Exhibit 4(w)
CONFORMED COPY
DATED: 14 MARCH 2003
Facility Agreement
between
PCCW Limited
as Borrower
Agricultural Bank of China, Hong Kong Branch
Bank of China (Hong Kong) Limited
The Hongkong and Shanghai Banking Corporation Limited
Standard Chartered Bank
Credit Agricole Indosuez, Hong Kong Branch
Hang Seng Bank Limited
as Co-ordinating Arrangers
The Financial Institutions listed herein
as Lenders
The Hongkong and Shanghai Banking Corporation Limited
as Agent
and
The Hongkong and Shanghai Banking Corporation Limited
as Security Trustee
relating to
HK$3,003,000,000 TERM LOAN FACILITY
CONTENTS
1. DEFINITIONS AND INTERPRETATION........................................1
2. THE FACILITY.........................................................14
3. PURPOSE .............................................................15
4. CONDITIONS OF ADVANCE................................................15
5. REPAYMENT............................................................16
6. CANCELLATION AND PREPAYMENT..........................................16
7. INTEREST.............................................................20
8. INTEREST PERIODS.....................................................21
9. CHANGES TO THE CALCULATION OF INTEREST AND BREAK COSTS...............22
10. FEES.................................................................23
11. TAX GROSS UP AND CREDIT..............................................24
12. INCREASED COSTS......................................................26
13. INDEMNITIES..........................................................27
14. ILLEGALITY AND MITIGATION............................................28
15. COSTS AND EXPENSES...................................................29
16. REPRESENTATIONS AND WARRANTIES.......................................30
17. INFORMATION UNDERTAKINGS.............................................33
18. FINANCIAL COVENANTS..................................................35
19. GENERAL UNDERTAKINGS.................................................37
20. EVENTS OF DEFAULT....................................................39
21. CHANGES TO THE LENDERS...............................................43
22. CHANGES TO THE BORROWER..............................................48
23. AGENT AND SECURITY TRUSTEE...........................................48
24. AMENDMENTS AND DECISIONS.............................................55
25. RETIREMENT OF AGENT AND SECURITY TRUSTEE.............................58
26. SHARING AMONG LENDERS................................................59
i
Xxxxxxx & Xxxxxxx
27. PAYMENT MECHANICS....................................................60
28. ENFORCEMENT OF SECURITY AND DISTRIBUTION OF RECOVERIES...............62
29. SET-OFF .............................................................63
30. CONDUCT OF BUSINESS BY THE FINANCE PARTIES...........................63
31. NOTICES .............................................................63
32. CALCULATIONS AND CERTIFICATES........................................64
33. PARTIAL INVALIDITY...................................................64
34. REMEDIES AND WAIVERS.................................................64
35. COUNTERPARTS.........................................................65
36. GOVERNING LAW........................................................65
37. ENFORCEMENT..........................................................65
SCHEDULE 1: THE LENDERS.......................................................66
SCHEDULE 2: CONDITIONS PRECEDENT..............................................67
SCHEDULE 3: NOTICES...........................................................69
SCHEDULE 4: FORM OF TRANSFER CERTIFICATE......................................71
SCHEDULE 5: FORM OF ASSIGNMENT UNDERTAKING....................................73
SCHEDULE 6: FORM OF CONFIDENTIALITY UNDERTAKING...............................76
SCHEDULE 7: FORM OF COMPLIANCE CERTIFICATE....................................78
ii
Xxxxxxx & Xxxxxxx
This Agreement is made on the 14 day of March 2003
Between:
(1) PCCW LIMITED, a company incorporated in Hong Kong with company number
69030 (the "Borrower");
(2) AGRICULTURAL BANK OF CHINA, HONG KONG BRANCH, BANK OF CHINA (HONG KONG)
LIMITED, THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED, STANDARD
CHARTERED BANK, CREDIT AGRICOLE INDOSUEZ, HONG KONG BRANCH AND HANG SENG
BANK LIMITED (the "Co-ordinating Arrangers" and each, a "Co-ordinating
Arranger");
(3) The financial institutions listed in Schedule 1 as lenders (together, the
"Lenders" and each, a "Lender");
(4) THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED as agent (the
"Agent"); and
(5) THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED as security trustee
(the "Security Trustee").
It Is Agreed as follows:
PART 1 : INTERPRETATION
1. Definitions and Interpretation
1.1 Definitions
In this Agreement (including the Schedules):
"Account Bank" means the bank at which the Prepayment Account is held
being The Hongkong and Shanghai Banking Corporation Limited.
"Adjusted Consolidated Net Worth" means, in relation to HKTC, the sum of:
(A) all amounts paid up (or credited as paid up) on all classes of its
issued share capital, revenue or capital reserves, capital
contribution or any other accounts that are included as shareholders'
funds under Hong Kong GAAP; and
(B) the aggregate outstanding principal amount of HKTC's subordinated
indebtedness.
"Affiliate" means, in relation to any person, a Subsidiary of that person
or a Holding Company of that person or any other Subsidiary of that
Holding Company.
"Agent-Related Persons" means the Agent, the Security Trustee, the
Co-ordinating Arrangers and any successor Agent or Security Trustee
arising under clause 25
1
Xxxxxxx & Xxxxxxx
(Retirement of Agent and Security Trustee) together with their respective
Affiliates and the officers, directors, employees, agents and
attorneys-in-fact of such persons and Affiliates.
"Agreed Terms" means, in relation to any document, the form of that
document initialled by or on behalf of the Agent and the Borrower or if no
such form has been agreed, in such form as the Agent or the Security
Trustee, as the case may be, may require.
"Authorisation" means any governmental or regulatory authorisation,
consent, approval, licence, exemption, filing or registration.
"Availability Period" means the period from and including the date of this
Agreement to and including the date falling 14 days after the date of this
Agreement.
"Borrowed Money" means any indebtedness (other than Subordinated
Indebtedness) for or in respect of (but without double counting) all or
any of the following:
(A) any moneys borrowed;
(B) any amount raised by acceptance under any acceptance credit facility;
(C) any amount raised pursuant to any note purchase facility or the issue
of bonds (including, for the avoidance of doubt, convertible bonds to
the extent not converted into equity), notes, debentures, loan stock
or any similar instrument;
(D) the amount of any liability in respect of any lease or hire purchase
contract which would, in accordance with Hong Kong GAAP be treated as
a finance or capital lease;
(E) the amount of any liability in respect of any advance or deferred
purchase agreement if the primary reasons for entering into such
agreement is to raise finance;
(F) receivables sold or discounted (other than on a non-recourse basis);
(G) any agreement or option to re-acquire an asset if one of the primary
reasons for entering into such agreement or option is to raise
finance;
(H) any amount raised under any other transaction (including any forward
sale or purchase agreement) having the commercial effect of a
borrowing;
(I) the amount of any liability in respect of any guarantee or indemnity
for any of the items referred to in paragraphs (A) to (H) above; and
(J) counter-indemnity obligations in respect of letters of credit,
guarantees or similar instruments issued by banks or financial
institutions to support indebtedness for Borrowed Money of any other
person.
"Borrower Group" means the Borrower and each of its Subsidiaries from time
to time and "Borrower Group Company" means each or any of them as the
context may require.
"Break Costs" means the amount (if any) by which:
2
Xxxxxxx & Xxxxxxx
(A) the interest which a Lender should have received for the period from
the date of receipt of all or any part of its participation in the
Loan or an Unpaid Sum to the last day of the current Interest Period
in respect of the Loan or Unpaid Sum, had the principal amount of the
Loan or Unpaid Sum received been paid on the last day of that
Interest Period;
exceeds:
(B) the amount which that Lender would be able to obtain by placing an
amount equal to the principal amount of its participation in such
Loan or Unpaid Sum received by it on deposit with a leading bank in
the Hong Kong interbank market for Hong Kong Dollar deposits for a
period starting on the Business Day following receipt or recovery of
such amount and ending on the last day of the current Interest
Period.
"Business Day" means a day (other than a Saturday or Sunday) on which
banks are open for general business in Hong Kong.
"Commitment" means, in relation to each Lender and the Facility (subject
to clause 21 (Changes to the Lenders)), the amount set opposite its name
in Schedule 1 (The Lenders) as the same may be reduced, varied or
cancelled in accordance with the terms of this Agreement.
"Companies Ordinance" means the Companies Ordinance (Chapter 32 of the
Laws of Hong Kong).
"Compliance Certificate" means a certificate duly signed and completed by
the Borrower and, where such certificate is delivered together with
audited financial statements, by the auditors of the Borrower
substantially in the form of Schedule 7 (Form of Compliance Certificate).
"Confidentiality Undertaking" means a confidentiality undertaking
substantially in the form set out in Schedule 6 (Form of Confidentiality
Undertaking).
"Continuing", in the context of an Event of Default or Potential Event of
Default, means:
(A) where the underlying circumstances which caused that Event of Default
or Potential Event of Default are incapable of remedy when viewed
objectively, that Event of Default or Potential Event of Default is
continuing, unless and until it has been expressly waived in writing
by the Agent and any conditions of such waiver have all been
fulfilled to the satisfaction of the Agent; or
(B) in any other case, that Event of Default or Potential Event of
Default is continuing unless and until either:
(1) it has been expressly waived in writing by the Agent and any
conditions of such waiver have all been fulfilled to the
reasonable satisfaction of the Agent; or
(2) the underlying circumstances which caused that Event of Default
or Potential Event of Default have been remedied to the
reasonable satisfaction of the Agent and the resulting position
is what it would have been if such Event of Default or Potential
Event of Default had not occurred
3
Xxxxxxx & Xxxxxxx
(so that, for example, in the case of the late delivery of a
document which is subsequently satisfactorily delivered, or the
withdrawal or settlement of a claim the existence or pursuance
of which constituted an Event of Default or Potential Event of
Default, that Event of Default or Potential Event of Default is
not continuing once the underlying circumstances no longer
apply); or
(3) in the case of a Potential Event of Default it is no longer
possible for the relevant circumstances to constitute or bring
about an Event of Default.
"Core Business" means the local telephony services (consisting of local
telephone services, value-added services, and wholesale interconnection
services provided to other carriers and service providers), the local data
services (consisting of local wholesale and retail leased circuits, data
services and wholesale broadband access lines, utilizing HKTC's or HKTC
Group's broadband network) and the international telecommunications
services (consisting of retail international direct dial services, retail
international private leased circuits, international interconnection
services and international data services, in each case, operated and
carried on by the HKTC Group.
"Costs" means in respect of any sale, transfer or disposal:
(A) all reasonable costs, fees (including legal fees), expenses incurred
or paid to third parties on arm's length terms solely attributable
thereto and liabilities to Tax; and
(B) all reasonable provisions for any capital Tax arising therefrom.
"Default" means an Event of Default or a Potential Event of Default.
"Drawdown Date" means the date on which monies are to be or, as the
context may require, have been advanced by the Lenders to the Borrower
pursuant to the Drawdown Notice.
"Drawdown Notice" means a notice substantially in the form set out in Part
1 of Schedule 3 (Drawdown Notice).
"Encumbrance" means any mortgage, charge, pledge, lien, encumbrance,
hypothecation, title retention, security interest or security arrangement
of any kind but excluding any rights of set-off or combination of accounts
arising under applicable common law, equity, statute or regulations.
"Event of Default" means any event or circumstance specified as such in
clause 20.1 (Events of Default).
"Facility" means the term loan facility to be made available under this
Agreement as described in clause 2 (The Facility), as the same may be
reduced, varied or cancelled in accordance with the terms of this
Agreement.
"Facility Office" means the office notified by a Lender to the Agent in
writing on or before the date it becomes a Lender by execution of this
Agreement (in the case of a Lender listed in Schedule 1 (The Lenders)) or
in the case of any other Lender, in the relevant Transfer Certificate (or,
thereafter, by not less than five Business Days' written notice to the
Agent) as the office through which it will perform its obligations under
this Agreement.
4
Xxxxxxx & Xxxxxxx
"Fair Market Value" means, in relation to the disposal, assignment or
transfer by the Borrower or (as the case may be) any of its Subsidiaries
of its shareholding (whether direct or through a Subsidiary) in HKTC, the
price which the Borrower or such Subsidiary would reasonably expect could
be achieved on a disposal of such shareholding on arm's length terms to a
third party which is not an Affiliate of the person disposing of such
asset.
"Fallback Period" means, in respect of the Borrower's selection of an
Interest Period of 6 Months or longer, the shorter fallback Interest
Period of 1, 2 or 3 Months as selected by the Borrower in the Selection
Notice which is to apply if not all the Lenders consent to an Interest
Period of 6 Months or longer.
"Fee Letter" means all or any of the following (as the context may
require):
(A) the letter between the Agent, the Co-ordinating Arrangers and the
Borrower dated on or about the date hereof; and
(B) the letter between the Agent, the Security Trustee and the Borrower
dated on or about the date hereof,
each setting out the relevant fees referred to in clause 10 (Fees).
"Finance Documents" means this Agreement, each Security Document, each Fee
Letter, any subordination deed or intercreditor agreement entered into by
the Lenders in respect of the Subordinated Indebtedness and any other
document designated as such by the Agent and the Borrower and "Finance
Document" means each or any of them as the context may require.
"Finance Parties" means the Security Trustee, the Agent, the Co-ordinating
Arrangers and the Lenders.
"Financial Statements" means the Original Financial Statements and the
financial statements provided by the Borrower to the Agent pursuant to
paragraphs (A) and (B) of clause 17.1 (Financial Statements) and
"Financial Statement" means any of the same.
"Financial Year" means the twelve month period ending on 31 December in
each year or such other date as the Borrower may designate at its
discretion and notify to the Agent by not less than three Months prior
written notice or such shorter period as the Majority Lenders may agree.
"FTNS Licence" means the fixed telecommunications network services licence
issued by the Telecommunications Authority to HKTC on 29 June 1995 (and
amended on 31 March 1998 to include HKTC, Reach Networks Hong Kong Limited
(formerly known as PCCW-HKT International Limited) ("Reach") and PCCW-HKT
CAS Limited as joint and several licensees and as further amended
effective on 31 January 2001 such that HKTC and Reach are no longer joint
licensees but rather are individual licensees in relation to FTNS licence
held by each of them and PCCW-HKT CAS Limited has surrendered its rights
under the joint and several licence) or any replacement or amendment
thereof.
"HIBOR" means, in relation to the Loan or any Unpaid Sum:
(A) the Screen Rate; or
5
Xxxxxxx & Xxxxxxx
(B) (if no Screen Rate is available for Hong Kong Dollars or for a period
comparable to the relevant Interest Period for that Loan or Unpaid
Sum) the arithmetic mean of the rates (rounded upwards to 1/16%) as
supplied to the Agent at its request quoted by the Reference Banks to
leading banks in the Hong Kong interbank market,
as at 11:00 a.m. on the Quotation Day for the offering of deposits in Hong
Kong Dollars for a period comparable to that Interest Period for such Loan
or Unpaid Sum.
"HKTC" means PCCW-HKT Telephone Limited, a company incorporated in Hong
Kong with company number 676.
"HKTC Group" means HKTC and each of its Subsidiaries from time to time and
"HKTC Group Company" means each or any of them as the context may require.
"Holding Company" means, in relation to a company or corporation, any
company or corporation of which the first-mentioned company or corporation
is a Subsidiary.
"Hong Kong" means the Hong Kong Special Administrative Region of the
People's Republic of China.
"Hong Kong Dollars" or "HK$" means the lawful currency for the time being
of Hong Kong.
"Hong Kong GAAP" means generally accepted accounting principles in Hong
Kong.
"Indebtedness" of any person means any indebtedness for or in respect of
Borrowed Money that has a final maturity of one year or more from its date
of incurrence or issuance and that is evidenced by any agreement or other
instrument, excluding trade payables; provided, however, that for the
purpose of determining the amount of Indebtedness of the Borrower or any
of its Subsidiaries outstanding at any relevant time, the amount included
as Indebtedness of the Borrower or such Subsidiary in respect of finance
leases shall be the net amount from time to time properly characterised as
"obligations under finance leases" in accordance with Hong Kong GAAP.
"Interest Payment Date" means the last day of an Interest Period.
"Interest Period" means, in relation to the Loan, each period determined
in accordance with clause 8 (Interest Periods) and, in relation to an
Unpaid Sum, each period determined in accordance with clause 7.3 (Default
interest rate).
"Lender" means:
(A) any Lender listed in Schedule 1 (The Lenders); and
(B) any bank or financial institution which has become a party in
accordance with clause 21 (Changes to the Lenders),
which in each case has not ceased to be a party in accordance with the
terms of this Agreement.
6
Xxxxxxx & Xxxxxxx
"Listed Principal Subsidiary" means any Principal Subsidiary of HKTC, the
shares of which are at the relevant time listed on The Stock Exchange of
Hong Kong Limited or any other recognised stock exchange.
"Loan" means, at any time, the aggregate principal amount advanced or to
be advanced (as the context may require) under the Facility and for the
time being outstanding under this Agreement.
"Majority Lenders" means:
(A) if there is no Loan then outstanding, a Lender or Lenders whose
Commitment(s) amount in aggregate to 66 2/3 % or more of the Total
Commitments (or, if the Total Commitments have been reduced to zero,
amounted in aggregate to 66 2/3 % or more of the Total Commitments
immediately prior to the reduction); or
(B) at any other time, a Lender or Lenders whose participations in the
Loan amount in aggregate to 66 2/3 % or more of the Loan.
"Margin" means in respect of an Interest Period the percentage rate per
annum specified in the table below opposite the highest senior unsecured
debt rating which has been given to the Borrower as at the first day of
such Interest Period by either Moody's or S&P, (provided (1) that the
Margin shall be determined with reference to the lower of such ratings
given to the Borrower by Moody's and S&P, respectively and (2) that any
changes in the Borrower's rating during an Interest Period shall not
affect the Margin payable in respect of that Interest Period but only in
respect of the subsequent Interest Period):
Moody's S&P Applicable Margin
------- --- -----------------
(% per annum)
-------------
Rated lower than Baa3 Rated lower than BBB- 1.00
Unrated Unrated 0.93
Baa3 BBB- 0.88
Baa2 BBB 0.83
Baa1 or higher BBB+ or higher 0.78
"Material Adverse Change" means an event or circumstance which constitutes
an adverse change in the business, assets, financial condition or trading
position of the Borrower Group of such significance that, in the
reasonable opinion of the Majority Lenders, it would reasonably be
expected to affect the ability of the Borrower to perform fully and
punctually its payment obligations under this Agreement.
"Material Adverse Effect" means any change in the financial condition of
the Borrower Group which, in the reasonable opinion of the Majority
Lenders will, or would reasonably be expected to, have a material and
adverse effect on the business, assets or financial condition of the
Borrower Group or which will have a material adverse effect on the ability
of the Borrower to perform fully and punctually its payment obligations
under this Agreement.
7
Xxxxxxx & Xxxxxxx
"Moody's" means Xxxxx'x Investors Service, Inc.
"Month" means a period starting on one day in a calendar month and ending
on the numerically corresponding day in the next calendar month, except
that:
(A) if the numerically corresponding day is not a Business Day, that
period shall end on the next Business Day in that calendar month in
which that period is to end if there is one, or if there is not, on
the immediately preceding Business Day; and
(B) if there is no numerically corresponding day in the calendar month in
which that period is to end, that period shall end on the last
Business Day in that calendar month.
"Net Proceeds" means the cash proceeds received by the Borrower or (as the
case may be) any of its Subsidiaries from any sale, assignment, transfer
or disposal of its (or any of its Subsidiary's) shareholding (whether
direct or through a Subsidiary) in HKTC less Costs.
"Original Financial Statements" means the audited consolidated financial
statements of the Borrower Group for the Financial Year ended 31 December
2001.
"Permitted Encumbrances" means:
(A) Encumbrances existing on or prior to the date of this Agreement
details of which have been disclosed to the Agent pursuant to
paragraph 3(D) of Schedule 2 (Conditions Precedent) or created
pursuant to any of the Security Documents;
(B) Encumbrances for Taxes or assessments or other applicable
governmental charges or levies;
(C) Encumbrances created or arising by operation of law or created in the
ordinary course of business, including, but not limited to,
landlords' liens and statutory liens of carriers, warehousemen,
mechanics, materialmen, vendors and other liens securing amounts
which are not more than 60 days overdue or which are being contested
in good faith;
(D) Encumbrances incurred on deposits made in the ordinary course of
business in connection with workers' compensation, unemployment
insurance and other types of social security or to secure the
performance of tenders, statutory obligations, surety and appeal
bonds, bids, leases, government contracts or undertakings,
performance and return of money bonds, interconnection, access or
resale agreements with other telecommunications companies or
organisations and similar obligations;
(E) easements, rights-of-way, zoning and similar restrictions and other
similar charges or encumbrances not interfering with the ordinary
conduct of the business of HKTC or any of its Principal Subsidiaries;
(F) Encumbrances created on any property or assets acquired, leased or
developed (including improved, constructed, altered or repaired)
after the date of this Agreement; provided that (i) any such
Encumbrance shall be confined to the property or assets acquired,
leased or developed (including improved, constructed,
8
Xxxxxxx & Xxxxxxx
altered or repaired); (ii) the principal amount of the debt
encumbered by such Encumbrance shall not exceed the cost of the
acquisition or development of such property or assets or any
improvements thereto (including any construction, repair or
alteration) or thereon and (iii) any such Encumbrance shall be
created concurrently with or within three years following the
acquisition, lease or development (including construction,
improvement, repair or alteration) of such property or assets;
(G) rights of set-off of a financial institution with respect to deposits
or other accounts of HKTC or any of its Principal Subsidiaries held
by such financial institution in an amount not to exceed the
aggregate amount owed to such financial institution by HKTC or such
Principal Subsidiary, as the case may be;
(H) Encumbrances on documents and the goods they represent in connection
with letters of credit, trade finance and similar transactions
entered into in the ordinary course of business;
(I) Encumbrances arising in connection with industrial revenue,
development or similar bonds or other indebtedness or means of
project financing (not to exceed the value of the project financed
and limited to the project financed);
(J) Encumbrances in favour of HKTC or any of its Principal Subsidiaries;
(K) leases, subleases, licences and sublicences granted to third parties
in the ordinary course of business;
(L) attachment, judgment and other similar Encumbrances arising in
connection with court proceedings which are effectively stayed while
the underlying claims are being contested in good faith by
appropriate proceedings;
(M) any Encumbrance against any property or assets of a person existing
at the time such person becomes a Principal Subsidiary of HKTC or
arising after such acquisition pursuant to contractual commitments
entered into prior to and not in contemplation of such acquisition;
(N) any Encumbrance existing on any property or assets prior to the
acquisition thereof, which Encumbrance was not created in connection
with the acquisition thereof, except for Encumbrances permitted
pursuant to paragraph (F) above;
(O) Encumbrances on any property or assets of HKTC or any of its
Principal Subsidiaries in favour of any government or any subdivision
thereof, securing the obligations of HKTC or such Principal
Subsidiary under any contract or payment owed to such governmental
entity pursuant to applicable laws, rules, regulations or statutes;
(P) Encumbrances created in connection with any sale/leaseback
transaction;
(Q) any renewal or extension of any of the Encumbrances described in the
foregoing paragraphs which is limited to the original property or
assets covered thereby; or
(R) Encumbrances in respect of indebtedness with respect to which HKTC or
its Principal Subsidiaries has paid money or deposited money or
securities with a
9
Xxxxxxx & Xxxxxxx
fiscal agent, trustee or depository to pay or discharge in full the
obligations of HKTC and its respective Subsidiaries in respect
thereof (other than the obligations that such money or securities so
paid or deposited, and the proceeds therefrom, be sufficient to pay
or discharge such obligations in full).
"Potential Event of Default" means any event or circumstance which would
(with the expiry of a grace period, the giving of notice or the making of
any determination under the Finance Documents or any combination of any of
the foregoing) be or constitute an Event of Default.
"Prepayment Account" means the interest bearing Hong Kong Dollar account
(including any sub-accounts thereof) in the name of the Borrower held with
the Account Bank for the purposes of mandatory prepayments under clause
6.4 (Mandatory prepayment on disposal of shareholding in HKTC).
"Prepayment Account Charge" means a deed of charge over the Prepayment
Account granted by the Borrower in favour of the Security Trustee in the
Agreed Terms.
"Prepayment Date" means in relation to any balance standing to the credit
of the Prepayment Account, the last day of the current Interest Period
save in respect of any amounts deposited into the Prepayment Account less
than 3 Business Days' prior to the last day of the current Interest Period
in which case the Prepayment Date will be the last day of the next
succeeding Interest Period.
"Principal Subsidiary" means a Subsidiary of HKTC:
(A) as to which one or more of the following conditions is satisfied:
(1) its net profit or (in the case of a Subsidiary of HKTC which has
Subsidiaries) consolidated net profit attributable to HKTC (in
each case before taxation and exceptional items) is at least 5%
of the consolidated net profit (before taxation and exceptional
items but after deducting minority interests in Subsidiaries) of
HKTC and its Subsidiaries; or
(2) its net assets or (in the case of a Subsidiary of HKTC which has
Subsidiaries) consolidated net assets attributable to HKTC (in
each case after deducting minority interests in Subsidiaries)
are at least 5% of the consolidated net assets (after deducting
minority interests in Subsidiaries) of HKTC and its
Subsidiaries,
all as calculated by reference to the then latest audited financial
statements (consolidated or, as the case may be, unconsolidated) of
the Subsidiary of HKTC and the then latest audited financial
statements of HKTC provided that:
(a) in the case of a Subsidiary of HKTC acquired after the end
of the financial period to which the then latest relevant
audited accounts relate, the reference to the then latest
audited accounts for the purposes of the calculation above
shall, until audited accounts for the financial period in
which the acquisition is made are published, be deemed to
be a reference to the accounts adjusted to consolidate the
latest audited accounts of the Subsidiary in the accounts;
10
Xxxxxxx & Xxxxxxx
(b) if, in the case of a Subsidiary of HKTC which itself has
one or more Subsidiaries, no consolidated accounts are
prepared and audited, its consolidated net assets and
consolidated net profits shall be determined on the basis
of pro forma consolidated accounts of the relevant
Subsidiary and its Subsidiaries prepared for this purpose
by its auditors;
(c) if the accounts of a Subsidiary of HKTC (not being a
Subsidiary referred to in paragraph (a) above) are not
consolidated with those of HKTC then the determination of
whether or not the Subsidiary of HKTC is a Principal
Subsidiary shall, if HKTC requires, be based on a pro forma
consolidation of its accounts (consolidated, if
appropriate) with the consolidated accounts of HKTC and its
respective Subsidiaries; or
(B) to which is transferred all or substantially all of the assets of a
Subsidiary of HKTC which immediately prior to the transfer was a
Principal Subsidiary, provided that, with effect from such transfer,
the Subsidiary which so transfers its assets and undertakings shall
cease to be a Principal Subsidiary (but without prejudice to
paragraph (A) above) and the Subsidiary of HKTC (as the case may be)
to which the assets are so transferred shall become a Principal
Subsidiary.
A certificate of the auditors of HKTC as to whether or not a Subsidiary is
a Principal Subsidiary shall be conclusive and binding on all parties in
the absence of manifest error.
"Quotation Day" means, in relation to any Interest Period in respect of
the Loan or any Unpaid Sum, the first day of that Interest Period.
"Reference Banks" means, subject to clause 21.6 (Reference Banks), the
principal Hong Kong offices of each of The Hongkong and Shanghai Banking
Corporation Limited, Standard Chartered Bank and Bank of China (Hong Kong)
Limited or such other banks as may be appointed by the Agent in
consultation with the Borrower.
"Relevant Percentage" means, at any time in relation to any Lender and any
amount to be advanced to the Borrower under the Facility, the percentage
borne by that Lender's Commitment to the Total Commitments.
"Repayment Date" means the date falling 60 Months after the Drawdown Date.
"Reservations" means:
(A) the principle that equitable remedies are remedies which may be
granted or refused at the discretion of the court;
(B) the limitation of enforcement by laws relating to bankruptcy,
insolvency, liquidation, reorganisation, court schemes, moratoria,
administration and other laws generally affecting the rights of
creditors;
(C) the time barring of claims under statutes, imposed limitations on the
periods for bringing such claims;
(D) defences of set-off or counterclaim and similar principles, rights
and defences under the laws of any jurisdictions in which relevant
obligations may have to be performed.
11
Xxxxxxx & Xxxxxxx
"S&P" means Standard & Poor's Rating Services, a division of The
XxXxxx-Xxxx Companies, Inc.
"Screen Rate" means the percentage rate per annum equal to the rate for
deposits in Hong Kong Dollars which is displayed on the Moneyline Telerate
Page 9898, provided that if the relevant page is replaced or service
ceases to be available, the Agent may specify another page or service
displaying the appropriate rate after consultation with the Borrower and
all of the Lenders.
"Security Documents" means the Prepayment Account Charge and any other
document under which any security is granted by the Borrower to the
Security Trustee as required pursuant to the terms of this Agreement.
"Selection Notice" means a notice substantially in the form set out in
Part 2 of Schedule 3 (Selection Notice) given in accordance with clause 8
(Interest Periods).
"Subordinated Indebtedness" means the indebtedness of any Borrower Group
Company which is subordinated to the Borrower's indebtedness under this
Agreement on terms reasonably satisfactory to the Agent or on Agreed
Terms.
"Subsidiary" means, in relation to any company, any company or other
business entity of which the first-named company owns or controls (either
directly or through one or more other Subsidiaries) more than 50% of the
issued share capital, or other ownership interest, giving ordinary voting
power to elect directors, managers or trustees of such company or other
business entity, or any company or other business entity which at any time
has its accounts consolidated with those of the first-named company or
which, under Hong Kong law or regulations and under Hong Kong GAAP from
time to time, should have its accounts consolidated with those of the
first-named company.
"Tax" means any tax, levy, impost, duty or other charge or withholding of
a similar nature (including any penalty or interest payable in connection
with any failure to pay or any delay in paying any of the same).
"Telecommunications Authorisation" means the licences (including the FTNS
Licence) and statutory authorisations under the Telecommunications
Regulations and other consents, approvals, intellectual property, trade
names, franchises and contracts of a regulatory nature which are material
and necessary for the conduct by the HKTC Group of the Core Business.
"Telecommunications Authority" means the Telecommunications Authority of
Hong Kong.
"Telecommunications Ordinance" means the Telecommunications Ordinance
(Chapter 106 of the Laws of Hong Kong).
"Telecommunications Regulations" the Telecommunications Ordinance, all
licences issued to the HKTC Group pursuant to the Telecommunications
Ordinance (including the FTNS Licence) and any determinations or
directions issued to the HKTC Group which continue to have full force and
effect as against the HKTC Group and are not otherwise waived or revoked
by the Telecommunications Authority.
"Termination Date" means the last day of the Availability Period.
12
Xxxxxxx & Xxxxxxx
"Third Party Borrowing" means any Indebtedness of any HKTC Group Company
owed to any party which is not a member of the Borrower Group.
"Total Commitments" means the aggregate for the time being of the
Commitments of all the Lenders being, at the date of this Agreement,
HK$3,003,000,000.
"Transfer Certificate" means a certificate substantially in the form set
out in Schedule 4 (Form of Transfer Certificate).
"Transfer Date" means, in relation to a transfer, the later of:
(A) the proposed Transfer Date specified in the Transfer Certificate; and
(B) the date on which the Agent executes the Transfer Certificate.
"US$" means the lawful currency for the time being of the United States of
America.
"Unpaid Sum" means any sum due and payable but unpaid by the Borrower
under the Finance Documents.
1.2 Construction
(A) Any reference in this Agreement to:
(1) "assets" of any person shall be construed as a reference to the
whole or any part of its business, undertaking, property,
shareholdings, assets and revenues (including any right to
receive revenues and uncalled capital), whether owned as at the
date hereof or acquired or owned thereafter;
(2) a "Finance Document" or any other agreement or instrument is a
reference to that Finance Document or other agreement or
instrument as amended supplemented, varied, replaced, restated
or novated from time to time;
(3) "indebtedness" includes any obligation (whether incurred as
principal or as surety) for the payment or repayment of money,
whether present or future, actual or contingent;
(4) a "person" means any individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated
organisation, government or any agency or political sub-division
thereof or any other entity;
(5) a "regulation" includes any regulation, rule, official
directive, request or guideline (whether or not having the force
of law) of any governmental, intergovernmental or supranational
body, agency, department or regulatory, self-regulatory or other
authority or organisation;
(6) a provision of law is a reference to that provision as amended
or re-enacted;
(7) unless a contrary indication appears, a time of day is a
reference to Hong Kong time;
(8) one gender shall include all genders, and references to the
singular shall include the plural and vice versa;
13
Xxxxxxx & Xxxxxxx
(9) "arm's length terms" means, in relation to transactions entered
into by a Borrower Group Company, terms which it would be
reasonable to expect could reasonably be expected to be obtained
in a comparable transaction with a person which is not an
Affiliate of such Borrower Group Company;
(10) subject to clause 21 (Changes to the Lenders), references to any
"party" shall, where relevant, be deemed to be references to or
to include, as appropriate, their respective lawful successors,
assigns or transferees;
(11) "advance" means the making of the Loan pursuant to the Drawdown
Notice;
(12) a Lender includes a New Lender, but excludes a Lender if no
amount is or may be owed to or by that Lender under this
Agreement and its Commitment has been cancelled or reduced to
nil; and
(13) the "equivalent" means in respect of any sum on any given date,
in a specified currency (the "first currency") of an amount
denominated in another currency (the "other currency") and
unless otherwise stated, reference to the amount of the first
currency which could be purchased with the second currency at
the rate of exchange quoted by the Agent at or about 11:00 a.m.
on such date for the purchase of the first currency with the
other currency.
(B) Section, clause and Schedule headings are for ease of reference only.
(C) Unless a contrary indication appears, a term used in any other
Finance Document or in any notice given under or in connection with
any Finance Document has the same meaning in that Finance Document or
notice as in this Agreement.
PART 2 : THE FACILITY
2. The Facility
2.1 The Facility
Subject to the terms of this Agreement, the Lenders agree to make a
committed term loan facility available to the Borrower in an aggregate
principal amount not exceeding the Total Commitments as at the date of
this Agreement.
2.2 Finance Party's rights and obligations
(A) The obligations of each Finance Party under the Finance Documents are
several. Failure by a Finance Party to perform its obligations under
the Finance Documents does not affect the obligations of any other
party under the Finance Documents. No Finance Party is responsible
for the obligations of any other Finance Party under the Finance
Documents.
14
Xxxxxxx & Xxxxxxx
(B) The rights of each Finance Party under or in connection with the
Finance Documents are separate and independent rights and any debt
arising under the Finance Documents to a Finance Party from the
Borrower shall be a separate and independent debt.
(C) A Finance Party may, except as otherwise stated in the Finance
Documents, separately enforce its rights under the Finance Documents.
3. PURPOSE
3.1 Purpose
The Borrower shall apply all amounts borrowed by it under the Facility to
finance the general corporate funding requirements of the Borrower Group.
3.2 Monitoring
Without prejudice to the obligations of the Borrower under clause 3.1
(Purpose), no Finance Party is bound to monitor or verify the application
of any amount borrowed pursuant to this Agreement.
4. CONDITIONS OF ADVANCE
4.1 Initial conditions precedent
The Borrower may not deliver the Drawdown Notice unless the Agent has
received all of the documents listed in Schedule 2 (Conditions Precedent)
in form and substance satisfactory to the Agent. The Agent shall notify
the Borrower and the Lenders promptly upon such receipt.
4.2 Further conditions precedent
The Lenders will make an advance to the Borrower if:
(A) Drawdown Notice: the Agent shall have received the Drawdown Notice
during the Availability Period, not later than 10:00 a.m. (or such
later time on the same day as the Agent may agree) not less than 1
Business Day before the proposed Drawdown Date and the proposed
Drawdown Date is a Business Day which is or precedes the Termination
Date;
(B) Amount: the proposed amount to be advanced shall be equal to the
Total Commitments;
(C) Representations, etc, true: the representations and warranties
referred to and deemed to be repeated in accordance with clause 16.18
(Repetition) are true and accurate in all material respects on the
proposed Drawdown Date with reference to the facts and circumstances
then existing;
(D) No Default: no Default is Continuing or would result from the
proposed advance;
(E) No market disruption: none of the events described in clause 9.2
(Market disruption and alternative interest rates) has occurred;
15
Xxxxxxx & Xxxxxxx
(F) No Material Adverse Change: no Material Adverse Change has occurred
since the date of this Agreement; and
(G) Interest Period: the proposed Interest Period is determined pursuant
to clause 8.1 (Selection of Interest Periods).
4.3 Drawdown Notice irrevocable
The Drawdown Notice shall be irrevocable and the Borrower shall be bound,
to the extent that the other provisions of this Agreement permit, to draw
down in accordance with such Drawdown Notice.
4.4 Notification of Drawdown Notice
Upon receipt of the Drawdown Notice in accordance with this clause 4
(Conditions of Advance), the Agent shall promptly notify each Lender of
the proposed Drawdown Date and the amount of each Lender's Relevant
Percentage and subject to and in accordance with the provisions of this
Agreement, each Lender shall make available through its Facility Office
its Relevant Percentage on the proposed Drawdown Date in accordance with
clause 4.5 (Payment of loan proceeds).
4.5 Payment of loan proceeds
All amounts to be made available by the Lenders under clause 4.4
(Notification of Drawdown Notice) shall be made available not later than
11:00 a.m. on the proposed Drawdown Date in Hong Kong Dollars in
immediately available and freely transferable cleared funds by remittance
to such account specified by the Agent under clause 27.1 (Payments to the
Agent).
PART 3: REPAYMENT, CANCELLATION AND PREPAYMENT
5. REPAYMENT
5.1 Repayment of the Loan
The Borrower shall repay the Loan in full on the Repayment Date.
5.2 Reborrowing
The Borrower may not reborrow any part of the Facility which is repaid,
cancelled or prepaid.
6. CANCELLATION AND PREPAYMENT
6.1 Mandatory cancellation
Any part of the Facility which remains undrawn at the end of the
Availability Period shall be automatically and immediately cancelled and
each Lender's undrawn Commitment in respect of the Facility shall at that
time be reduced to zero.
16
Xxxxxxx & Xxxxxxx
6.2 Voluntary cancellation
The Borrower may cancel the whole or any part of the undrawn Facility
without any penalty if:
(A) it has given to the Agent not less than 5 days' (or such shorter
period as the Majority Lenders may agree) prior written notice of the
date and the amount of the cancellation; and
(B) in the case of cancellation of part of the Facility, the amount
cancelled shall be a minimum of HK$20,000,000 and thereafter in
integral multiples of HK$5,000,000.
6.3 Voluntary prepayment
The Borrower may prepay the whole or any part of the Loan on an Interest
Payment Date without any premium or penalty if:
(A) it has given to the Agent not less than 3 Business Days' (or such
shorter period as the Majority Lenders may agree) prior written
notice of the date and the amount of the prepayment;
(B) in the case of prepayment of part of the Loan, the amount prepaid
shall be a minimum of HK$200,000,000 and an integral multiple of
HK$40,000,000; and
(C) such prepayment is made together with accrued interest on the amount
prepaid and all other sums then due and payable to the Lenders under
the Finance Documents calculated up to the date of prepayment.
6.4 Mandatory Prepayment on disposal of shareholding in HKTC
(A) Subject to clause 19.5 (Ownership of HKTC), the Borrower and/or any
of its Subsidiaries which (directly or indirectly) is a shareholder
of HKTC may dispose of or assign any part of its shareholding (direct
or indirect) in HKTC to other parties on arm's length terms provided
that:
(1) each such disposal is reported in writing by the Borrower to the
Agent within 5 Business Days of the disposal setting out details
of the disposal and the amount of the Disposal Proceeds (as
defined below) received by the relevant Borrower Group Company
in respect of such disposal;
(2) within 10 Business Days following each disposal notified to the
Agent pursuant to sub-paragraph (1) above, the Borrower shall
either (i) cause an amount equal to the Net Prepayment Amount
(as defined below) (if any) to be deposited into the Prepayment
Account or (ii) if such deposit would cause a breach of any
provision under any document entered into in respect of the
Indebtedness of any Borrower Group Company, effect a prepayment
in an amount equal to the Net Prepayment Amount (as defined
below) (if any), such prepayment to be made together with
accrued interest on the amount prepaid and to the extent such
prepayment occurs otherwise than on an Interest Payment Date,
the Borrower shall also be liable for any Break Costs in respect
thereof; and
17
Xxxxxxx & Xxxxxxx
(3) the remaining provisions of this clause 6.4 are complied with,
"Disposal Proceeds" means the Net Proceeds (where such disposal is
wholly for cash) or the Fair Market Value less Costs (where such
disposal is in whole or in part for consideration other than cash).
"Net Prepayment Amount" means an amount calculated in accordance with
the following formula:
B
NPA = A x -----
C
Where:
NPA = Net Prepayment Amount
A = an amount equal to the Disposal Proceeds
received by the relevant Borrower Group Company
B = the amount of the Loan outstanding on the date
of the disposal
C = the amount of the Loan outstanding on the
date of the disposal plus the aggregate
principal amount outstanding on the date of
the disposal under each other loan facility,
bond issue or other financing arrangement
under which any Borrower Group Company (other
than an HKTC Group Company) is subject to a
similar mandatory prepayment covenant in
respect of the disposal of shares in HKTC (an
"Other Financing Arrangement")
(B) The Borrower shall at least three Business Days prior to the
date of deposit into the Prepayment Account or, as the case may
be, prepayment pursuant to clause 6.4(A)(2) deliver to the Agent
a letter certifying:
(1) the Net Prepayment Amount;
(2) the date on which such amount will be deposited or, as the
case may be, prepaid; and
(3) the aggregate principal amount outstanding on the date of
the relevant disposal under each Other Financing
Arrangement.
(C) The Borrower shall, from time to time, notify the Agent of each
Other Financing Arrangement within 20 Business Days after
financial closing thereof.
(D) Each of the Agent, the Security Trustee and the Account Bank is
hereby authorised by the Borrower to take all steps necessary to
facilitate the prepayment pursuant to this clause 6.4. The Agent
shall apply all of the monies representing principal standing to
the credit of the Prepayment Account together with any interest
accrued on such sum calculated up to the Business Day
immediately preceding the Prepayment Date (the "Mandatory
Prepayment Amount") in effecting a prepayment hereunder in
accordance with the following provisions of this clause 6.4.
18
Xxxxxxx & Xxxxxxx
(E) The Agent, having determined the Mandatory Prepayment Amount on
the Business Day prior to the Prepayment Date, will on the
Prepayment Date remit to each Lender its proportion of such
Mandatory Prepayment Amount in respect of its participation in
the Loan.
(F) In relation to any disposal of a direct or indirect shareholding
in HKTC by any member of the Borrower Group where such
consideration is in whole or in part for consideration other
than cash, the Borrower shall deliver to the Agent within 10
Business Days following any such disposal, a report by an
independent third party valuer acceptable to the Agent (acting
reasonably) confirming the Fair Market Value of the direct or
indirect shareholding in HKTC disposed of, provided that where
the Fair Market Value of such shareholding in HKTC is less than
US$30,000,000 or its equivalent in any other currency then a
certificate signed by a director of the Borrower as to the Fair
Market Value may be provided instead of such third party
valuation.
6.5 Right of prepayment and cancellation in relation to a single Lender
(A) If:
(1) any sum payable to any Lender by the Borrower is required to be
increased under paragraph (C) of clause 11.2 (Tax gross-up); or
(2) any Lender claims indemnification from the Borrower under clause
11.3 (Indemnity) or clause 12.1 (Increased Costs),
the Borrower may, whilst the circumstance giving rise to the
requirement or indemnification continues, give the Agent notice of
cancellation of the Commitment of that Lender and its intention to
procure the prepayment of that Lender's participation in the Loan.
(B) On receipt of a notice from the Borrower by the Agent referred to in
paragraph (A) above, the Commitment of that Lender shall immediately
be reduced to zero.
(C) On the last day of the Interest Period which ends after the Borrower
has given notice under paragraph (A) above (or, if earlier, the date
specified by the Borrower in that notice), the Borrower shall prepay
that Lender's participation in the Loan.
6.6 Restrictions
(A) Any notice of cancellation or prepayment given by the Borrower under
this clause 6 shall be irrevocable and, unless a contrary indication
appears in this Agreement, shall specify the date or dates upon which
the relevant cancellation or prepayment is to be made and the amount
of that cancellation or prepayment. Any cancellation or prepayment
under this clause 6 (other than clause 6.5) in part shall reduce the
Commitment of each Lender under the Facility rateably.
(B) The Borrower may not reborrow any part of the Facility which is
prepaid.
(C) The Borrower shall not prepay all or any part of the Loan or cancel
all or any part of
19
Xxxxxxx & Xxxxxxx
the Commitments except at the times and in the manner expressly
provided for in this Agreement.
(D) No Commitments cancelled (in whole or in part) under this Agreement
may be subsequently reinstated.
(E) If the Agent receives a notice under this clause 6 it shall promptly
forward a copy of that notice to the Borrower or the affected Lender,
as appropriate.
6.7 Interest on Prepayment Account
(A) The Account Bank agrees to use its reasonable efforts to accrue
interest on the amounts standing to the credit of the Prepayment
Account at the best rate it is then reasonably able to obtain in
relation to such amounts.
(B) Interest on all sums standing to the credit of the Prepayment Account
shall accrue from and including the relevant date of credit to the
Prepayment Account to and excluding the relevant date of prepayment
on a daily basis and shall be calculated on the basis of the actual
number of days elapsed and a 365 day year. The Account Bank shall
promptly notify the Borrower of the interest rate determined under
this clause 6.7.
(C) Subject to no Event of Default having occurred which is Continuing
accrued interest standing to the credit of the Prepayment Account
which has not been applied in effecting a Prepayment shall be
remitted to the Borrower on the Business Day following the relevant
Prepayment Date.
PART 4: COSTS OF ADVANCE
7. INTEREST
7.1 Calculation of interest
(A) Subject as provided in clauses 7.3 (Default interest rate) and 9.2
(Market disruption and alternative interest rates), the rate of
interest applicable to the Loan for each Interest Period is the
percentage rate per annum which is the aggregate of the applicable
(i) HIBOR and (ii) the Margin.
(B) Interest shall accrue from day to day and shall be calculated on the
basis of the actual number of days elapsed and a year of 365 days
from and including the first day of the relevant Interest Period to
and excluding the last day of such Interest Period.
(C) The first Interest Period shall commence on the Drawdown Date.
7.2 Payment of interest
The Borrower shall pay accrued interest on the Loan on each Interest
Payment Date (and, if the Interest Period is longer than six Months, on
the dates falling at six Monthly intervals after the first day of such
Interest Period) and on the Repayment Date.
20
Xxxxxxx & Xxxxxxx
7.3 Default interest rate
(A) If the Borrower fails to pay any amount payable by it under a Finance
Document on its due date, interest shall accrue on the Unpaid Sum
from the due date up to the date of actual payment (both before and
after judgment) at a rate 1% per annum higher than the rate which
would have been payable if the Unpaid Sum had, during the period of
non-payment, constituted a Loan for successive Interest Periods, each
of a duration selected by the Agent (acting in good faith and
reasonably). Any interest accruing under this clause 7.3 shall be
immediately payable by the Borrower on demand by the Agent.
(B) Default interest (if unpaid) arising on an Unpaid Sum will be
compounded with the Unpaid Sum at the end of each Interest Period
applicable to that Unpaid Sum but will remain immediately due and
payable.
7.4 Notification of rates of interest
The Agent shall promptly (and in any event no later than 5:00 p.m. on the
Quotation Day for any Interest Period) notify the Lenders and the Borrower
of the determination of a rate of interest under this Agreement for such
Interest Period.
8. INTEREST PERIODS
8.1 Selection of Interest Periods
(A) The Borrower may select an Interest Period for a Loan in the Drawdown
Notice or (if the Loan has already been borrowed) in a Selection
Notice.
(B) Each Selection Notice is (subject to this clause 8.1(B)) irrevocable
and must be delivered to the Agent by the Borrower not later than
11:00 a.m. on or before the day falling three Business Days before
the first day of the relevant Interest Period. Where the Borrower
selects an Interest Period of 6 Months or longer than 6 Months (if
available):
(1) the Borrower shall specify a Fallback Period;
(2) the Agent shall request in its notice of the receipt of the
Selection Notice to the Lenders, that each Lender notify the
Agent by no later than 11:00 a.m. on the first Business Day
immediately following the date of such notice from the Agent of
its consent to the Borrower's selection of such 6 Month or
longer period; and
(3) if the Agent does not receive the consent of all the Lenders by
the designated time, the Lenders shall be deemed to have
rejected such 6 Month or longer Interest Period selected by the
Borrower but accepted the Fallback Period which shall be deemed
to have been selected by the Borrower. The Agent shall inform
the Borrower and the Lenders promptly after the designated time
whether the Fallback Period is deemed to have been selected or
not (as the case may be).
(C) If the Borrower fails to deliver a Selection Notice or to specify a
Fallback Period to the Agent in accordance with paragraph (B) above,
the relevant Interest Period will
21
Xxxxxxx & Xxxxxxx
(in the absence of any contrary agreement) be one Month.
(D) Subject to this clause 8, the Borrower may select an Interest Period
of 1, 2, 3 or (if available) 6 Months or any other period agreed
between the Borrower and the Agent (acting on the instructions of all
the Lenders).
(E) Any Interest Period for the Loan which would otherwise extend beyond
the Repayment Date shall be of such duration that it shall end on the
Repayment Date.
(F) Each Interest Period for the Loan shall start on the Drawdown Date or
(if already made) on the last day of the preceding Interest Period.
9. CHANGES TO THE CALCULATION OF INTEREST AND BREAK COSTS
9.1 Absence of quotations
Subject to clause 9.2 (Market disruption and alternative interest rates),
if HIBOR is to be determined by reference to the Reference Banks but a
Reference Bank does not supply a quotation by 12:00 noon on the Quotation
Day, HIBOR shall be determined on the basis of the quotations of the
remaining Reference Banks (if more than one).
9.2 Market disruption and alternative interest rates
(A) If a Market Disruption Event (as defined below) occurs in relation to
the Loan for any Interest Period, then:
(1) the Agent shall promptly notify the Borrower and the Lenders
accordingly giving full details of the circumstances relevant to
such notification;
(2) the Agent (on behalf of the Lenders) and after consultation with
the Lenders shall, within five Business Days of such notice,
commence negotiations with the Borrower with a view to agreeing
a mutually acceptable substitute basis on which the Loan or
Unpaid Sum may be maintained;
(3) any substitute basis agreed in writing by the Agent (on behalf
of and with the consent of all of the Lenders) and the Borrower
within 30 days of such notice shall take effect in accordance
with its terms and interest shall be calculated as if the
substitute basis had come into effect from the beginning of the
relevant Interest Period;
(4) if no agreement is reached within 30 days, each Lender's
participation in the Loan shall during that Interest Period bear
interest at the annual rate equal to the cost to that Lender (as
certified by it to the Borrower within 10 days of the end of
that 30 day period and expressed as a percentage rate per annum)
of funding its portion of the Loan, during that Interest Period
by whatever means that Lender reasonably determines to be most
appropriate (provided that each Lender shall use its reasonable
endeavours to obtain the cheapest source of funding reasonably
available to it) plus the prevailing Margin;
(5) any substitute basis determined in accordance with this clause
9.2 shall take effect until such time as the Agent notifies the
Borrower and the
22
Xxxxxxx & Xxxxxxx
Lenders that none of the circumstances previously notified to the
Borrower and the Lenders continue to exist whereupon the normal
interest rate fixing provisions of clause 7.1 (Calculation of
interest) shall apply as from the Quotation Date for the next
Interest Period.
(B) In this Agreement "Market Disruption Event" means:
(1) at or about 12:00 noon on the Quotation Day for the relevant
Interest Period the applicable Screen Rate is not available and
none or only one of the Reference Banks supplies a rate to the
Agent to determine HIBOR for the relevant period; or
(2) at or before 2:00pm on the Quotation Day for the relevant
Interest Period, the Agent receives notifications from a Lender
or Lenders (whose participations in the Loan exceed 35% of the
aggregate outstanding) that the cost to it of obtaining matching
deposits in the Hong Kong interbank market would be in excess of
HIBOR; or
(3) at or about 12:00 noon on the Quotation Day for the relevant
Interest Period the Agent reasonably determines that, by reason
of circumstances affecting the Hong Kong interbank market,
adequate and fair means do not or will not exist for determining
the rate of interest applicable to such Interest Period.
9.3 Break Costs
(A) The Borrower shall, within five Business Days of demand by a Finance
Party, pay to that Finance Party its Break Costs attributable to all
or any part of the Loan or Unpaid Sum being paid by the Borrower on a
day other than the last day of an Interest Period for the Loan or
Unpaid Sum.
(B) Each Lender shall, as soon as reasonably practicable after a demand
by the Agent or the Borrower, provide a letter to the Agent and the
Borrower (as the case may be) certifying the amount of its Break
Costs for any Interest Period in which they accrue.
10. FEES
10.1 Commitment fee
The Borrower shall pay to the Agent (for the account of each Lender in
respect of its Commitment) a fee at the rate of 0.1% per annum and
calculated on the amount of the Total Commitments for the period from and
including the date of this Agreement to and including the last day of the
Availability Period or, if earlier, the date on which the Facility is
either cancelled in full or is utilised. Such fee shall be payable on the
last day of the Availability Period or if earlier, on the date on which
the Loan is either cancelled in full or is utilised in full.
10.2 Front-end fee
The Borrower shall pay a front-end fee in the amount and at the times
agreed in the Fee Letter.
23
Xxxxxxx & Xxxxxxx
10.3 Agency fee
The Borrower shall pay to the Agent and the Security Trustee (in each
case, for its own account) an agency fee in the amount and at the times
agreed in the Fee Letter.
PART 5: ADDITIONAL PAYMENT OBLIGATIONS
11. TAX GROSS UP AND CREDIT
11.1 Definitions
(A) In this clause 11:
"Protected Party" means a Finance Party which is or will be, for or
on account of Tax, subject to any liability or required to make any
payment in relation to a sum received or receivable (or any sum
deemed for the purposes of Tax to be received or receivable) under a
Finance Document.
"Tax Credit" means a credit against, relief or remission for, or
repayment of any Tax.
"Tax Deduction" means a deduction or withholding for or on account of
Tax from a payment under a Finance Document.
"Tax Payment" means an increased payment made by the Borrower to a
Finance Party under clause 11.2 (Tax gross-up).
(B) In this clause 11, a reference to "determines" or "determined" means
a determination made in the discretion of the person making the
determination (acting reasonably).
11.2 Tax gross-up
(A) The Borrower shall make all payments to be made by it without any Tax
Deduction, unless a Tax Deduction is required by law.
(B) The Borrower or a Lender shall promptly upon becoming aware that the
Borrower must make a Tax Deduction (or that there is any change in
the rate or the basis of a Tax Deduction) notify the Agent
accordingly. If the Agent receives such notification from a Lender it
shall notify the Borrower and the Agent.
(C) If a Tax Deduction is required by law to be made by the Borrower, the
amount of the payment due from the Borrower shall be increased to an
amount which (after making any Tax Deduction) leaves an amount equal
to the payment which would have been due if no Tax Deduction had been
required.
(D) If the Borrower is required to make a Tax Deduction, the Borrower
shall make that Tax Deduction and any payment required in connection
with that Tax Deduction within the time allowed in the minimum amount
required by law.
24
Xxxxxxx & Xxxxxxx
(E) Within thirty days of making either a Tax Deduction or any payment
required in connection with that Tax Deduction, the Borrower shall
deliver to the Agent for the Finance Party entitled to the payment
evidence reasonably satisfactory to that Finance Party that the Tax
Deduction has been made or (as applicable) any appropriate payment
paid to the relevant taxing authority.
11.3 Indemnity
(A) The Borrower shall (within three Business Days of demand by the
Agent) pay to a Protected Party an amount equal to the loss,
liability or cost which that Protected Party determines will be or
has been (directly or indirectly) suffered for or on account of Tax
by that Protected Party in relation to a sum received or receivable
(or any sum deemed for the purposes of Tax to be received or
receivable) under a Finance Document provided that such any loss,
liability or cost is not due to any delay or non-compliance by that
Protected Party.
(B) Paragraph (A) above shall not apply with respect to any Tax assessed
on a Finance Party:
(1) under the law of the jurisdiction in which that Finance Party is
incorporated or, if different, the jurisdiction (or
jurisdictions) in which that Finance Party is treated as
resident for tax purposes or carries on a business for tax
purposes; or
(2) under the law of the jurisdiction in which that Finance Party's
Facility Office is located in respect of amounts received or
receivable in that jurisdiction,
if that Tax is imposed on or calculated by reference to the net
income received or receivable (but not any sum deemed to be received
or receivable) by that Finance Party;
(C) A Protected Party making, or intending to make a claim pursuant to
paragraph (A) above shall promptly notify the Agent of the event
which will give, or has given, rise to the claim, following which the
Agent shall notify the Borrower.
(D) A Protected Party shall, on receiving a payment from the Borrower
under this clause 11.3, notify the Agent.
11.4 Tax Credit
If the Borrower makes a Tax Payment and the relevant Finance Party
determines in good faith that:
(A) a Tax Credit is attributable to that Tax Payment; and
(B) that Finance Party has obtained, utilised and retained that Tax
Credit,
that Finance Party shall pay an amount to the Borrower which that Finance
Party determines in good faith will leave it (after that payment) in the
same after-Tax position as it would have been in had the Tax Payment not
been made by the Borrower.
25
Xxxxxxx & Xxxxxxx
Nothing in this clause 11.4 shall interfere with the right of a Finance
Party to arrange its Tax affairs in whatever manner it things fit. No
Finance Party shall be obliged to disclose any information relating to its
Tax affairs or any computations in respect thereof.
11.5 Stamp taxes
The Borrower shall pay and, within five Business Days of demand, indemnify
each Finance Party against any cost, loss or liability that Finance Party
incurs in relation to all stamp duty, registration and other similar Taxes
payable in respect of any Finance Document or any judgment given in
connection with them against the Borrower and shall indemnify each of the
Finance Parties against any and all liabilities, including penalties, with
respect to or resulting from its delay or omission to pay promptly
following a request from a Finance Party any such stamp, registration and
similar faxes or charges.
12. INCREASED COSTS
12.1 Increased Costs
(A) Subject to clause 12.3 (Exceptions) the Borrower shall, within five
Business Days of a demand by the Agent, pay for the account of a
Finance Party the amount of any Increased Costs (as defined below)
incurred by that Finance Party or any of its Affiliates as a result
of (i) the introduction of or any change in (or in the interpretation
or application of) any law or regulation or (ii) compliance with any
applicable law or regulation made after the date of this Agreement.
(B) In this Agreement, "Increased Costs" means:
(1) a reduction in the rate of return from the Facility or on a
Finance Party's (or its Affiliate's) overall capital;
(2) an additional or increased cost; or
(3) a reduction of any amount due and payable under any Finance
Document,
which is incurred or suffered by a Finance Party or any of its
Affiliates to the extent that it is attributable to that Finance
Party having entered into its Commitment or funding or performing its
obligations under any Finance Document.
12.2 Increased Costs claims
(A) A Finance Party intending to make a claim pursuant to clause 12.1
(Increased Costs) shall notify the Agent of the event giving rise to
the claim, following which the Agent shall promptly notify the
Borrower.
(B) Each Finance Party shall, as soon as practicable after a demand by
the Agent, provide a certificate confirming the amount of its
Increased Costs.
12.3 Exceptions
(A) Clause 12.1 (Increased Costs) does not apply to the extent any
Increased Cost is:
26
Xxxxxxx & Xxxxxxx
(1) attributable to a Tax Deduction required by law to be made by
the Borrower; or
(2) attributable to the wilful breach by the relevant Finance Party
or its Affiliates of any law or regulation; or
(3) compensated for in full by the operation of clause 11.3
(Indemnity) or any other provision of this Agreement; or
(4) attributable to any change in the rate of any Tax referred to in
clause 11.3(B); or
(5) attributable to the implementation by the applicable authorities
having jurisdiction over such Lender of any increase in capital
adequacy requirements which is pursuant to and in accordance
with any timetable relating to the implementation of capital
adequacy requirements where the Lender is aware of such
timetable as at the date of this Agreement.
(B) In this clause 12.3, a reference to a "Tax Deduction" has the same
meaning given to the term in clause 11.1 (Definitions).
13. INDEMNITIES
13.1 Currency indemnity
(A) If any sum due from the Borrower under the Finance Documents (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:
(1) making or filing a claim or proof against the Borrower; or
(2) obtaining or enforcing an order, judgment or award in relation
to any litigation or arbitration proceedings,
the Borrower shall, as an independent obligation, within five
Business Days of demand, indemnify each Finance Party 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 (i) the
rate of exchange used to convert that Sum from the First Currency
into the Second Currency and (ii) the rate or rates of exchange
available to that person at the time of its receipt of that Sum.
(B) The Borrower waives any right it may have in any jurisdiction to pay
any amount under the Finance Documents in a currency or currency unit
other than that in which it is expressed to be payable.
13.2 Other indemnities
The Borrower shall, within five Business Days of demand, indemnify each
Finance Party against any cost, loss or liability properly incurred by
that Finance Party as a result of:
27
Xxxxxxx & Xxxxxxx
(A) the occurrence of any Default;
(B) a failure by the Borrower to pay any amount due under a Finance
Document on its due date including, without limitation, any cost,
loss or liabilities arising as a result of clause 26.2
(Redistribution of payments);
(C) funding, or making arrangements to fund, its participation in the
Loan requested by the Borrower in the Drawdown Notice but not made by
reason of the operation of any one or more of the provisions of this
Agreement (other than by reason of default or negligence by that
Lender alone); or
(D) the Loan (or part of the Loan) not being prepaid in accordance with a
notice of prepayment given by the Borrower.
13.3 Indemnity to the Agent
The Borrower shall promptly indemnify the Agent against any cost, loss or
liability incurred by the Agent (acting reasonably) as a result of:
(A) investigating any event which it reasonably believes is a Default; or
(B) acting or relying on any notice, request or instruction which it
reasonably believes to be genuine, correct and appropriately
authorised.
14. ILLEGALITY AND MITIGATION
14.1 Illegality
If, at any time, it is or will become unlawful in any jurisdiction for a
Lender to perform any of its obligations as contemplated by this Agreement
or to fund its participation in the Loan:
(A) that Lender shall promptly notify the Agent upon becoming aware of
that event;
(B) upon the Agent notifying the Borrower, the relevant Commitment of the
Lender will be immediately cancelled. If a Lender's Commitment is
reduced in accordance with the terms of this Agreement after the
Agent has received the Drawdown Notice, then the amount of its
Relevant Percentage under such Drawdown Notice and the amount to be
advanced thereunder shall be reduced accordingly; and
(C) the Borrower shall repay that Lender's participation in the Loan
together with accrued interest to the date of actual payment and all
other sums due or which may become due to such Lender including any
additional amount payable under clause 13.2 (Other indemnities) above
on the last day of the Interest Period occurring after the Agent has
notified the Borrower or, if earlier, the date specified by the
Lender in the notice delivered to the Agent (being no earlier than
the last day of any applicable grace period permitted by law).
28
Xxxxxxx & Xxxxxxx
14.2 Mitigation
Notwithstanding the provisions of Clauses 11 (Tax gross up and credit), 12
(Increased Costs) and 14.1 (Illegality), if in relation to a Lender or (as
the case may be) the Agent circumstances arise which would result in:
(A) any deduction, withholding or payment of the nature referred to in
clause 11 (Tax gross up and credit);
(B) any increased cost of the nature referred to in clause 12 (Increased
Costs); or
(C) a notification pursuant to clause 14.1 (Illegality),
then without in any way limiting, reducing or otherwise qualifying the
rights of such Lender or the Agent, as the case may be, under any of those
clauses, and without prejudice to the Borrower's obligations under those
clauses, such Lender or the Agent, as the case may be, shall promptly upon
becoming aware of the same notify the Agent thereof (whereupon the Agent
shall promptly notify the Borrower) and such Lender or the Agent, as the
case may be, shall enter into negotiations in good faith with the Agent
and the Borrower for a period not exceeding thirty days (or such lesser
period, as the parties may agree) with a view to mitigating or removing
such circumstances by means of the transfer of its participation in the
Facility and its rights and obligations hereunder and under the Finance
Documents to another financial institution or Facility Office not affected
by the circumstances having the results set out in (A), (B) or (C) above
and shall otherwise take such reasonable steps as may be open to it to
mitigate the effects of such circumstances provided that such Lender or
the Agent, as the case may be, shall not be under any obligation to take
any such action if, in its opinion, to do so would or might have a
material adverse effect upon its business, operation or financial
condition or the management of its Tax affairs or be contrary to its
policies or would involve it in any unlawful activity or any activity that
is contrary to any request, guidance or directive of any competent
authority applicable to such Lender or the Agent (whether or not having
the force of law but if not having the force of law being on which it is
the general practice of persons to whom it is intended to apply to comply
with) or (unless indemnified to its satisfaction) would involve it in any
significant expense or tax disadvantage.
14.3 The Borrower shall indemnify each Finance Party for all costs and expenses
reasonably incurred by that Finance Party as a result of steps taken by it
under clause 14.2 (Mitigation).
15. COSTS AND EXPENSES
15.1 Transaction expenses
The Borrower shall, within five Business Days of demand, pay the Agent and
the Co-ordinating Arrangers the amount of all costs and expenses
(including legal fees) reasonably incurred by any of them (on a full
indemnity basis and whether or not the Facility is drawndown or utilised)
in connection with the negotiation, preparation, printing, execution and
syndication of:
(A) this Agreement and any other documents referred to in this Agreement;
and
(B) any other Finance Documents executed after the date of this
Agreement.
29
Xxxxxxx & Xxxxxxx
15.2 Amendment costs
If the Borrower requests an amendment, waiver or consent the Borrower
shall, within five Business Days of demand, reimburse the Agent for the
amount of all costs and expenses (including legal fees) reasonably
incurred by the Agent in responding to, evaluating, negotiating or
complying with that request or requirement.
15.3 Enforcement costs
The Borrower shall, within five Business Days of demand, pay to each
Finance Party the amount of all costs and expenses (including legal fees,
valuation, accountancy and consultancy fees, administrative time costs and
communication out of pocket expenses) properly incurred by that Finance
Party in connection with the enforcement of, or the preservation of any
rights under, any Finance Document.
PART 6: REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT
16. REPRESENTATIONS AND WARRANTIES
Subject to clause 16.18 (Repetition), the Borrower makes the
representations and warranties set out in this clause 16 to each Finance
Party on the date of this Agreement.
16.1 Status
(A) The Borrower is a limited company, duly incorporated and validly
existing under the laws of Hong Kong.
(B) The Borrower, each Borrower Group Company which is the beneficial
owner, directly or indirectly, of the issued share capital of HKTC
and each HKTC Group Company has the power and all necessary
governmental and other consents, approvals, licences and authorities
under any applicable jurisdiction to own its assets and carry on its
business as it is being conducted.
16.2 Binding obligations
The obligations expressed to be assumed by the Borrower in each relevant
Finance Document are, subject to the Reservations, its legal, valid,
binding and enforceable obligations.
16.3 Non-conflict with other obligations
The entry into and performance by the Borrower of, and the transactions
contemplated by, the Finance Documents do not conflict in any material way
with:
(A) any law or regulation applicable to it;
(B) its constitutional documents; or
(C) any agreement or instrument binding upon it or any HKTC Group Company
or any of its or any such company's assets.
30
Xxxxxxx & Xxxxxxx
16.4 Power and authority
(A) The Borrower has the power to enter into, perform and deliver, and
has taken all necessary action to authorise its entry into,
performance and delivery of, the Finance Documents to which it is a
party and the transactions contemplated by those Finance Documents.
(B) No limits on the Borrower's powers will be exceeded as a result of
the borrowings and grant of security or the taking of any other
action contemplated by any relevant Finance Document.
(C) (1) All actions, conditions and things required to be taken,
fulfilled and done (including the obtaining of any necessary
consents and approvals) in order to enable the Borrower lawfully
to enter into, exercise its rights and perform and comply with
its obligations contained in each relevant Finance Document and
to ensure that those obligations are (subject to the
Reservations) legally valid, binding and enforceable (subject
(but only on the date of this Agreement) to all necessary
registrations of the Security Documents, if any) have been
taken, fulfilled and done; and
(2) The requisite resolutions of the Borrower's Executive Committee
of the Board have been duly and properly passed at a duly
convened and constituted meeting at which all statutory and
other relevant formalities were observed to authorise its
execution and performance of the Finance Documents to which it
is a party and such resolutions are in full force and effect and
have not been varied or rescinded.
16.5 Validity and admissibility in evidence
Subject to the Reservations, all Authorisations required or desirable:
(A) to enable the Borrower lawfully to enter into, exercise its rights
and comply with its obligations in each relevant Finance Document;
and
(B) to make each relevant Finance Document admissible in evidence in its
jurisdiction of incorporation,
have been obtained or effected and are in full force and effect.
16.6 No Event of Default
No Event of Default has occurred which is Continuing.
16.7 Financial Statements
(A) Its Financial Statements, together with the notes thereto, fairly
represent the Borrower Group's financial condition and operations
during the relevant period in respect of which the same were
prepared.
(B) There has been no Material Adverse Change since the end of the
Financial Year in respect of which the Original Financial Statements
were prepared.
31
Xxxxxxx & Xxxxxxx
16.8 No litigation
No litigation, arbitration or administrative or other proceedings
(together "proceedings") of or before any court have (to the best of the
Borrower's knowledge and belief) been started or threatened against the
Borrower or any HKTC Group Company where, if such proceedings were
adversely determined against the company they would (whether individually
or in aggregate) be likely to result in a liability in excess of
US$30,000,000 or result in a Material Adverse Effect.
16.9 No Material Adverse Change
There has been no Material Adverse Change (to the best of the Borrower's
knowledge and belief) since the date of this Agreement.
16.10 Material business and consents
All licences and all material contracts, consents and authorisations
(including Telecommunications Authorisations) necessary for the carrying
on of HKTC's Core Business have been obtained and are in full force and
effect and (to the best of the Borrower's knowledge and belief) are not
likely to be revoked or terminated (and not be reinstated, renewed or
replaced by a similar licence within 30 days after such revocation or
termination) or be made subject to unduly onerous conditions, and no
notice has been received by the Borrower or, so far as the Borrower is
aware, by any HKTC Group Company of an intention to so revoke or terminate
or impose such conditions.
16.11 Telecommunications compliance
Neither the Borrower nor, so far as the Borrower is aware, any HKTC Group
Company has received notification of any breach or alleged breach of the
Telecommunications Regulations and the Borrower has no reason to believe
that any such notice is pending or threatened and no circumstances exist
which are known to the Borrower and which may be expected to prevent or
interfere with the Borrower or the HKTC Group being in compliance with any
such Telecommunications Regulations or result in any material liability
under them.
16.12 Governing law and enforcement
The choice of Hong Kong law as the governing law of the relevant Finance
Documents will, subject to the Reservations, be recognised and enforced in
its jurisdiction of incorporation.
16.13 Deduction of Tax
It is not required under the law of its jurisdiction of incorporation to
make any deduction for or on account of Tax from any payment it may make
under any Finance Document.
16.14 No filing or stamp taxes
Save for registration of the Security Documents at the Companies Registry
within the statutorily prescribed period and payment of the registration
fees in relation thereto, under the laws of Hong Kong it is not necessary
that the Finance Documents be filed, recorded or enrolled with any court
or other authority in that jurisdiction or that any stamp,
32
Xxxxxxx & Xxxxxxx
registration or similar tax be paid on or in relation to the Finance
Documents or the transactions contemplated by the Finance Documents.
16.15 Pari passu ranking
The Borrower's payment obligations under the Finance Documents rank at
least pari passu with the claims of all its other unsecured and
unsubordinated creditors, except for obligations mandatorily preferred by
law applying to companies generally.
16.16 Share capital interests
As at the date of this Agreement, the Borrower is the beneficial owner,
directly or indirectly, of 100% of the issued share capital of HKTC and no
Borrower Group Company has granted any Encumbrance over such share
capital.
16.17 HKTC Encumbrances
The Borrower is not aware of any Encumbrances affecting any assets of HKTC
and its Principal Subsidiaries (other than the Listed Principal
Subsidiaries and their Subsidiaries) which are not disclosed or referred
to in the list of Encumbrances referred to in paragraph 3(D) of Schedule 2
(Conditions precedent).
16.18 Repetition
There shall be deemed to be repeated:
(A) on the Drawdown Date; and
(B) on the first day of each Interest Period,
each of the representations and warranties contained in clauses 16.1
(Status), 16.2 (Binding obligations), 16.3 (Non-conflict with other
obligations), 16.4 (Power and authority), 16.5 (Validity and admissibility
in evidence), 16.6 (No Event of Default), 16.7(A)(Financial Statements),
16.8 (No litigation), 16.10 (Material business and consents) 16.11
(Telecommunications compliance), 16.12 (Governing law and enforcement) and
16.15 (Pari passu ranking), by reference to the facts and circumstances
existing as at such date; except in the case of the representation and
warranty set out in clause 16.7(A) (Financial Statements) which shall be
deemed to be repeated by reference to the most recent Financial Statements
delivered to the Agent under clause 17.1 (Financial Statements). In
addition, the representations and warranties set out in clause 16.9 (No
Material Adverse Change), clause 16.16 (Share capital interests) and
clause 16.17 (HKTC Encumbrances) shall be repeated only on the Drawdown
Date.
17. INFORMATION UNDERTAKINGS
The undertakings in this clause 17 shall remain in force from the date of
this Agreement for so long as any amount is outstanding or prior to which,
any Commitment is in force, under the Finance Documents.
17.1 Financial Statements
The Borrower will deliver to the Agent, in sufficient copies for all the
Lenders, the following:
33
Xxxxxxx & Xxxxxxx
(A) as soon as available and in any event within 180 days after the end
of each of its financial years (beginning with the year ending on 31
December 2002), the audited consolidated accounts of the Borrower
Group as at the end of and for that financial year;
(B) as soon as available and in any event within 120 days after the end
of the first six months of each of its financial years (beginning
with the six months ending on 30 June 2003), the interim report of
the Borrower Group as at the end of and for the relevant six month
period; and
(C) at the same time as sent to its shareholders, any other document or
information sent to its shareholders as such.
17.2 Requirements as to Financial Statements
(A) Each set of Financial Statements delivered by the Borrower pursuant
to clause 17.1 (Financial Statements) shall be certified by a
director of the Borrower as fairly representing the Borrower Group's
financial condition as at the date as at which those Financial
Statements were drawn up.
(B) The Borrower shall procure that each set of Financial Statements
delivered pursuant to clause 17.1 (Financial Statements) is prepared
using Hong Kong GAAP and accounting practices consistent with those
applied in the preparation of the Original Financial Statements
unless, in relation to any set of Financial Statements, it notifies
the Agent that there has been a change in Hong Kong GAAP, the
accounting practices or reference periods and its auditors deliver to
the Agent:
(1) a description of any change necessary for those Financial
Statements to reflect Hong Kong GAAP, accounting practices and
reference periods upon which its Original Financial Statements
were prepared; and
(2) sufficient information, in form and substance as may be
reasonably required by the Agent, to enable the Lenders to
determine whether clause 18 (Financial covenants) has been
complied with and make an accurate comparison between the
financial position indicated in those Financial Statements and
the Original Financial Statements.
Any reference in this Agreement to those Financial Statements shall
be construed as a reference to those Financial Statements as adjusted
to reflect the basis upon which the Original Financial Statements
were prepared.
(C) The Borrower shall only appoint and retain as its auditors Price
WaterhouseCoopers or any other internationally recognised firm of
accountants.
(D) The Borrower shall, at the same time as it delivers its annual or
semi-annual Financial Statements, deliver to the Agent a Compliance
Certificate.
17.3 Information: miscellaneous
The Borrower shall supply, or shall procure that there is supplied, to the
Agent (in sufficient copies for all the Lenders):
34
Xxxxxxx & Xxxxxxx
(A) as soon as reasonably practicable upon becoming aware of them,
details of any litigation, arbitration or administrative proceedings
which are current against the Borrower or any HKTC Group Company and
which might, if adversely determined, have a Material Adverse Effect
and detailing to what extent such liability or diminution is covered
by insurance;
(B) as soon as reasonably practicable, such further information regarding
the financial condition, business and operations of the Borrower or
the HKTC Group, taken as a whole, as any Finance Party (through the
Agent) may reasonably request (including, without limitation, a copy
of the most recent Form 20 - F filed by the Borrower with the United
States Securities and Exchange Commission);
(C) all documents (other than financial statements dispatched by an HKTC
Group Company) dispatched by the Borrower or by any HKTC Group
Company to its creditors generally and (if any) its public
shareholders, at the same time as they are dispatched;
(D) as soon as reasonably practicable after the Borrower becomes aware of
the same, any statement, direction, notice, determination, guideline,
code of practice issued by any Telecommunications Authority which
amends, revokes, limits or suspends any of the Telecommunications
Authorisations granted to any HKTC Group Company or which imposes any
condition or obligation on any HKTC Group Company (in addition to
those to which it is already subject as at the date of this
Agreement) which may have a Material Adverse Effect; and
(E) as soon as reasonably practicable after HKTC delivers the same to its
lenders, a copy of (1) HKTC's annual and semi-annual consolidated
financial statements and (2) a written confirmation from HKTC
certifying the aggregate amount of all Indebtedness secured by all
Encumbrances referred to in clause 19.3(B) (Negative pledge) as at
the end of the then most recent financial period in respect of which
HKTC has distributed financial statements to its lenders.
18. Financial covenants
18.1 Definitions
In this clause 18:
"Cash" means cash in hand and all money deposited with a bank or other
financial institution.
"EBITDA" means, in respect of any Relevant Period, the total operating
profit (loss) for continuing operations before interest, tax, depreciation
of tangible assets and amortisation of goodwill and other intangible
assets of the Borrower Group as determined on a consolidated basis in
accordance with Hong Kong GAAP and excluding in respect of the Borrower
Group any share of results of associates, jointly controlled and
unconsolidated companies, any exceptional profits or losses on the sale of
or termination of an operation, exceptional costs of a reorganisation or
restructuring and any extraordinary losses or expenses such as goodwill
write-off, asset and investment impairment losses and provisions for
investments and properties and any exceptional profits or losses on the
disposals of assets and extraordinary items and minority interests.
35
Xxxxxxx & Xxxxxxx
"Interest" means, in relation to any Relevant Period, interest (including
the interest element of any payments made under finance leases or hire
purchase agreements), commission, fees, discounts and other finance
expenses or charges payable by the Borrower Group during the Relevant
Period (but excluding any interest payable to any Borrower Group Company)
as determined on a consolidated basis in accordance with Hong Kong GAAP.
"Net Debt" means Total Debt less Cash.
"Relevant Period" means (A) in respect of the first Test Date hereunder,
the period of twelve months ending on 31 December 2002 and (B) in all
other cases, each period of twelve months ending on the last day of the
Borrower's Financial Year and each period of twelve months ending on the
last day of the first half of the Borrower's Financial Year.
"Test Dates" means 1 July 2003 and thereafter each 1 January and 1 July
(or, to the extent the Borrower's Financial Year is amended, the first day
of the seventh month following the end of each Relevant Period) and "Test
Date" means any of the foregoing. Each "Test Date" will be in respect of
the most recent annual audited and/or semi-annual unaudited accounts
prepared on a consolidated basis in respect of the Borrower Group
delivered by the Borrower in respect of the Relevant Period.
"Total Debt" of any person means, at any date, the aggregate outstanding
principal or capital amount of (without duplication) (A) all Indebtedness
of such person with a final maturity of one year or more, (B) any other
indebtedness for Borrowed Money with a final maturity of less than one
year from its date of incurrence owed to any commercial bank or other
credit institution by such person, (C) all amounts outstanding under any
commercial paper programme of such person and (D) any guarantees,
indemnities or other assurances against financial loss given by such
person in respect of the Total Debt of any other person, in each case as
determined on a consolidated basis in accordance with Hong Kong GAAP,
provided that the following liabilities shall be excluded when calculating
the Total Debt of any person (i) any currency hedging in relation to
non-Hong Kong Dollar indebtedness by the Borrower or any of its
Subsidiaries from time to time, (ii) any issue of securities which are
mandatorily convertible into shares, including the US$190,000,000 5%
Mandatory Convertible Note due 2005 issued by the Borrower on 28 June
2002, (iii) its Subordinated Indebtedness and (iv) trade payables and
vendor financing.
18.2 Financial undertakings
The Borrower shall comply with the following for so long as any amount
remains outstanding under any Finance Document:
(A) The ratio of EBITDA to Interest (1) in respect of any Relevant Period
commencing in 2002 or 2003 shall not be less than 2.5 to 1 and (2) in
respect of any Relevant Period thereafter shall not be less than 3.0
to 1.
(B) The ratio of Net Debt of the Borrower Group to EBITDA (1) in respect
of any Relevant Period commencing in 2002 or 2003 shall not exceed
5.0 to 1 and (2) in respect of any Relevant Period thereafter shall
not exceed 4.5 to 1.
Compliance with and calculation of the ratios referred to in this clause
18.2 shall be required as at the last day of each Relevant Period only.
Testing shall be carried out on each of the Test Dates the first of which
shall fall on 1 July 2003 by reference to the most
36
Xxxxxxx & Xxxxxxx
recent annual audited and/or semi-annual unaudited accounts prepared on a
consolidated basis in respect of the Borrower Group delivered by the
Borrower in respect of the Relevant Period save in respect of the testing
on the first Test Date which shall be carried out by reference to the
audited consolidated accounts of the Borrower for the 12 months ended 31
December 2002.
Any Indebtedness owing by, or interest payable by, a Borrower Group
Company to another Borrower Group Company shall be ignored for the
purposes of this clause 18.2.
19. GENERAL UNDERTAKINGS
The undertakings in this clause 19 shall remain in force for so long as
any amount is outstanding or prior to which, any Commitment is in force,
under the Finance Documents.
19.1 Authorisations
The Borrower shall promptly obtain, comply with and do all that is
necessary to maintain in full force and effect any Authorisation required
under any applicable law to ensure the legality, validity, enforceability
or admissibility in evidence of any relevant Finance Document in any
relevant jurisdiction to enable the Borrower to perform its payment
obligations under such Finance Document and to ensure the legality,
validity, enforceability or admissibility in evidence of such Finance
Document in any relevant jurisdiction.
19.2 Compliance with laws
The Borrower shall, and shall procure that each HKTC Group Company shall,
comply in all material respects with all laws to which it may be subject,
save where failure to so comply would not have a Material Adverse Effect.
19.3 Negative pledge
The Borrower shall ensure that neither HKTC nor any Principal Subsidiary
(other than Listed Principal Subsidiaries and their Subsidiaries) shall
create, incur, assume or permit to subsist any Encumbrance over any of its
assets to secure the Indebtedness of such company except for:
(A) Permitted Encumbrances;
(B) the creation of Encumbrances (other than Permitted Encumbrances) to
secure Indebtedness incurred after the date of this Agreement where
the aggregate outstanding principal amount of such secured
Indebtedness (excluding secured Indebtedness of Listed Principal
Subsidiaries and their respective Subsidiaries and indebtedness
secured by Permitted Encumbrances) is less than or equal to 50% of
HKTC's Adjusted Consolidated Net Worth as determined by reference to
the most recent financial statements of HKTC provided that not less
than 10 Business Days after the creation of any such Encumbrances in
respect of Indebtedness of greater than US$30,000,000 (or its
equivalent), the Borrower has provided a confirmation in writing to
the Agent certifying compliance with the foregoing requirement and
setting out details of all Indebtedness secured and to be secured and
HKTC's Adjusted Consolidated Net Worth; or
37
Xxxxxxx & Xxxxxxx
(C) Encumbrances created, incurred, assumed or permitted to subsist on
terms satisfactory to the Agent (acting on the instructions of the
Majority Lenders) including effective provisions being made whereby
the Facility will be secured either at least equally and rateably
with such Indebtedness or by such other Encumbrances as shall have
been approved by the Majority Lenders for so long as such
Indebtedness will be so secured.
19.4 Pari passu
The obligations of the Borrower under the Finance Documents shall at all
times rank at least pari passu with all its other present and future
unsecured and unsubordinated indebtedness except for obligations
mandatorily preferred by law.
19.5 Ownership of HKTC
The Borrower will at all times during the life of the Facility remain
directly or indirectly the majority shareholder, holding at least 70% of
the voting share capital of HKTC and shall procure that not less than the
Borrower's 70% interest in HKTC referred to above remains free from
Encumbrances (other than Encumbrances created or arising by operation of
law).
19.6 Continued Provision of Network Services
The Borrower shall procure that HKTC will, at all times during the life of
the Facility, continue to engage in the provision of the fixed
telecommunications network services in Hong Kong pursuant to the FTNS
Licence.
19.7 Continued Listing
The Borrower shall ensure that its shares are listed on The Stock Exchange
of Hong Kong Limited (or, in the event that it is unable to maintain such
a listing, on another recognised stock exchange reasonably acceptable to
the Majority Lenders).
19.8 Notification of Events of Default
(A) The Borrower shall notify the Agent of any Event of Default (and the
steps, if any, being taken to remedy it) promptly upon becoming aware
of its occurrence.
(B) Promptly upon a request by the Agent, the Borrower shall supply to
the Agent a certificate signed by one of its directors or a senior
officer on its behalf certifying that no Event of Default is
Continuing (or if an Event of Default is Continuing, specifying the
Event of Default and the steps, if any, being taken to remedy it).
19.9 Consents and filings
The Borrower shall ensure that there shall be:
(A) obtained, complied with and promptly renewed and maintained all
consents, licences, approvals and authorisations of;
(B) made all filings, recordings, registrations or enrolments with; and
38
Xxxxxxx & Xxxxxxx
(C) paid any stamp, registration or similar tax to be paid to,
any governmental authorities or agencies or courts (if any) required under
any applicable law or regulation to enable the Borrower to perform its
material obligations under the Finance Documents or to ensure the
legality, validity and enforceability of the Finance Documents.
19.10 Access
If an Event of Default is Continuing, upon reasonable notice being given
to the Borrower by the Agent (except in the case of emergency) the
Borrower shall, and shall procure that each HKTC Group Company shall,
permit any one or more representatives of the Agent or its advisers to
have access to the property, assets, books and records of the Borrower and
the HKTC Group Companies to inspect the same during normal business hours.
19.11 Future borrowings
In relation to any future borrowing by any Borrower Group Company, the
Borrower shall, and shall procure that each other Borrower Group Company
shall, only agree to any provision for mandatory prepayment on disposal by
a Borrower Group Company of a direct or indirect shareholding in HKTC in
any agreement relating to such borrowing on terms which are similar to and
consistent with those set out herein.
19.12 No mergers
The Borrower shall not merge or consolidate with any other person, enter
into any demerger transaction or participate in any other type of
corporate reconstruction unless a continuing entity is the Borrower and no
breach of any other provision hereunder would result from such merger.
19.13 Arm's length transactions
The Borrower shall not enter into any transaction with any person outside
the Borrower Group otherwise than on arm's length terms.
20. EVENTS OF DEFAULT
20.1 Each of the events or circumstances set out in this clause 20.1 is an
Event of Default.
(A) Non-payment
The Borrower does not pay on the due date any amount payable pursuant
to any relevant Finance Document at the place at and in the currency
in which it is expressed to be payable under this Agreement unless:
(1) the failure to pay is caused by administrative or technical
error beyond the Borrower's control; and
(2) payment is subsequently made within 3 Business Days of its due
date.
39
Xxxxxxx & Xxxxxxx
(B) Financial covenants
The Borrower fails to comply with clause 18.2 (Financial
undertakings) in the manner contemplated thereunder.
(C) Breach of specific covenants
The Borrower fails to comply with clause 19.3 (Negative pledge),
clause 19.5 (Ownership of HKTC) and/or clause 19.12 (No mergers)
(D) Other obligations
Without prejudice to clause 20.1(C) (Breach of specific covenants)
above, the Borrower fails to comply with clause 17 (Information
undertakings) or clause 19 (General undertakings) unless the
circumstances underlying such failure are (in the reasonable opinion
of the Majority Lenders) capable of being remedied and are so
remedied within 20 Business Days of the Agent giving written notice
to the Borrower requiring it to remedy, or if earlier, within 20
Business Days of the date on which the Borrower first became aware of
such breach.
(E) Misrepresentation
Any representation or statement made or deemed to be made by the
Borrower under clause 16 (Representations and warranties) is or
proves to have been incorrect or misleading in any material respect
when made or deemed to be made, unless the underlying circumstances
(if in the Majority Lenders' reasonable opinion capable of remedy)
are remedied within 20 Business Days of the Agent giving written
notice to the Borrower requiring it to remedy or, if earlier, within
20 Business Days of the date on which the Borrower first became aware
of such breach, and its effect is such as to be reasonably likely (in
the opinion of the Agent acting on the instructions of the Majority
Lenders) to give rise to a Material Adverse Effect.
(F) Insolvency
The Borrower or HKTC or any Principal Subsidiary:
(1) ceases or suspends generally payment of its debts (or announces
an intention to do so) or is unable to pay its debts or is
deemed unable to pay its debts within the meaning of Section 178
of the Companies Ordinance or any other similar law of any
applicable jurisdiction; or
(2) commences, or announces an intention to commence, negotiations
with all or any class of its creditors with a view to the
general readjustment or rescheduling of all or any class of its
indebtedness for Borrowed Money; or
(3) enters into any composition or other arrangement for the benefit
of its creditors generally or any class of creditors; or
(4) is the subject of any voluntary or involuntary proceedings under
any law, regulation or procedure relating to reconstruction or
readjustment of its debts; or
40
Xxxxxxx & Xxxxxxx
(5) files a moratorium or has a moratorium declared in respect of
all or any class of its indebtedness for Borrowed Money.
(G) Insolvency proceedings
(1) Winding up:
(a) a meeting is convened; or
(b) a petition is presented (unless it is demonstrated to the
reasonable satisfaction of the Agent that the petition is
frivolous or vexatious and such petition is set aside
before the petition is advertised and in any event within
14 days of presentation); or
(c) an order is made; or
(d) a resolution is passed
for the dissolution, winding-up or bankruptcy of the Borrower or
HKTC or any Principal Subsidiary (except for the purposes of a
reconstruction or amalgamation whilst solvent on terms
previously approved in writing by the Agent); or
(2) Administration: a bona fide petition is presented for the
appointment of an administrator or provisional supervisor or
similar officer (if applicable) in relation to the Borrower or
HKTC or any Principal Subsidiary (unless it is demonstrated to
the reasonable satisfaction of the Agent that the petition is
frivolous or vexatious and such petition is set aside before the
petition is advertised and in any event within 14 days of
presentation); or
(3) Request by directors or members: the directors or the members of
the Borrower or HKTC or any Principal Subsidiary request the
appointment of a liquidator, receiver, receiver and manager,
administrative receiver, administrator, trustee, provisional
supervisor or similar official to the whole or any substantial
part of the assets of the Borrower or HKTC or such Principal
Subsidiary.
(H) Creditors' process and distress
(1) an encumbrancer takes possession of the whole or any substantial
part of the assets or undertaking of the Borrower or HKTC or any
Principal Subsidiary;
(2) a liquidator, receiver, receiver and manager, administrative
receiver, administrator, trustee or similar official is
appointed, of the whole or any substantial part of the assets or
undertaking of the Borrower or HKTC or any Principal Subsidiary;
(3) a distress, execution or other legal process is levied against
any of the assets of the Borrower or HKTC or any Principal
Subsidiary to recover assets with a book value in excess of
US$30,000,000 in aggregate, and is not discharged or paid out
within 10 Business Days.
41
Xxxxxxx & Xxxxxxx
(I) Expropriation
The expropriation of all or a substantial part of the Borrower's or
HKTC's or any Principal Subsidiary's assets by any governmental or
other competent authority.
(J) Auditors' report
The auditors qualify their report to any audited Financial Statements
(other than qualifications of a technical nature which are not
material to the financial position of the Borrower) (delivered under
clause 17.1 (Financial statements)) so as to cast doubt on their
accuracy in any material respect or on the ability of the Borrower or
HKTC or any Principal Subsidiary to continue as a going concern.
(K) Rescission
Any party to the Finance Documents (other than a Finance Party)
rescinds or purports to rescind any of them in whole or in part where
to do so would have a Material Adverse Effect.
(L) Revocation of Telecommunications Authorisation
The FTNS Licence is revoked or is suspended (and not reinstated,
renewed or replaced by a similar licence within 30 days after such
suspension or revocation) or is made subject to such conditions as
would have a Material Adverse Effect.
(M) Unlawfulness
It is or becomes unlawful for the Borrower to perform any of its
material obligations under the Finance Documents and such
non-performance has a Material Adverse Effect.
(N) Other Indebtedness
(1) In relation to the Borrower, any Indebtedness in respect of
Borrowed Money of the Borrower or any indebtedness for Borrowed
Money with a final maturity of less than one year from its date
of incurrence owed by the Borrower to any commercial bank or
other credit institution; or
(2) in relation to HKTC or its Principal Subsidiary, any
Indebtedness in respect of Borrowed Money of HKTC or such
Principal Subsidiaries or any indebtedness for Borrowed Money
with a final maturity of less than one year from its date of
incurrence owed by HKTC or such Principal Subsidiaries to any
commercial bank or other credit institution,
which in aggregate exceeds US$30,000,000 (or its equivalent) at any
time:
(i) is not paid on its due date (after the expiry of any
original grace period applicable thereto);
(ii) is declared due and payable before its stated maturity or
is placed on demand, in each case, by reason of an event of
default (howsoever described) or any circumstances arise as
a result of
42
Xxxxxxx & Xxxxxxx
which any such Indebtedness or indebtedness could be so
declared due and payable before its stated maturity date;
or
(iii) which is repayable on demand is not repaid on demand being
made.
(O) Material Adverse Change
There occurs a Material Adverse Change.
20.2 Acceleration
Upon the occurrence of an Event of Default and so long as it is Continuing
the Agent may, and shall if so directed by the Majority Lenders, by notice
to the Borrower:
(A) cancel the Total Commitments whereupon they shall immediately be
cancelled;
(B) declare that all or part of the Loans, together with accrued
interest, and all other amounts accrued under the Finance Documents
be immediately due and payable, whereupon they shall become
immediately due and payable; and/or
(C) declare that all or part of the Loan be payable on demand, whereupon
the Loan shall immediately become payable on demand by the Agent on
the instructions of the Majority Lenders.
20.3 Certain Events of Default regarding Principal Subsidiaries
For the purposes of clauses 20.1(F), (G), (H), (I) and (N), "Principal
Subsidiaries" shall be deemed to include any Borrower Group Company which
has incurred any Third Party Borrowings in respect of which the Borrower
has issued any guarantee or indemnity or other form of credit support.
PART 7: CHANGES TO PARTIES
21. CHANGES TO THE LENDERS
21.1 Assignments and transfers by the Lenders
Subject to this clause 21, a Lender (the "Existing Lender") may:
(A) assign any of its rights; or
(B) transfer by novation any of its rights and obligations,
under the Finance Documents to another bank or financial institution or
with the prior written consent of the Borrower to any other entity (the
"New Lender") provided that such transfer or assignment is in a minimum
amount of HK$20,000,000.
43
Xxxxxxx & Xxxxxxx
21.2 Conditions of assignment or transfer
(A) If a Lender assigns any rights under the Finance Documents in
accordance with clause 21.1 (Assignments and transfers by the
Lenders) then, subject to the assignee delivering to the Agent at
least 7 Business Days' (or such shorter period agreed by the Agent)
prior to the proposed Assignment Date specified in such undertaking
an undertaking substantially in the form of Schedule 5 (Form of
Assignment Undertaking) in the Agreed Terms that it will be bound by
the terms of the Finance Documents as a Lender, and paying the
assignment fee referred to in clause 21.3 (Assignment or transfer
fee), the assignee shall be substituted for the assignor and have the
same rights against the Borrower as it would have had if it had been
an original party to this Agreement as a Lender with the rights
assigned to it. Such undertaking shall contain the assignee's notice
details for the purpose of clause 31.2 (Addresses).
(B) A transfer will only be effective if the procedure set out in clause
21.5 (Procedure for transfer) is complied with.
(C) Each of the parties irrevocably authorises the Lenders to deliver,
and the Agent to receive, undertakings under clause 21.2(A) and/or
Transfer Certificates in accordance with clause 21.5 (Procedure for
transfer). In addition, each party (other than the Existing Lender
and the New Lender) irrevocably authorises the Agent to execute any
completed Transfer Certificates on its behalf.
(D) The Borrower shall enter into such additional documentation (if any)
required by the Agent or the Security Trustee to effect any
assignment or transfer in accordance with this clause 21.
The Agent shall distribute payments received by it in relation to the Loan
to the Lenders indicated in the records of the Agent as being entitled
thereto on the date on which such payment fell due (and, if that date is
the due date on which an assignment or transfer of such portion takes
effect, to the Lenders so indicated before such assignment or transfer
took effect).
21.3 Assignment or transfer fee
On the date of the Agent's receipt of the undertaking required under
clause 21.2(A) (Conditions of assignment or transfer) or of the Transfer
Certificate, the relevant New Lender shall pay a fee of HK$5,000 to the
Agent.
21.4 Limitation of responsibility of Existing Lenders
(A) Unless expressly agreed to the contrary, an Existing Lender makes no
representation or warranty and assumes no responsibility to a New
Lender for:
(1) the legality, validity, effectiveness, adequacy or
enforceability of the Finance Documents or any other documents;
(2) the financial condition, affairs, status or nature of the
Borrower or any of its Subsidiaries or the observance by the
Borrower of any term of the Finance Documents;
44
Xxxxxxx & Xxxxxxx
(3) the performance and observance by the Borrower of its
obligations under the Finance Documents or any other documents;
or
(4) the accuracy and/or completeness of any statements or
information (whether written or oral) made in or in connection
with or supplied to it in connection with any Finance Document
or any other document or supplied to it in connection with the
Borrower Group,
and any representations or warranties implied by law are excluded.
(B) Each New Lender confirms to the Existing Lender and the other Finance
Parties that it:
(1) has made (and shall continue to make) its own independent
investigation and assessment of the financial condition and
affairs of the Borrower and its related entities in connection
with its participation in this Agreement and has not relied and
will not rely on any information provided to it by the Existing
Lender or any Finance Party in connection with any Finance
Document;
(2) will continue to make its own independent appraisal of the
creditworthiness of the Borrower and its related entities whilst
any amount is or may be outstanding under the Finance Documents
or any Commitment is in force;
(3) has received copies of the Finance Documents and all
documentation and information required by it in connection with
this transaction; and
(4) has received copies of all outstanding consents and waiver
requests and will be bound by any decisions made by the Existing
Lender which have been communicated to the Agent prior to the
Transfer Date.
(C) Nothing in any Finance Document obliges an Existing Lender to:
(1) accept a re-transfer from a New Lender of any of the rights and
obligations assigned or transferred under this clause 21; or
(2) support any losses directly or indirectly incurred by the New
Lender by reason of the non-performance by the Borrower of its
obligations under the Finance Documents or otherwise.
21.5 Procedure for transfer
(A) If a Lender (an "Existing Lender") wishes to transfer any rights
and/or obligations under the Finance Documents in accordance with
clause 21.1 (Assignments and transfers by the Lenders) such transfer
will only be effective if the Agent receives three executed copies of
a Transfer Certificate signed by the Existing Lender(s) and the New
Lender(s) at least 7 Business Days prior to the proposed Transfer
Date specified in the Transfer Certificate (or such shorter period
agreed by the Agent). As soon as reasonably practicable after its
receipt of a duly completed Transfer Certificate appearing to comply
with the terms of this Agreement, the Agent shall execute that
Transfer Certificate.
(B) On the Transfer Date specified in the Transfer Certificate (or if
later, on
45
Xxxxxxx & Xxxxxxx
the date on which the Agent executes the Transfer Certificate):
(1) to the extent that the Existing Lender(s) elect(s) in the
Transfer Certificate to transfer rights and obligations under
the Finance Documents, the Borrower and the Existing Lender(s)
shall each be released from further obligations to the other and
their respective rights against each other cancelled (except for
rights accrued before the date on which the Transfer Certificate
takes effect);
(2) the Borrower and the New Lender(s) shall acquire rights against
each other and assume obligations towards each other which
differ from the rights and obligations so cancelled and released
only insofar as the Borrower and the New Lender(s) have acquired
and assumed them in place of the Borrower and the Existing
Lender(s);
(3) the New Lender(s) and the Finance Parties shall acquire the same
rights and assume the same obligations between themselves as
they would have acquired and assumed had the New Lender(s) been
original parties to the Finance Documents as Lender(s) with the
rights and obligations acquired and assumed as a result of such
transfer (and, to that extent, the Existing Lender(s) and the
Finance Parties shall each be released from further obligations
to each other under the Finance Documents); and
(4) the New Lender(s) shall become a party to the Finance Documents
as a "Lender".
21.6 Reference Banks
If a Reference Bank (or, if a Reference Bank is not a Lender, the Lender
of which it is an Affiliate) ceases to be one of the Lenders, the Agent
shall (after consultation with the Borrower) appoint another Lender or an
Affiliate of a Lender to replace that Reference Bank.
21.7 Sub-participations
Nothing in this Agreement restricts the ability of a Lender to
sub-contract an obligation if it remains liable under this Agreement for
that obligation.
21.8 Limitation of specified indemnities
If, at any time, any Lender assigns or transfers any of its rights,
benefits and obligations under this Agreement and, at the time of such
assignment or transfer, there arises an obligation on the part of the
Borrower under clause 11.2 (Tax gross-up) or clause 12 (Increased Costs)
to pay to such Lender or its assignee or transferee any amount in excess
of the amount it would have then been obliged to pay but for such
assignment or transfer, then the Borrower shall not be obliged to pay the
amount of such excess provided that this clause 21.8 shall not apply to
any assignment or transfer made (i) pursuant to clause 14.2 (Mitigation)
or (ii) with prior consent of the Borrower or (iii) at any time whilst an
Event of Default is Continuing.
46
Xxxxxxx & Xxxxxxx
21.9 Confidentiality
The Borrower agrees that the Finance Parties may at any time disclose such
information relating to the Borrower and other members of the Borrower
Group as shall come into their possession whether or not in relation to
the Facility:
(A) to any prospective assignee, New Lender or sub-participant;
(B) to their respective advisers, professional or otherwise;
(C) to the other Finance Parties or any Affiliate of a Finance Party;
(D) if required to do so by an order of a court in any jurisdiction;
(E) under any law or regulation or to any applicable regulatory authority
(including the Hong Kong Monetary Authority) in any jurisdiction; and
(F) where such information shall have already entered the public domain,
and in the case of sub-paragraphs (A), (B) and (C) above, subject to
requiring and receiving a written confidentiality undertaking
substantially in the form of Schedule 6 (Form of Confidentiality
Undertaking), a copy of which shall, as soon as practicable, be delivered
to the Borrower.
21.10 Agent's notification
The Agent shall as soon as practicable notify the Borrower of its receipt
of an undertaking under clause 21.2(A) (Conditions of assignment and
transfer) or upon execution of a Transfer Certificate under clause 21.5
(Procedure for transfer).
21.11 Universal succession
If a Lender is to be merged with any other person by universal succession,
that Lender shall, at its own cost, within 30 days of that merger furnish
to the Agent:
(A) a copy of a legal opinion issued by a qualified legal counsel
practising law in its jurisdiction of incorporation confirming that
all that Lender's assets, rights and obligations generally have been
duly vested in the succeeding entity who has succeeded to all
relationships as if those assets, rights and obligations had been
originally acquired, incurred or entered into by the succeeding
entity; and
(B) a written confirmation by the Agent's legal counsel that the laws of
the jurisdiction in which the Facility Office is located recognise
such merger by universal succession under the relevant foreign laws,
whereupon a transfer and novation of all that Lender's assets, rights and
obligations to its succeeding entity shall have been, or be deemed to have
been, duly effected as at the date of the said merger. If that Lender, in
a universal succession, does not comply with the requirements under this
clause 21.11, the Agent has the right to decline to recognise the
succeeding entity and demand that Lender and the succeeding entity to sign
and deliver a Transfer Certificate to the Agent evidencing the disposal of
all rights and obligations of that Lender to that succeeding entity.
47
Xxxxxxx & Xxxxxxx
22. CHANGES TO THE BORROWER
The Borrower may not assign any of its rights or transfer any of its
rights or obligations under the Finance Documents.
PART 8: THE FINANCE PARTIES
23. AGENT AND SECURITY TRUSTEE
23.1 Appointment
(A) Appointment: Each Lender appoints:
(1) the Agent to act as its agent in connection with this Agreement;
and
(2) the Security Trustee to act as its agent and trustee in relation
to the Security Documents;
and authorises each of the Agent and the Security Trustee:
(a) to execute on its behalf those Finance Documents or any
document or certificate relating thereto expressed by this
Agreement to be executed by the Agent or Security Trustee
on behalf of the Finance Parties;
(b) to exercise such rights, powers and discretions as are
specifically delegated to them by the terms of the Finance
Documents together with all reasonably incidental rights,
powers and discretions; and
(c) in the case of the Agent, to make or receive any payment on
its behalf as required by the terms of any of the Finance
Documents.
The Borrower shall be entitled to assume that the Agent and the
Security Trustee represent the Lender or the Majority Lenders (as the
case may be), and that all consents and notices given by the Agent or
the Security Trustee on their behalf are validly given.
(B) Chinese Wall: In acting as Agent or Security Trustee for the Lenders,
the respective Agent's or, as the case may be, the Security Trustee's
syndication division (or such other division as may undertake such
task) shall be treated as a separate entity from any other of its
divisions or departments and, despite the provisions of this clause
23, if any of the Agent or Security Trustee acts for or transacts
business with any member of the Borrower Group in any capacity in
relation to any other matter (including as a Lender under this
Agreement), any information given by any member of the Borrower Group
to any of the Agent or Security Trustee in such other capacity may be
treated as confidential by the Agent or, as the case may be, the
Security Trustee.
48
Xxxxxxx & Xxxxxxx
23.2 Powers
Each of the Agent and the Security Trustee and, in the case of paragraphs
(B) to (K), the Co-ordinating Arrangers and the Lenders, may:
(A) assume that:
(1) any representation made by the Borrower in or in connection with
the Finance Documents is true;
(2) no Event of Default or Default has occurred;
(3) the Borrower is not in breach of or default under its
obligations under any Finance Document; and
(4) any right, power, authority or discretion vested in any party or
the Majority Lenders has not been exercised;
unless the Agent or, as the case may be, the Security Trustee has in
its capacity as agent (or where relevant, as agent and trustee) for
the Lenders actually received written notice to the contrary from any
other party to this Agreement;
(B) assume that each New Lender's Facility Office is that identified in
the Transfer Certificate under which it became a party to this
Agreement until it has received from such New Lender a notice
designating some other office of such New Lender as its Facility
Office, and may act upon any such notice until the same is superseded
by a further such notice;
(C) engage and pay for the advice or services of any lawyers, accountants
or other advisers whose advice or services may seem necessary,
expedient or desirable to it and may rely upon any advice so
obtained;
(D) rely as to matters of fact which might reasonably be expected to be
within the knowledge of the Borrower upon a certificate or statement
signed by or on behalf of the Borrower;
(E) rely upon any communication or document believed by it to be genuine
and correct and to have been communicated or signed by the person by
whom it purports to be communicated or signed;
(F) refrain from exercising any right, power or discretion vested in it
under any Finance Document unless and until instructed by the
Majority Lenders or all of the Lenders (as the case may be) whether
or not such right, power or discretion is to be exercised and, if it
is to be exercised, as to the manner in which it should be exercised,
and it shall not be liable for acting or refraining from acting in
accordance with or in the absence of instructions from the Majority
Lenders or all of the Lenders (as the case may be);
(G) refrain from taking any step to protect or enforce the rights of any
Lender under any Finance Document and from beginning any legal action
or proceeding arising out of or in connection with any Finance
Document until it has been indemnified and/or secured as it may
require (whether by way of payment in advance or otherwise)
49
Xxxxxxx & Xxxxxxx
against all costs, claims, expenses (including legal fees) and
liabilities which it will or may expend or incur in complying with
such instructions;
(H) refrain from doing anything which would or might in its opinion be
contrary to any applicable law or any requirements (whether or not
having the force of law) of any governmental, judicial or regulatory
body or otherwise render it liable to any person, and it may do
anything which is in its opinion necessary to comply with any such
applicable law or requirement;
(I) do any act or thing in the exercise of any of its powers and duties
under the Finance Documents which may lawfully be done and which in
its absolute discretion it deems advisable for the protection and
benefit of the Finance Parties collectively including the investment
of monies in any investments authorised by any applicable law;
(J) perform any of its duties, obligations and responsibilities under the
Finance Documents by or through its personnel or agents;
(K) accept deposits from, lend money (secured or unsecured) to and
generally engage in any kind of banking or other business with any
member of the Borrower Group without any liability to account;
(L) carry on any banking or other business with any member of the
Borrower Group without liability to account as though it were not the
Agent or the Security Trustee and without notice to or consent of the
Lenders and shall be under no obligation to provide any information
regarding any member of the Borrower Group which it receives as a
result of such activities to any other Finance Party. With respect to
its participation in the Facility, the Agent and the Security Trustee
shall have the same rights and powers under this Agreement as any
other Lender and may exercise the same as though it were not the
Agent or the Security Trustee;
(M) deposit any instruments, documents or deeds delivered to it with any
Lender or professional custodian or with any Finance Party's legal
advisers and shall not be liable for any loss thereby incurred in the
absence of any gross negligence or wilful default by it; and
(N) procure that any investment or any part of the property charged or
assigned under the Security Documents or the proceeds thereof is held
and/or registered in the name of its nominee; and delegate from time
to time by power of attorney or otherwise to any person it thinks fit
any of its rights, trusts, powers, authorities or discretions vested
in it by any Finance Document which, in each case, relate to purely
administrative acts only and on any terms and subject to any
conditions or regulations as it thinks fit.
23.3 Duties
Each of the Agent and the Security Trustee shall:
(A) except as regards purely administrative acts, consult whenever
reasonably practicable with the Lenders before doing or refraining
from doing any act or thing in the exercise of its powers as agent
and/or trustee;
50
Xxxxxxx & Xxxxxxx
(B) as soon as practicable upon receipt inform each Lender of the
contents of any notice or document or other information (addressed to
all Lenders generally or which the Lenders are expressly entitled to
receive pursuant to the terms of this Agreement) received by it in
its capacity as Agent under this Agreement from the Borrower or as
Security Trustee under the Security Documents from the Borrower;
(C) promptly following receipt of the notice referred to below, notify
each Lender of the occurrence of any Default or Event of Default or
any material breach by the Borrower in the due performance of its
obligations under this Agreement or any Security Document which is
either a default in the payment of principal or interest of which the
Agent or, as the case may be, the Security Trustee (in its capacity
as such) has received notice from any other party to this Agreement;
(D) subject to the provisions of this clause 23 and except as stipulated
in clause 24 (Amendments and decisions), act in accordance with any
instructions given to it by the Majority Lenders;
(E) if so instructed by the Majority Lenders, except in circumstances set
out in clause 28.1 (Enforcement), refrain from exercising any right,
power or discretion vested in it under the Finance Documents; and
(F) refrain from beginning any legal action or proceedings in connection
with the Finance Documents on behalf of any Finance Party until such
Finance Party has given its written consent to the proposed action.
This clause relates to every consent to be given, decision to be taken,
discretions to be exercised, or determination to be made which is
expressed to be made or taken by the Agent or the Security Trustee, except
where the words "at the request of any Lender" or similar, are used, or
where the consent, decision or discretion to be made or exercised would
fall within the scope of clause 24.2 (Unanimous Consent) in which case the
Agent or the Security Trustee shall act accordingly. Any requirement that
such consent, decision or determination must be reasonable or that the
Agent or the Security Trustee is to "act reasonably" is to be construed as
an obligation on the Lenders granting such consent or making such a
decision or determination and not as an individual obligation binding on
the Agent in that capacity. The Agent's duties under the Finance Documents
are solely mechanical and administrative in nature.
23.4 Exoneration
Despite anything to the contrary expressed or implied in this Agreement,
none of the Agent, the Security Trustee, the Co-ordinating Arrangers or
the Lenders shall:
(A) be bound to enquire as to:
(1) whether or not any representation or warranty made by the
Borrower under or in connection with any Finance Document is
true;
(2) the occurrence or otherwise of any Event of Default or Default;
(3) the performance by the Borrower of its obligations under any
Finance Document;
51
Xxxxxxx & Xxxxxxx
(4) any breach or default by the Borrower of or under its
obligations under any Finance Document;
(B) be bound to account to any Finance Party for any fee or other sum or
the profit element of any sum received by it for its own account;
(C) be bound to disclose to any other person any information relating to
any member of the Borrower Group if such disclosure would or might in
its opinion constitute a breach of any law or regulation or be
otherwise actionable at the suit of any person;
(D) be under any fiduciary or other duty towards any Finance Party or
under any obligations (including any liability to hold any money paid
to it on trust or be liable to account for interest on such money)
other than those expressly provided for in clause 28.2 (Recoveries to
be held on trust) of this Agreement;
(E) be liable or responsible (in the absence of its own gross negligence
or wilful default):
(1) for any failure, omission, or defect in the due execution,
delivery, validity, legality, adequacy, performance,
enforceability, or admissibility in evidence of any Finance
Document or any communication, report or other document
delivered under any Finance Document; or
(2) in respect of its exercise or failure to exercise any of its
powers and duties under any Finance Document; or
(3) for the collectability of any sums payable under any Finance
Documents; or
(4) for any recital, statement, representation or warranty made by
any Borrower Group Company or any officer thereof, contained in
any Finance Document, or in any certificate, report, statement
or other document referred to or provided for in, or received by
it under or in connection with any Finance Document; or
(5) for the supervision of any person to whom it has delegated any
trusts, powers, authorities or discretions vested in it or (in
the absence of gross negligence or wilful default by the
Security Trustee or the Agent as the case may be) be in any way
liable for any loss incurred through the misconduct or default
of such delegate;
(F) be under any obligations other than those expressly provided for in
this Agreement and shall have no liability or responsibility of any
kind to:
(1) the Borrower arising out of or in relation to any failure or
delay in the performance or breach by any Finance Party (other
than itself) of any of its obligations under any Finance
Document; or
(2) any Finance Party arising out of or in relation to any failure
or delay in the performance or breach by the Borrower of any of
its obligations under any Finance Document; or
52
Xxxxxxx & Xxxxxxx
(G) be liable in any manner and each of them shall be fully protected if
it acts in accordance with the instructions of the Majority Lenders
in connection with the exercise of any right, power or discretion or
any matter not expressly provided for in the Finance Documents. Any
such instructions given by the Majority Lenders will be binding on
all the Finance Parties. In the absence of such instructions the
Agent or the Security Trustee may act as they consider to be in the
best interests of all the Finance Parties and in so doing shall be
fully protected.
23.5 Lenders' indemnity
Each Lender shall, on demand by the Agent or the Security Trustee,
indemnify the Agent or, as the case may be, the Security Trustee, against
any and all fees (to the extent properly chargeable by the Agent or, as
the case may be, the Security Trustee under any Finance Document but not
promptly recovered from the Borrower), costs, claims and expenses and
liabilities which the Agent or, as the case may be, the Security Trustee
may pay or incur (otherwise than by reason of its own gross negligence or
wilful misconduct) in acting in its capacity as agent or security trustee
for the Finance Parties. The cost of indemnifying the Agent and the
Security Trustee shall be borne by the Lenders in the proportions
determined in accordance with the definition of Majority Lenders. If a
Lender (referred to in this clause 23.5 as a "defaulting Lender") fails to
pay its due contribution under this indemnity, then the Agent or, as the
case may be, the Security Trustee may (without prejudice to its other
rights and remedies) deduct the amount due from the defaulting Lender from
any sums which are then or afterwards in its possession which would
otherwise be payable to the defaulting Lender.
23.6 Disclaimer
The Agent, the Security Trustee, the Co-ordinating Arrangers and the
Lenders accept no responsibility to any other Finance Party for the
accuracy and/or completeness of any information supplied in connection
with any Finance Document or for the legality, validity, effectiveness,
adequacy or enforceability of any Finance Document and the Agent, the
Security Trustee, the Co-ordinating Arrangers and the Lenders shall be
under no liability to any other Finance Party as a result of taking or
omitting to take any action in relation to any Finance Document (except in
the case of its gross negligence or wilful misconduct of the Agent, the
Security Trustee, the Co-ordinating Arrangers or the Lenders (as the case
may be)).
23.7 No actions against individuals
Each of the Finance Parties agree that it will not assert or seek to
assert against any director, officer or employee of any other Finance
Party any claim it may have against any of them in respect of the matters
referred to in this clause 23 and such directors, officers or employees
may rely on this clause.
23.8 Credit appraisals
It is agreed by each Finance Party that it has itself been, and will
continue to be, solely responsible for making its own independent
appraisal of and investigations into the financial condition,
creditworthiness, condition, affairs, status and nature of each member of
the Borrower Group, and, accordingly, each Lender confirms to each other
Finance Party that it has not relied, and will not rely, on any other
Finance Party:
53
Xxxxxxx & Xxxxxxx
(A) to check or enquire on its behalf into the adequacy, accuracy or
completeness of any information provided by or on behalf of any
member of the Borrower Group in connection with any Finance Document
and/or the transactions contemplated in the Finance Documents
(whether or not such information has been or is after the date of
this Agreement circulated to such Lender by another Finance Party);
or
(B) to assess or keep under review on its behalf the financial condition,
creditworthiness, condition, affairs, status or nature of any member
of the Borrower Group.
Each Lender acknowledges that none of the Agent-Related Persons has made
any representation or warranty to it, and that no act by the Agent taken
in the future, including any review of the affairs of the Borrower Group,
shall be deemed to constitute any representation or warranty by the Agent
or any Agent-Related Person to any Lender.
23.9 Extensions of protection to Agent-Related Persons
(A) All the provisions of this clause 23 and of any other provision of
this Agreement protecting or limiting the liability of an Agent, or
exonerating it from liability or responsibility, which may enure to
the benefit of an Agent shall also be deemed to be given for the
benefit of the Security Trustee, the Co-ordinating Arrangers, the
Senior Lead Arrangers and all Agent-Related Persons to whom they are
capable of relating or in respect of whom they are capable of taking
effect.
(B) For the avoidance of doubt, the guarantee, indemnity, exonerations
and other protections in favour of the Agent, the Security Trustee,
the Co-ordinating Arrangers, the Lenders and the Agent-Related
Persons contained in this Agreement and the other Finance Documents
shall take effect in respect of all events, action and omissions
occurring before the execution and completion of this Agreement as
well as events, actions and omissions occurring on or after its
execution and completion.
23.10 No duties
Except as specifically provided in this Agreement, the Co-ordinating
Arrangers and the Lenders have no duties or responsibilities under or in
connection with any Finance Document.
23.11 Foreign security
In relation to any Security Document governed by a law other than Hong
Kong law each Finance Party:
(A) shall execute and deliver any Security Document which, under
applicable law, cannot be entered into by the Security Trustee on its
behalf, for example, because the security constituted by the Security
Document must be entered into by it as creditor having a pro rata
claim of the claims secured thereby;
(B) grants the Security Trustee power of representation in relation to
the execution, enforcement and administration of the Security
Documents; and
(C) shall enter into such notarial deeds or other deeds or documents as
are required
54
Xxxxxxx & Xxxxxxx
under any applicable law relating to the security constituted by the
Security Documents to enable the Agent and the Security Trustee or
another attorney-in-fact to execute any Security Document on such
Finance Party's behalf and administer and enforce such security.
23.12 Security Trustee
(A) The Security Trustee hereby declares that during the period ending on
the earlier of the last day of the period of 80 years from the date
of this Agreement and the date that the Security Trustee releases the
trust property held by it unconditionally it shall hold the trust
property as trustee upon trust for the Finance Parties from time to
time and the obligations, rights and benefits vested or to be vested
in the Security Trustee by the Finance Documents or any document
entered into pursuant thereto shall (as well after as before
enforcement) be performed and (as the case may be) exercised in
accordance with this Agreement.
(B) The Borrower and each of the Finance Parties agree that the Security
Trustee shall be the joint creditor (together with the relevant
Finance Party) of each and every obligation of the Borrower towards
each of the Finance Parties under this Agreement, and that
accordingly the Security Trustee will have its own independent right
to demand performance by the Borrower of those obligations. However,
any discharge of any such obligation to one of the Security Trustee
or the relevant Finance Party shall, to the same extent, discharge
the corresponding obligation owing to the other.
(C) Without limiting or affecting the Security Trustee's rights (under
any of the Finance Documents against the Borrower or to act in the
protection or preservation of rights under or to enforce any Security
Document or to do any act reasonably incidental to any of the
foregoing), the Security Trustee agrees with each other Finance Party
severally that it will not exercise its rights as a joint creditor
with a Finance Party.
24. AMENDMENTS AND DECISIONS
24.1 Majority Lender decisions
Except as provided in clause 24.2 (Unanimous Consent), with the prior
written consent of the Majority Lenders, the Agent (or as the case may be,
the Security Trustee) and the Borrower may from time to time enter into
written amendments, supplements or modifications to the Finance Documents
(however fundamental) for the purpose of adding any provisions to the
Finance Documents or changing in any manner the rights and/or obligations
of all or any of the Borrower, the Agent and the Lenders, and:
(A) the Agent (or as the case may be, the Security Trustee) may execute
and deliver to the Borrower a written instrument waiving
prospectively or retrospectively, on such terms and conditions as the
Agent (or as the case may be, the Security Trustee) may specify in
such instrument, any of the requirements of any of the Finance
Documents;
(B) the Agent (or as the case may be, the Security Trustee) may effect,
on behalf of the Majority Lenders, an amendment or waiver to which
they have agreed;
(C) the Agent (or as the case may be, the Security Trustee) may effect,
on behalf of
55
Xxxxxxx & Xxxxxxx
any Finance Party, any amendment or waiver permitted by this clause;
and/or
(D) the Agent (or as the case may be, the Security Trustee) shall
promptly notify the other Parties of any amendment or waiver effected
under this clause and any such amendment or waiver shall be binding
on all the parties.
24.2 Unanimous consent
(A) An amendment or waiver that has the effect of changing or which
relates to:
(1) an increase or decrease in the amount of the Loan or a
lengthening or shortening of the Availability Period or any
amendment to the definition of the Repayment Date; or
(2) a reduction in the rate or rates of interest payable hereunder
or in the amount of or the due date for, interest, fees or any
other payment owing or to become owing to any of the Lenders
hereunder; or
(3) any provision relating to voluntary or mandatory prepayment or
scheduled payment of principal or interest; or
(4) the definition of Majority Lenders or this clause; or
(5) any release of a Security Document or any amendment, waiver,
discharge or termination which would prejudice the Lenders'
position under the Security Documents; or
(6) the provisions of clause 26 (Sharing Among Lenders); or
(7) any provision which expressly requires the consent of all the
Lenders; or
(8) any condition precedent to the availability for drawing of sums
hereunder; or
(9) clause 2.2 (Finance Party's rights and obligations) or clause 21
(Changes to the Lenders); or
(10) a change to the Borrower.
shall not be made without the prior written consent of all of the
Lenders.
(B) Regardless of any other provision in this Agreement, no amendment
shall be effective without the consent of the Agent, the
Co-ordinating Arrangers, the Lenders or as the case may be, the
Security Trustee, where any such waiver, amendment, supplement or
modification if it would otherwise amend, modify or waive any of the
rights of the Agent, the Co-ordinating Arrangers, the Lenders or as
the case may be, the Security Trustee under any of the Finance
Documents or subject any of them to any additional obligations under
such documents or amend any amount payable to them.
56
Xxxxxxx & Xxxxxxx
24.3 Costs
If the Borrower requests any amendment, supplement, modification or waiver
under clause 24.1 (Majority Lender decisions), or clause 24.2 (Unanimous
Consent) then the Borrower shall, within five Business Days of demand by
the Agent, reimburse the Agent for the account of itself and/or the
respective party for all costs and expenses (including, without
limitation, reasonable legal fees), incurred by any of the Agent or the
Security Trustee in the negotiation, preparation and execution of any
written instrument contemplated by clause 24.1 (Majority Lender decisions)
or clause 24.2 (Unanimous Consent).
24.4 Administrative determinations
The Agent may determine purely administrative matters without reference to
the Lenders.
24.5 Prior notice
Where this Agreement provides for any matter to be determined by reference
to the opinion of the Majority Lenders or to be subject to the consent or
request of the Majority Lenders or for any action to be taken on the
instructions of the Majority Lenders, such opinion, consent, request or
instructions shall only be regarded as having been validly given or issued
by the Majority Lenders if all the Lenders have been given three Business
Days' prior notice of the matter on which such opinion, consent, request
or instructions is sought but so that the Borrower shall be entitled (and
bound), if so informed by the Agent, to assume that such notice has been
duly received by each Lender and that the relevant majority has been
obtained to constitute Majority Lenders whether or not this is the case.
24.6 Meaning of all Lenders
Where this Agreement or any other Finance Document, provides for any
matter to be determined by reference to the opinion of, or to be subject
to the consent of or request of all of the Lenders or the Lenders acting
unanimously or for any action to be taken on the instruction of all the
Lenders, such opinion, consent, request or instructions shall (as between
the Lenders) only be regarded as having been validly given or issued by
all the Lenders (or the Lenders acting unanimously) if all the Lenders
shall have received prior notice (the "Agent's Notice") of such matter
containing a request for written instructions from such Lender to be
received by the Agent or, as the case may be, the Security Trustee within
ten Business Days of the receipt of the Agent's Notice. If, in respect of
a Lender, the Agent or the Security Trustee, as appropriate:
(A) shall not have received written instructions in respect of such
matter from such Lender; and
(B) the Agent or the Security Trustee shall have received written
instructions in respect of such matter from Lenders constituting the
Majority Lenders,
in each case within such time period, such Lender shall be deemed to have
renounced and waived its right to make any such determination, approval,
consent or provide instructions to the Agent or the Security Trustee in
respect of such matter; shall not have any rights, recourse or remedy
against the Agent or the Security Trustee in respect of such matter; and
shall be bound (as shall the Borrower) by the determination, approval,
consent or instructions of the other Lenders in respect of such matter. If
the Agent gives
57
Xxxxxxx & Xxxxxxx
written notice to the Borrower or any other Borrower Group Company that
such unanimous consent has been obtained from all of the Lenders then the
Borrower shall be entitled to assume that all the Lenders acted
unanimously.
24.7 Lenders to act reasonably
If any provision of any Finance Document is made subject to or requires
the consent of the Agent (or as the case may be, the Security Trustee) and
the Agent (or as the case may be, the Security Trustee) is required by
such Finance Document to act reasonably when considering whether its
consent should be granted, each of the Lenders agrees to act reasonably
when the Agent (or as the case may be, the Security Trustee) seeks its
instructions in respect of the granting of such consent.
25. RETIREMENT OF AGENT AND SECURITY TRUSTEE
25.1 Notice of resignation
Subject to this clause 25, any of the Agent or the Security Trustee may
(and, at the request of the Majority Lenders shall) give notice of its
wish to resign at any time by giving at least 30 days' prior written
notice to the Borrower and the other Finance Parties and, in the case of
the resignation of the Security Trustee, any other beneficiary under the
Security Documents.
25.2 Appointment of successor
If the Agent or the Security Trustee gives notice under clause 25.1
(Notice of resignation), then the Majority Lenders, after consultation
with the Borrower, may in writing appoint a successor with an office in
Hong Kong. If no such successor is appointed or has not accepted office
within 30 days of the date of service of the notice of resignation as
replacement Agent or Security Trustee (as the case may be) the Agent or
the Security Trustee (as the case may be) may, after consultation with the
Borrower, appoint a successor for itself.
25.3 Provisions relating to successor
(A) Upon such appointment in writing and after execution by such
successor of such documents as may be necessary to transfer and vest
in the new Agent or Security Trustee (as the case may be) all the
rights and obligations of the retiring Agent or Security Trustee (as
the case may be), the retiring Agent or Security Trustee (as the case
may be) shall be discharged from any further obligations (but not,
for the avoidance of doubt, from any liability which such party shall
have actually incurred at the date of such retirement) under the
Finance Documents (but shall remain entitled to the benefit of clause
23 (Agent and Security Trustee)) and its successor and each of the
other parties shall have the same rights and obligations amongst
themselves as they would have had if such successor had been an
original party to the Finance Documents; and
(B) the costs, charges and expenses of the resigning Agent or Security
Trustee shall be discharged if recoverable under the provisions of
this Agreement.
58
Xxxxxxx & Xxxxxxx
25.4 Transfer to Affiliates
Notwithstanding the above, the Agent and the Security Trustee may transfer
their roles to an Affiliate of the Agent and the Security Trustee without
the need to obtain the consent of the Finance Parties, provided that the
Agent and the Security Trustee give at least 30 days notice of such
transfer to the Borrower and the Finance Parties.
26. SHARING AMONG LENDERS
26.1 Payments to Lenders
If a Lender (a "Recovering Lender") receives or recovers any amount from
the Borrower other than in accordance with clause 27 (Payment mechanics)
and applies that amount to a payment due under the Finance Documents then:
(A) the Recovering Lender shall, within three Business Days, notify
details of the receipt or recovery, to the Agent;
(B) the Agent shall determine whether the receipt or recovery is in
excess of the amount the Recovering Lender would have been paid had
the receipt or recovery been received or made by the Agent and
distributed in accordance with clause 27 (Payment mechanics), without
taking account of any Tax which would be imposed on the Agent in
relation to the receipt, recovery or distribution; and
(C) the Recovering Lender shall, within three Business Days of demand by
the Agent, pay to the Agent an amount (the "Sharing Payment") equal
to such receipt or recovery less any amount which the Agent
determines may be retained by the Recovering Lender as its share of
any payment to be made, in accordance with clause 27.5 (Partial
payments).
26.2 Redistribution of payments
The Agent shall treat the Sharing Payment as if it had been paid by the
Borrower and distribute it between the Finance Parties (other than the
Recovering Lender) in accordance with clause 27.5 (Partial payments).
26.3 Recovering Lender's rights
(A) On a distribution by the Agent under clause 26.2 (Redistribution of
payments), the Recovering Lender will be subrogated to the rights of
the Finance Parties which have shared in the redistribution.
(B) If and to the extent that the Recovering Lender is not able to rely
on its rights under paragraph (A) above, the Borrower shall be liable
to the Recovering Lender for a debt equal to the Sharing Payment
which is immediately due and payable.
26.4 Reversal of redistribution
If any part of the Sharing Payment received or recovered by a Recovering
Lender becomes repayable and is repaid by that Recovering Lender, then:
(A) each Lender which has received a share of the relevant Sharing
Payment pursuant
59
Xxxxxxx & Xxxxxxx
to clause 26.2 (Redistribution of payments) shall, upon request of
the Agent, pay to the Agent for account of that Recovering Lender an
amount equal to its share of the Sharing Payment (together with an
amount as is necessary to reimburse that Recovering Lender for its
proportion of any interest on the Sharing Payment which that
Recovering Lender is required to pay); and
(B) that Recovering Lender's rights of subrogation in respect of any
reimbursement shall be cancelled and the Borrower will be liable to
the reimbursing Lender for the amount so reimbursed.
26.5 Exceptions
(A) This clause 26 shall not apply to the extent that the Recovering
Lender would not, after making any payment pursuant to this clause,
have a valid and enforceable claim against the Borrower.
(B) A Recovering Lender is not obliged to share with any other Lender any
amount which the Recovering Lender has received or recovered as a
result of taking legal or arbitration proceedings, if:
(1) it notified the other Lenders of the legal or arbitration
proceedings; and
(2) the other Lender had an opportunity to participate in those
legal or arbitration proceedings but did not do so as soon as
reasonably practicable having received notice or did not take
separate legal or arbitration proceedings.
27. PAYMENT MECHANICS
27.1 Payments to the Agent
(A) On each date on which a payment is due from the Borrower or any
Lender under this Agreement or any other Finance Document, the
Borrower or that Lender shall make such payment to the Agent by 11:00
a.m. in immediately available funds to such account of the Agent in
Hong Kong in Hong Kong Dollars as the Agent may have specified for
this purpose.
(B) Payments of principal, interest, default interest, commitment fee,
Taxes, Increased Costs, Unpaid Sums and Break Costs shall be made in
Hong Kong Dollars.
(C) Any payment of losses, costs, Taxes and expenses shall be paid in the
currency in which they were incurred.
27.2 Distributions by the Agent
Each payment received by the Agent under the Finance Documents for another
party shall, subject to clause 27.3 (Distributions to the Borrower) and
clause 27.4 (Clawback) be made available by the Agent as soon as
practicable after receipt to the party entitled to receive payment in
accordance with this Agreement (in the case of a Lender, for the account
of its Facility Office), to such account as that party may notify to the
Agent by not less than five Business Days' notice being an account with a
bank in the principal financial centre of the country of that currency.
60
Xxxxxxx & Xxxxxxx
27.3 Distributions to the Borrower
The Agent may (with the consent of the Borrower or in accordance with
clause 29 (Set-off) apply any amount received by it for the Borrower in or
towards payment (on the date and in the currency and funds of receipt) of
any amount due from the Borrower under the Finance Documents or in or
towards purchase of any amount of any currency to be so applied.
27.4 Clawback
(A) Where a sum is to be paid to the Agent under the Finance Documents
for another party, the Agent is not obliged to pay that sum to that
other party (or to enter into or perform any related exchange
contract) until it has been able to establish to its satisfaction
that it has actually received that sum.
(B) If the Agent pays an amount to another party and it proves to be the
case that the Agent had not actually received that amount, then the
party to whom that amount (or the proceeds of any related exchange
contract) was paid by the Agent shall on demand refund the same to
the Agent together with interest on that amount from the date of
payment to the date of receipt by the Agent, calculated by the Agent
to reflect its cost of funds.
27.5 Partial payments
(A) If the Agent receives a payment that is insufficient to discharge all
the amounts then due and payable by the Borrower under the Finance
Documents, the Agent shall apply that payment towards the obligations
of the Borrower under the Finance Documents in the following order:
(1) first, in or towards payment pro rata of any unpaid fees, costs
and expenses of the Agent and the Security Trustee under the
Finance Documents;
(2) secondly, in or towards payment pro rata of any accrued interest
or commission due but unpaid under this Agreement;
(3) thirdly, in or towards payment pro rata of any principal due but
unpaid under this Agreement; and
(4) fourthly, in or towards payment pro rata of any other sum due
but unpaid under the Finance Documents.
(B) The Agent shall, if so directed by the Majority Lenders, vary the
order set out in paragraphs (A)(2) to (4) above.
(C) Paragraphs (A) and (B) above will override any appropriation made by
the Borrower.
27.6 No set-off by the Borrower
All payments to be made by the Borrower under the Finance Documents shall
be calculated and be made without (and free and clear of any deduction
for) set-off or counterclaim.
61
Xxxxxxx & Xxxxxxx
28. ENFORCEMENT OF SECURITY AND DISTRIBUTION OF RECOVERIES
28.1 Enforcement
The Security Trustee shall (subject to the provisions contained in clause
23.5 (Lenders' indemnity)) to the extent practicable use all reasonable
endeavours to enforce the security constituted by the Security Documents
at the direction of the Majority Lenders, if the Loan has been declared to
be immediately due and payable by the Agent under clause 20.2
(Acceleration) and the Agent or the Security Trustee may in its discretion
invoke the requirements of clause 23.2(G) (Powers) as a precondition to
any such action.
28.2 Recoveries to be held on trust
The Security Trustee shall hold the Recoveries on trust for distribution
to the Finance Parties in accordance with the provisions of clause 28.5
(Application of recoveries) and shall hold the security constituted by the
Security Documents on trust for the Finance Parties to give effect to this
Agreement and shall exercise its rights, powers and duties under the
Security Documents (and particularly those concerned with the protection
and enforcement of the security afforded by such documents) and/or under
this Agreement for the benefit of all Finance Parties.
28.3 Perpetuity period
The perpetuity period applicable to all trusts declared by this Agreement
shall be 80 years.
28.4 Payment of Taxes
Each of the Agent and the Security Trustee shall be entitled to make the
deductions and withholdings (on account of Taxes or otherwise) from
payments to the Agent under the Finance Documents or any other Finance
Party, which it is required by any applicable law to make and to pay all
Taxes assessed against it in respect of any property charged or assigned
pursuant to the Security Documents or by virtue of its capacity as agent
or trustee or any act done by it in such capacity. The Borrower agrees
that the obligations secured by the Security Documents will only be
discharged by virtue of receipt or recovery by the Security Trustee of
monies and payments made by the Security Trustee to the extent the
relevant Finance Party actually receives monies and payments from the
Security Trustee.
28.5 Application of recoveries
All sums recovered by the Agent, the Agent, the Security Trustee or any of
the Lenders shall be applied as follows:
(A) first, to pay to the Agent and the Security Trustee the amount of any
fees due from the Borrower and in addition such sums as shall be
necessary to reimburse each of the Agent and the Security Trustee for
all costs (including legal costs), charges and expenses properly
incurred by it in its capacity as such under or in connection with
the Finance Documents and to indemnify each of them fully against any
obligations or liabilities incurred by it in its capacity as Agent
and Security Trustee respectively; and
(B) second, in accordance with the provisions of clause 27.5(A).
62
Xxxxxxx & Xxxxxxx
PART 9: MISCELLANEOUS
29. SET-OFF
A Finance Party may set off any matured obligation due from the Borrower
under the Finance Documents (to the extent beneficially owned by that
Finance Party) against any matured obligation owed by that Finance Party
to the Borrower, regardless of the place of payment, booking branch or
currency of either obligation. If the obligations are in different
currencies, the Finance Party may convert either obligation at a market
rate of exchange in its usual course of business for the purpose of the
set-off.
30. CONDUCT OF BUSINESS BY THE FINANCE PARTIES
No provision of this Agreement will:
(A) interfere with the right of any Finance Party to arrange its affairs
(tax or otherwise) in whatever manner it thinks fit;
(B) oblige any Finance Party to investigate or claim any credit, relief,
remission or repayment available to it or the extent, order and
manner of any claim; or
(C) oblige any Finance Party to disclose any information relating to its
affairs (tax or otherwise) or any computations in respect of Tax.
31. NOTICES
31.1 Communications through the Agent
Save as expressly provided to the contrary in this Agreement, any
communication or document from or to any Finance Party from or to any
other party to this Agreement shall be sent in writing to or through the
Agent.
31.2 Addresses
Any notices, demands, proceedings or other documents made in writing to be
sent to any party to this Agreement under this Agreement shall be
addressed to such party at the address or facsimile number and marked for
the attention of the person (if any) from time to time designated by that
party in writing to the Agent (or, in the case of the Agent, by it to each
other party to this Agreement) for the purpose of this Agreement. The
initial address and facsimile number and person(s) (if any) so designated
by each party are set out under its name at the end of this Agreement. The
initial address and facsimile number and person(s) (if any) so designated
by a New Lender are those set out at the end of the relevant Transfer
Certificate.
31.3 Deeming provisions
(A) Any communication to the Borrower or to any Finance Party shall be
deemed to have been received by that Borrower or that Finance Party:
(1) if delivered by hand, at the time of actual delivery;
63
Xxxxxxx & Xxxxxxx
(2) if transmitted by facsimile, at the time the facsimile
transmission report (or other appropriate evidence) confirming
that the facsimile transmission has been transmitted to the
addressee is received by the sender; and
(3) if sent by post at noon on the second Business Day (in the case
of an address in Hong Kong) or the fifth Business Day (in the
case of an address outside Hong Kong) following the day of
posting and shall be effective even if it is misdelivered or
returned undelivered.
In proving such service it shall be sufficient to prove that personal
delivery was made, or that the envelope containing the communication
was correctly addressed and posted, or that a facsimile transmission
report (or other appropriate evidence) was obtained that the
facsimile had been transmitted to the addressee.
(B) Any communication to the Agent or the Security Trustee shall be
deemed to have been given only on actual receipt by the Agent or the
Security Trustee respectively.
32. CALCULATIONS AND CERTIFICATES
32.1 Accounts
In any litigation or arbitration proceedings arising out of or in
connection with a Finance Document, the entries made in the accounts
maintained by a Finance Party are prima facie evidence of the matters to
which they relate.
32.2 Certificates and determinations
Any certification or determination by a Finance Party of a rate or amount
under any Finance Document is, in the absence of manifest error,
conclusive evidence of the matters to which it relates. Each Finance Party
in making any certification or determination shall act in good faith.
32.3 Day count convention
Any interest, commission or fee accruing under a Finance Document will
accrue from day to day and is calculated on the basis of the actual number
of days elapsed and a year of 365 days.
33. PARTIAL INVALIDITY
If, at any time, any provision of the Finance Documents is or becomes
illegal, invalid or unenforceable in any respect under any law of any
jurisdiction, neither the legality, validity or enforceability of the
remaining provisions nor the legality, validity or enforceability of such
provision under the law of any other jurisdiction will in any way be
affected or impaired.
34. REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of any
Finance Party, any right or remedy under the Finance Documents shall
operate as a waiver, nor shall any single or partial exercise of any right
or remedy prevent any further or other exercise or the
64
Xxxxxxx & Xxxxxxx
exercise of any other right or remedy. The rights and remedies provided in
this Agreement are cumulative and not exclusive of any rights or remedies
provided by law.
35. COUNTERPARTS
Each Finance Document may be executed in any number of counterparts, and
this has the same effect as if the signatures on the counterparts were on
a single copy of the Finance Document.
PART 10: GOVERNING LAW AND ENFORCEMENT
36. GOVERNING LAW
This Agreement is governed by and construed in accordance with the Laws of
Hong Kong.
37. ENFORCEMENT
Jurisdiction of Hong Kong courts:
(A) The courts of Hong Kong have exclusive jurisdiction to settle any
dispute arising out of or in connection with this Agreement
(including a dispute regarding the existence, validity or termination
of this Agreement) (a "Dispute").
(B) The Parties agree that the courts of Hong Kong are the most
appropriate and convenient courts to settle Disputes and accordingly
no party will argue to the contrary.
(C) This clause 37 is for the benefit of the Finance Parties only. As a
result, no Finance Party shall be prevented from taking proceedings
relating to a Dispute in any other courts with jurisdiction. To the
extent allowed by law, the Finance Parties may take concurrent
proceedings in any number of jurisdictions.
65
Xxxxxxx & Xxxxxxx
SCHEDULE 1: THE LENDERS
-------------------------------------------------------------------------------
Name of Lenders Commitment / HK$
-------------------------------------------------------------------------------
AGRICULTURAL BANK OF CHINA, HONG KONG BRANCH 780,000,000
-------------------------------------------------------------------------------
BANK OF CHINA (HONG KONG) LIMITED 663,000,000
-------------------------------------------------------------------------------
THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED 468,000,000
-------------------------------------------------------------------------------
STANDARD CHARTERED BANK 390,000,000
-------------------------------------------------------------------------------
CREDIT AGRICOLE INDOSUEZ, HONG KONG BRANCH 390,000,000
-------------------------------------------------------------------------------
HANG SENG BANK LIMITED 312,000,000
-------------------------------------------------------------------------------
TOTAL: 3,003,000,000
-------------------------------------------------------------------------------
66
Xxxxxxx & Xxxxxxx
SCHEDULE 2: CONDITIONS PRECEDENT
1. Borrower Corporate Documents
(A) Certified copies of the certificate of incorporation, certificate of
incorporation on change of name (if any) and up-to-date memorandum
and articles of association of the Borrower.
(B) A certified copy of the minutes of a meeting of the executive
committee of the board of directors of the Borrower at which
resolutions were passed:
(1) approving the terms of, and the transactions contemplated by,
the Finance Documents to which it is a party and resolving that
it executes the Finance Documents to which it is a party;
(2) authorising a specified person or persons to execute the Finance
Documents to which it is a party on its behalf; and
(3) authorising a specified person or persons, on its behalf, to
sign and/or despatch all documents and notices (including the
Drawdown Notice and any Selection Notice) to be signed and/or
despatched by it under or in connection with the Finance
Documents to which it is a party.
(C) A specimen of the signature of each person authorised by the
resolutions referred to in paragraph (B) above.
(D) The Original Financial Statements.
(E) A certificate signed by a director of the Borrower to the effect that:
(1) the requisite resolutions of the executive committee of its
board of directors have been duly and properly passed and are
attached;
(2) the resolutions in paragraph (B) are still in effect and have
not been varied or rescinded; and
(3) borrowing the Total Commitments would not cause any borrowing or
similar limit binding on the Borrower to be exceeded.
2. Legal opinions
(a) A legal opinion of Lovells, legal advisers to the Finance Parties,
addressed to the Agent (for and on behalf of itself, the Lenders and
the Security Trustee), as to Hong Kong Law, substantially in the form
distributed to such parties prior to signing this Agreement which
will include customary assumptions and reservations.
(b) A legal opinion of Xxxxxxx & Xxxxxxx, legal advisers to the Borrower,
addressed to the Agent (for and on behalf of itself, the Lenders, and
the Security Trustee) substantially in the form distributed to such
parties prior to signing this Agreement which will include customary
assumptions and reservations.
67
Xxxxxxx & Xxxxxxx
3. Other documents and evidence
(A) All Fee Letters duly executed by the Borrower.
(B) The fees, costs and expenses then due from the Borrower pursuant to
clause 10 (Fees) and clause 15 (Costs and expenses) have been paid
(which the Agent will be entitled to assume unless it has received
written notice to the contrary from any other Lender hereto).
(C) Executed copies of each Finance Document (together with all ancillary
documents relating thereto).
(D) A list of Encumbrances in existence on or prior to the date of this
Agreement created by HKTC or any Principal Subsidiary executed by an
authorised signatory of the Borrower.
68
Xxxxxxx & Xxxxxxx
SCHEDULE 3: NOTICES
PART 1: DRAWDOWN NOTICE
From: PCCW Limited
To: Agent
Date: [o]
Dear Sirs
HK$3,003,000,000 Term Loan Facility Agreement dated 14 March 2003 with PCCW
Limited as borrower (the "Facility Agreement")
We refer to the Facility Agreement (as the same may from time to time be
amended, varied, supplemented, restated or novated). Terms defined in the
Facility Agreement shall have the same meanings when used in this notice.
We:
(a) give you notice that we request for an advance under the Facility in an
amount of HK$[oinsert amount] on [oinsert date];
(b) request that the proceeds of such advance are to be made available by
credit directly to the following account:
[o]
(c) confirm that the first Interest Period of such advance shall be
[one/two/three/six/longer period] Month(s) [provided that, if this request
for a 6 month or longer period is not accepted by the Lenders, we shall be
deemed to have requested the Interest Period of [one/two/three] Month(s)
being the Fallback Period];
(d) confirm that the representations and warranties referred to and deemed to
be repeated in accordance with clause 16.18 (Repetition) of the Facility
Agreement are true and accurate as if made on the date of this notice with
reference to the facts and circumstances now existing;
(e) confirm that no Default is Continuing or would result from the making of
such advance; and
(f) no Material Adverse Change has occurred since the date of the Facility
Agreement.
This Drawdown Notice is irrevocable and is governed by Hong Kong law.
Yours faithfully
For and on behalf of
PCCW Limited
........................................
Name:
Title:
69
Xxxxxxx & Xxxxxxx
Part 2: Selection Notice
From: PCCW Limited
To: Agent
Date: [o]
Dear Sirs
HK$3,003,000,000 Term Loan Facility Agreement dated 14 March 2003 with PCCW
Limited as borrower (the "Facility Agreement")
We refer to the Facility Agreement (as the same may from time to time be
amended, supplemented, varied, replaced, restated or novated). Terms defined in
the Facility Agreement have the same meanings when used in this notice.
1. We refer to the Loan with an Interest Period ending on [o].
2. We request that the next Interest Period for the Loan is [o] unless, if
available, this is a 6 Month or longer period and such request is not
accepted by the Lenders, in which case we shall be deemed to have
requested the Interest Period of [o one/two/three] Month(s) being the
Fallback Period.
3. This Selection Notice is irrevocable and is governed by Hong Kong law.
Yours faithfully
For and on behalf of
PCCW Limited
........................................
Name:
Title:
70
Xxxxxxx & Xxxxxxx
SCHEDULE 4: FORM OF TRANSFER CERTIFICATE
To: The Hongkong and Shanghai Banking Corporation Limited as Agent
From: [The Existing Lender] (the "Existing Lender") and [The New Lender]
(the "New Lender")
Date: [o]
Dear Sirs
HK$3,003,000,000 Term Loan Facility Agreement dated 14 March 2003 with PCCW
Limited as borrower (the "Facility Agreement")
We refer to the Facility Agreement (as the same may from time to time be
amended, varied, supplemented, restated or novated). Terms defined in the
Facility Agreement shall have the same meanings when used in this notice.
1. We refer to clause 21.5 (Procedure for transfer) of the Facility
Agreement:
(A) The Existing Lender and the New Lender agree to the Existing Lender
and the New Lender transferring by novation all or part of the
Existing Lender's Commitment, rights and obligations referred to in
the Schedule in accordance with clause 21.5 (Procedure for transfer).
(B) The proposed Transfer Date is [o].
(C) The Facility Office and address, fax number and attention details for
notices of the New Lender for the purposes of clause 31.2 (Addresses)
are set out in the Schedule.
2. The New Lender expressly acknowledges the limitations on the Existing
Lender's obligations set out in paragraph (C) of clause 21.4 (Limitation
of responsibility of Existing Lenders) and the provisions regarding
outstanding waivers and consents in sub-paragraph (B)(4) of clause 21.4.
3. This Transfer Certificate is governed by Hong Kong law.
71
Xxxxxxx & Xxxxxxx
THE SCHEDULE
Details of Participation to be transferred
Existing Lender's Commitment Portion of Commitment Transferred
under the Facility
[o] [o]
Interest Period
[o]
Administrative Details of New Lender
Name of New Lender:
Facility Office:
Address for service of notices (if different):
Account for payments:
Telephone:
Telex:
Facsimile:
Attention:
Date: ________________________________ Date: _______________________________
SIGNED by ___________________________ SIGNED by __________________________
For and on behalf of [Existing Lender] For and on behalf of [New Lender]
Date: ________________________________
SIGNED by ___________________________
For and on behalf of the Agent and all
the other parties to the Facility
Agreement [Agent]
72
Xxxxxxx & Xxxxxxx
SCHEDULE 5: FORM OF ASSIGNMENT UNDERTAKING
To: (1) The Hongkong and Shanghai Banking Corporation Limited (as Agent)
Xxxxx 00
0 Xxxxx'x Xxxx Xxxxxxx
Xxxx Xxxx
Xxxxxxxxx: HSBC Agency Department
(2) PCCW Limited
00xx Xxxxx, XXXX Xxxxx
XxxXxx Xxxxx
000 Xxxx'x Xxxx
Xxxxxx Xxx
Xxxx Xxxx
Attention: Company Secretary
[o Date]
Assignee's Undertaking
This Assignee's Undertaking relates to a facility agreement (the "Agreement",
which expression shall include any amendments to it in force from time to time)
dated 14 March 2003 between PCCW Limited as Borrower, the financial
institutions listed therein as Co-ordinating Arrangers, the financial
institutions listed in Schedule 1 of the Agreement as Lenders and The Hongkong
and Shanghai Banking Corporation Limited as Agent and Security Trustee. Terms
defined in the Agreement shall have the same meanings in this Assignee's
Undertaking.
[o*insert name of Assignor Bank*] (the "Assignor")
(a) confirms that the details appearing in the attached Schedule are
correct; and
(b) assigns to [o*insert name of Assignee Bank*] (the "Assignee") the
portion of the Loan and the undrawn Commitments specified in the
attached Schedule by countersigning and delivering this Assignee's
Undertaking to the Agent at its address for the service of notice
specified in the Agreement.
1. The Assignee requests the Agent to accept this Assignee's Undertaking as
being delivered under and for the purpose of clause 21.2(B) of the
Agreement so as to take effect in accordance with the terms of such clause
on [o*insert date of assignment*] (the "Assignment Date") [or on such
later date as may be determined in accordance with its terms].
2. The Assignee undertakes to the Agent, the Assignor and each of the other
parties to the Agreement that it will be bound by the terms of the Finance
Documents as a Lender after delivery of this Assignee's Undertaking to the
Agent and after satisfaction of the conditions (if any) subject to which
this Assignee's Undertaking is expressed to take effect.
3. The Assignee shall be substituted for the Assignor in respect of all of
the rights of the Assignor under Finance Documents and have the same
rights against the Borrower as it would have had if it had been an
original party to the Agreement.
73
Xxxxxxx & Xxxxxxx
4. The Assignee confirms that:
(a) it has received copies of the Finance Documents and all other
documentation and information required by the Assignee in connection
with the transactions contemplated by this Assignee's Undertaking;
(b) it has made and will continue to make its own assessment of the
adequacy, legality, enforceability and validity of the Finance
Documents and this Assignee's Undertaking and has not relied and will
not rely on the Agent or any statements made by it in that respect;
(c) it has made and will continue to make its own credit assessment of
the Borrower and the other parties to the Finance Documents and has
not relied and will not rely on the Agent or any statements made by
the Agent in that respect; and
(d) the Agent shall not have any liability or responsibility to the
Assignee in respect of any of the foregoing matters.
5. The Assignor makes no representation or warranty and assumes no
responsibility with respect to the adequacy, legality, enforceability or
validity of any Finance Document and assumes no responsibility for the
financial condition of the Borrower or any other party to any Finance
Document or for the performance and observance by the Borrower or any
other such party of any of its obligations under any Finance Document and
all such conditions and warranties, whether expressed or implied by law or
otherwise, are excluded.
6. Nothing in this Assignee's Undertaking, any Finance Document obliges the
Assignor to:
(a) accept a re-assignment from the Assignee of any of the rights and/or
obligations assigned, transferred or novated under clause 21 (Changes
to the Lenders) of the Agreement; or
(b) support any losses incurred by the Assignee by reason of the
non-performance by the Borrower of any of its obligations under any
Finance Document or otherwise.
7. This Assignee's Undertaking and the rights and obligations of the parties
under it shall be governed by and construed in accordance with the law of
Hong Kong.
Note: This Assignee's Undertaking is not a security, bond, note, debenture,
investment or other similar instrument.
AS WITNESS the hands of the authorised signatories of the parties the day and
year first above written.
74
Xxxxxxx & Xxxxxxx
SCHEDULE TO ASSIGNEE'S UNDERTAKING
Details of Participation to be assigned
The Loan/Assignor's undrawn Commitment Portion of Commitment Assigned
under the Facility
[o] [o]
Interest Period
[o]
Administrative Details of Assignee
Name of Assignee:
Facility Office:
Address for service of
notices (if different):
Account for payments:
Telephone:
Facsimile No:
Attention:
Dated: ...................... Dated: ......................
SIGNED by ................... SIGNED by ...................
for and on behalf of for and on behalf of
[*Assignor Bank*] [*Assignee Bank*]
75
Xxxxxxx & Xxxxxxx
SCHEDULE 6: FORM OF CONFIDENTIALITY UNDERTAKING
PCCW Limited
00xx Xxxxx, XXXX Xxxxx
XxxXxx Xxxxx
000 Xxxx'x Xxxx
Xxxxxx Xxx
Xxxx Xxxx
Attention: Company Secretary
Date: [o]
Dear Sirs
HK$3,003,000,000 Term Loan Facility Agreement dated 14 March 2003 with PCCW
Limited as borrower (the "Facility Agreement")
We refer to the above Facility Agreement, a copy of which has been (or will be
upon execution of this Undertaking) provided to us. Capitalised terms used
herein and not otherwise defined shall have the same meaning as in the Facility
Agreement. We may from time to time have access to a number of agreements and
other non-public, confidential proprietary information regarding the
Borrower/Borrower Group and the Facility (the "Confidential Information").
In consideration of your supplying or agreeing to the supply of, such
Confidential Information to us, by signature of this letter we undertake:
1. (a) to hold and ensure that our officers, employees and agents hold the
Confidential Information whether received in written, diskette or
electronic medium, in complete confidence and not disclose or
otherwise make available the whole or any part of the Confidential
Information to any third party;
(b) upon written demand from you, to:
(i) return the Confidential Information and any copies of it to you;
or
(ii) confirm to you in writing that it has been destroyed,
save that we shall be permitted to retain one copy of the
Confidential Information for legal, regulatory, compliance or
internal records purpose and we undertake to keep such information
confidential on the terms of this letter.
2. Subject to paragraph 1 above, we shall be entitled to disclose the
Confidential Information:
(a) to any affiliate, subsidiary or outside professional consultant in
connection with the Facility but only after first obtaining an
agreement of confidentiality in similar form to this letter from such
affiliate, subsidiary or consultant;
(b) where we are required to disclose the Confidential Information by law
or any regulatory or governmental authority.
76
Xxxxxxx & Xxxxxxx
3. Nothing in paragraphs 1(a) and (b) of this letter shall apply to any
Confidential Information which:
(a) at the time of its disclosure is in the public domain or comes into
the public domain for any reason except our failure, or failure on
the part of any Disclosee, to comply with the terms of this letter;
(b) is disclosed on a non-confidential basis;
(c) was lawfully in our possession prior to such disclosure; or
(d) is subsequently received by us from a third party without obligations
of confidentiality.
4. We acknowledge and agree that you may be irreparably harmed by the breach
of the terms of this letter and that damages may not be an adequate
remedy.
5. Our obligations under this letter shall terminate at such time as we
become a party to the Facility Agreement and bound by the terms thereof.
This letter shall be governed by Hong Kong law.
Yours faithfully
For and on behalf of
_______________________
[Authorized Signatory]
[Title]
77
Xxxxxxx & Xxxxxxx
SCHEDULE 7: FORM OF COMPLIANCE CERTIFICATE
To: THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED
(as Agent for the Finance Parties
participating in the agreement
referred to below)
Date: [o]
HK$3,003,000,000 Term Loan Facility Agreement dated 14 March 2003 with PCCW
Limited as borrower (the "Facility Agreement")
We refer to the Facility Agreement (as the same may from time to time be
amended, varied, supplemented, restated or novated). Terms defined in the
Facility Agreement shall have the same meanings when used in this certificate.
Terms and expression defined in the Facility Agreement shall bear the same
meaning herein.
Financial Covenants
We confirm that, in respect of the Relevant Period [o] to [o]:
(A) EBITDA was HK$[o];
(B) Net Debt of the Borrower and its Subsidiaries as at the last day of the
Relevant Period was HK$[o];
(C) Interest for the Relevant Period was HK$[o]; and
(D) therefore:
(1) the ratio of EBITDA to Interest for such Relevant Period was [o] to
1; and
(2) the ratio of Net Debt of the Borrower Group to EBITDA for such
Relevant Period was [o] to 1.
......................................................
For and on behalf of [name of auditors] /
PCCW Limited
* delete as appropriate
78
Xxxxxxx & Xxxxxxx
AS WITNESS the hands of the duly authorised representatives of the parties on
the date first above written.
SIGNATORIES
THE BORROWER
------------
PCCW LIMITED
00xx Xxxxx
XXXX Xxxxx
XxxXxx Xxxxx
000 Xxxx'x Xxxx
Xxxxxx Xxx
Xxxx Xxxx
Facsimile No: (000) 0000 0000
Attention: Company Secretary
By: W. Xxxxxxx Xxxxx (Sd) W. Xxxxxxx Xxxxx
THE CO-ORDINATING ARRANGERS
---------------------------
AGRICULTURAL BANK OF CHINA, HONG KONG BRANCH
00/X, Xxxxx 0, Xxxxxxxxx Xxxxxx
00 Xxxxxxxx Xxxx
Xxxx Xxxx
Facsimile No: (000) 0000 0000
Attention: Mr Xxxx Xxx/Xx Xxxxxx Xx
By: Xxx Xxxx Xxxx (Sd) Liu Xxxx Xxxx
Xxxx Xxx (Sd) Xxxx Xxx
BANK OF CHINA (HONG KONG) LIMITED
17/F, Bank of China Centre
00 Xxx Xxx Xxxx
Xxxx Xxxxxxx
Xxxx Xxxx
Facsimile No: (000) 0000 0000
Attention: Mr Xxxx Xxxx/Xx Xxxxxx Xxxx/Xx Xxxxxxx Xxxxx
By: Xxxx Xxx Po (Sd) Xxxx Xxx Po
79
Xxxxxxx & Xxxxxxx
THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED
Hongs Division
Corporate Banking
Xxxxx 0
0 Xxxxx'x Xxxx Xxxxxxx
Xxxx Xxxx
Facsimile No: (000) 0000 0000
Attention: Xx Xxxxx Xxx/Xx Xxxxxxx Xxxxx
By: Xxxxx Xxxx (Sd) Xxxxx Xxxx
STANDARD CHARTERED BANK
14/F Standard Chartered Xxxxxxxx
0-0X Xxx Xxxxx Xxxx Xxxxxxx
Xxxx Xxxx
Facsimile No: (000) 0000 0000
Attention: Xxxxx Xxxx
By: Xxxxx Xxxx Oei (Sd) Xxxxx Xxxx Oei
Xxxx Xxxx (Sd) Xxxx Xxxx
CREDIT AGRICOLE INDOSUEZ, HONG KONG BRANCH
00-00/X, Xxx Xxxxxxxx Xxxxxx,
Xxxxxxx
Xxxx Xxxx
Facsimile No: (000) 0000 0000
Attention: Loan Administration Unit - Mr Kingston Ho/Xx Xxxxxx Xxxxx
By: Xxxxxx Xx (Sd) Xxxxxx Xx
Xxxxxxx Xxx (Sd) Xxxxxxx Xxx
80
Xxxxxxx & Xxxxxxx
HANG SENG BANK LIMITED
16/F, Hang Seng Xxxxx
Xxxxxxx Xxxxx
00 Xxx Xxx Xxxxxx
Xxxxxxx Xxx
Xxxx Xxxx
Facsimile No: (000) 0000 0000
Attention: Xx X X Xxx/Xx Xxxx Xxx
By: Wing X. Xxxxx (Sd) Wing X. Xxxxx
Y.T. Ng (Sd) Y.T. Ng
THE LENDERS
-----------
AGRICULTURAL BANK OF CHINA, HONG KONG BRANCH
00/X, Xxxxx 0, Xxxxxxxxx Xxxxxx
00 Xxxxxxxx Xxxx
Xxxx Xxxx
Facsimile No: (000) 0000 0000
Attention: Mr Xxxx Xxx/Xx Xxxxxx Xx
By: Xxx Xxxx Xxxx (Sd) Liu Xxxx Xxxx
Xxxx Xxx (Sd) Xxxx Xxx
BANK OF CHINA (HONG KONG) LIMITED
17/F, Bank of China Centre
00 Xxx Xxx Xxxx
Xxxx Xxxxxxx
Xxxx Xxxx
Facsimile No: (000) 0000 0000
Attention: Mr Xxxx Xxxx/Xx Xxxxxx Xxxx/Xx Xxxxxxx Xxxxx
By: Xxxx Xxx Po (Sd) Xxxx Xxx Po
81
Xxxxxxx & Xxxxxxx
THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED
Hongs Division
Corporate Banking
Xxxxx 0
0 Xxxxx'x Xxxx Xxxxxxx
Xxxx Xxxx
Facsimile No: (000) 0000 0000
Attention: Xx Xxxxx Xxx/Xx Xxxxxxx Xxxxx
By: Xxxxx Xxx (Sd) Xxxxx Xxx
STANDARD CHARTERED BANK
14/F Standard Chartered Xxxxxxxx
0-0X Xxx Xxxxx Xxxx Xxxxxxx
Xxxx Xxxx
Facsimile No: (000) 0000 0000
Attention: Xxxxx Xxxx
By: Xxxxx Xxxx Oei (Sd) Xxxxx Xxxx Oei
Xxxx Xxxx (Sd) Xxxx Xxxx
CREDIT AGRICOLE INDOSUEZ, HONG KONG BRANCH
00-00/X, Xxx Xxxxxxxx Xxxxxx,
Xxxxxxx
Xxxx Xxxx
Facsimile No: (000) 0000 0000
Attention: Loan Administration Unit - Mr Kingston Ho/Xx Xxxxxx Xxxxx
By: Xxxxxx Xx (Sd) Xxxxxx Xx
Xxxxxxx Xxx (Sd) Xxxxxxx Xxx
82
Xxxxxxx & Xxxxxxx
HANG SENG BANK LIMITED
16/F, Hang Seng Xxxxx
Xxxxxxx Xxxxx
00 Xxx Xxx Xxxxxx
Xxxxxxx Xxx
Xxxx Xxxx
Facsimile No: (000) 0000 0000
Attention: Xx X X Xxx/Xx Xxxx Xxx
By: Wing X. Xxxxx (Sd) Wing X. Xxxxx
Y.T. Ng (Sd) Y.T. Ng
THE AGENT AND THE SECURITY TRUSTEE
----------------------------------
THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED
Xxxxx 00
0 Xxxxx'x Xxxx Xxxxxxx
Xxxx Xxxx
Facsimile No: (000) 0000 0000
Attention: Loan Agency Syndicated Finance
By: Xxxxx Xxx (Sd) Xxxxx Xxx
83
Xxxxxxx & Xxxxxxx
