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EXHIBIT 10.10
DATED 1998
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ZINDART LIMITED
AS BORROWER
CREDIT SUISSE FIRST BOSTON, HONG KONG BRANCH
STANDARD CHARTERED BANK
AS ARRANGERS
THE BANKS AND OTHER FINANCIAL INSTITUTIONS
NAMED HEREIN AS LENDERS
CREDIT SUISSE FIRST BOSTON, SINGAPORE BRANCH
AS AGENT
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US$30,000,000
REVOLVING CREDIT FACILITY
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▇▇▇▇▇ & Mc. KENZIE
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
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CONTENTS
Number Clause Heading Page
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1. Interpretation.........................................................1
2. The Facility...........................................................5
3. Conditions Precedent...................................................6
4. Advances, Repayments and Cancellation..................................7
5. Interest..............................................................10
6. Market Disruption.....................................................10
7. Change of Law or Circumstances........................................11
8. Taxes and Other Deductions............................................12
9. Fees and Expenses.....................................................12
10. Payments and Evidence of Debt.........................................14
11. Representations and Warranties........................................15
12. Undertakings..........................................................17
13. Events of Default.....................................................21
14. Default Interest......................................................23
15. Indemnities, Set-Off and Pro Rata Sharing.............................24
16. The Lenders, the Agent and the Arrangers..............................26
17. Amendment.............................................................31
18. Waiver and Severability...............................................31
19. Miscellaneous.........................................................31
20. Assignment, Novation and Lending Offices..............................32
21. Notices...............................................................34
22. Governing Law and Jurisdiction........................................35
Schedules
Schedule 1 The Lenders..................................................37
Schedule 2 Form of Novation Certificate.................................38
Schedule 3 Financial Definitions........................................41
EXECUTION......................................................................44
Appendices
Appendix 1 Form of Notice of Drawing..........................1-1
Appendix 2 Form of Charge over Account........................2-1
Appendix 3 Form of Share Mortgage.............................3-1
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THIS AGREEMENT is made on the_________________________day of________________1998
BETWEEN:
(1) ZINDART LIMITED, a company incorporated under the laws of Hong Kong
having its registered office at ▇▇▇▇ ▇ & ▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇
Ping Industrial Centre, 57 ▇▇▇▇ ▇▇▇ Road, Tai Po, New Territories, Hong
Kong as borrower (the "BORROWER");
(2) CREDIT SUISSE FIRST BOSTON, HONG KONG BRANCH and STANDARD CHARTERED
BANK as arrangers (in such capacity, each an "ARRANGER" and together
the "ARRANGERS");
(3) THE BANKS AND OTHER FINANCIAL INSTITUTIONS listed in Schedule 1 as
lenders; and
(4) CREDIT SUISSE FIRST BOSTON, SINGAPORE BRANCH as agent (in such
capacity, the "AGENT").
IT IS HEREBY AGREED as follows:
1. INTERPRETATION
1.1 Definitions. In this Agreement, unless the context requires otherwise:
"ACQUISITION" means the acquisition by the Borrower of the entire
issued share capital of ▇▇▇ ▇▇▇▇ as more particularly set out in the
Exchange Agreement;
"ADVANCE" means each lending of a portion of the Commitments pursuant
to Clause 4 or, as the context may require, the principal amount
advanced to the Borrower on each such occasion;
"ASSIGNEE" means any person to which an assignment of all or part of
the rights of any Lender has taken effect in accordance with Clause
20.3;
"AVAILABILITY PERIOD" means the period commencing on the date of this
Agreement and ending on the earlier of (i) the Final Maturity Date and
(ii) the date on which the Facility is cancelled or terminated under
the provisions of this Agreement;
"BANKING DAY" means a day (excluding Saturday) on which banks are open
for business in Hong Kong and Singapore and, if on that day a payment
is to be made under this Agreement, in New York City;
"CHARGE" means:
(a) any mortgage, charge, pledge, lien, encumbrance, hypothecation
or other security interest or security arrangement of any
kind;
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(b) any arrangement whereby any rights are subordinated to any
rights of any third party; and
(c) any contractual right of set-off;
"CHARGE OVER ACCOUNT" means the charge over account executed or to be
executed by the Borrower in the form, or substantially in the form, of
Appendix 2;
"CHARGED ACCOUNT" means the Dollar denominated account opened or to be
opened by the Borrower with the Agent more particularly described in
the Charge over Account;
"COMMITMENT" means, in relation to each Lender, the principal amount
set opposite that Lender's name in Schedule 1 or, as the case may be,
in any Novation Certificate, in each case as reduced by any
cancellation under the provisions of this Agreement, being the maximum
amount which that Lender is committed to make available under the
Facility at any one time;
"DOLLARS" and "US$" mean the lawful currency for the time being of the
United States of America;
"ELIGIBLE TRANSFEREE" means a bank, deposit taking company or other
financial institution duly authorised to carry on its business and to
participate in the Facility;
"EVENT OF DEFAULT" means any event or circumstance specified as such in
Clause 13 or in any Security Document; and "PROSPECTIVE EVENT OF
DEFAULT" means any event or circumstance which with the giving of
notice and/or the passage of time and/or the making of any relevant
determination and/or the forming of any necessary opinion would be an
Event of Default;
"EXCHANGE AGREEMENT" means the sale and purchase agreement dated on or
about 11 February 1998 and made between the Borrower as purchaser, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ Printing Holdings Co. Limited, the shareholders of ▇▇▇
▇▇▇▇, the principal shareholders of HYP Holdings Limited and Chinavest
Management Limited in relation to the Acquisition;
"FACILITY" means the revolving credit facility to be made available
under this Agreement;
"FINAL MATURITY DATE" means the date falling sixty (60) months after
the date of this Agreement;
"FIRST OPTION DATE" means the date falling three (3) years from the
date of this Agreement, subject to adjustment in accordance with Clause
10.5;
"▇▇▇ ▇▇▇▇" means ▇▇▇ ▇▇▇▇ Holdings Co. Limited, a company incorporated
under the laws of the Cayman Islands;
"INTEREST PAYMENT DATE" means, in relation to each Advance, the last
day of the Interest Period applicable to such Advance;
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"INTEREST PERIOD" means, in relation to each Advance, the interest
period ascertained in accordance with Clause 5;
"LENDERS" means the banks and financial institutions listed in Schedule
1 as Lenders and each Assignee and Transferee;
"LENDING OFFICE" means, in relation to each Lender, its office at the
address specified in Schedule 1 or such other office as may be selected
by it from time to time pursuant to Clause 20.11;
"LIBOR" means, in relation to any relevant sum and any relevant period:
(a) the rate shown on the Telerate Monitor Screen as being the
rate per annum at which Dollar deposits are offered for a
period equal or comparable to such period at or about 11:00
a.m. (London time) on the second London Banking Day before the
first day of such period; for this purpose "TELERATE MONITOR
SCREEN" means the display designated as page "3750" on the
Telerate Monitor system or such other page as may replace page
"3750" on that system for the purpose of displaying offered
rates for Dollar deposits; or
(b) if at or about such time on the relevant day no such rate
appears on the Telerate Monitor Screen, the rate determined by
the Agent to be the arithmetic mean (rounded up if necessary
to the nearest integral multiple of 1/16%) of the respective
rates notified to the Agent by each Reference Bank as being
the rate per annum at which Dollar deposits in an amount
comparable to such sum are offered to that Reference Bank for
such period by prime banks in the London interbank market at
or about 11:00 a.m. (London time) on the second London Banking
Day before the first day of such period PROVIDED that if any
Reference Bank does not notify such a rate to the Agent for
any relevant period LIBOR for such period shall be determined
on the basis of the rates notified by the other Reference
Banks, subject as provided in Clause 6;
"LONDON BANKING DAY" means a day on which Dollar deposits may be dealt
in on the London interbank market;
"MAJORITY LENDERS" means at any time Lenders whose aggregate
Participations in the outstanding Advances exceed sixty-six and
two-thirds per cent (66 2/3%) of the outstanding Advances or, if no
Advance is then outstanding, whose aggregate Commitments exceed
sixty-six and two-thirds per cent (66 2/3%) of all the Commitments;
"MARGIN" means two per cent (2%);
"NOTICE OF DRAWING" means a notice in the form set out in Appendix 1;
"NOVATION CERTIFICATE" means a certificate substantially in the form of
Schedule 2;
"PARTICIPATION" means in relation to each Lender, in respect of any
amount owing to the Lenders hereunder, the proportion of such amount
which is owing to that Lender and, in
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respect of a proposed Advance, the proportion of that Advance which is
to be made available by that Lender and "PARTICIPATION IN THE FACILITY"
shall be construed accordingly;
"REFERENCE BANKS" means the principal London offices of Barclays Bank
PLC, The Chase Manhattan Bank, Credit Suisse First Boston and Standard
Chartered Bank or any substitute reference bank(s) appointed pursuant
to Clause 20.12;
"SECOND OPTION DATE" means the date falling four (4) years from the
date of this Agreement, subject to adjustment in accordance with Clause
10.5;
"SECURITY DOCUMENTS" means the Charge over Account, the Share Mortgage
and any other document executed from time to time by whatever person as
a further guarantee of or security for all or any part of the
Borrower's obligations under this Agreement;
"SECURITY PARTY" means, where the context permits, any person other
than the Borrower which has provided or subsequently provides a
guarantee of or security for all or any part of the Borrower's
obligations under this Agreement;
"SHARE MORTGAGE" means the share mortgage executed or to be executed by
the Borrower in the form, or substantially in the form, set out in
Appendix 3;
"SUBSIDIARY" in relation to any company means any other company or
other entity directly or indirectly under the control of the
first-mentioned company; for this purpose "CONTROL" means ownership of
more than fifty per cent (50%) of the voting share capital or
equivalent right of ownership of such company or entity, or power to
direct its policies and management whether by contract or otherwise and
"HOLDING COMPANY" in relation to any company means the company of which
such last-mentioned company is a subsidiary;
"TRANSFEREE" means an Eligible Transferee to which all or any part of a
Lender's rights, benefits and/or obligations under this Agreement have
been transferred pursuant to Clause 20.4.
1.2 Construction. In this Agreement, unless the context requires otherwise,
any reference to:
an "authorisation" includes any approvals, consents, licences, permits,
franchises, permissions, registrations, resolutions, directions,
declarations and exemptions;
"including" or "includes" means including or includes without
limitation;
"indebtedness" includes any obligation of any person for the payment or
repayment of money, whether present or future, actual or contingent,
including but not limited to, any such obligation:
(a) under or in respect of any acceptance, ▇▇▇▇, bond, debenture,
note or similar instrument;
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(b) under or in respect of any guarantee, indemnity,
counter-security or other assurance against financial loss;
(c) in respect of the purchase, hire or lease of any asset or
service; or
(d) in respect of any indebtedness of any other person whether or
not secured by or benefiting from a Charge on any property or
asset of such person;
"law" and/or "regulation" includes any constitutional provisions,
treaties, conventions, statutes, acts, laws, decrees, ordinances,
subsidiary and subordinate legislation, orders, rules and regulations
having the force of law and rules of civil and common law and equity;
an "order" includes any judgment, injunction, decree, determination or
award of any court, arbitration or administrative tribunal;
a "person" includes any individual, company, body corporate or
unincorporate or other juridical person, partnership, firm, joint
venture or trust or any federation, state or subdivision thereof or any
government or agency of any thereof;
"tax" includes any tax, levy, duty, charge, impost, fee, deduction or
withholding of any nature now or hereafter imposed, levied, collected,
withheld or assessed by any taxing or other authority and includes any
interest, penalty or other charge payable or claimed in respect thereof
and "taxation" shall be construed accordingly.
1.3 Successors and Assigns. The expressions "BORROWER", "ARRANGERS",
"LENDERS" and "AGENT" shall, where the context permits, include their
respective successors and permitted assigns and any persons deriving
title under them.
1.4 Miscellaneous. In this Agreement, unless the context requires
otherwise, references to statutory provisions shall be construed as
references to those provisions as replaced, amended, modified or
re-enacted from time to time; words importing the singular include the
plural and vice versa and words importing a gender include every
gender; references to this Agreement or any Security Document shall be
construed as references to such document as the same may be amended,
supplemented or novated from time to time; unless otherwise stated,
references to Clauses, Schedules and Appendices are to clauses of and
schedules and appendices to this Agreement and references to this
Agreement include its Schedules and Appendices. Clause headings are
inserted for reference only and shall be ignored in construing this
Agreement.
2. THE FACILITY
2.1 Amount and Participations. Subject to the provisions of this Agreement:
(a) the aggregate principal amount of the Facility available to
the Borrower is thirty million Dollars (US$30,000,000).
(b) each Lender will participate in each Advance in the proportion
which its undrawn Commitment bears to the undrawn amount of
the Facility immediately before that Advance is made.
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2.2 Purpose. The proceeds of the Facility shall be used exclusively for the
purpose of partially financing the Acquisition and for the Borrower's
general working capital requirements. Neither the Agent nor any Lender
shall have any responsibility to see to the application of the proceeds
by the Borrower.
2.3 Lenders' Several Liability. The rights and obligations of the Lenders
hereunder are several and accordingly:
(a) the amount at any time owing by the Borrower hereunder to each
Lender or the Agent shall be a separate and independent debt
and each Lender and the Agent shall, subject to the terms of
this Agreement and the related security documents, be entitled
to protect and enforce its respective rights arising out of
this Agreement;
(b) the failure of any Lender to perform its obligations hereunder
shall not relieve any other Lender, the Agent or the Borrower
of any of its respective obligations, nor shall any Lender or
the Agent be responsible for the obligations of any other
Lender.
3. CONDITIONS PRECEDENT
3.1 Conditions. The Lenders shall not be obliged to make any Advance to the
Borrower unless the Agent shall have received:
Loan Agreement
(a) this Agreement duly executed by all the parties;
Corporate Documents
(b) in relation to the Borrower, certified true copies of:
(i) its certificate of incorporation, memorandum and
articles of association and all other constitutional
documents;
(ii) its current business registration certificate and all
other necessary authorisations for the operation of
its business;
(iii) a list of its directors and officers with their
specimen signatures;
(iv) resolutions of its board of directors approving the
borrowing and the giving of security on the terms of
this Agreement and the Security Documents to which it
is a party and authorising a person or persons to
execute this Agreement, the relevant Security
Documents, all Notices of Drawing and any other
notices or documents required in connection herewith
or therewith, and the specimen signature(s) of such
person(s);
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Security Documents
(c) the Charge over Account duly executed by the Borrower;
Miscellaneous
(d) a certified true copy of the executed Exchange Agreement, the
economic terms of which have not been materially amended from
those contained in the draft delivered to the Lenders on 7
February 1998;
(e) evidence satisfactory to the Agent that the Charged Account
has been or will be opened;
(f) evidence that all authorisations have been obtained and that
all necessary filings, registrations and other formalities
have been or will be completed in order to ensure that this
Agreement and the Security Documents are valid and
enforceable;
(g) legal opinions covering such matters of English, Hong Kong,
Cayman Islands and other laws relevant to this transaction as
the Agent may request;
(h) written confirmation of acceptance of appointment from each
agent for service of process named in Clause 22.3 and in each
Security Document;
(i) such other documents relating to any of the matters
contemplated herein as the Agent may reasonably request.
3.2 Agent's Approval. All the documents and evidence referred to in Clause
3.1 shall be in form and substance reasonably satisfactory to the Agent
and shall be supplied in such number of copies or counterparts as the
Agent may require. Copies required to be certified shall be certified
in a manner reasonably satisfactory to the Agent by a director or
responsible officer of the Borrower or other party concerned.
3.3 Notice. Upon receipt of all the documents and evidence referred to in
Clause 3.1, the Agent shall give notice of that fact to the Borrower
and the Lenders.
4. ADVANCES, REPAYMENTS AND CANCELLATION
4.1 Availability. Subject to Clause 4.2 and the other terms and conditions
of this Agreement, the Borrower may request the making of an Advance on
any Banking Day during the Availability Period, PROVIDED that:
(a) the amount of each Advance shall be at least five million
Dollars (US$5,000,000) and an integral multiple of one million
Dollars (US$1,000,000); and
(b) the aggregate principal amount of all Advances outstanding at
any one time shall not exceed the aggregate principal amount
available under the Facility at such time. If the Borrower has
given a notice of cancellation pursuant to Clause 4.7, the
Borrower may not draw an Advance if it would result in such an
excess on the date on which the cancellation is to take
effect.
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4.2 Conditions of Drawing. The making of each Advance is also subject to
the conditions that:
(a) the requirements of Clause 3 shall have been satisfied before
the first Notice of Drawing is given or such later time as the
Agent may agree;
(b) the Agent shall have received not later than 12:00 noon
(Singapore time) on the fifth (5th) Banking Day before the
date on which the Advance is to be made a duly completed and
signed original Notice of Drawing;
(c) in the case of the first Advance, the Agent shall have
received:
(i) the Share Mortgage duly executed by the Borrower and
all other documents required pursuant thereto;
(ii) written confirmations of acceptance of appointment
from each agent for service of process named in the
Share Mortgage;
(iii) evidence satisfactory to the Agent that the Borrower
has deposited the Escrow Shares (being 666,667
ordinary shares of the Borrower and as such term is
defined in the Exchange Agreement) in accordance with
clause 1.2 of the Exchange Agreement, such Escrow
Shares constituting a portion of the 1,000,000
ordinary shares in the Borrower required to be issued
by the Borrower upon the terms and conditions of the
Exchange Agreement;
(iv) evidence satisfactory to the Agent that the
completion of the Acquisition will occur before or
contemporaneously with the making of the first
Advance;
(d) no Event of Default or prospective Event of Default shall have
occurred (or would be likely to occur as a result of the
Advance being made) and all representations and warranties
made by the Borrower in or in connection with this Agreement
shall be true and correct in all material respects as at the
date such Advance is to be made with reference to the facts
and circumstances then subsisting; and
(e) not later than 11:00 a.m. (Singapore time) on the date on
which the Advance is to be made, the Agent shall have received
and found satisfactory such additional information, legal
opinions and documents relating to the Borrower or any
Security Party or this Agreement or any Security Document as
the Agent may reasonably require as a result of circumstances
arising or becoming known to the Agent or the Lenders since
the date of the previous Advance or, if no previous Advance
has been made, the date of this Agreement.
4.3 Notification. The Agent shall promptly notify the Lenders of each
Notice of Drawing whereupon each Lender shall, subject to the
provisions of this Agreement, make available to the Borrower its
Participation in the Advance in accordance with Clause 10.1.
4.4 Notice of Drawing Irrevocable. A Notice of Drawing once given shall be
irrevocable and the Borrower shall be bound to draw an Advance in
accordance therewith, except as
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otherwise provided in this Agreement. If for any reason an Advance is
not made in accordance with a Notice of Drawing, the Borrower shall on
demand pay to the Agent for the account of each Lender such amount (if
any) as such Lender may certify to be necessary to compensate it for
any loss or expense incurred in liquidating or redeploying funds
arranged for the purpose of the proposed Advance or in terminating any
such arrangement or any hedging arrangement in respect of this
Agreement.
4.5 Repayments. The Borrower shall repay each Advance in full on the
Interest Payment Date applicable to that Advance. Any amount so repaid
shall, subject to the terms of this Agreement, be available for further
Advances. All Advances and all accrued interest and other monies
outstanding in connection with the Facility shall be repaid not later
than the Final Maturity Date. The Borrower may not prepay any Advance
or any part thereof except on the last day of any Interest Period and
in accordance with the express terms of this Agreement.
4.6 Renewals. If on any Interest Payment Date an Advance is to be repaid
and a new Advance made, then no actual payments by the Borrower or the
Lenders shall be required hereunder to the extent of the amount which
is to be repaid and re-advanced.
4.7 Lenders' Put Option - First Option Date. Subject to giving the Borrower
(through the Agent) written notice of its intention to exercise its
option ninety (90) days prior to the First Option Date, each Lender may
elect to cancel its Participation in the Facility on and with effect
from the First Option Date and the Borrower shall pay to the Agent for
the account of the relevant Lender of all of its Participation in any
outstanding Advances on the First Option Date together with all other
amounts then due and payable to such Lender under this Agreement. On
the First Option Date, the Commitment of each such Lender shall be
cancelled and the Facility shall be permanently reduced accordingly.
The Borrower shall pay to the Agent for the pro rata account of each
Lender which does not exercise its put option under this Clause 4.7 a
put option waiver fee equal to one quarter of one per cent (0.25%) flat
of the Participation of each such Lender on the First Option Date. The
Borrower may not request the making of any further Advances after any
notice has been issued by any Lender in exercise of its rights under
this Clause.
4.8 Lenders' Put Option - Second Option Date. Subject to giving the
Borrower (through the Agent) written notice of its intention to
exercise its option ninety (90) days prior to the Second Option Date,
each Lender may elect to cancel its Participation in the Facility on
and with effect from the Second Option Date and the Borrower shall pay
to the Agent for the account of the relevant Lender of all of its
Participation in any outstanding Advances on the Second Option Date
together with all other amounts then due and payable to such Lender
under this Agreement. On the Second Option Date, the Commitment of each
such Lender shall be cancelled and the Facility shall be permanently
reduced accordingly. The Borrower shall pay to the Agent for the pro
rata account of each Lender which does not exercise its put option
under this Clause 4.8 a put option waiver fee equal to one quarter of
one per cent (0.25%) flat of the Participation of each such Lender on
the Second Option Date. The Borrower may not request the making of any
further Advances after any notice has been issued by any Lender in
exercise of its rights under this Clause.
4.9 Voluntary Cancellation. The Borrower may cancel all or any part of the
undrawn Facility by giving to the Agent not less than ninety (90) days'
prior written notice, PROVIDED that the amount of any partial
cancellation shall be at least five million Dollars
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(US$5,000,000) and an integral multiple of one million Dollars
(US$1,000,000). Once given, any such notice of cancellation shall be
irrevocable. Amounts cancelled shall not be available for further
Advances. Any partial cancellation pursuant to this Clause shall reduce
the Commitment of each Lender pro rata.
5. INTEREST
5.1 Interest. The Borrower shall pay interest on each Advance in accordance
with the following provisions.
5.2 Interest Periods. The Interest Period for each Advance shall commence
on the date on which that Advance is made and end on the date three (3)
months thereafter, PROVIDED that:
(a) any Interest Period which would otherwise end on a non-Banking
Day shall instead end on the next following Banking Day or, if
that Banking Day is in another calendar month, on the
immediately preceding Banking Day;
(b) any Interest Period which commences on the last Banking Day of
a calendar month or on a day for which there is no numerically
corresponding day in the calendar month three (3) months
thereafter shall, subject to paragraph (c), instead end on the
last Banking Day of such later calendar month; and
(c) any Interest Period which would otherwise extend beyond the
First Option Date, the Second Option Date or the Final
Maturity Date shall instead end on that date.
5.3 Rate and Calculation. The rate of interest applicable to each Advance
shall be the rate per annum determined by the Agent to be the aggregate
of LIBOR for the applicable Interest Period and the Margin. Interest
shall accrue from day to day, shall be calculated on the basis of the
actual number of days elapsed and a 360 day year, including the first
day of the applicable Interest Period but excluding the last, and shall
be paid in arrears on the applicable Interest Payment Date. The Agent
shall notify the Borrower and the Lenders of each interest rate
determined under this Clause.
6. MARKET DISRUPTION
6.1 Market Disruption. If in relation to any proposed Advance:
(a) the Agent reasonably determines (which determination shall be
conclusive and binding) that by reason of circumstances
affecting the London interbank market generally, adequate and
fair means do not exist for ascertaining LIBOR for the
relevant Interest Period; or
(b) no rate appears on the Telerate Monitor Screen and less than
two (2) Reference Banks notify the Agent of a rate for the
purpose of determining LIBOR for that Interest Period; or
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(c) the Majority Lenders notify the Agent that deposits in Dollars
in the required amount for the relevant Interest Period are
not available to them in the London interbank market or that
the rate shown on the Telerate Monitor Screen or the average
of the rates notified by the Reference Banks does not
adequately reflect the cost to those Lenders of obtaining
funds for that Interest Period,
the Agent shall promptly notify the Borrower and the Lenders
accordingly, and the proposed Advance shall not be made until an
alternative basis as mentioned below is agreed.
6.2 Alternative Basis by Agreement. Immediately following such
notification, the Borrower and the Agent, in consultation with the
Lenders, shall negotiate in good faith with a view to agreeing upon an
alternative basis for funding the proposed Advance and, if relevant,
any subsequent Advances and determining the applicable interest rate.
If an alternative basis is agreed in writing within a period of thirty
(30) days after such notification or such longer period for discussion
as the Borrower and the Agent may agree, the alternative basis shall
take effect in accordance with its terms. If an alternative basis is
not so agreed, the Facility shall terminate and the Borrower shall
repay all Advances then outstanding on the applicable Interest Payment
Date for each such Advance and together with each such repayment the
Borrower shall pay all interest and other sums accrued in respect of
such Advance.
7. CHANGE OF LAW OR CIRCUMSTANCES
7.1 Unlawfulness. If it becomes unlawful for any Lender to give effect to
its obligations hereunder, such Lender shall through the Agent so
notify the Borrower, whereupon such Lender's obligation to make
available or maintain its Participation in any Advances shall cease.
The Borrower shall forthwith after such notification, or such longer
period as such Lender may certify as being permitted by the relevant
law, prepay such Lender's Participation in all outstanding Advances in
full together with such Lender's proportion of interest and commitment
fee accrued up to the date of prepayment and any other monies owing
hereunder to such Lender.
7.2 Increased Cost. If a Lender determines that any change in any
applicable law or regulation or in the interpretation or application
thereof or compliance by such Lender with any applicable direction,
request or requirement (whether or not having the force of law) of any
competent governmental or other authority does or will:
(a) subject such Lender to any tax or other payment with reference
to sums payable by the Borrower under this Agreement (except
(i) tax on such Lender's overall net income in the
jurisdiction of its principal office or Lending Office or such
other jurisdiction where its overall net income would
ordinarily (but for its entering into of this Agreement) be
taxed or (ii) as referred to in Clause 8); or
(b) impose on such Lender any other condition the effect of which
is to (i) increase the cost to such Lender of participating in
the Facility or (ii) reduce the amount of any payment
receivable by, or the effective return to, such Lender in
respect of the Facility or (iii) impose a cost on such Lender
resulting from its Participation in the Facility,
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such Lender may through the Agent so notify the Borrower, and the
Borrower shall from time to time upon demand (whether or not such
Lender's Participation in any Advances has been repaid) pay to the
Agent for the account of such Lender such amounts as such Lender may
certify to be necessary to compensate it for such tax, payment,
increased cost or reduction (each an "INCREASED COST"). Where such
increased cost arises from circumstances contemplated above which
affect the Lender's business generally or the manner in which or extent
to which the Lender allocates capital resources, the Lender shall be
entitled to such increased cost as it determines is fairly allocable to
its Participation in the Facility. So long as the circumstances giving
rise to such increased cost continue, the Borrower may, by giving the
Agent not less than thirty (30) days' prior written notice (which shall
be irrevocable), cancel all (but not only part of) such Lender's
Commitment and, after such notice takes effect, such Lender shall not
participate in future Advances.
8. TAXES AND OTHER DEDUCTIONS
8.1 No Deductions or Withholdings. All sums payable by the Borrower under
this Agreement shall be paid in full without set-off or counterclaim or
any restriction or condition and free and clear of any tax or other
deductions or withholdings of any nature. If the Borrower or any other
person is required by any law or regulation to make any deduction or
withholding (on account of tax or otherwise) from any payment for the
account of any Lender, the Agent, or any Arranger, the Borrower shall,
together with such payment, pay such additional amount as will ensure
that such Lender, the Agent, or such Arranger receives (free and clear
of any tax or other deductions or withholdings) the full amount which
it would have received if no such deduction or withholding had been
required. The Borrower shall promptly forward to the Agent copies of
official receipts or other evidence showing that the full amount of any
such deduction or withholding has been paid over to the relevant
taxation or other authority.
8.2 Advance Notification. If at any time the Borrower becomes aware that
any such deduction, withholding or payment contemplated by Clause 8.1
is or will be required, it shall immediately notify the Agent and
supply all available details thereof.
9. FEES AND EXPENSES
9.1 Commitment Fee. The Borrower shall pay to the Agent for the pro rata
account of the Lenders a commitment fee on the daily undrawn balance of
the Facility during the period from and including the date of this
Agreement up to and including the last day of the Availability Period
as follows:
(a) if the average daily undrawn balance of the Facility during
the preceding three (3) month period (as determined by the
Agent) was an amount that is less than thirty-three and
one-third per cent (33 1/3%) of the total Commitments of all
Lenders under the Facility, commitment fee in respect of such
period shall be payable at the rate of zero point five zero
per cent (0.50%) per annum calculated on the daily undrawn
balance of the Facility during that period;
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(b) if the average daily undrawn balance of the Facility during
the preceding three (3) month period (as determined by the
Agent) was an amount equal to or greater than thirty-three and
one-third per cent (33 1/3%) but less than sixty-six and
two-thirds per cent (66 2/3%) of the total Commitments of all
Lenders under the Facility, commitment fee in respect of such
period shall be payable at the rate of zero point six five per
cent (0.65%) per annum calculated on the daily undrawn balance
of the Facility during that period;
(c) if the average daily undrawn balance of the Facility during
the preceding three (3) month period (as determined by the
Agent) was an amount equal to or greater than sixty-six and
two-thirds per cent (66 2/3%) of the total Commitments of all
Lenders under the Facility, commitment fee in respect of such
period shall be payable at the rate of zero point eight five
per cent (0.85%) per annum calculated on the daily undrawn
balance of the Facility during that period.
The commitment fee shall, in each case, be calculated on the basis of
the actual number of days elapsed and a 360 day year and shall accrue
from day to day and be paid in arrears at the end of each successive
period of three (3) months from the date of this Agreement and on the
last day of the Availability Period.
9.2 Agency Fee. The Borrower shall pay to the Agent for its own account an
agency fee in accordance with a letter of even date herewith addressed
by the Agent to and accepted by the Borrower in accordance with the
terms stated therein.
9.3 Up-front Fee. The Borrower shall pay to the Agent for the account of
the Arrangers and the Lenders in the respective proportions agreed by
them an up-front fee in accordance with a letter of even date herewith
addressed by the Agent to and accepted by the Borrower in accordance
with the terms stated therein.
9.4 Expenses. The Borrower shall forthwith on demand and whether or not any
Advance is made pay to or reimburse each of the Lenders, the Agent, and
the Arrangers for its own account for all costs, charges and expenses
(including legal and other fees on a full indemnity basis and printing,
translation, communication, advertisement, travel and all other
out-of-pocket expenses) reasonably incurred by it in connection with
the negotiation, syndication, preparation, execution and (where
relevant) registration of this Agreement, the Security Documents and
any other documentation required hereunder or thereunder and the
arrangement of the Facility and any amendment hereto or to any Security
Document and any inspection, calculation, approval, consent or waiver
to be conducted, made or given by the Agent or the Lenders in respect
of this Agreement or any Security Document.
9.5 Enforcement Costs. The Borrower shall from time to time forthwith on
demand pay to or reimburse each of the Lenders, the Agent, and the
Arrangers for all costs, charges and expenses (including legal and
other fees on a full indemnity basis and all other out-of-pocket
expenses) incurred by it in exercising any of its rights or powers
under this Agreement or any Security Document or in suing for or
seeking to recover any sums due under this Agreement or any Security
Document or otherwise preserving or enforcing its rights under this
Agreement or any Security Document or in defending any claims brought
against it in respect of this Agreement or any Security Document or in
releasing or re-assigning any Security Document.
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9.6 Taxes. The Borrower shall pay all present and future stamp and other
like duties and taxes and all notarial, registration, recording and
other like fees which may be payable in respect of this Agreement or
any Security Document and shall indemnify the Lenders and the Agent
against all liabilities, costs and expenses which may result from any
default by the Borrower in paying such duties, taxes or fees.
10. PAYMENTS AND EVIDENCE OF DEBT
10.1 Advances. Amounts to be advanced by the Lenders to the Borrower under
this Agreement shall be made available to the Agent not later than
10:00 a.m. (New York time) on the date on which such Advance is to be
made in same day funds settled through the New York Clearing House
Interbank Payments System (or in such other funds as may then be
customary for the settlement in Dollars of transactions of this nature)
to account no. ▇▇▇▇▇▇▇, CHIPS UID 090624, SWIFT Code: CRESUS 33 with
Credit Suisse First Boston, New York for the account of Credit Suisse
First Boston, Singapore Branch (Reference: Zindart Ltd.) (or to such
other account in New York City as the Agent may designate). The Agent
shall make available to the Borrower the amounts received by it by
payment to such account in New York City as the Borrower shall have
previously agreed with the Agent.
10.2 Payments by Borrower. All payments by the Borrower under this Agreement
shall be made to the Agent not later than 10:00 a.m. (New York time) on
the relevant due date in same day funds settled through the New York
Clearing House Interbank Payments System (or in such other funds as may
then be customary for the settlement in Dollars of transactions of this
nature) to account no. ▇▇▇▇▇▇▇, CHIPS UID 090624, SWIFT Code: CRESUS 33
with Credit Suisse First Boston, New York for the account of Credit
Suisse First Boston, Singapore Branch (Reference: Zindart Ltd.) (or to
such other account in New York City as the Agent may designate), in
each case under telex advice to the Agent. The Agent shall forthwith
distribute to each Lender its due proportion (if any) of the amounts
received by it in like funds as are received by the Agent and to such
account in New York City as such Lender shall have previously notified
to the Agent.
10.3 Allocation of Receipts. If any amount received by the Agent is less
than the full amount due, the Agent in consultation with the Lenders
shall have the right to allocate the amount received towards principal,
interest and/or other sums owing hereunder as it considers appropriate.
10.4 Refunds. If the Agent distributes to a Lender an amount which the Agent
has not (but should have) received from the Borrower, such Lender shall
on request promptly refund such amount to the Agent together with
interest thereon for the relevant period at the rate per annum
certified by the Agent to represent the cost to it of funding such
amount for such period. If the Agent distributes to a Lender an amount
which is required to be repaid to the Borrower, such Lender shall on
request promptly refund such amount to the Agent together with such
interest thereon (if any) as is required to be paid to the Borrower. If
the Agent makes an amount available to the Borrower which the Agent has
not (but should have) received from a Lender, the Borrower shall on
request promptly refund such amount to the Agent together with interest
thereon at the rate referred to above plus the Margin.
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10.5 Banking Days. If any sum would otherwise become due for payment on a
non-Banking Day that sum shall become due on the next following Banking
Day and interest shall be adjusted accordingly, except that if any
repayment under Clause 4 would then become due in another calendar
month such repayment shall become due on the immediately preceding
Banking Day.
10.6 Evidence of Debt. The Agent shall maintain on its books in accordance
with its usual practice a set of accounts recording the amounts from
time to time owing by the Borrower hereunder. In any legal proceeding
and otherwise for the purposes of this Agreement the entries made in
such accounts shall, in the absence of manifest error, be conclusive
and binding on the Borrower as to the existence and amounts of the
obligations of the Borrower recorded therein.
10.7 Certificate Conclusive and Binding. Where any provision of this
Agreement provides that a Lender or the Agent may certify or determine
an amount or rate payable by the Borrower, a certificate by such Lender
or the Agent as to such amount or rate shall be conclusive and binding
on the Borrower in the absence of manifest error.
11. REPRESENTATIONS AND WARRANTIES
11.1 Representations and Warranties. The Borrower represents and warrants to
each of the Lenders, the Agent, and the Arrangers that:
(a) the Borrower is a company duly incorporated with limited
liability and validly existing under the laws of Hong Kong,
and has full power, authority and legal right to own its
property and assets and to carry on its business;
(b) the Borrower has full power, authority and legal right to
enter into and engage in the transactions contemplated by this
Agreement and the Security Documents to which it is a party
and has taken or obtained all necessary corporate and other
action and consents to authorise the execution and performance
of this Agreement and the Security Documents to which it is a
party;
(c) this Agreement constitutes and the Security Documents to which
the Borrower is a party when executed and delivered will
constitute legal, valid and binding obligations of the
Borrower enforceable in accordance with their terms;
(d) neither the execution of this Agreement and the Security
Documents to which the Borrower is a party nor the performance
by the Borrower of any of its obligations or the exercise of
any of its rights hereunder or thereunder will conflict with
or result in a breach of any law, regulation, judgment, order,
authorisation, agreement or obligation applicable to it or
cause any limitation placed on it or the powers of its
directors to be exceeded or result in the creation of or
oblige the Borrower to create a Charge in respect of any of
its property or assets except in favour of the Agent under or
pursuant to any Security Document to which the Borrower is a
party;
(e) all authorisations required from any governmental or other
authority or from any shareholders or creditors of the
Borrower for or in connection with the execution,
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validity and performance of this Agreement and the Security
Documents to which it is a party have been obtained and are in
full force and effect or, by the date on which the first
Notice of Drawing is given, will have been obtained and be in
full force and effect and there has been no default under the
conditions of any of the same;
(f) except for the filing of the Charge over Account and the Share
Mortgage with the Hong Kong Companies Registry, it is not
necessary in order to ensure the validity, enforceability,
priority or admissibility in evidence in proceedings of this
Agreement or any of the Security Documents in Hong Kong or any
other relevant jurisdiction that it or any other document be
filed or registered with any authority in Hong Kong, England
or elsewhere or that any tax be paid in respect thereof;
(g) no litigation, arbitration or administrative proceeding is
currently taking place or pending or threatened against the
Borrower or its assets or revenues;
(h) the Borrower is not in default under any law, regulation,
judgment, order, authorisation, agreement or obligation
applicable to it or its assets or revenues, the consequences
of which default could materially and adversely affect its
business or financial condition or its ability to perform its
obligations under this Agreement or any of the Security
Documents to which it is a party and no Event of Default or
prospective Event of Default has occurred;
(i) no Charge exists over all or any part of the property, assets
or revenues of the Borrower except as created by the Security
Documents or liens arising by operation of law in the ordinary
course of business or as disclosed in writing to the Agent
prior to the date of this Agreement or as otherwise permitted
under this Agreement;
(j) the most recent audited financial statements of the Borrower
for the time being (including the audited profit and loss
account and balance sheet) were prepared in accordance with
applicable laws and regulations of Hong Kong and generally
accepted accounting principles and policies consistently
applied and show a true and fair view of the financial
position of the Borrower as at the end of, and the results of
its operations for, the financial period to which they relate
and, as at the end of such period the Borrower did not have
any significant liabilities (contingent or otherwise) or any
unrealised or anticipated losses which are not disclosed by or
reserved against in, such financial statements, and there has
been no material adverse change in the business or financial
condition of the Borrower since the date of such financial
statements;
(k) the information contained in the information memorandum dated
December 1997 circulated at the Borrower's request to each of
the Lenders is true and accurate in all respects and all
forecasts and projections contained therein were arrived at
after due and careful consideration on the part of the
Borrower and were, in its considered opinion, fair and
reasonable when made; the Borrower is not aware of any fact
which has not been disclosed in writing to the Agent which
might have a material effect on any such information,
forecasts or projections or which might affect the willingness
of the Lenders to lend upon the terms of this Agreement;
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(l) no outstanding loans or advances have been made to the
Borrower by any of its shareholders except loans and advances
in respect of which the relevant shareholders' rights have
been subordinated and assigned to the Lenders in accordance
with Clause 12.2(h);
(m) the Borrower is generally subject to civil and commercial law
and to legal proceedings and neither the Borrower nor any of
its assets or revenues is entitled to any immunity or
privilege (sovereign or otherwise) from any set-off, judgment,
execution, attachment or other legal process.
11.2 Continuing Representation and Warranty. The Borrower also represents
and warrants to and undertakes with the Lenders, the Agent, and the
Arrangers that the foregoing representations and warranties will be
true and accurate throughout the continuance of this Agreement with
reference to the facts and circumstances subsisting from time to time.
11.3 Acknowledgement of Reliance. The Borrower acknowledges that each of the
Lenders, the Agent, and the Arrangers has entered into this Agreement
in reliance upon the representations and warranties contained in this
Clause.
12. UNDERTAKINGS
12.1 Affirmative Undertakings. The Borrower undertakes and agrees with each
of the Lenders, the Agent, and the Arrangers that until the Final
Maturity Date and/or so long as any sum remains owing hereunder the
Borrower will, unless the Majority Lenders otherwise agree in writing:
(a) supply to the Agent in sufficient number for each Lender:
(i) as soon as they are available, but in any event
within one hundred and eighty (180) days after the
end of each financial year of the Borrower, copies of
its financial statements in respect of such financial
year (including a profit and loss account and balance
sheet) prepared on a consolidated basis and audited
and certified without qualification by an
internationally recognised firm of independent
accountants acceptable to the Agent;
(ii) as soon as they are available, but in any event
within ninety (90) days after the end of each half of
each financial year of the Borrower, copies of its
unaudited financial statements (including a profit
and loss account and balance sheet) prepared on a
consolidated basis and on a basis consistent with the
audited financial statements of the Borrower together
with a certificate signed by the principal financial
officer of the Borrower to the effect that such
financial statements are true in all respects and
present fairly the financial position of the Borrower
as at the end of, and the results of its operations
for, such half-year period;
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(iii) as soon as they are available, but in any event
within forty-five (45) days after the end of each
quarter of each financial year of the Borrower and
▇▇▇ ▇▇▇▇, copies of each such company's unaudited
financial statements (including a profit and loss
account and balance sheet) prepared, in the case of
the Borrower, on a consolidated basis and in each
case on a basis consistent with the audited financial
statements of the relevant company together with a
certificate signed by the relevant company's
principal financial officer to the effect that such
financial statements are true in all respects and
present fairly the financial position of such company
as at the end of, and the results of its operations
for, such quarter-year period;
(iv) within thirty (30) days of each date for the
provision of the accounts referred to in (i) and (ii)
above, a certificate signed by one of the directors
of the Borrower certifying that there did not exist
any Event of Default or prospective Event of Default
as at the end of such half year (or if an Event of
Default or prospective Event of Default did exist
specifying the same). Each such certificate shall be
accompanied by a certificate from, in the case of the
certificate accompanying the accounts referred to in
(i) above, the auditors of the Borrower and, in the
case of the certificate accompanying the accounts
referred to in (ii) above, the chief financial
officer of the Borrower certifying whether or not the
financial undertakings referred to in Clause 12.3 had
been complied with throughout such half-year;
(v) at the time of issue, copies of all statements and
circulars to the shareholders or to any class of
creditors of the Borrower;
(vi) promptly on request, such additional financial or
other information (including, but not limited to,
cash flows and profit and loss projections) relating
to the Borrower and any Security Party as the Agent
may from time to time request;
(vii) promptly on request, and in any event upon the
determination of the Group EBITDA (as defined in the
Exchange Agreement), evidence satisfactory to the
Agent that, pursuant to clause 1.2(c) of the Exchange
Agreement, the Earn-Out Shares (being up to 333,333
ordinary shares in the Borrower, as defined in clause
1.2(c) of the Exchange Agreement) have been issued
and delivered by the Borrower to the Selling
Shareholders (as defined in the Exchange Agreement)
or the issuance and delivery of such Earn-Out Shares
by the Borrower are not required;
(b) keep proper records and books of account in respect of its
business and permit the Agent and/or any professional
consultants appointed by the Agent at all reasonable times to
inspect and examine the records and books of account of the
Borrower;
(c) promptly inform the Agent of:
(i) the occurrence of any Event of Default or prospective
Event of Default;
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(ii) any litigation, arbitration or administrative
proceeding as referred to in Clause 11.1(g);
(d) maintain its corporate existence and conduct its business in a
proper and efficient manner and in compliance with all laws,
regulations, authorisations, agreements and obligations
applicable to it (including compliance by the Borrower and its
shareholders with all relevant listing rules and regulations
applicable to it and/or them from time to time in connection
with the listing of shares in the Borrower on The NASDAQ Stock
Market) and pay all taxes imposed on it when due unless such
taxes are being contested in good faith;
(e) remain at all times after the Acquisition the beneficial owner
(direct or indirect) of the entire issued share capital of ▇▇▇
▇▇▇▇ and retain control (direct or indirect) over the
appointment of, and control over voting by, the board of
directors of ▇▇▇ ▇▇▇▇;
(f) remain at all times the beneficial owner (direct or indirect)
of the entire issued share capital of ▇▇▇ ▇▇▇▇ Printing
Holdings Company Limited and retain control (direct or
indirect) over the appointment of, and control over voting by,
the board of directors of such company;
(g) procure that no amendment or supplement is made to the
memorandum or articles of association of the Borrower without
the prior written consent of the Agent acting on the
instructions of the Majority Lenders;
(h) maintain in full force and effect all such authorisations as
are referred to in Clause 11.1(e), and take immediate steps to
obtain and thereafter maintain in full force and effect any
other authorisations which may become necessary or advisable
for the purposes stated therein and comply with all conditions
attached to all authorisations obtained;
(i) ensure that its obligations under this Agreement at all times
rank at least pari passu with all unsecured and unsubordinated
obligations of the Borrower;
(j) use the Facility exclusively for the purposes specified in
Clause 2.2; and
(k) punctually pay all sums due from it and otherwise comply with
its obligations under this Agreement and all the Security
Documents to which it is a party.
12.2 Negative Undertakings. The Borrower undertakes and agrees with each of
the Lenders, the Agent, and the Arrangers that until the Final Maturity
Date and/or so long as any sum remains owing hereunder the Borrower
will not, unless the Majority Lenders otherwise agree in writing:
(a) merge or consolidate with any other entity or take any step
with a view to dissolution, liquidation or winding-up;
(b) purchase or redeem any of its issued shares or reduce its
share capital or make a distribution of assets or other
capital distribution to its shareholders or make a
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repayment in respect of any loans or other indebtedness owing
to any of its shareholders;
(c) declare or pay any dividend or make any other income
distribution to its shareholders in excess of forty per cent
(40%) of the amount of its net profit available for
distribution in the relevant financial year of the Borrower;
(d) establish or acquire any further Subsidiary or invest in any
other entity or provide financing to any person except by way
of trade credit in the ordinary course of its business;
(e) materially change the nature of its business, sell, transfer
or otherwise assign, deal with or dispose of all or any part
of its business or (except for good consideration in the
ordinary course of its business) its assets or revenues,
whether by a single transaction or by a number of transactions
whether related or not;
(f) make or grant any loan or advance or guarantee or in any other
manner be or become directly or indirectly or contingently
liable for any indebtedness or other obligation of any other
person, except as may be necessary in the ordinary course of
its business;
(g) create or attempt or agree to create or permit to arise or
exist, or permit any of its Subsidiaries to create or attempt
or agree to create or permit to arise or exist, any Charge
over all or any part of its respective property, assets or
revenues except (i) in the case of the Borrower, any Charge
created under the Security Documents or (ii) any possessory
lien arising by operation of law in the ordinary course of its
business and not in connection with the borrowing or raising
of money or credit;
(h) borrow or raise money or credit from any shareholder in the
Borrower except where the rights of the relevant
shareholder(s) under any relevant shareholder loan(s) are
first subordinated to the rights of, and assigned to, the
Lenders under this Agreement in such manner as may be
satisfactory to the Agent;
(i) except in the ordinary course of its business, (i) incur any
other indebtedness without the prior written consent of the
Agent, or (ii) permit to subsist any account or financial
facilities with any other bank or financial institution or
(iii) deposit any monies or open any accounts other than the
Charged Account with any person other than the Lenders; or
(j) enter into any agreement or obligation which might materially
and adversely affect its financial or other condition.
12.3 Financial Undertakings. The Borrower undertakes with each of the
Lenders, the Agent, and the Arrangers that until the Final Maturity
Date and/or so long as any sum remains owing hereunder the Borrower
will, unless the Majority Lenders otherwise agree in writing, ensure
that:
(a) its Consolidated Net Worth will be:
(i) at 31 March 1998 not less than thirty million Dollars
(US$30,000,000);
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(ii) at 31 March 1999 not less than forty-three million
Dollars (US$43,000,000);
(iii) at 31 March 2000 and at all times thereafter not less
than sixty million Dollars (US$60,000,000);
(b) the ratio of its Consolidated Total Liabilities to its
Consolidated Net Worth, expressed as a percentage, will be:
(i) at all times during the financial year ending 31
March 1998 less than one hundred and seventy-five per
cent (175%);
(ii) at all times during the financial year ending 31
March 1999 less than one hundred and twenty-five per
cent (125%);
(iii) at all times during the financial year ending 31
March 2000 and at all times thereafter less than
seventy-five per cent (75%);
(c) the ratio of its Consolidated Total Interest Bearing
Liabilities to its Consolidated Net Worth, expressed as a
percentage, will be:
(i) at all times during the financial year ending 31
March 1998 less than one hundred per cent (100%);
(ii) at all times after 31 March 1998 less than fifty per
cent (50%);
(d) the ratio of its Consolidated EBITDA to Consolidated Interest
Expenses, expressed as a percentage, will be at all times not
less than five hundred per cent (500%).
Terms defined in Schedule 3 shall have the same meanings when used in
this Clause 12.3.
13. EVENTS OF DEFAULT
13.1 Events of Default. Each of the following events and circumstances shall
be an Event of Default:
(a) the Borrower fails to pay any sum payable under this Agreement
or any Security Document to which it is a party when due or
otherwise in accordance with the provisions hereof or thereof;
(b) the Borrower or any Security Party fails duly and punctually
to perform or comply with any of its respective obligations or
undertakings hereunder or under any Security Document to which
it is a party and, in respect only of a failure which in the
reasonable opinion of the Agent is capable of remedy and which
is not a failure to pay money, does not remedy such failure to
the Agent's satisfaction within seven (7) calendar days (or
such longer period as the Agent may approve) after receipt of
written notice from the Agent requiring it to do so;
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(c) any representation or warranty made or deemed to be made by
the Borrower or any Security Party in or in connection with
this Agreement or any Security Document proves to have been
incorrect or misleading in any material respect;
(d) the Borrower defaults or receives notice of default under any
agreement or obligation relating to borrowing or any
indebtedness of the Borrower becomes payable or capable of
being declared payable before its stated maturity or is not
paid when due or any Charge, guarantee or other security now
or hereafter created by the Borrower becomes enforceable;
(e) any of the authorisations referred to in Clause 11.1(e) is not
granted or ceases to be in full force and effect or is
modified in a manner which, is reasonably likely to materially
and adversely affect the operations, business or financial
condition of the Borrower or the ability of the Borrower to
perform its obligations under this Agreement or any Security
Document to which it is a party, or if any law, regulation,
judgment or order (or the repeal or modification of any of the
foregoing) suspends, varies, terminates or excuses performance
by the Borrower of any of its obligations under this Agreement
or any Security Document to which it is a party or purports to
do any of the same;
(f) a creditor takes possession of all or any part of the business
or assets of the Borrower or any execution or other legal
process is enforced against the business or any asset of the
Borrower and is not discharged within five (5) calendar days;
(g) a petition is presented or a proceeding is commenced or an
order is made or an effective resolution is passed for the
winding-up, insolvency, administration, reorganisation,
reconstruction, dissolution or bankruptcy of the Borrower or
for the appointment of a liquidator, receiver, administrator,
trustee or similar officer of the Borrower or of all or any
part of its business or assets;
(h) the Borrower stops or suspends payments to its creditors
generally or is unable or admits its inability to pay its
debts as they fall due or seeks to enter into any composition
or other arrangement with its creditors or is declared or
becomes bankrupt or insolvent;
(i) any event occurs which in the reasonable opinion of the Agent
appears to have an effect analogous to any of the matters set
out in paragraphs (f), (g) and (h) above in any jurisdiction
in which the Borrower is incorporated or carries on business;
(j) the Borrower ceases or threatens to cease to carry on its
business or any substantial part thereof or changes or
threatens to change the nature or scope of its business or the
Borrower disposes of or threatens to dispose of or any
governmental or other authority expropriates or threatens to
expropriate all or any substantial part of its business or
assets;
(k) any event which has an effect equivalent or similar to any of
the events described in any of the above paragraphs occurs,
mutatis mutandis, in relation to any Subsidiary of the
Borrower or its Holding Company or any Security Party or if
any such person (being an individual) commits an act of
bankruptcy, dies or becomes of unsound mind;
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(l) this Agreement or any Security Document or any provision
hereof or thereof ceases for any reason to be in full force
and effect or is terminated or jeopardised or becomes invalid
or unenforceable or if there is any dispute regarding validity
or enforceability of the same or if there is any purported
termination or repudiation of the same or it becomes
impossible or unlawful for the Borrower or any other party
thereto to perform any of its respective obligations hereunder
or thereunder or for any Lender or the Agent to exercise all
or any of its rights, powers and remedies hereunder or
thereunder or any undertaking in Clause 12.1 is not
enforceable as such and the Borrower fails to do, or fails to
refrain from doing, the activity which it purported to
undertake to do or, as the case may be, not to do;
(m) shares in the Borrower cease to be listed on The Nasdaq Stock
Market or trading in such shares on The Nasdaq Stock Market is
suspended for a period of, in each case, seven (7) or more
consecutive trading days;
(n) there is any dispute between the Borrower and/or any of the
other parties to the Exchange Agreement affecting the ability
of the Borrower to acquire beneficial and legal ownership of
the Parent Shares (as defined in the Exchange Agreement);
(o) any situation occurs which in the opinion of the Majority
Lenders gives reasonable grounds to believe that a material
adverse change in the business or financial condition or
prospects of the Borrower or any Subsidiary of the Borrower or
any Security Party has occurred or that the ability of the
Borrower or any Security Party to perform its respective
obligations hereunder or under any Security Document to which
it is a party has been or will be materially and adversely
affected.
13.2 Declarations. If an Event of Default has occurred the Agent may, and
upon written request by the Majority Lenders shall:
(a) declare all outstanding Advances, accrued interest and all
other sums payable hereunder to be, whereupon they shall
become, immediately due and payable without further demand,
notice or other legal formality of any kind; and/or
(b) declare the Facility terminated whereupon the obligation of
the Lenders to make further Advances hereunder shall
immediately cease.
14. DEFAULT INTEREST
14.1 Rate of Default Interest. If the Borrower fails to pay any sum payable
under this Agreement when due, the following provisions shall apply:
(a) Normal Default Interest. Subject as provided in Clause
14.1(b), the Borrower shall pay interest on such sum from and
including the due date to the date of actual payment (after as
well as before judgment) at the rate per annum determined by
the Agent to be the aggregate of:
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(i) two per cent (2%);
(ii) the Margin; and
(iii) LIBOR (as determined by the Agent on such date or
dates on or after the due date for payment as the
Agent may select) calculated with reference to such
periods and such amounts as the Agent considers
appropriate or, if any of the circumstances described
in Clause 6.1 applies, the rate from time to time
certified by each respective Lender or the Agent (as
the case may be) to be the rate representing the cost
to it of funding the unpaid sum by whatever means it
considers to be appropriate.
The Agent shall notify the Borrower and the Lenders of the
duration of each such funding period and each interest rate
determined under this Clause.
(b) Modification for Advances. Where the unpaid sum is of
principal which became due and payable on a date during, but
not the last day of, the Interest Period relating thereto and
none of the circumstances described in Clause 6.1 apply in
relation to such Interest Period, the first period selected by
the Agent under Clause 14.1(a) in respect of such amount shall
equal the unexpired portion of the Interest Period and, for
the duration of such period, there shall be substituted for
the rate specified in Clause 14.1(a) the rate of two per cent
(2%) above the rate calculated in accordance with Clause 5.3
(including the Margin) and applicable to the unpaid amount
immediately before it fell due.
14.2 Calculation of Default Interest. Interest at the rate or rates
determined from time to time as aforesaid shall accrue from day to day,
shall be calculated on the basis of the actual number of days elapsed
and a 360 day year, shall be compounded at the end of each successive
funding period considered appropriate by the Agent for the purposes of
Clause 14.1 and shall be payable from time to time on demand.
15. INDEMNITIES, SET-OFF AND PRO RATA SHARING
15.1 General Indemnity. The Borrower shall indemnify each Lender, the Agent,
and each Arranger against all losses, liabilities, damages, costs and
expenses (including loss of profit) which such Lender, the Agent, or
such Arranger may incur as a consequence of any Event of Default or any
other breach by the Borrower of any of its obligations under this
Agreement or any failure to borrow in accordance with a Notice of
Drawing or as a result of any Advance or any part thereof being repaid
for any reason other than on the Interest Payment Date applicable to
that Advance or otherwise in connection with this Agreement (including
any loss or expense incurred in liquidating or redeploying funds
acquired or arranged for the purposes of a proposed Advance or to
maintain such Lender's Participation in any Advances or any unpaid sum
or in terminating any such arrangement or any hedging arrangement in
respect of this Agreement and any interest or fees incurred in funding
any unpaid sum, but taking into account any interest paid by the
Borrower in respect of such unpaid sum under Clause 14).
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15.2 Currency Indemnity. Dollars shall be the currency of account and of
payment in respect of sums payable under this Agreement. If an amount
is received in another currency, pursuant to a judgment or order or in
the liquidation of the Borrower or otherwise, the Borrower's
obligations under this Agreement shall be discharged only to the extent
that the Lenders, or the Agent, or the Arrangers (as the case may be)
may purchase Dollars with such other currency in accordance with normal
banking procedures upon receipt of such amount. If the amount in
Dollars which may be so purchased, after deducting any costs of
exchange and any other related costs, is less than the relevant sum
payable under this Agreement, the Borrower shall indemnify the Lenders,
the Agent, or the Arrangers against the shortfall. This indemnity shall
be an obligation of the Borrower independent of and in addition to its
other obligations under this Agreement and shall take effect
notwithstanding any time or other concession granted to the Borrower or
any judgment or order being obtained or the filing of any claim in the
liquidation, dissolution or bankruptcy (or analogous process) of the
Borrower.
15.3 Set-Off. If an Event of Default has occurred each Lender and the Agent
shall have the right, without notice to the Borrower or any other
person, to set off and apply any credit balance on any account (whether
subject to notice or not and whether matured or not and in whatever
currency) of the Borrower with such Lender or the Agent (as the case
may be), and any other indebtedness owing by such Lender or the Agent
(as the case may be) to the Borrower, against the liabilities of the
Borrower under this Agreement, and each Lender and the Agent is
authorised to purchase with the monies standing to the credit of any
such account such other currencies as may be necessary for this
purpose. Each Lender shall forthwith notify the Agent of the exercise
of any right under this Clause. This Clause shall not affect any
general or banker's lien, right of set-off or other right to which any
Lender or the Agent may be entitled.
15.4 Pro Rata Sharing. If at any time any Lender receives any amount from
the Borrower or otherwise in respect of sums due from the Borrower
hereunder (other than through the Agent pursuant to Clause 10.2 or from
an Assignee, Transferee or participant) whether by way of voluntary or
involuntary payment, set-off or otherwise, it will promptly pay to the
Agent the amount so received for distribution to the Lenders pro rata
in accordance with their respective Participations in such amount. The
Agent shall treat such amount as if it were a payment by the Borrower
directly to the Agent on account of sums due from the Borrower
hereunder so that, as between the Borrower and the Lender who
originally received the amount, the amount shall not be treated as
having been paid and such Lender shall retain all its rights against
the Borrower or otherwise with respect to such amount (except to the
extent of any sum received by it from such distribution by the Agent).
Notwithstanding the foregoing provisions of this Clause:
(i) no Lender shall be required to share any amount which
it has received as a result of any legal proceedings
commenced against the Borrower to recover sums owing
to it under this Agreement with any other Lender
which has a legal right to but does not join in such
legal proceedings after having been given reasonable
opportunity so to do and which does not commence and
diligently pursue a separate action to enforce its
rights against the Borrower; and
(ii) if any Lender is required to repay to the Borrower
any part of an amount originally received by it from
the Borrower and shared pursuant to this
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Clause, the other Lenders shall make funds available
to enable the Agent to reimburse such Lender for the
amount required to be repaid (less the appropriate
portion of any sum which such Lender has received by
way of distribution from the Agent in respect of such
amount).
15.5 No Charge. Clause 15.4 shall not constitute and shall not be construed
as constituting a Charge by any Lender over all or any part of any sum
received or recovered by it in the manner set out in Clause 15.4.
16. THE LENDERS, THE AGENT AND THE ARRANGERS
16.1 Appointment. Each Lender hereby appoints the Agent to act as its agent
in relation to the administration of the Facility and as its agent and
trustee in relation to the Security Documents and authorises the Agent
to enter into the Security Documents on its behalf and to take such
action on its behalf and to exercise and enforce such rights, powers
and discretions as are expressly or by implication delegated to the
Agent by the terms of this Agreement and the Security Documents and
such rights, powers and discretions as are reasonably incidental
thereto.
16.2 Nature of Duties. The duties and functions of the Agent shall be of an
administrative nature only. The Agent shall not be deemed to be a
trustee of any Lender except as specified in this Agreement and the
Security Documents and shall not be deemed to be an agent or trustee of
the Borrower for any purpose except as specified in Clause 20.5. The
Agent shall have no duties or obligations except those expressly set
out in this Agreement and the Security Documents.
16.3 Specific Duties. The Agent shall:
(a) promptly account to each Lender for its due proportion of all
payments received by the Agent from the Borrower or otherwise
in connection with the Facility;
(b) promptly inform each Lender of:
(i) the contents of any document which the Agent receives
in respect of the Facility and which it considers to
be material; and
(ii) any material Event of Default of which an officer of
the Agent acting in respect of this Agreement and in
his capacity as such has actual knowledge;
(c) except as otherwise provided in this Agreement, take or
refrain from taking any action in accordance with any lawful
and proper instructions given to it by the Majority Lenders,
and any such instructions shall be binding on all the Lenders;
(d) consult with the Lenders to the extent practicable before
making any declaration or demand under Clause 13.2 or
effecting any amendment or waiver under Clause 17.
16.4 Rights and Powers. The Agent may:
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(a) perform any of its duties and functions through its directors,
officers, employees or agents;
(b) engage and pay for the advice or services of lawyers,
accountants or other professional advisers or experts as the
Agent may consider necessary or desirable and rely and act
upon such advice;
(c) refrain from exercising any of its rights, powers and
discretions unless and until instructed to do so, and as to
the manner of doing so, by the Majority Lenders, and refrain
from acting upon any instructions to take enforcement action
until it has been indemnified or secured to its satisfaction
against any liabilities, costs and expenses which it may
incur;
(d) refrain from taking any action which in its opinion would or
might contravene any law or regulation or render it liable to
any person, and do all things which in its opinion may be
necessary in order to comply with any law or regulation;
(e) assume that no Event of Default or prospective Event of
Default has occurred and that no party is in breach of its
obligations under this Agreement or any Security Document
unless the Agent receives specific written notice to the
contrary; and
(f) rely upon any communication or document which it believes to
be genuine and, as to any matters of fact which can reasonably
be expected to be within the knowledge of any other party to
this Agreement or any Security Document, rely upon a
certificate signed by or on behalf of that party.
16.5 No Liability to Lenders. The Agent shall have no liability or
obligation to any Lender:
(a) as a result of any failure or delay by the Borrower or any
other party in performing its respective obligations under
this Agreement or any Security Document;
(b) for the authorisation, execution, legality, validity,
enforceability, effectiveness, genuineness or sufficiency of
this Agreement, any Security Document or any other document
relevant to this transaction or for the collectability of any
sum payable under this Agreement or any Security Document;
(c) for:
(i) the accuracy or completeness of the information
memorandum referred to in Clause 11.1(1);
(ii) the accuracy or completeness of any other information
supplied by any person at any time whether or not
such information was or is circulated by the Agent;
(iii) the accuracy of any representation, warranty or
statement (whether written or oral) made in or at any
time in connection with this Agreement or any
Security Document;
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(d) to take any steps to ascertain whether an Event of Default or
prospective Event of Default has occurred or whether the
Borrower or any other party is otherwise in breach of any of
its respective obligations under this Agreement or any
Security Document;
(e) to provide any credit or other information relating to the
Borrower or any Security Party or otherwise relating to the
Facility, except as expressly stated in this Agreement;
(f) to account for any sum received by the Agent (other than for
the account of the Lenders) by way of fees or reimbursement of
expenses in connection with this Agreement or for any benefit
received by it arising out of any present or future banking or
other relationship with the Borrower or any Security Party or
any person connected with the Borrower or any Security Party;
(g) as a result of any act or omission by the Agent or any
director, officer, employee or agent of the Agent in
connection with the Facility, except in the case of the
Agent's gross negligence or wilful misconduct.
Each Lender agrees that it will not seek to make any claim against any
director, officer, employee or agent of the Agent in respect of any of
the matters described in this Clause 16.5.
16.6 No Liability to Borrower. The Agent shall have no liability or
obligation to the Borrower as a result of any failure or delay by any
Lender or any other party in performing its respective obligations
under this Agreement or any Security Document.
16.7 Indemnity. The Lenders shall indemnify the Agent upon demand from and
against all claims, actions, liabilities, damages, penalties, losses,
costs and expenses (including legal fees) which the Agent may incur in
any way relating to or arising out of this Agreement or any Security
Document or any action taken or omitted to be taken by the Agent in
seeking to protect, exercise or enforce the rights of the Lenders and
the Agent or otherwise in connection with the Facility, unless and to
the extent that any of the foregoing results directly from the Agent's
gross negligence or wilful misconduct. The Lenders shall be severally
liable under the foregoing indemnity in proportion to their respective
Participations in the Loan or, if no Advance has yet been made, in
proportion to their respective Commitments, in each case calculated at
the time of the Agent's demand, or, if the Loan has been fully repaid,
in proportion to their respective Participations in the Loan
immediately before such repayment.
16.8 Acknowledgement by Lenders. Each Lender acknowledges to and agrees with
the Agent that:
(a) it has itself been and will continue to be solely responsible
for making its own independent analysis of and investigations
into the status, creditworthiness, prospects, business,
operations, assets and condition of the Borrower each Security
Party and any other person referred to herein and for making
its own decisions as to the entering into or the taking or not
taking of any action in connection with this transaction;
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(b) it has not relied upon any representation or statement made by
the Agent as being an inducement to enter into this Agreement.
16.9 Certifications by Agent. Where any provision of this Agreement or any
Security Document provides that the Agent may certify or determine an
amount or rate payable by the Lenders or any of them, a certificate by
the Agent as to such amount or rate shall be conclusive and binding on
each such Lender in the absence of manifest error.
16.10 No Restriction of Business. The Agent shall have the same rights and
powers in its capacity as a Lender as any other Lender and may exercise
such rights and powers as if it was not acting as an agent and trustee
in relation to this Agreement and the Security Documents. The Agent may
engage in any other business with the Borrower or any Security Party or
any person connected with the Borrower or any Security Party and may
treat as confidential any information which it receives in connection
with such other business.
16.11 Resignation of Agent. The Agent may resign at any time by giving not
less than thirty (30) days' prior written notice to the Lenders and the
Borrower. The Majority Lenders, on behalf of the Lenders, shall have
the right to appoint a successor Agent, but if they do not do so within
the period of such notice the retiring Agent may appoint a successor
Agent from among the Lenders without the consent of the Borrower, or
otherwise with the Borrower's consent, such consent not to be
unreasonably withheld. The Agent's resignation shall not take effect
until a successor Agent has been appointed. Upon such appointment the
successor Agent shall succeed to and become vested with all the rights,
powers, discretions and duties of the retiring Agent and the retiring
Agent shall be discharged from any further duties and obligations
hereunder. The parties to this Agreement agree to execute whatever
documents may be necessary to effect such a change of Agent. After any
retiring Agent's resignation the provisions of this Clause 16 shall
continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as the Agent.
16.12 Security Documents. The following provisions shall apply to the Agent
in its capacity as trustee in relation to any of the Security
Documents:
(a) the Agent:
(i) may accept without enquiry or objection such title as
the Borrower or the relevant Security Party may have
to any assets which are subject to any of the
Security Documents and shall not be liable for any
lack of or defect in such title, whether apparent or
not and whether capable of remedy or not;
(ii) shall not be liable for any omission or delay in
giving notice to any third party, or effecting any
filing or registration, or obtaining any
authorisation, or otherwise perfecting the security
constituted by any of the Security Documents;
(iii) shall not be obliged to hold any title or other
documents relating to the assets charged under any of
the Security Documents in its own possession or to
take any steps to protect or preserve such documents,
and may
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permit the relevant Security Party to retain such
documents in its possession if it is reasonable in
the circumstances;
(b) unless provided otherwise in any Security Document, monies
which are received by the Agent and held by it as trustee in
relation to any of the Security Documents may be invested in
the name of or under the control of the Agent in any
investment authorised by English law for the investment of
trust money by trustees or in any other investments which may
be selected by the Agent, and if not otherwise invested such
monies may be placed on deposit in the name of or under the
control of the Agent at such bank or institution (including
the Agent) and upon such terms as the Agent may reasonably
think fit;
(c) each Lender, and each Arranger authorises the Agent (by itself
or by such person(s) as it may nominate) to execute and
enforce the Security Documents as trustee, as agent or as
otherwise provided, and confirms that the Agent shall have an
independent right to release from any Security Document any
asset permitted to be disposed of under this Agreement;
(d) the Agent may appoint any person established or resident in
any jurisdiction (whether a trust corporation or not) to act
as a trustee or agent, either separately or jointly with the
Agent, in relation to any of the Security Documents if the
Agent considers that such an appointment is necessary or
desirable for the purpose of conforming with any legal
requirement in any relevant jurisdiction or otherwise for the
purpose of holding, administering, protecting or enforcing any
of the Security Documents, and any such trustee or agent shall
have such powers and discretions (not exceeding those
conferred on the Agent) and such obligations as shall be
conferred or imposed on it by the Agent;
(e) Clauses 16.4 to 16.11 shall also apply to the Agent in its
capacity as trustee in relation to any of the Security
Documents.
16.13 Arrangers. The Arrangers in their capacities as such shall have no
duties or obligations under or in connection with this Agreement or the
Security Documents. Clauses 16.5, 16.6 and 16.8 shall apply for the
benefit of the Arrangers as if references therein to the Agent were
references to each of them.
16.14 No Partnership. Nothing contained or implied in this Agreement shall
constitute or be deemed to constitute a partnership between any of the
parties to this Agreement.
17. AMENDMENT
Any amendment or waiver of any provision of this Agreement and any
waiver of any default under this Agreement shall only be effective if
made in writing and signed by or on behalf of the party against whom
the amendment or waiver is asserted. For these purposes, any amendment
or waiver which is made in writing by the Agent at the direction of the
Majority Lenders shall be binding on all Lenders, except that the
written approval of the Lender against which an amendment or waiver is
asserted is required where that amendment or waiver relates to:
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(a) an increase of the Facility or of any Lender's Commitment or
the length of the Availability Period or the amount or
currency of or the due date for any payment of principal or
interest on any Advance;
(b) a reduction in the rate or rates of interest or any commitment
or other fees or other amounts payable to the Lenders
hereunder;
(c) any voluntary or mandatory prepayment;
(d) any amendment of the definition of "Majority Lenders" or of
the provisions of this Clause; or
(e) the provision of any guarantee of or security for the
Borrower's obligations under this Agreement or the release or
amendment of any Security Document or any security created
thereby.
Any amendment affecting the rights of the Agent shall also require the
consent of the Agent.
18. WAIVER AND SEVERABILITY
Time is of the essence of this Agreement but no failure or delay by the
Agent, any Lender, or any Arranger in exercising any right, power or
remedy hereunder shall impair such right, power or remedy or operate as
a waiver thereof, nor shall any single or partial exercise of the same
preclude any further exercise thereof or the exercise of any other
right, power or remedy. The rights, powers and remedies herein provided
are cumulative and do not exclude any other rights, powers and remedies
provided by law. If at any time any provision of this Agreement is or
becomes illegal, invalid or unenforceable in any respect under the law
of any jurisdiction, the legality, validity and enforceability of such
provision under the law of any other jurisdiction, and of the remaining
provisions of this Agreement, shall not be affected or impaired
thereby.
19. MISCELLANEOUS
19.1 Execution. This Agreement shall become effective as of the date hereof.
19.2 Entire Agreement. This Agreement and the documents referred to herein
constitute the entire obligation of the Lenders, the Agent, and the
Arrangers and supersede any previous expressions of intent or
understandings in respect of this transaction.
19.3 Publicity. No announcement or other publicity in connection with this
Agreement or relating in any way to the Facility shall be made or
arranged except with the Agent's prior written consent.
19.4 Counterparts. This Agreement may be executed in any number of
counterparts and by different parties on separate counterparts which
when taken together shall be deemed to constitute one agreement.
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20. ASSIGNMENT, NOVATON AND LENDING OFFICES
20.1 The Borrower. The Borrower shall not assign or transfer all or any part
of its rights or obligations under this Agreement.
20.2 Assignment and Novation. A Lender may:
(a) assign all or any part of its rights under this Agreement in
accordance with Clause 20.3; or
(b) transfer by novation all or a portion of its rights, benefits
and obligations under this Agreement in accordance with Clause
20.4,
(any such assignment or transfer by novation being referred to in this
Clause 20 as a "TRANSFER"). The Borrower shall execute and do all such
documents, acts and things as the Agent may reasonably require for
perfecting and completing any such transfer.
20.3 Assignment by Lenders. Any Lender may at any time without the consent
of any person assign all or any of its rights under this Agreement and
the corresponding benefit of any of the Security Documents to any other
person PROVIDED that:
(a) any transfer of rights together with a novation of obligations
to the same person may only be made in accordance with the
novation procedure set out in Clause 20.4; and
(b) no such assignment shall take effect until the proposed
assignee has (i) agreed with the Agent and the other Lenders
that it shall be under the same obligations towards each of
them as it would have been under if it had been a party hereto
as a Lender, (ii) paid the Agent for its own account a fee of
one thousand Dollars (US$1,000) and (iii) paid all sums which
have been demanded under Clause 20.7.
20.4 Novation by Lenders. Any Lender may at any time transfer by novation
all or part of its rights, benefits and/or obligations under or arising
out of this Agreement and the corresponding benefit of the Security
Documents to an Eligible Transferee. Such transfer shall be effected
by:
(i) the Eligible Transferee delivering a completed original
Novation Certificate duly executed by such Lender and the
intended Transferee to the Agent (for this purpose only, for
itself and as agent for and on behalf of the Borrower and the
other Lenders) together with a fee for the account of the
Agent of one thousand Dollars (US$1,000); and
(ii) the Agent executing such Novation Certificate to acknowledge
receipt thereof.
Upon delivery and execution of a Novation Certificate in accordance
with the above conditions, all parties to this Agreement agree that, on
the later of the date specified as the Transfer Date in such Novation
Certificate and the fifth (5th) Banking Day following the date of
receipt thereof by the Agent (unless the Agent agrees a shorter
period):
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(a) to the extent only that in such Novation Certificate the
Lender which is party thereto seeks to transfer its rights
and/or its obligations under this Agreement and the Security
Documents, the Borrower and such Lender shall each be released
from further obligations to the other hereunder and their
respective rights against the other shall be cancelled (such
rights and obligations being referred to in this Clause 20.4
as "DISCHARGED RIGHTS AND OBLIGATIONS");
(b) the Borrower and the Transferee which is party to such
Novation Certificate shall each assume obligations towards the
other and/or acquire rights against the other which differ
from such discharged rights and obligations only insofar as
the Borrower and such Transferee have assumed and/or acquired
the same in place of the Borrower and such Lender; and
(c) the Agent, such Transferee and the other Lenders shall acquire
the same rights and assume the same obligations between
themselves as they would have acquired and assumed had such
Transferee been an original party hereto as a Lender with the
rights and obligations acquired or assumed by it as a result
of such transfer.
20.5 Authority. Each of the Borrower and the other Lenders hereby
irrevocably authorises the Agent without further reference to it to
acknowledge receipt of each Novation Certificate delivered to it in
accordance with Clause 20.4 by its execution thereof. Upon receipt of
any Novation Certificate, the Agent shall send a copy thereof to the
Borrower but the Borrower agrees that failure to do so shall not
invalidate any transfer. The Agent shall incur no liability to the
Borrower or any Lender by virtue of its acting in accordance with the
provisions of this Clause.
20.6 Reliance. The Agent and the Borrower may rely on and act in accordance
with any Novation Certificate which has been delivered to and accepted
by the Agent in accordance with Clause 20.4 and which appears to be
complete and regular on its face. Neither of them shall incur any
liability to any party by so doing and the Agent shall not be obliged
to check or enquire whether a purported Transferee is an Eligible
Transferee PROVIDED that if it has actual notice that any proposed
Transferee is not an Eligible Transferee, the Agent is hereby
authorised (but not obliged) to refuse to accept the relevant Novation
Certificate.
20.7 Reimbursement of Agent. Any Lender seeking to effect any transfer under
this Clause 20 shall reimburse the Agent on demand for all costs,
charges and expenses (including legal fees on a full indemnity basis)
reasonably incurred in connection therewith.
20.8 Payments. The Agent shall distribute payments received by it in
relation to all or any part of a share of Commitment or Participation
to the Lender indicated in the records of the Agent as being so
entitled on that date PROVIDED that the Agent is authorised to
distribute payments to be made on the date on which any transfer
becomes effective pursuant to any part of this Clause to the Lender so
entitled immediately before such transfer took place regardless of the
period to which such sums relate.
20.9 Participations. A Lender may at any time grant one or more
participations in its rights and/or obligations under this Agreement
and the Security Documents but no other party hereto shall be concerned
in any way with any participation so granted.
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20.10 Disclosure. A Lender may disclose to (i) any Assignee, Transferee or
participant or potential Assignee, Transferee or participant, (ii) the
Holding Company of such Lender or (iii) any Subsidiary of such Lender
or of its Holding Company on a confidential basis such information
about the Borrower as such Lender shall consider appropriate. Any
Lender and any person to whom disclosure has been made pursuant to this
Clause may also make such disclosures as may be required by any
applicable law of England, Hong Kong or elsewhere.
20.11 Lending Offices. Each Lender shall act initially through its Lending
Office specified in Schedule 1 and may act subsequently through any of
its other offices as selected by it from time to time. A Lender shall
promptly notify the Agent of any change of its Lending Office.
20.12 Reference Banks. The Agent shall, on the written instructions of the
Majority Lenders, replace any Reference Bank at any time with such
other bank as the Majority Lenders shall designate and the Agent shall
give notice of any such replacement to the Borrower and the Lenders.
21. NOTICES
21.1 Delivery. Each notice, demand or other communication to be given or
made under this Agreement shall be in writing and delivered or sent to
the relevant party at its address or telex number or fax number set out
below (or such other address or telex number or fax number as the
addressee has by five (5) days' prior written notice specified to the
other parties):
To the Borrower: Zindart Limited
Flat C & D, 25th Floor, Block 1
Tai Ping Industrial Centre
57 ▇▇▇▇ ▇▇▇ Road
Tai Po
New Territories
Hong Kong
Fax Number : (▇▇▇) ▇▇▇▇ ▇▇▇▇
Attention : Feather Fok
To the Agent: Credit Suisse First Boston, Singapore Branch
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ #▇▇-▇▇
▇▇▇ ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax Number : (▇▇) ▇▇▇ ▇▇▇▇
Attention : Credit Operations
and to the Lenders at their respective Lending Offices.
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21.2 Deemed Delivery. Any notice, demand or other communication so addressed
to the relevant party shall be deemed to have been delivered (a) if
given or made by letter, when actually delivered to the relevant
address, (b) if given or made by telex, when despatched with confirmed
answerback and (c) if given or made by fax, when despatched, Provided
that, if such day is not a working day in the place to which it is
sent, such notice, demand or other communication shall be deemed
delivered on the next following working day at such place.
21.3 Agent. All communications between the Lenders and the Borrower in
relation to this Agreement shall be made through the Agent.
21.4 Language. Each notice, demand or other communication hereunder and any
other documents required to be delivered hereunder shall be either in
English or accompanied by a certified translation thereof into the
English language.
22. GOVERNING LAW AND JURISDICTION
22.1 Law. This Agreement and the rights and obligations of the parties
hereunder shall be governed by and construed in accordance with the
laws of England.
22.2 Jurisdiction. The Borrower irrevocably agrees for the benefit of the
Agent and each of the Lenders that any legal action or proceeding
arising out of or relating to this Agreement may be brought in the
courts of England and irrevocably submits to the non-exclusive
jurisdiction of such courts.
22.3 Process Agent. The Borrower irrevocably appoints ▇▇▇▇▇▇▇▇▇ Englefield
of ▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ as its agent to receive and
acknowledge on its behalf service of any writ, summons, order, judgment
or other notice of legal process in England. If for any reason the
agent named above (or its successor) no longer serves as agent of the
Borrower for this purpose, the Borrower shall promptly appoint a
successor agent satisfactory to the Agent and notify the Agent thereof
PROVIDED that until the Agent receives such notification, it shall be
entitled to treat the agent named above (or its said successor) as the
agent of the Borrower for the purposes of this Clause. The Borrower
agrees that any such legal process shall be sufficiently served on it
if delivered to such agent for service at its address for the time
being in England whether or not such agent gives notice thereof to the
Borrower.
22.4 No Limitation on Right of Action. Nothing herein shall limit the right
of the Agent and the Lenders to commence any legal action against the
Borrower and/or its property in any other jurisdiction or to serve
process in any manner permitted by law, and the taking of proceedings
in any jurisdiction shall not preclude the taking of proceedings in any
other jurisdiction whether concurrently or not.
22.5 Waiver; Final Judgment Conclusive. The Borrower irrevocably and
unconditionally waives any objection which it may now or hereafter have
to the choice of England as the venue of any legal action arising out
of or relating to this Agreement and agrees not to claim that any court
thereof is not a convenient or appropriate forum. The Borrower also
agrees that a final judgment against it in any such legal action shall
be final and conclusive and may be enforced in any other jurisdiction,
and that a certified or otherwise
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duly authenticated copy of the judgment shall be conclusive evidence of
the fact and amount of its indebtedness.
22.6 Waiver of Immunity. The Borrower irrevocably and unconditionally waives
any immunity to which it or its property may at any time be or become
entitled, whether characterised as sovereign immunity or otherwise,
from any set-off or legal action in England or elsewhere, including
immunity from service of process, immunity from jurisdiction of any
court or tribunal, and immunity of any of its property from attachment
prior to judgment or from execution of a judgment.
IN WITNESS WHEREOF this Agreement has been executed by the parties hereto on the
date stated at the beginning of this Agreement.
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SCHEDULE 1
The Lenders
Name and Lending Office Commitment
----------------------- ----------
Credit Suisse First Boston US$22,500,000
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇(▇)
Financial Park ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇.▇.
▇▇▇▇▇▇▇▇
Fax No: (▇▇) ▇▇▇▇ ▇▇▇▇
Attention: Ms. ▇▇▇▇ ▇▇▇
Standard Chartered Bank US$7,500,000
16/F, Miramar Tower
▇-▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
Telex No.: 73230
Fax No: (▇▇▇) ▇▇▇▇ ▇▇▇▇ / 2785 2327
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇/Ms. ▇▇▇▇▇ ▇▇▇▇
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SCHEDULE 2
Form of Novation Certificate
TO: Credit Suisse First Boston, Singapore Branch as agent for itself and on
behalf of the Lenders and the Borrower each as defined below and as
agent and trustee under the Security Documents
NOVATION CERTIFICATE
Relating to the agreement (the "LOAN AGREEMENT") dated 1998 whereby a loan
facility was made available to Zindart Limited (the "BORROWER") by the Lenders
(as therein defined) on whose behalf Credit Suisse First Boston, Singapore
Branch (the "AGENT") acted as agent in connection therewith. Terms defined in
the Loan Agreement shall have the same meanings when used herein.
1. [ ] (the "TRANSFEROR") confirms the accuracy of the summary of its
Participation in the Facility set out in the Schedule below and
requests [ ] (the "TRANSFEREE") to accept and procure the transfer to
the Transferee of [the whole] / [[ ] per cent] of its Commitment and/or
its Participation in the outstanding Advances and the corresponding
benefit of the Security Documents by countersigning and delivering this
Novation Certificate to the Agent at its address for the service of
notices specified in the Loan Agreement.
2. The Transferee hereby requests the Agent to accept this Novation
Certificate as being delivered to the Agent pursuant to Clause 20.4 of
the Loan Agreement so as to take effect in accordance with the terms
thereof on [ ] 19 (the "TRANSFER DATE") or on such later date as may be
determined in accordance with the terms of Clause 20.4 and confirms and
agrees as contemplated by such Clause.
3. The Transferee hereby:
(a) undertakes with the Transferor and each of the other parties
to the Loan Agreement that it will perform in accordance with
their terms all those obligations which by the terms of the
Loan Agreement and any Security Document are expressed to be
assumed by it after receipt of this Novation Certificate by
the Agent and satisfaction of the conditions (if any) subject
to which this Novation Certificate is expressed to take
effect;
(b) appoints the Agent to act as its agent as provided in the Loan
Agreement and as its agent and trustee as provided in the
Security Documents;
(c) expressly agrees to all the terms of the Loan Agreement and
the Security Documents.
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4. The Transferee warrants that it has received copies of the Loan
Agreement and each of the Security Documents together with such other
information as it has required in connection with this transaction and
that it has not relied and will not hereafter rely on the Transferor,
the Agent or any Lender to check or enquire on its behalf into the
legality, validity, effectiveness, adequacy, accuracy or completeness
of any such document or information and further agrees that it has not
relied and will not rely on the Transferor, the Agent or any Lender to
assess or keep under review on its behalf the financial condition,
creditworthiness, condition, affairs, status or nature of the Borrower
or any other party to any Security Document.
5. Neither the Transferor nor the Agent (either on its own behalf or on
behalf of any Lender or other person) makes any representation or
warranty or assumes any responsibility with respect to the legality,
validity, effectiveness, adequacy or enforceability of the Loan
Agreement, the Security Documents or any document relating thereto or
assumes any responsibility for the financial condition of the Borrower,
any Security Party or any other party or for the performance and
observance by the Borrower or any other party of any of its obligations
under the Loan Agreement, the Security Documents or any document
relating thereto and any and all such conditions and warranties,
whether express or implied by law or otherwise, are hereby excluded.
6. By its execution of this Novation Certificate, the Transferee hereby
represents to the Transferor and each of the other parties to the Loan
Agreement and the Security Documents that:
(a) it is an Eligible Transferee; and
(b) it is duly incorporated, validly existing, has full power,
authority and legal right to enter into the transactions
contemplated by, and perform the obligations assumed pursuant
to, this Novation Certificate and the Loan Agreement and the
Security Documents and has taken all necessary action to
authorise execution of this Novation Certificate.
7. The Transferor hereby gives notice that nothing herein or in the Loan
Agreement or in any Security Document (or any document relating
thereto) shall oblige the Transferor to:
(a) accept a re-transfer from the Transferee of the whole or any
part of its rights, benefits and/or obligations under the Loan
Agreement or any Security Document hereby transferred; or
(b) support any losses directly or indirectly sustained or
incurred by the Transferee (i) by reason of the
non-performance by the Borrower or any other party to the Loan
Agreement, any Security Document or any document relating
thereto of its obligations under any such document or (ii)
otherwise.
The Transferee hereby acknowledges the absence of any such obligation
as is referred to in (a) or (b) above.
8. This Novation Certificate and the rights and obligations of the parties
hereto shall be governed by and construed in accordance with the laws
of England.
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THE SCHEDULE
TRANSFEROR'S PARTICIPATION IN THE FACILITY
COMMITMENT PARTICIPATION IN ADVANCES
AMOUNT TO BE TRANSFERRED
COMMITMENT PARTICIPATION
% %
Amount: Amount:
US$ US$
[Transferor] [Transferee]
By: By:
Date________________________ Date:____________________
Address:
Tel:
Fax:
Telex:
Bank account(s)
for payments:
Receipt acknowledged.
Agent
By:
Date:____________________
o This Novation Certificate is not a security and is of no value to any
person other than the Transferor, the Transferee and the Borrower.
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SCHEDULE 3
Financial Definitions
For the purposes of Clause 12.3, unless the context otherwise requires:
"CONSOLIDATED BORROWINGS" means, in relation to the Borrower and its
Subsidiaries on a consolidated basis, indebtedness incurred in respect of (i)
money borrowed or raised, (ii) any bond, note, loan stock, debenture or similar
instrument or commercial paper, (iii) rental payments under leases (whether in
respect of land, machinery, equipment or otherwise) entered into primarily as a
method of raising finance or of financing the acquisition of the asset leased,
(iv) Consolidated Contingent Liabilities, (v) deferred payments for assets or
services acquired, (vi) guarantees, bonds, standby letters of credit or other
instruments issued in connection with the performance of contracts or (vii)
guarantees or other assurances against financial loss in respect of Consolidated
Borrowings of any other person (but otherwise falling within the above);
"CONSOLIDATED CONTINGENT LIABILITIES" means in respect of the Borrower and its
Subsidiaries on a consolidated basis, the total contingent liabilities of the
Borrower and its Subsidiaries, at any time, calculated in accordance with
accounting practices generally applied in Hong Kong, but shall, in any event, be
deemed to include the amount of all liabilities of third parties guaranteed or
secured by or the subject of an indemnity or other right or recourse against the
Borrower or any of its Subsidiaries;
"CONSOLIDATED EBITDA" means, in relation to the Borrower and its Subsidiaries on
a consolidated basis in respect of any financial year, earnings before
Consolidated Interest Expenses, taxation, depreciation and amortisation,
determined by reference to the then latest consolidated accounts of the Borrower
supplied to the Agent pursuant to Clause 12.1(a);
"CONSOLIDATED INTEREST EXPENSES" means, in relation to the Borrower and its
Subsidiaries on a consolidated basis for any financial year, the aggregate
amount of all interest (including any interest which may have been capitalised),
fees and commissions accrued (whether or not paid) during such financial year on
all Consolidated Borrowings.
"CONSOLIDATED NET WORTH" means, in relation to the Borrower and its Subsidiaries
on a consolidated basis, the aggregate of:
(i) the amount paid up or credited as paid up on the issued share capital
of the Borrower;
(ii) the amounts standing to the credit of the consolidated capital and
revenue reserves of the Borrower and its Subsidiaries including but not
limited to any share premium account, capital redemption reserve fund,
property revaluation reserve (where the revaluation in question is in
accordance with a report of a professional valuer which valuer has been
approved by the Agent) and profit and loss account;
all as shown by the then latest audited consolidated balance sheet of the
Borrower as supplied to the Agent pursuant to Clause 12.1(a), but after:
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44
(A) deducting therefrom such part of the amount standing to the credit of
the said reserves as is, in the opinion of its auditors attributable to
the amounts by which the book values of any assets of the Borrower and
its Subsidiaries are written up after the date hereof (other than in
the case of a revaluation of any real property as aforesaid) or, in the
case of a Subsidiary incorporated after the date of this Agreement,
after the date on which it became or becomes a Subsidiary and so that
for the purposes of the foregoing provisions any increase in the book
value of any assets resulting from their transfer by the Borrower or
any of its Subsidiaries, to another member of the same group of
companies shall be deemed to result from a writing up of the book value
of such assets;
(B) making such adjustments as may be appropriate to reflect any variation
in the amount of such paid-up share capital or the amounts standing to
the credit of such reserves (other than profit and loss account) which
shall have occurred since the date of the said latest audited
consolidated balance sheet of the Borrower or which would result from
any transaction for the purpose of which the Consolidated Net Worth is
being computed or any transaction to be carried out contemporaneously
therewith and so that for this purpose if the Borrower proposes to
issue or has issued shares for cash and the issue has been underwritten
by a financial institution or financial institutions satisfactory to
the Agent then such shares shall be deemed to have been issued and the
amount (including any premium) of the subscription moneys payable in
respect thereof (not being moneys payable later than four (4) months
after the date of allotment) shall be deemed to have been paid up at
the date on which the issue of such shares was underwritten and such
underwriting became unconditional;
(C) deducting therefrom, to the extent included in such reserves and if not
otherwise deducted, any amount attributable to the interests of the
Borrower and its Subsidiaries, in a company outside such group of
companies insofar as the same exceeds the cost of such interests;
(D) making such adjustments as may be necessary to take account of any
variation in interests in any company within the same group of
companies, as appropriate, which shall have occurred since the date of
the latest audited financial statements of the Borrower or which would
result from any transaction for the purpose of which the Consolidated
Net Worth is being computed or any transaction to be carried out
contemporaneously therewith;
(E) making such other adjustments (if any) as the auditors of the Borrower
consider appropriate (including proper adjustments to take account of
any minority or other interests in any Subsidiary or a variation to the
provisions set out in paragraph (E) above if consistent with the
existing accounting policies and procedures of the Borrower);
(F) deducting therefrom any liability in respect of the principal amount of
any subordinated indebtedness of the Borrower and its Subsidiaries;
(G) deducting therefrom (if not otherwise deducted) any amounts
attributable to intangible assets, including goodwill, distribution
rights and intellectual property, and the amount of any debit balance
on profit and loss account.
"CONSOLIDATED TOTAL INTEREST BEARING LIABILITIES" means, in relation to the
Borrower and its Subsidiaries on a consolidated basis, indebtedness incurred in
respect of (i) money borrowed or
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raised, (ii) any bond, note, loan stock, debenture or similar interest-bearing
instrument or commercial paper or (iii) Consolidated Contingent Liabilities;
"CONSOLIDATED TOTAL LIABILITIES" means, in relation to the Borrower and its
Subsidiaries on a consolidated basis, its total consolidated liabilities
calculated in accordance with accounting principles generally accepted in Hong
Kong but shall, insofar as not otherwise taken into account, be deemed to
include the following (calculated on a consolidated basis):
(i) any liability of the Borrower and its Subsidiaries in respect of
Consolidated Borrowings;
(ii) all actual liabilities of whatsoever nature of the Borrower and its
Subsidiaries (including, without limitation, any premium mandatorily
payable on redemption of any indebtedness) and all liabilities in the
form of guarantees of any other person to the extent that such
liabilities are required to be disclosed under generally accepted
accounting principles;
(iii) any indebtedness of the Borrower and its Subsidiaries owed to other
members of the same group of companies;
Provided that no liability shall be included in the calculation of Consolidated
Total Liabilities more than once.
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THE BORROWER
SIGNED for and on behalf of )
ZINDART LIMITED )
by )
THE ARRANGERS
SIGNED for and on behalf of )
CREDIT SUISSE FIRST BOSTON, )
HONG KONG BRANCH )
by )
SIGNED for and on behalf of )
STANDARD CHARTERED BANK )
by )
THE LENDERS
SIGNED for and on behalf of )
CREDIT SUISSE FIRST BOSTON, )
LABUAN BRANCH )
by )
SIGNED for and on behalf of )
STANDARD CHARTERED BANK )
by )
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47
THE AGENT
SIGNED for and on behalf of )
CREDIT SUISSE FIRST BOSTON, )
SINGAPORE BRANCH )
by )
45
48
APPENDIX 1
Form of Notice of Drawing
From: Zindart Limited
To: Credit Suisse First Boston, Singapore Branch
_____________________________1998
Dear Sirs,
US$30,000,000 REVOLVING CREDIT FACILITY:
FACILITY AGREEMENT DATED [ ] 1998
We refer to the above Facility Agreement, and hereby give notice that we wish to
draw an Advance under the Facility ________ on 199 in the amount of US$_____.
The proceeds of the Advance should be disbursed in accordance with clause 10.1
of the Facility Agreement.
The proceeds of the Advance are to be used exclusively for the purposes
specified in the Facility Agreement.
We confirm that:
(a) the representations and warranties set out in clause 11.1 of the
Facility Agreement, repeated with reference to the facts and
circumstances subsisting at the date of this notice, remain true and
correct; and
(b) no Event of Default or prospective Event of Default has occurred which
remains unwaived or unremedied or would result from the making of the
Advance.
Terms defined in the Facility Agreement have the same meanings when used in this
notice.
For and on behalf of
Zindart Limited
___________________________
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APPENDIX 2
FORM OF CHARGE OVER ACCOUNT
DATED 1998
----------------------------
ZINDART LIMITED
AS BORROWER
- AND -
CREDIT SUISSE FIRST BOSTON, SINGAPORE BRANCH
ON ITS OWN BEHALF AND AS AGENT AND TRUSTEE
FOR THE LENDERS REFERRED TO HEREIN
-------------------
CHARGE OVER ACCOUNT
-------------------
▇▇▇▇▇ & Mc. KENZIE
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
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CONTENTS
Number Clause Heading Page
------ -------------- ----
1. Interpretation........................................................1
2. Charge................................................................2
3. Continuing Security...................................................3
4. Representations and Warranties........................................3
5. Undertakings..........................................................3
6. Enforcement...........................................................4
7. Taxes and Other Deductions............................................4
8. Costs, Charges and Expenses...........................................5
9. Borrower's Liability..................................................5
10. Indemnity.............................................................5
11. Further Assurance.....................................................6
12. Power of Attorney.....................................................6
13. Suspense Account......................................................6
14. Waiver and Severability...............................................7
15. Miscellaneous.........................................................7
16. Assignment............................................................8
17. Notices...............................................................8
18. Governing Law and Jurisdiction........................................9
Schedule The Charged Account.........................................11
EXECUTION.....................................................................12
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THIS DEED is made on the day of 1998
------------------- --------------------------
BETWEEN:
(1) ZINDART LIMITED, a company incorporated under the laws of Hong Kong
having its registered office at ▇▇▇▇ ▇ & ▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇
Ping Industrial Centre, 57 ▇▇▇▇ ▇▇▇ Road, Tai Po, New Territories, Hong
Kong (the "BORROWER"); and
(2) CREDIT SUISSE FIRST BOSTON, SINGAPORE BRANCH on its own behalf and as
agent and trustee for the Lenders (as defined below) from time to time
(in such capacity, the "AGENT").
WHEREAS:
(A) By a loan agreement (the "LOAN AGREEMENT") dated ______________________
1998 made between (1) the Borrower, (2) Credit Suisse First Boston,
Hong Kong Branch and Standard Chartered Bank as arrangers (the
"ARRANGERS"), (3) the banks and other financial institutions defined
therein as lenders (the "LENDERS") and (4) the Agent, the Lenders have
agreed to make available to the Borrower a loan facility of up to
US$30,000,000 (the "FACILITY") upon the terms set out therein.
(B) The Agent is acting as agent for the Lenders and the Arrangers pursuant
to the Loan Agreement and as agent and trustee for the Lenders and the
Arrangers pursuant to this Deed.
(C) It is a condition precedent to the Lenders making the Facility
available to the Borrower that the Borrower enters into this Deed.
NOW THIS DEED WITNESSES AS FOLLOWS:
1. INTERPRETATION
1.1 Definitions and Construction. In this Deed, unless the context requires
otherwise:
(a) terms and expressions defined in or construed for the purposes
of the Loan Agreement shall have the same meanings or be
construed in the same manner when used in this Deed;
(b) the expression "AGENT" shall mean the Agent acting on its own
behalf and as agent and trustee for the Lenders and the
expression "LENDERS" shall have the meaning ascribed to it in
the Loan Agreement and shall include the Arrangers in their
respective capacities as such;
(c) the expression "CHARGE" shall include any right of set-off;
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52
(d) "CHARGED ACCOUNT" means the Dollar denominated account of the
Borrower with the Agent more particularly described in
Schedule 1 and all sums now or hereafter deposited in such
account and all additions to or renewals or replacements
thereof (in whatever currency) and all interest or other sums
which may accrue from time to time thereon;
(e) "SECURED INDEBTEDNESS" means all and any sums (whether
principal, interest, fees or otherwise) which are or at any
time may become payable by the Borrower under the Loan
Agreement or any Security Document to which it is a party and
all other monies hereby secured.
1.2 Trust. All rights, benefits and interests granted to or conferred upon
the Agent pursuant to Clause 2.1 and all other rights, powers and
discretions granted to or conferred upon the Agent under this Deed
shall be held by the Agent on trust for the benefit of itself as Agent
and as Lender and the other Lenders from time to time. The trust
constituted by this Clause shall come into existence on the date of
this Deed and shall last for so long as any part of the Secured
Indebtedness remains unpaid or the performance of any obligation under
the Loan Agreement or this Deed or any other Security Document has not
been performed in full PROVIDED that, for the purposes of the rule
against perpetuities, the perpetuity period applicable to the trust
constituted under this Clause and dispositions made or to be made
pursuant to this Deed and this trust, is hereby specified as a period
of EIGHTY (80) YEARS LESS ONE (1) DAY from the date of this Deed.
1.3 Successors and Assigns. The expressions "BORROWER", "AGENT" and
"LENDERS" shall where the context permits include their respective
successors and permitted assigns and any persons deriving title under
them.
1.4 Miscellaneous. In this Deed, unless the context requires otherwise,
references to statutory provisions shall be construed as references to
those provisions as replaced, amended, modified or re-enacted from time
to time; words importing the singular include the plural and vice versa
and words importing a gender include every gender; references to this
Deed or the Loan Agreement or any other Security Document shall be
construed as references to such document as the same may be amended or
supplemented or novated from time to time; unless otherwise stated,
references to Clauses and the Schedule are to clauses of and the
schedule to this Deed and references to this Deed include its Schedule.
Clause headings are inserted for reference only and shall be ignored in
construing this Deed.
2. CHARGE
2.1 Charge and Assignment. In consideration of the Facility being made
available by the Lenders to the Borrower upon the terms and conditions
of the Loan Agreement, the Borrower with full title guarantee charges
to the Agent by way of first fixed charge and assigns to the Agent
absolutely by way of mortgage the Charged Account and all its right,
title, interest and benefit therein and thereto as a continuing
security for the due and punctual payment of the Secured Indebtedness
and the due and punctual
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53
performance and observance by the Borrower of all other obligations of
the Borrower contained in the Loan Agreement or any Security Document
to which it is a party.
2.2 Discharge. Upon payment in full of all the Secured Indebtedness to the
satisfaction of the Agent and cancellation of the Facility, the Agent
shall, at the request and cost of the Borrower, and in such form as the
Agent shall approve, discharge the security created by this Deed.
3. CONTINUING SECURITY
This Deed shall be a continuing security and shall remain in full force
and effect until the Secured Indebtedness has been paid in full,
notwithstanding the insolvency or liquidation or any incapacity or
change in the constitution or status of the Borrower or any other
person or any intermediate settlement of account or other matter
whatsoever. This Deed is in addition to, and independent of, any
Charge, guarantee or other security or right or remedy now or at any
time hereafter held by or available to the Agent or any Lender.
4. REPRESENTATIONS AND WARRANTIES
4.1 Representations and Warranties. The Borrower represents and warrants to
the Agent that:
(a) the Charged Account is beneficially owned by the Borrower free
from any Charge except as created under or pursuant to this
Deed;
(b) the particulars of the Charged Account set out in the Schedule
are accurate.
4.2 Continuing Representation and Warranty. The Borrower also represents
and warrants to and undertakes with the Agent that the foregoing
representations and warranties will be true and accurate throughout the
continuance of this Deed with reference to the facts and circumstances
subsisting from time to time.
5. UNDERTAKINGS
The Borrower undertakes and agrees with the Agent throughout the
continuance of this Deed and until the Final Maturity Date and/or so
long as the Secured Indebtedness or any part thereof remains owing that
the Borrower will, unless the Agent otherwise agrees in writing:
(a) promptly deliver to the Agent all deposit receipts or other
evidence as to the amounts from time to time deposited in the
Charged Account and copies of all statements showing the
balance from time to time in the Charged Account;
(b) not withdraw or attempt or be entitled to withdraw all or any
part of the monies in the Charged Account except for the
exclusive purpose of meeting payments of interest due to the
Lenders under the Loan Agreement and/or
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meeting payments of principal required to be made in
connection with any cancellation of the Facility under clauses
4.7, 4.8 or 4.9 of the Loan Agreement;
(c) not create or attempt or agree to create or permit to arise or
exist any Charge over all or any part of the Charged Account
or any interest therein or otherwise assign, deal with or
dispose of all or any part of the Charged Account (except
under or pursuant to this Deed);
(d) not do or cause or permit to be done anything which may in any
way depreciate, jeopardise or otherwise prejudice the value of
the Agent's security hereunder.
6. ENFORCEMENT
6.1 Events of Default. For the purposes of this Clause, each of the
following events and circumstances shall be an Event of Default:
(a) any event or circumstance which would constitute an Event of
Default as that term is defined in the Loan Agreement;
(b) if the Borrower purports or attempts to create any Charge over
all or any part of the Charged Account or any third party
asserts a claim in respect thereof.
6.2 Enforcement of Security. Upon the occurrence of an Event of Default,
the Agent may, at any time or times thereafter and without further
notice or restriction, withdraw, transfer or otherwise dispose of all
or any part of the monies in the Charged Account in or towards the
payment or discharge of the Secured Indebtedness in such manner as the
Agent may think fit and, for this purpose, the Agent may, at the
expense of the Borrower, convert all or any part of such monies into
other currencies. The above provisions apply notwithstanding any other
terms upon which such monies may have been deposited or that any such
monies may have been deposited for a fixed period or be subject to a
period of notice and that the fixed period or period of notice may not
have expired or that notice or sufficient notice may not have been
given.
7. TAXES AND OTHER DEDUCTIONS
All sums payable by the Borrower under this Deed shall be paid in full
without set-off or counterclaim or any restriction or condition and
free and clear of any tax or other deductions or withholdings of any
nature. If the Borrower or any other person is required by any law or
regulation to make any deduction or withholding (on account of tax or
otherwise) from any payment for the account of any Lender or the Agent,
the Borrower shall, together with such payment, pay such additional
amount as will ensure that such Lender or the Agent receives (free and
clear of any tax or other deductions or withholdings) the full amount
which it would have received if no such deduction or withholding had
been required. The Borrower shall promptly forward to the Agent copies
of official receipts or other evidence showing that the full amount of
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any such deduction or withholding has been paid over to the relevant
taxation or other authority.
8. COSTS, CHARGES AND EXPENSES
The Borrower shall from time to time forthwith on demand pay to or
reimburse the Agent and the Lenders for:
(a) all costs, charges and expenses (including legal and other
fees on a full indemnity basis and all other out-of-pocket
expenses) incurred by the Agent or any Lender in connection
with the preparation, execution and registration of this Deed,
any other documents required in connection herewith and any
amendment to or extension of, or the giving of any consent or
waiver in connection with, this Deed;
(b) all costs, charges and expenses (including legal and other
fees on a full indemnity basis and all other out-of-pocket
expenses) incurred by the Agent or any Lender in exercising
any of its or their rights or powers hereunder or in suing for
or seeking to recover any sums due hereunder or otherwise
preserving or enforcing its or their rights hereunder or in
defending any claims brought against it or them in respect of
this Deed or in releasing or re-assigning this Deed upon
payment of all monies hereby secured,
and, until payment of the same in full, all such costs, charges and
expenses shall be secured by this Deed.
9. BORROWER'S LIABILITY
Notwithstanding anything herein contained or implied to the contrary,
the Borrower shall remain liable to perform all the obligations assumed
by it in relation to the Charged Account and the Agent and the Lenders
shall not be under any obligation in any manner to perform or fulfil
any obligation of the Borrower in respect of the Charged Account or to
make any payment thereunder.
10. INDEMNITY
10.1 General Indemnity. The Borrower shall indemnify the Agent and each
Lender against all losses, liabilities, damages, costs and expenses
incurred by it or them in the execution or performance of the terms and
conditions hereof and against all actions, proceedings, claims,
demands, costs, charges and expenses which may be incurred, sustained
or arise in respect of the non-performance or non-observance of any of
the undertakings and agreements on the part of the Borrower herein
contained or in respect of any matter or thing done or omitted relating
in any way whatsoever to the Charged Account.
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10.2 Payment and Security. The Agent may retain and pay out of any money in
the Agent's hands all sums necessary to effect the indemnity contained
in this Clause and all sums payable by the Borrower under this Clause
shall form part of the monies hereby secured.
11. FURTHER ASSURANCE
11.1 Further Assurance. The Borrower shall at any time and from time to time
(whether before or after the security hereby created shall have become
enforceable) execute such further legal or other mortgages, charges or
assignments and do all such transfers, assurances, acts and things as
the Agent may reasonably require over or in respect of the Charged
Account to secure all monies, obligations and liabilities hereby
covenanted to be paid or hereby secured or for the purposes of
perfecting and completing any assignment of the Agent's rights,
benefits or obligations hereunder and the Borrower shall also give all
notices, orders and directions which the Agent may reasonably require.
11.2 Enforcement of Agent's Rights. The Borrower will do or permit to be
done everything which the Agent may from time to time reasonably
require to be done for the purpose of enforcing the Agent's rights
hereunder and will allow the name of the Borrower to be used as and
when necessary for that purpose.
12. POWER OF ATTORNEY
The Borrower irrevocably appoints the Agent by way of security to be
its attorney (with full power of substitution) and in its name or
otherwise on its behalf and as its act and deed to sign, seal, execute,
deliver, perfect and do all deeds, instruments, acts and things which
may be required or which the Agent shall reasonably think proper or
expedient for carrying out any obligations imposed on the Borrower
hereunder or for exercising any of the powers hereby conferred or for
giving to the Agent the full benefit of this security and so that the
appointment hereby made shall operate to confer on the Agent authority
to do on behalf of the Borrower anything which it can lawfully do by an
attorney. The Borrower ratifies and confirms and agrees to ratify and
confirm any deed, instrument, act or thing which such attorney or
substitute may execute or do.
13. SUSPENSE ACCOUNT
The Agent may place and keep any monies received by virtue of this Deed
(whether before or after the insolvency or liquidation of the Borrower)
to the credit of a suspense account for so long as the Agent may think
fit in order to preserve the rights of the Agent or any Lender to ▇▇▇
or prove for the whole amount of its claims against the Borrower or any
other person.
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14. WAIVER AND SEVERABILITY
No failure or delay by the Agent in exercising any right, power or
remedy hereunder shall impair such right, power or remedy or operate as
a waiver thereof, nor shall any single or partial exercise of the same
preclude any further exercise thereof or the exercise of any other
right, power or remedy. The rights, powers and remedies herein provided
are cumulative and do not exclude any other rights, powers and remedies
provided by law. If at any time any provision of this Deed is or
becomes illegal, invalid or unenforceable in any respect under the law
of any jurisdiction, the legality, validity and enforceability of such
provision under the law of any other jurisdiction, and of the remaining
provisions of this Deed, shall not be affected or impaired thereby.
15. MISCELLANEOUS
15.1 Continuing Obligations. The liabilities and obligations of the Borrower
under this Deed shall remain in force notwithstanding any act,
omission, event or circumstance whatsoever, until full, proper and
valid payment of the Secured Indebtedness.
15.2 Protective Clauses. Without limiting Clause 15.1, neither the liability
of the Borrower nor the validity or enforceability of this Deed shall
be prejudiced, affected or discharged by:
(a) any other Charge, guarantee or other security or right or
remedy being or becoming held by or available to the Agent or
any Lender or by any of the same being or becoming wholly or
partly void, voidable, unenforceable or impaired or by the
Agent or any Lender at any time releasing, refraining from
enforcing, varying or in any other way dealing with any of the
same or any power, right or remedy the Agent or any Lender may
now or hereafter have from or against the Borrower or any
other person or the granting of any time or indulgence to the
Borrower or any other person;
(b) any variation or modification of the Loan Agreement, any of
the Security Documents or any other document referred to
therein;
(c) the invalidity or unenforceability of any obligation or
liability of the Borrower under the Loan Agreement or any of
the Security Documents to which it is a party;
(d) any invalidity or irregularity in the execution of this Deed
or the Loan Agreement or any of the other Security Documents
or any deficiency in the powers of the Borrower to enter into
or perform any of its obligations hereunder or under the Loan
Agreement or any of the other Security Documents to which it
is a party; or
(e) any act, omission, event or circumstance which would or may
but for this provision operate to prejudice, affect or
discharge this Deed or the liability of the Borrower
hereunder.
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15.3 Unrestricted Right of Enforcement. This Deed may be enforced without
the Agent or any Lender first having recourse to any other security or
rights or taking any other steps or proceedings against the Borrower or
any other person or may be enforced for any balance due after resorting
to any one or more other means of obtaining payment or discharge of the
monies, obligations and liabilities hereby secured.
15.4 Discharges and Releases. Notwithstanding any discharge, release or
settlement from time to time between the Agent or any Lender and the
Borrower, if any security, disposition or payment granted or made to
the Agent or any Lender in respect of the Secured Indebtedness by the
Borrower or any other person is avoided or set aside or ordered to be
surrendered, paid away, refunded or reduced by virtue of any provision,
law or enactment relating to bankruptcy, insolvency, liquidation,
winding-up, composition or arrangement for the time being in force or
for any other reason, the Agent shall be entitled hereafter to enforce
this Deed as if no such discharge, release or settlement had occurred.
15.5 Amendment. Any amendment or waiver of any provision of this Deed and
any waiver of any default under this Deed shall only be effective if
made in writing and signed by the Agent.
15.6 Counterparts. This Deed may be executed in any number of counterparts
and by the different parties to this Deed on separate counterparts,
each of which when executed and delivered shall be an original but all
the counterparts shall together constitute one and the same instrument.
16. ASSIGNMENT
16.1 The Borrower. The Borrower shall not assign any of its rights
hereunder.
16.2 The Lenders. The Lenders may assign or grant participations in all or
any part of their rights under this Deed in accordance with the
provisions of clause 20 of the Loan Agreement.
17. NOTICES
17.1 Delivery. Each notice, demand or other communication to be given or
made under this Deed shall be in writing and delivered or sent to the
relevant party at its address or telex number or fax number set out
below (or such other address or telex number or fax number as the
addressee has by five (5) days' prior written notice specified to the
other party):
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To the Borrower: Zindart Limited
Flat C & D, 25th Floor, Block 1
Tai Ping Industrial Centre
▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
Fax Number : (▇▇▇) ▇▇▇▇ ▇▇▇▇
Attention : Feather Fok
To the Agent: Credit Suisse First Boston, Singapore Branch
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ #▇▇-▇▇
▇▇▇ ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax Number : (▇▇) ▇▇▇ ▇▇▇▇
Attention : Credit Operations
17.2 Deemed Delivery. Any notice, demand or other communication so addressed
to the relevant party shall be deemed to have been delivered (a) if
given or made by letter, when actually delivered to the relevant
address, (b) if given or made by telex, when despatched with confirmed
answerback and (c) if given or made by fax, when despatched.
18. GOVERNING LAW AND JURISDICTION
18.1 Law. This Deed and the rights and obligations of the parties hereunder
shall be governed by and construed in accordance with the laws of
England.
18.2 Jurisdiction. The Borrower agrees that any legal action or proceeding
arising out of or relating to this Deed may be brought in the courts of
England and irrevocably submits to the non-exclusive jurisdiction of
such courts.
Process Agent. The Borrower irrevocably appoints ▇▇▇▇▇▇▇▇▇ Englefield
of ▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ as its agent to receive and
acknowledge on its behalf service of any writ, summons, order, judgment
or other notice of legal process in England. If for any reason the
agent named above (or its successor) no longer serves as agent of the
Borrower for this purpose, the Borrower shall promptly appoint a
successor agent satisfactory to the Agent and notify the Agent thereof
provided that until the Agent receives such notification, it shall be
entitled to treat the agent named above (or its said successor) as the
agent of the Borrower for the purposes of this Clause. The Borrower
agrees that any such legal process shall be sufficiently served on it
if delivered to such agent for service at its address for the time
being in England whether or not such agent gives notice thereof to the
Borrower.
18.3 No Limitation on Right of Action. Nothing herein shall limit the right
of the Agent and the Lenders to commence any legal action against the
Borrower and/or its
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property in any other jurisdiction or to serve process in any manner
permitted by law, and the taking of proceedings in any jurisdiction
shall not preclude the taking of proceedings in any other jurisdiction
whether concurrently or not.
18.4 Waiver; Final Judgment Conclusive. The Borrower irrevocably and
unconditionally waives any objection which it may now or hereafter have
to the choice of Borrower as the venue of any legal action arising out
of or relating to this Deed. The Borrower also agrees that a final
judgment against it in any such legal action shall be final and
conclusive and may be enforced in any other jurisdiction, and that a
certified or otherwise duly authenticated copy of the judgment shall be
conclusive evidence of the fact and amount of its indebtedness.
18.5 Waiver of Immunity. The Borrower irrevocably waives any immunity to
which it or its property may at any time be or become entitled, whether
characterised as sovereign immunity or otherwise, from any set-off or
legal action in England or elsewhere, including immunity from service
of process, immunity from jurisdiction of any court or tribunal, and
immunity of any of its property from attachment prior to judgment or
from execution of a judgment.
IN WITNESS whereof this Deed has been executed by the parties hereto and is
intended to be and is hereby delivered on the day and year first above written.
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SCHEDULE
The Charged Account
The account of Zindart Limited (account no. A ▇▇▇▇▇▇▇.01.USD) with Credit Suisse
First Boston, Singapore Branch.
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THE BORROWER
THE COMMON SEAL of )
ZINDART LIMITED )
was affixed to this Deed )
in the presence of )
THE AGENT
SIGNED for and on behalf of )
CREDIT SUISSE FIRST BOSTON, )
SINGAPORE BRANCH )
by )
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APPENDIX 3
FORM OF SHARE MORTGAGE
DATED 1998
--------------------------
ZINDART LIMITED
AS BORROWER
- AND -
CREDIT SUISSE FIRST BOSTON, SINGAPORE BRANCH
ON ITS OWN BEHALF AND AS AGENT AND TRUSTEE
FOR THE LENDERS REFERRED TO HEREIN
-------------------------------------------
SHARE MORTGAGE
INCORPORATING AN ASSIGNMENT OF INDEBTEDNESS
-------------------------------------------
▇▇▇▇▇ & Mc. KENZIE
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
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CONTENTS
Number Clause Heading Page
------ -------------- ----
1. Interpretation.........................................................1
2. Mortgage of Shares.....................................................3
3. Assignment of Indebtedness.............................................4
4. Discharge..............................................................4
5. Continuing Security....................................................4
6. Representations and Warranties.........................................4
7. Undertakings...........................................................5
8. Power of Sale..........................................................6
9. Dividends, Assigned Monies and Voting Rights...........................7
10. Taxes and Other Deductions.............................................7
11. Costs, Charges and Expenses............................................8
12. Indemnity..............................................................8
13. Further Assurance......................................................9
14. Power of Attorney......................................................9
15. Suspense Account......................................................10
16. Waiver and Severability...............................................10
17. Miscellaneous.........................................................10
18. Assignment............................................................11
19. Notices...............................................................11
20. Governing Law and Jurisdiction........................................12
Schedules
---------
Schedule 1 Form of Letter of Resignation......................................14
Schedule 2 Form of Notice and Acknowledgment (Shares).........................15
Schedule 3 Form of Notice and Acknowledgment (Assigned Monies)................17
EXECUTION......................................................................19
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THIS DEED is made on the day of 1998
---------------------- --------------------------
BETWEEN:
(1) ZINDART LIMITED, a company incorporated under the laws of Hong Kong
having its registered office at ▇▇▇▇ ▇ & ▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇
Ping Industrial Centre, 57 ▇▇▇▇ ▇▇▇ Road, Tai Po, New Territories, Hong
Kong (the "BORROWER"); and
(2) CREDIT SUISSE FIRST BOSTON, SINGAPORE BRANCH on its own behalf and as
agent and trustee for the Lenders (as defined below) from time to time
(in such capacity, the "AGENT").
WHEREAS:
(A) By a loan agreement (the "LOAN AGREEMENT") dated ______________________
1998 made between (1) the Borrower, (2) Credit Suisse First Boston,
Hong Kong Branch and Standard Chartered Bank as arrangers (the
"ARRANGERS"), (3) the banks and other financial institutions defined
therein as lenders (the "LENDERS") and (4) the Agent, the Lenders have
agreed to make available to the Borrower a loan facility of up to
US$30,000,000 (the "FACILITY") upon the terms set out therein.
(B) The Agent is acting as agent for the Lenders and the Arrangers pursuant
to the Loan Agreement and as agent and trustee for the Lenders and the
Arrangers pursuant to this Deed.
(C) It is a condition precedent to the Lenders making the Facility
available to the Borrower that the Borrower enters into this Deed.
NOW THIS DEED WITNESSES as follows:
1. INTERPRETATION
1.1 Definitions and Construction. In this Deed, unless the context requires
otherwise:
(a) terms and expressions defined in or construed for the purposes
of the Loan Agreement shall have the same meanings or be
construed in the same manner when used in this Deed;
(b) the expression "AGENT" shall mean the Agent acting on its own
behalf and as agent and trustee for the Lenders and the
expression "LENDERS" shall have the meaning ascribed to it in
the Loan Agreement and shall include the Arrangers in their
respective capacities as such;
(c) "ASSIGNED MONIES" means all indebtedness now or at any time
hereafter owing by the Company to the Borrower;
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66
(d) "COMPANY" means ▇▇▇ ▇▇▇▇ Holdings Co. Limited;
(e) "DIVIDENDS" means all dividends, interest and other sums which
are or may become payable to the Borrower or its nominee in
its capacity as holder of the Shares and includes:
(i) the right to receive any and all such sums and all
claims in respect of any default in paying such sums;
and
(ii) all forms of remittance of such sums and any bank or
other account to which such sums may be paid or
credited;
(f) "SECURED INDEBTEDNESS" means all and any sums (whether
principal, interest, fees or otherwise) which are or at any
time may become payable by the Borrower under the Loan
Agreement or any Security Document to which it is a party and
all other monies hereby secured;
(g) "SHARES" means all those ordinary shares of HK$0.10 each and
all those preferred shares of HK$0.01 each constituting the
entire issued share capital of the Company and, where the
context permits, includes the Dividends and those stocks,
shares, rights, monies and other property referred to in
Clause 2.4.
1.2 Trust. All rights, benefits and interests granted to or conferred upon
the Agent pursuant to Clause 2.1 and all other rights, powers and
discretions granted to or conferred upon the Agent under this Deed
shall be held by the Agent on trust for the benefit of itself as Agent
and as Lender and the other Lenders from time to time. The trust
constituted by this Clause shall come into existence on the date of
this Deed and shall last for so long as any part of the Secured
Indebtedness remains unpaid or the performance of any obligation under
the Loan Agreement or this Deed or any other Security Document has not
been performed in full PROVIDED that, for the purposes of the rule
against perpetuities, the perpetuity period applicable to the trust
constituted under this Clause and dispositions made or to be made
pursuant to this Deed and this trust, is hereby specified as a period
of EIGHTY (80) YEARS LESS ONE (1) DAY from the date of this Deed.
1.3 Successors and Assigns. The expressions "BORROWER", "AGENT" and
"LENDERS" shall where the context permits include their respective
successors and permitted assigns and any persons deriving title under
them.
1.4 Miscellaneous. In this Deed, unless the context requires otherwise,
references to statutory provisions shall be construed as references to
those provisions as replaced, amended, modified or re-enacted from time
to time; words importing the singular include the plural and vice versa
and words importing a gender include every gender; references to this
Deed or the Loan Agreement or any other Security Document shall be
construed as references to such document as the same may be amended or
supplemented or novated from time to time; unless otherwise stated,
references to Clauses and Schedules are to clauses of and schedules to
this Deed and references to this Deed include its Schedules. Clause
headings are inserted for reference only and shall be ignored in
construing this Deed.
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2. MORTGAGE OF SHARES
2.1 Mortgage. In consideration of the Lenders agreeing to make the Facility
available to the Borrower upon the terms and conditions of the Loan
Agreement, the Borrower with full title guarantee mortgages, charges
and assigns by way of first legal mortgage the Shares to the Agent as a
continuing security for the due and punctual payment of the Secured
Indebtedness and the due and punctual performance and observance by the
Borrower of all other obligations of the Borrower contained in the Loan
Agreement or any Security Document to which it is a party.
2.2 Deposit of Documents and Notice to Nominee. For the purpose of enabling
the Agent to exercise its rights under this Deed, the Borrower
undertakes forthwith upon the execution of this Deed:
(a) to deposit, or procure that there be deposited with the Agent:
(i) the certificates in respect of the Shares together
with instruments of transfer and contract notes in
respect thereof, duly executed in blank; and
(ii) signed undated letters of resignation from each
director of the Company in the form set out in
Schedule 1;
(b) to give notice of this Deed to each person holding any of the
Shares as the Borrower's nominee and to procure that each such
person executes and delivers to the Agent an acknowledgement,
such notice and acknowledgement to be in the form set out in
Schedule 2.
2.3 Registration in Name of Agent. The Borrower agrees that at any time
after the date hereof the Agent may, at the cost of the Borrower,
register the Shares in the name of the Agent or its nominee.
2.4 Dividends and Accretions. This Deed shall extend to and include all
Dividends and all stocks, shares (and the Dividends in respect
thereof), rights, monies or other property accruing or offered at any
time by way of redemption, substitution, bonus, preference, option or
otherwise to or in respect of any of the Shares and all allotments,
accretions, offers, rights, benefits and advantages whatsoever at any
time accruing, made, offered or arising in respect of any of the same
and all further shares in the capital of the Company issued subsequent
hereto. If the Borrower shall acquire any such other stocks or shares
as aforesaid, it shall forthwith deliver or procure that there be
delivered to the Agent the certificates in respect thereof together
with instruments of transfer and contract notes in respect thereof duly
executed in blank to enable the same to be registered in the name of
the Agent or its nominee.
2.5 No Liability for Calls. Nothing in this Deed shall be construed as
placing on the Agent or any Lender any liability whatsoever in respect
of any calls, instalments or other payments relating to any of the
Shares or any rights, shares or other securities accruing, offered or
arising as aforesaid, and the Borrower shall indemnify the Agent and
each Lender in respect of all calls, instalments or other payments
relating to any
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of the Shares and to any rights, shares and other securities accruing,
offered or arising as aforesaid in respect of any of the Shares.
3. ASSIGNMENT OF INDEBTEDNESS
3.1 Assignment. In consideration as aforesaid, the Borrower with full title
guarantee assigns to the Agent absolutely all the Borrower's right,
title, interest and benefit in and to the Assigned Monies as a
continuing security for the due and punctual payment of the Secured
Indebtedness and the due and punctual performance and observance by the
Borrower of all other obligations of the Borrower contained in the Loan
Agreement or any Security Document to which it is a party.
3.2 Notice to Company. The Borrower undertakes forthwith upon the execution
of this Deed to give notice of this Deed to and obtain an
acknowledgement from the Company in the form set out in Schedule 3.
3.3 Borrower to Remain Liable in Relation to Assigned Monies.
Notwithstanding the assignment herein contained, the Borrower shall
remain liable to observe and perform all the obligations assumed by it
in relation to the Assigned Monies. Neither the Agent nor the Lenders
shall not be under any obligation to make any enquiry as to the nature
or sufficiency of any payment received by any of them in respect of the
Assigned Monies or to make any claim or take any other action to
collect any Assigned Monies or to enforce any rights or benefits hereby
assigned.
4. DISCHARGE
Upon payment in full of all the Secured Indebtedness to the
satisfaction of the Agent and cancellation of the Facility, the Agent
shall, at the request and cost of the Borrower, and in such form as the
Agent shall approve, discharge the security created by this Deed.
5. CONTINUING SECURITY
This Deed shall be a continuing security and shall remain in full force
and effect until the Secured Indebtedness has been paid in full,
notwithstanding the insolvency or liquidation or any incapacity or
change in the constitution or status of the Borrower or any other
person or any intermediate settlement of account or other matter
whatsoever. This Deed is in addition to, and independent of, any
Charge, guarantee or other security or right or remedy now or at any
time hereafter held by or available to the Agent or any Lender.
6. REPRESENTATIONS AND WARRANTIES
6.1 Representations and Warranties. The Borrower represents and warrants to
the Agent that:
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(a) the particulars of the Shares set out in Clause 1.1(g) are
accurate and the Shares described therein constitute the
entire issued share capital of the Company at the date hereof
and all the Shares have been validly issued and are fully paid
up;
(b) subject to this Deed, the Borrower is the sole beneficial
owner of the Shares and the Assigned Monies and is the legal
owner of all such Shares and the Borrower has good and
marketable title thereto;
(c) no Charge exists over all or any part of the Shares or the
Assigned Monies (except as created under or pursuant to this
Deed);
(d) the Borrower has not granted in favour of any other person any
interest in or any option or other rights in respect of any of
the Shares;
(e) the Company has not issued or resolved or agreed to issue or
granted any option or other right to acquire any additional
shares to any person;
(f) there are no duplicate copies of the certificates in respect
of the Shares or other certificates representing the Shares.
6.2 Continuing Representation and Warranty. The Borrower also represents
and warrants to and undertakes with the Agent that the foregoing
representations and warranties will be true and accurate throughout the
continuance of this Deed with reference to the facts and circumstances
subsisting from time to time.
7. UNDERTAKINGS
The Borrower undertakes and agrees with the Agent throughout the
continuance of this Deed and until the Final Maturity and/or so long as
the Secured Indebtedness or any part thereof remains owing that the
Borrower will, unless the Agent otherwise agrees in writing:
(a) not create or attempt or agree to create or permit to arise or
exist any Charge over all or any part of the Shares or the
Assigned Monies or any interest therein or otherwise assign,
deal with or dispose of all or any part of the Shares or the
Assigned Monies (except under or pursuant to this Deed);
(b) not grant in favour of any other person any interest in or any
option or other rights in respect of any of the Shares;
(c) ensure that no person holding any of the Shares as its nominee
for the time being does any of the acts prohibited in
paragraphs (a) and (b) above;
(d) procure that the Company shall not issue or resolve or agree
to issue or grant any option or other right to acquire shares
to any person other than the Borrower (and subject always to
this Deed);
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(e) at all times remain the beneficial owner of the Shares and the
Assigned Monies;
(f) procure that no amendment or supplement is made to the
memorandum or articles of association of the Company without
the prior written consent of the Agent;
(g) immediately upon the appointment of any new director of the
Company, deposit or procure that there be deposited with the
Agent a signed undated letter of resignation by such director
in the form set out in Schedule 1;
(h) punctually pay all calls or other payments due in respect of
all or any part of the Shares;
(i) do or permit to be done every act or thing which the Agent may
from time to time require for the purpose of enforcing the
rights of the Agent hereunder;
(j) procure that all Dividends and all monies which it may receive
in respect of the Assigned Monies are paid directly and
forthwith into the Charged Account;
(k) not waive, release, compromise or vary the liability of the
Company in relation to the Assigned Monies or do or omit to do
any act or thing whereby the recovery in full of any monies
payable in respect thereof may be prejudiced or affected;
(l) not do or cause or permit to be done anything which may in any
material way depreciate, jeopardise or otherwise prejudice the
value of the Agent's security hereunder.
8. POWER OF SALE
8.1 Enforceability. Upon the occurrence of an Event of Default, the Agent
or its nominee may, without further notice or authority, sell or
dispose of all or any part of the Shares or the Assigned Monies and may
apply all or any part of the Assigned Monies or the proceeds of any
such sale or disposition in or towards the discharge of the costs
thereby incurred and of the Secured Indebtedness in such manner as it
in its absolute discretion thinks fit.
8.2 Sale of Shares. The Agent shall be entitled to exercise such power of
sale in such manner and at such time or times following an Event of
Default and for such consideration (whether payable immediately or by
instalments) as it shall in its reasonable discretion think fit
(whether by private sale, public auction or otherwise) and so that the
Shares (or any relevant part thereof) may be sold (i) subject to any
conditions which the Agent may think fit to impose, (ii) to any person
(including any person connected with the Borrower, the Company, the
Arrangers, the Agent or the Lenders) and (iii) at any price which the
Agent, in its absolute discretion, considers to be the best obtainable
in the circumstances taking into account the nature of the Company as a
private company.
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8.3 Realisation of Assigned Monies. The Agent may exercise all the rights
and powers provided for in Clause 8.2 in relation to a sale of the
Shares in connection with the sale, disposition or realisation of the
Assigned Monies.
8.4 Dividends. At any time after the power of sale has arisen, any
Dividends which have been or may be received or receivable by the Agent
or any nominee of the Agent may be applied by the Agent as though they
were proceeds of sale hereunder and any Dividends which may be received
or receivable by the Borrower shall be paid forthwith upon receipt to
the Agent and may be applied by the Agent as though they were proceeds
of sale hereunder.
8.5 Purchaser Not Bound to Enquire. The Agent is authorised to give a good
discharge for any moneys received by it pursuant to the exercise of its
power of sale and a purchaser shall not be bound to enquire whether the
power of sale has arisen as herein provided nor be concerned with the
manner of application of the proceeds of sale.
8.6 No Liability for Losses. The Borrower shall not have any claim against
the Agent or its nominee or any Lender in respect of any loss arising
out of any such sale or any postponement thereof howsoever caused and
whether or not a better price could or might have been obtained upon
the sale of the Shares or the Assigned Monies or any of them by
deferring or advancing the date of such sale or otherwise howsoever.
8.7 Waiver of pre-emption Rights. The Borrower waives any right it may have
under the articles of association of the Company or otherwise to
purchase the Shares or any of them in the event that they are sold or
otherwise disposed of pursuant to the power of sale contained in this
Clause.
9. DIVIDENDS, ASSIGNED MONIES AND VOTING RIGHTS
9.1 Dividends, Assigned Monies and Voting Rights. If the Shares or any of
them are registered in the name of the Agent or its nominee, the Agent
shall have complete discretion to retain the Dividends and Assigned
Monies received by the Agent and to exercise or abstain from exercising
all voting and other rights and powers attaching to the Shares as the
Agent in its absolute discretion thinks fit without being liable for
any losses which the Borrower may suffer as a result thereof.
9.2 Authority to Sign Proxies. The Borrower irrevocably authorises the
Agent to sign on its behalf and on behalf of each person holding any of
the Shares as the nominee of the Borrower any proxies or other
documents which the Agent may require to enable the Agent to exercise
such voting and other rights and powers attaching to the Shares.
10. TAXES AND OTHER DEDUCTIONS
All sums payable by the Borrower under this Deed shall be paid in full
without set-off or counterclaim or any restriction or condition and
free and clear of any tax or other deductions or withholdings of any
nature. If the Borrower or any other person is required by any law or
regulation to make any deduction or withholding (on account of tax or
otherwise) from any payment for the account of any Lender or the Agent,
the Borrower shall, together with such payment, pay such additional
amount as will
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ensure that such Lender or the Agent receives (free and clear of any
tax or other deductions or withholdings) the full amount which it would
have received if no such deduction or withholding had been required.
The Borrower shall promptly forward to the Agent copies of official
receipts or other evidence showing that the full amount of any such
deduction or withholding has been paid over to the relevant taxation or
other authority.
11. COSTS, CHARGES AND EXPENSES
The Borrower shall from time to time forthwith on demand pay to or
reimburse the Agent and the Lenders for:
(a) all costs, charges and expenses (including legal and other
fees on a full indemnity basis and all other out-of-pocket
expenses) reasonably incurred by the Agent or any Lender in
connection with the preparation, execution and registration of
this Deed, any other documents required in connection herewith
and any amendment to or extension of, or the giving of any
consent or waiver in connection with, this Deed; and
(b) all costs, charges and expenses (including legal and other
fees on a full indemnity basis and all other out-of-pocket
expenses) incurred by the Agent or any Lender in exercising
any of its or their rights or powers hereunder or in suing for
or seeking to recover any sums due hereunder or otherwise
preserving or enforcing its or their rights hereunder or in
defending any claims brought against it or them in respect of
this Deed or in releasing or re-assigning this Deed upon
payment of all monies hereby secured,
and, until payment of the same in full, all such costs, charges and
expenses shall be secured by this Deed.
12. INDEMNITY
12.1 General Indemnity. The Borrower shall indemnify the Agent and each
Lender against all losses, liabilities, damages, costs and expenses
incurred by it or them in the execution or performance of the terms and
conditions hereof and against all actions, proceedings, claims,
demands, costs, charges and expenses which may be incurred, sustained
or arise in respect of the non-performance or non-observance of any of
the undertakings and agreements on the part of the Borrower herein
contained or in respect of any matter or thing done or omitted relating
in any way whatsoever to the Shares unless and to the extent that any
of the foregoing results directly from the Agent's or any Lender's
gross negligence or wilful misconduct.
12.2 Payment and Security. The Agent may retain and pay out of any money in
the Agent's hands all sums necessary to effect the indemnity contained
in this Clause and all sums payable by the Borrower under this Clause
shall form part of the monies hereby secured.
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13. FURTHER ASSURANCE
13.1 Further Assurance. The Borrower shall at any time and from time to time
(whether before or after the security hereby created shall have become
enforceable) execute such further legal or other mortgages, charges or
assignments and do all such transfers, assurances, acts and things as
the Agent may reasonably require over or in respect of the Shares or
the Assigned Monies to secure all monies, obligations and liabilities
hereby covenanted to be paid or hereby secured or for the purposes of
perfecting and completing any assignment of the Agent's rights,
benefits or obligations hereunder and the Borrower shall also give all
notices, orders and directions which the Agent may reasonably require.
13.2 Agreement to Execute Further Documents. Without limiting the foregoing,
the Borrower agrees from time to time to execute and sign or to procure
that the person for the time being holding any of the Shares as the
Borrower's nominee executes and signs all transfers, powers of
attorney, proxies and other documents which the Agent may require for
perfecting the Agent's title to any of the Shares or for vesting or
enabling it to vest the same in itself, its nominee or in any purchaser
including, without limitation, procuring to be duly passed such
resolutions by the directors of the Company and such resolutions by the
Borrower or the person holding any of the Shares as the Borrower's
nominee in an extraordinary general meeting of the Company as the Agent
shall require for the purposes of approving and passing for
registration any transfers of any of the Shares, altering the Company's
memorandum or articles of association, removing any directors of the
Company, appointing new directors of the Company nominated by the Agent
or for such other purposes as the Agent shall from time to time
require.
13.3 Enforcement of Agent's Rights. The Borrower will do or permit to be
done everything which the Agent may from time to time reasonably
require to be done for the purpose of enforcing the Agent's rights
hereunder and will allow the name of the Borrower to be used as and
when reasonably required by the Agent for that purpose.
14. POWER OF ATTORNEY
The Borrower irrevocably appoints the Agent by way of security to be
its attorney (with full power of substitution) and in its name or
otherwise on its behalf and as its act and deed to sign, seal, execute,
deliver, perfect and do all deeds, instruments, acts and things which
may be required or which the Agent shall reasonably think proper or
expedient for carrying out any obligations imposed on the Borrower
hereunder or for exercising any of the powers hereby conferred or for
giving to the Agent the full benefit of this security and so that the
appointment hereby made shall operate to confer on the Agent authority
to do on behalf of the Borrower anything which it can lawfully do by an
attorney. The Borrower ratifies and confirms and agrees to ratify and
confirm any deed, instrument, act or thing which such attorney or
substitute may execute or do.
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15. SUSPENSE ACCOUNT
The Agent may place and keep any monies received by virtue of this Deed
(whether before or after the insolvency or liquidation of the Borrower)
to the credit of a suspense account for so long as the Agent may think
fit in order to preserve the rights of the Agent or any Lender to ▇▇▇
or prove for the whole amount of its claims against the Borrower or any
other person.
16. WAIVER AND SEVERABILITY
No failure or delay by the Agent in exercising any right, power or
remedy hereunder shall impair such right, power or remedy or operate as
a waiver thereof, nor shall any single or partial exercise of the same
preclude any further exercise thereof or the exercise of any other
right, power or remedy. The rights, powers and remedies herein provided
are cumulative and do not exclude any other rights, powers and remedies
provided by law. If at any time any provision of this Deed is or
becomes illegal, invalid or unenforceable in any respect under the law
of any jurisdiction, the legality, validity and enforceability of such
provision under the law of any other jurisdiction, and of the remaining
provisions of this Deed, shall not be affected or impaired thereby.
17. MISCELLANEOUS
17.1 Continuing Obligations. The liabilities and obligations of the Borrower
under this Deed shall remain in force notwithstanding any act,
omission, event or circumstance whatsoever, until full, proper and
valid payment of the Secured Indebtedness.
17.2 Protective Clauses. Without limiting Clause 15.1, neither the liability
of the Borrower nor the validity or enforceability of this Deed shall
be prejudiced, affected or discharged by:
(a) any other Charge, guarantee or other security or right or
remedy being or becoming held by or available to the Agent or
any Lender or by any of the same being or becoming wholly or
partly void, voidable, unenforceable or impaired or by the
Agent or any Lender at any time releasing, refraining from
enforcing, varying or in any other way dealing with any of the
same or any power, right or remedy the Agent or any Lender may
now or hereafter have from or against the Borrower or any
other person or the granting of any time or indulgence to the
Borrower or any other person;
(b) any variation or modification of the Loan Agreement, any of
the Security Documents or any other document referred to
therein;
(c) the invalidity or unenforceability of any obligation or
liability of the Borrower under the Loan Agreement or any of
the Security Documents to which it is a party;
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(d) any invalidity or irregularity in the execution of this Deed
or the Loan Agreement or any of the other Security Documents
or any deficiency in the powers of the Borrower to enter into
or perform any of its obligations hereunder or under the Loan
Agreement or any of the other Security Documents to which it
is a party; or
(e) any act, omission, event or circumstance which would or may
but for this provision operate to prejudice, affect or
discharge this Deed or the liability of the Borrower
hereunder.
17.3 Unrestricted Right of Enforcement. This Deed may be enforced without
the Agent or any Lender first having recourse to any other security or
rights or taking any other steps or proceedings against the Borrower or
any other person or may be enforced for any balance due after resorting
to any one or more other means of obtaining payment or discharge of the
monies, obligations and liabilities hereby secured.
17.4 Discharges and Releases. Notwithstanding any discharge, release or
settlement from time to time between the Agent or any Lender and the
Borrower, if any security, disposition or payment granted or made to
the Agent or any Lender in respect of the Secured Indebtedness by the
Borrower or any other person is avoided or set aside or ordered to be
surrendered, paid away, refunded or reduced by virtue of any provision,
law or enactment relating to bankruptcy, insolvency, liquidation,
winding-up, composition or arrangement for the time being in force or
for any other reason, the Agent shall be entitled hereafter to enforce
this Deed as if no such discharge, release or settlement had occurred.
17.5 Amendment. Any amendment or waiver of any provision of this Deed and
any waiver of any default under this Deed shall only be effective if
made in writing and signed by the Agent.
17.6 Counterparts. This Deed may be executed in any number of counterparts
and by the different parties to this Deed on separate counterparts,
each of which when executed and delivered shall be an original but all
the counterparts shall together constitute one and the same instrument.
18. ASSIGNMENT
18.1 The Borrower. The Borrower shall not assign any of its rights
hereunder.
18.2 The Lenders. The Lenders may assign or grant participations in all or
any part of their rights under this Deed in accordance with the
provisions of clause 20 of the Loan Agreement.
19. NOTICES
19.1 Delivery. Each notice, demand or other communication to be given or
made under this Deed shall be in writing and delivered or sent to the
relevant party at its address or telex number or fax number set out
below (or such other address or telex number or
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fax number as the addressee has by five (5) days' prior written notice
specified to the other party):
To the Borrower: Zindart Limited
Flat C & D, 25th Floor, Block 1
Tai Ping Industrial Centre
▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
Fax Number : (▇▇▇) ▇▇▇▇ ▇▇▇▇
Attention : Feather Fok
To the Agent: Credit Suisse First Boston, Singapore Branch
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ #▇▇-▇▇
▇▇▇ ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax Number : (▇▇) ▇▇▇ ▇▇▇▇
Attention: : Credit Operations
19.2 Deemed Delivery. Any notice, demand or other communication so addressed
to the relevant party shall be deemed to have been delivered (a) if
given or made by letter, when actually delivered to the relevant
address, (b) if given or made by telex, when despatched with confirmed
answerback and (c) if given or made by fax, when despatched.
20. GOVERNING LAW AND JURISDICTION
20.1 Law. This Deed and the rights and obligations of the parties hereunder
shall be governed by and construed in accordance with the laws of
England.
20.2 Jurisdiction. The Borrower agrees that any legal action or proceeding
arising out of or relating to this Deed may be brought in the courts of
England and irrevocably submits to the non-exclusive jurisdiction of
such courts.
20.3 Process Agent. The Borrower irrevocably appoints ▇▇▇▇▇▇▇▇▇ Englefield
of ▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ as its agent to receive and
acknowledge on its behalf service of any writ, summons, order, judgment
or other notice of legal process in England. If for any reason the
agent named above (or its successor) no longer serves as agent of the
Borrower for this purpose, the Borrower shall promptly appoint a
successor agent satisfactory to the Agent and notify the Agent thereof
provided that until the Agent receives such notification, it shall be
entitled to treat the agent named above (or its said successor) as the
agent of the Borrower for the purposes of this Clause. The Borrower
agrees that any such legal process shall be sufficiently served on it
if delivered to such agent for service at its address for the time
being in England whether or not such agent gives notice thereof to the
Borrower.
20.4 No Limitation on Right of Action. Nothing herein shall limit the right
of the Agent and the Lenders to commence any legal action against the
Borrower and/or its
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property in any other jurisdiction or to serve process in any manner
permitted by law, and the taking of proceedings in any jurisdiction
shall not preclude the taking of proceedings in any other jurisdiction
whether concurrently or not.
20.5 Waiver; Final Judgment Conclusive. The Borrower irrevocably and
unconditionally waives any objection which it may now or hereafter have
to the choice of England as the venue of any legal action arising out
of or relating to this Deed. The Borrower also agrees that a final
judgment against it in any such legal action shall be final and
conclusive and may be enforced in any other jurisdiction, and that a
certified or otherwise duly authenticated copy of the judgment shall be
conclusive evidence of the fact and amount of its indebtedness.
20.6 Waiver of Immunity. The Borrower irrevocably waives any immunity to
which it or its property may at any time be or become entitled, whether
characterised as sovereign immunity or otherwise, from any set-off or
legal action in England or elsewhere, including immunity from service
of process, immunity from jurisdiction of any court or tribunal, and
immunity of any of its property from attachment prior to judgment or
from execution of a judgment.
IN WITNESS whereof this Deed has been executed by the parties hereto and is
intended to be and is hereby delivered on the day and year first above written.
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SCHEDULE 1
Form of Letter of Resignation
To: The Board of Directors of
▇▇▇ ▇▇▇▇ Holdings Company Limited (the "COMPANY")
I, , hereby resign my position as a director of the Company
with effect from____________________ 199 and waive all claims to fees or
compensation in connection with my resignation.
Dated this day of 199
SIGNED, SEALED AND DELIVERED )
[as a Deed] by [ )
] )
in the presence of: )
[ON DUPLICATE]
I certify that the original of this notice was posted to the registered office
of the Company on _______________ 199 .
______________________________
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SCHEDULE 2
Form of Notice and Acknowledgement (Shares)
To: [REGISTERED HOLDER(S)]
____________________ 199
Dear Sirs,
Re ▇▇▇ ▇▇▇▇ Holdings Company Limited (the "COMPANY")
We give you notice that by a share mortgage dated ____________________ 1998 we
have agreed to mortgage the entire issued share capital of the Company (the
"SHARES") of which we are the sole beneficial owner to Credit Suisse First
Boston, Singapore Branch (the "AGENT"). A copy of the share mortgage is attached
to this notice.
We instruct you forthwith to deposit with the Agent the certificates in respect
of the Share(s) of which you are the registered holder(s) and to execute and
deliver to the Agent such instruments of transfer, contract notes and other
documents in respect of the Share(s), including a power of attorney to sell,
transfer or otherwise dispose of the same, in such form as the Agent may at any
time and from time to time require.
These instructions shall be irrevocable until such time as you receive written
notice from the Agent stating that its mortgage over the Shares has been
released or otherwise discharged.
Please acknowledge these instructions by executing and delivering to the Agent
the attached acknowledgement.
Yours faithfully,
For and on behalf of
Zindart Limited
_____________________________
Name:
Title:
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[ON DUPLICATE]
Acknowledgement
To: Credit Suisse First Boston, Singapore Branch
____________________ 199
Dear Sirs,
Re ▇▇▇ ▇▇▇▇ Holdings Company Limited (the "COMPANY")
I/We acknowledge receipt of the attached notice from Zindart Limited (the
"BORROWER").
I/We [jointly and severally]:
1. warrant that I/we are the registered holder(s) of a total of [ ]
[ordinary] share(s) of [US]$[ ] each in the Company;
2. confirm that I/we hold such Share(s) as nominee(s) on trust for the
Borrower and that I/we shall hereafter hold such Share(s) on behalf of
yourselves as mortgagee in accordance with the terms of the notice and
share mortgage;
3. grant you a power of attorney in the terms of clause 12 of the share
mortgage as if references therein to the Borrower were references to
me/us and undertake to grant you such further powers of attorney in
such form as you may at any time and from time to time require; and
4. waive any right I/we may have under the articles of association of the
Company or otherwise to purchase the Shares or any of them in the event
that they are sold or otherwise disposed of pursuant to the power of
sale contained in clause 6 of the share mortgage.
EITHER
[SIGNED, SEALED AND DELIVERED )
[as a Deed] by [ )
] )
in the presence of: )]
OR
[THE COMMON SEAL of )
[ )
] )
was [hereunto] affixed [to )
this Deed] in the presence of )]
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SCHEDULE 3
Form of Notice and Acknowledgment (Assigned Monies)
To: ▇▇▇ ▇▇▇▇ Holdings Company Limited
____________________ 1998
Dear Sirs,
We give you notice that by a share mortgage dated ____________________ 1998 we
have, inter alia, assigned to Credit Suisse First Boston, Singapore Branch (the
"AGENT") all our right, title, interest and benefit in and to all indebtedness
now or at any time hereafter owing by you to us (the "ASSIGNED MONIES"). A copy
of the share mortgage is attached to this notice.
We authorise and instruct you to pay all sums which become due in respect of the
Assigned Monies to account no. A ▇▇▇▇▇▇▇.01.USD with the Agent or as the Agent
may direct.
These instructions shall not be revoked or varied without the prior written
consent of the Agent.
Please acknowledge these instructions by signing as indicated and returning to
the Agent the enclosed duplicate of this notice.
Yours faithfully,
For and on behalf of
Zindart Limited
_____________________________
Name:
Title:
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[ON DUPLICATE]
To: Credit Suisse First Boston, Singapore Branch
We acknowledge receipt of the above notice and confirm that we will comply with
the terms thereof.
We agree that we will neither claim to set off to your prejudice any Assigned
Monies against any claim we may have against Zindart Limited howsoever arising
nor exercise or attempt to exercise any right of set-off or consolidation or
combination of accounts or similar right in respect of or in relation to the
Assigned Monies.
Dated: ____________________ 1998
For and on behalf of
▇▇▇ ▇▇▇▇ Holdings Company Limited
____________________________________
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THE BORROWER
THE COMMON SEAL of )
ZINDART LIMITED )
was affixed to this Deed )
in the presence of )
THE AGENT
SIGNED FOR and on behalf of )
CREDIT SUISSE FIRST BOSTON, )
SINGAPORE BRANCH )
by )
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