender or any other person;
(g) any other Finance Document, Security Interest, guarantee or other
security or right or remedy being or becoming held by or available
to the Security Trustee, any Finance Party or by any other person or
by any of the same being or becoming wholly or partly void, voidable
or unenforceable or impaired or by the Security Trustee or any
Finance Party at any time releasing, refraining from enforcing,
varying or in any other way dealing with any of the same or any
power, right or remedy the Security Trustee and/or any Finance Party
may now or hereafter have from or against the Subordinated Lender,
any Debtor or any other person;
(h) any waiver, exercise, omission to exercise, compromise, renewal or
release of any rights against any Debtor or the Subordinated Lender
or any other person or any compromise, arrangement or settlement
with any of the same; or
(i) any act, omission, event or circumstance which would or may but for
this provision operate to prejudice, affect or discharge this Deed
or the liability of the Subordinated Lender hereunder.
3.7 NO SUBROGATION
(a) The Subordinated Lender shall not exercise any right of subrogation,
contribution or any other rights of a surety or enforce any security
or other right or claim against any of the Debtors (whether in
respect of its liability under this Deed or otherwise) or any other
person who has guaranteed or given any security in respect of the
Secured Obligations or claim in the insolvency or liquidation of any
of the Debtors or any such other person in competition with the
Security Trustee and/or the Finance Parties.
(b) If any Debtor or the Subordinated Lender receives any payment or
benefit in breach of this Clause 3.7, it shall hold the same upon
trust for the Security Trustee as a continuing security for the
Secured Obligations.
4. NOTICE OF SUBORDINATION AND ASSIGNMENT TO DEBTORS
The Subordinated Lender hereby covenants with the Security Trustee that
it will forthwith upon execution of this Deed, give irrevocable notice to
each Debtor, substantially in the form of Schedule 3, of the
subordination and assignment of the Subordinated Indebtedness contained
herein, and procure each Debtor to execute the consent and agreement
annexed thereto, and the Subordinated Lender hereby warrants and
undertakes throughout the continuance of this Deed and so long as the
Secured Obligations or any part thereof remains owing :-
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(a) to procure that after the occurrence of a Default the Debtors will
make all payments in full without set-off or counterclaim due in
respect of the Subordinated Indebtedness to the Security Trustee or
as the Security Trustee shall direct;
(b) to procure that the Debtor will promptly notify the Security Trustee
whenever it incurs any Subordinated Indebtedness; and
(c) to procure the Debtor not to dispose of or charge or encumber any
Subordinated Indebtedness or any part thereof to any other person.
5. CONTINUING AND INDEPENDENT SECURITY
5.1 CONTINUING SECURITY
This Deed and the security hereby created shall remain in full force and
effect by way of a continuing security notwithstanding the insolvency or
liquidation or any incapacity or change in the constitution or status of
the Subordinated Lender, any Debtor or any other person and in particular
but without limitation shall not be, nor be considered as, satisfied by
any intermediate discharge or payment on account of any liabilities or
any settlement of accounts between any Debtor or the Subordinated Lender
and the Security Trustee or any Finance Party.
5.2 ADDITIONAL SECURITY
This Deed and the security hereby created shall be in addition to and not
in substitution for or derogation of any other Security Interest,
guarantee or other security (whether given by the Subordinated Lender,
any Debtor or otherwise) now or from time to time hereafter held by the
Security Trustee and/or any Finance Party in respect of or in connection
with the Secured Obligations.
5.3 UNRESTRICTED ENFORCEMENT
The Security Trustee need not before exercising any of the rights, powers
or remedies conferred upon it by this Deed or by law (i) take action or
obtain judgment against any Debtor or the Subordinated Lender or any
other person in any court, (ii) make or file any claim or prove in a
winding-up or liquidation of any Debtor or the Subordinated Lender or of
any other person or (iii) enforce or seek to enforce the recovery of the
moneys and liabilities hereby secured by any other security or other
rights and may be enforced for any balance due after resorting to any one
or more other means of obtaining payment or discharge of the monies
obligations and liabilities hereby secured.
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[Group Subordination Deed]
6. REPRESENTATIONS AND WARRANTIES
6.1 REPRESENTATIONS AND WARRANTIES BY THE SUBORDINATED LENDER
The Subordinated Lender represents and warrants to the Security Trustee
for the benefit of the Finance Parties that:-
(a) STATUS: it is a company duly incorporated and validly existing
under the laws of its respective jurisdiction of incorporation and
has full power, authority and legal right to own its property and
assets and to carry on its business as such business is now being
conducted;
(b) POWER AND AUTHORITY: it has all legal power and authority to enter
into this Deed and perform its obligations under this Deed and all
action (including any corporate action) required to authorise the
execution and delivery of this Deed and the performance of its
obligations under this Deed has been duly taken;
(c) LEGAL VALIDITY: this Deed constitutes or, when so executed and
delivered, will constitute its legal, valid and binding obligations
enforceable in accordance with its terms;
(d) NON-CONFLICT WITH LAWS: the entry into and performance of this Deed
and the transactions contemplated by this Deed do not and will not
conflict with or result in (i) a breach of any law, judgment or
regulation or any official or judicial order, or (ii) a breach of
the constitutional documents of the Subordinated Lender, or
(iii) any material breach of any agreement or document to which the
Subordinated Lender is a party or which is binding upon it or any
of its assets or revenues with a monetary value greater than
US$500,000, nor cause any limitation placed on it or the powers of
its directors to be exceeded or result in the creation or
imposition of any Security Interest on any part of its assets or
revenues pursuant to the provisions of any such agreement or
document;
(e) NO CONSENTS: other than the Consents, no consent of, giving of
notice to, or registration with, or taking of any other action in
respect of, any governmental authority or agency in any relevant
jurisdiction is required for or in connection with the execution,
validity, delivery and admissibility in evidence in proceeding of
this Deed, or the carrying out by, the Subordinated Lender of any
of the transactions contemplated hereby;
(f) NO REGISTRATION: it is not necessary in order to ensure the
legality, validity, enforceability or admissibility in evidence of
this Deed that it or any other instrument be notarised, filed,
recorded, registered or enrolled in any court or other authority or
that any stamp, registration or similar tax or charge be paid on or
in relation to this Deed and this Deed is in proper form for its
enforcement in the courts of Hong Kong and all jurisdictions the
subject of any legal opinion referred to in paragraph 4 of Schedule
3 of the Facility Agreement;
(g) LITIGATION: except as disclosed in a letter of even date from the
Subordinated
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Lender to the Security Trustee, no litigation, arbitration or
administrative proceeding is currently taking place or pending or,
to the knowledge of the officers of the Subordinated Lender,
threatened against it or its assets which could, in the reasonable
opinion of the Security Trustee, materially and adversely affect its
business, assets or financial condition or its respective ability to
perform its obligations under this Deed;
(h) WINDING UP AND STRIKING OFF: it has not taken any corporate action
or no other step has been taken or legal proceedings have been
commenced or threatened against it for its winding-up, dissolution,
administration or reorganisation or for the appointment of a
receiver, administrator, trustee or similar officer of it or all or
any of its assets or revenues, except as permitted by clause
17.1(g) (Winding-up) of the Facility Agreement;
(i) TAXES ON PAYMENTS: all payments to be made by it under this Deed
may be made by it free and clear of, and without deduction for,
Taxes and no deductions or withholdings are required to be made
therefrom save as specified in any legal opinion referred to in
paragraphs 2, 3 and 4 of Schedule 3 to the Facility Agreement; and
no Taxes are imposed on or by virtue of the execution or delivery
by the Subordinated Lender of this Deed or any document to be
executed or delivered under this Deed;
(j) TAX LIABILITIES: it has complied with all Taxation laws in all
material respects in all jurisdictions in which it is subject to
Taxation and has paid all Taxes due and payable by it; no material
claims are being asserted against it with respect to Taxes;
(k) NO DEFAULT:
(i) no Default has occurred and is continuing;
(ii) it is not, or with the giving of notice or lapse of time or
satisfaction of any other condition or any combination
thereof, would not be in material breach of or in default
under any agreement relating to Financial Indebtedness to
which it is a party or by which it may be bound;
(l) NO IMMUNITY: it is generally subject to civil and commercial law and
to legal proceedings and none of any Debtor nor the Subordinated
Lender nor any of their assets or revenues is entitled to any
immunity or privilege (sovereign or otherwise) from any set-off,
judgment, execution, attachment or other legal process;
(m) COMPLIANCE, WITH CONSENTS AND LICENSES: every consent,
authorisation, licence or approval required for the time being by it
in connection with the conduct of its business and the ownership,
use, exploitation or occupation of its property and assets has been
applied for and not refused or has been obtained and is in full
force and effect and there has been no material default in the
observance of the conditions and restrictions (if any) imposed on,
or in connection with, any of the same which may have a material
adverse effect on its ability to
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perform its obligations under this Deed and, to the knowledge of its
officers, no circumstances have arisen whereby any remedial action
is likely to be required to be taken by it, or at its expense under
or pursuant to any law or regulation applicable to its business,
property or assets;
(n) NO FINANCIAL INDEBTEDNESS: it does not have any Financial
Indebtedness other than as permitted by Clause 16.17 of the Facility
Agreement;
(o) SOLE AND BENEFICIAL OWNER: it is or will be the sole, absolute and
beneficial owner of the Subordinated Indebtedness and it has good
and marketable title thereto;
(p) LEGAL AND BINDING OBLIGATIONS: the obligations under the
Subordinated Loan Agreements are or will be legal, valid and binding
and enforceable in accordance with their terms and none of the
Debtors are in default in respect of any provision thereof;
(q) SECURITY INTEREST: no Security Interest exists in any of its rights,
title, interests or benefits in the Subordinated Indebtedness (other
than as created by this Deed);
(r) THIRD PARTY RIGHT: it has not sold or otherwise disposed of any of
the Subordinated Indebtedness or granted in favour of any other
person any interest in or any option or other rights in respect of
any of the Subordinated Indebtedness; and
(s) PARTICULARS OF LOANS: the particulars of the Subordinated
Indebtedness set out in Schedule 1 are accurate.
6.2 REPRESENTATIONS AND WARRANTIES BY THE SUBORDINATED LENDER
The Subordinated Lender represents and warrants to the Security Trustee
in the terms of Clause 15 (a), (b), (c), (d), (e), (f), (g), (h), (i),
(j), (k), (n) and (q) of the Facility Agreement mutatis mutandis.
6.3 CONTINUING REPRESENTATION AND WARRANTY
The Subordinated Lender also represents and warrants to and undertakes
with the Security Trustee that the foregoing representations and
warranties made by them respectively in Clause 6.1(a) to (n) inclusive
are deemed to be made by the Subordinated Lender on each Drawdown Date
and on each Interest Payment Date with reference to the facts and
circumstances then existing and that the foregoing representations in
Clause 6.1(o), (p) and (s) will be true and accurate throughout the
continuance of this Deed with reference to the facts and circumstances
subsisting from time to time.
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7. TAXES AND OTHER DEDUCTIONS
7.1 TAX GROSS-UP
(a) All sums payable by the Subordinated Lender or any other person
under this Deed shall be paid in full without any restriction or
condition and free and clear of any Tax or other deductions or
withholdings of any nature.
(b) If at any time the Subordinated Lender or any other person is
required in any jurisdiction to make any deduction or withholding in
respect of Taxes or otherwise from any payment due under this Deed
for the account of the Security Trustee or any Finance Party (or if
the Security Trustee is required to make any such deduction or
withholding from a payment to any other Finance Party), the sum due
from the Subordinated Lender in respect of such payment shall be
increased to the extent necessary to ensure that, after the making
of such deduction or withholding, the Security Trustee receives on
the due date for such payment (and retains, free from any liability
in respect of such deduction or withholding) a net sum equal to the
sum which it would have received had no such deduction or
withholding been required to be made.
(c) The Subordinated Lender's obligations under Clauses 7.1(a) and (b)
shall not apply in respect of any Tax on Overall Net Income levied
on the Security Trustee or any other Finance Party.
(d) All Taxes required by law to be deducted or withheld by the
Subordinated Lender from any amount paid or payable under this Deed
shall be paid by the Subordinated Lender when due (except for such
amounts being disputed by the Subordinated Lender in good faith) to
the relevant tax authority.
7.2 TAX INDEMNITY
The Subordinated Lender shall indemnify the Security Trustee and each
other Finance Party against any losses or costs incurred by any of them
by reason of:
(a) any failure of the Subordinated Lender or any other person to make
any such deduction or withholding referred to in Clause 7.1; or
(b) any increased payment referred to in Clause 7.1 not being made on
the due date for such payment; or
(c) any Taxes which are being disputed by the Subordinated Lender and
remaining unpaid; and
(d) any liability suffered (directly or indirectly) for or on account of
Tax by that Finance Party in respect of any payment received or
receivable or deemed to be received or receivable under this Deed.
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[Group Subordination Deed]
7.3 EVIDENCE OF PROOF
The Subordinated Lender shall and procure that each of the Debtors shall
promptly deliver to the Security Trustee any receipts, certificates or
other proof evidencing the amounts (if any) paid or payable in respect of
any deduction or withholding as aforesaid.
7.4 TAX CREDIT
If the Subordinated Lender or a Debtor, as the case may be, makes a Tax
payment and the Security Trustee determines that:-
(a) a Tax Credit is attributable either to an increased payment of which
that Tax payment forms part, or to that Tax payment; and
(b) it has obtained, utilised and retained that Tax Credit,
the Security Trustee shall, promptly after obtaining the benefit of that
Tax Credit, pay an amount to the Subordinated Lender or that Debtor, as
the case may be, which the Security Trustee determines will leave it
(after that payment) in the same after-Tax position as it would have been
in had the Tax payment not been required to be made by the Subordinated
Lender or that Debtor, as the case may be. Any certificate or
determination of the Security Trustee showing in reasonable details the
calculations made by the Security Trustee as to any amount for the
purposes of this Clause 7 shall, in the absence of manifest error, be
conclusive and binding on the Subordinated Lender.
8. COSTS, CHARGES AND EXPENSES
8.1 COSTS, CHARGES AND EXPENSES
The Subordinated Lender shall from time to time forthwith on demand pay
to or reimburse the Security Trustee for:
(a) all expenses (including legal, printing and out-of-pocket expenses)
reasonably incurred by the Security trustee or any other Finance
Party in connection with the negotiation, preparation and execution
of this deed and any amendment or extension of or the granting of
any waiver or consent under this Deed; and
(b) all costs, charges and expenses (including legal fees on a full
indemnity basis properly incurred by the Security Trustee or any
other Finance Party in connection with the enforcement of or
preservation of any rights under this Deed, or otherwise in respect
of the monies owing under this Deed unless and to the extent such
costs, charges, and expenses results directly from the gross
negligence, fraud or wilful misconduct of the Security Trustee or
any other Finance Party.
and until payment of the same in full, all such costs, charges and
expenses shall be
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[Group Subordination Deed]
secured by this Deed.
8.2 STAMP DUTY
The Subordinated Lender shall pay all stamp, documentary, registration or
other like duties or taxes (including any duties or taxes payable by the
Security Trustee or any Finance Party) imposed on or in connection with
this Deed and shall indemnify each of the Security Trustee and the other
Finance Parties against any liability arising by reason of any delay or
omission by the Subordinated Lender to pay such duties or taxes.
9. UNDERTAKINGS
9.1 UNDERTAKINGS BY THE SUBORDINATED LENDER
The Subordinated Lender hereby undertakes and agrees with the Security
Trustee for the benefit of the Finance Parties, throughout the
continuance of this Deed and so long as the Secured Obligations or any
part thereof remains owing that, unless the Security Trustee otherwise
agrees in writing, it will:-
(a) NO SECURITY INTEREST: not create or permit to exist any Security
Interest over all or any part of the Subordinated Indebtedness or
any interest therein or otherwise sell, transfer, assign, deal with
or dispose of all or any part of the Subordinated Indebtedness or
attempt or agree to do any of the same (except under or pursuant to
this Deed);
(b) BENEFICIAL OWNER: subject to the provisions of this Deed, at all
times remain the sole, absolute and beneficial owner of the
Subordinated Indebtedness;
(c) NO WAIVER OF LIABILITIES: not waive, release, compromise or vary the
liability of any Debtor in relation to the Subordinated Indebtedness
or do or omit to do any act or thing whereby the recovery in full of
any monies payable in respect thereof may be prejudiced or affected;
(d) INFORMATION: give to the Security Trustee such information regarding
the amount and terms of the Subordinated Indebtedness as the
Security Trustee may reasonably require;
(e) PERFORMANCE: subject to the provisions of this Deed, duly observe
and perform all its obligations under the Subordinated Loan
Agreements; and
(f) NO DEPRECIATION TO SECURITY: not do or cause or permit to be done
anything which may in any way depreciate, jeopardise or otherwise
prejudice the value of the Security Trustee's security hereunder.
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[Group Subordination Deed]
10. NO SECURITY BY SUBORDINATED LENDER
The Subordinated Lender represents to and undertakes with the Security
Trustee that it has not taken and will not take any security in respect
of its liability under this Deed whether from any Debtor or any other
person.
11. INDEMNITY
11.1 GENERAL INDEMNITY
The Subordinated Lender hereby undertakes with the Security Trustee to
indemnify and keep indemnified the Security Trustee, the Finance Parties
and each of them (each an "INDEMNITEE") from and against all costs,
charges and expenses which the Security Trustee or any Finance Party
shall properly incur in connection with the exercise of any powers
conferred by this Deed or the perfection, preservation or enforcement of
the security created by this Deed (unless and to the extent that any of
the foregoing results directly from the fraud, gross negligence or wilful
misconduct of that indemnitee).
11.2 CURRENCY INDEMNITY
(a) If an amount due to the Security Trustee from the Subordinated
Lender or any Debtor under the Facility Agreement and/or other
Finance Document (a "SUM"), or any order, judgment or award given or
made in relation to a sum, has to be converted from the currency
(the "FIRST CURRENCY") in which that sum is payable into another
currency (the "SECOND CURRENCY") for the purpose of:
(i) making or filing a claim or proof against the Subordinated
Lender or, as the case may be, any Debtor;
(ii) obtaining or enforcing an order, judgment or award in relation
to any litigation or arbitration proceedings,
the Subordinated Lender shall, as an independent obligation to the
Security Trustee, indemnify the Security Trustee to whom that sum is
due against any cost, loss or liability arising out of or as a
result of the conversion including any discrepancy between (A) the
rate of exchange used to convert that sum from the first currency
into the second currency and (B) the rate or rates of exchange
available to that person at the time of its receipt of that sum.
(b) The Subordinated Lender hereby waives any right it may have in any
jurisdiction to pay any amount under the Facility Agreement and/or
any other Finance Document in a currency or currency unit other than
that in which it is expressed to be payable.
11.3 PAYMENT AND SECURITY
The Security Trustee may retain and pay out of any money in the hands of
the Security Trustee all sums necessary to effect the indemnity contained
in this Clause and all
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[Group Subordination Deed]
sums payable by the Subordinated Lender under this Clause shall form part
of the monies hereby secured.
12. SUSPENSE ACCOUNT
The Security Trustee may, place and keep any monies received under this
Deed, before or after the insolvency of the Subordinated Lender to the
credit of a suspense account in order to preserve the rights of the
Security Trustee and the Finance Parties to xxx or prove for the whole
amount in respect of claims against the Subordinated Lender or any other
person.
13. SET OFF
(a) Without prejudice to any right of set-off, combination of accounts,
lien or other rights which the Security Trustee is at any time
entitled whether by operation of law or contract or otherwise, the
Security Trustee may (but shall not be obliged to) set off against
any obligation of the Subordinated Lender due and payable by it
hereunder without prior notice any moneys held by the Security
Trustee for the account of the Subordinated Lender at any office of
the Security Trustee anywhere and in any currency. The Security
Trustee may effect such currency exchanges as are appropriate to
implement such set-off.
(b) If the obligations are in different currencies, the Security Trustee
may convert either obligation at a market rate of exchange in its
usual course of business for the purpose of the set-off.
14. POWER OF ATTORNEY
14.1 POWER OF ATTORNEY
The Subordinated Lender appoints the Security Trustee, and any persons
deriving title under it by way of security severally to be its attorney
(with full power of substitution) and in its name or otherwise on its
behalf and as its act and deed to sign, seal, execute, deliver, perfect
and do all deeds, instruments, acts and things which may be required or
which the Security Trustee shall think proper or reasonably expedient for
carrying out any obligations imposed on the Subordinated Lender hereunder
or for exercising, following the security constituted by this Deed
becoming enforceable, any of the powers conferred by this Deed or for
giving to the Security Trustee the full benefit of this security and so
that this appointment shall operate to authorise the Security Trustee to
do on behalf of the Subordinated Lender anything it can lawfully do by an
attorney. The Subordinated Lender ratifies and confirms and agrees to
ratify and confirm any deed, instrument, act or thing which such attorney
or substitute may execute or do in exercising its powers conferred by
this Clause.
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[Group Subordination Deed]
14.2 DELEGATION
The Security Trustee may delegate to any person all or any of the rights
or powers conferred on it by this Deed or by law. Any such delegation
may be made upon such terms and conditions (including power to sub-
delegate) as the Security Trustee thinks fit.
15. FURTHER ASSURANCE
15.1 The Subordinated Lender agrees that at any time and from time to time
upon the written request of the Security Trustee it will promptly and
duly execute and deliver any and all such further instruments and
documents as the Security Trustee may reasonably require for the purpose
of obtaining the full benefit of this Deed and of the rights and powers
herein granted.
16. NOTICES
16.1 NOTICES
Any notice or communication under or in connection with this Deed shall
be in writing and shall be delivered personally or by prepaid letter
(airmail if available) or facsimile transmission to the addresses or
facsimile numbers set out below or at such other address as the recipient
may have notified to the other parties in writing. Proof of posting or
despatch of any notice or communication to any party hereto shall be
deemed to be proof of receipt:-
(a) in the case of a letter, on the fifth Business Day after posting if
airmail or second Business Day if local mail;
(b) in the case of a facsimile transmission, on the Business Day
immediately following the date of despatch with confirmed facsimile
report.
All communications or other correspondence between the Subordinated
Lender and any of the Finance Parties in connection with this Deed shall
be made through the Security Trustee.
16.2 ADDRESSES
Notices or communications shall be sent to the following addresses:-
To the Subordinated Lender:-
Name Asia Netcom Corporation Limited
Address 00/X Xxxxxx Xxxx Xxxxxx
0 Xxxxx'x Xxxx Xxxxxxx
Xxxx Xxxx
Fax (000) 0000 0000
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[Group Subordination Deed]
Attention Xxxxxxx Xxxxxxxx/Wenlong Sun
With a copy to: Asia Netcom Singapore Pte Limited
0 Xxxxxxx Xxx #00-00
XXX Xxxxxx 0
Xxxxxxxxx 000000
Fax (00) 0000 0000
Attention Xxxxxx Xx
To the Security Trustee:-
Name Industrial and Commercial Bank of China (Asia) Limited
Address 10/F, ICBC Asia Xxxxxxxx
000-000 Xxxxx'x Xxxx Xxxxxxx
Xxxx Xxxx
Fax (000) 0000 0000
Attention Xx. Xxxxxx Xxxxx/ Ms. Xxx Xxxx
16.3 LANGUAGE
Each notice or document referred to in this Deed or to be delivered under
this Deed shall be in the English language.
17. WAIVERS, AMENDMENTS AND CONSENTS, REMEDIES, SEVERABILITY, ASSIGNMENT AND
COUNTERPARTS
17.1 WAIVERS
Time shall be of the essence under this Deed but no failure or delay on
the part of the Security Trustee, the Finance Parties or any of them to
exercise any power, right or remedy under this Deed shall operate as a
waiver thereof, nor shall any single or partial exercise by the Security
Trustee, the Finance Parties or any of them of any power, right or remedy
preclude any other or further exercise thereof or the exercise of any
other power, right or remedy.
17.2 AMENDMENTS AND CONSENTS
(a) Any amendment of any provision of this Deed shall only be effective
if made in accordance with provisions with this Deed and if all
parties hereof so agree in writing and any waiver of any breach or
default under this Deed shall only be effective if the Security
Trustee acting on the instructions of the Finance Parties or the
Majority Lenders (as the case may be), agrees in writing. Any
consent by the Security Trustee under this Deed must be made in
writing.
(b) Any such waiver or consent may be given subject to any conditions
thought fit by the Security Trustee acting on the instructions of
the Finance Parties or the
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[Group Subordination Deed]
Majority Lenders, as the case may be, and shall be effective only in
the instance and for the purpose for which it is given.
17.3 REMEDIES
The remedies provided in this Deed are cumulative and are not exclusive
of any remedies provided by law.
17.4 SEVERABILITY
If any provision of this Deed is prohibited or unenforceable in any
jurisdiction such prohibition or unenforceability shall not invalidate
the remaining provisions hereof or affect the validity or enforceability
of such provision in any other jurisdiction.
17.5 ASSIGNMENT
The Security Trustee may assign its rights under this Deed in accordance
with the provisions of the Facility Agreement. The Subordinated Lender
shall not assign any of their rights hereunder without the consent of the
Security Trustee.
17.6 COUNTERPARTS
This Deed may be executed in any number of counterparts, all of which
taken together shall constitute one and the same instrument, and any
party hereto may execute this Deed by signing any such counterpart.
17.7 It is intended that this document takes effect as a deed notwithstanding
the fact that a party may only execute this document under hand.
18. GOVERNING LAW AND JURISDICTION
18.1 GOVERNING LAW
This Deed is governed by and construed in accordance with the laws of
Hong Kong.
18.2 SUBMISSION TO JURISDICTION
For the benefit of the Security Trustee and each Finance Party, the
Subordinated Lender irrevocably agrees that the courts of Hong Kong are
to have jurisdiction to settle any disputes which may arise out of or in
connection with this Deed and that, accordingly, any legal action or
proceedings arising out of or in connection with this Deed
("PROCEEDINGS") may be brought in those courts and the Subordinated
Lender hereto irrevocably submits to the jurisdiction of those courts.
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[Group Subordination Deed]
18.3 OTHER JURISDICTIONS
Nothing in this Clause 18 (Governing Law and Jurisdiction) shall limit
the right of the Security Trustee or any Finance Party to take
Proceedings against the Subordinated Lender in any other court of
competent jurisdiction nor shall the taking of Proceedings in one or more
jurisdictions preclude the Security Trustee or any Finance Party from
taking Proceedings in any other jurisdiction, whether concurrently or
not.
18.4 WAIVER OF INCONVENIENT FORUM
The Subordinated Lender irrevocably waives any objection which it may at
any time have to the laying of the venue of any Proceedings in any court
referred to in this Clause 18 (Governing Law and Jurisdiction) and any
claim that any such Proceedings have been brought in an inconvenient
forum.
18.5 PROCESS AGENT
The Subordinated Lender hereby irrevocably appoints Asia Netcom Asia
Pacific Commercial Limited of 00xx Xxxxx, Xxxxxx Xxxx Xxxxxx, 0 Xxxxx'x
Xxxx Xxxxxxx, Xxxx Xxxx to receive, for it and on its behalf, service of
process in any Proceedings in Hong Kong. Such service shall be deemed
completed on delivery to the process agent whether or not it is forwarded
to and received by the Subordinated Lender). If for any reason the
process agent ceases to be able to act as such or not longer has an
address in Hong Kong, the Subordinated Lender irrevocably agrees to
appoint a substitute process agent acceptable to the Security Trustee,
and to deliver to the Security Trustee a copy of the new process agent's
acceptance of that appointment, within 30 days.
18.6 SERVICE
The Subordinated Lender irrevocably consents to any process in any
Proceeding anywhere being served by mailing a copy by post in accordance
with Clause 16 (Notices). Nothing shall affect the right to serve any
process in any other manner permitted by law.
18.7 WAIVER OF IMMUNITIES
To the extent that the Subordinated Lender has or hereafter may acquire
any immunity (sovereign or otherwise) from any legal action, suit or
proceeding, from jurisdiction of any court or from set- off or any legal
process (whether service of notice, attachment prior to judgment,
attachment in aid of execution of judgment, execution of judgment or
otherwise) with respect to itself or any of its property, it hereby
irrevocably waives and agrees not to plead or claim such immunity in
respect of its obligations under this Deed.
IN WITNESS whereof this Deed has been executed by the parties hereto and is
intended to be and is hereby delivered by the Subordinated Lender as its deed
on the day and year first above written.
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[Group Subordination Deed]
SCHEDULE 1
PARTICULARS OF SUBORDINATED INDEBTEDNESS
Date and description
of Loan Agreement or Amount
other Instrument Outstanding
All inter-company loans and indebtedness which are now or may become due, owing
or incurred by each Debtor to the Subordinated Lender.
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[Group Subordination Deed]
SCHEDULE 2
DEBTORS
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[Group Subordination Deed]
SCHEDULE 3
FORM OF NOTICE OF ASSIGNMENT TO BE GIVEN TO THE DEBTORS
[-]
To: [-]
(together, the "DEBTORS" and each a "DEBTOR")
We refer to the loan agreement, facility letter or other document (the
"SUBORDINATED LOAN AGREEMENT") now or hereafter entered into between us and
each of the Debtors respectively creating or evidencing the respective loans,
particulars of which are set out in Schedule 1 herein in respect of which the
relevant Debtor is currently indebted to us and all and any sum which are now
or may hereafter become due, owing or incurred by the relevant Debtor to us,
whether in respect of principal, interest or otherwise, on account of any
advance, loan or payment made to or for the account of the relevant Debtor (the
"SUBORDINATED INDEBTEDNESS").
WE HEREBY GIVE YOU NOTICE:-
1. That by a Group Subordination Deed dated , 2004
(together with all amendments and addenda thereto hereinafter called the
"DEED") made between us in favour of Industrial and Commercial Bank of
China (Asia) Limited acting on its own behalf and as facility agent and
trustee for and on behalf of the Finance Parties (as therein defined)
(the "SECURITY TRUSTEE"),we have:-
(a) agreed, inter alia, that the Subordinated Indebtedness owing to us
is, and shall remain, subordinated and the payment thereof deferred
to all and any rights, claims and actions which the Security Trustee
or any Finance Party may now or hereafter have against any of the
Debtors in respect of the Secured Obligations (as defined in the
Deed);
(b) assigned to the Security Trustee absolutely all our right, title,
interest and benefit in and to the Subordinated Indebtedness owing
to us and all and any moneys (including the proceeds of any set-off
or counterclaim) or other property which we may receive on account
of such Subordinated Indebtedness or any part thereof and the full
benefit of all rights and remedies relating thereto including, but
not limited to, all claims and remedies for non-payment of the same
and all claims under charges, encumbrances, guarantees and other
security and all proceeds and forms of remittance in respect of the
same and the full benefit of all powers and provisions whatsoever
contained in the relevant Subordinated Loan Agreements (or any of
them) as a continuing security for the due and punctual performance
and discharge of the Secured Obligations.
2. That you are hereby irrevocably authorised and instructed to:-
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[Group Subordination Deed]
(a) upon the Security Trustee shall notify you upon the occurrence of a
Default (as defined in the Deed), make all payments in full without
set-off or counterclaim due in respect of the Subordinated
Indebtedness to the Security Trustee or as the Security Trustee
shall direct; and
(b) promptly notify the Security Trustee whenever it incurs any
Subordinated Indebtedness.
For and on behalf of
Asia Netcom Corporation Limited
-----------------------------------
Name:
Title:
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[Group Subordination Deed]
CONSENT AND AGREEMENT
[-], 2004
To: Asia Netcom Corporation Limited
and to:Industrial and Commercial Bank of China (Asia) Limited,
10/F., ICBC Asia Building,
000-000 Xxxxx'x Xxxx Xxxxxxx,
Xxxx Xxxx.
We, the undersigned, refer to your notice of assignment to us dated [ - ],
2004 (the "NOTICE OF ASSIGNMENT") hereby:-
(1) acknowledge receipt of the said Notice of Assignment;
(2) agree:-
(a) that upon the Security Trustee shall notify us upon the occurrence
of a Default (as defined in the Deed), we will make all payments in
full without set-off or counterclaim due in respect of the
Subordinated Indebtedness to the Security Trustee or as the Security
Trustee shall direct; and
(b) to promptly notify the Security Trustee whenever we incur any
Subordinated Indebtedness; and
(3) warrant that we have not disposed of or charged or created any
encumbrance over the Subordinated Indebtedness or any part thereof to any
person nor have any notice of the same.
Words and expressions defined in the Notice of Assignment shall, unless the
context otherwise requires or unless otherwise defined herein, have the same
meanings when used in this consent and agreement.
For and on behalf of
[-]
-----------------------------------
Name:
Title:
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[Group Subordination Deed]
SIGNATURE PAGE
THE SUBORDINATED LENDER
SIGNED, SEALED AND DELIVERED )
as a Deed by its duly authorised attorney )
Xxxx, Xxxxx-Chi ) /s/ Xxxx, Xxxxx-Chi
for and on behalf of )
ASIA NETCOM CORPORATION LIMITED )
in the presence of: )
/s/ Xxxxxx Xxxxxxx Xxxx
Xxxxxx Xxxxxxx Xxxx
Solicitor
XXXXXXXX XXXXXX
00/X Xxxxxxxxx Xxxxx
Xxxx Xxxx SAR
THE SECURITY TRUSTEE
SIGNED BY )
Xxxx Xxx, Xxxxxx Xxx ) /s/ Xxxx Xxx /s/ Xxxxxx Xxx
for and on behalf of )
INDUSTRIAL AND COMMERCIAL BANK )
OF CHINA (ASIA) LIMITED )
in the presence of: )
/s/ Xxxxxx Xxxxxxx Xxxx
Xxxxxx Xxxxxxx Xxxx
Solicitor
XXXXXXXX XXXXXX
00/X Xxxxxxxxx Xxxxx
Xxxx Xxxx SAR
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