Exhibit 4.3
EXECUTION COUNTERPART
================================================================================
CREDIT AGREEMENT
NO : K.TEL.167/HK950/SEK-20/2003
dated as of
July 31, 2003
among
PERUSAHAAN PERSEROAN (PERSERO) PT TELEKOMUNIKASI INDONESIA, TBK.,
The LENDERS Party Hereto
and
JPMORGAN CHASE BANK, HONG KONG OFFICE,
as Facility Agent
-------------------
US$196,970,274.71
-------------------
================================================================================
MILBANK, TWEED, XXXXXX & XXXXXX LLP
TABLE OF CONTENTS
Page
----
ARTICLE I DEFINITIONS.............................................................................. 2
SECTION 1.01. Defined Terms.............................................................. 2
SECTION 1.02. Terms Generally............................................................ 9
SECTION 1.03. Accounting Terms; GAAP..................................................... 9
ARTICLE II THE CREDITS............................................................................. 9
SECTION 2.01. The Loan................................................................... 9
SECTION 2.02. Repayment of Loan; Evidence of Debt........................................ 9
SECTION 2.03. Prepayment of Loan......................................................... 10
SECTION 2.04. Fees....................................................................... 11
SECTION 2.05. Interest................................................................... 11
SECTION 2.06. Taxes...................................................................... 12
SECTION 2.07. Payments Generally; Pro Rata Treatment; Sharing of Set-offs................ 13
SECTION 2.08. Increased Costs............................................................ 15
SECTION 2.09. Illegality................................................................. 16
SECTION 2.10. Designation of a Different Lending Office; Replacement of Lenders.......... 16
SECTION 2.11. Break Funding Payments..................................................... 17
ARTICLE III REPRESENTATIONS AND WARRANTIES......................................................... 17
SECTION 3.01. Organization; Powers....................................................... 17
SECTION 3.02. Authorization; Enforceability.............................................. 17
SECTION 3.03. Governmental Approvals; No Conflicts....................................... 18
SECTION 3.04. Financial Condition........................................................ 18
SECTION 3.05. Properties................................................................. 18
SECTION 3.06. Actions, Suits and Proceedings............................................. 19
SECTION 3.07. Compliance with Laws and Agreements........................................ 19
SECTION 3.08. Taxes...................................................................... 19
SECTION 3.09. Disclosure................................................................. 19
SECTION 3.10. Legal Form................................................................. 19
SECTION 3.11. Ranking.................................................................... 19
SECTION 3.12. Commercial Activity; Absence of Immunity................................... 19
SECTION 3.13. Solvency................................................................... 20
SECTION 3.14. Telkomsel.................................................................. 20
ARTICLE IV CONDITIONS PRECEDENT TO EFFECTIVE DATE.................................................. 20
ARTICLE V AFFIRMATIVE COVENANTS.................................................................... 22
SECTION 5.01. Financial Statements and Other Information................................. 22
SECTION 5.02. Notices of Material Events................................................. 23
SECTION 5.03. Existence; Conduct of Business............................................. 24
SECTION 5.04. Payment of Obligations..................................................... 24
SECTION 5.05. Maintenance of Properties; Insurance....................................... 24
- i -
Page
----
SECTION 5.06. Books and Records; Inspection Rights....................................... 24
SECTION 5.07. Compliance with Laws....................................................... 24
SECTION 5.08. Governmental Approvals..................................................... 25
SECTION 5.09. Credit Rating.............................................................. 25
SECTION 5.10. Filings.................................................................... 25
SECTION 5.11. Listing.................................................................... 25
SECTION 5.12. Compliance................................................................. 26
SECTION 5.13. Ranking with Other Creditors............................................... 26
SECTION 5.14. Lines of Business.......................................................... 26
ARTICLE VI NEGATIVE COVENANTS...................................................................... 26
SECTION 6.01. Limitation on Fundamental Changes and Sale of Assets....................... 26
SECTION 6.02. Transaction with Affiliates................................................ 26
ARTICLE VII EVENTS OF DEFAULT...................................................................... 26
ARTICLE VIII THE FACILITY AGENT.................................................................... 29
SECTION 8.01. Appointment................................................................ 29
SECTION 8.02. Rights as a Lender......................................................... 29
SECTION 8.03. Limitation on Duties....................................................... 29
SECTION 8.04. Reliance by Agent.......................................................... 30
SECTION 8.05. Sub-Agents................................................................. 30
SECTION 8.06. Resignation................................................................ 31
SECTION 8.07. Reliance by Lenders........................................................ 31
SECTION 8.08. Legal Restrictions......................................................... 31
SECTION 8.09. Information................................................................ 31
SECTION 8.10. Application of Proceeds.................................................... 31
SECTION 8.11. Directions................................................................. 32
SECTION 8.12. Affiliates................................................................. 32
SECTION 8.13. Banking Business........................................................... 32
SECTION 8.14. Defaults................................................................... 33
SECTION 8.15. Failure to Act............................................................. 33
SECTION 8.16. Call Option and Escrow Agreement........................................... 33
ARTICLE IX MISCELLANEOUS........................................................................... 33
SECTION 9.01. Notices.................................................................... 33
SECTION 9.02. Waivers; Amendments........................................................ 34
SECTION 9.03. Expenses; Indemnity; Damage Waiver......................................... 35
SECTION 9.04. Successors and Assigns..................................................... 36
SECTION 9.05. Survival................................................................... 38
SECTION 9.06. Counterparts; Integration; Effectiveness................................... 38
SECTION 9.07. Severability............................................................... 39
SECTION 9.08. Right of Set-off........................................................... 39
SECTION 9.09. Governing Law; Jurisdiction; Service of Process; Etc. ..................... 39
SECTION 9.10. Waiver of Jury Trial....................................................... 40
- ii -
Page
----
SECTION 9.11. No Immunity................................................................ 40
SECTION 9.12. Judgment Currency.......................................................... 40
SECTION 9.13. Use of English Language.................................................... 41
SECTION 9.14. Headings................................................................... 41
SECTION 9.15. Confidentiality............................................................ 42
SCHEDULE I - Principal Amount
SCHEDULE II - Treaty Countries
EXHIBIT A - Form of Assignment and Acceptance
EXHIBIT B - Form of Process Agent Acceptance
- iii -
This CREDIT AGREEMENT (this "AGREEMENT") dated as of July 31,
2003, is entered into by and between PERUSAHAAN PERSEROAN (PERSERO) PT
TELEKOMUNIKASI INDONESIA, TBK., a limited liability company organized under the
laws of the Republic of Indonesia, the LENDERS party hereto, and JPMORGAN CHASE
BANK, Hong Kong Office, as Facility Agent.
RECITALS
1. AWI and the Borrower have entered into a KSO Agreement No. PKS
222/HK.810/UTA-00/95 dated October 20, 1995 to develop, construct and
operate fixed line telecommunications facilities in the Regional
Division III West Java operating area of Indonesia (the "PROJECT");
2. Pursuant to the Amendment and Restatement dated as of May 12, 1999 of
the Credit Facility Agreement dated as of April 30, 1996 among AWIF, as
borrower, AWI, as guarantor, the Lenders and other parties referred to
therein (the "ARIA WEST CREDIT AGREEMENT"), the Lenders have provided
various financing arrangements to AWI and AWIF to enable AWI to
undertake the Project;
3. The Borrower has agreed to purchase all of the issued and outstanding
shares of AWI, being 2,704,444 ordinary shares of nominal value Rp.
114,000 per share, (the "SHARES") from the Selling Shareholders
pursuant to a Conditional Sale and Purchase Agreement No:
K.Tel.76/HK810/SEK-32/2002 dated May 8, 2002 and as amended pursuant to
The First Amendment to the Conditional Sale and Purchase Agreement
dated as of July 31, 2003 (the "PURCHASE AGREEMENT");
4. In order to help facilitate the repayment of the Aria West Credit
Agreement and such other financing agreements entered into in relation
to the Aria West Credit Agreement, the Borrower and the Lenders are
willing to enter into this Agreement on the terms and conditions set
forth herein and the other Basic Documents on the terms and conditions
set forth therein.
AGREEMENT
NOW THEREFORE in consideration of the mutual representations,
warranties, promises, covenants and agreements set forth herein, the receipt and
adequacy of which are hereby acknowledged, intending to be legally bound hereby,
the Borrower and the Lenders agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms have the meanings specified below:
"AFFILIATE" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified.
"AGENCY AGREEMENT" means the agency agreement dated as of July
31, 2003 among the Borrower, the Selling Shareholders and Bank of New York, as
Agent.
"APPLICABLE RATE" means 3.5% per annum.
"ARIAWEST RELEASE AGREEMENT" means the release agreement dated
as of July 31, 2003 between AWI, AWIF, the lenders party thereto and CIBC Asia
Limited, as existing facility agent and JPMorgan Chase Bank, as existing
collateral agent under the AriaWest Credit Agreement.
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance
entered into by a Lender and an assignee, and accepted by the Facility Agent, in
the form of Exhibit A or any other form approved by the Facility Agent.
"AWI" means PT AriaWest International, a limited liability
company organized under the laws of Indonesia.
"AWIF" means Aria West International Finance B.V., a closed
company with limited liability duly organized and validly existing under the
laws of The Netherlands, having its corporate seat in Amsterdam.
"BAPEPAM" has the meaning assigned to such term in Section
3.04(a).
"BASIC DOCUMENTS" means, collectively, this Agreement, the
Promissory Notes, the Call Option and Escrow Agreement and the AriaWest Release
Agreement.
"BORROWER" means Perusahaan Perseroan (Persero) PT
Telekomunikasi Indonesia, Tbk., a limited liability company organized under the
laws of the Republic of Indonesia, which for the avoidance of doubt includes all
its divisions and any interest it may have in any Kerjasama Operasi (KSO) units.
"BUSINESS DAY" means any day that is not a Saturday, Sunday or
other day on which commercial banks in Jakarta, Hong Kong or New York City are
authorized or required by law to remain closed.
- 2 -
"CALL OPTION AND ESCROW AGREEMENT" means the Call Option and
Escrow Agreement dated as of July 31, 2003 between the Selling Shareholders, the
Lenders, the Facility Agent and the Escrow Agent.
"CAPITAL LEASE OBLIGATIONS" of any Person means the
obligations of such Person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"CHANGE IN LAW" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement, (c) compliance by any Lender with
any request, guideline or directive (whether or not having the force of law, if
the jurisdiction of the applicable lending office of such Lender is set forth in
Schedule II) of any Governmental Authority made or issued after the date of this
Agreement, or (d) compliance by any Lender with a lending office not set forth
in Schedule II with any request, guideline or directive of any Governmental
Authority made or issued after the date of this Agreement (not having the force
of law) which is being generally complied with by financial institutions in the
relevant jurisdiction.
"COMMON AGREEMENT" means the Amendment and Restatement dated
as of May 12, 1999 of the Common Agreement dated as of April 30, 1996 among
AWIF, as borrower, AWI, as guarantor, the lenders party thereto, CIBC Asia
Limited, as facility agent and intercreditor agent, Credit Lyonnais S.A., as
technical agent and JPMorgan Chase Bank (formerly The Chase Manhattan Bank), as
collateral agent.
"CONTROL" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or
otherwise. "CONTROLLING" and "CONTROLLED" have meanings correlative thereto.
"DEFAULT" means any event or condition which constitutes an
Event of Default or which upon notice, lapse of time or both would, unless cured
or waived, become an Event of Default.
"DEFAULT INTEREST PERIOD" means, at any time after a Default
has occurred and is continuing, each successive period as the Facility Agent
shall from time to time (with the approval of the Required Lenders) choose;
provided that (a) no such period shall exceed three months, (b) the first such
period shall commence as of the date on which such principal or other amount
became due and is not paid in accordance herewith and each succeeding period
shall commence upon the expiry of the immediately preceding period and (c) in
the absence of or pending such consent from the Required Lenders, each Default
Interest Period shall have a duration of one month.
"DOCUMENTATION BANK" means JPMorgan Chase Bank.
"DOLLARS" OR "$" means the lawful currency of the United
States of America.
- 3 -
"EFFECTIVE DATE" means the date on which the conditions
specified in Article IV are satisfied (or waived in accordance with Section
9.02).
"ELIGIBLE ASSIGNEE" means any Person other than (a) a Person
who does not ordinarily buy and sell financial instruments of this nature, (b) a
telecommunications operator or (c) employees or management of the Borrower and
its Subsidiaries.
"ENVIRONMENTAL LAWS" means all laws, rules, regulations,
codes, ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.
"ESCROW AGENT" means The Bank of New York, as Escrow Agent
pursuant to the Call Option and Escrow Agreement.
"EVENTS OF DEFAULT" has the meaning assigned to such term in
Article VII.
"EXCLUDED TAXES" means, with respect to the Facility Agent,
any Lender or any other recipient of any payment to be made by or on account of
any obligation of the Borrower hereunder, (a) income tax, capital gains tax or
franchise tax, or similar tax imposed generally on the income or gains of the
Facility Agent, such Lender or such other recipient of any payment to be made by
or on account of any obligation of the Borrower hereunder, as the case may be,
by the jurisdiction in which the Facility Agent or such other recipient of any
payment to be made by or on account of any obligation of the Borrower hereunder,
as the case may be, is located or such Lender's applicable lending office, as
applicable, is located, (b) any branch profits tax or similar tax imposed on the
Facility Agent or such other recipient of any payment to be made by or on
account of any obligation of the Borrower hereunder, as the case may be, by the
jurisdiction in which the Facility Agent or such recipient is located or imposed
on any Lender by the jurisdiction in which the applicable Lender's lending
office is located, as applicable and (c) to the extent any withholding tax is
imposed in excess of 10% of the relevant payment amount as a result of any
Lender's failure to comply with the requirements of Section 2.06(e).
"FACILITY AGENT" means JPMorgan Chase Bank, Hong Kong Office,
in its capacity as facility agent for the Lenders hereunder.
"FEE LETTER" means the fee letter agreement dated July 16,
2003 between the Borrower and the Facility Agent.
"FINANCIAL OFFICER" means the chief financial officer,
principal accounting officer, treasurer or controller of the Borrower.
"FOREIGN LENDER" means any Lender that is organized under the
laws of a jurisdiction other than Indonesia.
"GAAP" means generally accepted accounting principles in
Indonesia.
- 4 -
"GOVERNMENTAL AUTHORITY" means the government of Indonesia, or
of any other nation, or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity (including any federal or other association of or
with which any such nation may be a member or associated) exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions
of or pertaining to government.
"GUARANTEE" of or by any Person (the "GUARANTOR") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "PRIMARY OBLIGOR") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued to support such
Indebtedness or obligation; provided, that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary course of business.
"HAZARDOUS MATERIALS" means all explosive or radioactive
substances or wastes and all hazardous or toxic substances, wastes or other
pollutants, including petroleum or petroleum distillates, asbestos or asbestos
containing materials, polychlorinated biphenyls, radon gas, infectious or
medical wastes and all other substances or wastes of any nature regulated
pursuant to any Environmental Law.
"INDEBTEDNESS" of any Person means, without duplication, (a)
all obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such Person upon which interest charges are customarily paid, (d)
all obligations of such Person under conditional sale or other title retention
agreements relating to property acquired by such Person, (e) all obligations of
such Person in respect of the deferred purchase price of property or services
(excluding current accounts payable incurred in the ordinary course of
business), (f) all Indebtedness of others secured by (or for which the holder of
such Indebtedness has an existing right, contingent or otherwise, to be secured
by) any Lien on property owned or acquired by such Person, whether or not the
Indebtedness secured thereby has been assumed, (g) all Guarantees by such Person
of Indebtedness of others, (h) all Capital Lease Obligations of such Person as
lessee, (i) all obligations, contingent or otherwise, of such Person as an
account party in respect of letters of credit and letters of guaranty and (j)
all obligations, contingent or otherwise, of such Person in respect of bankers'
acceptances. The Indebtedness of any Person shall include the Indebtedness of
any other entity (including any partnership in which such Person is a general
partner) to the extent such Person is liable therefor as a result of such
Person's ownership interest in or other relationship with such entity, except to
the extent the terms of such Indebtedness provide that such Person is not liable
therefor.
- 5 -
"INDEMNIFIED TAXES" means Taxes (other than Excluded Taxes) on
or with respect to any payment by or on account of any obligation of the
Borrower hereunder.
"INDONESIA" means the Republic of Indonesia and its
territorial waters.
"INTEREST PERIOD" means the period commencing on, in respect
of the first Interest Period, the Effective Date, and ending on the Payment Date
following the Effective Date and, for each subsequent Interest Period,
commencing on the last day of the preceding Interest Period, and ending on the
next Payment Date; provided that (i) if any Interest Period would end on a day
other than a Business Day, such Interest Period shall end on the immediately
preceding Business Day and (ii) notwithstanding the foregoing, if any Interest
Period would otherwise end after the Maturity Date, such Interest Period shall
end on the Maturity Date.
"LENDERS" means the Persons listed on Schedule I and any other
Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Acceptance.
"LIBO RATE" means, with respect to the then outstanding
principal amount of the Loan for any Interest Period (or for any Default
Interest Period for any principal of any Loan or any other amount under this
Agreement), the rate appearing on LIBOR01 page of the Reuters screen (or on any
successor or substitute page of such service, or any successor to or substitute
for such service, providing rate quotations comparable to those currently
provided on such page of such service, as determined by the Facility Agent from
time to time for purposes of providing quotations of interest rates applicable
to Dollar deposits in the London interbank market) at approximately 11:00 a.m.,
London time, two London Banking Days prior to the commencement of such Interest
Period (or Default Interest Period), as the rate for Dollar deposits of an
amount comparable to the then outstanding principal amount of the Loan with a
maturity term comparable to such Interest Period (or Default Interest Period).
In the event that such rate is not available at such time for any reason, then,
the LIBO Rate with respect to such Loan for such Interest Period (or Default
Interest Period) shall be the arithmetic average of the rates (rounded upwards,
if necessary, to the next 1/16 of 1%) at which Dollar deposits in an amount
comparable to the then outstanding principal amount of the Loan to be made by
the respective Reference Lenders for such Interest Period and for a maturity
comparable to such Interest Period (or Default Interest Period) are offered by
the principal London office of the respective Reference Lenders in immediately
available funds in the London interbank market at approximately 11:00 a.m.,
London time, two London Banking Days prior to the commencement of such Interest
Period (or Default Interest Period). If any Reference Lender does not timely
furnish the information required for determination of any LIBO Rate, the
Facility Agent shall determine such LIBO Rate on the basis of the information
timely furnished by the remaining Reference Lenders.
"LIEN" means, with respect to any asset, (a) any mortgage,
deed of trust, lien, pledge, hypothecation, encumbrance, fiduciary security,
charge or security interest in, on or of such asset, (b) the interest of a
vendor or a lessor under any conditional sale agreement, capital lease or title
retention agreement (or any financing lease having substantially the same
economic effect as any of the foregoing) relating to such asset and (c) in the
case of securities, any purchase option, call or similar right of a third party
with respect to such securities.
- 6 -
"LOAN" means the loans made by the Lenders to the Borrower
pursuant to this Agreement.
"LONDON BANKING DAY" means, in relation to any day for which
an interest rate is to be determined, any day that is not a Saturday, Sunday or
other day on which commercial banks in London are authorized or required by law
to remain closed; provided that "London Banking Day" shall also exclude any day
on which banks are not open for dealings in Dollar deposits in the London
interbank market.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on
(a) the business, assets, operations, or financial condition of the Borrower and
its Material Subsidiary taken as a whole, (b) the ability of the Borrower to
perform any of its obligations under any of the Basic Documents to which it is a
party or (c) the rights of or benefits available to the Lenders under this
Agreement.
"MATERIAL SUBSIDIARY" means PT Telekomunikasi Selular so long
as the Borrower or any of its Subsidiaries directly or indirectly owns more than
50% of its issued and outstanding shares and at all other times, there shall be
no Material Subsidiary.
"MATURITY DATE" means June 30, 2007.
"NOTEHOLDERS" has the meaning assigned to such term in the
Call Option and Escrow Agreement.
"OTHER TAXES" means any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies (other than Excluded Taxes) arising from any payment made hereunder or
from the execution, delivery or enforcement of, or otherwise with respect to,
this Agreement.
"PAYMENT DATE" means each June 30 and December 31 from the
date hereof (but not including the date hereof) through and including the
Maturity Date; provided, that if such day is not a Business Day then the
immediately preceding Business Day.
"PERSON" means any natural person, corporation, limited
liability company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
"PROCESS AGENT" has the meaning assigned to such term in
Section 9.09(c).
"PROCESS AGENT ACCEPTANCE" means a letter from the Process
Agent to the Facility Agent, substantially in the form of Exhibit B.
"PROMISSORY NOTES" means collectively, the Tranche A
Promissory Notes and the Tranche B Promissory Notes.
"PROPERTY" of any Person means any property, assets or
revenues of such Person or any interest therein.
- 7 -
"REFERENCE LENDERS" means the principal London offices of
JPMorgan Chase Bank, Deutsche Bank and BNP Paribas (or their respective
applicable lending offices, as the case may be).
"REGISTER" has the meaning set forth in Section 9.04(c).
"RELATED PARTIES" means, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"REQUIRED LENDERS" means, at any time, Lenders holding at
least 66 2/3% of the aggregate principal amount of the then total outstanding
amount of the Loan.
"SEC" means the Securities and Exchange Commission of the
United States of America.
"SELLING SHAREHOLDERS" means collectively, PT Aria Infotek, a
limited liability company organized under the laws of Indonesia, Mediaone
International I B.V., a private limited company incorporated under the laws of
the Netherlands and The Asian Infrastructure Fund, an exempted limited duration
company organized under the laws of the Cayman Islands (each, a "SELLING
SHAREHOLDER").
"SHAREHOLDERS RELEASE AGREEMENT" means the release agreement
dated as of July 31, 2003 between the Selling Shareholders, the lenders party
thereto and CIBC Asia Limited, as existing facility agent and JPMorgan Chase
Bank, as existing collateral agent under the AriaWest Credit Agreement.
"SUBSIDIARY" means, with respect to any Person (the "PARENT")
at any date, any corporation, limited liability company, partnership,
association or other entity the accounts of which would be consolidated with
those of the parent in the parent's consolidated financial statements if such
financial statements were prepared in accordance with GAAP as of such date, as
well as any other corporation, limited liability company, partnership,
association or other entity (a) of which securities or other ownership interests
representing more than 50% of the equity or more than 50% of the ordinary voting
power or, in the case of a partnership, more than 50% of the general partnership
interests are, as of such date, owned, controlled or held, or (b) that is, as of
such date, otherwise Controlled, by the parent or one or more subsidiaries of
the parent or by the parent and one or more subsidiaries of the parent. Unless
otherwise specified, "SUBSIDIARY" means a Subsidiary of the Borrower.
"TAXES" means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"TRANCHE A PROMISSORY NOTES" means collectively, the Series II
promissory notes dated July 31, 2003 with a maturity date of July 31, 2008
issued by the Borrower pursuant to the Purchase Agreement which were transferred
by the Selling Shareholders to the Noteholders pursuant to the Shareholders
Release Agreement.
- 8 -
"TRANCHE B PROMISSORY NOTES" means collectively, the Series II
promissory notes dated July 31, 2003 with a maturity date of January 31, 2009
issued by the Borrower pursuant to the Purchase Agreement which were transferred
by the Selling Shareholders to the Noteholders pursuant to the Shareholders
Release Agreement.
"TRANSACTIONS" means the execution, delivery and performance
by the Borrower of this Agreement and the other Basic Documents to which it is a
party.
SECTION 1.02. Terms Generally. The definitions of terms herein
shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
The word "will" shall be construed to have the same meaning and effect as the
word "shall". Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
(b) any reference herein to any Person shall be construed to include such
Person's successors and assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words "asset" and "property" shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights.
SECTION 1.03. Accounting Terms; GAAP. Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP, as in effect from time to time.
ARTICLE II
THE CREDITS
SECTION 2.01. The Loan. Each Lender agrees on the terms and
conditions set forth herein to lend to the Borrower on the Effective Date the
amount set forth opposite such Lender's name in Schedule I. The Borrower agrees
that the Loan has been fully drawn on the Effective Date. The Borrower and each
Lender confirm that the outstanding principal amount of the Loan owing to such
Lender on the Effective Date is correctly set forth in Schedule I . Amounts
prepaid or repaid in respect of the Loan may not be reborrowed.
SECTION 2.02. Repayment of Loan; Evidence of Debt.
- 9 -
(a) Repayment. The Borrower hereby unconditionally and
irrevocably promises to pay to the Facility Agent for account of the Lenders the
amount set forth next to each Payment Date on such Payment Date, as set forth
below:
Principal Amount
Payment Date Amount of Loan
------------ ----------------
December 31, 2003 $24,655,151.30
June 30, 2004 $24,655,151.30
December 31, 2004 $24,655,151.30
June 30, 2005 $24,655,151.30
December 31, 2005 $24,655,151.30
June 30, 2006 $24,655,151.30
December 31, 2006 $24,655,151.30
Maturity Date $24,384,215.58
(b) Maintenance of Records by the Facility Agent. The
Facility Agent shall maintain records in which it shall record (i) the amount of
the Loan made hereunder, (ii) the amount of any principal or interest due and
payable or to become due and payable from the Borrower to each Lender hereunder
and (iii) the amount of any sum received by the Facility Agent hereunder for
account of the Lenders and each Lender's share thereof.
(c) Effect of Entries. The entries made in the records
maintained pursuant to paragraph (b) of this Section shall be prima facie
evidence of the existence and amounts of the obligations recorded therein;
provided that the failure of the Facility Agent to maintain such records or any
error therein shall not in any manner affect the obligation of the Borrower to
repay the Loan in accordance with the terms of this Agreement.
SECTION 2.03. Prepayment of Loan.
(a) Right to Prepay Borrowings. The Borrower shall have
the right at any time and from time to time to prepay the Loan in whole or in
part without premium or penalty, subject to the requirements of this Section.
Any prepayment of the Loan pursuant to this Section shall be applied to the
installments thereof in the inverse order of maturity.
(b) Notices, Etc. The Borrower shall notify the Facility
Agent of any prepayment hereunder not later than 11:00 a.m., Jakarta time, 10
Business Days before the date of prepayment. Each such notice shall be
irrevocable and shall specify the prepayment date and the principal amount of
the Loan to be prepaid. Promptly following receipt of any such notice relating
to the Loan, the Facility Agent shall advise the Lenders of the contents
thereof. Each partial prepayment of the Loan shall be in an amount of not less
than $5,000,000 and in multiples of $1,000,000 in excess thereof (or if less,
the amount then outstanding on the Loan), in each case in the aggregate for all
Lenders. Prepayments shall be accompanied by accrued interest to the extent
required by Section 2.05. If such payment date is not a Payment Date, the
Borrower shall pay to the Lenders the break funding payments pursuant to Section
2.11.
- 10 -
SECTION 2.04. Fees.
(a) Facility Agent Fees. The Borrower agrees to pay to
the Facility Agent, for its own account, fees payable in the amounts and at the
times separately agreed upon between the Borrower and the Facility Agent as set
forth in the Fee Letter.
(b) Payment of Fees. All fees payable hereunder shall be
paid on the dates due, in immediately available funds, to the Facility Agent for
distribution. Fees paid shall not be refundable under any circumstances.
SECTION 2.05. Interest.
(a) Loan. Unpaid principal amounts under the Loan shall
bear interest at a rate per annum equal to the LIBO Rate plus the Applicable
Rate.
(b) Default Interest. Notwithstanding the foregoing, if
any principal of or interest on any Loan or any fee or other amount payable by
the Borrower hereunder is not paid when due (including during any grace period),
whether at stated maturity, upon acceleration or otherwise, such overdue amount
shall bear interest, after as well as before judgment, at a rate per annum equal
to 2% plus the rate applicable to the Loan as provided in paragraph (a) of this
Section.
(c) Payment of Interest. Accrued interest on the Loan
shall be payable in arrears on each Payment Date; provided that interest accrued
pursuant to paragraph (b) of this Section shall be payable on demand.
(d) Computation. All interest hereunder shall be computed
on the basis of a year of 360 days, and shall be payable for the actual number
of days elapsed (including the first day but excluding the last day of an
Interest Period or Default Interest Period, as the case may be). The applicable
LIBO Rate shall be determined by the Facility Agent, and such determination
shall be conclusive absent manifest error. At the request of the Borrower, the
Facility Agent shall deliver to the Borrower a statement setting forth the
quotations and calculations methods used by the Facility Agent to determine any
interest payable pursuant to this Section.
(e) Alternate LIBO Rate of Interest. If before the
commencement of any Interest Period:
(i) the Facility Agent, after consultation with
the Reference Lenders determines (which determination shall be
conclusive in the absence of manifest error) that adequate and
reasonable means do not exist for ascertaining the LIBO Rate for such
Interest Period due to non-availability of the Reuters Services or
non-availability of any quote from the Reference Lenders; or
(ii) the Facility Agent is advised by the
Required Lenders that the LIBO Rate for such Interest Period will not
adequately and fairly cover the cost to such Lenders of maintaining
their Loan for such Interest Period;
- 11 -
then, the Facility Agent shall forthwith furnish a notice (a "DETERMINATION
NOTICE") to the Borrower and each of the Lenders specifying the circumstances
therefor. During the period of 10 days after a Determination Notice has been
furnished by the Facility Agent, the affected Lenders shall enter into good
faith negotiations with the Borrower with a view of establishing a satisfactory
alternative basis for computing interest on the then outstanding amount of the
Loan of the affected Lenders for the Interest Period to which the Determination
Notice relates (the "AFFECTED INTEREST PERIOD"). If the affected Lenders and the
Borrower agree in writing upon such alternative basis on or before the 30th day
after the Determination Notice, interest shall accrue, and be payable by the
Borrower, on the then outstanding amount of the Loan of the affected Lenders
during the Affected Interest Period in accordance with the alternative basis. If
the affected Lenders and the Borrower fail to agree on such alternative basis on
or before such 30th day, within five Business Days thereafter, the affected
Lenders shall give notice to the Borrower of the rate of interest the affected
Lenders determine is the sum of the Applicable Rate and the effective cost
(expressed as an annual rate) to the affected Lenders of funding their Loan for
the Affected Interest Period, and interest shall accrue, and be payable by the
Borrower, on the then outstanding amount of the Loan of the affected Lenders
during the Affected Interest Period at the rate set forth in that notice. While
any such alternative basis is in force, if the affected Lenders and the Borrower
determine that the alternative basis is no longer be necessary, they shall
notify the Facility Agent and the interest rates on the affected Loan shall be
calculated in accordance with Section 2.05(a).
SECTION 2.06. Taxes.
(a) Payments Free of Taxes. Any and all payments by or on
account of any obligation of the Borrower hereunder shall be made free and clear
of and without deduction for any Indemnified Taxes or Other Taxes; provided that
if the Borrower shall be required to deduct any Indemnified Taxes or Other Taxes
from such payments, then (i) the sum payable shall be increased as necessary so
that after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Facility Agent or Lender (as the
case may be) receives an amount equal to the sum it would have received had no
such deductions been made, (ii) the Borrower shall make such deductions and
(iii) the Borrower shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law; provided further, that
if a Lender has designated a lending office for funding or booking its Loan
which is not located in a country listed in Schedule II, then for so long as it
continues to designate such lending office for booking its Loan, the Borrower's
obligation to pay such additional sum to such Lender under this Section 2.06(a)
shall, solely with respect to payments in connection with any withholding tax
obligation, be an amount equal to not more than 10% of the payment amount which
such Lender would have received had no such withholding been required.
(b) Payment of Other Taxes by the Borrower. In addition,
the Borrower shall pay any Other Taxes to the relevant Governmental Authority in
accordance with applicable law.
- 12 -
(c) Indemnification by the Borrower. The Borrower shall
indemnify the Facility Agent and each Lender, within 10 days after written
demand therefor, for the full amount of any Indemnified Taxes or Other Taxes
(including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) paid by the Facility Agent
or such Lender, as the case may be, and any penalties, interest and reasonable
expenses arising therefrom or with respect thereto, whether or not such
Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted
by the relevant Governmental Authority. A certificate as to the amount of such
payment or liability delivered to the Borrower by a Lender, or by the Facility
Agent on its own behalf or on behalf of a Lender, shall be conclusive absent
manifest error.
(d) Evidence of Payments. As soon as practicable after
any payment of Indemnified Taxes or Other Taxes by the Borrower to a
Governmental Authority, the Borrower shall deliver to the Facility Agent the
original or a certified copy of a receipt issued by such Governmental Authority
evidencing such payment, a copy of the return reporting such payment or other
evidence of such payment reasonably satisfactory to the Facility Agent.
(e) Each Lender will provide a certificate to the
Borrower stating the jurisdiction in which it is a taxable entity, as may be
reasonably requested from time to time by the Borrower in writing reasonably in
advance of the relevant Payment Date for the purpose of enabling payments to be
made without withholding or at a reduced rate; provided, that the Borrower's
obligation to pay additional amounts pursuant to this Section 2.06 in respect of
withholding taxes shall be limited to a maximum of 10% of the relevant payment
amount for such Lender in the event that such Lender shall fail to deliver such
a certificate.
SECTION 2.07. Payments Generally; Pro Rata Treatment; Sharing
of Set-offs.
(a) Payments by the Borrower. The Borrower shall make
each payment required to be made by it hereunder (whether of principal, interest
or fees, or under Section 2.06, or otherwise) prior to 9:30 a.m., Jakarta time,
on the date when due, in immediately available funds, without set-off or
counterclaim and the Facility Agent shall receive from the Borrower a copy of
the executed payment evidence from the Borrower's remitting bank (such as SWIFT
MT 103 or MT 202) prior to 11:00 a.m. Jakarta time on such date. Any amounts
received after such time on any date may, in the discretion of the Facility
Agent, be deemed to have been received on the next succeeding Business Day for
purposes of calculating interest thereon. All such payments shall be made to
account no. 000-0-000000, maintained by the Facility Agent at JPMorgan Chase
Bank in New York, New York, U.S.A., except payments pursuant to Sections 2.08
and 9.03, which shall be made directly to the Persons entitled thereto. The
Facility Agent shall distribute any such payments received by it for account of
any other Person to the appropriate recipient promptly following receipt
thereof. If any payment hereunder shall be due on a day that is not a Business
Day, the date for payment shall be the immediately preceding Business Day, and
such reduction of time shall in each case be included and reflected in the
computation of interest and other fees and amounts payable under this Agreement.
All payments hereunder shall be made in Dollars.
(b) Application of Insufficient Payments. If at any time
insufficient funds are received by and available to the Facility Agent to pay
fully all amounts of principal, interest and fees then due hereunder, such funds
shall be applied (i) first, to pay all fees and other expenses of the
- 13 -
Facility Agent or the Lenders that may be due by the Borrower or unpaid by the
Borrower together with any default interest (including fees and disbursements of
legal counsel and other advisors); (ii) second, to pay interest and fees then
due hereunder, ratably among the parties entitled thereto in accordance with the
amounts of interest and fees then due to such parties, and (iii) third, to pay
principal then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of principal then due to such parties.
(c) Pro Rata Treatment. Except to the extent otherwise
provided herein the Facility Agent shall apply: (i) each payment or prepayment
of principal of the Loan by the Borrower for account of the Lenders pro rata in
accordance with the respective unpaid principal amount of the Loan held by them;
and (ii) each payment of interest on the Loan by the Borrower for account of the
Lenders pro rata in accordance with the amounts of interest on the Loan then due
and payable to the respective Lenders.
(d) Sharing of Payments by Lenders. If any Lender shall,
whether through the exercise of a right of banker's lien, set-off or
counterclaim against the Borrower or otherwise, obtain any payment of principal
of or interest on the Loans or other amounts owing to such Lender by the
Borrower hereunder and, as a result of such payment, such Lender shall have
received a greater percentage of the principal of or interest on such Loans or
other amounts then due to such Lender, than the percentage received by any other
Lender or Lenders of the principal of or interest (other than as provided in any
Basic Document) on the Loans or other amounts then due to such other Lender or
Lenders (any such payment to such first-mentioned Lender being herein called a
"DISPROPORTIONATE PAYMENT" to such Lender), such first-mentioned Lender shall
(i) promptly notify the Facility Agent and (ii) promptly and in any event within
five Business Days of receipt or recovery of such payment pay to the Facility
Agent an amount equal to the amount of such payment. The Facility Agent shall
treat such Disproportionate Payment as if it were a payment by the Borrower
hereunder to be apportioned among the Lenders as contemplated by Section
2.07(c). As between the Borrower and such first-mentioned Lender, such payment
shall be treated as not having been paid (except as provided in the following
sentence). As between the Borrower and each Lender such payment shall be treated
as having been paid to such Lender from the Facility Agent pursuant to the
second sentence of this paragraph (d). If such first-mentioned Lender shall not
pay to the Facility Agent an amount equal to the Disproportionate Payment, the
Facility Agent shall, out of the amounts next received from the Borrower, make
an adjustment in the distribution of such amount such that each Lender's pro
rata share of the then aggregate outstanding principal amount of the Loans after
such payment shall be the same as such Lender's pro rata share of the then
aggregate outstanding principal amount of the Loans before such Disproportionate
Payment. The foregoing shall not affect the right of any Lender to exercise and
retain the benefits of exercising any right with respect to any other
Indebtedness or other obligations of the Borrower; and, if any Lender commences
any action in any court to enforce its rights under this Agreement and, as a
result thereof, or in connection therewith, receives any amount, then such
Lender shall not be required to share any portion of such amount with any Lender
which has a legal right to, but does not, join in such action.
(e) Presumptions of Payment. Unless the Facility Agent
shall have received notice from the Borrower prior to the date on which any
payment is due to the Facility Agent for account of the Lenders hereunder that
the Borrower will not make such payment, the Facility Agent may assume that the
Borrower has made such payment on such date in accordance herewith and may,
- 14 -
in reliance upon such assumption, distribute to the Lenders the amount due. In
such event, if the Borrower has not in fact made such payment, then each of the
Lenders severally agrees to repay to the Facility Agent forthwith on demand the
amount so distributed to such Lender together with an amount sufficient to
indemnify the Facility Agent against any cost or loss which it may have suffered
or incurred by reason of it having paid such sum prior to it having received
such sum.
(f) Certain Deductions by the Facility Agent. If any
Lender shall fail to make any payment required to be made by it pursuant to
Section 2.07(e), then the Facility Agent may, in its discretion (notwithstanding
any contrary provision hereof), apply any amounts thereafter received by the
Facility Agent for account of such Lender to satisfy such Lender's obligations
under such Sections until all such unsatisfied obligations are fully paid.
SECTION 2.08. Increased Costs.
(a) Increased Costs Generally. If any Change in Law
shall:
(i) impose, modify or deem applicable any
reserve, special deposit or similar requirement against assets of,
deposits with or for account of, or credit extended by, any Lender; or
(ii) impose on any Lender any other condition
affecting this Agreement or the Loan;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining the Loan or to reduce the amount of any sum
received or receivable by such Lender hereunder (whether of principal, interest
or otherwise), then the Borrower will pay to such Lender such additional amount
or amounts as will compensate such Lender for such additional costs incurred or
reduction suffered as set forth in the certificate delivered by such Lender to
the Borrower pursuant to Section 2.08(c).
(b) Capital Requirements. If any Lender determines that
any Change in Law regarding capital requirements has or would have the effect of
reducing the rate of return on such Lender's capital or on the capital of such
Lender's holding company, if any, as a consequence of this Agreement or the Loan
made by such Lender to a level below that which such Lender or such Lender's
holding company could have achieved but for such Change in Law (taking into
consideration such Lender's policies and the policies of such Lender's holding
company with respect to capital adequacy), then from time to time the Borrower
will pay to such Lender such additional amount or amounts as will compensate
such Lender (or enable such Lender to compensate its holding company) for any
such reduction suffered.
(c) Certificates from Lender. A certificate of the Lender
setting forth the amount or amounts necessary to compensate such Lender (or to
enable such Lender to compensate its holding company, as the case may be), as
specified in paragraph (a) or (b) of this Section, setting forth in reasonable
detail the quotations and bases of calculations used by such Lender to determine
such amount or amounts shall be delivered to the Borrower and shall be
conclusive absent manifest error. The Borrower shall pay the Lender the amount
shown as due on any such certificate within 10
- 15 -
days after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of
the Lender to demand compensation pursuant to this Section shall not constitute
a waiver of the Lender's right to demand such compensation, provided however
that on and after the date which is 60 days after the date that full, complete
and irrevocable payment of all amounts due and payable hereunder have been made
and to the extent the Lenders have not prior to such time exercised a right to
demand compensation, the Lenders shall be deemed to have waived such right.
SECTION 2.09. Illegality. If it shall become unlawful for any
Lender to continue to fund or maintain its Loan or to make its Loan hereunder,
then upon receipt of notice to such effect to the Borrower from such Lender,
such Lender's obligation to make its Loan hereunder shall be suspended and the
Borrower shall repay to such Lender the outstanding principal of its Loan in
full within 30 days thereafter (or on such earlier day as such Lender may
specify if such Lender may not lawfully continue to fund and maintain its Loan
to the end of such 30 day period). Before giving any notice pursuant to this
Section, such Lender shall designate a different applicable lending office if
such designation will avoid the need for giving such notice and will not, in the
reasonable judgment of such Lender, be otherwise disadvantageous to such Lender.
Upon repayment by the Borrower to such Lender in accordance with the foregoing,
all of the Borrower's obligations to such Lender under this Agreement shall be
deemed terminated.
SECTION 2.10. Designation of a Different Lending Office;
Replacement of Lenders.
(a) Designation of a Different Lending Office. If any
Lender requests compensation under Section 2.08, or if the Borrower is required
to pay any sums with respect to payments in connection with any withholding tax
obligation in excess of 10% of the relevant payment amount to any Lender or any
Governmental Authority for the account of any Lender, in each case pursuant to
Section 2.06, then such Lender shall, if requested to by the Borrower in
writing, use reasonable efforts to designate a different lending office for
funding or booking its Loan hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the
reasonable judgment of such Lender, such designation or assignment (i) would
eliminate or reduce amounts payable pursuant to Section 2.06 or Section 2.08, as
the case may be, and (ii) would not subject such Lender to any unreimbursed cost
or expense and would not otherwise be disadvantageous to such Lender. The
Borrower hereby agrees to pay all reasonable costs and expenses incurred by any
Lender in connection with any such designation or assignment.
(b) Replacement of Lenders. If any Lender requests
compensation under Section 2.08, then the Borrower may, at its sole expense and
effort, upon notice to such Lender and the Facility Agent, require such Lender
to assign and transfer, without recourse (in accordance with and subject to the
restrictions contained in Section 9.04), all its interests, rights and
obligations under this Agreement to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such
assignment); provided that (i) such Lender shall have received payment of an
amount equal to the then outstanding principal of its Loan, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder, from the
assignee (to the extent of such outstanding principal and accrued interest and
fees) or the Borrower (in the case of all other amounts) and (ii) in the case of
any such assignment resulting from a claim for compensation under Section 2.08
such
- 16 -
assignment will result in a reduction in such payments. A Lender shall not be
required to make any such assignment and transfer if, prior thereto, as a result
of a waiver by such Lender or otherwise, the circumstances entitling the
Borrower to require such assignment and transfer cease to apply.
SECTION 2.11. Break Funding Payments. The Borrower shall from
time to time promptly pay to the Facility Agent for the account of each Lender,
upon the request of such Lender through the Facility Agent, such amount or
amounts as shall be sufficient (in the reasonable opinion of such Lender, as
described in a certificate of such Lender) to compensate it for any loss, cost
or expense incurred by such Lender that such Lender determines is attributable
to any payment or prepayment of a Loan (other than payments made pursuant to
Section 2.09) made by the Borrower for any reason on a date other than a Payment
Date. Without limiting the effect of the preceding sentence, such compensation
shall include an amount equal to the excess, if any, of (i) the amount of
interest that otherwise would have accrued on the principal amount so paid or
prepaid for the period from the date of such payment or prepayment to the last
day of the then-current Interest Period for such Loan at the applicable rate of
interest for such Loan provided for herein over (ii) the amount of interest that
otherwise would have accrued on such principal amount for such period at a rate
per annum equal to the interest component of the amount such Lender would have
bid for Dollar deposits from other banks in the market at the commencement of
such period. A certificate of the Lender setting forth any amount or amounts
that it is entitled to receive pursuant to this Section, setting forth the
relevant calculations in reasonable detail, shall be delivered to the Borrower
and shall be conclusive absent manifest error. The Borrower shall pay the Lender
the amount shown as due on any such certificate within ten days after receipt
thereof.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders on the
Effective Date that:
SECTION 3.01. Organization; Powers. The Borrower is duly
organized and validly existing and in good standing under the laws of Indonesia,
has all requisite power and authority to carry on its business as now conducted
and, is qualified to do business in, and is in good standing in, every
jurisdiction where such qualification is required.
SECTION 3.02. Authorization; Enforceability. The Transactions
are within the Borrower's corporate powers and have been duly authorized by all
necessary corporate and, if required, by all necessary shareholder action. This
Agreement has been duly executed and delivered by the Borrower and constitutes,
and each of the other Basic Documents to which it is a party when executed and
delivered will constitute, a legal, valid and binding obligation of the
Borrower, enforceable against the Borrower in accordance with its terms, except
as such enforceability may be limited by (a) bankruptcy, insolvency,
reorganization, moratorium or similar laws of general applicability affecting
the enforcement of creditors' rights and (b) the application of general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
- 17 -
SECTION 3.03. Governmental Approvals; No Conflicts. The
Transactions (a) do not require any consent or approval (including any exchange
control approval) of, registration or filing with, or any other action by, any
Governmental Authority (including Bank Indonesia), except such as have been
obtained or made and are in full force and effect (which includes the approval
of the Foreign Commercial Loan Coordinating Team (the "PKLN TEAM")), other than
(i) the filing of an initial report accompanied by a copy of this Agreement to
Bank Indonesia, Ministry of Finance and the PKLN Team within 15 Business Days
after the execution of this Agreement; (ii) the filing of periodic reports with
respect to the implementation of this Agreement and the application of the
proceeds thereof to Bank Indonesia, Ministry of Finance and the PKLN Team, and
(iii) the filing of foreign exchange flow activities report in relation to its
receipt of the Loans and payment under this Agreement to Bank Indonesia as
required by Bank Indonesia Regulation No. 4/2/PBI/2002, the implementing
regulations thereto and any amendments thereof, (b) will not violate any
material law or regulation (including regulations of Bank Indonesia) or the
charter, by-laws or other organizational documents of the Borrower or any order
of any Governmental Authority, (c) will not violate or result in a default under
any material indenture, agreement or other instrument binding upon the Borrower
or any of its assets, or give rise to a right thereunder to require any payment
to be made by any such Person, and (d) will not result in the creation or
imposition of any Lien on any asset of the Borrower.
SECTION 3.04. Financial Condition. The Borrower has furnished
to the Lenders its consolidated balance sheet and statements of income,
stockholders' equity and cash flows (i) as of and for the fiscal year ended
December 30, 2002, audited by Xxxx Xxxxxx/KAP Xxxxx Xxxxx, independent public
accountants registered with the Indonesian Capital Market Supervisory Board
("BAPEPAM"), and (ii) as of and for the fiscal quarter and the portion of the
fiscal year ended March 31, 2003, certified by the President Director or any
other duly authorized Director of the Borrower. Based on the audit of Xxxx
Xxxxxx/KAP Xxxxx Xxxxx and in its view, management has no reason to believe that
such financial statements do not present fairly in all material respects the
financial position and results of operations and cash flows of the Borrower and
its consolidated Subsidiaries as of such dates and for such periods in
accordance with GAAP.
SECTION 3.05. Properties.
(a) Property Generally. The Borrower and its Material
Subsidiary has good title to, or valid leasehold interests in, all its real and
personal property material to its business, and except for defects in title that
do not materially interfere with its ability to conduct its business as
currently conducted or to utilize such properties for their intended purposes.
(b) Intellectual Property. The Borrower and its Material
Subsidiary owns, or is licensed to use, all trademarks, tradenames, copyrights,
patents and other intellectual property material to its business, and the use
thereof by the Borrower and its Material Subsidiary does not infringe upon the
rights of any other Person except in each case for any matters that individually
or in the aggregate do not result in a Material Adverse Effect.
- 18 -
SECTION 3.06. Actions, Suits and Proceedings. There are no
actions, suits or proceedings by or before any arbitrator or Governmental
Authority now pending against or, to the knowledge of the Borrower, threatened
against or affecting the Borrower or any of its Material Subsidiary which, if
adversely determined, could reasonably be expected to have a Material Adverse
Effect.
SECTION 3.07. Compliance with Laws and Agreements. The
Borrower and its Material Subsidiary are in compliance with all laws,
regulations and orders of any Governmental Authority (including all
Environmental Laws) material to it or its property and all indentures,
agreements and other instruments binding upon it or its property, except for
such failures to comply that individually or in the aggregate could not
reasonably be expected to result in a Material Adverse Effect. No Default has
occurred and is continuing.
SECTION 3.08. Taxes. Each of the Borrower and its Material
Subsidiary has timely filed or caused to be filed all material Tax returns and
reports required to have been filed and has paid or caused to be paid all
material Taxes required to have been paid by it, except Taxes that are being
contested in good faith by appropriate proceedings and for which such Person has
set aside on its books adequate reserves in accordance with GAAP.
SECTION 3.09. Disclosure. The Borrower has no knowledge of any
matter that, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect.
SECTION 3.10. Legal Form. This Agreement is in proper legal
form under the law of Indonesia for the enforcement thereof against the Borrower
under such law, and if this Agreement were stated to be governed by such law, it
would constitute legal, valid and binding obligations of the Borrower under such
law, enforceable in accordance with its terms. All formalities required in
Indonesia for the validity and enforceability of this Agreement (including any
necessary approval, registration, recording or filing with any court or other
authority in Indonesia) have been accomplished, and no Taxes or Other Taxes are
required to be paid to Indonesia, or any political subdivision thereof or
therein, and no notarization is required, for the validity and enforceability
thereof. The choice by the Borrower of New York law to govern this Agreement and
the submission by the Borrower to the non-exclusive jurisdiction of the United
States District Court for the Southern District of New York, in the Supreme
Court of the State of New York sitting in New York County or the courts of
Indonesia are valid and binding.
SECTION 3.11. Ranking. This Agreement and the obligations
evidenced hereby are and will at all times be direct and unconditional
obligations of the Borrower, and rank and will at all times rank in right of
payment and in all other respects at least pari passu with all other unsecured
unsubordinated Indebtedness of the Borrower, whether now existing or hereafter
outstanding, except for those whose claims are preferred by any bankruptcy,
insolvency, liquidation or other similar laws of general application.
SECTION 3.12. Commercial Activity; Absence of Immunity. The
Borrower is subject to civil and commercial law with respect to its obligations
under this Agreement. The execution, delivery and performance by the Borrower of
this Agreement constitute private and commercial acts rather than public or
governmental acts. Neither the Borrower, nor any of its
- 19 -
properties or revenues, is entitled to any right of immunity in any jurisdiction
from suit, court jurisdiction, judgment, attachment (whether before or after
judgment), set-off or execution of a judgment or from any other legal process or
remedy relating to the obligations of the Borrower under this Agreement.
SECTION 3.13. Solvency. There are no proceedings commenced or,
to the knowledge of the Borrower, threatened or any involuntary petition filed
or, to the knowledge of the Borrower, threatened, seeking (i) liquidation,
reorganization or other relief in respect of the Borrower or its debts, or of a
substantial part of its assets, under any bankruptcy, insolvency,
administration, receivership or similar law now or hereafter in effect or (ii)
the appointment of a receiver, trustee, custodian, administrator, administrative
receiver, sequestrator, conservator or similar official for the Borrower or for
a substantial part of its assets.
SECTION 3.14. Telkomsel. As of the Effective Date, the
Borrower directly owns 65% of the issued and fully paid common shares of PT
Telekomunikasi Selular.
ARTICLE IV
CONDITIONS PRECEDENT TO EFFECTIVE DATE
This Agreement shall not become effective until the date on
which the Facility Agent shall have received each of the following documents,
each of which shall be satisfactory to the Facility Agent (and to the extent
specified below, to each Lender) in form and substance, (or such condition shall
have been waived in accordance with Section 9.02) or confirmation of the matters
set out below:
(a) Executed Counterparts. From each party hereto either
(i) a counterpart of this Agreement signed on behalf of such party or (ii)
written evidence satisfactory to the Facility Agent that such party has signed a
counterpart of this Agreement.
(b) Opinion of Counsel to the Borrower. A favorable
written opinion (addressed to the Facility Agent and the Lenders and dated the
Effective Date) of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special New York
counsel for the Borrower, and Adnan Kelana Haryanto & Hermanto, Indonesian
counsel for the Borrower, and covering such other matters relating to the
Borrower, this Agreement and each of the Basic Documents to which it is a party,
as the Required Lenders shall reasonably request (and the Borrower hereby
instructs such counsel to deliver such opinion to the Lenders and the Facility
Agent).
(c) Opinion of Counsel to the Selling Shareholders. A
favorable written opinion (addressed to the Facility Agent and the Lenders and
dated the Effective Date) of White & Case, international counsel for the Selling
Shareholders, AWI and AWIF, and covering such other matters relating to the
Selling Shareholders, the Shareholders Release Agreement, the AriaWest Release
Agreement and the Call Option and Escrow Agreement as the Required Lenders shall
reasonably request.
- 20 -
(d) Opinion of Counsel to the Lenders. An opinion, dated
the Effective Date, of Milbank, Tweed, Xxxxxx & XxXxxx LLP, addressed to the
Facility Agent and the Lenders, and Makarim & Xxxxx X., addressed to the
Facility Agent and the Lenders.
(e) Organizational Documents. Such documents and
certificates as the Facility Agent or its counsel may reasonably request
relating to the organization, existence and good standing of the Borrower
(including certified copies of (i) the Borrower's constitutive documents and any
amendments thereto and (ii) minutes of the general meeting of shareholders of
the Borrower evidencing the appointment of the incumbent members of the Board of
Directors and the Board of Commissioners), the approval and authorization of the
Transactions (including all relevant resolutions signed by the Board of
Commissioners and the shareholders) and any other legal matters relating to the
Borrower, this Agreement or the Transactions, all in form and substance
satisfactory to the Facility Agent and its counsel.
(f) Officer's Certificate. A certificate, dated the
Effective Date and signed by the President Director or any other duly authorized
Director, confirming the following:
(i) the representations and warranties of the
Borrower set forth in this Agreement are true and correct on and as of
the Effective Date; and
(ii) as of the Effective Date, no Default shall
have occurred and be continuing.
(g) Other Basic Documents. The Basic Documents (other
than this Agreement), the Agency Agreement and the Shareholders Release
Agreement shall have been duly executed and delivered by each Person party
thereto and the Promissory Notes shall have been transferred into the name of
the Persons which are Noteholders as of the Effective Date.
(h) Approvals. Evidence that all governmental licenses,
authorizations, consents, permits and approvals required under applicable law
for the Borrower to undertake the Transactions, including the remittance to each
Lender or its assigns in Dollars of all monies payable in respect thereof to the
extent required hereunder, have been obtained and are in full force and effect,
together with copies certified as of the Effective Date to be true and complete
by the President Director or any other duly authorized director of the Borrower
of all such government approvals.
(i) Payments. Evidence that contemporaneous with the
closing hereof, the Lenders have received from AWIF the following amounts:
(i) $12,479,839.23 in payment of accrued
interest at the LIBO Rate plus 3.5% per annum on the outstanding
principal amount under the AriaWest Credit Agreement from August 31,
2002 until but not including the Effective Date;
(ii) $12,633,216.75 in payment of accrued
interest under the AriaWest Credit Agreement accrued to August 31,
2002; and
(iii) $73,965,453.90 in payment of 27.3% of the
total outstanding
- 21 -
principal under the AriaWest Credit Agreement.
(j) Shareholder Payment Obligations:
(i) Evidence of payment by the Selling
Shareholders of all outstanding fees and expenses in connection with
the negotiation, preparation, execution and delivery of this Agreement
and the Loan hereunder and as otherwise may have been payable before
the Effective Date in connection with the AriaWest Credit Agreement,
including all fees and expenses of Milbank, Tweed, Xxxxxx & XxXxxx LLP,
Makarim & Xxxxx X. and the Principal Creditors (as defined in the
Common Agreement).
(ii) Evidence of payment by the Selling
Shareholders of the fees of the Documentation Bank as agreed between
the Selling Shareholders and the Documentation Bank.
(iii) Evidence of payment by the Selling
Shareholders of the fees of the Escrow Agent as agreed between the
Selling Shareholders and the Escrow Agent in connection with the Call
Option and Escrow Agreement.
(k) Facility Agent Fees. Evidence of payment of the
Facility Agent fees as agreed between the Borrower and the Facility Agent.
(l) Process Agent Acceptance. A Process Agent Acceptance,
duly executed and delivered by the Process Agent.
(m) Consummation of Acquisition. A certificate of the
President Director or any other duly authorized Director of the Borrower and
each Selling Shareholder that the acquisition of all the shares of AWI by the
Borrower from the Selling Shareholders has been (or shall be simultaneously)
consummated in all material respects in accordance with the terms of the
Purchase Agreement. In addition, the Facility Agent shall have received copies
of the legal opinions delivered by counsel to the Borrower pursuant to the
Purchase Agreement, together with a letter from each Person delivering such
opinion (or authorization within such opinion) authorizing reliance thereon by
the Facility Agent.
(n) Other Documents. Such other documents as the Facility
Agent or any Lender or legal counsel to the Lenders may reasonably request.
ARTICLE V
AFFIRMATIVE COVENANTS
Until the principal of and interest on each Loan and all fees
payable hereunder shall have been paid in full, the Borrower covenants and
agrees with the Lenders that:
SECTION 5.01. Financial Statements and Other Information. The
Borrower will
- 22 -
furnish to the Facility Agent:
(a) beginning with fiscal year 2003, as soon as they
become available, but in any event within 180 days after the end of each fiscal
year of the Borrower, the audited consolidated balance sheet and related income
statements and statement of changes in equity and cash flows of the Borrower and
its consolidated Subsidiaries as of the end of and for such year, setting forth
in each case in comparative form the figures for the previous fiscal year, all
audited by independent public accountants of recognized national standing and
registered with Bapepam to the effect that such consolidated financial
statements present fairly in all material respects the financial condition and
results of operations of the Borrower and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied;
(b) beginning with fiscal year 2004, as soon as they
become available, but in any event within 90 days after the end of the first
semi-annual financial period of each fiscal year of the Borrower, the
consolidated balance sheet and related income statements and statement of
changes in equity and cash flows of the Borrower and its consolidated
Subsidiaries as of the end of and for such fiscal semi-annual period and the
then elapsed portion of the fiscal year, setting forth in each case in
comparative form the figures for (or, in the case of the balance sheet, as of
the end of) the corresponding period or periods of the previous fiscal year, all
certified by a Financial Officer of the Borrower as presenting fairly in all
material respects the financial condition and results of operations of the
Borrower and its consolidated Subsidiaries on a consolidated basis in accordance
with GAAP consistently applied, subject to normal year-end audit adjustments and
the absence of footnotes;
(c) concurrently with any delivery of financial
statements under clause (a) or (b) of this Section, a certificate of the
President Director or any other duly authorized Director of the Borrower (i)
certifying as to whether a Default has occurred and, if a Default has occurred,
specifying the details thereof and any action taken or proposed to be taken with
respect thereto and (ii) stating whether any change in GAAP or in the
application thereof has occurred since the date of the audited financial
statements referred to in Section 3.04 and, if any such change has occurred,
specifying the effect of such change on the financial statements accompanying
such certificate;
(d) promptly after the same become publicly available,
copies of all periodic and other reports, proxy statements and other materials
filed by the Borrower or its Material Subsidiary with the SEC, Bapepam and the
Indonesian Stock Exchange where shares of the Borrower are listed, or any
Governmental Authority succeeding to any or all of the functions of said
Commission, or with any national securities exchange, or distributed by the
Borrower to its shareholders generally or to holders of Indebtedness generally,
as the case may be; and
(e) promptly following any request therefor, such other
information regarding the operations, business affairs and financial condition
of the Borrower or any of its consolidated Subsidiaries, or compliance with the
terms of this Agreement, as the Facility Agent or any Lender may reasonably
request.
SECTION 5.02. Notices of Material Events. The Borrower will
furnish to the Facility Agent and each Lender prompt written notice of the
following:
- 23 -
(a) the occurrence of any Default;
(b) the filing or commencement of any material action,
suit or proceeding by or before any arbitrator or Governmental Authority against
or affecting the Borrower or its Material Subsidiary; and
(c) any other development that results in, or could
reasonably be expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied
by a statement of the President Director or any other duly authorized director
of the Borrower setting forth the details of the event or development requiring
such notice and any action taken or proposed to be taken with respect thereto.
SECTION 5.03. Existence; Conduct of Business. The Borrower
will, and will cause its Material Subsidiary to, do or cause to be done all
things necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges and franchises material
to the conduct of its business; provided that the foregoing shall not prohibit
any merger, consolidation, liquidation or dissolution, amalgamation or
conveyance, sale, lease, assignment, transfer or other disposition permitted
under Section 6.01.
SECTION 5.04. Payment of Obligations. The Borrower will, and
will cause its Material Subsidiary to, pay its material obligations, including
material tax liabilities, except where (a) the validity or amount thereof is
being contested in good faith by appropriate proceedings and (b) the Borrower or
its Material Subsidiary has set aside on its books adequate reserves with
respect thereto in accordance with GAAP.
SECTION 5.05. Maintenance of Properties; Insurance. The
Borrower will, and will cause its Material Subsidiary to (a) keep and maintain
all property material to the conduct of its business in good working order and
condition, ordinary wear and tear excepted, and (b) maintain, with financially
sound and reputable insurance companies, insurance in such amounts and against
such risks as are customarily maintained by companies engaged in the same or
similar businesses operating in the same or similar locations.
SECTION 5.06. Books and Records; Inspection Rights. The
Borrower will, and will cause its Material Subsidiary to, keep proper books of
record and accounts in which full, true and correct entries are made of all
dealings and transactions in relation to its business and activities. The
Borrower will, and will cause its Material Subsidiary to, permit any
representatives designated by the Facility Agent or any Lender, upon reasonable
prior notice, to visit and inspect its properties, to examine and make extracts
from its books and records, and to discuss its affairs, finances and condition
with its officers and independent accountants, all at such reasonable times and
as often as reasonably requested.
SECTION 5.07. Compliance with Laws. The Borrower will, and
will cause its Material Subsidiary to, comply with all material laws, rules,
regulations and orders of any Governmental Authority (including all
Environmental Laws) applicable to it or its property,
- 24 -
including filing all relevant tax returns in a timely manner; provided, that the
Borrower will not be in breach of this Section to the extent its violation or
non-compliance with this Section relates to or is connected with the Borrower's
failure to comply with the laws, rules, regulations or the policies or
procedures of the SEC, relating to the Borrower's Annual Report on Form 20-F for
2002, the qualifications of and audit by Xxxx Xxxxxx/KAP Xxxxx Xxxxx for fiscal
2002, any statements, disclosures or releases relating to the foregoing, or the
filing of any of the foregoing with the SEC. The Borrower agrees to use its
reasonable efforts to comply with such laws, rules, regulations, policies and
procedures with respect thereto, as soon as reasonably practicable.
SECTION 5.08. Governmental Approvals. The Borrower will
promptly obtain from time to time at its own expense all such governmental
licenses, authorizations, consents, permits and approvals as may be required for
the Borrower to operate its business and to comply with its obligations, and
preserve its rights under, this Agreement.
SECTION 5.09. Credit Rating. The Borrower will at all times
maintain a credit rating of AA or better by PEFINDO (PT Pemeringkat Efek
Indonesia), or an equivalent or better credit rating by PT Kasnis Konsultama or
an equivalent rating by a credit rating agency satisfactory to the Facility
Agent.
SECTION 5.10. Filings.
(a) The Borrower will make all necessary filings and
registrations with Bapepam, the SEC and all relevant exchanges; provided, that
the Borrower will not be in breach of this Section to the extent its violation
or non-compliance with this Section relates to or is connected with the
Borrower's failure to comply with the laws, rules, regulations or the policies
or procedures of the SEC, relating to the Borrower's Annual Report on Form 20-F
for 2002, the qualifications of and audit by Xxxx Xxxxxx/KAP Xxxxx Xxxxx for
fiscal 2002, any statements, disclosures or releases relating to the foregoing,
or the filing of any of the foregoing with the SEC; provided, further, the
Borrower agrees to use its reasonable efforts to comply with such laws, rules,
regulations, policies and procedures with respect thereto, as soon as reasonably
practicable.
(b) The Borrower will: (i) no later than 15 days after
the execution of this Agreement, make an initial report; and (ii) make monthly
periodic reports no later than the 15th day of the relevant month, in relation
to this Agreement to Bank Indonesia, the Ministry of Finance of Indonesia and
the Foreign Commercial Loan Coordinating Team in Indonesia, each in the form as
required by the relevant government entity.
(c) The Borrower will: (i) no later than 4:00 p.m.
(Jakarta Time) on the last date of the month following the Effective Date and
(ii) on September 30 and March 31 of each year, make a report of foreign
exchange flow activity to Bank Indonesia in the form required by Bank Indonesia.
SECTION 5.11. Listing. The Borrower will (a) maintain its
listing on the Jakarta Stock Exchange and (b) will use its reasonable efforts to
remain listed with the New York Stock Exchange; provided, that the Borrower
shall not be in violation of this Section 5.11 if (i) the Government of
Indonesia directs the Borrower in writing to delist or (ii) the Borrower is
unable, after reasonable efforts, to find an auditor in Indonesia who is
qualified to audit the Borrower's financial statements in accordance with U.S.
federal securities laws and SEC requirements.
- 25 -
SECTION 5.12. Compliance. The Borrower will comply with all
its obligations under this Agreement and the other Basic Documents to which it
is a party.
SECTION 5.13. Ranking with Other Creditors. The Borrower will
ensure that at all times the claims of the Lenders against it under this
Agreement rank at least pari passu with the claims of all its other unsecured
unsubordinated Indebtedness, save those whose claims are preferred by any
bankruptcy, insolvency, liquidation or other similar laws of general
application.
SECTION 5.14. Lines of Business. The Borrower's principal
business will be the business of providing telecommunication services.
ARTICLE VI
NEGATIVE COVENANTS
Until the principal of and interest on each Loan and all fees
payable by the Borrower hereunder have been paid in full, the Borrower covenants
and agrees with the Lenders that:
SECTION 6.01. Limitation on Fundamental Changes and Sale of
Assets.
(a) The Borrower will not (i) enter into any transaction
of merger or consolidation or amalgamation unless, after giving effect to such
transaction, the surviving entity is the Borrower and no Default or Event of
Default has occurred and is continuing or (ii) liquidate, wind up or dissolve
itself (or suffer any liquidation or dissolution), or convey, sell, lease,
assign, transfer or otherwise dispose of, all or substantially all of its
Property.
(b) The Borrower will not convey, sell, lease, assign,
transfer or otherwise dispose of Property, where the effect of such transaction
would place the Borrower in Default of its obligations under this Agreement.
SECTION 6.02. Transaction with Affiliates. The Borrower will
not, nor will it permit its Material Subsidiary to, sell, lease or otherwise
transfer any property or assets to, or purchase, lease or otherwise acquire any
property or assets from, or otherwise engage in any other transactions with, any
of its Affiliates, except transactions not prohibited by BAPEPAM rules and
regulations.
ARTICLE VII
EVENTS OF DEFAULT
If any of the following events ("EVENTS OF DEFAULT", each an
"EVENT OF DEFAULT") shall occur:
(a) the Borrower shall fail to pay any principal of, or
interest on, any Loan or any
- 26 -
fee or any other amount payable under this Agreement when and as the same shall
become due and payable, whether at the due date thereof or at a date fixed for
prepayment thereof or otherwise; provided that the Borrower shall be entitled to
a cure period of three Business Days from the date when any payment becomes due
and payable, and, provided further, that with respect to any failure caused
solely by an administrative or technical error, the Borrower shall be entitled
to an additional two Business Day cure period;
(b) any representation or warranty made or deemed made by
or on behalf of the Borrower in or in connection with this Agreement shall prove
to have been incorrect when made or deemed made, or any representation or
warranty made or deemed made by or on behalf of the Borrower in connection with
any amendment or modification hereof, or in any report, certificate, financial
statement or other document furnished pursuant to or in connection with this
Agreement or any amendment or modification hereof, shall prove to have been
materially incorrect when made or deemed made;
(c) the Borrower shall fail to observe or perform any
covenant, condition or agreement contained in Section 5.02, 5.03 (with respect
to the Borrower's existence), 5.07, 5.13 or in Article VI, or the Borrower shall
fail to observe or perform any covenant, condition or agreement contained in the
other Basic Documents to which it is a party;
(d) the Borrower shall fail to observe or perform any
covenant, condition or agreement contained in this Agreement (other than those
specified in clause (a) or (c) of this Article) and if such failure is capable
of remedy, such failure shall continue unremedied for a period of 15 or more
days after the Borrower becoming aware of such default;
(e) the Borrower or its Material Subsidiary shall fail to
make any payment of $1,000,000 or more (whether of principal or interest) in
respect of any Indebtedness of a principal amount exceeding $10,000,000 or
equivalent, when and as the same shall become due and payable, and such failure
shall continue after the applicable grace period, if any, specified in the
agreement or instrument relating to such Indebtedness;
(f) any event or condition shall occur and be continuing
that results in any Indebtedness of $10,000,000 or more becoming due prior to
its scheduled maturity or that enables or permits the holder or holders of such
Indebtedness or any trustee or agent on its or their behalf to cause any
Indebtedness to become due, or to require the prepayment, repurchase, redemption
or defeasance thereof, prior to its scheduled maturity, in each case, after
giving effect to the applicable grace period, if any, specified in the agreement
or instrument evidencing such Indebtedness;
(g) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation, reorganization,
delay of payment or other relief in respect of the Borrower or its Material
Subsidiary or their respective debts, or of a substantial part of their
respective assets, under any bankruptcy, insolvency, receivership or similar law
now or hereafter in effect or (ii) the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for the Borrower or its
Material Subsidiary or for a substantial part of their respective assets, in
each case, in respect of which an order for relief is entered or an adjudication
or appointment is made, as applicable, but remains undismissed for a period of
90 days or more;
- 27 -
(h) the Borrower or its Material Subsidiary shall (i)
voluntarily commence any proceeding or file any petition seeking liquidation,
reorganization or other relief under any bankruptcy, insolvency, receivership or
similar law now or hereafter in effect, (ii) consent to the institution of, or
fail to contest in a timely and appropriate manner, any proceeding or petition
described in clause (g) of this Article, (iii) apply for or consent to the
appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for the Borrower or its Material Subsidiary or for a
substantial part of their respective assets, (iv) file an answer admitting the
material allegations of a petition filed against it in any such proceeding, (v)
make a general assignment for the benefit of creditors or (vi) take any action
for the purpose of effecting any of the foregoing;
(i) the Borrower or its Material Subsidiary shall become
unable, admit in writing its inability or fail generally to pay its debts as
they become due;
(j) one or more judgments for the payment of money in an
aggregate amount in excess of $5,000,000 shall be rendered against the Borrower
or its Material Subsidiary or any combination thereof and such judgments shall
continue unsatisfied and in effect for a period of 90 days without being
vacated, discharged, satisfied, or stayed or bonded pending appeal, or any
action shall be legally taken by a judgment creditor to attach or levy upon any
assets of the Borrower or its Material Subsidiary to enforce any such judgment;
(k) any license, consent, authorization, registration or
approval at any time necessary to enable the Borrower to comply with any of its
material obligations under this Agreement shall be revoked, withdrawn or
withheld or shall be modified or amended in a manner prejudicial to the
interests of the Lenders hereunder; or any Governmental Authority of Indonesia
shall promulgate or declare effective any law, rule or regulation that could
have a Material Adverse Effect;
(l) any Governmental Authority shall take any action to
condemn, seize, nationalize or appropriate any substantial portion of the
property of the Borrower (without payment of fair compensation) or shall take
any action that materially affects the ability of the Borrower to perform its
obligations under this Agreement; or the Borrower shall be prevented from
exercising normal control over all or a substantial part of its property;
(m) Indonesia or any competent authority thereof shall
declare a moratorium on the payment of indebtedness by Indonesia or any
governmental agency or authority thereof or the Borrower or its Material
Subsidiary;
(n) the occurrence of any event or series of events which
has had or could reasonably be expected to have a Material Adverse Effect;
(o) the Borrower repudiates this Agreement or any other
Basic Document to which it is a party or does or causes or permits to be done
any act or thing constituting a repudiation of this Agreement or any other Basic
Document to which it is a party; or
- 28 -
(p) it becomes unlawful at any time for the Borrower to
perform all or any of their respective obligations under this Agreement or any
other Basic Document to which it is a party;
then, and in every such event (other than an event with respect to the Borrower
described in clause (g) or (h) of this Article), and at any time thereafter
during the continuance of such event, the Facility Agent may, and at the request
of the Required Lenders shall, by notice to the Borrower, take either or both of
the following actions, at the same or different times: (i) declare the Loan then
outstanding to be due and payable in whole (or in part, in which case any
principal not so declared to be due and payable may thereafter be declared to be
due and payable), and thereupon the principal of the Loan so declared to be due
and payable, together with accrued interest thereon and all fees and other
obligations of the Borrower accrued hereunder, shall become due and payable
immediately, without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Borrower; and (ii) in case of any event
with respect to the Borrower described in clause (g) or (h) of this Article, the
principal of the Loan then outstanding, together with accrued interest thereon
and all fees and other obligations of the Borrower accrued hereunder, shall
automatically become due and payable, without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Borrower.
ARTICLE VIII
THE FACILITY AGENT
SECTION 8.01. Appointment. Each of the Lenders hereby
irrevocably appoints the Facility Agent as its agent and authorizes the Facility
Agent to take such actions on its behalf and to exercise such powers as are
delegated to the Facility Agent by the terms hereof, together with such actions
and powers as are reasonably incidental thereto.
SECTION 8.02. Rights as a Lender. The Person serving as the
Facility Agent hereunder shall have the same rights and powers in its capacity
as a Lender as any other Lender and may exercise the same as though it were not
the Facility Agent, and such Person and its Affiliates may accept deposits from,
lend money to and generally engage in any kind of business with the Borrower or
any Subsidiary or other Affiliate thereof as if it were not the Facility Agent
hereunder.
SECTION 8.03. Limitation on Duties. The Facility Agent shall
not have any duties or obligations except those expressly set forth herein.
Without limiting the generality of the foregoing, (a) the Facility Agent shall
not be subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing, (b) the Facility Agent shall not have
any duty to take any discretionary action or exercise any discretionary powers,
except discretionary rights and powers expressly contemplated hereby that the
Facility Agent is required to exercise in writing as directed by the Required
Lenders (or such other number or percentage of the Required Lenders as shall be
necessary under the circumstances as provided in Section 9.02, and (c) except as
expressly set forth herein, the Facility Agent shall not have any duty to
disclose, and shall not be liable for the failure to disclose, any information
relating to the Borrower or any of its Subsidiaries that is communicated to or
obtained by the bank serving as Facility Agent or any of its Affiliates in any
capacity. The Facility Agent shall not be liable for any action taken or not
taken by it with the
- 29 -
consent or at the request of the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 9.02) or in the absence of its own gross negligence or
wilful misconduct. The Facility Agent shall be deemed not to have knowledge of
any Default unless and until written notice thereof is given to the Facility
Agent by the Borrower or a Lender, and the Facility Agent shall not be
responsible for or have any duty to ascertain or inquire into (i) any statement,
warranty or representation made in or in connection with this Agreement, (ii)
the contents of any certificate, report or other document delivered hereunder or
in connection herewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth herein, (iv) the
validity, enforceability, effectiveness or genuineness of this Agreement or any
other agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Article IV or elsewhere herein, other than to confirm
receipt of items expressly required to be delivered to the Facility Agent.
SECTION 8.04. Reliance by Agent. The Facility Agent shall be
entitled to rely upon, and shall not incur any liability for relying upon, any
notice, request, certificate, consent, statement, instrument, document or other
writing believed by it to be genuine and to have been signed or sent by the
proper Person. The Facility Agent also may rely upon any statement made to it
orally, by telephone, facsimile, email, telex or any other mode of communication
and believed by it to be made by the proper Person, and shall not incur any
liability for relying thereon. The Facility Agent may consult with legal counsel
(who may be counsel for the Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or experts. As to
any matters not expressly provided for by this Agreement, the Facility Agent
shall in all cases be fully protected in acting, or in refraining from acting,
hereunder or thereunder in accordance with instructions given by the Required
Lenders and such instructions of such Lenders and any action taken or failure to
act pursuant thereto shall be binding on all of the Lenders.
SECTION 8.05. Sub-Agents. The Facility Agent may perform any
and all its duties and exercise its rights and powers by or through any one or
more sub-agents appointed by the Facility Agent. The Facility Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of the Facility Agent and any such sub-agent, and shall apply to their
respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Facility Agent.
- 30 -
SECTION 8.06. Resignation. Subject to the appointment and
acceptance of a successor Facility Agent as provided in this Section, the
Facility Agent may resign at any time by notifying the Lenders and the Borrower
and the Lenders shall have the right to remove the Facility Agent by notifying
the Borrower and the Facility Agent. Upon any such resignation or removal, the
Required Lenders shall have the right to appoint a successor. In the case of a
resignation by the Facility Agent, if no successor shall have been so appointed
by the Required Lenders and shall have accepted such appointment within 30 days
after the retiring Facility Agent gives notice of its resignation, then the
retiring Facility Agent may, on behalf of the Lenders, appoint a successor
Facility Agent. Upon the acceptance by a successor of its appointment as
Facility Agent hereunder, such successor shall succeed to and become vested with
all the rights, powers, privileges and duties of the retiring (or retired)
Facility Agent hereunder and under the Call Option and Escrow Agreement and the
retiring Facility Agent shall be discharged from its duties and obligations
hereunder and under the Call Option and Escrow Agreement. The fees payable by
the Borrower to a successor Facility Agent shall be the same as those payable to
its predecessor unless otherwise agreed between the Borrower and such successor.
After the Facility Agent's resignation or removal hereunder, the provisions of
this Article and Section 9.03 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
Facility Agent.
SECTION 8.07. Reliance by Lenders. Each Lender acknowledges
that it has, independently and without reliance upon the Facility Agent or any
other Lender and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender also acknowledges that it will, independently and without
reliance upon the Facility Agent or any other Lender and based on such documents
and information as it shall from time to time deem appropriate, continue to make
its own decisions in taking or not taking action under or based upon this
Agreement, any related agreement or any document furnished hereunder or
thereunder.
SECTION 8.08. Legal Restrictions. The Facility Agent may
refrain from doing anything (including disclosing any information) which might
in its opinion (a) constitute a breach of any law or regulation or (b) be
actionable at the suit of any Person, and may do anything which in its opinion
is necessary or desirable to comply with any law or regulation.
SECTION 8.09. Information. The Facility Agent shall (a) send a
copy of all notices and other communications and all financial statements,
reports, certificates and other documents delivered to it by the Borrower under
this Agreement to each of the Lenders; (b) not be obligated to transmit to the
Lenders any information in any way relating to any of the parties hereto to
which it may have acquired otherwise than in its capacity as Facility Agent in
connection with this Agreement; and (c) at the request of any Lender, furnish
any notice or other communication or make any request that it is entitled to do
under this Agreement.
SECTION 8.10. Application of Proceeds. Subject to Section
2.07, all sums received or recovered by the Facility Agent pursuant to or upon
the enforcement of this Agreement after the giving of a declaration under
Article VII shall be paid to the Facility Agent and, if denominated in a
currency other than Dollars, converted by the Facility Agent into Dollars at the
rate of exchange calculated in accordance with Section 9.12 and thereafter
applied (irrespective of any contrary appropriation by the Borrower) in the
following order of priority:
- 31 -
(a) in or towards payment of all fees, costs and expenses
properly incurred by or on behalf of the Facility Agent (or any receiver and/or
manager, administrative receiver, trustee or similar officer appointed pursuant
to this Agreement) in connection with the enforcement of this Agreement;
(b) in payment to those of the Lenders to whom are owed
sums outstanding under this Agreement in the following order of priority:
(i) in or towards payment pro rata of any
interest or fees accrued but unpaid under this Agreement;
(ii) in or towards payment pro rata of any
principal sums outstanding under this Agreement; and
(iii) in or towards payment pro rata of any other
financing costs accrued but unpaid under this Agreement;
(c) as to any balance, in payment to the Borrower or
other Person properly entitled thereto.
SECTION 8.11. Directions. The Facility Agent may require the
receipt of security satisfactory to it against any liability or loss which it
may incur in taking any proceedings or action arising out of or in connection
with this Agreement before it commences those proceedings or takes that action.
SECTION 8.12. Affiliates. In order to enable JPMorgan Chase
Bank, Hong Kong Office to bring relevant expertise to bear on its engagement
under this Agreement from among its global affiliates, the Borrower agrees that
JPMorgan Chase Bank, Hong Kong Office may share information obtained from the
Borrower hereunder with its affiliates, and may perform the services
contemplated hereby in conjunction with its affiliates, and that any JPMorgan
Chase Bank, Hong Kong Office affiliates performing services hereunder shall be
entitled to the benefits and subject to the terms of this Agreement.
SECTION 8.13. Banking Business. The Facility Agent may:
(a) carry on any business with the Borrower or any
Subsidiary or other Affiliate thereof;
(b) act as agent or trustee for, or in relation to any
financing involving, the Borrower or any Subsidiary or other Affiliate thereof;
and
(c) retain any profits or remuneration in connection with
its activities under this Agreement or in relation to any of the foregoing and
shall not be required to account to any Lenders in respect of such profits or
remuneration.
- 32 -
SECTION 8.14. Defaults. The Facility Agent shall not be deemed
to have knowledge or notice of the occurrence of a Default (other than the
non-payment of amounts stated herein to be payable directly to it) unless the
Facility Agent has received notice from a Lender or the Borrower specifying such
Default. In the event that the Facility Agent receives such notice of the
occurrence of a Default, the Facility Agent shall give prompt notice thereof to
the Lenders (and shall give each Lender prompt notice of each such non-payment).
The Facility Agent shall (subject to Section 8.15) take such action with respect
to such Default as shall be directed by the Required Lenders; provided that,
unless and until the Facility Agent shall have received such directions, the
Facility Agent may (but shall not be obligated to) take such action, or refrain
from taking such action, with respect to such Default as it shall deem advisable
in the best interest of the Lenders except to the extent that this Agreement
expressly requires that such action be taken, or not be taken, only with the
consent or upon the authorization of the Required Lenders.
SECTION 8.15. Failure to Act. Except for action expressly
required of the Facility Agent hereunder to which the Facility Agent is intended
to be a party, the Facility Agent shall in all cases be fully justified in
failing or refusing to act hereunder and thereunder unless it shall receive
further assurances to its satisfaction from the Lenders of their indemnification
obligations under Section 9.03 against any and all liability and expense that
may be incurred by it by reason of taking or continuing to take any such action.
SECTION 8.16. Call Option and Escrow Agreement. The Lenders
hereby authorize and instruct the Facility Agent to enter into the Call Option
and Escrow Agreement and to provide the information required from the Facility
Agent thereunder, and the Borrower consents to the Facility Agent doing so.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices. All notices, demands and other
communications provided for herein shall be in writing and shall be delivered by
hand or overnight courier service, mailed by certified or registered mail or
sent by facsimile or, in the case of notices and other communications between
the Facility Agent and the Lenders, the Facility Agent shall have the option to
deliver such notices and other communications by electronic mail to the Lenders
provided that the Facility Agent shall also deliver such notices and
communication by letter to such Lender. All notices, demands and other
communications provided for herein shall be delivered to the following
addresses:
(a) if to the Borrower, to it at Xx. Xxxxx Xx.0, Xxxxxxx
00000, Xxxxxxxxx, Attention of President Director (Facsimile No. (62 22)
000-0000; Telephone No. (00 00) 000-0000);
(b) if to the Facility Agent, to it at 00xx Xxxxx,
XXXxxxxx Xxxxx, Xxxxx Xxxxxxx Plaza, 138 Shatin Rural Committee Road, Shatin,
N.T., Hong Kong, Attention of Xxxxxxx Xxxxx (Facsimile No. x000 0000 0000/2836
9651; Telephone No. x000 0000 0000); and
(c) if to a Lender, to it at its address, facsimile
number or electronic mail address
- 33 -
designated for such lender on the signature pages hereof;
Any party hereto may change its address, facsimile number or
electronic mail address for notices and other communications hereunder by
providing not less than five Business Days prior written notice to the other
parties hereto (or, in the case of any such change by a Lender of its lending
office and/or office for notices, by notice to the Borrower and the Facility
Agent). Any notice, demand or other communication so addressed to the relevant
party shall be deemed to have been delivered: (a) if given by letter, when
actually delivered to the relevant address; (b) if given or made by facsimile,
when dispatched if the transmission report states that it has been sent in full
without error; provided that, if the day on which such notice, demand or other
communication would otherwise be deemed to have been delivered is not a working
day in the place to which it is sent, such notice, demand or other communication
shall be deemed to have been delivered on the next following day at such place;
and (c) if given by electronic mail, be deemed to have been duly given (i) on
the day (if a Business Day and, if not, on the next following Business Day) on
which such electronic mail is validly transmitted if transmitted before 5.00
p.m. local time in the place of address, and if transmitted after that time, on
the next following Business Day and (ii) upon the Facility Agent's mailbox
receiving an acknowledgement that the transmission has been received by the
recipient's mailbox and no failed delivery message; provided that any
communication or document to be made or delivered to the Facility Agent shall be
effective only when received by its agency division and then only if the same is
expressly marked for the attention of the department or officer identified with
the Facility Agent's signature below (or such other department or officer as the
Facility Agent shall from time to time specify for this purpose).
Notices and other communications to the Lenders hereunder may
be delivered or furnished by electronic communications pursuant to procedures
approved by the Facility Agent and the applicable Lender; provided that the
foregoing shall not apply to notices pursuant to Article II unless otherwise
agreed by the Facility Agent and the applicable Lender. The Facility Agent or
the Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it; provided that approval of such procedures may be
limited to particular notices or communications.
SECTION 9.02. Waivers; Amendments.
(a) No Deemed Waivers; Remedies Cumulative. No failure or
delay by the Facility Agent or any Lender in exercising any right or power
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power, or any abandonment or discontinuance of
steps to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and remedies of
the Facility Agent and the Lenders hereunder are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of
any provision of this Agreement or consent to any departure by the Borrower
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) of this Section, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
(b) Amendments. Neither this Agreement nor any provision
hereof may be waived, amended or modified except pursuant to an agreement or
agreements in writing entered into
- 34 -
by the Borrower and the Required Lenders or by the Borrower and the Facility
Agent with the consent of the Required Lenders; provided that no such agreement
shall
(i) reduce the principal amount of any Loan or
reduce the rate of interest thereon, or reduce any fees payable
hereunder, without the written consent of each Lender affected thereby,
(ii) postpone the scheduled date of payment of
the principal amount of any Loan, or any interest thereon, or any fees
payable hereunder, or reduce the amount of, waive or excuse any such
payment, without the written consent of each Lender affected thereby,
(iii) change Section 2.07 without the written
consent of each Lender affected thereby, or
(iv) change any of the provisions of this Section
or the percentage in the definition of the term "Required Lenders" or
any other provision hereof specifying the number or percentage of
Lenders required to waive, amend or modify any rights hereunder or make
any determination or grant any consent hereunder,
without the written consent of each Lender; and provided further that no such
agreement shall amend, modify or otherwise affect the rights or duties of the
Facility Agent hereunder without the prior written consent of the Facility
Agent.
SECTION 9.03. Expenses; Indemnity; Damage Waiver.
(a) Costs and Expenses. The Borrower shall pay (i) all
out-of-pocket expenses incurred by the Facility Agent and its Affiliates,
including the fees, charges and disbursements of counsel for the Facility Agent,
in connection with the preparation and administration of this Agreement or any
amendments, modifications or waivers of the provisions hereof (whether or not
the transactions contemplated hereby or thereby shall be consummated), (ii) all
out-of-pocket expenses incurred by the Facility Agent or any Lender, including
the fees, charges and disbursements of any counsel for the Facility Agent, or
any Lender, in connection with the enforcement or protection of its rights in
connection with this Agreement, including its rights under this Section, or in
connection with the Loan made hereunder, including in connection with any
workout, restructuring or negotiations in respect thereof and (iii) all
transfer, stamp, documentary or other similar taxes, assessments or charges
levied by any governmental or revenue authority in respect of this Agreement or
any other document referred to herein in each case, as required to be paid by
the Borrower pursuant to the terms of this Agreement or the other Basic
Documents to which the Borrower is a party.
(b) Indemnification by the Borrower. The Borrower shall
indemnify the Facility Agent and each Lender, and each Related Party of any of
the foregoing Persons (each such Person being called an "INDEMNITEE") against,
and hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses, including the fees, charges and disbursements
of any counsel for any Indemnitee, incurred by or asserted against any
Indemnitee arising out of, in
- 35 -
connection with, or as a result of (i) the execution or delivery of this
Agreement or any agreement or instrument contemplated hereby, the performance by
the parties hereto of their respective obligations hereunder or the consummation
of the Transactions or any other transactions contemplated hereby, (ii) any Loan
or the use of the proceeds therefrom, or (iii) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory and regardless of whether
any Indemnitee is a party thereto (iv) acting or relying on any notice, request
or instruction which it believes to be genuine, correct and appropriately
authorized relating to this Agreement, or (v) investigating any event which it
reasonably believes is a Default; provided that such indemnity shall not, as to
any Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Indemnitee.
(c) Reimbursement by Lenders. The Lenders agree to
indemnify the Facility Agent (to the extent not reimbursed under Section
9.03(b), but without limiting the obligations of the Borrower under Section
9.03(b)) ratably in accordance with the principal amount of the Loan held by the
Lenders, for any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind and
nature whatsoever that may be imposed on, incurred by or asserted against the
Facility Agent (including by any Lender) arising out of or by reason of any
investigation or any way relating to or arising out of this Agreement (including
the costs and expenses that the Borrower are obligated to pay under Section
9.03(b) but excluding, unless a Default has occurred and is continuing, normal
administrative costs and expenses incident to the performance of its agency
duties hereunder) or the enforcement of any of the terms hereof; provided that
no Lender shall be liable for any of the foregoing to the extent they arise from
the gross negligence or willful misconduct of the Facility Agent.
(d) Waiver of Consequential Damages, Etc. To the extent
permitted by applicable law, the Borrower shall not assert, and hereby waives,
any claim against any Indemnitee, on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to direct or actual
damages) arising out of, in connection with, or as a result of, this Agreement
or any agreement or instrument contemplated hereby, the Transactions, any Loan
or the use of the proceeds thereof.
(e) Payments. All amounts due under this Section shall be
payable on demand therefor.
SECTION 9.04. Successors and Assigns.
(a) Assignments Generally. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby, except that the
Borrower may not assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by the Borrower without such consent shall be null and
void). Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby and, to the extent expressly
contemplated hereby, the Related Parties of each of the Facility Agent and the
Lenders) any legal or
- 36 -
equitable right, remedy or claim under or by reason of this Agreement.
(b) Assignments by Lenders. Any Lender may assign to one
or more Eligible Assignees all or a portion of its rights and obligations under
this Agreement (including all or a portion of the Loan at the time owing to it
provided that any such assignment shall be in a minimum amount of $1,000,000 or
equivalent to the balance of principal payable to the Lender under this
Agreement); provided that
(i) each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender's rights
and obligations under this Agreement, and
(ii) the parties to each assignment shall execute
and deliver to the Facility Agent an Assignment and Acceptance, and the
assignee shall pay a processing and recordation fee of $1,000 to the
Facility Agent.
Upon acceptance and recording pursuant to paragraph (d) of
this Section, from and after the effective date specified in each Assignment and
Acceptance, the assignee thereunder shall be a party hereto and, to the extent
of the interest assigned by such Assignment and Acceptance, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Acceptance, be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all of the assigning Lender's
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of Sections 2.11
and 9.03). Any assignment or transfer by a Lender of rights or obligations under
this Agreement that does not comply with this paragraph shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with paragraph (e) of this Section.
(c) Maintenance of Register by the Facility Agent. The
Facility Agent shall maintain at one of its offices a copy of each Assignment
and Acceptance delivered to it and a register for the recordation of the names
and addresses of the Lenders, and the principal amount of the Loan owing to,
each Lender pursuant to the terms hereof from time to time (the "REGISTER"). The
entries in the Register shall be conclusive, and the Borrower, the Facility
Agent and the Lenders may treat each Person whose name is recorded in the
Register pursuant to the terms hereof as a Lender hereunder for all purposes of
this Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower and any Lender, at any reasonable time
and from time to time upon reasonable prior notice.
(d) Effectiveness of Assignments. Upon its receipt of a
duly completed Assignment and Acceptance executed by an assigning Lender and an
assignee, the processing and recordation fee referred to in paragraph (b) of
this Section, the Facility Agent shall accept such Assignment and Acceptance,
record the information contained therein in the Register and notify the Borrower
of such assignment. No assignment shall be effective for purposes of this
Agreement unless it has been recorded in the Register as provided in this
paragraph.
(e) Participations. Any Lender may, without the consent
of the Borrower or the
- 37 -
Facility Agent, sell participations to one or more banks or other entities (a
"PARTICIPANT") in all or a portion of such Lender's rights and obligations under
this Agreement (including all or a portion of the Loan owing to it); provided
that (i) such Lender's obligations under this Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations and (iii) the Borrower, the Facility Agent
and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement. Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement.
(f) Limitations on Rights of Participants. A Participant
shall not be entitled to receive any greater payment under Section 2.06 than the
applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to
such Participant is made with the Borrower's prior written consent. A
Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Section 2.06 unless the Borrower is notified of the
participation sold to such Participant.
(g) Certain Pledges. Any Lender may at any time pledge or
assign a security interest in all or any portion of its rights under this
Agreement to secure obligations of such Lender and this Section shall not apply
to any such pledge or assignment of a security interest; provided that no such
pledge or assignment of a security interest shall release a Lender from any of
its obligations hereunder or substitute any such assignee for such Lender as a
party hereto.
(h) No Assignments to the Borrower or Affiliates.
Anything in this Section to the contrary notwithstanding, no Lender may assign
or participate any interest in any Loan held by it hereunder to the Borrower or
any of its Affiliates or Subsidiaries without the prior consent of each Lender.
SECTION 9.05. Survival. All covenants, agreements,
representations and warranties made by the Borrower herein and in the
certificates or other instruments delivered in connection with or pursuant to
this Agreement shall be considered to have been relied upon by the other parties
hereto and shall survive the execution and delivery of this Agreement and the
making of any Loan, regardless of any investigation made by any such other party
or on its behalf and notwithstanding that the Facility Agent or any Lender may
have had notice or knowledge of any Default or incorrect representation or
warranty at the time any credit is extended hereunder, and shall continue in
full force and effect as long as the principal of or any accrued interest on any
Loan or any fee or any other amount payable under this Agreement is outstanding
and unpaid. The provisions of Sections 2.11 and 9.03 and Article VIII shall
survive and remain in full force and effect regardless of the consummation of
the transactions contemplated hereby, the repayment of the Loan or the
termination of this Agreement or any provision hereof.
SECTION 9.06. Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement and
any separate letter agreements with respect to fees payable to the Facility
Agent
- 38 -
constitute the entire contract between and among the parties relating to the
subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except
as provided in Article IV, this Agreement shall become effective when it shall
have been executed by the Facility Agent and when the Facility Agent shall have
received counterparts hereof which, when taken together, bear the signatures of
each of the other parties hereto, and thereafter shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns. Delivery of an executed counterpart of a signature page to this
Agreement by telecopy shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 9.07. Severability. Any provision of this Agreement
held to be invalid, illegal or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such invalidity, illegality
or unenforceability without affecting the validity, legality and enforceability
of the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08. Right of Set-off. If an Event of Default shall
have occurred and be continuing, each Lender is hereby authorized at any time
and from time to time, to the fullest extent permitted by law, to set off and
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing by such Lender
to or for the credit or the account of the Borrower against any of and all the
obligations of the Borrower now or hereafter existing under this Agreement held
by such Lender, irrespective of whether or not such Lender shall have made any
demand under this Agreement and although such obligations may be unmatured. The
rights of each Lender under this Section are in addition to other rights and
remedies (including other rights of setoff) which such Lender may have.
SECTION 9.09. Governing Law; Jurisdiction; Service of
Process; Etc.
(a) Governing Law. This Agreement shall be construed in
accordance with and governed by the law of the State of New York.
(b) Submission to Jurisdiction. The Borrower hereby
agrees that any suit, action or proceeding with respect to this Agreement or any
judgment entered by any court in respect thereof may be brought in the United
States District Court for the Southern District of New York, in the Supreme
Court of the State of New York sitting in New York County (including its
Appellate Division), or in any other appellate court in the State of New York,
as the party commencing such suit, action or proceeding may elect in its sole
discretion; and the Borrower hereby irrevocably submits to the jurisdiction of
such courts for the purpose of any such suit, action, proceeding or judgment.
The Borrower further submits, for the purpose of any such suit, action,
proceeding or judgment brought or rendered against it, to the appropriate courts
of the jurisdiction of its domicile.
(c) Process Agent. The Borrower hereby agrees that
service of all writs, process and summonses in any such suit, action or
proceeding brought in the State of New York may be made upon CT Corporation,
presently located at 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "PROCESS
AGENT"), and the Borrower hereby confirms and agrees that the Process Agent has
been duly and irrevocably appointed as its agent and true and lawful
attorney-in-fact in its name,
- 39 -
place and stead to accept such service of any and all such writs, process and
summonses, and agrees that the failure of the Process Agent to give any notice
of any such service of process to the Borrower shall not impair or affect the
validity of such service or of any judgment based thereon. The Borrower hereby
further irrevocably consents to the service of process in any suit, action or
proceeding in such courts by the mailing thereof by the Facility Agent or any
Lender by registered or certified mail, postage prepaid, at its address set
forth beneath its signature hereto.
(d) Other Service. Nothing herein shall in any way be
deemed to limit the ability of the Facility Agent or any Lender to serve any
such writs, process or summonses in any other manner permitted by applicable law
or to obtain jurisdiction over the Borrower in such other jurisdictions, and in
such manner, as may be permitted by applicable law.
(e) Waiver of Venue. The Borrower hereby irrevocably
waives any objection that it may now or hereafter have to the laying of the
venue of any suit, action or proceeding arising out of or relating to this
Agreement brought in the Supreme Court of the State of New York, County of New
York or in the United States District Court for the Southern District of New
York, and hereby further irrevocably waives any claim that any such suit, action
or proceeding brought in any such court has been brought in an inconvenient
forum.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. No Immunity. To the extent that the Borrower may
be or become entitled, in any jurisdiction in which judicial proceedings may at
any time be commenced with respect to this Agreement, to claim for itself or its
properties or revenues any immunity from suit, court jurisdiction, attachment
prior to judgment, attachment in aid of execution of a judgment, execution of a
judgment or from any other legal process or remedy relating to its obligations
under this Agreement, and to the extent that in any such jurisdiction there may
be attributed such an immunity (whether or not claimed), the Borrower hereby
irrevocably agrees not to claim and hereby irrevocably waives such immunity to
the fullest extent permitted by the laws of such jurisdiction.
SECTION 9.12. Judgment Currency. This is an international loan
transaction in which the specification of Dollars is of the essence, and the
obligations of the Borrower under this Agreement to make payment to (or for
account of) a Lender in Dollars shall not be discharged or satisfied by any
tender or recovery pursuant to any judgment expressed in or converted into any
other currency or in another place except to the extent that such tender or
recovery results in the effective
- 40 -
receipt by such Lender of the full amount of Dollars payable to such Lender
under this Agreement. If for the purpose of obtaining judgment in any court it
is necessary to convert a sum due hereunder in Dollars into another currency (in
this Section called the "JUDGMENT CURRENCY"), the rate of exchange that shall be
applied shall be that at which in accordance with normal banking procedures the
Facility Agent could purchase such Dollars at the principal office of the
Facility Agent with the judgment currency on the Business Day next preceding the
day on which such judgment is rendered. The obligation of the Borrower in
respect of any such sum due from it to the Facility Agent or any Lender
hereunder (in this Section called an "ENTITLED PERSON") shall, notwithstanding
the rate of exchange actually applied in rendering such judgment, be discharged
only to the extent that on the Business Day following receipt by such Entitled
Person of any sum adjudged to be due hereunder in the judgment currency such
Entitled Person may in accordance with normal banking procedures purchase and
transfer Dollars with the amount of the judgment currency so adjudged to be due;
and the Borrower hereby, as a separate obligation and notwithstanding any such
judgment, agrees to indemnify such Entitled Person against, and to pay such
Entitled Person on demand, in Dollars, the amount (if any) by which the sum
originally due to such Entitled Person in Dollars hereunder exceeds the amount
of the Dollars so purchased and transferred.
SECTION 9.13. Use of English Language. This Agreement has been
negotiated and executed in the English language. All certificates, reports,
notices and other documents and communications given or delivered pursuant to
this Agreement (including any modifications or supplements hereto) shall be in
the English language, or accompanied by a certified English translation thereof.
Except in the case of laws or official communications of Indonesia, in the case
of any document originally issued in a language other than English, the English
language version of any such document shall for purposes of this Agreement, and
absent manifest error, control the meaning of the matters set forth therein.
SECTION 9.14. Headings. Article and Section headings and the
Table of Contents used herein are for convenience of reference only, are not
part of this Agreement and shall not affect the construction of, or be taken
into consideration in interpreting, this Agreement.
- 41 -
SECTION 9.15 Confidentiality. All material, non-public
information provided to or received by, or otherwise obtained by, the Facility
Agent or any Lender pursuant to this Agreement shall be kept secret and
confidential by the Facility Agent or such Lender, as the case may be, except
that such information may be disclosed (i) to its and its Affiliates' head
office, other branches, representative offices, directors, officers, employees
and agents, including accountants, auditors, legal counsel and other advisors
(it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such information and instructed to keep
such information confidential), (ii) to the extent requested by any regulatory
authority, (iii) to the extent required by applicable laws or regulations or by
any subpoena or similar legal process, (iv) to any other party to this Agreement
(it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such information and instructed to keep
such information confidential), (v) in connection with the exercise of any
remedies hereunder or any suit, action or proceeding relating to this Agreement
or the enforcement of rights hereunder, (vi) subject to an agreement containing
provisions substantially the same as those of this paragraph, to any assignee of
or Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement (it being understood that the Persons
to whom such disclosure is made will be informed of the confidential nature of
such information and instructed to keep such information confidential), (vii)
with the prior written consent of the Borrower or (viii) to the extent such
information (A) becomes publicly available other than as a result of a breach of
this paragraph or (B) becomes available to the Facility Agent or any Lender on a
nonconfidential basis.
- 42 -
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
PERUSAHAAN PERSEROAN (PERSERO) PT
TELEKOMUNIKASI INDONESIA, TBK.
By /s/ Kristiono
_________________________
Name: Kristiono
Title: President Director
By_________________________
Name:
Title:
JPMORGAN CHASE BANK,
HONG KONG OFFICE, as Facility Agent
By /s/ Sigit Priwibowo
_________________________
Name: Sigit Priwibowo
Title: Vice President
- 43 -
LENDERS
ASO I (MAURITIUS) LIMITED
By /s/ Xxxx XxXxxxxxxx
________________________
Name: Xxxx XxXxxxxxxx
Title: Director
Lending office and address for notices:
Attention of: Xxxx Xxx/Xxxxx Xxxxx
Address: c/o: 68th Floor, Xxxxxx Kong Center
0 Xxxxx'x Xxxx Xxxxxxx
Xxxx Xxxx
Facsimile No.: (000) 0000-0000
Telephone No.: (000) 0000-0000/2978-1625
E-mail: xxxx-xxxxxx-xx@xx.xx.xx.xxx
- 44 -
AVENUE ASIA CAPITAL PARTNERS, L.P.
By /s/ Xxxxxxx Xxxxxxxx
_________________________
Name: Xxxxxxx Xxxxxxxx
Title: Managing Director
Lending office and address for notices:
Attention of: Xxxxxxx Xxxxxxxx/Xxxxx Xxx
Address: c/o Avenue Capital Group (New York)
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
XXX
Facsimile No.: (0-000) 000-0000
Telephone No.: (0-000) 000-0000/878-3528
E-mail: xxxxxxxxxxx@xxxxxxxxx.xxx
xxxxx.xxx@xxxxxx-xxxx.xxx
And to:
Attention of: Xxx Xxxxxxx
Address: c/o Avenue Capital Group (Jakarta)
Wisma GKBI 39th Floor, Suite 3901
Xx. Xxxx. Xxxxxxxx Xx. 00
Xxxxxxx 00000
Xxxxxxxxx
Facsimile No.: (00-00) 0000-0000
Telephone No.: (00-00) 0000-0000
E-mail: xxx.xxxxxxx@xxxxxx-xxxx.xxx
- 45 -
AVENUE ASIA INTERNATIONAL LTD.
By /s/ Xxxxxxx Xxxxxxxx
_________________________
Name: Xxxxxxx Xxxxxxxx
Title: Managing Director
Lending office and address for notices:
Attention of: Xxxxxxx Xxxxxxxx/Xxxxx Xxx
Address: c/o Avenue Capital Group (New York)
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
XXX
Facsimile No.: (0-000) 000-0000
Telephone No.: (0-000) 000-0000/878-3528
E-mail: xxxxxxxxxxx@xxxxxxxxx.xxx
xxxxx.xxx@xxxxxx-xxxx.xxx
And to:
Attention of: Xxx Xxxxxxx
Address: c/o Avenue Capital Group (Jakarta)
Wisma GKBI 39th Floor, Suite 3901
Xx. Xxxx. Xxxxxxxx Xx. 00
Xxxxxxx 00000
Xxxxxxxxx
Facsimile No.: (00-00) 0000-0000
Telephone No.: (00-00) 0000-0000
E-mail: xxx.xxxxxxx@xxxxxx-xxxx.xxx
- 46 -
AVENUE ASIA INVESTMENTS, L.P.
By /s/ Xxxxxxx Xxxxxxxx
_________________________
Name: Xxxxxxx Xxxxxxxx
Title: Managing Director
Lending office and address for notices:
Attention of: Xxxxxxx Xxxxxxxx/Xxxxx Xxx
Address: c/o Avenue Capital Group (New York)
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
XXX
Facsimile No.: (0-000) 000-0000
Telephone No.: (0-000) 000-0000/878-3528
E-mail: xxxxxxxxxxx@xxxxxxxxx.xxx
xxxxx.xxx@xxxxxx-xxxx.xxx
And to:
Attention of: Xxx Xxxxxxx
Address: c/o Avenue Capital Group (Jakarta)
Wisma GKBI 39th Floor, Suite 3901
Xx. Xxxx. Xxxxxxxx Xx. 00
Xxxxxxx 00000
Xxxxxxxxx
Facsimile No.: (00-00) 0000-0000
Telephone No.: (00-00) 0000-0000
E-mail: xxx.xxxxxxx@xxxxxx-xxxx.xxx
- 47 -
AVENUE ASIA SPECIAL SITUATIONS FUND II, L.P.
By /s/ Xxxxxxx Xxxxxxxx
_________________________
Name: Xxxxxxx Xxxxxxxx
Title: Managing Director
Lending office and address for notices:
Attention of: Xxxxxxx Xxxxxxxx/Xxxxx Xxx
Address: c/o Avenue Capital Group (New York)
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
XXX
Facsimile No.: (0-000) 000-0000
Telephone No.: (0-000) 000-0000/878-3528
E-mail: xxxxxxxxxxx@xxxxxxxxx.xxx
xxxxx.xxx@xxxxxx-xxxx.xxx
And to:
Attention of: Xxx Xxxxxxx
Address: c/o Avenue Capital Group (Jakarta)
Wisma GKBI 39th Floor, Suite 3901
Xx. Xxxx. Xxxxxxxx Xx. 00
Xxxxxxx 00000
Xxxxxxxxx
Facsimile No.: (00-00) 0000-0000
Telephone No.: (00-00) 0000-0000
E-mail: xxx.xxxxxxx@xxxxxx-xxxx.xxx
- 48 -
BANK OF BERMUDA (GUERNSEY) LIMITED, AS SUB CUSTODIAN AND AGENT FOR SPINNAKER
GLOBAL EMERGING MARKETS FUND AND SPINNAKER GLOBAL OPPORTUNITY FUND
By /s/ Xxxxx Xxxxx
_________________________
Name: Xxxxx Xxxxx
Title: Head of Global Fund Services (Guernsey)
Lending office and address for notices:
Attention of: Xxxxxxx Xxxxxxx
Address: XX Xxx 000, Xxxxxxx Xxxxx
Xx. Julian's Avenue, St. Xxxxx Port
Guernsey, Channel Islands GY1 3NF
Facsimile No.: (44-1481) 707-237
Telephone No.: (44-1481) 707-054
E-mail: xxxxxxx.xxxxxxx@xxxxxxxxxxxxx.xxx
- 49 -
BANK ONE, NA
By /s/ Xxxxxxx X. Xxxxx
_________________________
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
Regional Executive, Asia Pacific
Address for Lending Office:
Bank One, NA
Suite IL1-0629, 1-10
1 Bank Xxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Address for notices:
Xxxx Xxx, XX, XX Branch
Attention of: Xxxxx Xxx
Address: Hong Kong Branch
0xx Xxxxx, Xxxxxxx Xxxxx, 0 Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxx Xxxx
Facsimile No.: (000) 0000-0000
Telephone No.: (000) 0000-0000 (Main) / 2844-9250 (Direct)
E-mail: xxxxx_xxx@xxxxxxx.xxx
And to:
Bank One, NA
Attention of: Xxxxxx X. Xxxxx
Address: Suite IL 1-0318, 1-17
1 Bank Xxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Facsimile No.: (0-000) 000-0000
Telephone No.: (0-000) 000-0000
E-mail: xxxxx_xxxxx@xxxxxxx.xxx
- 50 -
BAYERISCHE HYPO- UND VEREINSBANK AG
By /s/ Xxxx Xxxxx
_________________________
Name: Xxxx Xxxxx
Title: Director - Project and Export Finance Asia Pacific
Lending office and address for notices:
Attention of: Xxxx Xxxxx/Xxx Xxxxx Xxxx/Xxxxx Xxx
Address: Bayerische Hypo-und Vereinsbank AG, Singapore Branch
00 Xxxxx Xxxxxx, #00-00 Xxxxxxxxxx Xxxxx
Xxxxxxxxx 000000
Facsimile No.: (00) 0000-0000/3714
Telephone No.: (00) 0000-0000/3852/3772
Email: xxxx.xxxxx.xxxxx@xxxxxxx.xxx
Xxxxx.Xxxx.xxx@xxxxxxx.xxx
Xxxxx.Xxx@xxxxxxx.xxx
And to:
Attention of: Xxxxxx Xxxxxxx
Address: Bayerische Hypo-und Vereinsbank AG
MCP 0, Xx Xxxxxxxxxx 0
X-00000, Xxxxxx
Xxxxxxx
Facsimile No.: (00-00) 000-00000
Telephone No.: (00-00) 000-00000
Email: xxxxxx.xxxxxxx@xxx.xx
- 00 -
XXXXXXXXXX XXXXXXXXXX, XXXXXXXXX BRANCH
By /s/ Xxxxx Xxx /s/ Daniel Soo
_________________________ _________________________
Name: Xxxxx Xxx Daniel Soo
Title: Vice President Assistant Vice President
Lending office and address for notices:
Attention of: Xxxxx Xxx/Xxxxxx Xxx
Address: 000 Xxxxx Xxxx
#00-00 Xxx Xxxxxxxxx
Xxxxxxxxx 000000
Facsimile No.: (00) 0000-0000
Telephone No.: (00) 0000-0000/6390-6614
Email: xxxxxxxx@xxxxxxxx.xx
xxxxxxxxx@xxxxxxxx.xx
- 52 -
BNP PARIBAS, SINGAPORE BRANCH
By /s/ Xxxxxx Xxxx /s/ Xxxxx Xxxxxxx
_________________________ ________________________
Name: Xxxxxx Xxxx Xxxxx Xxxxxxx
Title: Regional Head, Structured Finance Head, Leveraged Finance Group
Asia & Australasia Asia-Pacific
Lending office and address for notices:
Attention of: Xxxxxxx Xxxxxxxx/Xxxxxx Xxxxxxxxx
Address: 00 Xxxxxxx Xxxx
Xxxx Xxxxxx
Xxxxxxxxx 000000
Facsimile No.: (00) 0000-0000
Telephone No.: (00) 0000-0000/6210-1807
Email: xxxxxxx.xxxxxxxx@xxxx.xxxxxxxxxx.xxx;
xxxxxx.xxxxxxxxx@xxxx.xxxxxxxxxx.xxx
- 53 -
CARGILL FINANCIAL SERVICES INTERNATIONAL, INC.
By /s/ Xxxxxxx X. Xxxxxxxxx /s/ Xxxxxxxxxxx X. Xxxxxxx
_________________________ _________________________
Name: Xxxxxxx X. Xxxxxxxxx Xxxxxxxxxxx X. Xxxxxxx
Title: Portfolio Manager Operations Manager
Lending office and address for notices:
Attention of: Xxxxxx X. Xxxxxxxxxx/Xxxxxx Xxxxxxxx
Address: 00000 Xxxxxxxxxx Xxxxx XX 00
Xxxxxxxxxx, Xxxxxxxxx 00000-0000
XXX
Facsimile No.: (000) 000-0000/3728
Telephone No.: (000) 000-0000/3762
Email: Xxxxxx_xxxxxxxxxx@xxxxxxx.xxx
Xxxxxx_Xxxxxxxx@xxxxxxx.xxx
- 54 -
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK,
SINGAPORE BRANCH
By /s/ How Seen Tiat By /s/ Xxxxx Xxxx
_________________________ _________________________
Name: How Seen Tiat Name: Xxxxx Xxxx
Title: Director Title: Senior Manager
Lending office and address for notices:
Attention of: Xxxxx Xxxx/Tan Xxx Xxxxx/Xxx Geat Choo
Address: 00 Xxxxxxxx Xxxx
#00-00 XXX Xxxxxxxx
Xxxxxxxxx 000000
Facsimile No.: (00) 0000-0000/0000-0000
Telephone No.: (00) 0000-0000/6230-6730/6230-6732
E-mail: xxxxx.xxxxxx@xxxxxxxx.xxx
xxxxxxxx.xxx@xxxxxxxx.xxx
xxxxxxxx.xxx@xxxxxxxx.xxx
- 55 -
CREDIT AGRICOLE INDOSUEZ (SUISSE) SA
By /s/ Xxxxxxxx Lambeln By /s/ Xxxxxxxxxx Xxxxxx
_________________________ __________________________
Name: Xxxxxxxx Lambeln Name: Xxxxxxxxxx Xxxxxx
Title: Title:
Lending office and address for notices:
Attention of: Xxxxxxx Xxxx-Xxxxxx
Address: 0, Xxxx Xxxxxxx Xxxxxx
0000 Xxxxxx
Xxxxxxxxxxx
Facsimile No.: (00-00) 000-0000
Telephone No.: (00-00) 000-0000
E-mail: Xxxxxxx_Xxxx-Xxxxxx@xx-xxxxxxxx.xx
- 00 -
XXXXXXXX XXXX XX, XXXXXX
By /s/ Xxx, Xxx Xxxxx By /s/ Xxx Macr
_________________________ ____________________
Name: Xxx, Xxx Xxxxx Name: Xxx Macr
Title: Director Title: Director
Lending office and address for notices:
Attention of: Xxxxxxx Xxxxxx
Address: Xxxxxxxxxx Xxxxx
0 Xxxxx Xxxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
Facsimile No.: (00-00) 0000-0000
Telephone No.: (00-00) 0000-0000
E-mail: xxxxxxx.xxxxxx@xx.xxx
And to:
Attention of: London Loan Operations
Address: Deutsche Bank AG, London
21st Floor
00 Xxxxxxxxxxx
Xxxxxx
Xxxxxx Xxxxxxx
Facsimile No.: (00-00) 0000-0000
Telephone No.: (00-00) 0000-0000
E-mail: XX0.XxxXxxxxxx@xxxx.xx.xxx;
xxxxx.xxxxx@xx.xxx
- 57 -
FARALLON CAPITAL MANAGEMENT, L.L.C.
By /s/ Xxxxxxx X. Xxxxxx
_________________________
Name: Xxxxxxx X. Xxxxxx
Title: Managing Member
Lending office and address for notices:
Attention of: Xxxxx Xxxxxxx
Address: Xxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
XXX
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
E-mail: xxxxxxxx@XxxxxxxxXxxxxxx.xxx
- 58 -
HILLSIDE APEX FUND LIMITED
By /s/ Xxx Xxxx
_________________________
Name: Xxx Xxxx
Title: Director
Lending office and address for notices:
Attention of: Xxxxx Xxxxxxxxxx
Address: Thames River Capital (UK) Limited
00 Xxxxxxxx Xxxxxx
Xxxxxx X0X 0XX
Xxxxxx Xxxxxxx
Facsimile No.: (00-00) 0000-0000
Telephone No.: (00-00) 0000-0000
E-mail: xxxxxxxxxx@xxxxxxxxxxx.xx.xx
xxxxxxxxxx@xxxxxxxxxxx.xx.xx
xxxxxxxx@xxxxxxxxxxx.xx.xx
- 59 -
HSH NORDBANK INTERNATIONAL S.A.
By /s/ Xxxxx Xxxxx By /s/ Xxxxx-Xxxxx Glauben
_________________________ ___________________________
Name: Xxxxx Xxxxx Name: Xxxxx-Xxxxx Glauben
Title: Banking Officer Title: Manager
Lending office and address for notices:
Attention of: Xxxxxx Xxxxxxxxxx
Address: 0, xxx Xxxx Xxxxxx
X-0000 Xxxxxxxxxx
Facsimile No.: (352) 4241-97
Telephone No.: (000) 0000-00-000
E-mail: xxxxxx.xxxxxxxxxx@xxx-xxxxxxxx-xxx.xxx
And to:
HSH NORDBANK AG
Attention of: Xxxxxx Kollex
Address: Xxxxxxxxxxx 0
00000 Xxxx
Facsimile No.: (00-000) 0000-00000
Telephone No.: (00-000) 000-00000
E-mail: xxxxxx.xxxxxx@xxx-xxxxxxxx.xxx
- 00 -
XXXXXXXX XXXXX XXXX, XXXXXXXXX BRANCH
By /s/ Xxxxxxx Xxxx
_________________________
Name: Xxxxxxx Xxxx
Title: VP
Lending office and address for notices:
Attention of: S. Tiwari or Xxxxxxx X.Xxxxxx
Address: c/o JPMorgan Services (I) Private Limited
Technopolis Knowledge Park,
Mahakali Caves Road,
Andheri (East), Mumbai 400 093
India
Facsimile No.: (91) (00) 0000 0000
Telephone No.: (91) (00) 0000 0000/23
E-mail: Xxxxx.X.Xxxxxx@xxxxxxxx.xxx
Xxxxxxx.X.Xxxxxx@xxxxxxxx.xxx
And to:
Attention of: Xxxxxxx Xxxx
Address: JPMorgan Chase Bank, Singapore Branch
000 Xxxxxxxx Xxxx
#00-00 Xxxxxxx Xxxxx
Xxxxxxxxx 000000
Facsimile No.: (00) 0000-0000
Telephone No.: (00) 0000-0000
E-mail: xxxxxxx.xxxx@xxxxxxxx.xxx
- 61 -
XX XXXXXX EUROPE LIMITED
By /s/ Xxxxxxx Xxxx
_________________________
Name: Xxxxxxx Xxxx
Title: VP
Lending office and address for notices:
Attention of: Xxxx Xxxxxxxxx/Xxxx Xxxxxxx
Address: 125 London Xxxx
00xx Xxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Facsimile No.: (00-000) 000 0000
Telephone No.: (00-000) 000-0000 / 000-0000
Email: Xxxx.Xxxxxxxxx@xxxxxxxx.xxx
Xxxx.Xxxxxxx@xxxxxxxx.xxx
- 62 -
KBC BANK N.V., LONDON BRANCH
By /s/ Xxxx Xxxxxx By /s/ Xxxx Xxxxxxx
_________________________ _________________________
Name: Xxxx Xxxxxx Name: Xxxx Xxxxxxx
Title: Head of Credit Risk Title: Documentation Officer
Lending office and address for notices:
Attention of: Xxxxx Xxx
Address: KBC Bank N.V., London Branch
5th Floor, 000 Xxx Xxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
Facsimile No.: (00-00) 0000-0000
Telephone No.: (00-00) 0000-0000
Email: xxxxx.xxx@xxx.xx
And to:
Attention of: Xxxxxxx Xx
Address: KBC Bank N.V.
Global Structured Finance
00xx Xxxxx, Xxxxxxx Xxxxx
00 Xxxxxxx Xxxx
Xxxxxxx, Xxxx Xxxx
Facsimile No.: (000) 0000-0000
Telephone No.: (000) 0000-0000
Email: xxxxxxxxxxxxxx.xx@xxx.xxx
And to:
Attention of: Xxxxx Xxxxxx/Xxxxx X'xxxxxx
Address: KBC Bank N.V., Dublin Branch
XXX Xxxxx, 0 Xxxxxxx Xxxx
XXXX
Xxxxxx 0
Xxxxxxx
Facsimile No.: (000-0) 000-0000
Telephone No.: (000-0) 000-0000
Email: xxxxx.xxxxxx@xxx.xx
xxxxx.xxxxxxx@xxx.xx
- 63 -
KORAM BANK
By /s/ Xxxx Xxxx Shin
--------------------------------
Name: Xxxx Xxxx Shin
Title: Head of Investment Banking Team
Lending office and address for notices:
Attention of: X.X. Xxxxx (Assistant Manager)/C.W. Bang (Assistant
Manager)
Address: #00, Xx-Xxxx Xxxxx-Xx
Xxxxx
Xxxxx (100-180)
Facsimile No.: (000) 0000-0000
Telephone No.: (000) 0000-0000/2543
E-mail: xxxxx@xxxxxxxx.xxx
- 64 -
LANDESBANK HESSEN-THUERINGEN GIROZENTRALE
By /s/ Xxxxxx Xxxxxxx /s/ Xxxxxxx Xxxxxxx
-------------------------------- -------------------------------
Name: Xxxxxx Xxxxxxx Xxxxxxx Xxxxxxx
Title: Senior Vice President Project Analyst
Lending office and address for notices:
Attention of: Structured Finance/Credit and Cash Flow Analysis
Address: Main Tower
Neue Mainzer Xxxxxxx 00-00
00000 Xxxxxxxxx xx Xxxx
Xxxxxxx
Facsimile No.: (00-00) 0000-0000
Telephone No.: (00-00) 0000-0000
E-mail: Xxxxxxx.Xxxxxxx@xxxxxx.xx
- 65 -
NIB CAPITAL BANK LTD
By /s/ X. Xxxxxxx van Kattendijke /s/ Ng Eng Chye
--------------------------------- ------------------------
Name: X. Xxxxxxx van Kattendijke Ng Eng Chye
Title: Managing Director Vice President
Lending office and address for notices:
Attention of: Ng Eng Chye/Xxx Xxxx Choo
Address: 0 Xxxxxxxxx Xxxxx, #00-00
Xxxxxxxxx 000000
Facsimile No.: (00) 0000-0000
Telephone No.: (00) 0000-0000/0000-0000
E-mail: xxx.xxxx.xx@xxxxxxxxxx.xxx;
xxx.xxxx.xxxx@xxxxxxxxxx.xxx
- 66 -
PT. INDUSTRI TELEKOMUNIKASI INDONESIA (PERSERO)
By /s/ Xxxx Xxxxx
-------------------------------
Name: Xxxx Xxxxx
Title: President Director
Lending office and address for notices:
Attention of: Rizka Irawan/Bahrun Rosyadi/Waseso Adiatmo
Address: Fixed Network and Access Division/Corporate Secretary
Gedung Xxxxxx Pusat
Xx. Xxxxxxxx Xxxx 00
Xxxxxxx 00000
Xxxxxxxxx
Facsimile No.: (00-00) 000-0000/000-0000
Telephone No.: (00-00) 000-0000/000-0000 xxx: 0000
E-mail: xxxxx@xxxx.xx.xx
xxxxxx@xxxx.xx.xx
xxxxxx@xxxx.xx.xx
- 67 -
SOCIETE GENERALE, SINGAPORE BRANCH
By /s/ XXXXXX XXXXX
-------------------------------
Name: XXXXXX XXXXX
Title: CHIEF COUNTRY MANAGER
Lending office and address for notices:
Attention of: Xxxxx Xxx/Xxxxxxx Xxxx/Xxxxxxx Xxx/Xxxx Xxx
Address: 00 Xxxxxxxx Xxxx, #00-00
Xxxxxxxxx 000000
Facsimile No.: (000) 0000-0000/(00) 0000-0000/0000-0000
Telephone No.: (000) 0000-0000/(00) 0000-0000/0000-0000
E-mail: xxxxxxx-x-x.xxxx@xxxxx.xxx;
xxxxx.xxx@xxxxx.xxx
- 68 -
SUMITOMO MITSUI BANKING CORPORATION
By /s/ Jun Ohta
--------------------------------
Name: Jun Ohta
Title: General Manager
Lending office and address for notices:
Attention of: Xxxxx Xxx/Xxxxxx Xxxxxx/Xxxxxxxx Xxx
Address: Structured Finance Department, Asia/Credit Administration
Department
0 Xxxxxxx Xxxxxx, #00-00
Xxxxxxxxxx Xxxxx
Xxxxxxxxx 000000
Facsimile No.: (00) 0000-0000/0000-0000
Telephone No.: (00) 0000-0000/6882-0530
E-mail: xxxxx_xxx@xx.xxxx.xx.xx;
xxxxxxxx_xxx@xx.xxxx.xx.xx
- 69 -
